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Tuesday, October 17, 2006

The Future of Shaming (and Restorative Justice), Part 4 of ___

(Readers interested in some background to this topic should check out posts one , two, and three of this series. The second post in particular has some fruitful discussions and exchanges in the updates and comments.)

Yesterday, in post three, I promised that I would provide a quick and dirty overview of the alternative sanctions movement. Feel free to skim or ignore this post if you are already familiar with the state of play in this area.


For the last fifteen years, proposals advocating use of alternative sanctions have attracted great attention in part because there are currently over 2.1 million people in state and federal prisons and jails. Frustrated by the apparent inability of the criminal justice system to reduce criminal populations at a reasonable cost, various scholars with different political agendas have united behind the flag of finding cheaper and more effective methods to reduce prison populations and recidivism. Some of these alternatives are stigmatic but do not involve incarceration, such as criminal fines, “demeaning” community service, and most controversially, shaming punishments. Other alternatives are carceral and stigmatic, like chain gangs, while others are carceral but less stigmatic, such as mandatory detox programs. Increasingly, some jurisdictions have even devised imaginative “guilt” punishments.*

The legal academy has focused considerable attention on the increased exploration of alternatives to incarceration. Although broad coalitions have formed to support the expanded use of alternative sanctions as a general matter, intense academic controversy has swirled around the use of shaming punishments. Compare Stephen P. Garvey, Can Shaming Punishments Educate? 65 U. CHI. L. REV. 733 (1998) (arguing that shaming is incompatible with human dignity); Markel (anti-shaming); MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW (2004) (same); Toni M. Massaro, The Meanings of Shame, 3 PSYCHOL. PUB. POL’Y & L. 645 (1997) (same); Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880 (1991) (same); James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1060 (1998) (same); with Kahan (urging greater use of shame sanctions); Dan M. Kahan & Eric A. Posner, Shaming White Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & ECON. 365 (1999) (qualified endorsement of shaming); Amitai Etzioni, Back to the Pillory? 44, THE AMERICAN SCHOLAR (1999); Note, Aaron S. Book, Shame on You: An Analysis of Modern Shame Punishment as an Alternative to Incarceration, 40 WM. & MARY L. REV. 653 (1999).

Modern day shaming punishments bear a resemblance to the scarlet-letter punishments of yore. Shaming punishments, as I suggested earlier, are penalties that intentionally stigmatize an offender before public view and invite some element of public participation in enhancing that stigmatization. What makes something a shaming penalty, in the words of Stephen Garvey, is that the penalty “exposes the offender to public view and heap[s] ignominy upon him in a way that other alternative sanctions to imprisonment, like fines and community service, do not.”

Shaming can take different forms. The stigma might attach to the offender personally. For example, convicted shoplifters have been compelled to don t-shirts saying “I am on felony probation for theft.” Alternatively, a shaming penalty may have the stigma attached to the offender’s property, such as a sign that says, “Warning: Thief Lives Here.” A third alternative involves exposing the offender’s personal information to the public. Posting names and faces on the World Wide Web or in other public places are the modern-day equivalent of the stocks: as one story put it, they might be called “cyber-pillories.”

Of course, one difference between these modern forms of shaming and the shaming sanctions of colonial America is that we do not expect passers-by to physically assault those who are the object of the shaming penalty. By contrast when an offender was placed in the stocks, pitching rotten eggs was permitted, whereas today we do not expect to incite lynch mobs or tomato-throwers when we make someone stand outside a post office and wear a sandwich board sign stating, I am a mail thief. We expect that background laws will protect the criminal from the crowd in a way that they did not in earlier generations. However, the high incidence of vigilantism in previous years suggests that this expectation may no longer be reasonable. See, e.g., Jane A. Small, Note, Who Are the People in Your Neighborhood? Due Process, Public Protection, and Sex Offender Notification Laws, 74 N.Y.U. L. REV. 1451 (1999) (providing evidence of vigilante assaults, arsons, and other violence upon those required to register under sex offender notification laws); Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey’s Megan’s Law, 3 J.L. & POL’Y, 569 (1995) (detailing incidents of death threats or attacks).

As perhaps the leading proponent of the pro-shaming penalties movement, Kahan appealed largely to the net benefits of shaming sanctions. These sanctions, he argued, incur far lower social and financial costs but nonetheless deliver a comparable degree of “punishment premium”—a notion perhaps best understood as a compound of social expression of condemnation and general deterrence—to prison. This point was critical for Kahan. He never claimed that shaming was inherently an attractive method of punishment; he simply thought shaming an offender was less cruel, less publicly degrading, and less likely to interfere with an offender’s future prospects than prison. Consequently, Kahan thought shaming was “unquestionably less problematic than imprisonment along nearly every dimension of what constitutes just punishment.”

Tomorrow's Post: The Unusual Nature of Professor Kahan's Renunciation of Shaming.

*Guilt punishments are punishments that aim at eliciting a heightened moral awareness by the offender of the specific legal wrongdoing he committed. Unlike what I call shaming punishments, guilt punishments are not aimed at humiliating the criminal. Moreover, guilt punishments can be administered effectively in private, without any crowds leering or jeering at the offender.

Posted by Administrators on October 17, 2006 at 07:07 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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Thom, the main and important difference is that guilting punishments don't rely on public humiliation to heighten the moral awareness of the offender, so there is no public exposure during the punishment, nor invitation to a crowd to leer and jeer at the offender. There are various forms of morally educative guilt punishments, and I discuss them in my 2001 Vanderbilt piece, which is up on SSRN; you might also want to look at Steve Garvey's piece, Can Shaming Punishments Educate? There he distinguishes between the public shaming punishments, which he views as incompatible with human dignity, and "educative" punishments, which often have a lex talionic relationship but without the public exposure of oneself to ignominy and humiliation.

Posted by: Dan Markel | Oct 19, 2006 8:22:40 AM

What is specifically different about "guilt" punishments versus "shame" punishments beyond the line "and so I don't want to damage dignity"---are the two virtually indistinguishable?

Posted by: Thom Brooks | Oct 19, 2006 8:00:06 AM

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