7 Pages Posted: 15 Jul 2011
Date Written: July 14, 2011
This brief invited essay appears in a symposium devoted to honoring my former boss, Judge Michael Daly Hawkins, as he transitions to senior status on the Ninth Circuit. In the essay, I draw attention to a distinction that appears with some frequency in the tissue connecting punishment theory to policymaking. The distinction is the difference between shaming and being ashamed. More specifically, I am interested in the difference between judicially-ordered sanctions designed to humiliate or degrade an offender, as opposed to the incidental experience of shame one may feel upon enduring a non-shaming punishment, such as fines or non-visible probation conditions.
The focus on and anxiety about (purposeful) shaming takes particular effect in a now well-known case, United States v. Gementera, and more precisely in the dissenting opinion authored by Judge Hawkins, where he argued that such purposeful shaming has no place in the halls of justice. After providing a few words about the Gementera case for background, I explain why I find Judge Hawkins' dissent quite powerful and convincing. Nonetheless, while I agree with the dissent on the merits, I do wonder about some of the issues that were not addressed in it, particularly as they relate to the issues of deference, disagreement, and democracy.
Suggested Citation: Suggested Citation
Markel, Dan, A Judge for Justice (July 14, 2011). Arizona State Law Journal, Vol. 43, p. 57, 2011. Available at SSRN: https://ssrn.com/abstract=1885704