Columbia Law Review‘s Sidebar is pleased to announce the publication of two responses to The Subjective Experience of Punishment by Adam J. Kolber.
In this Essay Professor Kolber argues that any successful justification of punishment must take into account how the punishment is experienced by the individual offender. Thus, a retributivist must measure punishment severity in a manner that is sensitive to individuals’ experiences of punishment to avoid punishing people more than is justified. Similarly, a consequentialist must consider the individual experience of punishment in order to create a
system that is optimally deterrent.The Responses challenge these claims.
Miriam H. Baer responds to the Essay from a consequentialist perspective, arguing that sentencing is just one variable in deterrence and that calibrating punishment based on an individual’s subjective reaction to punishment, without taking into account the way in which law enforcement monitors and detects crime, may not have the deterrent effects Kolber claims.
Kenneth W. Simons responds from a retributivist perspective, arguing that retributivists need not calibrate punishment to an offender’s subjective experience of punishment because objective deprivations are also relevant to retribution and that, to the extent that subjective experiences are relevant, it is unclear which mental states should be considered in evaluating the severity of a particular sentence.