CRIMINAL SANCTIONSCriminal sanctions represent a denial of confi-
dence in the morality of the transgressor. In a
criminal law system norm compliance is reduced
to the calculus of cost versus benefit. Conversely,
informal sanctions can be a reaffirmation of the
morality of the transgressor by showing disap-
pointment in the transgressor for acting out of
character. The shaming associated with the disap-
pointment is reintegrative because its ultimate
goal is the restoration of the transgressor to full
membership in the group, community, or society.
Shaming in the informal context is reintegrative
because of its view of the transgressor as a whole
and valued member of society and its goal of social
restoration. Criminal sanctions, on the other hand,
define the transgressor strictly in terms of his or
her transgression thus causing a disconnection
between the transgressor and society (Garfinkel
1965). Criminal sanctions lack both the incen-
tive and mechanism for reintegration. Without
reintegrative potential, criminal sanctions stigma-
tize rather than shame. Stigmatization is exclusive-
ly concerned with labeling while reintegrative
shaming is equally concerned with delabeling. In
the context of most informal sanctions community
disapproval is coupled with gestures of reacceptance.
The reintegrative character of informal sanctions
ensures that the deviant label be directed to the
behavior rather than the person thus avoiding the
assignment of a master status to the person
(Braithwaite 1994).
In the study of criminal sanctions much atten-
tion has been directed to the effects of labeling on
the sanctioned transgressor. Labeling theory argues
that the deviant characteristic (e.g., drug addict,
criminal, etc.) assigned to a person may become a
status such that the ‘label’ will dominate all posi-
tive characteristics (e.g. parent, teacher, church
member, etc.) that might otherwise characterize
the person. Such a deviant master status is be-
lieved to limit and in some cases preclude the
reintegration of the transgressor. For those pre-
vented from reintegrating, the label becomes a
self-fulfilling prophecy eventually leading to sec-
ondary deviance, namely deviance caused by the
label itself (Becker 1963). The possibility of sec-
ondary deviance as a result of the stigmatization of
the transgressor has been included by some label-
ing theorists in their assessment of the relative
effectiveness of criminal sanctions (Gove 1980).
However, it has been alternatively suggested that
stigmatization might enhance crime control be-
cause the thought of being a social outcast serves
as a stronger sanction and more effective deter-
rent than being shamed and eventually reintegrated
(Silberman 1976). The potential effectiveness of
sanctions is dependent upon whether deterrence
is more effectively achieved through the fear of
social marginalization associated with formal sanc-
tions or the fear of community disapproval associ-
ated with informal sanctions (Braithwaite 1994).CRIMINAL SANCTIONS AND DUE
PROCESSDespite the lack of conclusive evidence in support
of the deterrent effect of criminal sanctions, the
frequency and severity of such sanctions have
significantly increased over the past quarter-centu-
ry (Stafford and Warr 1993). The dramatic rise in
both the prison population and persons under
probationary supervision is a reflection of the
increase in the age of the population most at risk
to engage in criminal acts as well as a renewed
commitment to the nonconsequential philosophy
of punishment. A number of observers have point-
ed to the growing use of criminal sanctions as a
sign of an increased emphasis on crime control;
however, the increasing use of criminal sanctions
has coincided with the expansion of legal protections
for the accused. The limitations of criminal sanc-
tions in the form of due process guarantees have
produced a hybrid criminal process that legitimates
the widespread use of punitive responses to nor-
mative transgressions by constraining the power
of state-sponsored agents of control. The criminal
process in the West includes both a strong crime-
control component and a strong due process com-
ponent (Packer 1968). The process is perceived as
a contest between relatively equal actors, which
helps to legitimate the pain associated with the
imposition of criminal sanctions. The criminal
process satisfies both society’s demand for crime
control and its desire to protect the liberty of the
individual. Criminal sanctions are shaped by these
competing demands of society. On the one hand
the crime-control component is based on the as-
sumption that the suppression of criminal con-
duct is by far the most important function of the
criminal process, while the due process compo-
nent is based on the assumption that ensuring that