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April 12, 2013

Two discussions suggesting potential virtues of shame punishments

I have just noticed two notable punishment theory papers via SSRN discussing shame punishments.  This broader piece by Luke Coyne is titled "Can Shame Be Therapeutic?" and here is its abstract:

This paper focuses on alternative judicial punishments such as reciprocal and humiliation punishments.  It explores the past and present use of such punishments.  It covers the theories behind the use of these punishments.  It also takes a look at the praise and criticism for the use of these punishments.  Additionally, the paper discusses the use and effects of these punishments, including recidivism rates.

This other piece is by Xiyin Tang is a bit more focused. It is titled "Shame: A Different Criminal Law Proposal for Bullies," and here is the abstract:

Public concern over bullying has reached an all-time high.  The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly-publicized prosecution of Dharun Ravi, who was convicted of 15 counts and faced the possibility of 10 years in prison.  This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying.  However, recently-enacted “cyberbullying” laws, which give complete discretion to school administrators, are weak and ineffective.

I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful expressive message that can flip the high school and teenage norm of meanness as virtue.  To reinforce that message, sentencing a bully to shaming, not imprisonment, better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying.

April 12, 2013 at 09:28 AM | Permalink

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Comments

The second essay doesn't really do much to talk about the specifics of shaming the bully. I wonder what Emily Bazelon in her new book thinks of such things.

Punishment tends to have some inherent shaming aspects as would something like an order of protection. Not being able to go certain places etc. and others knowing about it puts a mark of shame on you in various ways. At some point, however, shaming penalties to me seem inhumane, robbing people of a basic respect. We can provide some tough penalties while still providing a minimum of respect, so this is not really being "soft." Your prison guard can relate here.

The second article suggests isolating the bully in question as a shaming mechanism though the discussion is brief. This seems a reasonable approach in various cases -- consider a "time out" and such. The person has shown an inability to interact normally with the student body. Requiring the person to be isolated for a moment of time would be suitable in certain cases.

Creative sentencing might have some form of shaming in it, but any punishment that is meant mainly to shame probably need to be handled carefully given our ability to be vindictive. I'm no fan of this idea of listing people who go to prostitutes in the paper or something. But, some of the things listed seem okay.

Posted by: Joe | Apr 12, 2013 11:03:42 AM

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