Adam J. Kolber (Brooklyn Law School) has posted Measuring Punishment Severity (The Oxford Handbook of the Philosophy of Punishment (Jesper Ryberg ed., forthcoming 2024)) on SSRN. Here is the abstract:
If punishment is ever morally appropriate, it will only be so in amounts that fit the circumstances. We cannot possibly punish justly without at least some ability to measure punishment severity. Since punishment is often thought to require an intentional infliction, one might think punishment severity depends on the severity punishers intend. But since real-world punishment practices include both intended and unintended inflictions, the "intent approach" to severity fatally ignores unintended harms. Our punishment practices cannot be justified unless we justify their side-effect harms as well. The "harm approach" to punishment severity, by contrast, focuses not on intentions but on foreseeably caused harms. Because the harm approach measures what needs to be morally justified, it better fits theories that seek to justify punishment practices. It also fits well with our intuitions about severity: those punished care little about what punishers intend and a lot about how much they are harmed. Once harm is properly measured, however, our traditional notions of retributive proportionality look surprisingly unattractive, and two seemingly plausible ways of fixing proportionality fail.
Highly recommended.