“What’s Really Wrong With Shaming Sanctions”

Source: (2006) Texas Law Review. 84(7): 2075-2095.

I’ll start, in Part I, with a brief overview of the “shame debate” within the legal academy and what it has taught me — namely, that my earlier argument reflected too crude an understanding of the political economy of punishment. In Part II, I’ll sketch out some of the things I’ve since learned about expressive politics: synthesizing bodies of work associated with Joseph Gusfield and Aaron Wildavsky, I’ll describe how the phenomenon of expressive overdetermination regulates the political acceptability of penal and other laws. In Part III, I’ll describe what’s really wrong with shaming punishments: they aren’t expressively overdetermined, while imprisonment, ironically and tragically, is. Finally, in Part IV I’ll examine and defend the expressive ambiguity of restorative justice. (excerpt)