David Jaros’s thought-provoking new Article, Perfecting Criminal Markets, sheds light on a heretofore unappreciated effect of our obsession with criminalization: that merely by creating new crimes, lawmakers may inadvertently strengthen existing criminal markets. To support his argument, Jaros adopts the tenets of neoclassical deterrence theory, which assume that criminalizing an activity will deter its occurrence. But the model Jaros employs has its limits. The weakness of a rational choice account of criminal markets is that it relies so heavily on the assumption that prospective criminals will be aware of, and swayed by, criminal laws that might in fact be quite obscure.

In the first Part of this Response, I consider some of the factors, including lack of effective information and risk miscalculation, that might blunt the deterrent value of these laws, and hence their market-enhancing effects. The second Part of the Response explores the normative implications of his argument. Jaros contends that, because the market-boosting effects of criminalization muddy the moral message of the criminal law, this creates an opportunity to reconsider alternative means of harm reduction. Incorporating a public health approach to some of these issues, particularly in the area of vice crimes, might prove far more beneficial than unreflective criminalization.

Overall, Jaros has found a fresh and novel way to show that criminalization can enhance crime. By following the tenets of neoclassical deterrence theory through to their logical conclusion, Jaros demonstrates that, even on its own terms, criminalization as a means of reducing social harm is highly problematic. Our current appetite for criminalization and increasingly harsh penalties has only resulted in record-breaking rates of incarceration, disproportionate impact on people of color, and an unsustainable drain on state and federal budgets. If people begin seriously thinking about the consequences of perfecting criminal markets in the way Jaros describes, then his insights could do some real good.