Expressive Law and Escalating Penalties: Accounting for the Educational Function of Punishment

Abstract The pervasiveness of law enforcement schemes that prescribe harsher penalties for repeat offenders continues to challenge scholars who seek an economic explanation for criminal justice policies. The current paper formalizes an explanation suggested by Dana, D. (2001. Rethinking the puzzle of escalating penalties for repeat offenders. Yale Law J. 110: 733–783), which is based on the role of the law in educating people about wrongful behavior—the so-called “expressive function” of law. The analysis shows that an escalating structure that imposes a lenient sanction on all first-timers and a harsh sanction on repeaters represents a compromise solution that is (second best) optimal if the fraction of unknowing offenders in the population of potential offenders (as opposed to rational calculators) is sufficiently large.