The possibility of current gains stimulates the professionalization and specialization of the criminal network, which is always based on a relationship between cost x profitability: when the benefits are much greater than the costs involved in the operations, there is an incentive to crime. The cost structure of illicit activities is similar to that of lawful activities – they are the expenses with all planning and execution of a crime: personnel, weapons, specialized labor, technology and even security.

Likewise, the disincentive to criminal action must follow the same logic: when the cost is increased, the attractiveness for crime is reduced, especially the continuous and professionalized one. But this equation needs to occur in a proportional and responsive way to the organizational structure of criminal networks, which increases scale and open transnational connections to illicit markets, integrating criminals of various levels, types (such as corrupt agents) and locals, with the possibility of fewer risks and more earnings.

The illicit economy advances to the exact extent that the State fails to associate the cost of criminal activity in quantity and quality sufficient to counteract it. And as research in the area points out, there are two ways to impose a cost on crime: the first is by increasing the risk of being arrested, which has the effect of deterring the individual; the second is to make the criminal serve the sentence in full, which has the effect of incapacitation. The greater the perception of risk, the less attractive it is for crime.

Therefore, the control of crime and illicit markets will only occur through public policies and private actions that produce deterrence and incapacitation, and that are implemented in order to ensure the protection of society, justice for victims and guarantee of due process for criminals. This is the aim and challenge of any modern criminal justice and public security system, in a liberal democracy.

However, in regions such as Latin America and countries like Brazil, the normative-legal framework that regulates the criminal justice and public security system has undergone changes under the influence of the guarantor philosophy in the last three decades that resulted in the reduction, structurally and progressively, of its ability to deter and incapacitate criminals, especially the most violent or sophisticated ones. Today, a context of (1) partial deterrence prevails, in which the criminal law and detention do not generate significant restrictions to the criminal to the point of discouraging him, and the (2) absence of incapacitation, in which the arrest, provisional or by conviction, does not prevent him from committing new acts and remain active in the criminal network, managing their business in illicit markets.

It has become common for police to arrest the same robber, smuggler or drug dealer dozens of times, without the law allowing significant restrictions, such as the loss of freedom or property, proportional to the damages caused and gains obtained, and capable of demotivating the situation of continuous illicit practice. Criminals can be released shortly after arrest and await trial in freedom. If they do not flee and the conviction occurs, they will effectively be imprisoned for only 16% to 25% of the sentence (new law proposes to increase it to 70%); in the remaining time they will be totally free (open regime) or at least during the day (semi-open regime). Even when serving sentences, communication between criminals in a network usually takes place inside prisons, as they are grouped within the same “faction”. With those who are loose, they communicate on unmonitored visits and via cell phones, which, although illegal, are frequent to the point of being used daily in scams.

Along with the expansion of guarantees to the rights of criminals, there has been no promotion of guarantees to the rights of victims, whether they are people, companies or the environment, and protection and legal support for law enforcement officers, such as police and prison officers, who fight against criminal networks. There are several cases in which agents alone bear legal and procedural costs arising from legitimate action against criminal and corrupt gangs, which obviously generates institutional anomie.

This general framework can be characterized as the product of a structural anomaly present in the normative-legal framework that should support the performance of the criminal justice and public security system in the production of deterrence and incapacitation, but which, due to legal changes based on penal guarantee, promote obstruction and impediment to the effectiveness of their enforcement purposes, boycotting the efficiency of the system in controlling crime and generating impunity and social anomie.