Legal Commentary

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.)