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i. Rehabilitation: For similar reasons, retributivists do not think the criminal law should be spending much effort towards rehabilitation of offenders. Retributivists think that punishment is about achieving moral justice, and that “proponents of rehabilitation demean offenders by treating them as sick, childlike, or otherwise unable to act as moral agents.” Dressler Hnbk, § 2.04[A][2].

E. Types of punishment: There are three main types of punishments in criminal law: (1) imprisonment; (2) the death penalty; and (3) the imposition of monetary fines. Putting aside the special issues posed by the death penalty (see infra, p. 7 and p. 266), the states and federal governments have wide latitude to choose how long a prison sentence, and how great a fine, to impose for any particular crime.

1. “Shaming” punishments: Courts occasionally impose a fourth type of punishment, by trying to publicly “shame” the defendant, usually by requiring him to make some sort of public apology or confession as a condition of his probation. Judges imposing shaming punishments typically have both a deterrent purpose (to make the shaming so unpleasant and humiliating that the defendant will be specifically deterred, and the public will be generally deterred) and a retributive purpose (to give the defendant a taste of his own medicine). Judges sometimes also claim to be seeking a rehabilitative effect (to help the defendant learn his lesson so that he will re-enter law-abiding society).

a. Courts split: Shaming punishments are controversial, and appellate courts have been split about whether and when to reverse them. By and large, as long as the punishment is reasonably proportional to the offense and not likely to inflict major permanent psychological damage, appellate courts seem mostly to uphold them. The case in the following example illustrates the tendency to uphold shaming punishments.

Example: D pleads guilty to federal mail theft, for having stolen several letters from individuals’ mailboxes. Although D is only 24 at the time of his plea, he already has a significant prior criminal history. Federal sentencing guidelines permit a sentence of 2 to 8 months imprisonment. The trial judge sentences D to the lowest time (2 months). But the judge adds a condition to D’s post-imprisonment probation: D must perform 8 hours of community service by wearing or carrying in front of a San Francisco post office a large sign saying “I stole mail; this is my punishment.” D argues on appeal that this punishment was imposed for the sole purpose of humiliating him, and therefore does not fulfill any of the three permissible purposes of punishment recognized by the federal Sentencing Reform Act, deterrence, protection of the public, and rehabilitation.

Held, for the prosecution. There was evidence that D did not fully understand the gravity of his offense, and held the illusion that his crime was a victimless one. The trial judge, by attempting to create a situation in which D and his crime would be publicly exposed, hoped both to rehabilitate D and to protect the public. Even though the condition here caused D shame or embarrassment, it was “reasonably related to the legitimate statutory objective of rehabilitation” and thus not invalid.

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