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Abstract

In an article recently published on the pages of this Law Review, The Market for Criminal Justice: Federalism, Crime Control, and Jurisdictional Competition ("The Market"), I put forward a theory of crime control in a decentralized government. Specifically, I made three distinct claims. First, criminal justice policies affect the geographic decision of criminals as to where to commit their crimes. Other things being equal, criminal activity will tend to shift to areas in which the expected sanction is lower. Second, local jurisdictions attempting to lower their crime rates will react to policies adopted by neighboring jurisdictions and try to keep up with their neighbors' sanctioning levels. In other words, the optimal expected sanction for a certain jurisdiction cannot be derived from the characteristics of that jurisdiction alone; it must incorporate the expected sanctions of neighboring jurisdictions. Third, competition among local jurisdictions in the area of criminal justice could be both efficient (a race to the top) and inefficient (a race to the bottom) depending on the specific context over which jurisdictions are competing. In three insightful comments, Professors Rachel Barkow, Sam Gross, and Wayne Logan deepen and broaden the discussion I attempted to start in The Market. They flesh out in great detail some of the theoretical complexities and practical difficulties regarding the competitive forces driving criminal justice policies that I did not fully treat in The Market. Further, they demonstrate that we should use great caution before adopting any policy recommendations based on the insights of The Market. The comments clearly help a great deal to understand the issues at hand; one should not read The Market without reading this correspondence. My goals in this short Reply are twofold. On one hand, I will answer some of the criticisms leveled against the arguments made in The Market. Obviously, due to the constraints of this format, I cannot answer every point made by the commentators, so I will focus my remarks on the main areas of disagreement. On the other hand, I will try to build on the comments to extend my initial analysis. The Reply is divided into two parts. In the first, I shall deal with the existence of competition in the area of criminal justice and defend my claim that competition affects the design of criminal justice polices in a decentralized government. In the second, I will tum to the policy implications of my claims and argue that The Market offers constructive policy recommendations for any decentralized criminal justice system, including the United States.