B. Perfecting Our Understanding of (Over)criminalization

      The potential for second-order crimes to perfect first-order criminal markets may provide some valuable insight into the overcriminalization crisis that has been a focus of legal scholars for the last forty years. Criminal law has been described as a “one-way ratchet,” constantly expanding the scope of criminal liability and perpetually increasing the penalties associated with each crime. As discussed above, various theories have been offered to explain this unremitting expansion. Some scholars blame institutional interests that encourage prosecutors and legislators to push for broad criminal liability. Others have pointed to a legislative process that exaggerates the temporary passions of the electorate. The rising influence of media images of crime has also been blamed for contributing to increased efforts to expand the criminal code. Finally, some academics have suggested that cognitive psychology can explain the public's, and thus elected officials', penchant for punitive and expansive approaches to fighting crime. Ultimately, the explosive growth of the criminal code is likely due to some combination of the many explanations offered by scholars.

      The relationship between first- and second-order criminal markets should not wholly supplant other theories that purport to explain the expansion of the criminal law. Indeed, one of the chief aspects of the overcriminalization phenomenon is the dramatic growth of regulatory crimes --a likely unrelated aspect of the expansion of the criminal code. However, the perfection of criminal markets suggests a “multiplier effect” that magnifies the impact of those factors that scholars argue explain the dramatic expansion of the criminal code. Media stories detailing the horrific and dangerous conditions that surround human smuggling were likely the catalyst for Congress's decision to enhance the penalties for alien smugglers who injure or kill their human cargo. However, if the effect of such laws is to increase other criminal activity, they may instigate further rounds of criminalization and penalization as the legislature seeks to undo the effects of second-order criminalization on related criminal markets. As a result, the relationship between first- and second-order crimes may help explain why seemingly weak influences may in fact have a substantial impact on both the breadth and depth of the criminal law.

      The idea that first-order crimes create the opportunity for second-order criminal markets to emerge offers a partial explanation for the increase in the number of crimes on the books. If the politics of crime push legislatures to expand the criminal code, each expansion plants the seeds for new antisocial activity to be criminalized. Moreover, if the subsequent criminalization of second-order crimes offsets some of the disincentives to commit the first-order crime, then it is not surprising that the legislature's response would be either to enhance the penalties for the first-order crime or to attack the first-order problem with a second wave of criminalization. The perfection of criminal markets thus helps to explain not only the expansion of the criminal code but also why legislatures see fit to return to the same antisocial conduct and criminalize it “many times over.”