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Wednesday, April 02, 2008

Spitzer and Retributive Suffering

In this post, Prof. Ellen Podgor suggests that Eliot Spitzer may have already been punished enough (at least, enough that it may be a poor investment of state resources to seek to formally punish him).  I don't have a particular view on this issue (for one court's view of the topic, see United States v. Bergman, 416 F. Supp. 496 (S.D.N.Y. 1976)).  I do think, though, that it is worthwhile to flesh out some of the underlying theoretical issues. 

One can helpfully distinguish retributivist theories of punishment that focus on "deserved suffering" from those that focus on "deserved punishment."  The former "count" suffering from any source or from multiple sources, while the latter may only count state-imposed suffering.  Thus, if one holds the view that being pressured politically to resign from office and being shamed in the media are not state-imposed punishments, then these events arguably do not count toward the total suffering Spitzer must bare in order to get what he deserves (assuming, of course, that he is tried and convicted for some crime).

If one takes all suffering to count in the retributive calculus or at least all suffering caused by one's criminal behavior, then one may indeed believe that Spitzer has been punished enough.  There is still another important distinction, however.  Some retributivists take the currency of suffering to be experiential in nature.  On this view, punishment is intended to cause negative psychological states like distress.  No doubt Spitzer has suffered experientially.  On an alternative view, punishment is intended to deprive offenders of certain rights of citizenship (like the right to move about freely or the right to vote).  If one accepts this sort of objective view of punishment, it is not at all clear that Spitzer has been punished enough because he has not yet been deprived of one or more rights of citizenship.  He did not have a right to be free of political pressure, nor did he have a right to be free from embarrassing newspaper articles.  Thus, these negative events do not constitute pertinent rights deprivations and, therefore, do not constitute punishments on this view.

On this last distinction between subjective and objective views of retributive punishment, I do have a view.  In this draft article, I argue that a purely objective account of retributive punishment is at odds with our considered intuitions.  Plausible retributive theories should not be entirely objective in nature.  To the extent that subjective retributive theories also have counterintuitive implications, then, perhaps, so much the worse for retributivism.  (Incidentally, I also believe that  plausible consequentialist theories cannot be entirely objective, but you'll have to look at the paper to see why.)

Posted by Adam Kolber on April 2, 2008 at 02:46 PM in Criminal Law | Permalink

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What about the fact that Spitzer's suffering is largely a product of the legal regime in place? If prostitution were not criminalized, there would have been no investigation and no revelation. Moreover, even if it had been revealed, it would not have been as damaging as mere adultery, which is no longer criminalized (and probably cannot be under Lawrence). Certainly the fact that it is a crime, rather than a moral fault, has factored into the numerous criticisms of Spitzer's conduct. If the state's "involvement" in imposing suffering is necessary to make that suffering "punishment," perhaps this qualifies.

This does not address the rights-deprivation requirement. But isn't it a right to hold office if one is elected? Is it only a formal bar that can qualify as a right-deprivation, or can making exercise of a right practically untenable count?

Posted by: Andrew | Apr 2, 2008 4:26:24 PM

Andrew:
There are lots of different types of retributivists, and part of your comment may be drawing attention to another important distinction. Some retributivists take the pertinent offense to be the violation of a law (whether or not the law is immoral) and some take the pertinent offense to be the violation of a moral rule or principle (whether or not the conduct is illegal). Most people would probably find Spitzer's conduct to be an offense under both views, but the gravity of the offense may well depend on which sort of retributivist one is.

Your last question is an interesting one that, I think, highlights a difficulty that often afflicts accounts of rights: How specifically do we define a right and what happens when we burden a right without exactly violating it?

Posted by: Adam Kolber | Apr 2, 2008 4:41:12 PM

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