C. Perfecting Criminal Norms
Criminal law does not govern conduct solely by increasing the penalties for engaging in antisocial activities; it also has the capacity to promote social norms of behavior. In this regard, the law does not simply extract a price for undesirable conduct; it also regulates the social meaning of such activity. This expressive function of criminal law is considered by many to be a critical (and cost-effective) aspect of the law's ability to deter harmful behavior. Yet this expressive function can, itself, have hidden costs. Society largely benefits from the prevailing norm that criminalization imbues an activity with negative moral value. However, the corollary to that norm--that policies which facilitate an activity convey a message that the activity is morally acceptable--may not always promote social welfare. Consider the opposition to harm-reduction programs that allow intravenous drug users to exchange dirty needles for sterile ones. Critics of needle-exchange programs typically argue that, by facilitating the safe use of intravenous needles, exchange programs implicitly condone drug use, and thus promote an activity that is both harmful and illegal. Importantly, while this argument is ultimately consequentialist, focusing on the overall welfare loss resulting from increased drug use, it also relies on equating facilitation with condonation. This “facilitation norm” is what makes harm-reduction strategies appear undesirable.
Were needle-exchange programs the sole casualty of the facilitation norm, one might be tempted to simply accept the elimination of one seemingly viable strategy for fighting the spread of communicable diseases as a necessary cost of keeping the social meaning of criminalization unambiguous. However, the facilitation norm may foreclose other interesting policy interventions that might improve social welfare despite supporting criminal activity. Imagine providing mediation services to resolve gang turf disputes, helping sex workers obtain documentation that indicates regular HIV testing, or free lab testing for illegal narcotics to ensure purity. Consider some of the benefits of allowing individuals who engage in criminal activity to use the legal system to resolve their “business” disputes, so that they don't have to resort to violent self-help measures. There are excellent reasons not to provide such services. The inability to use the legal system to resolve disputes is an important economic cost that may make criminal activity less attractive to profit-seeking actors. However, to the extent that such policies are unacceptable simply because they suggest that society condones the criminalized activity, the facilitation norm may be foreclosing valuable opportunities to improve social welfare.
Scholars have long recognized the tension between the expressive function of criminal law and efforts to improve social welfare by reducing some of the collateral costs of committing crimes. It is difficult to simultaneously facilitate and condemn an activity. However, the perfection of criminal markets suggests that there is less of a difference between harm reduction strategies and criminalization than many people might assume. Just as the distribution of clean needles makes it cheaper and easier to use illegal drugs, so too does the criminalization of fake drugs make it cheaper and easier to sell real drugs. If the criminalization of the second-order crime does not signal social approval of the first-order criminal market, then harm-reduction policies similarly need not be regarded as sanctioning bad behavior.
Focusing on the ways in which the criminalization of one behavior can facilitate other criminal activity need not undermine the expressive value of criminalizing conduct. The fact that an effort to reduce the harm caused by criminal conduct unintentionally boosts related criminal markets need not dilute the law's moral message. However, it does suggest that alternative policy efforts to reduce harm should similarly be interpreted as not condoning the unlawful activity. If society were to recognize the ways in which criminalization facilitates other criminal activity, creative harm-reduction strategies might come to entail fewer normative costs.
The benefits of destigmatizing harm-reduction strategies are not limited to the drug context. At a time when the Uruguayan Penal Code criminalized abortion, the government passed a law authorizing physicians to counsel women on the various methods of obtaining the safest illegal abortion. This policy was lauded for saving lives, but faced criticism for delivering a mixed message as to the morality of obtaining One benefit of highlighting criminalization's capacity to facilitate crime is that, to the extent that the facilitation norm is weakened, such harm-reduction policies will entail fewer normative costs. As discussed above, the increased penalties for illegal abortions that result in the death of the patient may improve the market for safe illegal abortions.
Perhaps recognizing that criminalization of dangerous abortions improves the first-order illegal abortion market might lessen the criticism of alternative harm-reduction strategies like the Uruguay Model by reducing the degree to which they are seen as condoning illegal abortion. With recognition that criminalization and harm-reduction strategies have similar impacts on criminal markets, it may be possible to obtain the life-saving benefits of some harm-reduction strategies without paying the cost of sending an ambiguous moral message about the underlying crime.
