Legislating for profit and optimal Eighth‐Amendment review

Murat C. Mungan and Thomas J. Miceli

Economic Inquiry, 2021, vol. 59, issue 3, 1403-1416

Abstract: We compare a net‐revenue maximizing legislator's criminalization and punishment decisions to the optimal choices. The legislator over‐criminalizes and over‐punishes all criminalized acts when the degree to which it internalizes harms from crimes increases proportionally with the harm. An analysis of Eighth‐Amendment review, in the form of upper‐bounds on fines, reveals that it can both reduce fines to their optimal levels and remove the legislator's incentives to inefficiently criminalize low‐harm acts in the first place. These results provide a rationale for asymmetric judicial review wherein upper‐bounds are imposed on punishment, but lower‐bounds are not.

Date: 2021
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