26 Pages Posted: 19 Oct 2006
Recently Yale Law School Professor Dan Kahan admitted that, at least with respect to his prior endorsement of shaming punishments, the time has come to recant. Known inside and outside the legal academy for his decade-long defense of shaming as an alternative to incarceration, Kahan took pains to publicly repudiate his earlier embrace of shaming punishments at a symposium convened by the Texas Law Review.
True to form, Kahan recanted in style. Rather than simply capitulate to his critics' arguments about the purported inefficiency or injustice of shaming punishments, Kahan explained that he had anticipated and addressed those challenges in his earlier work. Instead, Kahan identified what was really wrong with shaming sanctions: they suffer from a problem of partisanship. In other words, when shaming punishments are deployed, they signal that society has chosen sides with those who elevate community values or hierarchy over individuality and equality.
Such partisanship is flawed, for Kahan, because it undermines the acceptability of shaming as an alternative to incarceration. In other words, shaming punishments flout what Kahan calls the principle of expressive overdetermination. A law or policy is expressively overdetermined when it bears meanings sufficiently rich in nature and large in number to enable diverse cultural groups to find simultaneously affirmation of their values within it. Because of the social meaning handicap under which shaming labored, Kahan predicted that shaming punishments cannot ultimate provide a viable alternative to imprisonment because they are too socially divisive.
Changing course, Kahan instead argued that we should expand efforts to implement restorative justice programs as a pragmatic alternative to incarceration because such programs do satisfy the criterion of expressive overdetermination and at the same time would help expand our punitive arsenal beyond our orthodox reliance on mass incarceration. In other words, restorative justice has a real hope of achieving political acceptability as an alternative to incarceration.
Kahan's renunciation of shaming punishments and subsequent endorsement of restorative justice are significant developments, at least among those of us who study and teach about the institutions and practices of punishment. Although I applaud Kahan's volte-face on shaming punishments - I was one of the critics who argued shaming was both illiberal and incompatible with principles of retributive justice - I think his new arguments are also unsuccessful, though for different reasons.
This paper unfolds in four parts. Part I provides an overview of the alternative sanctions movement; this Part can be skimmed or ignored by those already familiar with the state of play in this area. The balance of the paper outlines Kahan's views in his recent piece and identifies three problems. First, the basis for Kahan's claim that shaming should be rejected is ultimately best understood as an empirical claim, not a theoretical one, and Kahan adduces little support to sustain the empirical claim that shaming won't secure widespread support. Moreover, even if such support existed, Kahan does not explain why any partisan wrangling over shaming cannot be handled by the institutions of liberal democracy. Second, Kahan's claims against his critics are inaccurate along two important dimensions: first, he mistakenly accuses his critics of status quo bias, and second, he attributes to them truth-insensitive motivations for which there is no evidence. Finally, and most importantly, Kahan's enthusiasm for restorative justice is likely to wane as he realizes that restorative justice, once scrutinized carefully, is prone to manifest the same kind of social meaning handicaps that shaming has experienced. Consequently, Kahan may have to recant - again.
Keywords: criminal law, criminal justice, shaming, restorative justice
Suggested Citation: Suggested Citation
Markel, Dan, Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative Justice. Texas Law Review, Vol. 85, May 2007; FSU College of Law, Public Law Research Paper No. 224. Available at SSRN: https://ssrn.com/abstract=938796