Organized Crime Control Act of 1970
Organized Crime Control Act of 1970
Arthur G. LeFrancois
In the early 1950s, Senator Estes Kefauver of Tennessee led a committee of the U.S. Senate in investigating organized crime in the United States. The Special Senate Committee to Investigate Organized Crime in Interstate Commerce concluded that organized crime was a threat to America's economy and security. At about the same time, the American Bar Association, at the request of Senator Kefauver, created its Commission on Organized Crime. Other groups studied the issue of organized crime as well, in 1967 the President's Commission on Law Enforcement and the Administration of Justice issued a report that examined the problem of organized crime.
These efforts reflected a growing concern in the nation about the influence of organized crime, which involves people coming together in syndicates to conduct illegal business like narcotics trafficking or to infiltrate legal businesses. People were concerned that these crime syndicates were draining the economy and threatening people's safety. So lawmakers sought to devise ways to address the problem of organized crime. These efforts led to the passage of the Organized Crime Control Act (OCCA) (P.L. 91-452, 84 Stat. 922) in 1970. On October 15 of that year, President Richard M. Nixon signed the OCCA, saying that the new law would allow law enforcement to "launch a total war against organized crime."
FEATURES OF THE ACT
The OCCA says that its purpose is "to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime."
The OCCA has thirteen parts, or titles. Titles that relate to the evidencegathering process are, for example, those that allow the creation of special grand juries (panels of citizens with powers to investigate) and those that provide special rules to make it easier to get information from witnesses. These special rules include:
- • Allowing witnesses to be jailed if they refuse, without good reason, to comply with court or grand jury orders.
- • Allowing witnesses to be jailed and fined for providing false information to a court or grand jury.
- • Limiting the ability of witnesses to refuse to testify on the basis that their testimony might incriminate them (the Fifth Amendment privilege).
- • Providing safe housing for those who fear that their testimony might endanger their safety.
Two titles of the OCCA concern the creation of "new penal prohibitions." These titles establish the crimes of syndicated gambling and crimes relating to explosives. Another title concerns "enhanced sanctions" to deal with organized crime, and another allows for increased criminal sentences in cases of "dangerous special offenders."
The most controversial part of the OCCA is commonly called RICO, for Racketeer Influenced and Corrupt Organizations. Critics claim that RICO threatens civil liberties and that, although it was designed to deal with problems of organized crime, it is used in cases having nothing to do with organized crime. RICO's defenders argue that it provides important tools to prosecutors. They also say it was designed only in part to attack the problem of organized crime but was also intended to apply to other kinds of enterprise criminality, such as white-collar (business) crime.
RICO allows the government to bring criminal prosecutions against people or "entities." This is called criminal RICO. An entity is a person or group of persons capable of having a legally recognized interest in property. RICO also allows the government to pursue civil remedies (such as compelling someone to do or refrain from doing something) against people or entities. Finally, it authorizes private civil suits for damages by a person or entity. This is called civil RICO.
To make out a RICO claim, the government must allege that:
- A "person" (as defined by the statute to include certain entities) has used
- a "pattern of racketeering activity" or proceeds from such activity
- to infiltrate an interstate "enterprise"
- by investing in the enterprise any income derived from the pattern of racketeering activity, by gaining or keeping an interest in the enterprise through the pattern of racketeering activity, by using the pattern of racketeering activity to conduct the affairs of the enterprise, or by conspiring to do any of these three things (investing, acquiring, or conducting).
A private person or entity bringing a civil suit under RICO must claim the elements listed above, and in addition must claim injury to their business or property.
RICO thus aims at enterprise-oriented criminality. It condemns certain crimes against, by, or through enterprises. "Enterprise" covers criminal organizations and legitimate businesses. Although RICO has been used against organized crime, it has also been used in cases of political corruption, white-collar crime, terrorism, and small criminal enterprises. An enterprise, under RICO, can be an "individual, partnership, corporation, association, or other legal entity," as well as a group of people who do not form a legal entity, so long as they are "associated in fact." RICO has been applied to businesses, law firms, unions, mob families, and government offices and agencies.
RICO seeks to punish and prevent the infiltration of enterprises by those who engage in a "pattern of racketeering." This pattern element requires two or more acts of racketeering, one of which occurred after the date RICO became law, and the last of which occurred within ten years after a prior act of racketeering activity. Courts continue to determine just what, beyond this minimum, constitutes a pattern.
The "racketeering activity" condemned by RICO includes acts of "violence, the provision of illegal goods and services, corruption in labor or management relations, corruption in government, and commercial fraud" (Blakey 1990, p. 854). More specifically, it includes acts or threats punishable under state law involving "murder, kidnapping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs." Racketeering activity also includes acts that violate a wide range of federal laws, including those prohibiting fraud, gambling, obstruction of justice, embezzlement, and counterfeiting.
RICO provides several criminal penalties for violations of its provisions. Each RICO violation is punishable by a fine of not more than $25,000, imprisonment of not more than twenty years, or both. RICO convictions can also result in the defendant losing certain property. Forfeiture of property to the government upon criminal conviction was a new punishment enacted by RICO.
RICO also authorizes civil remedies. The government can seek court orders to prevent and restrain RICO violations, to compel persons to divest themselves of any interest in an enterprise, and to restrict persons' future activities or to dissolve enterprises. Additionally, the statute enables private parties to sue for RICO violations that injured their business or property. This part of RICO provides for "treble damages," meaning that any award of damages will be tripled. This part also allows the private party suing to recover the cost of the suit, including attorney's fees. This private right of action part of RICO has become perhaps its most controversial.
Civil RICO was a late addition to the bill that was ultimately passed by Congress in the midst of an election campaign in which law and order was a prominent feature. Originally ignored, civil RICO came to be used in the early 1980s in a wide variety of cases. Legislation thought by many to have been targeted toward organized crime and its infiltration of legitimate business was suddenly being used as a routine matter against banks, insurance firms, corporate executives, and government officials.
RICO, and the OCCA of which it is a part, give powerful tools to government prosecutors. The law creates new crimes, new penalties, and new investigative and prosecutorial weapons. In part because of the right of private action—civil RICO—the law has developed in some surprising ways. Courts will continue to be faced with difficult issues, particularly those regarding the proper reach of RICO.
See also: Anti-Drug Abuse Law; Omnibus Crime Control and Safe Streets Act of 1968; Sentencing Reform Act.
Abrams, Douglas E. The Law of Civil RICO. Boston: Little, Brown, 1991.
American Bar Association, Criminal Justice Section. A Comprehensive Perspective on Civil and Criminal RICO Legislation and Litigation. Washington, DC: American Bar Association, 1985.
Blakey, G. Robert, and Thomas A. Perry. "An Analysis of the Myths that Bolster Efforts to Rewrite RICO and the Various Proposals for Reform: 'Mother of God—Is This the End of RICO?'" Vanderbilt Law Review 43 (1990): 851–1101.
Rakoff, Jed S., and Howard W. Goldstein. RICO: Civil and Criminal Law Strategy. New York: Law Journal Press, 2000.
RICO: Applications for the Internet
In 2003 Senator Bill Nelson of Florida introduced a bill that would make Internet spam prosecutable under the Racketeer Influenced and Corrupt Organizations (RICO) section of the Organized Crime Control Act. Noting that nearly half of all e-mail received in the United States is unsolicited advertising, Nelson sought to target spammers who use e-mail in deceitful or illegal ways. The proposed legislation would require recipients of unsolicited e-mail to be able to opt out of receiving future advertisements and prohibited messages that concealed the identity of the sender. Victims would be able to sue for damages in civil court. Critics of the proposed bill argued that it was an inappropriate use of RICO that was unlikely to hold up in court.
Organized Crime Control Act
ORGANIZED CRIME CONTROL ACT
ORGANIZED CRIME CONTROL ACT. The purpose of this 1970 act was to eliminate organized crime "by establishing new penal prohibitions and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime." As the title suggests, lawmakers sought to provide enhanced and novel legal tools for law enforcement. Because the level of violence and crime had continued to rise in post–World War II America, there were many who criticized existing laws related to personal safety and the security of property. McCarthyism, the Kefauver Hearings, civil rights demonstrations, Vietnam War protests, and liberal court rulings gave Americans a sense that state and local governments could no longer enforce laws against sophisticated criminals. Congress, therefore, expanded the federal government's role in preventing crime and punishing criminals by passing a series of laws.
In a response to concerns about increased street and gang crime, Congress passed the Juvenile Delinquency and Youth Offenses Control Act of 1961, which earmarked $10 million annually to fund community crime-control efforts and to train local officials to work with juvenile delinquents and gangs. The Omnibus Crime Control and Safe Streets Act, passed seven years later, authorized over $100 million, with $50 million to assist law enforcement agencies in riot control and fighting organized crime. The bill also outlawed interstate trade in handguns, raised the minimum age for handgun purchases to twenty-one, and established a national gun licensing system. The Gun Control Act of 1968 extended these restrictions to cover rifles, shotguns, and ammunition.
The Organized Crime Control Act of 1970, signed into law by Richard Nixon, was the major statute that gave the federal government new and sweeping ways to combat organized crime. Title I grants greater powers to grand juries and permits detention of unmanageable witnesses by authorizing special grand juries to sit for up to thirty-six months while investigating organized criminal activity. Title II weakened the witness immunity laws. Title III gives courts the ability to detain uncooperative witnesses for up to eighteen months. Title IV allows witnesses to be tried for perjury, based solely on contradictions in their testimony. Title V authorizes the Attorney General to form a witness protection program for cooperative federal and state witnesses and their families. Title VIII makes it a federal crime to protect an illegal gambling business by obstructing state law or to use income from organized criminal activity to run a business engaged in interstate commerce. Title IX—known as The Racketeer Influenced and Corrupt Organizations Act, or RICO—has been called the most sweeping criminal statute ever passed by Congress. This section covers twenty-four types of federal crimes and eight state felonies. It provides for a $20,000 fine, twenty years in prison, asset forfeiture, and civil damage suites. Title XI, modeled after the Gun Control Act of 1968, includes sections known as the Explosives Control Act and establishes certain types of bombing and arson as federal crimes and contains provisions for strict industry regulation.
Because of its comprehensiveness, the Organized Crime Control Act laid the foundation for additional legislation passed during the latter quarter of the twentieth century. Efforts toward reducing criminal activity have included a number of far-reaching programs, such as community action networks, larger police forces, tougher sentencing, limits on gun ownership, and new definitions of criminal activity. Congress built on the original law by passing the Omnibus Crime Control Act of 1970 and a major anticrime package in 1984. Congress continued with legislation such as the Brady Handgun Violence Prevention Act in 1993 and the Omnibus Crime Control Act and Safe Streets Act of 1994. These acts ban nineteen types of assault weapons, allow judges to waive minimum sentences for nonviolent, first-time drug offenders, and expand the number of federal capital crimes. Congress approved additional penalties for "hate crimes," federal offenses against victims based on race, religion, ethnicity, gender, disability, or sexual orientation, and instituted the "three strikes and you're out" policy that mandated life imprisonment for criminals convicted of three violent felonies.
Blakey, G. Robert. "Racketeer Influenced and Corrupt Organization Act (RICO)." The Encyclopedia of the United States Congress 3, 1659 (1995).
Brookings Institute. "Government's Fifty Greatest Endeavors: Reduce Crime." Available from http://www.brook.edu/dybdocroot/gs/cps/50ge/endeavors/crime.htm.
Friedman, Joel M. et al. "Fighting Organized Crime: Special Responses to a Special Problem (Symposium-perspectives on organized crime)." Rutgers Law Journal 16, no. 439 (1985).