Academic journal article Texas Law Review

What's Really Wrong with Shaming Sanctions

Academic journal article Texas Law Review

What's Really Wrong with Shaming Sanctions

Article excerpt

The time has come for me to recant. A decade ago I wrote an article, What Do Alternative Sanctions Mean?,1 that defended shaming penalties as an alternative sanction. I recommended shaming penalties-ritualistic publicity sanctions of various sorts-as embodying a sort of magic cocktail of instrumental utility and social meaning.2 Like fines and community service, shaming penalties would be less costly for society and less debilitating for offenders.3 But unlike these conventional alternative sanctions, shaming sanctions would satisfy a popular expectation that punishment express moral condemnation in unambiguous and dramatic terms.4 The rough expressive equivalence of shame to imprisonment, I maintained, would overcome the political resistance that had historically defeated efforts to wean American jurisdictions off of short terms of incarceration for nonviolent offenders.5 I've now had an extended period to reflect on this argument. And I've concluded that I was wrong.

I have to admit, though, that I don't think I was wrong for any of the reasons suggested by the many thoughtful commentators who criticized my position. I don't think shaming penalties should be rejected either because offenders are "shameless," and thus unlikely to be deterred by the threat of humiliation,6 or because shaming penalties are horrifically stigmatizing, and thus inconsistent with individual dignity.7 I'm not persuaded by the claim that the spectacle of shaming will excite either an uncontrollable appetite to degrade or a spiraling attitude of indifference toward offenses revealed to be more common than previously thought.8 In truth, I'm pretty much happy to stand by the arguments I offered in anticipation of these claims, all of which, in my view, fail to evaluate carefully the potential costs and benefits of shaming penalties relative to the known deficiencies of imprisonment-the mode of punishment to which society defaults when shame is removed from the table.

Yet, it was the very persistence of the shame opponents' refusal to accept this comparative framing of the issue-what's worse, shame or imprisonment?-that eventually made me realize what I'd missed in my earlier argument. I too hadn't paid sufficient attention to the relative strengths and weaknesses of these two forms of punishment. If I had, I would have seen that shame, far from being the expressive equivalent of imprisonment, is afflicted with a social meaning handicap that, as a practical political matter, makes it an unacceptable alternative sanction for a significant and influential segment of our society.

Essentially, my account of the expressive dimension of punishment was too flat. I emphasized that punishments, to be politically acceptable, must express authoritative moral condemnation.9 That's true, but incomplete. Members of society also expect punishments-and essentially all laws for that matter-to affirm the core values that animate their preferred ways of life. Modes of punishments that are equivalent in their power to convey moral disapproval might still convey radically conflicting messages about the nature of the ideal society. What's really wrong with shaming penalties, I believe, is that they are deeply partisan: when society picks them, it picks sides, aligning itself with those who subscribe to norms that give pride of place to community and social differentiation rather than to individuality and equality.

Ironically, what's right about imprisonment, at least from an expressive political economy point of view, is that it is robustly pluralistic. Imprisonment is endowed with a sufficiently rich and diverse array of meanings that persons of diverse worldviews-solidaristic and individualistic, hierarchic and egalitarian-can all find affirmation of their values in it simultaneously.10 Institutions, laws, and policies that exhibit this form of expressive overdetermination are uniquely suited to negotiate the obstacles to political agreement posed by persistent cultural status competition within our society. …

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