Seeking better deterrence, should we try extensive shaming of white-collar criminals?

The question in the title of this post is the question I raise in this new “Ideas” column I put together upon the kind invitation of the folks at Time.  In this forum, in which I thought it more important to be thought-provoking than path-breaking, I conclude my all-too-brief comments this way:

I wonder whether our legal system might better deter white-collar crime by imposing extensive shaming sanctions rather than extensive prison terms.  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?

A variety of shaming sanctions were widely used during the 18th Century in America, in part because prisons did not then exist and in part because shaming was viewed as a humane alternative to the death penalty, banishment or brutal physical punishments.  More recently, academics have debated the potential virtues and vices of modern shaming sanctions — often after a judge has ordered a shoplifter to wear publicly a sign saying “I am a thief” or a police department has published drunk drivers’ names on billboards. Because we have never tried to make white-collar offenders “pay” for their crimes through extensive and prominent use of shaming sanctions, I cannot say with confidence that this alternative form of punishment will be more effective.  But because deterrence research suggests very long prison terms for white-collar offenders may greatly extend their suffering (and taxpayer-funded imprisonment costs) with no corresponding benefit to society, I think it is time to start considering creative alternatives.

Long-time readers know I have long been supporter of the idea of trying shaming sanctions as an alternative to long imprisonment terms, and long-time academics know that Professor Dan Kahan and some others were discussing the idea of shaming sanctions for white-collar offenders many years before I started this blog.  Still, in the wake of the record-long prison sentence given to Raj Rajaratnam for insider trading, I am grateful Time gave me a platform for putting out these shameful ideas again.