Academic journal article Texas Law Review

Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative Justice

Academic journal article Texas Law Review

Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative Justice

Article excerpt

In past work I have explained why we should pursue alternatives to incarceration that resist the seduction of public shaming. Building on that work, this Article identifies some "wrong turns" on the road to alternative sanctions. Specifically, this Article finds and explores three difficulties with Yale Law School Professor Dan Kahan's recent article in which he "recants" his prior support of shaming punishments and instead embraces restorative justice as a strategic alternative to mass incarceration. First, Kahan's renunciation of shaming is not a product of moral or legal reasoning so much as it is a claim about moral sociology. This is not inherently a deficiency. Rather, what's troubling is that Kahan provides no empirical support for his claim that shaming is too partisan to succeed as a politically acceptable substitute for mass incarceration. Assuming arguendo there were empirical support for his claim, Kahan's desire to remove shaming from the penal tool kit raises questions about why partisan conflict over shaming is an issue unsuitable for resolution by the familiar institutions of liberal democracies. Second, Kahan's claims against his critics are inaccurate along two important dimensions: first, he mistakenly accuses his critics of status quo bias, and second, he attributes to them truth-insensitive motivations for which there is no evidence. Finally, and most importantly, Kahan's new enthusiasm for restorative justice (as a substitute for incarceration) is likely to wane as he realizes that restorative justice, once scrutinized carefully, is prone to manifest some of the same kinds of "social meaning" handicaps that shaming has experienced. Consequently, Kahan may have to abandon restorative justice if he is committed to the same logic that led him to renounce shaming punishments.

Recently Yale Law School Professor Dan Kahan admitted that, at least with respect to his prior endorsement of shaming punishments,1 "[t]he time has come for me to recant."2 Known inside and outside the legal academy for his decade-long defense of shaming punishments as an alternative to incarceration,3 Kahan took pains to publicly repudiate his earlier embrace of shaming at a symposium convened by the Texas Law Review.

True to form, Kahan recanted in style.4 Rather than simply capitulate to his critics' arguments about the purported inefficiency or injustice of shaming punishments, Kahan explained that he had anticipated and addressed those challenges in his earlier work.5 Instead, Kahan identified what was "really wrong" with shaming sanctions - they incur a serious risk of partisanship.6 In other words, when shaming punishments are deployed, they signal that society has chosen sides with those who elevate community values or hierarchy over individuality and equality.7

According to Kahan, such partisanship is flawed because it undermines the acceptability of shaming as an alternative to incarceration. In other words, shaming punishments flout what Kahan calls the principle of "expressive overdetermination."8 Pursuant to that idea, a "law or policy can be said to be expressively overdetermined when it bears meanings sufficiently rich in nature and large in number to enable diverse cultural groups to find simultaneously affirmation of their values within it."9 Because of the "social meaning handicap" under which shaming labors, Kahan predicted that shaming punishments ultimately cannot provide a viable alternative to imprisonment because they are too socially divisive.10

Changing course, Kahan instead argued that we should expand efforts to implement "restorative justice" programs as a pragmatic alternative to incarceration because such programs satisfy the criterion of "expressive overdetermination" while expanding our punitive arsenal beyond our orthodox reliance on mass incarceration.11 In other words, restorative justice offers real hope of achieving political acceptability as an alternative to incarceration. …

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