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

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.