Evaluating the Consequences of Calibrated Sentencing: A Response to Professor Kolber

Abstract

This is a Response to Adam Kolber's essay, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). Kobler criticizes courts for failing to take into account subjective experience of punishment when imposing sentences for criminal conduct. Kolber contends that the failure to calibrate punishment to reflect subjective experience undermines both retributivist and consequentialist arguments for punishment.

This Response grapples with the consequentialist implications of Kolber's argument. Specifically, it argues that calibrated sentencing may be far less desirable than its logical alternative, calibrated policing. Indeed, many would say that we already distribute police resources based on our estimation of how people will respond subjectively to the criminal justice system. Moreover, by adjusting sentences at the back-end to reflect subjective experience of punishment, Kolber's regime may forfeit certain front-end benefits that come about (self-regulation, for example) when individuals are particularly fearful of or sensitive to punishment. In sum, it is impossible to evaluate the consequences of Kolber's proposed sentencing regime without also considering how that regime would affect broader law enforcement efforts.

Keywords: Punishment, Sentencing, Policing, Self-Regulation