Strengthening Rule Of Law Approaches To Address Organized Crime: Capacity Issues, Consequences and Complicity

government identifies transnational organized crime as a threat to national security in its 2017 National Security Strategy. This threat is also explicitly laid out in its 2017 Executive Order 13773 on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking and the 2011 Strategy to Combat Transnational Organized Crime. Transnational organized crime has expanded dramatically in size, scope, and influence in the 21st century and poses multiple threats to U.S. interests, including subverting political and security institutions through corruption, fueling violence and instability, undermining competition in world markets, destabilizing global trading, transportation, and financial systems, and harming communities and individuals. To address these threats, the U.S. government has established the U.S. Council on Transnational Organized Crime. Its goal is to maximize information sharing and coordination among federal agencies and recommend any funding needs or changes in practices to identify, interdict, and dismantle transnational organized crime networks. Alongside this domestic focus, the U.S. government is helping partner countries strengthen governance and justice systems and sever state-crime alliances. Several agencies are engaged in this effort, including USAID. Capacity gaps impede the investigation, prosecution, and prevention of organized crime in many countries. Primary capacity gaps for the investigation and prosecution of organized crime include inadequate or absent legislation to address criminal activity, such as laws on money laundering, asset seizure, or inchoate offenses. Forensics, including biological, cyber, and financial tools, crime scene exploitation, witness protection programs, management of informants and plea bargaining, surveillance and undercover police, regulations and government recordkeeping, and cooperation between government institutions are also critical components that are often lacking. A proactive rather than reactive approach to law enforcement is absent in many judicial systems, reflecting both the historical model in a country and gaps in capacity for building a case. Reactive investigations commence after a crime is committed and rely on eyewitness testimony, defendants' confessions, and sometimes forensic evidence. While they work well for singular, spontaneous, or limited criminal acts, they do not work well to combat crime groups. Proactive investigations, by contrast, collect information over time to build a case against criminal organizations, drawing on informants, undercover police, and surveillance tools as well as financial investigations and international cooperation. The availability of these tools has allowed governments to effectively tackle organized crime, such as the U.S. government's prosecution of La Cosa Nostra in the 1970s. Surveillance, informants, and witness protection, and asset seizures are the most critical tools in the arsenal. Development assistance to address these capacity gaps should have a dual objective of improving the justice system overall and countering organized crime. Rather than overreact to singular or limited events with quick fixes, assistance should develop responses that build stable, just, and transparent societies. The consequences of criminal justice responses to organized crime should also be considered. Although intended to serve as a deterrent, criminal justice systems may unintentionally contribute to organized crime. The certainty of apprehension and severity of punishment are the main aspects of deterrence. Potential offenders respond more to the certainty of apprehension, which reflects the size and quality of the police force and initiatives such as community policing and crime "hot spots." They show a smaller response to the severity of punishment with rapidly diminishing returns for more severe punishments.