The Future of Shaming (and Restorative Justice), Part 6 of 7

This series of posts outlines a response to Yale Law Prof. Dan Kahan's recent article, "What's Really Wrong with Shaming Sanctions," which can be found here. The first and second posts of this series provide some general background. In particular, the second post has some fruitful discussions and exchanges in the updates and comments. The fourth post provides some background on the movement for alternatives to incarceration. The fifth post raises questions about the "pragmatic" nature of Kahan's renunciation of shaming punishment.

In today's post, I show why Kahan's accusation that his critics suffer from "status quo bias" is misplaced. This discussion I hope will be of particular interest to Doug Berman, Orin Kerr, and others, all of whom have expressed reservations about removing shaming from the punitive arsenal on the grounds that incarceration seems worse than shaming.

Yesterday, I ended the post by asking whether Kahan was simply interested in reducing the intensity of the political battles over criminal law disputes, or whether he had a vision of a more just and attractive society that motivated his work on alternative sanctions.

The answer I think is that Kahan does have a vision. He sees himself as a social scientist trying to devise plausible alternatives to incarceration, which he views as unnecessarily costly to society and offenders. Indeed this aversion to incarceration explains why Kahan’s renunciation of shaming is not more full-bodied. On the merits, Kahan still thinks his critics suffered from a pernicious “status quo bias,” a bias which prevented them from seeing that the “even greater evils” of incarceration would continue to eventuate if the alternative of shaming was rejected as too “cruel” or degrading. For the following reasons, this allegation of a cognitive defect on the part of his critics is too hasty.

It is no doubt possible that certain critics of shaming punishments did not address at length the supposed “default” of incarceration in their respective critiques of shaming punishments. Who these critics are, however, is somewhat obscured by Kahan. (Kahan cites five critics: Eric Posner, Martha Nussbaum, Jim Whitman, Toni Massaro, and me. He also references a piece of his that responded to a critique by Jeffrey Abramson. Out of these six critics, only Abramson fails to address the "default" of incarceration in their scholarship. See, e.g., MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 247-50 (2004) (advocating more humane prison conditions but pointing out that incarceration need not be “incompatible with basic human dignity and respect”); ERIC A. POSNER, LAW AND SOCIAL NORMS 96 (2000); Markel, passim; Toni Massaro, The Meanings of Shame, 3 PSYCHOL. PUB. POL’Y & L. 645, 696-98 (1997); James Q. Whitman, What’s Wrong with Inflicting Shame Sanctions?, 107 YALE L.J. 1055, 1062 (1998). Abramson's critique moreover was exceedingly short, drawn from an op-ed in the NYT.) Assuming these critics exist, and I'm sure they do, does not necessarily render them prisoners, as Kahan contends, of “status quo bias.” Why?

First, let's understand what Kahan means by status quo bias. Under status quo bias a policy analyst compares a “suggested reform to a hypothetical ideal state of affairs rather than to the existing state of affairs.” The bias is distorting because the “status quo also involves undesirable consequences or risk … [and] the reform might be unambiguously better [than the status quo] notwithstanding its own potential downside.” In this case, Kahan was convinced that if the critics dismissed shaming based on its “potential dangers,” then the “greater evils of imprisonment” would certainly result. Imprisonment, claims Kahan, is more cruel, more degrading, and more likely to “vitiate the reputational stakes a person has in resuming a law-abiding life” than shaming is. Indeed, Kahan notes, “shame was unquestionably less problematic than imprisonment along nearly every dimension of what constitutes just punishment.”

To my mind, these are reasonably contestable claims and they warrant scrutiny. First, for the kinds of offenders for whom shaming punishments is a viable option, there are minimum security prison facilities or other carceral strategies that do not destroy or aim at the destruction of each offender’s basic human dignity.* Think of half-way houses, home confinement with exceptions for work, etc. And to the extent that appropriate prison environments for this population do not exist, then we should be working to make that so, or as I've stated before, find other non-carceral punishments (e.g. perhaps guilt punishments or difficult community service such as picking up trash in parks), rather than substituting public humiliation.

Second, Kahan avers that shaming is less cruel and evidence of that statement can be seen from the “fact” that the typical offender would opt for shaming over incarceration. This claim needs to be unpacked. Putting aside the speculative nature of the claim,** and the fact that even some defenders of shaming punishments are doubtful of its truth (e.g., Etzioni), it is a mistake to rely on the preferences of offenders as a gauge of the relative cruelty between incarceration and shaming.

As a starting point, it is worth noting that, to the extent this pattern of preference for shaming exists, these preferences could be a function of the duration of the punishment rather than its intensity or intrinsic cruelty. If the choices were: a) go to a low-security prison facility for 30 days or b) go stand outside eight hours a day for 30 days wearing a sandwich board saying “I stole mail; this is my punishment,” the decisions offenders would face might be more difficult than Kahan supposes. That’s because shaming punishments are typically relatively brief when juxtaposed against the duration of prison time, and that unfairly stacks the deck in favor of shaming’s relative attractiveness. The offender’s preference for shorter shaming over longer prison would be especially strong if the offender had been employed and had dependents to look after. But that does not make shaming inherently less cruel than all incarceration facilities, especially if the durations were roughly equivalent.

Furthermore, the fact that some offenders might choose shaming over incarceration is largely beside the point: by its nature punishment is, as Kahan himself notes, a coercive measure imposed upon offenders as a means of demonstrating their subservience to the state for breaking its laws. No doubt, most offenders would choose no punishment if they could. They might alternatively be willing to have two pinkies cut off to avoid having to spend a year in prison away from their family, but that doesn’t necessarily mean the state should be in the business of punishing people by cutting their fingers off, or that such punishments are inherently less cruel. Finally, because public shaming is a rather unusual punishment, people’s anticipated intuitions about their welfare may not track their actual experience; for all we know, some offenders who have never been publicly shamed before may discount the cruelty of shaming ex ante, only to realize later on they made the wrong choice by forgoing a short period of incarceration in a minimum security facility.

In short, some of Kahan’s critics may not have evidenced any cognitive status quo bias at all. It might simply be that Kahan’s critics viewed the current deficiencies of incarceration for most non-violent offenders as less horrible than Kahan did, and not only with respect to the offenders’ well-being, but also in light of how these practices affect society and its conventions of what constitutes appropriate punishment. Alternatively, these critics may argue that they are dissatisfied with both shaming sanctions and most incarceration facilities, but they decided to address problems with each mode of punishment in different projects. Why, they might wonder, should Kahan (or others) get to set the agenda such that any arguments about the justice or efficacy of shaming must simultaneously be compared against the justice or efficacy of prison?

In any event, Kahan’s complaint of status quo bias is not even remotely true against some let alone all of Kahan’s academic critics. I happen to know one quite well. And my article, which Kahan kindly cites in his recent paper, explicitly looked at other alternative sanctions precisely in recognition of the dangers associated with a mass incarceration strategy. It was out of recognition of that problem that I defended the expanded use of guilt punishments, mandatory detox programs, and conditional prison sentences as substitutes or supplements to other traditional punishments. If guilt punishments – such as forcing landlords to sleep in buildings they keep below code requirements – or these other sanctions are proximately capable of communicating the state’s coercive power to condemn the actions of offenders without using prison or public humiliation, then, we have reason to think their expanded use is appropriate—and we should advocate for them, rather than shaming punishments.

In sum, it is not clear that Kahan is correct about the status quo bias ostensibly afflicting his critics. Moreover, most if not all of his critics escape the charge of status quo bias altogether by drawing attention to those alternatives to both incarceration and shaming that might reasonably achieve some retributive and deterrence goals with respect to the very offenders who are plausible candidates for alternatives to incarceration.

One last point of evidence regarding Kahan’s mishandling of his critics bears mention here because it illustrates the dangers of trying to extrapolate too many conclusions from the research Kahan has done in the area of cultural cognition. Since Kahan’s 1996 article on the meaning of alternative sanctions, he has faced criticism from a variety of perspectives. Some critics doubted whether shaming would “work,” because they no longer thought the conditions of modern society were conducive to shaming for many offenders. Other critics of Kahan (including but not limited to Nussbaum, Whitman and myself) looked at shaming as a social practice that had its own worrisome social meanings independent of what benefits might be gained.

Regardless of whether this latter group can fairly be criticized for arguing in largely non-deterrence terms, it seems passing strange that Kahan would think exposing this latter group to the potential weaknesses of the empirical claims underlying the deterrence arguments would be enough to change their minds about the value of shaming. After all, this group of critics, so far as I can tell, made no attempt to deny that shaming might in fact be a cheaper source of deterrence.*** Hence, it is inaccurate to suggest, as Kahan does, that “the egalitarian and individualist critics of shame are motivated to accept these arguments [that shaming won’t deter] nonetheless because of the congeniality of these arguments to the critics’ cultural appraisals of shame.” There’s simply no evidence adduced by Kahan that the individualist or egalitarian scholarly critics made this cultural cognition error in their scholarship.

Tomorrow: Does Kahan Take A Wrong Turn to Restorative Justice?

*That’s not to say they are all pleasant places or that prisoners in such facilities enjoy the benefits of full-fledged social membership. Far from it. But not every minimum security facility that shelters non-violent offenders is despicable or degrading, given the circumstances that they are designed to house criminal offenders. See, e.g., NUSSBAUM, at 247-50; Whitman, Harsh Justice (discussing European prisons); Penelope Patsuris, Best Places to Go to Prison, FORBES, July 16, 2004 (click on slideshow); 24 Hours in Prison, North Carolina Department of Correction; cf. Lola Ogunnaike, Big House Didn’t Break Lil’ Kim, Rap Diva, N.Y. TIMES, Aug. 21, 2006 at http://tinyurl.com/j7fmc. (“‘But don’t believe that cockamamie bull that everyone was evil and wanted to beat me up. Real recognizes real, and respect is the name of the game. You respect me and I respect you.’”). One former client of mine (mistakenly convicted, in my opinion) acknowledged to me that the prison facility wasn’t too bad aside from separation from his family and the lousy food, which spurred him to lose 25 pounds.

**Kahan’s evidence for this claim is (understandably) sparse: he relies on a single newspaper account and one defense attorney’s anecdotal experience in New Hampshire.

***Massaro, The Meanings of Shame, at 692 (noting that many “shaming critics” do not contest the deterrence impact of shaming on some offenders, such as “status-conscious, first-time offenders-- say, first-time DUI offenders.”); Whitman, at 1058 (“there is good reason to believe that shame sanctions can work in the contexts in which they are most commonly used-- for sexual, commercial, and certain other offenses.”).