Have We No Shame?: Thoughts on Shaming, "White Collar

American University Law Review Volume 49 | Issue 5 Article 2 2011 Have We No Shame?: Thoughts on Shaming, "White Collar" Criminals, and the Federal Sentencing Guidelines Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Recommended Citation (2000) "Have We No Shame?: Thoughts on Shaming, "White Collar" Criminals, and the Federal Sentencing Guidelines," American University Law Review: Vol. 49: Iss. 5, Article 2. Available at: http://digitalcommons.wcl.american.edu/aulr/vol49/iss5/2 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact . Have We No Shame?: Thoughts on Shaming, "White Collar" Criminals, and the Federal Sentencing Guidelines This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol49/iss5/2 OWENSPPREVISED.DOC 6/18/2001 1:03 PM HAVE WE NO SHAME?: THOUGHTS ON SHAMING, “WHITE COLLAR” CRIMINALS, AND THE FEDERAL SENTENCING GUIDELINES JOHN B. OWENS∗ INTRODUCTION Like the stocks and pillories of colonial times, public embarrassment has returned as a popular means of punishment. Judge Judy leads a pack of “real life” courtroom dramas securing spectacular ratings by using nationwide humiliation to punish the losing party,1 and now real courts are getting into the act. More and more frequently, judges are using bumper stickers, billboards, Tshirts, and even community access television to publicize a defendant’s transgressions.2 As Jerry Lee Lewis might say, there’s a whole lot of shaming going on. Some of legal academia’s brightest stars have jumped on the shame train, arguing that modern versions of the dunce cap, rather than shackles, best fit the “white collar” criminal. The influential Dan Kahan, one of shaming’s biggest supporters, has proposed that it ∗ Associate, O’Melveny & Myers, Washington, D.C. A.B., 1993, University of California at Berkeley; J.D., 1996, Stanford Law School. Prior to joining O’Melveny & Myers, the author clerked for Justice Ruth Bader Ginsburg at the Supreme Court of the United States and prosecuted “white collar” criminals for the Justice Department. He now represents “white collar” defendants. He thanks George Fisher, Jonathan Hacker, Paul Horwitz, and especially Marjorie D. Purcell for their advice and assistance. He also thanks the American University Law Review for its fine work. 1. See Marc Gunther, The Little Judge Who Kicked Oprah’s Butt: Daytime Television’s Hottest Property, F ORTUNE, May 10, 1999, at 32 (noting the meteoric rise in popularity of Judge Judy Sheindlin’s courtroom television show and books, which demonstrates a “no-baloney, common-sense approach to the law”). Judge Judy “lectures litigants on everything from good behavior to proper grooming” and does not hesitate to tell parties that they “both acted like idiots.” Id. 2. See Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591, 631-33 (1996) [hereinafter Kahan, Alternative Sanctions]. 1047 OWENSPPREVISED.DOC 1048 6/18/2001 1:03 PM AMERICAN UNIVERSITY LAW REVIEW [Vol. 49:1047 become a regular part of the sentencing process and replace incarceration as the penalty for many “white collar” offenders under the Federal Sentencing Guidelines (“Guidelines”). According to Kahan, shaming is more efficient than incarceration because it provides the same level of deterrence while requiring less of society’s resources.3 He argues that the Guidelines, which Congress designed to limit disparities in sentencing, currently prevent federal district court judges from using shame to punish “white collar” offenders.4 Yet, in his efforts to reintroduce shaming into the sentencing process, Kahan ignores the shame that already exists in the current federal criminal justice system. Federal government attorneys and federal judges routinely employ shaming devices when prosecuting and sentencing “white collar” criminals, including the very shaming sanction that Kahan urges the Sentencing Commission to adopt.5 This Essay challenges Kahan’s positions and presumptions about shaming, “white collar” criminals, and the Guidelines. Part I outlines Kahan’s position on shaming, why he believes it is the answer for “white collar” criminals, and his proposed changes to the Guidelines. Part II argues that “white collar” criminals do not fit into the “one size fits all” model that Kahan uses to promote shaming. Part III illustrates how the Guidelines provide federal district court judges with ample discretion to fashion unique conditions to deter these criminals, including the shaming that Kahan proposes. I. SHAMING AND KAHAN In a series of articles, Professor Dan Kahan defines and advocates shaming as an alternative means of punishment.6 He cites several 3. See id. at 635 (explaining that shaming penalties are growing in popularity because they are less expensive than imprisonment and provide different ways to punish the same offenses as well as offenses that otherwise would not be punished). But see Toni M. Massaro, The Meaning of Shame Implications for Legal Reform, 3 PSYCHOL. PUB. POL’ Y & L. 645, 650 (1997) [hereinafter Massaro, Shame Implications] (“Shame is central to individual emotional development, and doubtless influences the creation and enforcement of social norms; but governmental attempts to manipulate and exploit shame through public humiliation rituals may be far more complicated, costly, and counterproductive than the [shame] reformers seem to appreciate.”). 4. See Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal For Reform of the Federal Sentencing Guidelines, 42 J.L. & ECON. 365, 368-72 (1999). 5. See, e.g., Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 M ICH. L. REV. 1880, 1885-86 (1991) [hereinafter Massaro, Shame] (stating that shaming has already occurred in the form of “furlough programs, community service sentences, home surveillance systems, . . . shock probation, forced charitable contributions, chemical therapy, forced birth control, and . . . castration”). 6. Kahan has presented his shaming arguments in the following: Dan M. Kahan, Unthinkable Misrepresentations: A Response to Tonry, 46 UCLA L. REV. 1933, 1935 (1999); Dan M. Kahan, Social Meaning and the Economic Analysis of Crime, 27 J. LEGAL STUD. 609, 617 (1998); Dan M. Kahan, Punishment Incommensurability, 1 BUFF. CRIM. L. OWENSPPREVISED.DOC 2000] 6/18/2001 1:03 PM “WHITE COLLAR” CRIMINALS 1049 contemporary examples, including the City of Hoboken’s practice of advertising the identities of individuals convicted of public urination as well as requiring that these offenders clean the city’s streets.7 Kahan uses these exampl (...truncated)