How RICO, a 1970 Law Against the Mob, Became a Weapon Against Gangs

Statutes, like children, rarely grow up to do exactly what their parents intended. Congress passes a law to solve one problem, and thirty years later the law is solving a different one, and some third problem is being created by the first two.

The Racketeer Influenced and Corrupt Organizations Act, universally called RICO, is the champion of the genre. It was drafted in the 1960s to dismantle the Mafia, a goal it achieved with a thoroughness that gangsters of the era found rude. Since then it has been used against street gangs, drug trafficking organizations, corrupt unions, corrupt police departments, fraudsters and, in a famous civil case, anti-abortion protesters. A conservative should hold two thoughts about that record at once. RICO is one of the most effective tools of law enforcement ever written. And RICO is a statute whose reach should make anyone who loves limited government a little nervous.

Let us define the thing, tell its history, and then argue about it.

Why a law like this was needed

Before 1970, prosecuting the Mafia was like trying to bail out a bathtub with a teaspoon. The problem was structural. A crime boss rarely committed a crime himself. He ordered others to do it, took a cut and lived in a suburb with a good school district. Prosecutors could convict the man who pulled the trigger, the man who counted the numbers receipts, the driver, the enforcer. The man at the top stayed at the top, because the old criminal law punished acts, not organizations. An organization that outlived any individual member, and replaced him within the week, was beyond its reach.

Two sources of evidence came together to change that. The first was the testimony of a Mafia insider, Joseph Valachi, before the Senate in 1963, which gave the public its first detailed picture of a national organized crime network. The second was the work of a presidential commission in 1967, which examined organized crime as part of a broader review of crime and justice. Congress took up the project, and a Senate subcommittee under Senator John McClellan of Arkansas led the way.

The 1970 act and G. Robert Blakey

The law that emerged was the Organized Crime Control Act of 1970, signed by President Nixon on October 15, 1970. Title IX of that act is RICO, codified at 18 U.S.C. sections 1961 through 1968.

The principal drafter of RICO was G. Robert Blakey, a law professor who had worked as a Justice Department prosecutor and who served as chief counsel to the Senate subcommittee. Blakey's insight was a simple one that sounds obvious once someone has said it. If you cannot punish an organization by punishing its acts one at a time, punish the pattern. Make it a crime to run, or to profit from, an enterprise through a pattern of racketeering activity. Then the boss who never touched a gun is guilty of the thing he actually did, which was to run the machine that produced the shootings.

That is the genius of the statute, and also the source of every argument about it.

The statute, in four definitions

Here are the terms you need, each one defined the way the statute defines it.

1. Racketeering activity. The statute lists the crimes that count, in 18 U.S.C. 1961(1). The list covers state offenses such as murder, kidnapping, gambling, arson, robbery, bribery and extortion, and a long set of federal offenses, including drug trafficking, mail fraud, wire fraud, bribery, obstruction of justice and many others. Each one is called a predicate act, meaning that it is the building block on which a RICO charge stands.
2. Pattern. Under 18 U.S.C. 1961(5), a pattern of racketeering activity requires at least two acts of racketeering activity within ten years of each other. The Supreme Court added a gloss in H.J. Inc. v. Northwestern Bell Telephone Co. (1989): the predicate acts must be related and must amount to or threaten continued criminal activity. In the Court's shorthand, a pattern means relationship plus continuity. Two isolated, unrelated crimes are not a pattern.
3. Enterprise. Under section 1961(4), an enterprise includes any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity. That last phrase, "associated in fact," is what makes RICO reach street gangs. A gang is not incorporated. It does not file a form with the secretary of state. But it is a group of people associated in fact, and that is enough.
4. The prohibited acts. Section 1962 makes four kinds of conduct illegal. In outline: investing the income of a pattern of racketeering in an enterprise; acquiring or maintaining an interest in an enterprise through a pattern of racketeering; conducting or participating in the conduct of an enterprise's affairs through a pattern of racketeering; and conspiring to do any of these. The conspiracy provision is the one prosecutors lean on most, because it lets them charge the whole organization in a single indictment.

RICO also carries heavy penalties: up to 20 years per count (and life when the underlying racketeering activity itself carries a life sentence) and, importantly, forfeiture of the property gained from the enterprise under section 1963. The forfeiture clause turned the statute from a sentencing tool into a tool for taking the money out of the criminal business.

What RICO did to the Mafia

The best single example is the Mafia Commission Trial, prosecuted in the Southern District of New York in 1985 and 1986 by a team led by United States Attorney Rudolph Giuliani. The government used RICO to charge the heads of several of New York's crime families with running the Commission, the ruling body that settled disputes among the families, as a racketeering enterprise. Eight defendants were convicted in November 1986, and the leaders received long sentences. The trial was possible only because RICO allowed prosecutors to put the whole organization in the dock and to prove a pattern that stretched across years, rather than trying each crime in a separate case against a separate soldier.

The conviction of John Gotti in 1992 on racketeering charges, including murder as a predicate act, was another landmark. Over time the old Mafia structure was badly damaged. Historians argue about how much of that came from RICO and how much from changing demographics, and the fair answer is that both mattered. But no one who has studied the period doubts that RICO changed the odds in a game that law enforcement had been losing for decades.

From the Mafia to the block

The text of RICO says nothing about Italian-American crime families. It says "enterprise" and "pattern." Prosecutors noticed, and by the 1980s and 1990s, federal prosecutors were turning RICO on other organizations that looked a good deal like the Mafia: outlaw motorcycle clubs, large drug trafficking rings, and, increasingly, street gangs. Prosecutors in many districts have used RICO in cases against major street gangs, MS-13 among those named in public Justice Department announcements. The logic fits the statute. A gang has leadership, a membership, a territory, rules, a revenue stream from drug sales or extortion, and a record of violence used to protect the enterprise. That is an enterprise engaged in a pattern of racketeering activity in every way the statute defines it.

For the community living under a gang's thumb, the advantage of a RICO case is large. A prosecutor can use the statute to reach the leaders, not only the street-level members who are always replaceable, and to charge acts that were committed over years in a single trial. Where a witness would not testify about one shooting because of fear, a prosecutor can sometimes assemble the pattern from many sources, including cooperating insiders, and take down the structure that produced the fear.

The companion statute: Continuing Criminal Enterprise

RICO has a sibling. In the same year, 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, which included what is known as the Continuing Criminal Enterprise statute, 21 U.S.C. 848, sometimes called the "drug kingpin" law. It punishes anyone who commits a felony drug offense as part of a continuing series of violations, undertaken with five or more other persons, over whom the defendant occupies a position of organizer, supervisor or manager, and from which he obtains substantial income or resources. The penalties are severe, a mandatory minimum term of 20 years for a first offense, and the statute escalates for the heads of large operations, up to life.

The difference between the two statutes is worth keeping straight. RICO reaches any enterprise engaged in any listed racketeering. The CCE statute is focused on drug organizations, and it targets the role of the organizer. Prosecutors often use them together in a case against a drug trafficking organization, which is why the federal case against a cartel's American distribution arm can read like a mix of both. For more on the larger problem of cartels, see our guides under the drugs-and-cartels topic, including Should a Dealer Who Sells a Fatal Dose Be Charged With Homicide.

State RICO and the gang statutes

Many states followed Washington and enacted their own racketeering laws, usually modeled on the federal statute and often applied to gangs. Some states went further and passed statutes aimed specifically at gang participation and gang-related crime, adding enhanced penalties when a crime is committed for the benefit of a gang. The details vary widely from state to state, and a citizen who wants to know what her state allows should read the state code, not a summary. A county prosecutor with a state racketeering statute can use the same method, charging the pattern, and the same logic: the boss belongs in the indictment.

The steelman: RICO is too broad

Now give the other side its best argument, and let us put it in words a civil libertarian would sign.

RICO is, the critic says, a statute of astonishing breadth. The definition of "enterprise" is nearly boundless. The list of predicate acts is long and keeps growing, and includes ordinary fraud offenses such as mail fraud, which can describe the daily business of a great many companies. The "pattern" requirement needs only two acts. The penalties are enormous. The statute's civil provision, section 1964(c), lets a private plaintiff harmed by a RICO violation sue for three times his damages plus attorney's fees. That created, in the 1980s, a wave of civil suits against legitimate businesses that had been accused of fraud, with the treble-damages threat used to extract settlements. In Sedima, S.P.R.L. v. Imrex Co. (1985), the Supreme Court held that a civil RICO plaintiff does not need a prior criminal conviction, and the opinion itself noted that RICO was being used in ways far beyond organized crime. Congress responded in 1995 by amending the law, in the Private Securities Litigation Reform Act, to bar civil RICO claims based on securities fraud.

The critic also points to the pretrial forfeiture power. When the government can freeze the assets of a defendant before he has been convicted, he may be unable to pay for a lawyer, and he may plead to a lesser charge rather than risk the full weight of the statute. A defendant facing a 20-year count and the loss of his property has a strong incentive to cooperate, whether or not he is guilty. This is plea-bargaining pressure on a heroic scale.

And the critic offers a famous example. In National Organization for Women, Inc. v. Scheidler, the Supreme Court held in 1994 that RICO did not require an economic motive, which allowed a RICO suit against anti-abortion protesters to proceed. Many conservatives who had cheered RICO against the Mafia were startled to see it aimed at a political movement. The same litigation returned to the Supreme Court, and in 2003 the Court ruled in the protesters' favor, holding that their conduct did not amount to extortion under the Hobbs Act. But the lesson stuck: a statute written for the Mafia can be used against anyone who is, or looks like, an "enterprise."

That is a serious argument, and I think the right answer is to take it seriously rather than to wave it away with "but it catches gangsters."

The answer: keep the tool, sharpen the edges

The rebuttal comes in numbered points.

1. The breadth is deliberate, and it was a response to real failure. Congress wrote broad language because narrow language had failed to reach the bosses. In Sedima, the Court relied mainly on the statute's text, noting that the word "conviction" appears nowhere in the relevant provision. A court that applies the text as written is doing its job.
2. The criminal case still demands proof. In a criminal RICO prosecution the government must prove every element beyond a reasonable doubt: the enterprise, the pattern, the predicate acts, the connection. The pattern requirement, as H.J. Inc. explained, is not met by two unrelated crimes. A prosecutor who overreaches meets a jury and a judge.
3. Where the statute has been abused, the courts and Congress have trimmed it. The Supreme Court's decisions in H.J. Inc. on pattern and in the Scheidler line on extortion, and Congress's 1995 securities-fraud carve-out from civil RICO, are examples of the system correcting itself. That is how a constitutional republic is supposed to treat an ambitious statute: use it, watch it, and amend it.
4. The remaining concern is prosecutorial discretion, and that is a concern about people, not text. The danger of RICO is that a federal prosecutor can threaten a harsh charge to extract a plea. That is a fair worry, and the remedy is the same one conservatives apply elsewhere: transparency, accountability, and elected and appointed officials who answer for how they exercise discretion. We take up the limits of that discretion in Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them.
5. Property forfeiture deserves its own debate. The forfeiture provisions raise a separate problem, the taking of property tied to crime, sometimes without a conviction. That deserves its own scrutiny, and we give it one in Civil Asset Forfeiture Lets Government Keep Property Without a Conviction.

What this history teaches about limited government

There is a conservative lesson inside the RICO story, and it is not the obvious one. The obvious lesson is "tough on crime works." The deeper lesson is about the design of power.

The Founders knew that the same government power that protects a citizen from a thief can be turned on a citizen. That is why the Constitution includes the Fourth, Fifth, Sixth and Eighth Amendments: the guarantee of grand jury indictment, the protection against being deprived of property without due process, the right to counsel, and the limit on excessive fines. A broad criminal statute is not unconstitutional because it is broad. But a broad statute raises the stakes for the procedural protections around it. The wider the net, the more it matters that the jury is real, the judge is independent, the defense lawyer is paid and the prosecutor answers to the public.

I would put it this way. RICO is a power tool. A power tool in a good carpenter's hands builds a house. In an incompetent or careless hand it takes off a finger. You do not ban the power tool, and you do not hand it to anyone who asks. You train the user, you inspect the work and you keep the safety guard on.

For the families who live in neighborhoods held hostage by gangs, the question is not abstract. A statute that lets a prosecutor charge the people who give the orders gives those families their best chance. The citizen who wants to keep that chance, and also keep the freedom of the rest of us from an overbroad prosecution, should read the text, watch the cases, and ask the elected prosecutor how he uses it.

The case in brief

1. RICO, the heart of the Organized Crime Control Act of 1970, was drafted largely by G. Robert Blakey to punish a pattern of racketeering and the people who run enterprises, not only the people who commit single crimes.
2. It requires an enterprise and at least two related predicate acts within ten years, and in the Mafia Commission Trial of 1985 and 1986 it let prosecutors convict the leadership of the New York crime families.
3. Because "enterprise" includes any group associated in fact, RICO and its drug-focused sibling, the Continuing Criminal Enterprise statute at 21 U.S.C. 848, now reach street gangs and drug trafficking organizations, and many states have their own versions.
4. The civil-liberties objection is real: breadth, treble-damages civil suits, pretrial forfeiture and plea pressure, and the Scheidler litigation showed the statute can be aimed at political activity.
5. The answer is to keep the tool and discipline its use, through the proof requirements, judicial limits such as H.J. Inc., congressional amendment and accountable prosecutors.

What you can do: look up whether your state has its own racketeering statute and read how your elected district attorney describes using it, then ask at a public meeting how gang cases in your county are charged.