What is the proportionate punishment for conduct that is neither harmful nor wrongful? A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent. Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor. Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on. But practicing investment advising without registering is a crime for which one may be convicted and punished. When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different. But in what way? One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum. Some offenses, like murder, are wrongs “in themselves” (“in se”) whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited (“prohibitum”). The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses. This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront.

对既无害又无错误的行为按比例进行处罚是什么？对此的可能回应是，不应因为这种行为而对所有人进行任何惩罚。但是，国家通常会惩罚无害行为，这种行为的不当性并不总是显而易见的。例如，要求提供补偿建议的投资顾问仅在注册为投资顾问后才这样做的要求。在不向政府注册的情况下，向一个人提供如何投资其资金并接受该建议的费用的建议，似乎没有害处或不道德，只要不涉及欺诈，相关方可以理解相关的风险等等。但是，在没有注册的情况下进行投资咨询是一种犯罪，对此可能会被定罪和处罚。当人们想到犯罪时，范式犯罪是诸如谋杀，强奸和抢劫之类​​的犯罪，但诸如未能注册为投资顾问之类的犯罪则有所不同。但是用什么方式呢？一种标准的解释是两种罪行之间的区别，se中的malum和malumbidum。有些犯罪（例如谋杀）是“本身”（“本身”）的错误，而其他犯罪（例如未注册为顾问的投资咨询）则是错误，因为它们被禁止（“禁止”）。这篇杂文提出的问题是，在惩治此类禁止犯罪行为时，我们应如何考虑刑罚的相称性。本论文提供了一个确定比例性的框架，并提出了该框架需要面对的一些挑战。