III. Implications of Perfecting Criminal Markets
If lawmakers are, in fact, inadvertently perfecting first-order criminal markets, the inevitable question is: Does it matter? Surely the need to prevent street violence justifies criminalizing the sale of fake drugs, even if one side effect of such a ban is to improve the first-order drug market.
The answer is that the relationship between first- and second-order criminal markets is important even if the criminalization of both activities can ultimately be justified. The perfection of criminal markets is not just a quirky economic irony, but rather an important systemic dynamic with broad implications. An appreciation of the relationship between first- and second-order crimes is not only essential to the formation of sound criminal justice policy, but it may also help explain the rapid expansion of the criminal code and the growing complexity of federal and state sentencing guidelines. Moreover, the recognition that criminalization has the capacity to actually improve related criminal markets may promote a normative shift in the perception of regulatory alternatives to criminalization.
Regulatory strategies that reduce harm are often criticized for helping individuals engage in socially undesirable behavior. If the criminal law similarly “assists” other antisocial activity, then perhaps those harm-reduction strategies will no longer be accused of tacitly condoning bad acts and instead the costs and benefits of such policies will be evaluated on the same footing as the criminalization option.
The remainder of this Part proceeds as follows. Part III.A explores policy implications of perfecting criminal markets for legislators, judges, prosecutors, and members of law enforcement. Part III.B then suggests that the dynamic relationship between first- and second-order criminal markets may help to explain both the rapid growth in state and federal criminal codes and the concomitant expansion of criminal liability that has led some scholars to argue that we face a crisis of overcriminalization. Finally, Part III.C examines normative implications of the fact that criminalizing second-order antisocial activities may improve first-order criminal markets.
