Legislating for Profit and Optimal Eighth Amendment Review

22 Pages Posted: 29 Apr 2020 Last revised: 30 Nov 2020

See all articles by Murat C. Mungan

Murat C. Mungan

George Mason University - Antonin Scalia Law School, Faculty

Thomas J. Miceli

University of Connecticut - Department of Economics

Date Written: April 22, 2020

Abstract

We derive a profit maximizing legislator's decisions to criminalize and punish offenses, and compare them to the optimal scope of criminalization and punishment. A profit maximizing legislator overcriminalizes and overpunishes all criminalized acts when the degree to which it internalizes harms from crimes increases proportionally with the harm from crime until it fully internalizes the harms from the most severe crimes. An analysis of Eighth Amendment review, in the form of an upper bound on the fine that the legislator may impose, reveals that in addition to reducing the fines imposed by the legislator down to optimal levels, there are gains to imposing strict upper bounds for low harm crimes to remove the legislator's incentives to criminalize these acts in the first place. These results provide a rationale for asymmetric judicial review wherein upper bounds are imposed on punishment, but not lower bounds.

Suggested Citation

Mungan, Murat C. and Miceli, Thomas J., Legislating for Profit and Optimal Eighth Amendment Review (April 22, 2020). Economic Inquiry (Forthcoming), George Mason Law & Economics Research Paper No. 20-12, Available at SSRN: https://ssrn.com/abstract=3582661 or http://dx.doi.org/10.2139/ssrn.3582661

Murat C. Mungan (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Thomas J. Miceli

University of Connecticut - Department of Economics ( email )

365 Fairfield Way, U-1063
Storrs, CT 06269-1063
United States
860-486-5810 (Phone)
860-486-4463 (Fax)

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