Would Shaming Be Better White-Collar Deterrent Than Long Terms?


Sentencing scholar Douglas Berman of Ohio State University Law School questions whether sentences like the relatively harsh 11-year prison term imposed on insider trading defendant Raj Rajaratnam of the Galleon Group will deter other white-collar criminals. Writing for Time.com, Berman says there is “little reason to believe that the ‘message’ delivered by Rajaratnam's sentence would be any different if his prison term was a couple of years or a couple of decades. Analysis of dozens of deterrence studies by Valerie Wright of the Sentencing Project says “marginal” increases in punishment severity — adding years on to a prison term — does not consistently result in greater deterrence.

Research shows that the certainty of punishment, rather than its severity, as well as how particular punishments are perceived, that most greatly impacts whether criminal sanctions deliver a potent “message” to would-be lawbreakers. Berman wonders whether “shaming” penalties would be better deterrents. He offers examples like, “What if, after perhaps a couple of years in prison, Rajaratnam was required every business day to ring the opening bell at the stock exchange while wearing his prison jumpsuit? What if Martha Stewart's magazines and televisions shows had to include an image of Stewart eating in the federal prison's cafeteria along with other convicted felons when she was imprisoned? What if all people convicted of a white-collar offense were required for decades to post a large sign on their lawns that highlighted to all that the resident inside did not always play by the rules?”

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