Abstract
An assessment of the effectiveness of criminal law requires an initial discussion of what this concept means and what challenges the enforcement of criminal laws presents. In general, cost and effectiveness of criminal laws are difficult to ascertain. This holds particularly true for laws criminalizing activities relating to illicit drugs, such as their production, trafficking, possession, and consumption. With expectations of enforcement success often only ambiguously defined, costs insufficiently compiled, and the collateral effects of enforcement more damaging than the public health impact, drug law enforcement appears highly ineffective. This holds true for European countries as well as the United States. The enforcement of drug laws therefore remains of questionable value and may even negatively impact the standing of criminal law in its entirety.
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Notes
- 1.
On the new trends in enforcement private law, see Basedow in this volume.
- 2.
See Smith (1941), p. 16.
- 3.
Besides deterrence, the criminal justice system pursues other marginal goals. Among them are the rehabilitation of offenders, the disablement of offenders, the sharpening of the community’s sense of right and wrong, the satisfaction of the community’s sense of just retribution, and even socialized vengeance. See Hart (1958), pp. 401–402.
- 4.
As Beccaria (1769), p. 74-76, already stated that "the certainlty of conviction is the ideal deterrent". Therefore, adequate enforcement of the law, will increase the effectiveness of the criminal law, from the perspective of its deterrence objective.
- 5.
On the cost-eficeincy analyisis related to drug-abusing criminal offenders, see Manning et al (2016), pp. 24-26.
- 6.
See Robinson and Darley (2004), p. 173.
- 7.
Robinson and Darley (2004), p. 174: “The behavioural sciences increasingly call into question the assumption of criminal law’s ex ante influence on conduct”.
- 8.
Office of the President of the United States, National Drug Control Budget: FY 2017 Funding Highlights, February 2016.
- 9.
Prohibited drugs are “narcotic, psychotropic, and related substances whose production, sale, or use are restricted by [US] domestic law and international drug control agreements.” Rosen (2015).
- 10.
Executive Office of the President, Office of National Drug Control Policy, FY2012 Budget and Performance Summary, April 2011, p. 282.
- 11.
Doyle (2016), p. 2. The United States frequently requests extradition of drug traffickers, and in select cases has resorted to irregular rendition in the form of abduction and even to military operations (p. 7).
- 12.
The death penalty for drug trafficking alone would be unconstitutional today, in the wake of the Supreme Court’s decisions in Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008). On the other hand, certain types of drug trafficking carry life-without-parole sentences.
- 13.
Additional regulatory measures govern these bodies, and missteps in manufacturing or administering such drugs would fall within the enforcement structures of other regulatory bodies. In addition, private suits, instigated by those harmed, would arise under tort laws.
- 14.
Chemical Diversion and Trafficking Act makes up Title VI of the Anti-Drug Abuse Act of 1988, P.L. 100–690.
- 15.
The rise in the popularity of meth explains why purchasers of over-the-counter cough syrup that contains pseudoephedrine, will be registered.
- 16.
Muhuri et al. (2003).
- 17.
In contrast to the European Union member states where small possession crimes will not be prosecuted, in the United States, depending on the jurisdiction, such offenses may be brought before a court.
- 18.
In 1988 the Office of National Drug Control Policy and its director, the so-called “drug czar,” were created to coordinate the efforts of multiple federal agencies engaged in drug enforcement.
- 19.
Money-laundering legislation and federal regulatory structures designed to uncover and dismantle the financial infrastructure of organized drug networks are beyond the scope of this paper.
- 20.
For a discussion of such forfeiture in European countries, see Petter Rui and Sieber (2015).
- 21.
See, e.g., Demleitner (2017). For discussion of the sharing between state and federal agencies, see U.S. Department of Justice, Criminal Division, Guide to Equitable Sharing for State and Local law Enforcement Agencies, April 2009, www.justice.gov/criminal-afmls/file/794696/download.
- 22.
Sacco (2014).
- 23.
Similarly, even under the federal guideline regime, where judges retained some discretion, discounts for guilty pleas and cooperation increased the importance of prosecutors in the adjudicatory process.
- 24.
Studies indicated that rewards for cooperation, and the required type and level of cooperation, varied widely between different federal prosecutors’ offices.
- 25.
- 26.
In the case of public housing, a conviction is not even required. The government can evict tenants if they had a guest or a caretaker who had drugs on him, or if a co-tenant, often a child or grandchild, dealt drugs, even if far away from the apartment.
- 27.
West Huddleston and Boone (2005), p. 2. Others have argued that drug courts are not more effective than other case dispositions. Hoffman (2001–2002). Finally, the Government Accountability Office has taken the position that insufficient data collection impedes analysis. U.S. GAO, Drug Courts: Better DOJ Data Collection and Evaluation Efforts Needed to Measure the Impact of Drug Court Program, GAO-02-434, April 2002, pp. 18–20.
- 28.
21 U.S.C. 812(b)(1).
- 29.
The federal government explicitly authorizes civil penalties in addition or in lieu of criminal sanctions. The Illicit Drug Anti-Proliferation Act of 2003 (CSA), for example, created civil penalties for “maintaining drug-involved facilities.”
- 30.
Sacco and Finklea (2014), pp. 5–6.
- 31.
Colorado appears to have benefitted fiscally substantially from legalization.
- 32.
Sacco and Finklea (2014), p. 7.
- 33.
Uruguay is technically in violation of the conventions. Bolivia left the convention framework and then re-entered with a reservation regarding the chewing of coca leaves, a traditional practice in the country.
- 34.
Office of National Drug Control Policy, National Drug Control Budget: FY2015 Funding Highlights, March 2014, p. 15.
- 35.
See Hart (1958), p. 401.
- 36.
It is beyond the purview of this paper to address offenses that result from addiction, such as violent and non-violent offenses aimed at gaining access to money to finance drug purchases.
- 37.
See, for example, the Council of Europe White Paper on Transnational Organized Crime of December 2014, prepared by Bachmaier, which can be read under http://www.coe.int/t/dghl/standardsetting/cdpc/White-paper-Web.pdf.
- 38.
United Nations, Treaty Series, vol. 1582, No. 27627.
- 39.
See the long list of more than 190 definitions collected by von Lampe, under www.organized-crime.de/organizedcrimedefinitions.htm.
- 40.
See Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990: report prepared by the Secretariat (United Nations publication, 1990, Sales No. E.91.IV.2), chap. I, sect. C, resolution 24, annex, p. 5.
- 41.
United Nations Convention against Transnational Organized Crime signed in Palermo 15 December 2000, according to the UN Resolution 54/129. Article 2 (a): “Organized criminal group shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit”.
- 42.
See the Organized Crime Best Practice Survey n° 9 of the Council of Europe, Preventive Legal Measures against Organized Crime, Strasbourg June 2003, p. 3.
- 43.
Adopted by the Council of Europe Committee of Ministers on 19 September 2001. The whole text of the recommendation can be found under https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804e603c.
- 44.
Intelligence gathering on drug traffickers may not be restricted to law enforcement agencies but also include other government agencies that are focused on gathering information for political or military purposes.
- 45.
Bachmaier (2012), pp. 48 ff.
- 46.
- 47.
UNODC, Digest of Organised Crime Cases. A compilation of cases with commentaries and lessons learned, Vienna 2012, pp. 70–71, 103–104.
- 48.
The General Secretariat published approximately 26,500 notices and diffusions in 2011. There were 40,836 notices and 48,310 diffusions in circulation at the end of 2011, and 7958 people were arrested on the basis of a notice or diffusion during 2011 (International Notice System—Interpol). The databases and networking in the field of firearms present another good example of networking in a special area. They are channelled through ICPO, IFRT (Illicit Arms Records and Tracing Management System), iARMS, and the Ballistic Information Network (IBIN).
- 49.
The world’s leading anti-money laundering organizations cooperated in the development of IMoLIN.
- 50.
Council of Europe, Treaty Series, Nr. 30.
- 51.
Council of Europe, Treaty Series, Nr. 99.
- 52.
Council of Europe, Treaty Series, Nr. 182.
- 53.
See specifically Articles 48 to 53.
- 54.
Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000/C 197/01).
- 55.
Conclusions of the Presidency of the Tampere European Council of 15 and 16 October 1999, http://www.europa.eu.int/european_council/conclusions/index_es.htm, with regard to evidence, see precisely point 36.
- 56.
See the programme of measures to implement the principle of mutual recognition of decisions in criminal matters of 2001, OJ C12 of 15.1.2001. The point 2.1.1, concerning the obtaining of evidence states the aim: “to ensure the evidence is admissible, to prevent its disappearance and to facilitate the enforcement of search and seizure orders, so that evidence can be quickly secured in a criminal case”.
- 57.
Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L130 of 1.5.2014. On the European Investigation Order, see generally, Bachmaier (2015), pp. 47–59; Bachmaier (2017a), pp. 46–66 and also Bachmaier (2017b), pp. 313–336.
- 58.
Council Framework Decision 2008/9787/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L350 of 30.12.2008.
- 59.
The international conventions, framework decisions and directives that are substituted and/or amended by the Directive are listed in Article 34 DEIO.
- 60.
Until now regulated in the Council Framework Decision 2003/577/JHA of 22 July 2003, on the execution in the European Union of orders freezing property or evidence.
- 61.
Para. 6 of the Explanatory Memorandum.
- 62.
See para. 7 of the Explanatory Memorandum. See also Bachmaier (2013), pp. 96–98.
- 63.
See the study “Euroneeds: Evaluating the need for and the needs of a European Criminal Justice System” carried out by the Max Planck Institute for Foreign and International Criminal Law, http://www.mpicc.de/ww/en/pub/forschung/forschungsarbeit/strafrecht/forschungsprogramm/fp_kurzbeschreibung.htm.
- 64.
See http://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG.4_2013/CYBERCRIME_STUDY_210213.pdf. On predictive policing based on big data, see, for example. Ferguson (2015), pp. 327 ff.; Rademacher (2017), pp. 366 ff.
- 65.
See for example, Bachmaier (2014), pp. 10 ff.
- 66.
On the right to privacy and the needs for notification of any encroachment see, See Klass and Others v. Germany, Weber and Saravia v. Germany, op. cit. (n. 30), and Case of the Association for European Integration and Human Rights Ekimdhiev v. Bulgaria, 28 June 2007, App. no. 62540/00;Szabó and Vissy v. Hungary, 12 January 2016, App. no. 37138/14.
- 67.
See also UNODC, Good practices for the protection of witnesses in criminal proceedings involving organised crime, New York, 2008, p. 19.
- 68.
Council of Europe Report on the Assessment of the answers to the questionnaire: Review of the Recommendation Rec(2005)9 on the protection of witnesses and collaborators”, prepared by L. Bachmaier and Ivan Waltenburg, CDPC (2017) 21Rev, 8.11. 2017 available at https://rm.coe.int/assessment-of-the-answers-to-the-questionnaire-review-of-the-recommend/1680764f16.
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Bachmaier Winter, L., Demleitner, N.V. (2018). Challenges for the Enforcement and Effectiveness of Criminal Law: The Prohibition on Illegal Drugs. In: Etcheverry Estrázulas, N., Fernández Arroyo, D. (eds) Enforcement and Effectiveness of the Law - La mise en oeuvre et l’effectivité du droit. Ius Comparatum - Global Studies in Comparative Law, vol 30. Springer, Cham. https://doi.org/10.1007/978-3-319-93758-8_7
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