Guest post by Katie Kikendall
Despite a reputation as an antiquated concept, organized crime is still prevalent in society today. The FBI elaborates on its depth and reach, asserting that, “Organized crime comes at us from every corner of the globe.” In fact, it has diversified in its scope and activities in ways much more sophisticated than the roaring twenties era concept. In line with its growth have been policy and law enforcement efforts to stem and reduce this spread. Organized crime poses a threat to nation states in both social and economic aspects. Some of the activities it still oversees includes gambling, loan sharking, money laundering, waste hauling, and drug trafficking. Of particular relevance for legislation is an examination of Article 416-bisin Italy, and the United State’s favored legislation against organized crime, RICO (Racketeer Influenced and Corrupt Organizations) Act. Despite the success that both have had in their respective countries, RICO has been more effective in targeting organized crime than Article 416-bis.
In defining Organized Crime, Turone (2006) points out that, “Italian case law requires for the criminal association to be more durable and complex than that implied by the UN convention” (p.48) Contrast this definition to that of the United States, where there is not currently one statutory definition of organized crime. In fact, RICO legislation tends to describe, and consequently criminalize, the activities of organized crime members more than the association with the group. In terms of definition, Italy’s more strict requirements differentiate it from international standards and may make it more difficult to prosecute transnational organizations.
In addition to the differences in definitions, the burden of proof required for individuals to be convicted under Article 416-bis and RICO are different. Under 416, witnesses are unnecessary and “prosecution is based upon relating the crimes committed to the documentation of the economic and financial operations carried out by Mafia members” (Scotti, 2002, p.160) This accounts for a lighter burden of proof than RICO. In addition to requiring the establishment of an enterprise, RICO cases must also establish a pattern of racketeering activity, where, “at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years” [RICO, 18 U.S.C. § 1961(5) (1976)], as well as an additional act beyond this pattern established, for example, investment in said enterprise. This higher burden of proof has allowed prosecutors in the United States to indict those with a higher stake in organized crime, for example bosses and capos, rather than risk just punishing replaceable soldiers. In terms of punishment Article 416-bis provide for mandatory sentencing, but at less length of imprisonment than those mandated by the United States. This length of mandatory sentencing in the United States has meant it keeps higher ranking individuals out of the enterprise for longer, once again, attacking the scaffolding of these enterprises.
Both Article 416-bis and RICO have enjoyed successes in their respective countries, however, RICO has been more effective at reducing organized crime due to its ability to target the higher ranking members of the organization. It is important for countries to have effective legislation and policy in place so that they may effectively address organized crime, not only in the realm of the traditional mafia, but also, looking forward, in terms of white collar crime, Asian-based organized crime, as well as terrorist networks.
Katie Kikendall is a current graduate student at John Jay College of Criminal Justice in the International Crime and Justice Program. She earned her B.A. in Criminology, Law and Society at the University of California, Irvine. Her specific areas of interest include organized crime and terrorism.