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Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate

86 Pages Posted: 27 May 2003  

Dan Markel

Florida State University College of Law (Deceased)

Abstract

Since the appearance nearly ten years ago of Professor Toni
Massaro's critique of the feasibility of shaming punishments in
America, scholars have heatedly debated the practicality of
and justifications for a variety of alternatives to incarceration
in publicly managed prisons. A popular assumption on both
sides of the debate over alternative sanctions has been that retributivism, as a conceptual justification for punishment, is
fully compatible with shaming punishments, the most controversial form of alternative sanctions. Indeed, Professor James Whitman has even gone so far as to call shaming punishments
"beautifully retributive." This Article offers a retributivist critique of shaming punishments, and in so doing, challenges
that consensus. Offering a theory called the Confrontational
Conception of Retribution (CCR), Dan Markel not only explains
why retributivism is hostile to shaming punishments, but also how retributivism can commend creative alternatives to the extensive reliance upon public prisons.

Suggested Citation

Markel, Dan, Are Shaming Punishments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate. Vanderbilt Law Review Vol. 54, p. 2157, 2001. Available at SSRN: https://ssrn.com/abstract=410922 or http://dx.doi.org/10.2139/ssrn.410922

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

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