ABSTRACT
This chapter outlines the defending harm constraint, and explains why it should be recognized as the objective standard for determining whether jail terms are excessive pursuant to the Eighth Amendment. A properly formulated account of criminalizable harm only provides a part of the solution, because there is still a further legal barrier that prevents the harm constraint from being taken seriously as a restraint against unfair criminalization. Feinbergs objective account of harm is strengthened because he distinguishes important welfare interests from those interests that merely concern persons more ulterior aims. Moral culpability is sufficient to explain the objective wrongness of intentional/ reckless harm-doing, because the communally situated moral agent knows that it is wrong to aim bad consequences for ones fellow humans. Harm provides a general objective standard for determining the proportional fairness of criminalizing various activities. The harm criterion is particularly apt for considering the proportionality of criminal punishments, because punishment harms those who are punished.
