INTERNACIONAL ANTI-DRUG POLICIES AND CORRUPT PUBLIC-PRIVATE COALITIONS: PERSPECTIVES FROM A CRIMINOLOGY OF THE GLOBAL SOUTH*
Políticas internacionales antidrogas y coaliciones corruptas público-privadas: perspectivas desde una criminología del sur global
Políticas internacionais antidrogas e coalizões corruptas público-privadas: perspectivas desde uma criminología do sul global
Bernardo Pérez1
Germán Silva2
* DOI: https://doi.org/10.18601/01245996.v26n51.07. Esta investigación no recibió ninguna subvención específica de agencias de financiación del sector público, comercial o sin fines de lucro. Recepción: 16-05-2023, aceptación: 31-05-2024. Sugerencia de citación: Pérez-Salazar, B., & Silva García, G. (2024). International anti-drug policies and corrupt public-private coalitions: perspectives from a criminology of the global south. Revista de Economía Institucional, 26(51), 139-163.
1 Doctor en Educación. Maestría en Planificación del Desarrollo Regional. Docente e investigador, Facultad de Derecho, Universidad Católica de Colombia, grupo de investigación en Conflicto y Criminalidad. [bperezs@ucatolica.edu.co].
2 Doctor en Sociología. Maestría en Sistemas Penales y Problemas Sociales. Decano e investigador, Facultad de Derecho, Universidad Católica de Colombia, grupo de investigación en Conflicto y Criminalidad. [gsilva@ucatolica.edu.co].
Abstract.
Criminal structures running international drug trafficking in the Western Hemisphere are mischaracterized and misinterpreted by international anti-drug policies and strategies. Their characterization as cartels and the role they allegedly play in the international drug trafficking and value chain is based on misleading ideological premises disseminated by politicians, mass media and law enforcement agencies. Simultaneously, international anti-drug policies reward official law enforcement agencies with ongoing expansion of their powers and budgets to conduct extraterritorial interventions, increasing organized violence, corruption and trampling on fundamental rights and liberties. More fertile guidelines for international anti-drug policies in the future are discussed in the conclusions.
Keywords: Crime; International drug trafficking; Law enforcement; Corruption; Criminology of the Global South.
Declaration of conflict of interests: Germán Silva-García and Bernardo Pérez-Salazar declare none. This research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors.
Resumen.
Las estructuras criminales que manejan el tráfico internacional de drogas en el hemisferio occidental están mal caracterizadas e interpretadas en las políticas y estrategias internacionales antidrogas. Su caracterización como cárteles y el papel que presuntamente desempeñan en el tráfico internacional de drogas y la cadena de valor se basa en premisas ideológicas engañosas difundidas por políticos, medios de comunicación y organismos de control penal. Al mismo tiempo, las políticas internacionales antidrogas recompensan a los organismos oficiales de control penal con la expansión continua de sus poderes y presupuestos para llevar a cabo intervenciones extraterritoriales, aumentando la violencia organizada, la corrupción y la infracción de los derechos y libertades fundamentales. En las conclusiones se discuten directrices más fértiles para las políticas internacionales antidrogas en el futuro.
Palabras clave: Crimen; Tráfico internacional de drogas; Aplicación de la ley; Corrupción; Criminología del Sur Global.
Resumo.
As estruturas criminosas que controlam o tráfico internacional de drogas no hemisfério ocidental estão mal caracterizadas e interpretadas nas políticas e estratégias internacionais antidrogas. Sua caracterização como cartéis e o papel que supostamente desempenham no tráfico internacional de drogas e na cadeia de valor baseiam-se em premissas ideológicas enganosas difundidas por políticos, meios de comunicação e órgãos de controle penal. Ao mesmo tempo, as políticas internacionais antidrogas recompensam os órgãos oficiais de controle penal com a expansão contínua de seus poderes e orçamentos para realizar intervenções extraterritoriais, aumentando a violência organizada, a corrupção e a violação dos direitos e liberdades fundamentais. Nas conclusões, discutem-se diretrizes mais férteis para as políticas internacionais antidrogas no futuro.
Palavras-chave: Crime; Tráfico internacional de drogas; Aplicação da lei; Corrupção; Criminologia do Sul Global.
INTRODUCTION
The criminology of the Global South criticizes narratives predominant in the Global North based on analytical categories that are not necessarily applicable to the realities of criminal offenses and law enforcement in peripheral parts of the globe (Carrington, Dixon, Fonseca, Rodríguez Goyes, Liu, & Zysman, 2019.; Dimou; 2021). It also promotes alternate worldviews to address these issues in contexts of the Global South (Silva-García, Irala & Pérez-Salazar, 2020). However, the criminology of the South has been coy to point out deficiencies of the specific analytical categories used in the predominant narratives of the Global North, as well as to advance proposals to replace them with better suited categories.
International drug trafficking is a major issue of the global public agenda and as such is considered a crime of the powerful (Barack, 2015). It is a dynamic phenomenon shaped and transformed by definitions coined in international anti-drug policies. In the latter part of the 20th century, institutional, academic, and international addresses concerning this matter considered production, trafficking, and distribution of drugs as a criminal value chain governed by cartels. Consequently, international anti-drug policies held at its core the long-prescribed remedy of internationally coordinating law enforcement efforts to dismantle these alleged cartels.
Already in the 90s, several authors questioned the presence of criminal structures resembling cartels in the international drug trafficking business. Coming from different places, their conclusions converged. Astorga (1995; 1996) and Thoumi (1994), on the one hand, based their discussions on a common use of the notion of cartel, understood as a pre-agreement between several economic units to avoid mutual competition by colluding to regulate the production, sale, and prices in a certain business. Silva-García (1997), based his challenge on the definition of a cartel referred to as an organization that holds monopolistic control over the processes of production, distribution and sales of a product or service. This article adopts the use of this term in the latter sense for three reasons. First, it clearly coincides with the meaning attributed to the term in early official U.S policy documents that coined the term to describe and frame the problem of international drug trafficking. Second, both in Colombia and Mexico, competing so-called drug cartels during the 1980's and 1990's were far from making pacts to regulate competition among themselves, and instead were engaged in fierce internecine fights to annihilate each other. Third, because government and law enforcement agencies permanently presented these cartels as monolithic hierarchical structures with a cadre of managers under the command of a boss, and not as business units working in collusive networks.
The mere existence of two rival cartels (Medellín and Cali) in Colombia during the 1980's and 1990's refuted any characterization of these competing criminal structures as cartels (Thoumi, 1994). Besides, illicit businesses under permanent pressure by law enforcement agencies are hardly able to acquire the formal, stable, and permanent structure of a rigid organizational hierarchy of cartels as portrayed by political and law enforcement leaders as well as by the media (Krauthausen & Sarmiento, 1991). Likewise, the continuity of the drug trafficking business even after killing Pablo Escobar and taking down the Rodríguez Orejuela brothers' ring in the early and mid-1990's, evidently shows that there was no monopolistic control of international drug trafficking in their time (Silva-García, 1997). Cocaine prices remained stable in the U. S. after the liquidation of these two groups, as shown in a report about cocaine street prices between 1981 and 2003 in major U.S. cities providing evidence that there were no cartels centrally controlling international cocaine traffic, nor were there any shortages of supplies in terminal markets run by tens of hundreds of operators (Walsh, 2008).
Critics agree that the cartel characterization is a political fiction reinforced by the media, created to inspire fear among the public of these tough structures with awesome economic power and no scruples. They also highlight that this narrative conveniently endorses the need for law enforcement agencies endowed with overwhelming powers and material capabilities to subdue this formidable threat. Other scholars have reached similar conclusions based on different empirical investigations related to drug traffickers operating in Latin American countries (Zaitch, 2002; Labrousse, 2003; Astorga, 2007; Pérez-Salazar, 2007; Dudley, 2008; Ávila & Pérez- Salazar, 2011; Durán-Martínez, 2017; Zavala, 2018).
Yet, even though drug trafficking has been traced to internationally dominant states (Brisman, 2006), in the U.S., México, Colombia and the rest of the Western Hemisphere, governments and law enforcement agencies persist referring the cartels as the criminal structures that successfully continue to expand this illicit activity around the globe. Therefore, it seems timely to review both the institutional and academic discourses that inform national and international anti-drug policies.
DRUG CARTELS
Among the first published references to drug trafficking structures that used the term cartel is an article titled "Declaring War on Organized Crime", published in The New York Times Magazine in January 1986, signed by then U.S. President Ronald Reagan. The article describes numerous felonies committed by criminal structures in the U.S., including money laundering, bribery and corruption of law enforcement officials, extortion, and international drug trafficking, among others. To refer to the criminal structures involved with these crimes, Reagan uses multiple terms such as gangs, mobs, mafias -Cosa Nostra-, and crime syndicates. However, he only once uses the term cartel and reserves it specifically to refer to foreign drug trafficking structures (Reagan, 1986).
A careful reading of the presidential article reveals that the attribution of responsibility for the harm caused by organized crime structures in the U.S. was not solely directed against domestic criminal organizations, but mainly against foreign criminal structures based in other countries and continents, including South America and East Asia. In closing his article, Reagan urged the American public to surround and hold their authorities accountable for actions to prosecute these criminal organizations in their attempt to corrupt both the financial system through money laundering and law enforcement agencies by means of bribery.
Regan's article inaugurated the demonization of drugs and foreign criminal structures in the U.S. The effort to recruit international cooperation to help control and eradicate this "evil threat" became a U.S. foreign policy priority. Taking aim at the international drug trafficking cartels, the U.S. aggressively exported the main tenets of its criminal policy to the rest world, including universal legalization of wiretapping, the use of informants and undercover agents to obtain evidence, as well as extradition of drug trafficking bosses to prosecute them and seize their assets to finance U.S. law enforcement and judicial capacity building (Andreas and Nadelmann, 2006; Andreas, 2011).
Colombian international drug trafficking structures became the paradigmatic definition of a cartel in the international anti-drug policy discourse. Academic circles followed suit, disproportionately exaggerating the monopolistic powers of the so-called Colombian drug cartels. In the 1990's, the Helsinki-based European Institute for Crime Prevention and Control reported that Colombian drug cartels had forged relationships with armed groups in the Andean countries of South America, including the Revolutionary Armed Forces of Colombia (FARC) and Sendero Luminoso in Peru, which allegedly became their regional subsidiaries to expand cropping areas and provide raw materials for processing cocaine and heroin in sufficient quantities to satisfy global markets in North America, Europe and the Far East. Likewise, the Finnish crime prevention and control experts warned that the Colombian cartels allegedly sponsored the transformation of Mexican criminal gangs into consolidated cartels to enable them to operate drug trafficking routes into the U. S. Furthermore, they assured that Colombian cartels had allegedly revolutionized the cocaine markets in the U.S. by introducing new products such as crack (a cooked mixture of cocaine laced with sodium bicarbonate that cheapened the drug's street price in depressed economic neighborhoods in large U.S. cities) and, simultaneously had developed new markets for cocaine in European cities in hand with Italian mafias and other European criminal organizations. Many authors and experts expressed cursory acceptance of policies based on the premise that monopolistic cartels dominated the global drug trafficking trade (Adamoli, Di Nicola, Savona, and Zoffi, 1998; Sullivan & Bunker, 2002; Langton, 2012; Flanigan, 2012; Alasmari, 2012; Medina-Gallego, 2012; Bagley, 2013; Cordero, 2013; Hesterman, 2013; Pontón, 2013; Gutiérrez-Romero & Oviedo León, 2014; Rosen & Zepeda Martínez, 2015; Niño, 2016; Bergman, 2016).
Analysts with more nuanced understanding of Latin American drug trafficking outfits offer a different outlook. Research based on insider informants show that in the case of Colombia, the relationships between the drug trafficking structures controlled by Pablo Escobar and Gonzalo Rodríguez-Gacha entered violent conflict with the FARC insurgency from the second half of the 1980s, which led to in the extermination of the Patriotic Union, a legal political party pursuing part of FARC's programmatic agenda (Dudley, 2008). Concerning Mexico, Astorga (1995) has documented in detail the operation of Mexican structures devoted to the production and trafficking of marijuana to the U.S. since the 1940s, long before any Colombian criminal structure had contact with them. Angelica Durán-Martínez (2018) discusses the use of violence by criminals to regulate transactions in illicit drug markets among rivals and shows that the amount of violence exhibited in these contexts depends on the cohesion of enforcement agencies in their response towards trafficking. Criminal violence will be less visible when consistent protection is ensured by cohesive enforcement agencies or when retaliation is feared by criminal rings. In contrast, fragmented responses by law enforcement agencies that do not guarantee predictable protection weakens their incentives to avoid exposing their use of violence.
Similarly, there are countless U.S. court documents that show that drug trafficking from Colombia to the U.S. was an openly competitive business, managed by microentrepreneurs and freelancers some of whom were prosecuted by U.S. law enforcement in the 1970s (Sáenz, 2014). Thus, the idea that corner drug hustlers in the U.S. were directly controlled by Colombian or Mexican cartel bosses is just as ludicrous as claims that attributing the crack crises to the ingenuity of Colombian drug trafficking cartels, which are plainly naïve. Lacing cocaine with assorted substances to make it cheaper on the streets in large cities has been a universal practice of the trade for decades (Caulkins and Reuter, 2010).
In Colombia, the term cartel was easily accepted and disseminated to refer, among others, the hitmen gangs on Pablo Escobar's payroll that became known as the Medellín Cartel, which were instrumental to unleash terror and violence in Colombia against extradition of drug traffickers to the U.S. The following journalistic account portrays how the term became a generic denomination used by contending drug trafficking outfits to refer to themselves and their rivals. Naturally, mass media outlets also used the term to label these criminal concerns, whose bloody terrorist acts made them infamously visible protagonists in the news cycle during these years:
As a result of Saturday's attack, an unidentified source self-described as linked to the Medellín Cartel, asked the Attorney General to accept Pablo Escobar's requests in a recent letter addressed to him. In a telephone dialogue with El Tiempo, this person signaled the end of this week as the deadline for the Attorney General to accept Escobar's conditions, or else there will be new attacks with explosive devices in Bogotá. The envoy warned that a prompt response is expected. Otherwise, the intensity of the attacks will increase daily. There are three main requests: 1. Internees currently detained in the maximum-security prison in Itagüí are to be transferred to the prison where the Ochoa brothers are held; 2. The Attorney General's investigation into who are the true owners of the América de Cali soccer club must be publicly released. 3. Broadcasting search and reward information with mug shots of the Cali cartel bosses shall be aired on TV-spots in the same fashion as those that are currently aired with the mugshots of our bosses. Additionally, measures must be taken immediately against bosses of the Cali cartel" (ElTiempo.com, 1993, February 1, author's translation).
The diffusion of the conception of demonic cartels satisfied several accompanying social functions: 1. To reassure the public that War on Drugs was about mollifying a handful of large criminal organizations whose main cadres were all identified by law enforcement agencies. 2.To obscure the successive tidal waves of hundreds of small, decentralized, mainly and unknown criminal gangs that were spreading around the world; 3. To hold Latin American countries, especially Colombia and Mexico, responsible for the international drug trafficking problem; 4. To avoid the co-responsibility of consumer countries in dealing with international drug trafficking; 5. To magnify victories of law enforcement agencies in the fight against drugs, highlighting seizures and captures allegedly associated with cartels (Silva-García, 1997). The widespread conception of the demonic cartels also served to shroud that the lion's share of profits coming from this global illicit trade was amassed in consumer countries to their economic benefit (Vélez-Gutiérrez, 2018).
This conception of cartels facilitated their inset into the dominant worldview shaped at the end of the Cold War, in which these criminal juggernauts replaced the former Soviet Union as the main existential threat to Western capitalist values and way of life. This narrative eventually permeated anti-drug policy making circles, which accepted it in perfunctory fashion to ground successive flawed strategies to control international drug trafficking. Not surprisingly Nigerian law enforcement agencies currently report what they reckon to be their own drug cartels (Uzuegbu-Wilson, 2019).
INTERNATIONAL ANTI-DRUG POLICIES AND LAW ENFORCEMENT STRATEGIES
Colombia's National Police killed Pablo Escobar in Medellín in December 1993. The following year the U.S. Drug Enforcement Agency leaked to mass media outlets that presidential candidate Ernesto Samper was suspect of receiving a USD $ 6 million contribution allegedly delivered by the Cali Cartel. In 1997, towards the end of Samper's administration and under severe threats of trade sanctions by the U.S., the Colombian Congress approved a constitutional reform empowering the government to extradite Colombians required by foreign governments (Semana, 1996). A few years later, in 2004, Miguel and Gilberto Rodríguez Orejuela, the rivals that Pablo Escobar referred as the Cali Cartel bosses, were arrested, and extradited to the U.S. During their prosecution they bargained an anticipated 30-year sentence in prison, after turning over to the U.S. Department ofJustice assets worth USD $ 2.1 billion (U.S. Department of Justice, 2006).
This outcome illustrates the thrust of the U.S. international law enforcement strategy based on "mutual legal assistance agreements" to dismantle drug trafficking structures thar are based in foreign countries. This strategy relies on international undercover operations involving the DEA and the U.S. Internal Revenue Service (IRS) to track the money laundering operations associated with these gangs, as well as complex electronic interceptions targeting bosses and their closest henchmen in Colombia and Mexico. The U.S. endorsed United Nations Convention against Transnational Organized Crime of Palermo (UNTOC) came into force in early 2000's, committing party countries to incorporate into their legislation analogous definitions of transnational crimes and duration of respective penalties to smooth and expedite extraditions of criminals to the U.S. Prominent bosses of drug trafficking gangs in in Mexico and Colombia were hunted down and extradited to the U.S., among them, Osiel Cárdenas-Guillén, Francisco Javier Arellano-Félix, Fabio Ochoa, and Miguel and Gilberto Rodríguez-Orejuela, with the help of law enforcement agencies in those countries. However, after these high-profile 2006 convictions of Colombian and Mexican drug trafficking bosses, there were no further major prosecutions until 2019 when Joaquín Guzmán (a.k.a. El Chapo), the head of a criminal structure known as the Sinaloa Cartel, was convicted by a U.S. Federal Court. (Drug Enforcement Administration, 2021).
Despite the high-profile captures and demise of many of these gangs, the overall results of the international anti-drug policy endorsed by the U.S. government and law enforcement agencies are mixed. A mid-term review during the Special Session of the United Nations General Assembly (UNGASS) in 2003, showed that between 1998 and 2003, there was no evidence of a declining global trend in coca and poppy cropping areas nor in international supply of cocaine and heroin. Moreover, a growing global demand for marijuana and synthetic drugs was observed to being responsively met by the supply side (Transnational Institute, 2003).
Almost fifteen years later, the World Drug Report published annually by the United Nations Office on Drugs and Crime (UNODC) indicated that the estimated number of people in the world who use drugs in 2020 (345 million) had increased by 39 percent in relation to 2009 (210 million). In that period, the prevalence of marijuana use remained stable, but there was a visible increase in the use of opioids, especially in Africa, Asia, Europe, and North America. A similar trend was observed regarding cocaine use, with visible increases in Central and Western Europe, Australia, and some countries in South America. Amphetamines and opioids use was also on the rise, especially in the U.S. where related overdose deaths increased by threefold between 2010 and 2020. Finally, around 500 new synthetic psychoactive substances were reported circulating in global markets in 2017 (UNODC, 2022).
These disappointing results can hardly be dismissed as an unfortunate contingency. After two decades, this is the predictable outcome of an international anti-drug policy endorsed by the U.S, based on the flawed premise that a few highly centralized and hierarchical drug cartels dominated the international drug trafficking trade, and that by means of swift and forceful actions their criminal trade could be ended by knocking out their bosses and dismantling the hierarchical structures controlled by them. Since the 1990s, analysts and researchers observed that after the demise of the large drug trafficking outfits of the 80s and 90s they were speedily replaced by more fluid structures, with great adaptation capacity. Generally based on specific "spot agreements" and simple operating procedures, these new flexible crews were highly responsive to changing market conditions. In addition to being careful to minimize their vulnerability to undercover and sting operations by U.S. law enforcement agencies, they were keen to maximize profits by exploiting new opportunities in licit or illicit markets. (Astorga, 1995; 1996; Silva-García, 1997; NIC, 2000; Zaitch, 2002; Labrousse, 2003; Transnational Institute, 2003).
In Colombia, government officials, law enforcement agencies and mass media continued to use term cartel to refer to smaller, decentralized, boutique-like, specialized outfits that replaced the dismantled larger gangs in running international drug trafficking. Consequently, any newsworthy drug trafficking gang was called a cartel as was the case with the so-called cartels of Norte del Valle, Bogotá, La Costa, Los Llanos, Cauca, in Colombia. The same happened in Mexico with the emergence of the cartels of Acapulco, Beltrán-Leyva, Caballeros Templarios, del Golfo, Jalisco Nueva Generación, Juárez, Milenio, Santa Rosa de Lima, Sinaloa, and Tijuana, among others. The sheer number and uninterrupted bloody rivalry among these gangs is clearly at odds with the any definition of a cartel.
In the meantime, drug use continues to increase and diversify globally. Illicit synthetic drugs are the fastest growing markets as they are easily supplied by local clandestine labs operating in any city in the world. Newly synthesized psychoactive compounds enter markets at accelerated rates, with law enforcement agencies lagging to detect and outlaw them. Once a compound formula is outlawed, labs innovate by slightly modifying it and continue supplying their online markets, with delivery anywhere, anytime (Global Initiative Against Transnational Organized Crime, 2020).
Myriads of similar possibilities are within the reach of flexible criminal crews, whose cybercriminal portfolios are managed in different markets based on a diverse offer of illicit goods and services. Increases in global Internet penetration rates, which rose from 17 percent in 2005 to more than 63 percent at the end of2021 (International Telecommunications Union, 2022), enable criminal crews to network with well-connected and knowledgeable professionals and specialists willing to enter dynamic coalitions to fleece quick, licit or illicit, profit opportunities. The existence of unstable or contradictory bodies of norms and rules that are prone to the discretionary influence of unscrupulous officials in favor of "special interests", certainly offers favorable environments for this sort of business model. Straddling the line between licit and illicit business opportunities, these flexible profit-driven networks use cyberspace to access and have instant communication around the globe to detect and exploit extraordinary profit opportunities, maintaining anonymity and evading prosecution by law enforcement agencies (Bagley and Rosen, 2015; Arias, 2018; Brown & Hermann, 2020).
Despite the development of these criminal strategies over the past three decades, highly influential experts shaping policy recommendations concerning international anti-drug policy continue to characterize their main targets as basically the same drug trafficking outfits labelled as cartels in the 1980's. This is the case of the Congressional Research Service (CRS), a non-partisan agency that serves commissions of the US Congress, which recently updated (December 20, 2019) a report on organized crime and drug trafficking organizations in Mexico. The report insists on characterizing them as:
organizations [that] work across the Western Hemisphere and globally (…) involved in extensive money laundering, bribery, gun trafficking, and corruption (…) They produce and traffic illicit drugs into the United States, including heroin, methamphetamine, marijuana, and powerful synthetic opioids such as fentanyl, and they traffic South American cocaine (…) [A]lso referred to as transnational criminal organizations (TCOs), [they] have continued to diversify into such crimes as human smuggling and oil theft while increasing their lucrative business in opioid supply (Congressional Research Service, 2019: 1).
The CRS report echoes the views of other analysts who defend the kingpin strategy, focused on capturing and prosecuting high-profile bosses like Osiel Cárdenas-Guillén and Francisco Javier Arellano-Félix in 2006. However, aside from the recent conviction of Joaquin Guzmán, the main outcomes of this strategy have been the fragmentation criminal structures and increase murders in Mexico, as well as the expansion, diversification and strengthening of overall criminal activity in Mexico, the U. S. and in the rest of the world (Bagley, 2013; Gutiérrez-Romero & Oviedo León, 2014; Loewenstein, 2019; Vorobyov, 2020).
A brief review of the main consequences of the kingpin strategy is due here. In Mexico, between 2006 and 2019, the homicide rate rose from 9 to 27 murders per 100,000 inhabitants (UNODC, 2022; Secretaría de Seguridad y Protección Ciudadana; 2020; Worldometer, 2021; calculations by authors). Much of this violence was related to internecine turf wars between former allies and newcomers challenging their control of local consumer markets and lucrative legs of international drug trafficking routes. The following section will discuss how transnational networks (encompassing licit/illicit public and private parties, including persons and institutions, public and private, natural and legal), thrive transgressing jurisdictional boundaries by means of tailored, formal and informal functional regulatory frameworks that respond to their needs and enable them to maneuver around the rule-imposing power of States, to continually expand their operations and financial bottom-lines (Halliday and Schaffer, 2015; Backer, 2016).
INTERNATIONAL ANTI-DRUG POLICY IN THE ERA OF CORRUPT PUBLIC-PRIVATE COALITIONS
The capture and subsequent forced release of Joaquín Guzmán's son, Ovidio Guzmán López, pressured by gunmen linked to the so-called Sinaloa Cartel firing on a National Guard unit during a search and capture operation in October 2019 in Culiacán, México, was framed in media reports as evidence of the extent to which the rule of law was failing in Mexico. Critics of the kingpin anti-drug policy continue to double down on their insistence that reform should be focused on fighting the pervasive culture of illicitness and corruption, and to uphold the rule of law especially in countries with a troubled international drug trafficking past (Congressional Research Service, 2019; Felbab-Brown, 2020). Interestingly, this criticism goes back to the basic argument that President Reagan defended in his 1986 New York Times Magazine article. It contends that cartel-like criminal structures and corrupt law enforcement officials are external elements that threaten a generally law-abiding society and its upright institutions. However, this narrative overlooks its own role in concealing the overwhelming reality of local political orders where basic stability depends on fluid and shifting coalitions between politicians, businessmen, law enforcement agencies and criminals sharing income streams coming from a mixture of licit and illicit activities.
Countless cases in different countries in the Western Hemisphere offer evidence of how this sort of corrupt public-private coalitions work. In Mexico, in contrast with the media narratives that frame the narco as isolated criminal structures completely separated from the rest of society and government, Oswaldo Zavala (2018) describes how businesses, government authorities and law enforcement agencies come together to provide the support and protection for local illicit markets, generically labelled plazas, dealing in drugs, fire arms, smuggled goods and money laundering schemes, among other, in exchange for a share of the profits. The following passage describes how violent outbreaks that are mainly attributed to drug traffickers, are in fact overseen by other parties to these corrupt public-private coalitions:
Usually, law enforcement protects their man from his rivals; other times they don't, preferring a sort of natural selection to determine who should oversee the plaza. If law enforcement arrest or kill the boss of the plaza, it is because he has usually stopped making his payments or because his name has started to appear in the press too often and the trafficker has become a drag. Sometimes international pressure is so strong that the government is forced to act against a specific individual regardless of how much money he is sending their way (Zavala, 2018: 43; authors translation).
At a national level, the links between drug traffickers, law enforcement and the main political establishment in Mexico have been widely accredited, and U.S. intelligence reports point to top level officials at the Federal Security Directorate (DFS in Spanish), in charge of prosecuting drug traffickers, closely involved with these gangs (Morales-Oyarbide, 2011, Pansters, 2013).
The case of Colombia is also relevant in this discussion. Drug trafficking was a main source of funding for activities of paramilitary groups aiding the country's official armed forces to fight insurgent groups. In this context, paramilitary groups forged significant alliances with large landowners and agribusinesses as well as electoral barons. In the mid-2000, former paramilitary commander Salvatore Mancuso publicly declared that 35% of the parliamentarians were "friends" of his outlaw organization (Europapress, 2008, abril 23). Evidence of these relations was later revealed in public trials that ended in the conviction of nearly 60 parliamentarians for their links with these outlaw right wing armed groups. Likewise, a former Colombian president, high ranking military, law enforcement, secret service officials as well as governors, mayors, among others, are presently under investigation for such connections (Perez-Salazar, 2011; Human Rights Watch, 2021).
To avoid an endless list of instances involving corrupt public-private coalitions, one final mention of a recent case in the U.S. is appropriate here. It involves dark money that was legally funneled by 501(c) (4) groups to fund the rally that stormed the Capitol Hill in Washington D.C. on January 6, 2021, in which white supremacist with a background in law enforcement played prominent roles. The intent of the mob was to overturn the legitimate results of the 2020 presidential election lost by incumbent President Donald Trump, a real estate businessman accused of giving access to money laundering schemes using his businesses (Hirsh, 2018; Schwartz, 2021).
Therefore, the present-day criticism of the international antidrug policy misleadingly reinforces the notion that the law and law enforcement agencies will eventually extirpate and eliminate some formidable alien criminal entities and bring things back to normal. Simultaneously, it plays into the idea that U.S. governments must continue to enable law enforcement agencies to pursue extraterritorial actions against recently relabeled as Drug Trafficking Organizations (OTD) to deny harbor and impunity to these hemispheric and global cartel-like criminal structures (US. Office of National Drug Control Policy, 2005; US Department of Justice, 2007; Grillo, 2012; Halliday and Schaffer, 2015; US Congress, 2015-2016; Perez-Salazar, 2018; Zavala, 2018; Flom, 2019).
As mentioned earlier, these actions include the intensive use of wiretapping as well as covert sting operations to identify targets allegedly involved in transnational crimes and to frame them for indictable charges that will justify their extradition to the U. S. It is worth noting that that since their original inception under the Richard Nixon administration, versatile anti-drug squads with these tools under their belts have also been deployed by the U.S. government, both domestically and internationally, against targets other than drug traffickers and users. This was the case, for example, of the team that later was infamously known as the "Watergate burglars", which was run by former CIA anti-drug drug agents under orders of President Nixon's White House to break in and wiretap the Democratic National Committee in Washington D.C. in 1972 (Levine, 2002).
In this way, under the pretense of urgent need to fight the impunity of cartel-like international criminal organizations, U.S. law enforcement agencies have normalized the uninterrupted expansion of the scope of their faculties and actions to translate them into positive performance indicators and larger budget shares for their agencies. The prospect of confiscating assets during these extraterritorial actions, is an additional incentive for law enforcement to lobby for increasing their legal, administrative, judicial faculties and powers beyond U.S. borders. Each new cycle of legally approved powers for law enforcement agencies to engage in extraterritorial incursions enables them to feed their addiction to increasing doses of public budget and crime fighting powers, and simultaneously pushes to legalize and normalize trampling fundamental rights and liberties across the globe. (Silva-García, Rinaldi & Pérez-Salazar, 2018; Pérez-Salazar, 2018).
Perversely, the sustainability of this law enforcement dynamic requires the presence and permanent activity of formidable criminal structures and businesses around the globe. Along this path, law enforcement agencies and criminal businesses outfits come to integrate functionally differentiated communities that form autonomous governing systems that self-regulate complex supply and value chains and autonomously enforce contracts and self-defined binding policies. Thus, they can substitute or supplement State authority with closed, self-contained, and self-referential private governance organs, in which States may play and incidental role. (Halliday and Schaffer, 2015; Backer, 2016; Lessing, 2018). Some of these self-regulating governance communities may be illicit but others may combine licit and illicit agents and activities that have aligned interests and mutually benefit from tacitly coalescing to reap extraordinary rents from mixtures of licit and illicit, public and private, income streams.
Corrupt public-private coalitions that operate in this fashion differ from what the literature refers to as mafia states (Naim, 2012) or kleptocracies. (Silva-García, 2019) Mafia states exhibit an inextricable amalgamation of interests of the State and of corrupt, kleptocratic groups. In this context, state and law are subordinated and instrumentalized to further the business plans and goals that constitute the licit / illicit portfolio of kleptocratic, oligarchic groups. Commonly, mafia states are singled out as small, institutionally fragile, or fractured countries and overseas territories, such as Kosovo, Montenegro, Malta, and Aruba, among others. However, the term is also applied to larger, richer countries such as Giulio Andreotti's Italy, Carlos Salinas de Gortari's Mexico, Vladimir Putin's Russia, and Nicolás Maduro's Venezuela, among other. Though used loosely when referring to these highly diverse institutional and political arrangements, the mafia state label is problematic for the kleptocratic, oligarchic groups that run them. It exposes them to undesirable bad press as well as international trade and other harmful sanctions such as those currently in place against Russia or Venezuela, for example. Self-regulating governance communities that coalesce around corrupt public-private agendas are aware of the need to prevent this kind of exposure, and therefore try to avoid completely merging their specific objectives and income streams with those of the States that allow them to thrive. As in Mexico's case, these communities may co-exist and survive the purging of the mafia state or may eventually transform themselves into full blown kleptocratic groups to survive competition and sanctions from foreign governments, as currently happens in Venezuela.
Breaking corrupt public-private coalitions will not end international drug trafficking. Well-connected gangs with major stakes in the business will find ways to thrive while ensuring their impunity by means of these coalitions, no matter how devastating the social and political effects of their illicit activities. Therefore, it is relevant to rethink the purpose of anti-drug policy today. Authoritarian objectives such expanding the scope, powers and resources of law enforcement agencies to combat demonic cartels simply incentivizes them to integrate with these corrupt public-private coalitions that thrive on narratives about allegedly formidable criminal structures and businesses that justify the uninterrupted expansion of their powers and share of public budget. Moreover, the law and law enforcement constitute means, not ends in themselves.
Consequently, the purpose of international anti-drug policies should be to concentrate on controlling the most harmful effects of international drug trafficking activities, among them, the spiral-ing violence associated with them (Durán-Martínez, 2018) and the growing empowerment of self-regulating governance communities that include law enforcement agencies. These corrupt public-private coalitions represent a major threat to democratic systems around the world, undermining their legitimacy and credibility by weakening their ability to protect fundamental rights and liberties against "legally sanctioned" abuses committed by these hybrid communities. The purpose of international anti-drug policy should therefore prioritize strengthening democratic oversight and control mechanisms of law enforcement agencies, as well as the use of resources and powers granted to them to fight international drug-trafficking outfits.
CONCLUSIONS
Cartels have been the cornerstone of policy research frameworks behind international anti-drug policies and strategies for decades. Yet, transnational drug trafficking is burgeoning around the globe. The failure to disrupt or even to weaken illicit transnational supply and value chain merits a review of international anti-drug policies. However, researchers in the fields of sociology and criminology in both the global North and South continue to follow, repeat, and disseminate in perfunctory fashion narratives held by law enforcement and international agencies that point to drug cartels as the main target of efforts to combat international drug-trafficking. Drug cartels are fictional mainstays for expanding law enforcement budgets and discretional powers to legally perform extraterritorial raids in search of opportunities for forfeiture of allegedly criminal foreign assets and to score positive performance indicators to justify their agency's outsized budgets. The widespread use of this distorted narrative anchored to the notion of drug cartels has accomplished various political functions, among them, updating mechanisms of neocolonial power by undermining the legitimacy and credibility of democratic institutions around the world, weakening their ability to protect fundamental rights and liberties against the legally sanctioned raids and entrapments by foreign law enforcement bodies.
Criminological studies in the global South have advanced efforts to critically review concepts and narratives such as the war on drug cartels that have been predominant in the global North (Arias & Grisaffi, 2021; Carvajal, 2019; Dávila, 2016; 2020; Durán Martínez, 2017; 2018; González-Monguí, 2018; 2019; 2020; Lessing , 2018; Silva-García & Pérez-Salazar, 2019; Trejo & Ley, 2020; Velandia-Montes & Gómez-Jaramillo, 2019; Velandia-Montes, 2020). Some of this work has had impact in local and international research agendas (Pérez-Salazar, Rinaldi & Vizcaíno-Solano, 2020), but there is still much to do.
International anti-drug policy must redefine its present priorities and targets, by removing incentives for law enforcement agencies to play an active role in corrupt public-private self-regulating governance communities to justify their existence and uninterrupted expansion of power and resources. Antidrug policy must come to terms with the premise that illicit drug trafficking cannot be eliminated, but that corruption as its most harmful effects should be substantially reduced. This means that reducing the cooption of state agents by criminal public-private coalitions should be the primary focus of penal policy. Consequently, conventional measures designed to combat drug trafficking, which include capturing kingpins, interdicting shipments, seizing vessels, destroying laboratories, controlling inputs, prosecuting ring members, detecting export routes and tactics as well asthe eradication of illicit crops and crop substitution, should take a back seat in terms of priority and resource allocation for penal control agencies. Instead, it should focus on checking the relentless growth of law enforcement resources and powers, and simultaneously reinforce uncovering corrupt public-private criminal coalitions, their money laundering operations and confiscating their illicit assets and incomes. Indicators of outcomes in matters concerning these latter issues should override conventional enforcement indicators about the former.
Currently, Gustavo Petro's government Total Peace policy, which includes negotiations with the visible heads of major drug trafficking rings that have economic means and firepower to potentially cause serious damage to Colombia's democracy and institutions, should explicitly embrace a realistic policy framework. Ensuring that drug trafficking ring leaders surrender and are prosecuted is not enough. This outcome would merely repeat the failure of the kingpin strategy to combat the so-called drug cartels. It will not seriously disturb the corruption and violence-based regulation structures that operate and control illicit markets and will allow an inside lieutenant to assume the decision-making process and continue with the trafficking business as usual.
To be effective, antidrug policies and resources should aim to obtain from negotiations with the visible heads of corrupt public-private criminal coalitions detailed information about the following issues.
Within the framework of a realistic policy against the cooption of state agents by criminal public-private coalitions, trade-offs should include incentives in the legal and economic spheres. In the legal arena, these could include house arrest penalties for up to eight years, provided that the information and judicial collaboration requirement are met. In the economic orbit, incentives would require a greater dosage of political realism. Defendants willing to negotiate should be allowed to keep up to 50 percent of their personal assets and money. At present, proposals have mentioned the possibility of allowing them to keep 4 or 5 percent of their wealth. Given that these assets are well concealed and that the possibilities of detecting are remote and extremely costly, it may be highly tempting for defendants in this situation to keep this information from authorities if they consider the incentive to be unattractive. The more conservative political factions will undoubtedly express opposition to this proposal. But during their many years and decades in power these parties have proved unable to uncover and confiscate the money and assets of these corrupt public-private coalitions.
Granting 50 percent of their personal wealth to defendants that agree and comply with the above terms and conditions of their submission to justice may well pose economic policy problems. Most of these assets are abroad, so confiscation would require their monetization in foreign currencies. Bringing these proceeds into Colombia would demand caution to avoid negatively impacting the economy with an excess of foreign currency. A share of these resources could be directly destined to payment of the public foreign debt, while another part could be brought to the country, with the probable beneficial effect of lowering the current price of the US dollar and earmarked for infrastructure works and social investment programs.
However realistic, this policy framework will not be the silver bullet that will end the corrupt and violent regulation structures that run illicit transnational markets. Turning in corrupt political and law enforcement allies, private investors, bank accounts, organizational charts, among other, as substantial assistance in exchange for legal and economic benefits can have exacerbating effects on the fragmentation of law enforcement agencies, as well as on the widespread use of retaliatory violence in illicit markets (Durán-Martínez, 2018). And well-intentioned efforts to direct resources to change illicit markets can lead to unintended consequences, as "illicit economies can be as productive of order as they can be of disorder" (Arias, 2021: 328).
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