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).

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