WHY NOT TREAT DRUG CRIMES AS WHITE-COLLAR

CRIMES?
MARK OSLER
THEA JOHNSON
I. INTRODUCTION ...................................................................................... 1
II.. THE ROOTS OF DISTINCTION BETWEEN DRUG CRIME AND
WHITE-COLLAR CRIME ...................................................................... 5
A. Treating Narcotics Crimes Differently Than White-Collar
Crime Is a Historical Aberration ................................................. 5
B. The Similarities Between Narcotics Crime and White-Collar
Crime ........................................................................................... 9
1. Drug Crimes Are Business Crimes ........................................ 10
2. The Moral Wrong is the Same ............................................... 11
3. The Direct Harms of Narcotics Crime and White-Collar
Crime Are Similarly Serious. ...................... 11
4. The Indirect Harms of Narcotics Crime and White-Collar
Crime Are Similarly Serious ............................................... 13
III. DETERRENCE ..................................................................................... 15
IV. REAL-LIFE REFORM .......................................................................... 24
A. Sentencing Guidelines .................................................................. 24
B. Statutory Changes ........................................................................ 25
V. CONCLUSION ...................................................................................... 25
I.

INTRODUCTION

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, shouldnt we treat narcotics trafficking the way we do other
business-based crimes like fraud or embezzlement?

Professor of Law: Robert and Marion Short Distinguished Chair in Law, University
of St. Thomas (MN).
Thomas C. Grey Fellow and Lecturer in Law, Stanford Law School.
The author thanks Geoffrey Bickford, Albertina Antognini, and Rachael Samberg.

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[Vol. 61:1

As we all know, we do not treat drug crime as a white-collar crime,

but rather as a super-category of crime that is set aside for particular
approbation. In addressing drugs, federal law uses stiff mandatory
sentences, harsh base offense levels within the sentencing guidelines, and
high sentences even when the dollar amount at issue in a case is very low.
Meanwhile, the statutes and guidelines addressing white-collar cases offer
none of these elements. This Article questions, and ultimately rejects, the
disparity in treatment between drug cases and those involving white-collar
crimes and urges that narcotic sentences be treated in a way similar to our
current scheme for white-collar crimes.
We are not the first to make this observation about the need to remedy
the different treatment of white-collar and narcotics crimes within the
criminal justice system. As Darryl K Brown noted in his article Street
Crime, Corporate Crime, and the Contingency of Criminal Liability,
street crime should be addressed more like corporate crime. . . [as] the
corporate crime model points towards ways to minimize the role of
criminal law generally . . . .1 But Browns call to mold our treatment of
street crime to match the more regulation-based model we see in whitecollar prosecutions is more than a decade old and has still gone unheeded.
It is time to revisit this question and make the call once again to treat drugs
crimes as we treat white-collar crime.
When a white-collar criminaleven one as outrageously criminal as
Bernie Madoffreceives an effective life sentence, it is unusual,2 yet the
same sentence is wholly unremarkable in non-violent drug cases. One
justification for tough drug sentences has always been deterrence: we
expect that if we give long sentences to drug dealers, others who might
consider going into that business will choose not to.3 There is a problem
with this logic, though. Deterrence relies on two things happening for it to
work. First, the harsh sentencing tactic must be communicated to the
potential criminal. Second, the potential criminal must make a rational
1. Darryl K. Brown, Street Crime, Corporate Crime, and the Contingency of Criminal
Liability, 149 U. PA. L. REV. 1295, 1359 (2001).
2. Madoff was sentenced to 150 years imprisonment at age seventy-one, which
sentencing expert Douglas Berman declared to be the new benchmark in white-collar
cases. Douglas Berman, A New Benchmark: The Main Reason the Number 150 Matters in
Madoff,
SENTG
L.
&
POLY
(June
29,
2009,
12:33
PM),
http://sentencing.typepad.com/sentencing_law_and_policy/2009/06/a-new-whitecollarbenchmark-the-main-reason-the-number-150-matters-in-madoff.html.
3. See Evan Bernick & Paul Larkin, Reconsidering Mandatory Minimum Sentences:
The Arguments for and Against Potential Reforms, HERITAGE FOUND. (Feb. 10, 2014),
http://www.heritage.org/research/reports/2014/02/reconsidering-mandatory-minimumsentences-the-arguments-for-and-against-potential-reforms
(Mandatory
minimum
sentences also prevent crime because certain and severe punishment inevitably will have a
deterrent effect.).

2015]

DRUG CRIMES AS WHITE COLLAR CRIMES?

cost-benefit analysis, which includes consideration of the harsh sentencing

tactic, and decide not to commit the crime. The problem with directing
deterrence measures towards drug dealers, who tend to be impoverished
and undereducated, is that there are a variety of reasons why they do not
make cost-benefit decisions about their criminal behavior.4 Suffice it to
say, it is unusual that we use deterrence methods more frequently with
drug dealers than white-collar criminals, since those who commit whitecollar crime are much more likely to make rational, cost-benefit choices.5
We argue not that deterrence tools like mandatory minimums should
be used against white-collar criminals,6 but rather that it would be better
to sentence narcotics defendants in the same way we currently punish
white-collar criminals, with sentences keyed to the amount of money they
take from the business rather than the weight of the drugs at issue.
Part II below explores the current distinction between white-collar and
narcotics crimes. This discussion begins with history, and the raw fact that
this distinction in how we punish narcotics crimes relative to other crimes,
particularly white collar offenses, is fairly new to federal law. From the
founding of the Republic until the beginning of the twentieth century,
narcotics went unregulated by the federal government.7 During this period,
opium was marketed to housewives,8 and cocaine was included in soft
drinks.9 In the early 1900s, just as Congress was beginning to regulate
business, it did the same to narcotics.10 Importantly, the tools used then by
Congress were primarily those we use to control commerce: taxation,
labeling, and import/export restrictions.11 Only in the 1980s did the federal
government (and many states) begin to rely so heavily on deterrentcentered punishments that resulted in mass incarceration.12 This
4. See infra Part III.
5. See NEAL SHOVER & ANDY HOCHSTETLER, CHOOSING WHITE-COLLAR CRIME 3
(2005) (There are good reasons to believe that white-collar criminals generally behave
more rationally than street offenders; the latter routinely choose to offend in hedonistic
contexts of street culture where drug consumption and the presence of other males clouds
judgment and the ability to calculate beforehand. Many white-collar workers by contrast
live and work in worlds that promote, monitor, and reward prudent decision making. They
are significantly older to boot and more capable, presumably, of exercising the greater care
and caution of persons with some maturity.).
6. See infra note 151 and accompanying text.
7. See infra note 24 and accompanying text.
8. Stephen R. Kandall & Wendy Chavkin, Illicit Drugs in America: History, Impact
on Women and Infants, and Treatment Strategies for Women, 43 HASTINGS L.J. 615, 617
(1992).
9. Id. at 618.
10. Kandall & Chavkin, supra note 8, at 62122.
11. See infra Part II(A).
12. See infra Part II(A).

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aberrational choice was misguided. At a fundamental level, narcotics

crimes are business crimes;13 the moral wrong behind narcotics trafficking
and white-collar crimes is the same,14 and the direct and indirect harms
caused are distinct but of similar weight.15
Part III directly addresses the issue of deterrence and how it relates to
both narcotics and white-collar crimes. We argue that deterrence theory,
which results in unnecessarily long sentences for drug defendants, does
not make sense in those cases, given what we know about the offenders
targeted. When we look at those defendants who end up in prison for drugrelated crimes, we find that a number of issuesincluding a lack of
education, mental health issues, problems with substance abuse, and the
mental load of povertymake deterrence strategies particularly
unsuccessful with this population.16 Contrasting this regime with the way
we treat white-collar criminals, who rarely suffer from these same deficits,
heightens the mismatch we see when examining these sentences relative
to one another.
Part IV, in turn, describes a set of reforms that will bring narcotics
sentencing in line with the methods we use in white-collar cases and shift
us away from our current model of punishment. The fix is not complex.
The guideline sections for fraud and many other white-collar cases17
should simply be combined with the narcotics section,18 and profit taken
by an individual should be used as the gauge of relative culpability for
both types of crime. The statute for narcotics trafficking, 19 21 U.S.C.
841, can be similarly simplified by sweeping out the mandatory
minimums and equating the maximum sentences to those available for
major frauds, while leaving in place the separate mechanism of 21 U.S.C.
848 to deal with the most serious and violent drug crimes, which may
require lengthier sentences of up to life in prison (or even the death
penalty).
The result would go a long way toward undoing the injustice of mass
incarceration and bring new integrity to the criminal justice system.

13.
14.
15.
16.
17.
18.
19.

See infra Part II(B)(1).

See infra, Part II.B.2.
See infra Part II.B.3-4.
See infra Part III.
UNITED STATES SENTENCING GUIDELINES MANUAL 2B1.1 (2014).
Id.
21 U.S.C.A. 841 (West 2014).

2015]
II.

DRUG CRIMES AS WHITE COLLAR CRIMES?

THE ROOTS OF DISTINCTION BETWEEN DRUG CRIME AND

WHITE-COLLAR CRIME

A. Treating Narcotics Crimes Differently Than White-Collar Crime Is a

Historical Aberration
Because most Americans have lived their adult lives in an era where
drug-dealing was considered a particular kind of a crimea major street
crime which is uniquely dangerousit is hard to imagine a different kind
of regime. In truth, this construction of drug crime as a super-category
requiring mass incarceration is only about forty years old.20
Historically, Americans have treated narcotics trafficking and other
problems of commerce in a similar manner. The treatment of narcotics
crime as a super-category of especially dangerous street crime is only the
third, and fairly recent, stage in its trajectory within federal criminal law.21
In the first two periods white-collar crime and narcotics trafficking were
treated roughly in a similar manner.22
In the first period, from the founding of the colonies until about 1900,
recreational drug use was legal at the same time that businesses were
largely unregulated by the federal government.23 As Erik Luna put it, until
the twentieth century drug consumption was largely unfettered by
government regulation. The pursuit of intoxication was viewed as a mild
vice, not the scourge of man.24 During this period there was little
distinction made between addictive and non-addictive drugs; cocaine was
included in soft drinks, and opium used to sooth infants.25 Similarly, before
the reforms of the early twentieth century, industry and business were
largely unregulated by the federal government.26
The second stage extended from the turn of the twentieth century to
the 1970s and 1980s. In these decades, narcotics trafficking was, for the
most part, treated as a problem of commerce through market-control

20. See infra notes 5257 and accompanying text.

21. See infra notes 5257 and accompanying text.
22. See infra notes 2350 and accompanying text.
23. See infra notes 2426 and accompanying text.
24. Erik Grant Luna, Our Vietnam: The Prohibition Apocalypse, 46 DEPAUL L. REV.
483, 486 (1997).
25. Id. at 488 n.39.
26. See generally The Investors Advocate: How the SEC Protects Investors, Maintains
Market Integrity, and Facilitates Capital Formation, U.S. SEC. & EXCHANGE COMMISSION
(JUNE 10, 2013), http://www.sec.gov/about/whatwedo.shtml#.VMZilWR4rdI (noting that
financial market regulation was largely not a national priority until after the stock market
crash proceeding the Great Depression).

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restrictions including labeling requirements,27 taxation,28 and import

controls.29 Public concern over drug use grew in the first decade of the
1900s,30 and Congress reacted. The first major federal law attempting to
address narcotics as a market was the Pure Food & Drug Act of 1906,31
which required disclosure of psychoactive ingredients.32 The next step in
regulating opium and cocaine was the Harrison Narcotic Act of 1914.33
Controversially, the Harrison Act expanded federal jurisdiction through
the tool of taxation,34 and required those selling cocaine and opium to be
registered and to pay a tax.35 Penalties flowed not from the act of selling
drugs, but from the failure to follow these regulatory requirements. 36
Legislation later in the 1900s also tended to use tax and regulation rather
than direct prohibition.37 For example, the Narcotics Drug Import and
Export Act of 192238 required that internationally trafficked drugs bear
stamps reflecting importation,39 and the Marijuana Tax Act of 193740 did
not flatly prohibit hemp in its many forms, but rather, imposed a tax on
importation, manufacture, and distribution, and limited those who would
have access to a tax stamp.41
A transitional stutter-step was taken in the early 1950s toward a more
crime-focused approach. In 1951, the Boggs Amendment to the Harrison
Act created a two-year mandatory minimum sentence for offenders,42 and
27. See infra notes 3132 and accompanying text.
28. See infra notes 3337 and accompanying text.
29. See infra notes 3841 and accompanying text.
30. Kandall & Chavkin, supra note 8, at 620.
31. Pub. L. No. 59-384, 34 Stat. 768 (1906), amended by Pub. L. No. 66-301, 37 Stat.
416 (1912).
32. Id.
33. 38 Stat. 785, 785-90 (1914), amended by 40 Stat. 1130, 1130-33 (1919) (repealed
1970).
34. Congress avoided the need to require a finding of interstate nexus on a case-bycase basis by rooting a prohibitory regime in the guise of a tax. A. Christopher Bryant,
Nigro v. United States: The Most Disingenuous Supreme Court Opinion, Ever, 12 NEV.
L.J. 650, 651 (2012).
35. 38 Stat. 785, 785-90, amended by 40 Stat. 1130, 113033 (1919) (repealed 1970).
36. See generally Bryant, supra note 34, at 656 (discussing the regulatory scheme
behind the Harrison Act that acted as a form of federal morals regulation with regards to
drug commerce).
37. The use of these tools seems to be largely driven by the desire to use a federal nexus
that was accepted at that time. Bryant, supra note 34, at 651.
38. 42 Stat. 596 (1922) (repealed 1970).
39. This law did allow for the prosecution of end purchasers who did not buy heroin or
cocaine bearing this stamp, though it was the international trade that was directly regulated.
United States v. Brown, 207 F. 2d 310 (2d Cir. 1953).
40. Pub. L. No. 75-238, 50 Stat. 551, ch. 553 (1937).
41. Id.
42. 65 Stat. 767 (1951).

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DRUG CRIMES AS WHITE COLLAR CRIMES?

the 1956 Narcotics Control Act43 created an additional raft of new

sentences for drug crimes, including mandatory minimum sentences.44
While these laws began to look more like what we recognize today, there
are two crucial differences between these precursors and what we see
today in federal drug sentencing. First, Congress created a mandatory tax
scheme rather than allowing action directly against narcotics possession
or distribution.45 Second, and perhaps more important, is that these
measures were abandoned within years, rather than decades.46 Only eight
years later, President Kennedy began a quiet but important systemic use
of the pardon power to mitigate the sentences of those subjected to the
Narcotics Control Acts mandatory minimums, and President Johnson
continued this program.47 Shortly thereafter, the Comprehensive Drug
Abuse Prevention and Control Act of 1970 swept away all but one of the
mandatory minimum sentences and focused federal resources on treatment
and rehabilitation.48 This striking legislation was based on
recommendations from two federal commissions49 and was promoted by
(among others) then-Congressman George H.W. Bush.50
This moderate approach lasted until the criminal-law landslide of
1984-88,51 a period in which the federal government eliminated parole and
started the mechanism for mandatory sentencing guidelines,52 established
a presumption of detention before trial in most drug cases,53 and crafted
new jacked-up sentences for drug trafficking which included broad43. 70 Stat. 567 (1956).
44. Id.
45. See supra notes 43-44.
46. See infra note 47 and accompanying text.
47. Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13
FED. SENT. REPORTER Number 3 & 4, 2001 WL 1750548 (2001) (Kennedy pardoned
offenders who had been sentenced under the mandatory minimum sentences of the
Narcotics Act of 1956, citing the excessiveness of those sentences. Kennedy pardoned 600
people altogether (not just drug offenders), and Johnson pardoned a total of 1300. To give
some sense of the contrast, Clinton pardoned only 456 people).
48. MOLLY M. GILL, CORRECTING COURSE: LESSONS FROM THE 1970S REPEAL OF
MANDATORY
MINIMUMS
1014
(2008),
http://famm.org/wpcontent/uploads/2013/07/Correcting-Course-Final-version.pdf.
49. The Prettyman Commission issued a report in 1963, and the Katzenbach
Commission produced a ten-volume study in 1967. Id. at 10-11.
50. Id. at 15.
51. The federal approach, discussed here, diverged sharply from the direction taken by
some states. New York, for example, enacted what became known as the Rockefeller drug
laws in 1973. These new restrictions posed harsh new penalties for drug possession, and
predictably led to a 700% increase in New Yorks prison population over the following
two decades. Peter Reuter, Why Has Drug Policy Changed So Little Over 30 Years? 42
CRIME & JUST. 75, 124 (2013).
52. Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987.
53. Bail Reform Act of 1984, Pub. L. 98-473, tit. II, ch. 1, 98 Stat. 1976.

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ranging mandatory minimums.54 This was in line with the political climate
at the time. As Jonathan Simon notes in his book, Governing Through
Crime: How the War on Crime Transformed American Democracy and
Created a Culture of Fear, the politics of governing were becoming
increasingly focused on street crime.55 What began as Nixons war on
drugs in 1971 became an all-out war on crime that reshaped the executive
branch into a powerful crime-fighting force.56 Drug dealers became a key
enemy in the war on crime and prosecutors became heroes of that war.57
By the mid-1980s, the federal approach to narcotics diverged from the
way corporate and financial malfeasance was controlled and the way that
financial crimes like mail and wire fraud were (and are) punished.58 The
results have been disastrous, with billions of dollars spent on a drug policy
that has had little effect on the drug trade, but a significant negative impact
on communities of color in the U.S.59
This sharp turn toward harshness (and away from the baselines for
white-collar sentences) in drug cases was predicated on anecdotes and
fearof crack houses,60 crack babies,61 and violent super-predators,62 to
name a fewrather than evidence and deliberation.63 The death of one
54. Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207.
55. See infra note 56 and accompanying text.
56. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME
TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 30 (2003)
(noting that the war on drugs that Nixon launched in 1971 has been escalated by almost
every president since[] and that by promoting the belief that illegal drug commerce was
an underlying cause of violent street crime, the federal drug war has become an integral
part of America life in even those communities most sheltered from it . . . .).
57. See generally id. at ch. 2.
58. Mail and wire fraud violations threaten a maximum sentence of only twenty years
in cases not involving a financial institution or national emergency (and thirty years if they
do involve a financial institution or national emergency), with no mandatory minimums
and relatively low guideline sentences if the loss is not large. 18 U.S.C.A. 1341, 1343
(West 2014; UNITED STATES SENTENCING GUIDELINES 2B1.1.
59. GILL, supra note 48, at 20-28.
60. In 1986, the New York Times described the inside of a crack house where [p]eople
climbed down stairs into a blackened basement, sloshed through stagnant puddles and
knocked on a steel door, all to get a hit of crack. Peter Kerr, Opium Dens for the Crack
Era, N.Y. TIMES (May 18, 1986), http://www.nytimes.com/1986/05/18/nyregion/opiumdens-for-the-crack-era.html.
61. Crack Babies: A Tale from the Drug Wars, N.Y. TIMES (May 20, 2013),
http://www.nytimes.com/video/booming/100000002226828/crack-babies-a-tale-fromthe-drug-wars.html?playlistId=100000002148738.
62. Clyde Haberman, When Youth Violence Spurred Superpredator Fear, N.Y.
TIMES (Apr. 6, 2014), http://www.nytimes.com/2014/04/07/us/politics/killing-on-busrecalls-superpredator-threat-of-90s.html?_r=0.
63. Mark Osler & Mark W. Bennett, A Holocaust in Slow Motion? Americas Mass
Incarceration and the Role of Discretion, 7 DEPAUL J. FOR SOCIAL JUST. 117, 129135
(2014).

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DRUG CRIMES AS WHITE COLLAR CRIMES?

athlete, for example, played a major role in the decision to institute

remarkably high federal sentences for crack cocaine.64 House Speaker
Thomas Tip ONeill was bombarded by constituents demanding
action,65 and commentator Anthony Lewis described the frenzy to pass
laws as a type of political narcotic.66 Even the United States Supreme
Court expressly recognized the baselessness of the rules in concluding that
the guideline sentences for crack did not take account of empirical data
and national experience.67
Emotion was the root for our treating narcotics crime so much more
harshly than white-collar crime. Reason should return us to balance.
B. The Similarities Between Narcotics Crime and White-Collar Crime
Because of the history laid out in the preceding section, we may
associate the War on Drugs only with tough sentences and overlook the
fact that it also cemented the idea that drug crimes are differentand
worsethan other types of commerce crimes. That idea should be
revisited with analysis rather than reflexive emotion.
1. Drug Crimes Are Business Crimes
Drug trafficking crimes are fundamentally crimes of commerce: A
market exists, and some people respond to the financial incentives and
enter that market as sellers.68 While the category of white-collar crime

64. That athlete was Len Bias of the University of Maryland, who had been drafted by
the Boston Celtics. Id. at 13132.Two days after being drafted, he was found dead from an
overdose. Id. at 132. Although Bias overdosed on cocaine, his death was widely reported
to be the result of crack. Id. In the wake of Bias death, federal drug legislation shifted in
two distinct ways: from a model that addressed drug offenses with probation and treatment
to one focused on incarceration, and from a system in which sentencing discretion was left
to the judiciary to one in which mandatory minimums and charging decisions afforded
federal prosecutors greater power over the direction of narcotics cases). Id. at 132-35.
65. William Spade, Jr., Beyond the 100:1 Ratio:
Towards a Rational Cocaine Sentencing Policy, 38 ARIZ. L. REV. 1233, 1250 (1996)
(quoting Hearings Before the United States Sentencing Commn on Proposed Guideline
Amendments (Mar. 22, 1993) (testimony of Eric E. Sterling, President of the Criminal
Justice Policy Foundation)).
66. Anthony Lewis, Abroad at Home: The Political Narcotic, N.Y. TIMES (Sept. 29,
1986),
http://www.nytimes.com/1986/09/29/opinion/abroad-at-home-the-political-narcotic.
html.
67. Kimbrough v. United States, 553 U.S. 85, 109 (2007).
68. See Jeff Winkler, Drug Dealer Explains Economics of Selling Part-Time, BILLFOLD
(Aug. 14, 2012, 12:10 PM), http://www.huffingtonpost.com/2012/08/14/drug-dealer-

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is sometimes seen as eluding a clear definition,69 for our purposes here we

will accept the classifications used by the United States Sentencing
Commission70 and consider white-collar crime to encompass fraud,
embezzlement, forgery, counterfeiting, bribery, money laundering,
antitrust, and tax offenses.71
At a very basic level, crimes are distinguished from one another by
their elements, or the discrete type of facts that must be proven to reach a
conviction. One element is universal to all crimes: identity of the
criminal.72 Others are broadly shared among many crimes, such as
knowledge or intent.73 In the end, what differentiates crimes that may have
these and other common elements, though, is the action taken by the
defendant. For example, if an identified person knowingly and
intentionally steals a wallet from a pocket, that would be theft.74 If an
additional action is takenthreatening the owner of the wallet with
violenceit becomes robbery.75 Threatening violence takes this crime
from being a non-violent theft to what is considered a violent crime:
robbery.
If we accept that actions define crime categories, it makes sense that
drug dealing is a business crime. Consider for example the actions that
lead to conviction under the primary federal drug statute, 21 U.S.C.
841(a): to manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled substance [or
economics-part-time_n_1775811.html? (describing the market for marijuana and average
profit that the seller made).
69. Ellen S. Podgor, The Challenge of White Collar Sentencing, 97 J. CRIM. L. &
CRIMINOLOGY 731, 734738 (2007).
70. The federal sentencing commission analyzes statistics by category. One category
is fraud, while another (which includes embezzlement, forgery/counterfeiting, bribery,
money laundering, and tax) is labeled non-fraud white collar. See United States
Sentencing Commission Chart Offenses in Each Primary Offense Category (fiscal year
2012),
http://isb.ussc.gov/USSC?userid=USSC_Guest&password=USSC_Guest&tocsection=10.
71. In so doing, we follow the lead of Carl Emigholz, who presented a theoretical
argument for the similarity between drug crime and white-collar crime nearly a decade ago
in a note as a law student. Carl Emigholz, Utilitarianism, Retributivism and the White
Collar-Drug Crime Sentencing Disparity: Towards a Unified Theory of Enforcement, 58
RUTGERS L. REV. 583, 585 (2006).
72. See BLACKS LAW DICTIONARY 430 (9th ed. 2009) (defining criminal as One
who has committed a criminal offense).
73. See id. at 1075 (defining mens rea as [t]he state of mind that the prosecution . . .
must prove that a defendant had when committing a crime and noting that it is an essential
element of every common law crime).
74. See id. at 1615 (defining theft as [t]he felonious taking and removing of
anothers personal property with the intent of depriving the true owner of it).
75. See id. at 1443 (defining robbery as [t]he illegal taking of property from the
person of another, or in the persons presence, by violence or intimidation).

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DRUG CRIMES AS WHITE COLLAR CRIMES?

11

counterfeit substance].76 What actions are being barred here? Simply the
things that are at the heart of business: manufacture, sales, and distribution.
There is no element of the crime that would slide it into the realm of violent
crimes like robbery or murder. On the bare and plain face of the statutes
that control drug crimes are the actions that define business transactions.
The historical conflation between drugs and business makes sense.
What is odd is the yawning chasm between the way we treat them.
2. The Moral Wrong is the Same
White-collar crimes are driven by the same moral infirmity as drug
crimes: a desire to make money without concern for the effect of ones
actions on others or the illegality of what they are doing. In short, the drug
dealer and the fraudster are taking legal and moral risks to get rich (or at
least in the hope of getting rich). While there is some overlap between
these crimes and a violent robbery, the financial motivation behind drug
and white-collar crimes does distinguish them from the rest of the federal
docket (which typically does not contain many street crimes like robbery
or theft).77 Immigration crimes have a different moral wrong, as do sex
crimes, terrorism, illegal gun possession, and most of the rest of the federal
docket.
The moral wrong or bad impulse behind the crime does matter, but we
should be consistent in our condemnation of that wrong.
3. The Direct Harms of Narcotics Crime and White-Collar Crime Are
Similarly Serious
The direct harms of drug dealing and fraud are remarkably similar. In
the case of white-collar crimes such as fraud, a defendant may swindle a
victim out of their life savings.78 This will degrade the victims standard
of living, their self-image, and their standing in the community.79 The
sudden evaporation of resources may even erode the victims health, as
access to health care is curtailed. In the case of narcotics trafficking, the
76. 21 U.S.C.A. 841(a) (West 2014).
77. UNITED STATES COURTS, U.S. DISTRICT COURTSCRIMINAL DEFENDANTS
COMMENCED, BY OFFENSE, DURING THE 12-MONTH PERIODS ENDING SEPTEMBER 30, 2010
THROUGH
2014,
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2014/appendices/D02DSep
14.pdf (last visited Apr. 2, 2015).
78. See Madoff Victims Recount the Long Road Back, WALL ST. J. (Dec. 9, 2013, 6:21
PM), http://www.wsj.com/articles/SB10001424052702303560204579248221657387860.
79. Cf. id. (discussing the emotional and physical toll experienced by Bernie Madoffs
Ponzi scheme victims).

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direct damage80 done is that of drug use by customers.81 To varying

degrees, drugs can and do sometimes degrade the users standard of living,
self-image, and standing in the community.82 Significantly (and in a more
direct way than white-collar crime), drug use can cause dramatic health
problems, particularly when harder drugs, such as methamphetamine and
heroin, are involved.83
The more dire health effects of drug use are offset by a few distinctions
between fraud and narcotics. Narcotics users who suffer this harm are
nearly always willing participantsthey seek out, purchase, and use the
drugs knowing what they are doing, and the possible effects. In other
words, the harm of narcotics crime is a shared responsibility between the
seller and the buyer. Without both of them willingly engaging in the
commercial activity of buying and selling drugs, the harm does not occur.
This dynamic is absent from most white-collar crimes, where the victim is
an unwitting part of the harm-causing transaction.84 Drug dealers supply a
willing and knowing customer, while white-collar criminals (particularly
in fraud cases) do not.
Further complicating things is the certainty of harm. Nearly everyone
who is a victim of fraud loses money, at least in the short term.85 However,
only a fraction of those who buy and use drugs become addicted and suffer
the most serious health effects.86 For example, only 15% of the people who
use cocaine are addicted to that drug, according to Columbia University
Psychology and Psychiatry Professor Dr. Carl Hart, who has written
extensively on the issue.87 Similarly, a 2007 report from the United States
80. We recognize that that there are a number of indirect harms and we address those
in Part II.B.4 below.
81. See PA-96-010: Medical and Health Consequences of Drug Abuse, 42 NIH GUIDE,
no. 24, Dec. 1995, available at http://grants.nih.gov/grants/guide/pa-files/PA-96-010.html.
82. See, e.g., U.S. DEPARTMENT OF JUSTICE NATIONAL DRUG INTELLIGENCE CENTER,
THE ECONOMIC IMPACT OF ILLICIT DRUG USE ON AMERICAN SOCIETY 31
(2011), http://www.justice.gov/archive/ndic/pubs44/44731/44731p.pdf (estimating that in
2007, the aggregate impact of illicit drug use on labor participation . . . during 2007 . . .
sum to $49,237,777); Warnecke Miller & Rebecca Griffin, Adjudicating Addicts: Social
Security Disability, the Failure to Adequately Address Substance Abuse, and Proposals for
Change, 64 ADMIN. L. REV. 967, at 970-71 (2012) (noting both the enormous monetary
expense medical care related to substance abuse, and the manner in which substance abuse
creates myriad social problems).
83. See, e.g., Drug Facts: Heroin, NATL INST. ON DRUG ABUSE,
http://www.drugabuse.gov/publications/drugfacts/heroin (last updated Oct. 2014).
84. See Madoff Victims Recount the Long Road Back, supra note 78.
85. See, e.g., id.
86. See infra notes 8788 and accompanying text.
87. Kristen Gwynne, Carl Hart: Drugs Dont Turn People into Criminals, SALON (June
17,
2013,
12:20
PM),
http://www.salon.com/2013/06/17/carl_hart_drugs_dont_turn_people_into_criminals_par

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DRUG CRIMES AS WHITE COLLAR CRIMES?

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Sentencing Commission cited a study which concluded that only 5% of

recent-onset cocaine users became addicted within twenty-four months of
starting to use the drug.88 The risk of addiction then seems to be lower for
a drug user than the risk of loss for a victim of fraud, even if the damage
itself is different.
4. The Indirect Harms of Narcotics Crime and White-Collar Crime
Are Similarly Serious
One argument for tough drug sentences is that narcotics trafficking
creates significant indirect harms within society.89 For example, drug
dealers kill one another in turf wars,90 and drug addicts steal things to
support their habit.91 There is truth in this argumentit is undeniable that
in some cases this does happen, and that some drug epidemics create this
dynamic more than others.92 However, these dangers are often overstated.
The related crimes can be addressed independently through existing laws.
The social harm done by a drug crime is not significantly more severe than
the indirect harms created by some white-collar crimes.
While it seems clear that the appearance of crack in the mid-80s did
create a spike in violent crime,93 it is important to recognize the source of
this spike and its relatively short duration. As to the source of that violence,
it came not from crack users, but from young people with guns who were
drawn into the crack dealing business to replace older sellers as they
tner/. See generally CARL HART, HIGH PRICE: A NEUROSCIENTISTS JOURNEY OF SELFDISCOVERY THAT CHALLENGES EVERYTHING YOU KNOW ABOUT DRUGS AND SOCIETY
(2013) (for a fascinating discussion of our common misconceptions about addiction).
88. UNITED STATES SENTENCING COMMISSION, REPORT TO THE CONGRESS: COCAINE
AND
FEDERAL
SENTENCING
POLICY
65
(2007),
available
at
http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-andreports/drug-topics/200705_RtC_Cocaine_Sentencing_Policy.pdf.
89. National Drug Intelligence Center, The Impact of Drugs on Society, NATIONAL
DRUG
THREAT
ASSESSMENT
2006
(Jan.
2006),
http://www.justice.gov/archive/ndic/pubs11/18862/impact.htm.
90. See Philip Sherwell, Vicious Drug Turf War Turns Mexican Border Town of
Tijuana into a Killing Zone, TELEGRAPH (Nov. 29, 2008, 4:44 PM),
http://www.telegraph.co.uk/news/worldnews/centralamericaandthecaribbean/mexico/353
5833/Vicious-drug-turf-war-turns-Mexican-border-town-of-Tijuana-into-a-killingzone.html.
91. Marvin Seppala, Addiction: The Disease that Lies, CHART (July 26, 2011, 4:13
PM), http://thechart.blogs.cnn.com/2011/07/26/addiction-the-disease-that-lies/ (The
addicted neglect their primary relationships and they may lie, cheat and steal to continue
drug use.).
92. Perhaps most notably, a substantial increase in violent crime in the United States,
which peaked in 1992, is often attributed to the introduction of crack cocaine around 1985.
UNITED STATES SENTENCING COMMISSION, supra note 88, at 83.
93. Id.

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became incarcerated.94 After violent crime peaked in 1992, it went down

by 40% by 200095 and then continued dropping up to the current day.96
During the latter part of this decline, at least, drug use did not show a
similar downturn, as overall use actually rose.97 While it is fair to say that
violent crime is sometimes indirectly created by narcotics trafficking, that
effect can be short-lived and often is directed at others in the drug trade
rather than outsiders.
Importantly, these indirect harms are caused by actions which can be
prosecuted independent of any drug charge. For example, if one drug
dealer kills another, that is a straight-up murder case.98 A prosecutor can
get a conviction simply by proving identity, causation, and death.99 Thus,
these indirect harms can be addressed on their face and create their own
deterrent effects (if any) independent of the drug dealing. That is not true
for white-collar crime, where the indirect effects work through the
economy rather than additional discrete crimes.100 If fraud is committed in
the mortgage industry and this triggers an economic crisis, there is no
additional crime to prosecute independently to address that indirect effect.
The authors do not dispute that narcotics crime has some indirect
effect on violent crime in some circumstances and that this creates (at least
temporarily) great social harm. However, white-collar crime is strikingly
dangerous and causes great social harm, as well. In fact, the American
economy was nearly brought down, and trillions of dollars of value lost,
in 200809 largely because of fraudulent dealings in financial markets.101
94. Id. at 86.
95. Id.
96. Ian Simpson, Violent Crime Drops, Reaches 1970s Level, CHI. TRIB. (November
10, 2014, 2:25 PM), http://www.chicagotribune.com/news/nationworld/chi-violent-crime1970s-level-20141110-story.html.
97. Drug Facts: Nationwide Trends, NATL INST. ON DRUG ABUSE,
http://www.drugabuse.gov/publications/drugfacts/nationwide-trends (last updated Jan.
2014).
98. See BLACKS LAW DICTIONARY 1114 (9th ed. 2009) (defining murder as [t]he
killing of a human being with malice aforethought).
99. See id.
100. Elizabeth Szockyj, Imprisoning White-Collar Criminals? 23 S. ILL. U. L.J. 485, 487
(1999) (Definitions of white-collar crime generally indicate that the harm inflected may
be financial, physical or social. Although the term white-collar crime is most frequently
associated with economic crimes such as embezzlement or securities fraud, the concept is
by no means restricted to financial loss. Personal injuries, diseases and death due to
occupational workplace hazards, environmental pollution, and the marketing of dangerous
products are among the physical costs resulting from white-collar crime.).
101. FINANCIAL CRISIS INQUIRY COMMISSION, THE FINANCIAL CRISIS INQUIRY REPORT:
FINAL REPORT OF THE NATIONAL COMMISSION ON THE CAUSES OF THE FINANCIAL AND
ECONOMIC CRISIS IN THE UNITED STATES xvxxviii (2011) (giving a summary of the causes
for the 2008 financial crisis and discussing the role of mortgage fraud in the crisis),

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DRUG CRIMES AS WHITE COLLAR CRIMES?

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There is some evidence that the public may perceive the harm of
white-collar crimes to be about as or more serious than some of the violent
crimes that might be indirectly caused by narcotics. In a 2000 presentation
to the United States Sentencing Commission, Dr. Donald Rebovich
compared a robbery with a fraud, asking, [w]hich is more serious: a
robber or embezzler who steals $100?102 Fifty-six percent of respondents
said the embezzler, 27% said the robber, and 17% said they were about
equal.103 When asked to compare a robber and a fraudster, most thought
the fraudster was more serious (44%) or that they were about equal
(18%).104
In the end, drug crimes are business crimes, committed through
buying, selling, manufacturing, marketing, and management. Even if we
accept this, though, it only addresses retribution. What about the other
sentencing goal often associated with narcotics sentencing, deterrence?
III.

DETERRENCE

Our images of drug crime and white-collar crime are so unthinkingly

well-settled and distinct that it takes a good jolt to even realize it. The
comedian Dave Chappelle did this brilliantly in a 2004 skit on Chappelles
Show. In Tron Carters Law & Order105 we see a white-collar trader at
home in the evening preparing for bed, when the police suddenly burst into
the room with a smoke bomb and SWAT team, shooting the traders dog
and arresting him and his wife.106 Meanwhile, a drug dealer named Tron
Carter is at home packaging cocaine when he gets a call from a detective,
who politely asks him if he might have time to come down to the station
to deal with the unfortunate matter of a warrant for his arrest.107 The
available at http://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf; see also Al
Yoon, Total Global Losses From Financial Crisis: $15 Trillion, WALL ST. J. (Oct. 1, 2012),
http://blogs.wsj.com/economics/2012/10/01/total-global-losses-from-financial-crisis-15trillion/ (discussing both an estimation of the total losses from the financial crisis, and some
of its causes).
102. Donald Rebovich, Presentation to the United States Sentencing Commission
Symposium on Federal Sentencing Policy for Economic Crimes and New Technology
Offenses (October 12-13, 2000), http://www.ussc.gov/sites/default/files/pdf/research-andpublications/research-projects-and-surveys/economic-crimes/20001012symposium/4figure.pdf.
103. Id.
104. Id.
105. Chappelles Show: Tron Carters Law & Order (Comedy Central television
broadcast Feb. 18, 2004), available at http://www.cc.com/video-clips/3vk26x/chappelles-show-tron-carter-s--law---order----uncensored.
106. Id.
107. Id.

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trading places theme continues from there, with the white-collar trader
being treated terribly at all stages of the process and ultimately being
sentenced to the mandatory minimum of life in jail, while Tron Carter gets
one month in prison, after taking the fifth to most of the questioning by
a special congressional committee.108
The skit is so powerful because it brings to light a few of the
hypocrisies in the way we deal with drug offenders versus white-collar
criminals. Even though the cost of white-collar crime is so weightythink
about the scale of the taxpayer bailout following the 2008 financial crisis,
the job losses that followed the collapse of several major banking
institutions, or, even, the near destruction of the Icelandic economy.109 We
tend to treat white-collar criminals with kid gloves not only before they
commit a crime, but even after they commit a crime.
The state of punishment was not always what it is now. For a hundred
years from 18601960, the prevailing view of punishment was largely
utilitarian.110 This utilitarian view of punishment placed an emphasis on
rehabilitation of the offender and the ideal of proportionality.111 At some
time in the 1960s, though, the pendulum swung strongly toward a
retributivist view of punishment.112 Along with this principle of just
deserts came a renewed focus on the concurrent goal of deterrence.113
Deterrence was not about punishing or rehabilitating the offender, but
about the system sending a message to future wrongdoers.114
And so attention to the offender got lost at a time when the system was
inundated with offenders. By now, mass incarceration is no secret or
surprise for the average American.115 The crippling issues that stem from
mass incarceration have been written about elsewhere with great detail and

108. Id.
109. Nathaniel Popper, After Crisis, Iceland Holds a Tight Grip on Its Banks, N.Y.
TIMES DEALBOOK (Jan. 15, 2014), http://dealbook.nytimes.com/2014/01/15/after-crisisiceland-holds-a-tight-grip-on-its-banks/?_r=0.
110. See generally Michael Tonry, Introduction: Thinking About Punishment in WHY
PUNISH? HOW MUCH?: A READER ON PUNISHMENT 3, 14-18 (Michael Tonry ed., 2011).
111. Id.
112. Id. at 18-22.
113. Raymond Paternoster, How Much Do We Really Know About Criminal
Deterrence?, 100 J. CRIM. & CRIMINOLOGY 765, 774 (2010) (noting that the deterrence
model was fully revived in the late 1960s).
114. Joel Feinberg, The Expressive Function of Punishment in WHY PUNISH? HOW
MUCH?, supra note 110, at 111, 114 (discussing what the punishment expresses to a
community about itself and the difference between certain types of punishment, such as
the hanging of a traitor or the burning of a heretic).
115. See Adam Gopnik, The Caging of America: Why Do We Lock up so Many People?,
NEW YORKER (Jan. 30, 2012), http://www.newyorker.com/magazine/2012/01/30/thecaging-of-america.

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DRUG CRIMES AS WHITE COLLAR CRIMES?

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care.116 But what is clear from the mounds of research we now have is that
one cannot discuss mass incarceration without discussing drug offenders.
From 1980 to 2003, the number of drug offenders in prison rose 1100%.117
From 1980 to 2008, there were over thirty-one million arrests for drug
offenses.118 One in eight arrests now are for drug-related crimes.119 So
when we talk about any part of the criminal justice systemfrom arrest to
arraignment to sentencing to prisonwe must also talk about drug
offenders.
Interestingly, the criminal justice system has not been similarly
inundated with white-collar defendants.120 Jonathan Simon gives one
thesis for why street-level crime became the dominant political concern in
the United States over the last several decades, pointing to the impact of
the war on crime on the structure of the political and legal systems. 121
As a result of this war on crime mentality, street-level crime, particularly
drug crime, became a focal point of the governing through crime
regime.122 And poor and minority peoplethe historically discriminated
against[found] themselves on the worst end of all the changes driven by
governing through crime.123 .
So when we think about the deterrent effects of sentencing in the
criminal justice system, we have to think about the population that is being
swept up by the criminal justice system. And because deterrence is largely
based on the idea that some punishment for Individual A now will prevent
Individual B from committing the same crime down the road,124 we must
also explore the decision-making capacity of the populations who end up
incarcerated under our current sentencing schemes. Although this Article
is focused on federal sentencing, a survey of both the state and federal
defendant and prisoner populations is useful to get some scope of the
problem. In addition, many defendants cycle through both the state and
federal systems. It is not uncommon for a federal defendant on a drug case
to have previously been a state defendant in a drug case.125
116. See generally Osler & Bennett, supra note 63.
117. RYAN S. KING, THE SENTENCING PROJECT, DISPARITY BY GEOGRAPHY: THE WAR ON
DRUGS
IN
AMERICAS
CITIES
1
(2008),
available
at
http://www.sentencingproject.org/doc/publications/dp_drugarrestreport.pdf.
118. Id. at 2.
119. Id. at 4.
120. See UNITED STATES COURTS, supra note 77.
121. See generally SIMON, supra note 56.
122. Id.
123. SIMON, supra note 56, at 182.
124. See Bernick & Larkin, supra note 3.
125. MATTHEW R. DUROSE, ALEXIA D. COOPER & HOWARD N. SNYDER, DEPARTMENT OF
JUSTICE BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF PRISONERS RELEASED IN 30 STATES
IN
2005:
PATTERNS
FROM
2005
TO
2010
(2014),
available
at

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When the New York Times this year covered the brutality against
mentally ill inmates at the Rikers Island jail,126 it became clear to the
public that huge numbers of defendants in the criminal justice system
suffer from mental illness.127 Jails, in fact, provide mental health services
to a substantial number of Americans.128 To give some sense of the scope
of the issue, the three largest providers of mental health services in the
country are the L.A. County Jail, the Cook County Jail in Chicago and
Rikers Island in New York City.129 The situation is no less serious at state
and federal prisons, where 49% of state prisoners and 40% of federal
prisoners suffer from mental illness.130
But mental illness is only part of the problem (albeit a big part) when
we think about the drug offenders we are trying to deter with harsh
sentencing. There is also a high prevalence of drug abuse among

http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf (Overall, 67.8% of the 404,638

state prisoners released in 2005 in 30 states were [re]arrested within 3 years of release, and
76.6% were arrested within 5 years of release.).
126. Michael Winerip & Michael Schwirtz, Rikers: Where Mental Illness Meets
Brutality
in
Jail,
N.Y.
TIMES
(July
14,
2014),
http://www.nytimes.com/2014/07/14/nyregion/rikers-study-finds-prisoners-injured-byemployees.html.
127. See generally SIMON, supra note 56. The prevalence of a symptom of a psychotic
disorder among jail inmates is even higher than that of state prison inmates. Id. (An
estimated 15% of State prisoners and 24% of jail inmates reported symptoms that met the
criteria for a psychotic disorder.) Because these numbers measure only prison and jail
inmates, however, they do not include the incidence of mental illness among those
defendants who either are not convicted or are convicted but not sentenced to
imprisonment. Id. at 1186 n.219 (citation omitted). There is, of course, also a large
percentage of defendants who have overlapping substance abuse and mental health issues.
See also The Prevalence of Co-Occurring Mental Illness and Substance Use Disorders in
Jails, NATL GAINS CTR. FOR PEOPLE WITH CO-OCCURRING DISORDERS IN THE JUSTICE
SYSTEM
2
(2002
&
2004
rev.),
http://gainscenter.samhsa.gov/pdfs/disorders/gainsjailprev.pdf.
128. Nations Jails Struggle with Mentally Ill Prisoners, (NPR radio broadcast Sept. 4,
2011), http://www.npr.org/2011/09/04/140167676/nations-jails-struggle-with-mentallyill-prisoners.
129. Id. Mayor Bill de Blasio of New York City has just made it a priority of his tenure
to deal with the revolving door of mentally ill defendants coming through the criminal
justice system. This group is particularly comprised of low-level drug offenders. See
generally CITY OF NEW YORK MAYOR BILL DE BLASIO, MAYORS TASK FORCE ON
BEHAVIORAL HEALTH AND THE CRIMINAL JUSTICE SYSTEM: ACTION PLAN 2014 (2014)
(finding that 38% of prisoners in Rikers Island suffer from a mental health disorder and
that 85% of this population are reported substance abusers).
130. DORIS J. JAMES & LAUREN E. GLAZE, U.S. DEPT OF JUSTICE BUREAU OF JUSTICE
STATISTICS, MENTAL HEALTH PROBLEMS OF PRISON & JAIL INMATES 3 (2006), available at
http://www.bjs.gov/content/pub/pdf/mhppji.pdf.

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DRUG CRIMES AS WHITE COLLAR CRIMES?

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defendants.131 Many of the defendants who peddle drugs also abuse drugs.
Fifty percent of federal inmates report using illegal drugs in the month
before their incarceration.132 This makes it difficult to differentiate the
victims from the villains in the drug trade. And although there have
been some efforts to provide drug treatment as both a sentencing
measure133 and a service offered in prison,134 treatment is still rarely
administered to drug defendants.135 This is not to say that drug use makes
131. TINA L. DORSEY, U.S. DEPT OF JUSTICE BUREAU OF JUSTICE STATISTICS, DRUGS
CRIME FACTS (2010), http://www.bjs.gov/content/pub/pdf/dcf.pdf. In a 2004 study,
17% of state prisoners and 18% of federal inmates reported that the offense they were
currently incarcerated for was committed for the purpose of obtaining money for narcotics.
Id. The same study found that 32% of state prisoners and 26% of federal prisoners said
they had committed their current offense while under the influence of drugs. Id.
132. Christopher J. Mumola & Jennifer C. Karberg, U.S. DEPT OF JUSTICE BUREAU OF
JUSTICE STATISTICS, DRUG USE AND DEPENDENCE, STATE AND FEDERAL PRISONS, 2004 3
(2006), available at http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf.
133. See, e.g., Mosi Secret, Outside Box, Federal Judges Offer Addicts a Free Path,
N.Y. TIMES (March 1, 2013), http://www.nytimes.com/2013/03/02/nyregion/us-judgesoffer-addicts-a-way-to-avoid-prison.html?pagewanted=all&_r=0 (noting efforts to divert
drug defendants into programs and way from incarceration at the federal level); Drug
Treatment
Courts,
NEW
YORK
STATE
UNIFIED
COURT
SYSTEM,
http://www.nycourts.gov/courts/problem_solving/drugcourts/overview.shtml (last visited
Mar. 23, 2015) (detailing state resources and giving an explanation of New Yorks drug
courts; SUPERIOR COURT CRIMINAL DIVISION, A GUIDE TO SPECIAL SESSIONS &
DIVERSIONARY
PROGRAMS
IN
CONNECTICUT
5
(2013),
http://www.jud.ct.gov/Publications/cr137P.pdf (detailing state resources and giving an
explanation of Connecticuts drug courts) Superior Court: Our Drug Program, DEL. ST.
CTS. http://courts.delaware.gov/superior/drug.stm (last visited Mar. 23, 2015) (detailing
state resources and giving an explanation of Delawares drug courts); Drug Courts, CAL.
CTS.: JUD. BRANCH CAL., http://www.courts.ca.gov/5979.htm (last visited Mar. 23, 2015)
(detailing state resources and giving an explanation of Californias drug courts).
134. See, e.g., Substance Abuse Treatment, FED. BUREAU PRISONS,
http://www.bop.gov/inmates/custody_and_care/substance_abuse_treatment.jsp
(last
visited Apr. 2, 2015) (giving an overview of the Federal Bureau of Prisons substance abuse
treatment program); Drug Treatment Alternatives to Prison (DTAP) Program, N.Y. ST.
OFF.
ALCOHOLISM
&
SUBSTANCE
ABUSE
SERVICES,
https://www.oasas.ny.gov/cj/alternatives/DTAP.cfm (last visited Apr. 2, 2015) (giving an
overview of New Yorks program); Rehabilitation Programs Division: Substance Abuse
Treatment
Program,
TEX.
DEPT
CRIM.
JUST.,
http://tdcj.state.tx.us/divisions/rpd/rpd_substance_abuse.html (last visited Apr. 2, 2015)
(giving an overview of Texass program); Prison Life - Substance Abuse Treatment, WASH.
ST. DEPT CORRECTIONS, http://www.doc.wa.gov/family/offenderlife/substanceabuse.asp
(last visited Apr. 2, 2015) (giving an overview of Washingtons program); Department of
Correction:
Treatment
Services,
ST.
DEL.,
http://www.doc.delaware.gov/treatmentServices.shtml (last visited Apr. 2, 2015) (giving
an overview of Delawares program).
135. See, e.g., New Casa Report Finds: 65% of All U.S. Inmates Meet Medical Criteria
for Substance Abuse Addiciton, Only 11% Receive Any Treatment, NATL CENTER ON
ADDICTION & SUBSTANCE ABUSE COLUM. UNIV.
(Feb.
26,
2010),
AND

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an individual incapable of rational decision-making. There is, in fact,

conflicting literature about the effect of substance abuse on the ability of
users to make rational choices.136 But certainly the immediate effects of
drugs and alcohol affect an individuals ability to perceive the risk of his
behavior.137 This, in turn, minimizes the potential deterrent impact of long,
mandatory sentences.138
There are also profound issues with a lack of education among people
cycling through the system.139 About 40% of the nations prisoners have
not completed high school, compared to just under 20% for the population
generally.140 A defendants lack of education has a number of potential
impacts, particularly on his employment prospects.141 This
disenfranchisement from the educational system also leads to other forms
of disconnect between the individual and his community. A commitment
to community is critical for deterrence to work effectively.142

http://www.casacolumbia.org/newsroom/press-releases/2010-behind-bars-II (noting that

while 65% of U.S. Inmates meet the medical criteria for having a substance abuse
addiction, only 11% actually receive treatment).
136. Linda Fentiman, Rethinking Addiction: Drugs, Deterrence, and the Neuroscience
Revolution, 14 U. PA. J.L. & SOC. CHANGE 233, 246-250 (2011) (discussing the conflicting
research on whether or not drug addicts actually choose to continue or drug use or whether
there are fundamental changes in brain chemistry that prevent choice).
137. See Student Handbook 20142015: Health Risks of Alcohol and Other Drugs,
BRIDGEWATER
ST.
U.,
http://www.handbook.bridgew.edu/RighttoKnow/HealthRisksofAlcoholandOtherDrugs.c
fm (last visited Apr. 2, 2015) (discussing how drugs and alcohol can impair a persons
judgment).
138. Fentiman, supra note 136, at 267.
139. See CAROLINE WOLF HARLOW, U.S. DEPT JUST. BUREAU OF JUST. STATISTICS,
EDUCATION
AND
CORRECTIONAL
POPULATIONS
1
(2003),
http://www.bjs.gov/content/pub/pdf/ecp.pdf.
140. Id. (About 41% of inmates in the Nations State and Federal prisons and local jails
in 1997 and 31% of probationers had not completed high school or its equivalent. In
comparison, 18% of the general population age 18 or older had not finished the 12th
grade.).
141. See Richard Haass & Klaus Kleinfeld, Column: Lack of Skilled Employees Hurting
Manufacturing,
USA
TODAY
(July
3,
2012,
3:56
PM),
http://usatoday30.usatoday.com/news/opinion/forum/story/2012-07-02/public-privatemanufacuting/56005466/1.
142. Fentiman, supra note 136, at 262 ([P]otential offenders are less likely to respond
to changes in the severity or certainty of sanctions if they do not share the communitys
value system--i.e., they dont believe the conduct is morally wrong or do not have high
stakes in conventionality. The threat of a criminal sanction is most likely to be effective
for those who wish to be seen by others as law-abiding, as well as those who have the most
to lose from being convicted and sentenced to prison. (alteration in original) (footnote
omitted)).

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There is also the issue of poverty. Contrary to the myth of the drug
king pin, drug offenders tend to be poor.143 Most drug dealers are not Avon
Barksdale, the infamous drug lord who controlled most of the West
Baltimore drug trade on the T.V. show, The Wire.144 Instead, most dealers
are the corner kids portrayed on the showyoung men, who live from
payout to payout on the work they do as drug runners, look outs or
expendable muscle for someone higher up the ladder.145 For this much
larger group of drug offenders, poverty is a constant that affects nearly
every aspect of their lives, including the ability to make long-term
decisions.146
Indeed an increasing amount of literature suggests that any discussion
about deterrence has to deal with the implications of poverty on decisionmaking. For instance, a new study by a team of economists and
psychologists indicate that poverty can negatively impact cognitive
function.147 As the study notes, [new] data . . . suggest[s] a different
perspective on poverty: Being poor means coping not just with a shortfall
of money, but also with a concurrent shortfall of cognitive resources. The
poor, in this view, are less capable not because of inherent traits, but
because the very context of poverty imposes load and impedes cognitive
capacity.148 In the study, the authors found that individuals in poverty
actually have more difficulty with mental processes, even where the
mental process was not about money itself.149
As a drug dealer, then, you are often making short-term decisions that
may also be irrational. This is quite in contrast to white-collar defendants
who are not dealing with day-to-day poverty and are usually hired for their

143. MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 203 (2010) (noting that the War on Drugs has been waged primarily
against nonviolent, low-level offenders in poor communities of color[ ] and that the real
kingpins can often buy their freedom by forfeiting their assets, among other options).
144. See Avon Barksdale, HBO: THE WIRE, http://www.hbo.com/the-wire/cast-andcrew#/the-wire/cast-and-crew/avon-barksdale/index.html (last visited Apr. 2, 2015).
145. ALEXANDER, supra note 143, at 59 (noting that one myth of the War on Drugs is
that the war is aimed at ridding the nation of drug kingpins . . . . when in reality the vast
majority of those arrested are not charged with serious offenses); see also Susan A.
Bandes, And All the Pieces Matter: Thoughts on The Wire and The Criminal Justice
System, 8 OHIO. ST. J. CRIM. L. 435, 439-40 (discussing how the The Wire is located within
a broader conversation about the criminal justice system and how the show specifically
gets at the conflict between kingpins and pawns, or lower-level players in the drug
market).
146. See infra notes 147149.
147. Anandi Mani et al., Poverty Impedes Cognitive Function, 341 SCI. MAG. 97680
(2013).
148. Id. at 980.
149. Id.

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ability to think strategically.150 In fact, we see the exact opposite trends

among white-collar defendants.151 They tend to have tremendous access to
money, education, and the formal legal and political bodies in the
country.152 Telling, even with these benefits, some studies show the white
collar defendants also do not respond well to deterrent criminal
enforcement strategies.153
This not to say that the cost of drug dealing is nil. In fact, as we noted
in Part II.B.4, the cost is quite high for drug addicts and for the individuals
and neighborhoods who are affected by the market for drugs.154 Again, we
do not seek to minimize the harmful effect of narcotics on those whose
lives are disrupted by their addictions or the communities in which drug
dealing leads to violence, or at the very least, unstable conditions. But
generally, narcotic offenses in the aggregate, and certainly at the
individual level at which they are punished, tend not jeopardize the safety
of our national institutions.155 They do not threaten to disrupt the channels
of finance and commerce. In contrast, white-collar crime in the aggregate
and even in individual cases poses just such a threat.156 That the
perpetrators of these crimes would face significantly lesser sentences, both
by law and in practice, than those charged with dealing drugs, forces an
acknowledgement that our criminal justice system is getting things exactly
wrong, and the criminal justice systems wrongheaded focus on deterring

150. Cf. SHOVER & HOCHSTETLER, supra note 5, at 3 ([W]hite-collar criminals generally
behave more rationally than street offenders; the latter routinely choose to offend in
hedonistic contexts of street culture where drug consumption and the presence of other
males clouds judgment and the ability to calculate beforehand. Many white-collar workers
by contrast live and work in worlds that promote, monitor, and reward prudent decision
making. They are significantly older to boot and more capable, presumably, of exercising
the greater care and caution of persons with some maturity.).
151. See id.
152. TERRY L. LEAP, DISHONEST DOLLARS: THE DYNAMICS OF WHITE-COLLAR CRIME 5
(2007) (noting that white collars criminals have access to power, money, and resources);
see also Pamela Bucy Pierson, Rico, Corruption, and White-Collar Crime, 85 TEMP. L.
REV. 523, 539 (noting that white collar defendants unlike most defendants charged with
street crimes, have assets); Gerald Cliff & Christian Desilets, White Collar Crime: What
It Is and Where Its Going, 28 NOTRE DAME J. L. ETHICS & PUB. POLY 481 48287 (tracing
the evolving definitions of white collar crime and criminals).
153. Szockyj, supra note 100, at 492 (reviewing the empirical research on deterrence
and white-collar crime).
154. See supra Part II.B.4.
155. The costs of drug abuse more generally do, however, have economic consequences.
U.S. DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION, NATIONAL DRUG
THREAT ASSESSMENT SUMMARY (2013), http://www.dea.gov/resource-center/DIR-01713%20NDTA%20Summary%20final.pdf.
156. See supra note 100.

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drug crimes through long sentences is a culprit in this mess and needs to
be examined.
As Darryl K. Brown notes, one reason for the incredible disparity
between white-collar and street crime may be because our white-collar
crime policy has a much better mix of regulatory strategies, civil remedies,
and criminal sanctions than our street crime policy does.157 This has been
backed up by other research that shows that white-collar defendants
benefit in the criminal justice system not from class advantage, but rather
from the availability of alternative forms of punishment.158 As Susan
Shapiro noted in her study on the subject, any apparent discrimination
against lower status offenders in prosecutorial discretion is more readily
explained by greater access to legal options than social standing.159 As
early as 1980, Richard Posner argued that white-collar crime is best
controlled through monetary sanctions rather than traditional criminal
sanctions.160 This view seems to have taken hold with those prosecuting
white-collar criminals.
A mixture of political and legal forces was at work in separating the
treatment of white-collar crime from narcotics crimes in the criminal
justice system. As we argue in the next section, we believe that a multilayered approach that takes into account the profit-motive of each is the
best idea for treating both white-collar and drug crimes. The deterrent
strategies that have taken center stage in last quarter century do not work,
and it is time for them to be discarded.
IV.

REAL-LIFE REFORM

The authors here are not proposing that people simply think about
drug-dealing as a white-collar crime; we want federal law to treat narcotics
as a white-collar crime by merging the narcotics and fraud sentencing
guidelines and amending the principle federal narcotics statute so that it
better reflects the reality of narcotics trafficking as a crime enmeshed in
business.

157. Darryl K. Brown, Street Crime, Corporate Crime, and the Contingency of Criminal
Liability, 149 U. PA. L. REV. 1295, 1298 (2001).
158. Susan Shapiro, Collaring the Crime, Not the Criminal: Reconsidering the Concept
of White-Collar Crime, 55 AM. SOC. REV. 346 (1990).
159. Id. at 361-62.
160. Richard Posner, Optimal Sentences for White-Collar Criminals, 17 AM. CRIM. L.
REV. 409, 547-73 (1980).

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A. Sentencing Guidelines
In an intriguing development, the United States Sentencing
Commission has proposed crucial changes to the way that some whitecollar crimes are sentenced. Currently, the severity of a fraud is largely
measured (and the guideline sentence determined by) the amount that
victims lose because of the fraud.161 Under the proposed change, the
severity would be gauged instead by the amount that the defendant gained
through the fraud.162 This change may be limited to certain types of fraud,
particularly fraud on the market, where there is no specific victim.163
This shift provides an opportunity to rethink narcotics sentencing as
well. We propose that that the guidelines for narcotics be combined with
guideline section 2B1.1, which is used for fraud and many other whitecollar crimes.164 Rather than rely on the weight of narcotics involved to
determine culpability in drug casesa technique that primarily drives up
sentences for mules and other low-level functionaries to ridiculous
levels165the profit taken from the drug business by an individual
defendant would establish culpability. By treating drug crimes in this way,
we would more accurately punish those who are responsible for the drug
trade and those who benefit from it. We predict that the outcomes would
be more effective and fairer than they are now. Indeed, treating drug
crimes as business crimes makes a lot of sense.
B. Statutory Changes
The primary federal law that extends broad jurisdiction to federal
courts over even low-level drug trafficking is 21 U.S.C. 841, which bars
the manufacture and distribution of narcotics.166 The bones of this law
dont have to change; we are not seeking the legalization of narcotics.
Instead we need to take out the deterrence tools from our sentencing
toolboxthe mandatory minimums and exorbitant maximum sentences
that have been proven failures.

161. U.S. SENTENCING GUIDELINES MANUAL 2B1.1(b)(1) (2014).

162. Nate Raymond, U.S. Panel Proposes Changes to White-Collar Prison Sentences,
REUTERS, (Jan. 12, 2015, 1:05 PM) http://www.reuters.com/article/2015/01/12/usa-fraudsentencing-idUSL1N0UR1R020150112.
163. See PATTI B. SARIS, UNITED STATES SENTENCING COMMISSION, Remarks for Public
Meeting (January 9, 2015), http://www.ussc.gov/sites/default/files/pdf/amendmentprocess/public-hearings-and-meetings/20150109/Remarks.pdf.
164. See supra note 161 and accompanying text.
165. Mark Osler, We Need Al Capone Drug Laws, N.Y. TIMES (May 4, 2014),
http://www.nytimes.com/2014/05/05/opinion/we-need-al-capone-drug-laws.html?_r=0.
166. 21 U.S.C.A. 841 (West 2014).

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In short, 21 U.S.C. 841(b), which provides the remarkably complex

formula for penalties in narcotics cases,167 should be swept away and
replaced with a simple maximum sentence (i.e., thirty years, as with mail
and wire fraud)168 for violating the narcotics trafficking laws. For
especially severe offenders who run large operations involving violence,
21 U.S.C. 848 provides for sentences up to life (or even the death
penalty), and prosecutors can pursue that route with these most-serious
offenders.169
This simple change would make the narcotics trafficking law
consistent with the laws which cover white-collar crimes, like fraud. For
example, mail fraud carries a twenty-year maximum sentence (and no
minimum) under 18 U.S.C. 1341,170 as does wire fraud (18 U.S.C.
1343), except in cases involving financial institutions or disaster relief,
which bumps it up to thirty years.171 Bank fraud (18 U.S.C. 1344) simply
carries a thirty-year maximum.172 None of these statutes contain the messy
and counter-productive thresholds and bumps that complicate 21 U.S.C.
841.173
V. CONCLUSION
If mass incarceration as a solution to drug crime is fading under the
weight of its own failure, something must rise to take its placeand that
something needs to both make sense and be palatable to the American
public. A move toward treating drug crimes like business crimes would
accomplish both goals. First, it makes sense to replace the current system,
which was largely shaped by emotion and anecdotal evidence about
addiction, with one that is actually tethered to the economic realities of the
drug trade. Second, this is a proposal which is palatable to the public
because it acknowledges the real harm caused by drug trafficking and
keeps in place meaningful, but fair, penalties for those who benefit most
from selling drugs. We will not get rid of drugs, but we can lessen the harm
that has been caused by a misunderstanding of the true nature of drug
crimes themselves.

167. Id. 841(b).

168. 18 U.S.C.A. 1341, 1343.
169. 21 U.S.C. 848 would require some amendment, since it refers to the threshold
amounts described in 21 U.S.C. 841(b).
170. 18 U.S.C.A. 1341.
171. Id. 1343.
172. Id. 1344.
173. See supra notes 167, 17072 and accompanying text.