I. The Criminogenic Effects of Crime
You murder me now and steal my throne--but one of your own sons will dethrone you, for crime begets crime.
One of the core goals of the criminal law is to deter antisocial behavior. On its face, deterrence appears straightforward. In his seminal article applying economic theory to the analysis of criminal law, Gary Becker posited that criminals, like any other rational actors, weigh the expected benefits of their actions against the expected costs. The criminal law thus aims to deter crime by raising the cost of certain antisocial activities, thereby diverting rational criminals from the undesirable activity to other, legal and less harmful, pursuits. In practice, however, the use of the criminal law to deter antisocial behavior is fraught with difficulty. In fact, there are times when the criminal law is, itself, criminogenic.
Crime is capable of begetting more crime in a number of subtle ways. Former Acting Solicitor General Neal Katyal has observed that the criminalization and harsh penalization of one antisocial activity may encourage offenders to switch to other endeavors that may be equally or even more harmful. Thus, when Congress raised the penalty for possessing five grams of crack to a mandatory minimum of five years, it inadvertently may have induced dealers to substitute the sale of heroin for the sale of crack. Professor Katyal further hypothesized that the increased criminalization of certain kinds of illegal activity (like heroin use for addicts) could actually increase the incidence of those activities. Likening heroin to a Giffen good--a good which people consume more of as its price rises --Professor Katyal suggested that increased prices for heroin could actually induce users to consume more drugs to cope with the misery of lost income.
Crime also begets incarceration; incarceration, in turn, can beget more crime. Prisons act as schools for inexperienced criminals, inculcating low-level offenders with criminal values as well as educating them on the means to commit more serious crimes. By separating prisoners from their families, incarceration can also weaken the social ties that act as “informal social control[s]” to deter criminal activity. Moreover, a criminal record can make it substantially harder for an individual to obtain legal employment, thereby increasing the chances that a convicted person will have to rely on crime for income in the future. This dynamic is exacerbated by the fact that incarceration tends to strengthen a convicted person's connection to criminal networks, thereby expanding the person's opportunities to engage in further criminal activity.
Incarceration (and thus criminal law) can result in the increased criminal activity of third parties as well. As Martin Pritikin observes, “[n]ot only does the disruption of family bonds that results from incarceration make those in prison more likely to recidivate, it makes their children more likely to commit crime as Without the supervision of their parents, the children of incarcerated persons have increased opportunities to become involved in delinquency and crime. Moreover, the deleterious economic impact of a parent's incarceration may increase the likelihood that a child will pursue the financial benefits of criminal activity. Indeed, incarceration can have a broad criminogenic effect on entire communities as high rates of imprisonment exacerbate the social and economic disadvantages that plague impoverished communities where former inmates are concentrated. Thus, incarceration is not merely a consequence of neighborhood crime, but also a critical piece of the “ecological dynamics of neighborhoods that may actually elevate
Yet despite the rich scholarly literature on the sociological, psychological, and economic impacts of criminalization and incarceration and their criminogenic effects, one important dynamic has been overlooked. Scholars have observed that efforts to restrict the supply of illegal goods (like drugs) tend to raise the price of those goods. As prices rise, criminals have greater incentive to engage in the illegal activity and to utilize violence to maintain their market position. Criminalization, however, does more than simply create imperfect markets that reward illegal behavior. Sometimes criminalization creates second-order criminal markets--new criminal opportunities that would not exist but for the criminalization of the initial antisocial activity.
This dynamic is critically important. First, it suggests the possibility that legislators and law enforcement grossly underestimate the social costs of criminalizing some activities. Second, and more importantly, close examination of the relationship between first- and second-order criminal markets suggests that lawmakers and law enforcement officials must be cautious in their responses to second-order crimes. Otherwise, in their effort to combat the second-order crime, policymakers may unwittingly improve the market for the original crime, thereby raising law enforcement costs and increasing the level of the very activity they initially sought to suppress.
This Part proceeds as follows. Part I.A describes two ways in which first-order crimes generate new criminal activities. First, the criminalization of a good or activity can create demand for new harmful goods and services. Second, the criminalization of a good or activity creates new opportunities for harmful behavior by foreclosing the government from using regulatory tools that might prevent the new activity from occurring. Part I.B then describes how the new activities generated by first-order criminalization impose independent costs on society that tend to trigger a second wave of iminalization.
