B. The Independent Costs of Second-Order Crimes

      Consider again the fake illegal drug market. A drug user who purchases fake drugs cannot go to the authorities for legal redress. Without legal recourse, such buyers are apt to resort to self-help measures that can involve violent, even deadly, assault. While the prospect of violent retribution may deter many drug sellers from offering fake products, other sellers accept this risk. The violent self-help response that follows the sale of fake illegal drugs imposes its own costs on society, independent of the market for real drugs. Some might question whether society should care about violence inflicted upon a dealer of “fake drugs.” Put another way, some would debate whether a proper measure of social utility should include the utility lost by a criminal harmed in retribution for his shady dealings. However, given the impact of neighborhood violence on third parties-- including the danger of innocent-bystander injuries, increased fear in the community, and other “broken windows effects” --one need not be concerned with the costs imposed on the criminals themselves to conclude that fake illegal drug sales impose costs on society as a whole.

      Like the market for fake drugs, the human smuggling market entails costs that are independent from its impact on the number of immigrants who illegally cross the border. In an effort to avoid detection and maximize profits, smugglers ship their human cargo in squalid conditions that can be hazardous and even deadly. In May 2003, nineteen illegal immigrants suffocated to death in the back of a smuggler's truck when the temperature inside his sealed tractor-trailer reached 173 degrees. In January 2000, fifteen badly dehydrated Chinese immigrants were discovered crammed into a metal freight container in a Seattle port. Three dead bodies were discovered decomposing in the rear of the container amid the garbage and human waste that had accumulated during their fifteen-day voyage from China. Officials concluded that the deaths were the result of either exposure to the cold in the unheated container, lack of water, or a combination of the two. These human tragedies illustrate the considerable cost human smuggling exacts on society, independent of its effect on the number of illegal immigrants who gain access to the United States.

      The independent costs associated with second-order crimes like human smuggling or the sale of fake illegal drugs trigger a predictable legislative response--a second wave of criminalization and enhanced penalties. More than thirty-five state legislatures have criminalized the sale of fake illegal drugs. Similarly, in 1994, Congress passed the Violent Crime Control and Law Enforcement Act, which increased the maximum term of imprisonment for alien smuggling to twenty years if the smuggler either causes a person serious bodily injury or places the life of any person in jeopardy. Under the Act, a smuggler who causes the death of any person is eligible for the death penalty or life imprisonment.

      It is hardly surprising that legislatures would respond to the problems produced by criminalization with more criminalization. Scholars have long observed that the criminal law seems to act as a “one-way ratchet” perpetually expanding its scope and enhancing its penalties. Increased criminalization would appear to be a reasonable response to the significant and even tragic independent costs associated with many second-order crimes. If the logic of deterrence was persuasive for the first-order crime, why should it not apply to the second-order crimes as well? Unfortunately, criminalization in these circumstances is a double-edged sword. While second-order crimes impose costs on society as a whole, they also create imperfections in the first-order criminal market. The result is that legislatures face a difficult paradox. They can combat the second-order harms with a new wave of criminalization, but, in doing so, they risk improving the first-order criminal market that they originally sought to eliminate. In effect, by criminalizing the secondary harm, they help perfect the original criminal market.