What’s Really Wrong with Shaming Sanctions

Abstract

In this article, I renounce my previous defense of shaming penalties. Sort of. In What Do Alternative Sanctions Mean, 63 U. Chi. L. Rev. 591 (1996), I argued that shaming penalties would likely be a politically viable substitute for imprisonment for a range of nonviolent (or relatively nonviolent) offenses because unlike fines, community service, and other alternative sanctions that have encountered decisive resistance, shaming unambiguously expresses moral denunciation of criminal wrongdoers. Drawing on work that I've done since then, I now acknowledge that the premise of this analysis was flawed. Ordinary citizens expect punishments not merely to condemn but to do so in ways that affirm rather than denigrate their core values. By ritualistically stigmatizing wrongdoers as transgressors of shared moral norms, shaming penalties grate against the sensibilities of persons who subscribe to egalitarian and individualistic worldviews. To maximize its chances of widespread adoption, an alternative sanction must be expressively overdetermined - that is, sufficiently rich in meanings to appeal simultaneously to citizens of diverse cultural and moral persuasions. I suggest that restorative justice can satisfy that criterion, but only if its proponents resist the impulse to purge it of expressive elements that make it appealing to the very citizens who were willing to endorse shame.