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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 punish
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...