Friday, October 13, 2006

Thank you, Doc, for saying it: Too-long sentences are the biggest criminal justice problem

Says the inestimable Doc Berman at Sentencing Law and Policy Blog in response to liberal critics of shaming punishments:
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.

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.
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.

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.


Anonymous said...

With regards to the issue of the 'need' to punish regarding the matter of drug offenses:

When you look at the origins of the drug laws, you find two groups being in the punitive camp: the secular ideologists and the religious ones. The secular ones sought to 'make examples' of the 'civic weakness' of those who had drug habits. Until that time, the issue was indeed one of 'shaming' them, as such habits were considered a matter of moral failing. But that shaming was largely dealt with in silence, as there were no governmental instrumentalities as laws to regulate drug-taking behavior, and addicts were more or less kept in the social 'closet' as being part of a family's 'dirty laundry'.

But after 1914, the perception fosterd by the early proponents of drug laws began to take a distinctly punitive turn. A turn which was aided and abetted by the religious community. Said community was engaged in attempts to proselytize overseas, particularly in China. 'The Chinaman's Pipe' was seen as a direct competitor of 'Pie in The Sky' and could not be suffered to continue unregulated. So various Protestant sects in the US began to lobby hard for international drug prohibition treaties and national drug prohibition laws. The rest, as they say, is history. But both groups evidently were motivated by one overweening directive: punish, punish, PUNISH.

And it can be said that bloody litle has changed since then; most attempts at initiating drug law reform are virulently opposed by those who seek to maintain the punitive as opposed to the ameliorative (as in harm reduction) approach. And even with laws regarding so-called 'decriminalization', often the penalties for possession or distribution are greater than that experienced by someone found publicly intoxicated courtesy of alcohol. In summation, it looks like the prohibs just have to get their kicks to the kidneys in.

Anonymous said...

Yes! Thank you, Grits!

Liberals are focused on weird things, sometimes. I like your blog because you keep focused on what's important.

Long sentences harm everyone, not just those they're imposed on. A lot of people go into prison relative naifs and become more dangerous while inside, just to survive. When they come out, and they do, we're all worse off, but especially the offender - our solution for broken lives basically is to further destroy them. Thanks for leading the way to look for other solutions.

- Big D Pastor

Anonymous said...

AlanBean said. This means that we need to address public safety concerns in an honest and direct fashion. We need to argue that excessive sentences make people less safe.

This is a oxy-moron. Read
here. Pay particular attention to the last paragraph.