Legislating for Profit and Optimal Eighth Amendment Review

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.