Teorie della pena e "shame sanctions": una nuova prospettiva di prevenzione o un caso di atavismo del diritto penale?

Punishment could have, and actually has, a plurality of functions, some of which usually prevail over others, according to different social, political and cultural settings. For more than thirty years now, American case law has been seeing a constant increase in the use of the so called “shame sanctions” as alternative measures to more traditional punishments, and especially to short-term custodial sanctions. This sanctions, which technically are shaped as conditions for probation or supervised release, may consist in an extremely diversified set of measures, but they share the common feature of conveying a clear and public stigmatization of the offender, while trying to induce in him/her a strong feeling of shame. The use of shame sanctions has been positively evaluated by some scholars, who have stressed their efficacy in enhancing the preventive and, even more so, expressive function of punishment; nonetheless, other scholars contest their use, stressing the lack of any empirical data regarding a real preventive effect, while in the same time criticizing the lack of proportionality and extreme potential cruelty of such measures, that could be compared to modern “stocks and pillory”. Reviewing these different positions, and comparing them to the different punishment theories formulated by scholars in civil law countries, this essay tries to assess the feasibility and legitimacy of an increased, and intentional, use of shame in criminal law and criminal policy, particularly with regard to white-collar and corporate crime. The conclusions underline the lack of legitimacy of any stigmatizing policy, while positively evaluating legislative measures which could foster forms of reintegrative shaming.