Dan Markel has posted Still Wrong? Professor Kahan on the Fall of Shaming and the Rise of Restorative Justice on SSRN. Here is the abstract:
Recently Yale Law School Professor Dan Kahan admitted that, at least with respect to his prior endorsement of shaming punishments, the time has come for me 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.
Characteristically, Kahan recanted in style. Rather than simply capitulate to his critics’ arguments about the purported inefficiency or injustice of shaming punishments, Kahan asserted that he had sufficiently anticipated and addressed those challenges in his earlier work. Instead, Kahan explained that what was really wrong with shaming sanctions is that they suffer from a problem of partisanship. In other words, when shaming punishments are deployed, they signal that society has chosen sides with those whose cultural and policy worldviews elevate community or hierarchy over individuality and equality.
This is bad because in the politics of punishment, such partisanship works to preclude the acceptability of adopting shaming as a widespread alternative to incarceration. Why? Because shaming punishments flout what Kahan calls the principle of expressive overdetermination. Pursuant to that idea, a law or policy can be said to be 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 could not work as 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 Essay 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 Essay outlines Kahan’s views in his recent piece and identifies three problems. First, Kahan’s work in the area of the expressive political economy of punishment ambiguously skates between the interpretive and the prescriptive, and in order to generate his prescriptive conclusions he needs to be clearer about certain aspects of his argument. Second, Kahan’s claims against his critics are inaccurate along several dimensions. 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 similar social meaning handicaps as shaming. Consequently, Kahan may have to recant–again.