The general principle of escalating penalties based on offense history is so widely accepted that it strikes most people as simple common sense. This principle, however, tests the explanatory limits of economics. Contrary to the assumptions in the existing literature, probabilities of detection increase for repeat offenders. As a result, the standard optimal-deterrence model in economics dictates declining, rather than escalating, penalties for repeat offenders. Mining the insights of the emerging behavioral economics literature only makes matters worse, because the salience and optimism biases both support declining penalties as well. The gap between economic theory and actual practice is thus much wider than has been previously recognized. This Article explores two alternative conceptions of the role of legal penalties that may help to bridge that gap: legal penalties as supplements to extralegal sanctions and as expressive devices that help shape perceptions of moral wrongfulness.
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