Democratic Theory and the Punishment of State Officials

• In Event: Historical Populisms and Contemporary Responses

Abstract

In many liberal constitutional democracies, prosecuting and ultimately punishing state officials (here I mean everyone from elected officials, to executive appointees, to police officers) is difficult or impossible when it comes to certain types of misbehavior. In the United States, for instance, members of the executive and law enforcement are protected by qualified immunity and the objective reasonableness standard, while legislators take refuge in legislative immunity and the fact that their potential misconduct and ethics violations will be dealt with through in-house procedures. Such shields are justified by a variety of reasons: the importance of giving officials room to do their job; recognition of their fallibility coupled with their frequent need to make decisions with incomplete information; and a desire to prevent investigation and prosecution from being weaponized by political opponents or rival branches. These are all good reasons, but too little attention has been placed on the other side of the scale: why citizens and their agents should be able to punish state officials. In this paper I concentrate on this question in three parts. First, I sketch out the implications of applying standard theories of punishment to state officials. My central claim is that contrary to current practice, deterrence and retributive theories and those in between produce stronger than usual justifications for punishing and permit relatively harsher punishments when state officials, as opposed to citizens, are their objects. Second, concentrating on deterrence arguments, I argue that in regimes characterized by elite capture of electoral institutions and the revolving door, powerful reasons exist for ensuring that citizens have strong popular institutional pathways, apart from electoral means, for punishing misbehaving state officials. Third, for illustrative purposes, I use the implications of this argument to challenge the extent to which the U.S. Constitution’s speech and debate clause currently grants immunity to legislators against corruption allegations.

Author

• Jeffrey A. Lenowitz, Brandeis University