Conclusion

      The fact that the criminalization of one activity may actually improve related criminal markets has profound implications for criminal justice policy and our normative understanding of criminal law. It is highly unlikely that policymakers will ever be able to fashion an optimal scheme of crimes and punishments that maximizes the law's deterrent effect. However, the recognition that second-order crimes can perfect first-order criminal markets may encourage lawmakers to more fully evaluate the costs and benefits of using the criminal law to resolve social problems. Moreover, a deeper understanding of the impact that such crimes have on related criminal markets may improve lawmakers' accuracy as they seek to calibrate criminal penalties in a way that more fully promotes public welfare. At a minimum, recognizing criminal law's capacity to improve criminal markets should improve the public discourse about crime and raise some skepticism about simplistic “tough on crime” solutions to complex social concerns.

      Finally, acknowledging the degree to which criminal laws facilitate antisocial activity can also promote a normative shift in our evaluation of harm-reduction policies that reduce the social and personal costs of committing crimes. Rather than undermine the moral authority of the criminal law, highlighting the degree to which such laws facilitate criminal activity could destigmatize policies that may be useful alternatives to criminalization.

 Assistant Professor of Law, University of Baltimore School of Law.