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October 16, 2006

Advancing(?) the shame debate

Dan Markel here has the third installment of a on-going discussion of shaming sanctions (background here and here), although Dan's latest entry appears to be portions of a draft article on the topic.  Though I like all the theory talk about shaming, I would also like to use today's sentencing of Lynne Stewart (details here and here) to make the debate a bit more concrete.

I am moved to get out of the ivory tower by this great post at Corrections Sentencing, which argues for bringing more reality to all this talk about shaming.  And Stewart's crime and sentencing present a great teaching moment.  Specifically, what would the sentencing recommendations in the Stewart case have looked like if shaming sanctions, and not just imprisonment, were a serious part of our punishment palette?   I doubt the government would have asked for 30 years and perhaps the defense might not have asked only for probation.

October 16, 2006 at 04:00 PM | Permalink


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» 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 12:31:42 AM


I agree that this is a potential teaching moment, but in a different way. How, exactly, do you go about shaming the shameless? What mark of shame would you put on a person who insists to this day she did the right thing, and who has a crowd of supporters who actually believe that as well? Wouldn't any mark of shame you impose be instantly converted into a "badge of honor" among the crowd Ms. Stewart hangs out with?

Posted by: Kent Scheidegger | Oct 16, 2006 4:49:40 PM

"Please don't throw me in that briar patch...."

Posted by: | Oct 16, 2006 5:46:24 PM


This is one of the points I made in my comments at PrawfsBlawg: it seems we agree on something.

Posted by: Patrick S. O'Donnell | Oct 16, 2006 6:12:44 PM

The State usually has several sentencing goals with respect to a given case narrative; i.e., warning enforcement, offense accountability, risk control and risk reduction. It usually seeks to accomplish one or more different objectives (aims) as to each goal, and then employs one or more strategies (plans) for carrying out each objective. The same kinds of deprivation tactics are used to execute all strategies (restraints, requirements and takings), although their magnitudes differ.

Shaming is a strategy that may be used to accomplish several different objectives. Punishment is the concept of a set of tactics that may be used to accomplish a single goal; namely, holding offenders accountable.

Any discussion of shaming or any other strategy for that matter is meaningless without a framework for mapping the entire process that leads to a particular sentence. Frameworks of this kind are composed of sentencing tracks; i.e., goals, objectives, strategies and tactics. Decision-makers have the task of selecting the sentencing tracks that will be used under a particular set of circumstances. Of course, each track must be reasonable; i.e., congruent with its underlying provocation, proportional, fair and cost-effective.

We have no way to evaluate whether the judge who sentenced Stewart, selected the best sentencing tracks under the circumstances, unless he or she mapped and described all of the sentencing tracts that were used.

Posted by: Tom McGee | Oct 16, 2006 7:41:26 PM

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