CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 27, 2015

Johnson & Osler on Drug Crimes and White-Collar Offenses

Thea Johnson and Mark William Osler (Stanford Law School and University of St. Thomas - School of Law (Minnesota)) has posted Why Not Treat Drug Crimes as White-Collar Crimes? (61 Wayne Law Review 1 (2015)) on SSRN. 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.

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