Pubdate: Sat, 14 Sep 2013
Source: Minneapolis Star-Tribune (MN)
Copyright: 2013 Star Tribune
Contact: http://www.startribunecompany.com/143
Website: http://www.startribune.com
Details: http://www.mapinc.org/media/266
Author: Mark Osler
Note: Mark Osler is a law professor at the University of St. Thomas 
and a former federal prosecutor.

IF NOT INCARCERATION IN THE DRUG WAR, THEN WHAT? (GO AFTER THE CASH.)

In August, Attorney General Eric Holder signaled a striking change in 
federal narcotics policy.

For the first time in decades, the Department of Justice took 
concrete steps to reduce the use of long-term prison sentences in the 
fight against illegal drugs.

Holder seems to really believe in the cause, too; in an Aug. 12 
speech to the American Bar Association, he asserted that "widespread 
incarceration at the federal, state, and local levels is both 
ineffective and unsustainable."

The bare fact that the attorney general of the United States is 
taking such a strong position would be more remarkable but for the 
fact that several states have already acted to reduce the long-term 
incarceration of nonviolent narcotics defendants. Even Rick Perry's 
Texas has already done the hard work of thinning the ranks of 
low-level drug offenders in Lone Star State prisons.

Holder (and Texas) are right, of course.

It is now well-established that mass incarceration is at best an 
inefficient way to fight illegal narcotics.

Stepping back from a wasteful program that provides little social 
benefit is a wise thing.

A pressing question remains, though: If not mass incarceration, what 
tactic will we use to address drug trafficking?

In relation to marijuana, the answer is fairly clear.

Like it or not, marijuana legalization for nonmedicinal purposes is a 
reality in two states, and support for marijuana prohibition is 
collapsing. As in the case of same-sex marriage, our society has 
shifted significantly on this issue, moving toward liberty as people 
conclude that the social costs involved are relatively small.

The same can't be said, though, of heroin, cocaine, methamphetamine, 
PCP, or a host of other strong narcotics.

Americans don't, and probably won't, support the legalization of 
these drugs, and they are right to resist the idea. The social costs 
of these drugs are just too high.

So, if not incarceration or legalization, what are we to do about 
narcotics? The answer flows from a review of what went wrong so far 
in the "war on drugs." At the core of the failure of mass 
incarceration to stem narcotics trafficking is a simple economic 
truth: You can't shut down a business in a labor-rich economy by 
restricting low-wage labor.

There is an inexhaustible supply of people to take those "jobs" as 
others are arrested.

The barriers to entry in the field of drug dealing are very low; all 
that is required is a willingness to break the law, and a large 
number of people possess that quality.

To shut down any business, what you need to do is cut off cash flow and credit.

Because illegal businesses have very limited access to credit, cash 
flow is everything. To shut them down, we need to use existing 
forfeiture law to intercept wire transfers or bundles of cash as they 
return to the source of the drugs.

To date, that simply has not been a primary focus of our antidrug efforts.

Instead of sweeping up the cash flowing back to suppliers, we have 
swept up the low-wage labor and the product itself.

It hasn't worked because labor and product can be replaced - so long 
as there is cash flow.

Some may be confused at this point, remembering photos of the houses 
and cars seized from drug dealers.

The problem is that those things are assets - stuff bought with the 
profits of drug businesses - not the cash flow to suppliers that 
sustains such a business. Fortunately, we now have a cadre of people 
who are very good at interdicting cash flow: the FBI agents who have 
become skilled at intercepting money intended to support terrorism.

We need to retask some of them and train others to focus on the money 
stream going back to big-time narcotics suppliers.

An added bonus is that such efforts are revenue-positive, since the 
government gets to keep the money. Quite a change from the financial 
sinkhole of mass incarceration!

The mistake that led us to this moment was made in the 1980s. At that 
time, the United States was faced with two public health disasters: 
AIDS and crack cocaine.

Both could have been addressed through moral crusades, but with AIDS 
we took a different tack. It was a biological problem, so we hired 
people skilled in biology to solve it, and they did. With crack, we 
did not hire businesspeople to similarly address a problem of business.

Instead, we treated it as a problem of morality requiring broad 
punishment. As a result, we labeled millions of people as immoral, 
but failed to solve the problem.

As we step away from mass incarceration, this is the time to step 
toward a business focused solution to narcotics.

The moral crusade may be over, but our concern about illegal 
narcotics should not be. We can, and should, do something about hard 
drugs by grabbing cash instead of people.
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MAP posted-by: Jay Bergstrom