The possibility of current gains encourages everyday criminality towards professionalization and specialization. It is always a relationship between the level of cost x profitability of crime. When the costs are proportionally lower than the benefits, there is an incentive to practice crime, and more people are willing to obtain income and pleasure from it, people who may come to carry out illicit activities in a perennial and “professional” way.

“Repetitive crime, done professionally, especially if carried out in a group, is an activity that requires developed business skills, such as: planning, timing (notion of temporal opportunity), coordination, information system, gathering of factors of production (weapons, specialized labor, etc.), inputs, transport services, technology, decision, productivity analysis, initiative, aggressiveness. Certainly, crimes will not be done without studying, even if informal and subjectively, the costs and benefits involved. The leaders of groups of this type could be called quasi-entrepreneurs, because the only thing that distinguishes them from normal entrepreneurs is that their activity is illegal” (Brenner, 2009) 2.

The incentive to crime is low cost / risk, which makes high profit possible. Discouragement follows the same logic: increasing the risk reduces the attractiveness to crime, especially the continuous and professional. But it needs to occur proportionately and responsively to the organizational structure of criminal networks, which increase scale and open transnational connections to illicit markets, integrating criminals of various levels, types (such as corrupt agents) and locals through 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 to counteract the attractiveness of criminal networks. This failure stems from the difficulty of the State and society to understand the importance of criminal cost in controlling crime. The cost structure of illicit activities is similar to that of lawful activities – it is the expenditure on materials and services necessary to carry out a crime: weapons, labor, information, etc.

There are two ways to impose a cost on crime: increasing the risk of being arrested, which stems from the likelihood of being captured, prosecuted and convicted and produces the deterrent effect; increasing the state’s capacity to make him serve his sentence in full without continuing to commit crime, which has the effect of incapacitation. This is a scientific conclusion of more than 50 years, awarded with a Nobel Prize in economics.

“One of the decisive factors in the crime equation, according to Becker and Erlich, is the effect exercised by the likelihood of imprisonment and conviction – the most important risk that the individual takes when opting for the crime. According to our equation (c = b-p.c), the greater the probability of imprisonment (p), the greater the cost of the crime option. The risk of the likelihood of imprisonment and sentencing depends on the individual’s perception of the effectiveness and efficiency of the criminal justice system. The effect of punishment on crime can be divided into two types: the disabling effect occurs when criminals, convicted and imprisoned, are temporarily prevented from committing new crimes. (…) The second type of effect of punishment is dissuasion. It occurs when the punishment of those responsible for the crimes signals to the other individuals that, if they commit crimes, they are also arrested and convicted (Viapiana, 2006)

The control of crime and illicit markets occurs only 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, structural and progressive, of its ability to deter and disable criminals, especially the most violent or sophisticated. Today, a context of partial deterrence prevails, in which criminal law and detention do not generate significant restrictions to the criminal to the point of discouraging him, and the absence of incapacitation, in which prison, provisional or by conviction, does not prevent him from committing new criminal 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 dealer several times, without the law allowing significant restrictions, such as the loss of freedom or property, proportional to the damage caused and gains obtained, and capable of demotivating continuous illicit practice. Criminals can be released soon after arrest and await trial in freedom, even if they are captured with dangerous or large quantities of illicit products, such as war weapons – like rifles – or are responsible for deaths. If they do not flee and the conviction occurs, they will effectively be imprisoned only between 16% and 25% of the sentence (new law proposes to increase it to 70%), in the remaining time they will be totally free (open regime) or during the day (semi-open regime). During the sentence, 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 through unmonitored visits, which take and bring information, and through cell phones, which despite being illegal is frequent, to the point of being used daily in scams.

Concomitant to the expansion of guarantees to the rights of criminals, there has been inaction in promoting guarantees to the rights of victims, whether they are people, companies or the environment, and in the protection and legal support for operators of enforcement agencies, such as police and correctional 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 criminal guarantees, 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.