The Legal Limitations in Combating Organized Crime






By C. J. Oakes

The Issue: One of the biggest problems in combatting organized crime is the law itself.

The Essay: 

The Legal Limitations in Combating Organized Crime

In understanding the legal limits of combatting organized crime, we must first agree on what constitutes organized crime. There are many definitions which have been promoted over the years and theories abound, but most researchers and experts agree on the elements that most organized crime outfits function under. It is these elements which define organized crime for the purpose of fighting it.

Organized crime has been around for quite some time. Depending on how it is defined, one may say that as long as there has been law, there has been some kind of organized effort to circumvent that law. Thus, one could state that organized crime has been with civilization since the days of Hammurabi, who, as a Babylonian King nearly 4000 years ago, developed one of the first law codes known to humanity. So we could state that organized crime has been with the world for nearly 4000 years.

Al Capone. Mugshot information from Science an...
Al Capone. Mugshot information from Science and Society Picture Gallery: Al Capone (1899-1947), American gangster, 17 June 1931. ‘Al Capone sent to prison. This picture shows the Bertillon photographs of Capone made by the US Dept of Justice. His rogue’s gallery number is C 28169’. (Photo credit: Wikipedia)

However, that is perhaps taking the matter a bit far. For our purposes, it would be far more productive to define organized crime as beginning with modern law. For these purposes then, we should date organized crime to within a few hundred years. However, for the purposes of this discussion, we may narrow that even further with tracing the roots to the time when organized crime began to gain the form we know today.

To help with this analysis, it would be beneficial to examine the key features of organized crime as we know it today. These key features can be summed up as:

• Supplies illegal goods and services which are in demand
• The purpose is making money
• Structure imitates legitimate businesses
• Loyalty is stressed, required, often by force
• There is an initiation process for entry (JRank, 2014)
• There are ties to corrupt officials (Lyman & Potter, 2007)

Notice that there are six key elements to organized crime. Each must be in place to consider a criminal group “organized,” though certainly even disorganized crime must be combatted. But combatting criminal groups outside this definition generally takes a different approach, uses different tactics. The point of creating a definition is to allow police organizations with the ability to structure a plan of action.

Thus, for the sake of determining the legal limits of fighting organized crime, we will break down each feature, or element with a view to how it fits into the overall scheme of law and justice.

The Law of Illegal Supply and Demand

Economist Adam Smith first proposed the law of supply and demand. Whereas he was not entirely correct in much of his famous work, the law of supply and demand cannot be argued against with any measure of success. It simply states that when demand is high and supply is low, prices will be high; but when demand is low and supply is high, prices will drop. In other words, if we control the market for a product, we can control the prices and hence the profits, provided the product is in demand.

As an example, consider drugs. Many drugs, such as cocaine and marijuana are very much in demand. However, because these are illegal, they are difficult to obtain so those who have access to supplies, charge high prices. Legalize drugs completely with no regulation and rapidly the prices will drop until the supply meets the demand. At some point, the prices will stabilize and at times fluctuate, for that is the nature of the law of supply and demand.

Organized criminals work outside the scope of the law (which makes them criminals) because they are supplying something that society has said should not be supplied. However, that same society is at odds with itself because while one half is supporting the limitations of the supply, the other half is creating the demand. Thus, one aspect to combatting organized crime has to do with society.

Society must come to terms with the goods or services being provided. Does society want them illegal or does society want them legal? A proverb states that “a house divided cannot stand.” Likewise, a society divided cannot win. One element to combatting organized crime therefore rests squarely with society—any society wanting to defeat an enemy must unite against that enemy. There is no other way.

Making Money and Organized Crime

Anytime there is a profit to be made, someone is going to seek a way to get part of the pie. In the case of drugs, prostitution, counterfeiting, illegal dumping, human trafficking, and many other social ills, there is huge money to be made because there is a demand.

How do we change this?

We could eliminate money.

(Pause to wait for the laughter to subside)

Organised crime - cash flow
Organised crime – cash flow (Photo credit: Wikipedia)

That is the concept proposed by some as a solution to many of the problems facing the world today. In fact, the Venus Project was started in the 70s as a means of preparing the world for a global economic collapse which many today believe is coming. The Venus Project recommends a Resource-based economy as opposed to a money-based economy. It sounds nice on paper (or even in digital format), but is it realistic? Certainly not at this moment in time, but someday perhaps.

For now, we need a realistic solution to the money element of organized crime.




One is to simply legalize the illegal good or service. Legalize and regulate whatever it is and the money dries up to organized crime. The only other alternative is to surrender to this element. It is sort of like fighting a battle where the enemy had a particular weapon which cannot be eliminated. You may simply have to take the beating and find some other solution. The bottom line is (no pun intended), it is not possible to take the money element away from the equation without making the illegal, legal.

Organized Crime Blurs the Line between Legitimate and Illegitimate Business

One of the problems with combatting organized crime is that often, it is impossible or very difficult to tell the different between a legal business and an illegal enterprise. The term, “Money Laundering” was developed by Al Capone, who used his legal dry cleaning businesses to “clean” his illegal money. He would simply show that the legal business was making more money than it actually was. He was thus laundering his money.

Frank Costello, American mobster, testifying b...
Frank Costello, American mobster, testifying before the Kefauver Committee investigating organized crime (Photo credit: Wikipedia)

We likely see such businesses every day and never pay much attention to them. We may wonder how a particular business stays open because we never see customers at the location. It could be, though not necessarily, that the business is a laundering operation. This is one of the ways law enforcement discovers many organized crime operations in fact. Police officers who live and work in a community know what to look for and when they see evidence that perhaps there is something not quite right with the business, they report to detectives who then do the necessary work to discover if perhaps money is being filtered through the business. It happens every day.

One of the thing which Organized Crime operations are doing today is imitating the outsourcing trend. Just as a legitimate business outsources certain services and the manufacture of certain goods from raw materials to parts to finished goods, so too Organized Crime outfits are finding legitimate companies with which to outsource parts of their operation. This creates a difficult hurdle over which law enforcement must find a way to jump.

The laws in most nations prevent law enforcement from getting involved in a legal business transaction without a warrant so when that legal activity is somehow connected, the investigation can stall very quickly. The BBC Monitoring European (2008) noted that often, a crime boss will have someone establish a legitimate business while hiring someone to run it. The accounting is handled by another firm and the proceeds transferred by some means to yet another. The only one who actually knows how all the pieces fit often cannot be directly traced to the initial company.

Organized Crime Demands Loyalty and Generally Gets it Willingly

This is part of the most difficult elements of combatting organized crime because the members become part of a “family.” The family element is most often used in organized crime to form a cohesion so that members are less likely to inform or turn on the others. Indeed, in no society is it acceptable to betray family.

Thus, an “US Versus Them” mentality insulates the Organized Crime operation against unwanted intrusion. This is a very natural thing to take place because it is part of our makeup as humans to want to belong to something bigger than ourselves, to belong to a family.

Interestingly, the harder an outsider fights against the “family” the stronger the bond. This too, is natural. It has the effect of making the job of law enforcement much more difficult because the harder they fight, the tougher the fight becomes and the harder it becomes to infiltrate the crime group.

There is an Initiation Process for Entry

Generally, there is a process of initiation which involves breaking the law. This does three things.

  1. It is a demonstration by the initiate that he is serious about wanting in
  2. It provides a means by which the organization may coerce the new member in case they have a change of heart
  3. It ensures the new member is not a member of an opposing organization such as law enforcement

The initiation differs sometimes considerably from one organized crime group to another and the only way to use this to combat the group is to catch the initiate and get him to turn. The major problem with this, however, is that a new initiate knows little of the inner workings of the organized criminal organization, so even if he is willing to betray his new family, his information is generally useless.

Organized Crime Cannot Exist without Official Corruption

This is where the legal limitations really apply. Lyman and Potter (2007) point out that without corrupt officials, usually politicians, sometimes judges and prosecutors, organized crime cannot continue. Organized Crime bosses always have ties to someone in the legal system and these are able to use their power and influence to insulate their criminal friends.

Marisela Morales Ibañez, Assistant Attorney Ge...
Marisela Morales Ibañez, Assistant Attorney General for Specialized Investigation of Organized Crime in Mexico, and Secretary of State Hillary Clinton. (Photo credit: Wikipedia)

Sometimes, this corruption is created through coercion, sometimes through threats, but there is always this element. On rare occasions, this system breaks down and the legal system takes out a boss, such as occurred in the 70s and 80s when certain higher members in the Italian Crime Families were arrested, tried, and convicted, but the simple fact is that they were quickly replaced and business continued.

Why didn’t the prosecutors then make cases against the new bosses?

Because the prosecutions were dog and pony shows to demonstrate to the public that organized crime was being combatted. It was a charade to fool the public into believing that something concrete was being done.

The simple fact is that the single largest element to combatting organized crime is combatting official corruption. In this respect, that is the single biggest factor in fighting organized crime. This is the single largest legal limitation, but there are others because as a rule, organized crime units seek out law-makers as partners in crime so that they can help develop the laws under which they operate with impunity. For instance, many organized crime operations seek the assistance of Accountants and Attorneys in aiding their operations (Sherman, 1995)

The Key Legal Limitations to Combatting Organized Crime

The major legal limits to combatting organized crime are those imposed by the nature of law. Law serves the purpose of providing a basis for punishing law-breakers.

However, if a society develops too many laws, the wording cannot possibly cover every scenario and thus, there will be some instance wherein the law will not apply. A good attorney can therefore get a charge dropped if he can prove that the specific wording of the law does not apply in a particular case.

As mentioned earlier, organized crime is becoming quite sophisticated. Groups hire attorneys and accountants to find the loopholes just as legitimate businesses do. The only difference is that organized crime operations are selling products and services which are illegitimate. The loopholes are the same.

Thus, a key legal limitation is with the essence of law itself.

It has been noted that there are two elements to law:

  1. The Letter of the Law
  2. The Spirit of the Law

In the first case, the letter of the law states exactly the parameters which must be present to conclude that a crime has been committed. For instance, in every state there are highway speed laws we call the Speed Limit. The letter of the law states that the number on the sign is the limit, or the maximum speed at which you may travel. Of course, most are guilty of breaking this law at some point in their lives and seldom do police stop a person for traveling a few miles per hour over this limit. But the word limit means the maximum, so a police officer would be completely within the legal scope of the law to give a ticket for going 56 in a 55 mph zone.
This brings us to the second element in law, the spirit.

List of criminal gangs in Los Angeles, California
List of criminal gangs in Los Angeles, California (Photo credit: Wikipedia). Although not generally considered organized crime, street gangs generally use the same tactics. Thus, many believe that street gangs should be included for RICO charges. What do you think? Please leave a comment below.

Most law enforcement officers understand this aspect of law, whether they put a name to it or not. They know it is unreasonable to stop a person going one mile per hour over the limit because it is possible that their speedometer is off a bit, needing calibration, and that if the person decided to fight the ticket, odds are the judge will consider mitigating circumstances which would get the ticket tossed. There can be any number of reasons why at that particular moment in time the car was going just a bit too fast. But someone traveling 65 in that same zone stands a good chance of getting a ticket because clearly, they are ignoring the law.

The letter of the law states that if this happens, then this must happen whereas the spirit questions what is the purpose of the law? To be sure, the spirit of speed limit laws is to maintain the flow of traffic and prevent accidents from occurring because of widely varying speeds at which people sharing the road may drive. The purpose is safety in most cases, which is why school zones are much lower.

This impacts organized crime as it does because we have become a society fixated on the letter of the law while ignoring the purpose, or spirit of the law. We have tied the hands of judges with mandatory sentencing according to specific wording of violations and in so doing, we have created a system wherein organized crime and corruption can flourish.

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REFERENCES

  • BBC Monitoring European. (6Jun08). Czech Anticorruption police report on latest trends in economic organized crime.
  • Sherman, T. (Sept95). Professional Business Advisers and Organised Crime. Platypus Magazine. Vol. 48.
  • Lyman, M. D., & Potter, G. W. (2007). Organized Crime (4th ed.). Upper Saddle River, NJ: Pearson Prentis Hall.
  • JRank, Organized Crime – Characteristics of Organized Crime retrieved 9/14/2014

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