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punishment, shaming, kahan


Debates over shaming punishments have raged over the past few years, with people like Dan Kahan and Eric Posner for them, while James Whitman and Martha Nussbaum have entered the fray strongly against them. This Essay argues that both sides in the shaming punishment debate have it only party right. Those who favor shaming sanctions are correct that we should (all else being equal) favor those punishments which are expressive rather than those that involve some form of hard treatment. And those who reject shaming sanctions are correct that such sanctions involve forms of humiliation and denials of dignity that should be unacceptable to liberals. But the critics of shaming sanctions fail to go far enough with their critique, because imprisonment (which they usually favor) is itself dignity denying, if not in theory, at least in American practice. As a result, they ignore the possibility radical direction their original criticism of shaming might take: it leads us not only to question the advisability of shaming punishments, but the very place of punishment in a liberal society. This Essay suggests that we go in just that radical direction, trying to fashion punishments that are expressive but which still respect the dignity of the criminal offender.