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.

Adam Kolber's thoughtful essay contends that variations in the subjective experience of punishment warrant a more nuanced manner by which courts mete out sentences for violations of criminal law.  Failure to take subjective experience into consideration, Kolber argues, violates not only notions of retributive justice, but also consequentialist arguments grounded in theories about how we can best deter crime.

This Response considers Kolber's consequentialist arguments in light of the neoclassical economic understanding of deterrence.  According to the standard economic understanding of criminal law, individuals are deterred from committing crimes when they are made to feel "costs" equivalent to the harm they cause society, modified by the probability that they will be punished.  When the "costs" of engaging in criminal conduct outweigh the net benefits of such conduct, the criminal refrains from committing that crime.  Apart from reputation costs and moral qualms, the government-mandated punishment that the criminal defendant receives upon conviction is a significant portion of the costs that she must weigh against the perceived benefits of completing a given crime.