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. INTRODUCTION In the last few years, scholars and policymakers in the area of criminal justice have focused an increasing amount of attention on two topics. The first is the retributivist theory of punishment (retributivism);1 the second is the development of alternative sanctions to the orthodoxy of incarcerating criminals in publicly managed prisons.2 This Article is about what connections may properly be drawn between what justifies punishment and how we actually go about punishing offenders. A preliminary word on retributivism may be helpful. Retributivism is a theory about retribution, and retribution's features, or its definition, may be understood in either a weak or a strong sense. The weak sense asserts that a criminal may be punished because, and only because, in some sense he deserves that punishIMAGE FORMULA242 went, and that punishment should be meted out in proportion to the wrong committed and the blameworthiness of the offender. The strong sense incorporates the same desert and proportionality assertions, but also imposes an obligation: the criminal must be punished, regardless of the consequences. Many people attribute the strong thesis to Kant,3 and, without doubt, some of his most famous writings support that position.4 The recent scholarly and policymaking interest in retributivism stems in part from negative reactions to problems associated with recidivism, which indicate the failure of theories based on the specific deterrence or rehabilitation of the offender.5 Yet retribution's renaissance has another explanation: the theory has a stronger rationale than it once seemed to have. For many years, defenders of retribution offered little justification for the basic retributive notion that criminals should be punished because they deserve to suffer for their wrongdoing.6 They thought the concept of IMAGE FORMULA244 desert was self-evidently attractive. Critics charged that when retribution is characterized this way, the theory does not offer much to elucidate why this intuition should be followed.7 It seemed that one could either agree with it or not.8 Those who agreed with the intuition were charged with having an insatiable psychological drive to exact revenge on behalf of victims9 or to express disgust at the wrong for the sake of communal solidarity. 10 Seen in this way, retributivism sure looks like thin gruel. Nonetheless, it would be a mistake to think that there could be no plausible or attractive rationale for retribution.11 The account I offer, which I call the Confrontational Conception of Retribution (CCR), explains the goods inhering internally to the practice of retribution in a way that goes a good bit farther than merely repeating IMAGE FORMULA246 the mantra that retributive justice requires punishment as a matter of just deserts. …