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October 13, 2006

What punishments really undermine human dignity?

Thanks to this post by Dan Markel, I saw this short article in The Economist discussing shaming punishments.  Dan is a critic of public shaming, and the article reports that he believes "shaming punishments undermine human dignity."  Because I generally support shaming punishments (and most alternatives to incarceration), I want to unpack this claim a bit:

1.  This critique of shaming, like similarly deontological critiques of the death penalty and other punishments, is just a declaration refutable by a counter-declaration.  I can simply assert that shaming punishments actually honor and strengthen human dignity.  (Shame seems uniquely human.  Notably, we do not shame bad animals, we just lock them in cages or kill them.)

2.  As I have said before, shaming punishments must be considered against the backdrop of other punishments and our society's modern over-reliance on incarceration.  Is locking lawbreakers in tiny cages better for human dignity than shaming them?   As I stressed here after a recent NPR series on Supermax solitary confinement, our imprisonment policies involve a stunning assault on human dignity.  Consider again this snippet from NPR:

Wino is a 40-something man from San Fernando, Calif.  He was sent to prison for robbery.  He was sent to the SHU for being involved in prison gangs.  He's been in this cell for six years. "The only contact that you have with individuals is what they call a pinky shake," he says, sticking his pinky through one of the little holes in the door.  That's the only personal contact Wino has had in six years.

3.  According to the piece in The Economist, Dan's concern is with any punishment that incorporates a "public-humiliation factor."  But, given our society's extraordinary (and very costly) reliance on severe private deprivations through mass incarceration, I continue to believe we should be more willing to experiment with novel and public punishments.

UPDATE: Dan responds here, while suggesting that I may be "the only person left in the legal academy who now supports shaming punishments today."  I doubt that's true, but if it is, it reinforces my concerns about the legal academy's misplaced sentencing and punishment priorities.  To perhaps aid this debate, let me refine my challenge to those who oppose all shaming punishments:

Has any modern shaming punishment ever produced personal harms or society costs anywhere close to the harms and costs to be endured by, say, Robert Berger, the Phoenix high school teacher sentenced to 200 years in prison for a first offense of possessing child pornography?

I think shaming sentences could be a lot more effective and humane for the Bergers of the world (case basics here, commentary here and here).

I wish academics worked up about shaming (or the death penalty) would be more concerned about the affront to human dignity and the principles of liberty represented by lengthy sentences of incarceration.  Dan will surely say he is against Berger's sentence, but at some point he must confront the reality that anti-shaming advocacy greatly reduces the likelihood that the public and politicians might start to seriously embrace alternative punishments.

MORE:  Scott at Grits for Breakfast has this satisfying addition to this debate.

October 13, 2006 at 07:52 AM | Permalink

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» The Future of Shaming, Part 2 of ___ from PrawfsBlawg
Over at Sentencing Law and Policy, Doug Berman has done me the honor of responding to my post of yesterday and my excerpted arguments in the article in the Economist. As I mentioned yesterday, I was planning on releasing a few posts over the next week,... [Read More]

Tracked on Oct 13, 2006 8:50:01 AM

» The Future of Shaming, Part 2 of ___ from PrawfsBlawg
Over at Sentencing Law and Policy, Doug Berman has done me the honor of responding to my post of yesterday and my excerpted arguments in the article in the Economist. As I mentioned yesterday, I was planning on releasing a few posts over the next week,... [Read More]

Tracked on Oct 13, 2006 4:10:36 PM

» The Future of Shaming, Part 2 of ___ from PrawfsBlawg
Over at Sentencing Law and Policy, Doug Berman has done me the honor of responding to my post of yesterday and my excerpted arguments in the article in the Economist. As I mentioned yesterday, I was planning on releasing a few posts over the next week,... [Read More]

Tracked on Oct 13, 2006 4:10:37 PM

» A Thought on the Shaming Punishments Debate: from The Volokh Conspiracy
There's an interesting discussion going on in the blogosphere about shaming punishments, criminal punishments designed to embarrass or shame offenders. See, for example, [Read More]

Tracked on Oct 13, 2006 4:51:03 PM

» October 16 round-up from Overlawyered
"'I’ve never felt so ill,' says one reporter about the NY Times's coverage of the Duke lacrosse-team case." [New York Magazine] Double-standards for judicial seminars. [Point of Law; Volokh] 14-year-old British student arrested for not... [Read More]

Tracked on Oct 15, 2006 1:24:22 PM

» The Future of Shaming (and Restorative Justice), Part 5 of ___? from PrawfsBlawg
Readers interested in some background to this topic should check out posts one, two, three, and four of this series. The second post in particular has some fruitful discussions and exchanges in the updates and comments. The fourth post provides some ba... [Read More]

Tracked on Oct 18, 2006 12:26:43 AM

» The Future of Shaming (and Restorative Justice), Part 6 of 7 from PrawfsBlawg
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 ... [Read More]

Tracked on Oct 19, 2006 10:19:27 AM

» Criminal Law Blogs Discuss Shaming Punishments from Austin Criminal Defense Lawyer
John Kelsos humor column about why the Travis County Jail wont adopt Mason Countys pink jumpsuits for inmates policy provides me with a viable Austin segue for the recent criminal law blogospheres discussion ab... [Read More]

Tracked on Oct 21, 2006 12:15:48 PM

Comments

Doug, I should clarify. My sense is that you might be the only "out" supporter of shaming in the legal academy now, with the possible exception of Eric Posner, whose book takes a more negative view toward shaming than the article he wrote with Kahan in favor of shaming white collar criminals the year before in 1999. I also mentioned Sherry Colb's findlaw column, which suggests she is sympathetic with your viewpoint also. I'll have a more substantive post later today responding to the Berger challenge. best, Dan.

Posted by: Dan Markel | Oct 13, 2006 9:54:41 AM

Awww, man, as a data junkie I was glad to be called "statisfying"! Oh well, satisfying will do. Thanks Doc!

Posted by: Gritsforbreakfast | Oct 13, 2006 12:46:08 PM

Doug, thanks for the engaged response. I wrote over at prawfs the following response to your point about Berger:

Doug is surely right that I am against Berger's sentence. It's a travesty, really. But consider: it's not as if I (or other anti-shaming) critics spend all my time working on anti-shaming or even against the death penalty; I and other anti-shaming critics have written about all sorts of issues in the criminal justice system. The problem is that shaming is the topic about which I get called or consulted by the media the most frequently. That's why every time I write or speak to a journalist about shaming, I also explain why incarceration is used too often for too long, and propose other non-humiliation and noncarceral strategies. And just because mass incarceration is perhaps the most severe problem in the Criminal justice system, it doesn't mean that every scholar and writer has to write about it. It's not as if there's no scholarship or advocacy on that topic. And happily Doug's blog does an admirable service in bringing cases like Berger to greater public attention, while also discussing other developments like the death penalty or shaming. Anyway, I'll have some more thoughts on these issues in subsequent posts.

Posted by: Dan Markel | Oct 13, 2006 6:00:56 PM

Professor Markel writes, "just because mass incarceration is perhaps the most severe problem in the Criminal justice system, it doesn't mean that every scholar and writer has to write about it."

No sir, but it does mean that if you think long sentences are the worst problem and you're going to shoot down ideas for viable incarceration alternatives, you need to put up or shut up about how the problem SHOULD be handled, with all respect.

As I mentioned on Grits, when I heard him speak on the subject, your colleague Mr. Kahan didn't really renounce shame; he said it could be one element of a punishment that may be interpreted in multiple ways by different parties. Wrote Kahan in his recent paper:

"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, or because shaming penalties are horrifically stigmatizing, and thus inconsistent with individual dignity. 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. 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."

At his talk at UT-Austin last spring, Kahan definitely left open the possibility for a shaming component in the restorative justice scenarios he now endorses. It would be fair to say Kahan has abandoned the ranks of advocates of shaming sanctions, but for expressly tactical motives, not because shaming is more degrading or dehumanizing than prison.

Best,

Posted by: Gritsforbreakfast | Oct 14, 2006 12:17:01 PM

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