For Shame ... I mean, Against Shame

As detailed here, a divided panel of the Ninth Circuit issued a very interesting opinion in US v. Gementera, upholding a sentence in which, as a condition of supervised release, the district judge required a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment." Now, commentator Dan Markel has produced this very interesting essay available today online at The New Republic entitled "Dirty Shame: The Ninth Circuit's dangerous endorsement of shaming punishments."

Dan makes a number of powerful arguments against shaming punishments and effectively assails the Ninth Circuit's decision in Gementera. But given the failed efficacy of our traditional approaches to punishment and our society's over-reliance on incarceration (background here), I am a bit more open than Dan to experimenting with various forms of alternative punishments. In other words, I think I am comfortable with a district judge using his or her discretion to impose a (relatively mild) shaming sanction in lieu of a lengthy imprisonment term.

Dan rightfully notes in his TNR piece that in Gementera "the shaming punishment was used as a supplement to incarceration, not as a substitute." However, the Ninth Circuit at the end of its statutory analysis was very careful to make clear it was simply approving the district courts' "sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant’s rehabilitation and amendment of life than would a lengthier term of incarceration." slip op. at 20 (emphasis added).

In other words, I read Gementera more as an embrace of judicial sentencing discretion and experimentation, rather than a broad endorsement of extreme shaming sanctions. But, for many of the reasons Dan astutely highlights, we should be wary of the Gementera decision being misused in potentially harmful ways.

I wonder what the wise folks over at Punishment Theory think about all this.

UPDATE: Dan Markel, whose longer writings on this topic and other important sentencing issues can be found here, was kind enough to send me some additional thoughts on what I consider to be a fascinating and important (non-Blakely!) topic. Thus, at some length, here is Dan's addendum:

Doug, like you, I'm not in favor of our infatuation with incarceration and I don't like the length of so many of our sentences for people who do belong in prison. I've written before about how to develop various alternatives to incarceration that are nonetheless compatible with retribution properly understood -- especially the use of guilt punishments and conditional sentences for nonviolent offenders (available here). My argument was about shaming being execrable, and while I'm not against some sentencing experimentalism, the district courts shouldn't get to make up anything they want and then stick a label on it, and get a blessing. There should be some effort made by judges to do their homework....

I have no trouble with how the court required the defendant to watch people make claims about their lost mail. But there's nothing reintegrative about that. Similarly, there was nothing reintegrative about the requirement that he go to express his remorse before a bunch of adolescents in high school. It would be one thing if this is something he volunteered to do; but he didn't challenge it on appeal because, as I understand it, he was put in the hobson's choice of having to spend 100 hours of "community service" being exhibited like a bearded lady in a circus, or do that. Just because he had the choice to do the talks at high schools or face a worse punishment doesn't make it sensible for us to impose that choice. What if the judge said wash my car, or cut off your left toe, and you can forgo further punishment? The choices have to be reasonable and reasonably tailored to the ends in mind.

In sum, I resist the conclusion that I am less open to alternatives to incarceration. I also resist the ascription of logic to a court that developed reintegrative provisions, or that this was for the benefit of the offender. Shaming hurts offenders, the studies show it, and it degrades us all.

Good points, which serve as yet another reminder of how much work there still is to be done on the theory and practices of punishment and sentencing without even thinking about Blakely.