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.Thank you, sir, for clarifying the single most important sentencing issue - probably the most important criminal justice issue of our day. And what Berman says about the academy could be said of the criminal justice reform movement's frequently misplaced priorities, too. Asks the OSU law prof (his bold):
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?Indeed! Again, thank you, sir! Everyone go right now and read his whole post. He was responding to this item by Dan Markel, and this short article in The Economist discussing shaming punishments. Markel responded here.
The issue of shaming punishments involves a fascinating values debate. Markel mentions that Yale law prof Dan Kahan recently "renounced" shaming punishments in this Texas Law Review article, which I must admit I've not read. However I attended a talk by Kahan last spring at the UT Law School where he presented a draft of that paper. While he formally "recanted" his advocacy of shaming punishments, what I heard didn't quite add up to a renunciation so much as a complication of shaming as a punishment concept. Here's what I wrote on Grits after the event:
Kahan's past endorsement of shaming was essentially a political ploy, to hear him tell it -- an effort to come up with punishments besides incarceration that could be politically sold to the right wing. In doing so, though, he said shaming proposals ignored the values of liberals and thus didn't provide a stable platform for reform. By contrast, prison's meaning is more ambiguous, allowing people of different political stripes to find ways to support it for different reasons -- some because it's punitive, some because it's (theoretically) rehabilitative, some because it incapacitates the offenders, and some because it humiliates or shames them.By that analysis, Berman's right that shaming shouldn't be rejected out of hand. But perhaps to reach wider acceptance, punishments must enjoy, as Kahan describes, a more complicated narrative - one that lets people from different ideological approaches find satisfaction with the outcome.
Kahan argued that alternatives to incarceration need to express condemnation more ambiguously than shaming, allowing people with different values to simultaneously tell different stories about the what the punishment means in ways that affirm their own values. I thought that was a pretty good point. It's not simple to craft proposals with appeal across value systems, but when it can be done it's the best way to push reform in the political arena.
Concepts of "restorative justice," Kahan said, more readily fit the bill. They're seen as less punitive by liberals, but many conservatives see them as another brand of shaming aimed at placating the victim, whose moral authority in the equation they see as definitive.
Whether that's resorative justice, as Kahan and the Texas Public Policy Foundation seem to think, or some other alternative, it's sure true we could use the academy's help looking for those solutions. I frequently marvel at the pedantries that seem to occupy academic research in law and criminology.
Punishments exist on a continuum and to effectively maximize public safety they must fit the crime. As long as there is punishment, there will be shame - where society deems shame is punishment enough, I see no need to carve years off a person's life, or to ask the taxpayers to pay for it.
MORE from Orin Kerr on the subject at the Volokh Conspiracy.