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August 19, 2015

"Why Not Treat Drug Crimes as White-Collar Crimes?"

The question in the title of this post is the title of this notable new article available on SSRN authored by Thea Johnson and Mark Osler. Here is the abstract:

Drug dealing is a business enterprise.  At its core is the manufacture, transport, financing, and selling of illegal narcotics.  The most successful drug dealers are the ones who are skilled in the tools of business, and success is measured in the profit generated. Given these undeniable realities, shouldn’t we treat narcotics trafficking the way we do other business-based crimes like fraud or embezzlement?

One odd point of distinction between narcotics and other business crimes has been the frequent use of harsh sentencing measures to create deterrence in the former but not the latter.  This is odd because deterrence works where a potential violator both (1) is aware of possible sanctions, and (2) performs a rational cost-benefit analysis that incorporates those possible sanctions.  White collar defendants are a better target for deterrence measures by both of these metrics, yet we use those tough measures often in addressing drug crimes and almost never in tackling other business crimes.

To conflate the punishments for narcotics crime and other business crimes would be fairly simple.  They could fall under a single guideline in a guideline system, with sentences determined in proportion to the amount of profit taken. Statutes could be similarly constructed. Many sectors of society want to lower incarceration and bring new integrity to the criminal justice system. Treating drug crimes for what they are — crimes of commerce — would go a long way towards that goal.

August 19, 2015 at 04:06 PM | Permalink


I've not yet read the article...but be careful what you wish for. My spouse was convicted for fraud and is serving a 25 year sentence.

Posted by: folly | Aug 19, 2015 5:08:18 PM

During the oral argument of Lawrence v. Texas (sodomy), Justice Souter spoke of "deterioration of the body and the mind from drug-taking." It is not considered simply "business" matters. Also, fraud and the willing purchase of a drug isn't the same thing. Perhaps, less emotion and more pragmatism is advisable, granting narcotics being a crime in the first place, but we still aren't talking about the same thing.

To allude to a matter in the news, child pornography is also a "business enterprise." We also don't treat that the same as some sort of bank fraud. For good reasons in various cases. In other cases less so. The softness of treatment of certain economic crimes is after all a major political concern these days and the laxness can have serious societal effects/harms.

Posted by: Joe | Aug 19, 2015 5:21:48 PM

Isn't the defense bar simultaneously trying to ratchet down economic crime guidelines, claiming they're severely disproportionate?

Posted by: tom | Aug 20, 2015 11:01:02 AM

I'll read it over the week-end but the premise of the title is pretty thought provoking.

My thought is that when white collar crimes and campaign financing crimes are charged and prosecuted as aggressively as drug conspiracy crimes there would be an out cry for Criminal Justice reform.

Posted by: beth | Aug 20, 2015 1:03:32 PM

Nice one sharing article...

Posted by: Hammerschmidt Broughton Law Corporation | Oct 25, 2015 4:00:01 AM

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