Rethinking
the Puzzle of Escalating Penalties for Repeat Offenders
David A. Dana
Abstract
It is well-known that the legal system punishes repeat
offenders more severely than non-repeat offenders, second-time offenders
more severely than first-time offenders, and those with many previous
offenses still more severely than those with a few. To a large extent,
the general principle of escalating penalties based on offense history
is embedded in formal federal, state, and admini-strative codes
and in the enforcement norms of prosecutors and officials at all
levels of government. Particularly in the context of regulatory
offenses, such as violations of environmental regulations, the phenomenon
of escalating penalties for repeat offenders tests the explanatory
limits of economics. Standard economic analysis seems to suggest
that, contrary to actual practice, penalties should not escalate
based on offense history.
This paper explores 1) whether behavioral economics and cognitive
psychology can help reconcile the theory of optimal deterrence and
the principle of escalating penalties based on offense history;
2) the possible significance of social, extra-legal sanctions in
explaining the phenomenon of escalating legal sanctions based on
offense history; and 3) whether penalty escalation, through its
expressive power to shape popular perceptions of moral wrongfulness,
allows society to conserve its resources for investments other than
law enforcement. The paper concludes that the gap between economic
theory and actual practice is much wider than previously recognized.
David A. Dana, School
of Law, Northwestern University
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