The Subjectivist Critique of Proportionality

The Palgrave Handbook of Applied Ethics and the Criminal Law (Larry Alexander & Kimberly Kessler Ferzan eds., 2019)

Brooklyn Law School, Legal Studies Paper No. 754

23 Pages Posted: 26 Jun 2023 Last revised: 20 Nov 2023

Date Written: June 1, 2019

Abstract

Offenders vary in their sensitivity to punishment. In recent years, this observation has formed the basis of a critique of retributivism. According to the subjectivist critique, retributivists must choose between two bad options. If they ignore variation in how offenders experience punishment and are worsened by it, they will fail to justify punishment practices, such as incarceration, that inevitably inflict experiential harms and worsen offenders to varying degrees. Even if these harms do not formally constitute punishment, they reduce desert debt and must be considered to avoid overpunishment. If, however, retributivists properly consider experiential harms and other worsenings, they are led to counterintuitive results—for example, that the wealthy should generally spend less time in prison or have better conditions than the poor when they commit equally serious crimes. Hence, the subjectivist critique reveals that retributivism cannot justify common punishment practices, such as incarceration, without also leading to conclusions that most will find unappealing.

Keywords: punishment theory, retributivism, proportionality, proportional punishment, subjective experience, worsening

Suggested Citation

Kolber, Adam Jason, The Subjectivist Critique of Proportionality (June 1, 2019). The Palgrave Handbook of Applied Ethics and the Criminal Law (Larry Alexander & Kimberly Kessler Ferzan eds., 2019), Brooklyn Law School, Legal Studies Paper No. 754, Available at SSRN: https://ssrn.com/abstract=4489616

Adam Jason Kolber (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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