Posted by Orin Kerr:
Shaming Punishments:
My friend Dan Markel has an [1]interesting essay up at The New
Republic about the Ninth Circuit's recent shaming [2]decision.The
defendant in the case had stolen mail and was sentenced to prison. As
a condition of supervised release -- a sort of probationary period
that follows prison sentences in the federal system -- the suspect
will have to spend 8 hours outside a local post office wearing a sign
that says, "I stole mail. This is my punishment." The case raises two
questions, one statutory and one constitutional. The statutory
question is whether this shaming punishment is consistent with the
federal statute that governs permissible conditions of supervised
release, [3]18 U.S.C. 3583(d). The constitutional question is whether
the punishment violates the Eighth Amendment's ban on cruel and
unusual punishment.
Markel, who has [4]written extensively about shaming punishments,
argues in the essay that the punishment violates the 8th Amendment:
Juxtaposed against [the Eighth Amendment], shaming offenders is
simply wrong, regardless of whether it is labeled rehabilitative or
punitive. The very goal of shaming, as the dissent by Hawkins
recognized, is the dehumanization of another person before, and
with the participation of, the public. Before we permit democratic
institutions to subject an offender to ridicule, scorn, and
humiliation, we have to ask whether this kind of punishment
comports with evolving standards of decency and the dignity of
humankind. The answer is clearly no. Such punishment involves an
unacceptable form of preening and immodest sanctimony. What's more,
the condition imposed here constitutes a coerced self-laceration
that conjures images of the denunciation rallies and ritual
debasements of history's least liberal regimes.
I am no expert on these questions, but I wonder about Markel's
chosen level of generality. Markel applies the Eighth Amendment
analysis at a very abstract level; he views shaming as a
constitutionally illegitimate basis for punishment, so that all
shaming punishments violate the 8th Amendment. But why not apply the
analysis at a more specific level? Why not ask whether wearing a sign
for 8 hours comports with evolving standards of decency? I would guess
most people think that it does.
References
1. http://www.tnr.com/doc.mhtml?pt=Edb%2F%2FgxCzEGV61CscBJFnB%3D%3D
2. http://caselaw.lp.findlaw.com/data2/circs/9th/0310103p.pdf
3. http://www4.law.cornell.edu/uscode/18/3583.html
4. http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342089
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