Beyond Experience: Getting Retributive Justice Right

Abstract

If Oscar the offender is a generally happy person and able to bounce back from disappointments quickly, should those charged with determining and implementing sentences take his adaptability into account? Does it matter if Oscar is better or worse at adapting than his criminal peers? Professors Bronsteen, Buccafusco, and Masur (“BBM”) provoked these and other questions in their article Happiness and Punishment (HP). We met their challenge in earlier articles, where it became clear that the fundamental issue between BBM and us was whether “punishment” should be subjectively or objectively evaluated. BBM have defined, measured, and justified punishment according to the subjective negative experiences of those who are punished, an approach we refer to as “subjectivism.” In our earlier articles, we argued that the more compelling and coherent approach was to define and justify punishment from a more objective perspective, a view we’ll call “objectivism.”