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October 18, 2011

Seeking better deterrence, should we try extensive shaming of white-collar criminals?

Ideas2The question in the title of this post is the question I raise in this new "Ideas" column I put together upon the kind invitation of the folks at Time.  In this forum, in which I thought it more important to be thought-provoking than path-breaking, I conclude my all-too-brief comments this way:

I wonder whether our legal system might better deter white-collar crime by imposing extensive shaming sanctions rather than extensive prison terms.  What if, after perhaps a couple of years in prison, Rajaratnam was required every business day to ring the opening bell at the stock exchange while wearing his prison jumpsuit?  What if Martha Stewart’s magazines and televisions shows had to include an image of Stewart eating in the federal prison’s cafeteria along with other convicted felons when she was imprisoned?  What if all people convicted of a white-collar offense were required for decades to post a large sign on their lawns that highlighted to all that the resident inside did not always play by the rules?

A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments.  More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective.  But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.

Long-time readers know I have long been supporter of the idea of trying shaming sanctions as an alternative to long imprisonment terms, and long-time academics know that Professor Dan Kahan and some others were discussing the idea of shaming sanctions for white-collar offenders many years before I started this blog.  Still, in the wake of the record-long prison sentence given to Raj Rajaratnam for insider trading, I am grateful Time gave me a platform for putting out these shameful ideas again.

October 18, 2011 at 12:22 PM | Permalink


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hmm why not! we're already using the same system on sex criminals! seems to work great there!

Posted by: rodsmith | Oct 18, 2011 12:50:06 PM

Shaming works really well. Just ask the registered sex offenders.

*** sarcasm ***

Posted by: Eric Knight | Oct 18, 2011 8:31:57 PM

Eric, Considering the low levels of recidivism among sex offenders, something is working. However, I suspect that their periods of incarceration and/or simple inability is what causes the relatively low rates of recidivism as compared to drug offenders or garden-variety assauliers.

Posted by: S.cotus | Oct 18, 2011 11:02:13 PM

So, let's see - shaming would work for white collar offenders because they live in a nice, safe, white collar world. Their upper and/or middle class neighbors would shun or excoriate them (social banishment) or at least the offender's own sense of shame would leave them (the offenders) feeling mortified. Of course, in other (lower class?) communities, where being convicted of a crime doesn't carry the same stigma as in the toney suburbs, shaming wouldn't work because, hell, everybody in the neighborhood knows SOMEBODY who's done time, right? Threefore, the upper class offender can receive a shorter prison sentence for the same or similar offense than his/her lower class "neighbor" because the shorter time in prison is balanced out by the shaming. Does that about cover it? Talk about class distinctions and disparity in sentencing!!!!!!!

Posted by: anon | Oct 18, 2011 11:15:47 PM

horse pucky s.cotus considering 100's of thousands of them predate the registry by decades. the registry had jack shit to do with their not reoffending! especially when youi add in that till the late 1990's most of them didnt' get massive decades long prison sentences!

Posted by: rodsmith | Oct 19, 2011 1:57:18 AM

lol though i was being sarcastic eric! most people here know i think the whole present body of law covering sex crimes is illegal on it's face based on the 2002 u.s supreme court decision that made the registry legal in the first place!

Posted by: rodsmith | Oct 19, 2011 1:59:17 AM

Good thought. Here are some things we could do:

1. Prevent white-collar offenders, like sex offenders, from living in areas where they could repeat their crims. That is, they could not live within 1000 yards of a publicly owned company, a firm that sells stocks, or anyone who has disposable income they can invest.

2. Prevent white-collar offenders from using the internet or telephones or from reading the business pages of newspapers and magazines.

3. Tatoo "WCO" in inch high letters on each cheek (props to Nathaniel Hawthorne).

Posted by: Allan | Oct 19, 2011 10:33:47 AM

When will we recognize that politicians and the MSM are really dumb and are not here to protect or educate us?

You know, I have said it repeatedly but it is continuously ignored, "We became a dumber country, when the gubermint took over majority control of public indoctrination (er, I mean, education!).

Posted by: albeed | Oct 19, 2011 11:29:08 PM

Extensive Shaming Sanctions??? Due to making a huge mistake in my life involving white collar theft, I am forever a "Felon". Nobody needs to hang a sign on me, or in my yard, everyone knows. I was shamed in the newspaper. I was shamed when I lost everything. I shamed my family. I was shamed when I went to prison. I am shamed out of prison. I am shamed for the rest of my life. Save your sentencing sanctions, this white collar has more shame then you can ever give.

Posted by: shames | Oct 20, 2011 9:43:41 AM

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