Eugene Volokh defends repeat-offender statutes against the double-jeopardy argument (that they amount to punishing someone twice for the same offense) by pointing out that they are analogous to rules providing for leniency toward first offenders.

He could, I think, have made a stronger claim. The two cases aren’t just analogous, they’re the same thing. Say the law provides a five-year sentence for burglary by someone with a previous felony conviction, but a two-year sentence for burglary by a first offender. We could call that a five-year sentence for burglary with three years off for being a first offender, or a two-year sentence for burglary with a three-year enhancement for being a repeater. Reframing the problem in this way switches its political valence: roughly speaking, giving a break to first offenders is a liberal policy, ratcheting up sentences for repeat offenders a conservative one. (Ironically, the defendant may actually have more procedural advantage if the system is called “enhancement” than if it’s called “leniency.”)

Thomas Schelling’s essay “Economic Reasoning and the Ethics of Policy” has a good discussion of reframing as a way of getting past one’s ideological preconceptions, with a couple of mind-bending examples drawn from income taxation.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com