Proportionality’s Lower Bound

Many philosophers have raised difficulties for any attempt to proportion punishment severity to crime seriousness. One reason for this may be that offering a full theory of proportionality is simply too ambitious. I suggest a more modest project: setting a lower bound on proportionate punishment. That is, I suggest a metric to measure when punishment is not disproportionately severe. I claim that punishment is not disproportionately severe if it imposes costs on a criminal wrongdoer which are no greater than the costs which they intentionally caused to others. I flesh out the implications of this Lower bound by discussing how to measure the costs of crime. Methodologically, I claim that different costs should be compared by considering preferences. Substantively, I claim that many proportionality judgements undercount the costs of crime by focusing only on the marginal and not the average cost. I suggest that we may hold defendants causally responsible for their contribution to the costs of that type of crime.