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109 Colum. L. Rev. Sidebar 1 (2009)

handle is hein.journals/sidbarc109 and id is 1 raw text is: COLUMBIA LAW REVIEW SIDEBAR VOL. 109 MARCH 12, 2009 PAGES 1-10 RETRIBUTIVISTS NEED NOT AND SHOULD NOT ENDORSE THE SUBJECTIVIST ACCOUNT OF PUNISHMENT Kenneth W Simons Response to: AdaimJ. Kolber, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). In his provocative essay, The Subjective Experience of Punishment,' Professor Adam Kolber addresses an underappreciated problem in criminal law theory: What is the relevance of the criminal defendant's subjective experience of punishment to the justifiability of that punishment? As Kolber explains, punishment theorists have neglected to analyze carefully whether the harsh conditions of punishment should be understood objectively (e.g., as a deprivation of liberty) or subjectively (e.g., as the physical or emotional distress that the particular offender suffers). Retributivists, he points out, have said relatively little about the issue, and also have much greater difficulty than consequentialists reconciling their views with his stance, which I will call the subjectivist view. In this response, I suggest that Kolber understates the conceptual and normative difficulties with the subjectivist view, and is mistaken in believing that only a subjectivist version of retributivism is defensible. According to the subjectivist view, two people who would otherwise be punished the same-having committed the same crime, under similar circumstances, with the same criminal record, family background, and so forth-should in fact receive different levels or types of punishment if they differ in their subjective negative reaction to a given quantum of punishment. Suppose Sensitive is claustrophobic, while Insensitive suffers less distress from punishment than most people. Under the subjectivist theory, Sensitive should be punished less than the typical offender, while Insensitive should be punished more. * Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law, Boston University School of Law. I thank Larry Alexander and Antony Duff for helpful comments. 1. Adarn J. Kolber, The Subjective Experience of Punishment, 109 Colurn. L. Rev. 182 (2009). I

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