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ORGANIZED CRIME A SYMPOSIUM
WILD SHOTS IN THE WAR ON CRIME
JOURNAL OF PUBLIC LAW
Volume 20, Number I
by Emory University Law School
Atlanta, Georgia 30322
BETWEEN THE DEMISE OF THE KEFAUVER COMMITTEE in 1951 and the emergence of Attorney General Kennedy as a crime buster a decade later, the whole subject of crime and law enforcement went into eclipse. A handful of legislators on Capitol Hill faithfully introduced crime legislation in each session and spoke occasionally about crime problems. But not a single one of the twenty-three Kefauver legislative proposals, 1 except the unfortunate Boggs drug penalties which had only been endorsed by the Committee, 2 became law. 3 Most of the play went to communists and national security, with one interlude when it became fashionable to excoriate juvenile delinquents ("dangerous young hoodlums"). 4
The most articulate observer of the crime scene during these bleak years was Kenneth B. Keating, who took the lead in sponsoring crime measures first in the House and later in the Senate. Summing up the era, Keating concluded:
1. SENATE SPECIAL COMM. TO INVESTIGATE ORGANIZED CRIME IN INTERSTATE COMMERCE, FINAL REPORT, S. REP. No. 725, 82d Cong., 1st Sess. 88-96 (1951).
2. Id. at 90.
3. Boggs Act, Pub. L. No. 82-255, ch. 666, 65 Stat. 767 (1951) [codified in 21 U.S.C. § 174 (1964)]. This was an unwelcome revival of mandatory minimums, opposed by the American Bar Association [76 A. B.A. REP. 114 (1951)] and others, but it sailed through on a wave of hysteria about the drug menace.
4. What the results of this investigation are going to be I cannot
prophesy, but if any idea, if any suggestion, if any recommendation for legislation by the
Congress results, to the slightest degree, in alleviating this cancerous growth which is
affecting our communities, this investigation will not have been in vain." Hearings
on Juvenile Delinquency Before the Subcomm. to Investigate Juvenile Delinquency of the
Senate Comm. on the Judiciary, 83d Cong., 1st Sess., pt. 1, at 7 (1953). See also
President Eisenhower's Message to Congress (Health Program), Jan. 31, 1955, H.R. Doc. No.
81, 84th Cong., 1st Sess. 6 (1955).
But in some ways the renaissance of interest in crime which commenced in the ensuing decade--- and the near hysteria about it today--- are worse than the preceding years of neglect. For when lawmakers do turn their attention to the helpless, unrepresented, and unpopular minority of those who are, as Keating delicately put it, "not among the law-abiding," the resulting scrambles are by no means always firm responses to social necessity. It is perilous for vote seekers to do anything other than vie in castigating "criminals" whom no one knows, no one understands, and everyone vaguely fears. And when dealing with lawbreakers is dubbed "war," related imagery casts all manner of distortions upon the scene; our bumper-sticker response is to "fight"; we have no humane responsibilities towards the "enemy"; leadership prerogatives must be accorded to our national forces; followers are exhorted to the witless fanaticism of "crusades"; and profligate commitments of resources are assumed to be necessary. 6
War is a political phenomenon, and the politics of this one are easy to trace. The Kennedy forces began promoting Robert as a champion authority on organized crime when he was still counseling Senator McClellan's committee in the late fifties. The Enemy Within, tying his racketbusting in the unions to Apalachin 7 and a Who's Who of Kefauver mob characters, appeared in 1960. 8 Congress passed some of the better Kefauver measures in 1961-62, thanks to vigorous administration leadership from the Attorney General's office, 9 and it looked as if organized crime was once more in for a long popular run.
But after the tragedy at Dallas a reshuffling took place. With Robert Kennedy in the Senate, the White House moved to block anything like another Senate Crime Committee by setting up the President's Commission
6. See R. CIPES. THE CRIME WAR, THE MANUFACTURED CRUSADE (1966).
7. An unexplained meeting of some sixty unsavory Italians in November 1957 raided by New York State Police. Federal efforts to convict participants of conspiring to obstruct justice ended in failure. United States v. Bufalino, 285 F.2d 408 (2d Cit. 1960).
8. R. KENNEDY, THE ENEMY WITHIN (1960).
9. See Hearings on the Attorney General's Program to Curb Organized
Crime and Racketeering Before the Senate Comm. on the Judiciary, 87th Cong., 2d Sess.
(196 1). Measures enacted were: 18 U.S.C. § 1084 (wagering information); 15 U.S.C. §§
1171-78 (1964) (coin operated gambling devices); 18 U.S.C. § 1952 (1964) (interstate
travel); and Id. § 1953 (1964) (wagering paraphernalia). See also Kennedy, Proposals
for Meeting the Challenge of Interstate Organized Crime, 38 NOTRE DAME LAWYER 637
on Law Enforcement and the Administration of Justice (created by executive order in July 1965). 10 And further to diminish the Kennedy crime-fighter image, the President's Commission concentrated on a new theme, street violence, borrowed from Senator Goldwater's 1964 campaign, which came to fruition in the Omnibus Crime Control and Safe Streets Act of 1968, 11 and, ironically, gave Messrs. Nixon and Mitchell the issue that may well have captured the nation for their law-and-order forces.
So organized crime, the subject of this symposium, is not the main focus these days. We would be better off if it were, for misdirected reactions to the nebulous concept of organized crime tend only to be wasteful, while misdirected fear of personal street encounters 12 is killing the centers of major cities, brutalizing the American traditions of neighborliness, creating terrible pressures on the Bill of Rights, and leaving scars on our brethren in minorities that will be a long time healing.
A bill was drafted to accomplish this, 13 a one-page amendment of the blanket conspiracy provision of the United State Code, 14 which would have made it a federal offense for two or more persons to conspire to violate any
11. Act of June 19, 1968, Pub. L. No. 90-35 1, 82 Stat. 197 (codified in scattered sections of 5, 18, 42, 47 of U.S.C.).
12. Headline-making crime statistics result mostly from multiple variables in reporting systems, population shifts, and changes in the volume of detected property crimes, car thefts, etc. Bad as things are painted now, we were probably worse off, in terms of personal violence, in the 1930's. See R. CLARK, CRIME IN AMERICA 44-5 (1970). The odds against a white suburbanite's being victimized in any given year are 1: 10,000. (Odds against anyone's being killed by a motor vehicle in the same period are 3: 10,000; against being injured in a car accident, 10: 10,000; and against dying of a heart ailment, 50: 10,000.) But see Y. GRAHAM, THE SELF-INFLICTED WOUND 67-85 (1970).
13. See King, The Control of Organized Crime in America, 4 Stan. L. Rev. 52, 62 (1951).
14. 18 U.S.C. § 371 (1964).
state law in such organized crime categories as gambling, narcotics trafficking, and extortion, provided one of the conspirators furthered it by an act involving interstate commerce. This would have caught whole organized crime enterprises in a single federal dragnet, sweeping up as co-conspirators, for example, a bookie network in Florida, along with the mobsters who controlled it from Chicago, the crooked public officials who permitted it to operate, and even the otherwise clean citizens who knowingly took profits from it. 15
But the Committee declined to sponsor any such measure. 16 Instead its proposals sought to strike at racket figures by tightening the tax laws, by broadening immunity and clarifying perjury, by closing loopholes in the immigration laws (so resident-alien and naturalized offenders could be deported), and by a variety of other patchwork changes in the federal criminal and regulatory patterns. 17 And as has been noted, even these oblique measures, good and bad alike, were allowed to languish and die by subsequent Congresses. 18
This same conspiracy concept, with the advantage, among others, that it would have brought federal enforcement efforts to bear at precisely those points where state authorities needed assistance in the enforcement of their own laws, was revived and urged upon Attorney General Kennedy as part of his legislative package aimed at organized crime in 1961. 19 But again it was rejected out of hand, and what became law, instead, was the so-called Interstate Travel Act, 20 a restricted version focussing on figures perform ing minor roles. 21
16. Though it was introduced by others in the 83d Congress [S. 2133, 83d Cong., 1st Sess. (1954); H.R. 7 118, 83d Cong., 1st Sess. (1954)), and endorsed by the American Bar Association [79 A.B.A. REP. 458 (1954)], this bill never survived hearings in either House. For a contemporary general discussion see 2 NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, WORKING PAPERS 381-402 (1970).
17. See King, supra note 13, at 55-59; S. REP. No. 725, supra note 1.
18. "The Commission is wholly at a loss to understand how Congress could, in good faith, have turned its back so completely on the situation which one of its own committees had dramatically exposed as needing corrective measures." 2 AMERICAN BAR ASSOCIATION COMMISSION ON ORGANIZED CRIME, FINAL REPORT 39 (1952) (reprinted in M. PLOSCOWE, ORGANIZED CRIME AND LAW ENFORCEMENT (1952)].
19. See Hearings, supra note 9, at 93-97.
20. 18 U.S.C. §§ 1951, 1952 (1964) (Act of Sept. 13, 1961, Pub. L. No. 87-228, 75 Stat. 498).
21. The Act has been stretched a few times by counts alleging
conspiracies to travel, causing others to travel, etc. See Collins v. United
States, 383 F.2d 296 (10th Cir. 1967); United States v. Zirpolo, 288 F. Supp. 993 (D.N.J.
An age-old way to avoid meeting unwelcome responsibility in public life is to appoint a study committee or commission, then to create a second body to review the findings of the first, and so on until interest in the matter has waned. But recently an even better way to side-step issues and save face has been for the Executive (instead of putting it on the line with a specific program) to ask Congress for large allocations of funds to be applied generally to solution of the problem. By responding favorably, Congress in its turn can claim to have done its bit. And if the result is the creation of a new bureaucratic arm, everyone benefits because the Executive points out that it is engaging in a flurry of effective activity, while the money and the patronage that inevitably flow from such a project can be used to further political designs.
This is an only slightly cynical rendition of the story of the Law Enforcement Assistance Administration, foreshadowed in 1965, 22 and created by the Omnibus Crime Control and Safe Streets Act in 1968. 23 In its First year it spent 63 million dollars; in its second (fiscal 1969), 268 million dollars; for 1970 its appropriation is 480 million dollars; and for 1971and 1972 it has authorizations for 1.5 billion and 1.75 billion dollars, respectively. 24
At the outset LEAA operated under a crippling triumvirate leadership which maximized its vulnerability to political pressures; and Congress further assured its politicization by limiting most of its largesse to population-determined "block" grants, so it serves as a conduit for passing
23. Cf. Juvenile Delinquency Prevention and Control Act of 1968, Pub. L. No. 90-445, 82 Stat. 462 (codified in scattered sections of 42 U.S.C.), wherein Congress authorized 25, 50, and 75 million dollars for fiscal years 1969, 1970 and 1971, respectively, to be allocated by the Secretary of Health, Education, and Welfare on similar terms.
24. Expenditures at all levels of government in the entire
criminal justice field in 1968-69 totaled 7.3 billion dollars, of which 4.4 billion
dollars went to police agencies. UNITED STATES DEPARTMENT OF JUSTICE, EXPENDITURE AND
EMPLOYMENT DATA FOR THE CRIMINAL JUSTICE SYSTEM, 1968-69 (LEAA Series SC-EE No. 1, Dec.
out money to applicants who are in favor with their state and local political leadership. 25 As a result, crime centers, and organized crime strongholds, are woefully shortchanged. Detroit, for example, with 40 per cent of all criminal activity in the state of Michigan, has come out with 18 per cent of the state's LEAA funds. New York City, with a crime concentration in the range of 75 per cent, received 43 per cent from the establishment in Albany. Los Angeles, with half of California's needs, was awarded 19 per cent of the state's funds. 26
The distorted emphasis of the program on law enforcement and police agencies, always more in the political limelight than the equally vital court systems and correctional facilities, is even more striking. The entire judicial arm came out with less than 7 per cent of the funds in the LEAA grab bag in the first year, while slightly under 14 per cent found its way to what seems indisputably the most important arena of all, the nation's correctional systems. 27
There may be another analogy, as inappropriate as the "war" concept, which helps explain this lavish expenditure of funds, and that is the analogy to disease, the idea that crime is a pathological condition which can be "cured." Both lawmakers and the public have become accustomed, in recent years, to vast commitments of public funds in such popular ventures as questing for cures for polio and cancer. 28 Accordingly, large sums keep being poured into research aimed at exposing the "causes" of crime. 29 And, of course, in this respect the analogy is wholly misleading, because there has been no question in the view of all reputable observers for decades that the phenomenon of criminal behavior is a social phenomenon intimately related to and dependent on all the complex structurings of our society. 30
Even improvements in the techniques of dealing with crime, such as better training and equipment for the police, have had precious little effect on the
25. 42 U.S.C. §§ 3725, 3736 (Supp. V, 1969). In fiscal 1969, 184 of the 268 million-dollar total went in block grants. For fiscal 1970 it will be 340 of the 480 million dollars available.
26. See Velie, Case of the Purloined Crime Law, 93 READER's DIGEST, November, 1970, at 86.
27. The situation improved slightly in fiscal 1970: 67 per cent to police, 8 per cent to courts, and 27 per cent for corrections. (LEAA Series SC-EE No. 1, Dec. 1970). The Omnibus Crime Control Act of 1970, Pub. L. No. 91-644, 84 Stat. 1880, modifies the "troika" leadership and slightly modifies the block requirements.
28. For example, on February 18, 1971, President Nixon asked Congress for an extra 100 million dollars for a brand new "Cancer Conquest Program." 117 CONG. REC. S. 1500, H. 777 (1971).
29. See N. MORRIS &; G. HAWKINS, THE HONEST POLITICIAN'S GUIDE TO CRIME CONTROL 45-53 (1970).
30. See, e.g., R. CIPES, supra note 6; R. CLARK, supra
note 12; N. MORRIS &; G. HAWKINS, supra note 29.
overall picture. 31 And as has been noted, where concentrations of efforts and resources might most fruitfully bear results, in the correctional phase, relatively little has been allocated because there is not so much glamour or public appeal in palliative measures for those already stricken. 32
Yet while the news media will rush in thus to blow up a sensational construction like the Crime Committee hearings (or, worse, the crime rate statistics headlined so prominently nowadays), 35 they have never rendered much service in the independent watchdog role. With few exceptions, such as the great Life expose's of recent years 36 (allegedly fed, in part at least, directly to the magazine by law enforcement agencies), the media are timid when it comes to turning the spotlight of publicity on malefactors, especially in the so-called organized crime categories.
32. See J.V. BENNETT, I CHOSE PRISON (1970); K. MENNINGER, THE CRIME OF PUNISHMENT (1968); N. MORRIS &;G. HAWKINS, supra note 29, at 111.
33. SENATE SPECIAL COMM. TO INVESTIGATE ORGANIZED CRIME IN INTERSTATE COMMERCE, THIRD INTERIM REPORT, S. REP. No. 307, 82d Cong., 1st Sess. 144-47 (1951); S. REP. No. 725, supra note 1.
34. In the first twelve volumes of the Kefauver hearings there are 300 committee-initiated references to Frank Costello (and even two to his mother!). Guzik, a smaller target, rated 126.
35. See, e.g., R. Cipes, supra note 6, at 4; R. CLARK, supra note 12, at 44-55.
36. See, e.g., Sept. 1, 1967 (Patriarca, et al.); Sept. 8, 1967
(Marcello); Aug. 9, 1968 (Gallagher-Zicarelli).
As long ago as 1941, when Congress laid a stamp tax on coin-operated gambling devices 37 and provided that the returns would be public records, 38 it was expected that publicity given to the operation of these exploitative devices (illegal most of the time in most of the nation, with the exception of Nevada, and always involving corruption where tolerated) 39 would stamp them out. Instead, in all the intervening years there have been no more than a dozen or so local attacks on slot and pinball empires by the media. 40 One still has to go to the obscure back pages of the Annual Reports of the Commissioner of Internal Revenue 41 to see the picture, as appalling today as it has always been.
The I.R.S. tables show premises where gambling devices are operated, 42 (a single premise may indicate a large number of machines). In fiscal 1969, with Nevada reporting 1,587 gambling locations, for comparison, Maryland (where the machines were supposed to have been "phased out" in 1968) 43 showed 2,183; South Carolina showed 2,044; Tennessee showed 2,241; the figure for Arkansas was 1,776; for Washington, 1,451; for West Virginia, 854; Ohio, 679; Mississippi, 621; and Indiana, 528. For further comparison, in all of New England, except Massachusetts (with 107), there was not a single registered gambling premise. There was not one in the state of New York, nor in Texas, Wisconsin, or North Dakota. In short, throughout approximately half the nation, to stay with only this one example, a predatory and wholly illegal racket is being run without hindrance despite foolproof official disclosure of exactly who is in it 44 and where it operates, and the media stand by in silence, have stood by silently for thirty years.
38. Act of Aug. 16, 1954, Pub. L. No. 84-307, ch. 736, 68 Stat. 730 (codified in 26 U.S.C. § 6107 (1964)].
39. See R. KING, GAMBLING AND ORGANIZED CRIME (1968); V. PETERSON, GAMBLING: SHOULD IT BE LEGALIZED? (1951).
40. Notably by the Baltimore Sun (consistently for many years), the Chicago American and Sun-Times (intermittently), the Louisville Courier Journal (when needed, with good effect), and (recently) the Shreveport Times.
41. See, e.g., INTERNAL REVENUE SERVICE, ANNUAL REPORT OF THE COMMISSIONER 104, 107, 118 (1969).
43. See R. KING, supra note 39, at 130-37.
44. Similar disclosure provisions pertaining to the comparable excise
and occupational taxes on wagering [26 U.S.C. §§ 4401-03, 4411-12 (1964)), were found to
be violative of the fifth amendment in 1968 in Grosso v. United States, 390 U.S. 62
(1968), and Marchetti v. United States, 390 U.S. 39 (1968). The tax on slot machines,
which do not have constitutional privileges, is probably not in jeopardy. But the Internal
Revenue Service is concerned over a recent decision, United States v. United States Coin
&;Currency, 39 U.S.L.W. 4415 (U.S. April 5, 1971), which extended the Grosso-Marchetti
ruling retroactively and could seriously impair the Government's seizure powers.
On the other side of the coin, ever since Attorney General McGrath's Crime Conference of 1950 45 (which set the stage for the Kefauver endeavor), it has been clear that the backbone of illegal bookmaking is the rapid transmission of information, the so-called "wire services," while the ubiquitous numbers racket always depends on the publication of reliable special information to which the play can be tied, such as the amount paid on winners in certain races at certain tracks, stock exchange clearings, Or treasury balances to the last digit. 46 Such items do not have much "flash" news value per se. Yet legislative proposals to impair the transmission of such information via the media have always been fought with appalling ferocity.
Over the years the only private enterprise that has generally been cooperative with law enforcement efforts has been the telephone company (after exposure long ago of some ludicrous bloopers, like a bank of telephones obligingly installed in the top of a large tree overlooking a Florida race track). Western Union in its day sometimes actually handled illegal bets over its own counters and with its own facilities. 47 And no amount of pressure long succeeds in discouraging broadcasts of race results for numbers play, programs aimed at providing gambling information and appealing to the superstitions of numbers patrons, and front-page featuring of lottery and numbers control items. 48
When Attorney General Kennedy finally succeeded, in 1961, in pushing through a prohibition against the transmission of bets and wagering information, media lobbyists forced him to limit it to offenders who could be proved to be "engaged in the business of betting or wagering," and solely to transmission by means of a "wire communication facility," plus
46. See R. KING, supra note 39, at 51-59,
47. Hearings on Gambling Before the Subcomm. to Investigate Organized Crime in Interstate Commerce of the Senate Comm. on the Judiciary, 82d Cong., 1st Sess., pt. 4-A, at 795-805 passim (1951). Western Union also ran a special service on United States Treasury balances for numbers and lottery promoters, Id. pt. 19, at 160-62, 209-12. It took a special statute, long ago [R.S. § 3851 (1878)], to keep postal employees from peddling such things as lottery tickets through their facilities, 18 U.S.C. § 1303 (1964).
48. Cf. 18 U.S.C. §§ 1302, 1304 (1964). In 1967 Congress
intervened to keep banks from going into the lottery business. 12 U.S.C. § 25a (Supp. V,
1969); 18 U.S.C. § 1306 (Supp. V, 1969).
barn-door exclusion for any transmission purportedly "for use in news reporting of sporting events or contests." 49
So, in sum, reliance on the media for substantial assistance in dealing with crime is misplaced; the media themselves are sometimes substantial offenders; and effective legislation to curb abuses in their area is probably not an achievable objective.
The notion that citizens from the private sector, even if their membership is larded with spokesmen from the three arms of government, can assert effective pressure to assure performance of the law enforcement functions makes little sense. There is only one public responsibility which is more exclusively governmental than the preservation of domestic peace and order, and that is the conducting of our military defense.
The job of lawmakers is to pass adequate statutes and make reasonable appropriations to achieve their purposes. The job of the executive, interacting with the judiciary, is to enforce the laws honestly, effectively, and with justice. A superbody of citizen-commissioners could not be positioned outside the structure of government and still have effective leverage. What these national crime commission proposals amount to is the spectacle of the government itself attempting to set up, by its own authority, an independent private agency to prod it along in the discharge of the very duties it should never have been allowed to neglect or ignore in the first place.
51. E. KEFAUVER, CRIME IN AMERICA 167-69 (1951); R. KENNEDY, supra
note 8, at 251-53. See S. REP. No. 725, supra note 1; S. REP. No. 307, supra
The survey or study commission, like the 1965 President's Commission on Law Enforcement and the Administration of Justice, 52 falls into a slightly different category. They, too, can be used to shrug responsibility and, as has been noted, to avoid action while giving the appearance of doing something about a current problem. The commissions and committees set up at various levels of government to study marijuana53 are classic examples of this. But sometimes, in the great tradition of the Wickersham Commission, 54 these groups can render valuable service. They tend to be as good as the quality of the anonymous staffs who do their work. And as a practical matter, they are generally confined to the innocuous functions of review and scholarship since they are seldom provided with the tools necessary for investigating, such as subpoena power, authority to compel testimony, and access to official sources of information. 55
The first authoritative reference to Mafia in the press in America was in New Orleans in 1890, justifying the lynching of a dozen Italian immigrants who had just been acquitted of shooting a popular police officer named
53. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91513, § 601, 84 Stat. 1236 (codified in scattered sections of 4, 18, 21, 26, 31, 42, 46, 49 U.S.C.); Marijuana and Health Reporting Act, Pub. L. No. 91-296, tit. V, 84 Stat. 336 (1970); TASK FORCE REPORT: NARCOTICS, MARIJUANA AND DANGEROUS DRUGS, 115 CONG. REC. 25,454 (1969). A total of thirty-two bills were offered on this subject in the 91st Congress and similar studies have been called for in nearly every state house.
54. National Commission on Law Observance and Enforcement (1931).
55. The powers were nonetheless just conferred, interestingly, on the proposed new federal Wiretap commission, by title VI of the Omnibus Crime Control Act of 1970, Pub. L. No. 91644, 84 Stat. 1880.
56. D. FRASCA, KING OF CRIME 19-20 (1959); E. REID, THE GRIM REAPERS 3 5 (1969).
57. E. REID, supra note 56, at 1-2.
Hennessey. 58 This was convincingly verified by another reference (the next, except a few Sunday-supplement stories of Black Hand), in Cleveland newspapers in 1928, when some two dozen Italians, allegedly connected with bootlegging, were surprised and frisked during an otherwise unexplained gathering in a downtown Cleveland hotel. 59
Kefauver, as has been noted, concentrated his attention on what he called "the Mob," or "the crime syndicate," until near the end of his hearings, when he suddenly began pushing Mafia. The most important item proving its existence in 1951 was the fact that Kefauver witnesses who had been present in the Cleveland hotel in 1928 were still unwilling to give a good account of their presence there. 60 The fact that scores of other witnesses with obviously Italian names scoffed at the very notion of Mafia was held to prove the organization's pervasive power, because members are supposed to scoff, to conceal their membership.
Most credit for building up the Mafia myth goes to Commissioner H.J. Anslinger and his Federal Bureau of Narcotics, which found itself in danger of being eclipsed in the 1930's by the FBI's spectacular success in personifying as heroic figures adversaries such as Capone, Nelson, Karpis, and Dillinger. Mafia suited the T-men perfectly, since it could be promoted as a continuing conspiracy with sinister international implications61 (substituting for the menacing Chinese "Tongs" from which Treasury had gotten much mileage in the twenties). 62 The Kefauver Committee's acceptance of Mafia was a great coup for the Anslinger forces. 63 Mr. Hoover and the FBI, on the other hand, testily denied the existence of any such group for two decades. The Bureau's Ten Most Wanted List has never featured more than a sprinkling of Italian names.
All this changed abruptly in 1961 with the advent of Robert Kennedy in the Department of Justice. A year earlier, in The Enemy Within,64 Kennedy
59. E. REID, supra note 56, at 17. S. REP. No. 307, supra note 33, at 149.
60. E. REID, supra note 56, at 7-9.
61. See C. SIRAGUSA, THE TRAIL OF THE POPPY: BEHIND THE MASK OF THE MAFIA (1966). Cf. Hearings on Traffic in and Control of Narcotics, Barbiturates and Amphetamines Before the House Comm. on Ways and Means, 84th Cong., 1st Sess., 139-40 (1955); S. REP. No. 725, supra note 1, at 14849; S. REP. No. 307, supra note 33, at 30-31.
62. See UNITED STATES TREASURY DEPARTMENT, TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS 9 (1950); UNITED STATES TREASURY DEPARTMENT, TRAFFIC IN Opium AND OTHER DANGEROUS DRUGS 11-12 (1937). S. REP. No. 307, supra note 33, at 168.
63. "There is a Nation-wide crime syndicate known as the Mafia, whose tentacles are found in many large cities. It has international ramifications which appear most clearly in connection with the narcotics traffic." S. REP. No. 307, supra note 33, at 150.
64. R. KENNEDY, supra note 8.
had not made a single reference to Mafia as a force in the American underworld. But suddenly, using the talents of a remarkable performer, Joe Valachi, fished out of the federal prison system, the Department of Justice presented, 65 full blown, an entirely new concept: La Cosa Nostra. And suddenly the single authority on all matters pertaining to Italians and criminal activity became the FBI. 66 Not a few of the same characters whose names had been publicized by Kefauver a decade before now emerged as leading Cosa Nostra figures (with make-your-blood-run-cold titles like capo, consigliere, caporegime, and soldati). Now the public was presented with all sorts of details, attested to by such evidence as the FBI's paraphrased "airtels," 67 which revealed a neat structure involving 5,000 individuals divided into twenty-four "families," under the rigid discipline of a "commission," and dominating all manner of illegal activity all over the country. 68
This notion, that a few thousand Italians of indifferent talent really dominate organized crime activities throughout the United States, 69 distorts and blinds to this day. President Johnson's Commission was fascinated by it, publishing maps and charts depicting La Cosa Nostra as a corporate structure closely akin to organizations like du Pont and General Motors. 70
Hearings on Organized Crime and Illicit Traffic in Narcotics Before the Subcomm. on Investigations of the Senate Comm. on Government Operations, 88th Cong., 2d Sess., pt. 1, at 77 (1963).
66. See H. &;B. OVERSTREET, THE FBI IN OUR OPEN SOCIETY 350-54 (1969); PRESIDENT'S COMMISSION, supra note 52, at 192; SENATE COMMITTEE ON THE JUDICIARY, S. REP. No. 617, 91st Cong., 1st Sess. 35-46 (1969) (citing testimony by Mr. Hoover, presidential messages, and Department of Justice analyses).
67. See AMERICAN BAR ASSOCIATION SPECIAL COMM. ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE, GENERAL COMMENTARY, ELECTRONIC SURVEILLANCE 53-58 (1971). See also Hearings, supra note 50, at 197-99.
68. See D. CRESSEY, THEFT OF THE NATION (1969); P. MAAS, THE VALACHI PAPERS (1968); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: ORGANIZED CRIME 6-12 passim (1967); M. Puzo, THE GODFATHER (1969); R. SALERNO &;J. TOMPKINS, THE CRIME CONFEDERATION (1969); SENATE PERMANENT SUBCOMM. ON INVESTIGATIONS, ORGANIZED CRIME AND ILLICIT TRAFFIC IN NARCOTICS, S. REP. No. 72, 89th Cong., 1st Sess. (1965).
69. See Allen, A Look at Organized Crime, THE NEW YORKER, August 15, 1970, at 24-25.
70. PRESIDENT'S COMMISSION, supra note 52, at 192-96. See also
President Nixon's Special Message on Organized Crime, 115 CONG. REC. 10,041 (1969):
"But these successes have not substantially impeded the growth and power of organized
crime syndicates. Not a single one of the 24 Cosa Nostra families has been destroyed. They
are more firmly entrenched and more secure than ever before."
Subsequent anticrime legislation has been more or less focused on the Cosa Nostra myth, and even the exemplary federal strike forces, achieving at last some measure of coordination among federal enforcement agencies and currently operating in seventeen metropolitan centers around the country, still professto be principally engaged with these ridiculous Italian families.
If Mafia and Cosa Nostra have sometimes served to personify organized crime so that the average citizen can achieve some dim understanding of what it is, they have served also to distort the picture and to gloss over the ugly realities of acquiescence and official corruption which inevitably attend organized crime activities.
Now, in a final chapter worthy of the rest of this story, after a few publicized protests in New York by Italian-Americans who objected to being thus maligned, Attorney General Mitchell publicly announced, on July 22, 1970, 71 that he had ordered the FBI and other federal agencies to stop spinning such tales. And there has been no public reference to them by any federal authority since.
From this false start we have moved relentlessly on, compounding one
error after another. We allowed our medical practitioners to be bullied and badgered in
the administration of drugs, to the point where they renounced all responsibility for
treating the medical aspects of addiction, 74 and
72. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, NARCOTIC DRUG ADDICTION PROBLEMS 57 69 (1963).
73. See A. LINDESMITH, THE ADDICT AND THE LAW (1965); King, The Narcotics Bureau and the Harrison Act: Jailing the Healers and the Sick, 62 YALE L.J. 736, 738 n. 12 passim (1953).
74. See JOINT COMMITTEE OF THE AMERICAN BAR AND THE AMERICAN
DENTAL ASSOCIATION ON DRUGS, DRUG ADDICTION: CRIME OR DISEASE? (1961); C. KOLB, DRUG
ADDICTION, A MEDICAL PROBLEM (1962); A. LINDESMITH, supra note 73; King, supra
simultaneously we have driven heroin, a valuable analgesic with some uniquely therapeutic properties, out of general medical usage throughout most of the world. 75 In 1937 we made the totally illogical addition of marijuana to our prohibition pattern. 76 In 1951 77 and 1956 78 we exaggerated the penalties for drug offenses so that they were out of proportion even to punishments reserved for such crimes as murder and treason. Under the 1956 Act, life sentences were handed out on occasion, and capital punishment was provided though never invoked. 79
At the end of the 1960's our lawmakers began to substitute incarceration, in the name of "rehabilitation," for straight prison sentences, 80 though it has never been demonstrated that any kind of incarceration contributes much to the rehabilitation of true addicts, 81 and the idea of drastic therapy to clean up a marijuana habituation is little more sensible than confusing the moon with green cheese. [While we are on marijuana, incidentally, we might note another cheesy lunacy: that pot smoking leads in any direct way to "harder stuff."] 82
In 1965, casting about for a new theme, Congress came up with
"dangerous" drugs, first outlawed in a slightly different and more science
oriented pattern of control under the Food and Drug Administration 83
76. Act of Aug. 2, 1937, Pub. L. No. 75-238, ch. 553, 50 Stat. 551. See J. KAPLAN, MARIJUANA: THE NEW PROHIBITION (1970); A. LINDESMITH, supra note 73, at 222ff.
77. Boggs' Act, Pub. L. No. 82-255, ch. 666, 65 Stat. 767 (1951) [codified in 21 U.S.C. § 174(1964)].
78. Act of July 18, 1956, Pub. L. No. 84-728, ch. 629, 70 Stat. 567. See Symposium, Narcotics, 22 LAW &;CONTEMP. PROB. 128 (1957).
79. Act of July 18, 1956, Pub. L. No. 84-728, ch. 629, § 107, 70 Stat. 567 [codified in 21 U. S. C. § 176(b) (1964)], repealed by, Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, § 1101, 84 Stat. 1236.
80. See Narcotic Addict Rehabilitation Act of 1966, Pub. L. No. 89-793, 80 Stat. 1438 (codified in scattered sections of 18, 28, 42 U.S.C.); PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT ON THE STUDY OF NARCOTICS AND DRUG ABUSE 135ff., 148ff. (1967); SENATE COMM. ON THE JUDICIARY, TREATMENT AND REHABILITATION OF NARCOTIC ADDICTS, S. REP. No. 1850, 84th Cong., 2d Sess. (1956).
81. TASK FORCE REPORT, supra note 80, at 137-38, 150.
82. The gyrations performed to dilute this nonsense instead of honestly abandoning it would be funny, if the subject were not so deadly serious for so many of our youngsters. See, e.g., DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REPORT TO CONGRESS ON MARIJUANA AND HEALTH 16 (1971); TASK FORCE REPORT, supra note 53, at 25, 454; TASK FORCE REPORT, supra note 80, at 14-15.
83. Drug Abuse Control Amendments of 1965, Pub. L. No. 89-74, 79 Stat.
226 (codified in scattered sections of 18, 21 U.S.C.).
soon thrown, along with all other drug prohibitions, squarely into the hands of the least appropriate agency in Washington, the purely law enforcement-oriented Department of Justice. 84 A cynical quid pro quo for the support, or at least nonopposition, of the powerful drug lobby when the Dangerous Drug Act was passed was the remarkable inclusion of so-called counterfeit drugs in the prohibition pattern. 85 In any other field, one who usurps trade names or violates protected processes is answerable to the party he has wronged in appropriate civil proceedings. But one who dares trench on the phenomenally profitable monopolies of proprietary drugs risks all the sanctions of the drug prohibition laws, including limitless fines, 86 long prison sentences, 87 and forfeiture of everything pertaining to his infringing manufacture. 88
The penalties just cited were part of the new 1970 Comprehensive Drug Abuse Prevention and Control Act, 89 which the incumbent Administration, wanting for any more major innovations, pushed through as a general revision and consolidation of all existing federal drug provisions. It shifts the constitutional basis of the federal power from taxation to interstate commerce, generally tightens the repressive powers vested in the Attorney General, classifies various substances by the wholly inappropriate criterion of whether or not they may have a currently accepted medical use, 90 and makes revisions in the penalty structures. 91 The official public law print of this Act runs to exactly sixty-one pages. Now the Department of Justice is engaged in the highly unusual activity of pressing an identical new drug measure, complete with even the counterfeit provisions, on the legislatures of the states through the Commissioners on Uniform State Laws. 92
If a single folly among all this critical enumeration were to be selected as the worst, it would be the federal drug effort. First, Uncle Sam has no
85. 21 U.S.C.A. §§ 321(g)(2),331(k)(2),(3),333(c)(5)(Supp. 1971).
86. For a "continuing enterprise," the fine is 200,000 dollars plus "the profits obtained by him in such enterprise." [As amended by 21 U.S.C.A. § 848(a) (Supp. 1971).
87. The sentence can be from twenty years to life, without suspension, probation or parole. 2 1 U.S.C.A. § § 848(a), (c) (Supp. 1971).
88. Id. § 88 1.
89. Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91513, § 511,84 Stat. 1236.
90. 21 U.S.C.A. § 812 (Supp. 1971).
91. Congress added a provision allowing probation without the imposition of a sentence (otherwise up to one year and/or 5000 dollars) for simple unauthorized possession, and expunging of the record if the terms of probation are fulfilled. Id. § 844.
92. UNIFORM CONTROLLED DANGEROUS SUBSTANCES ACT (approved by the
American Bar Association House of Delegates Feb. 9, 1971). The Act has already been
adopted in ten states, Guam and the Virgin Islands.
business imposing criminal repressions in this field; what each citizen inhales, ingests, or injects into himself seems so far removed from the legitimate reach of any federal power that it is impossible to come up with a hypothetically less appropriate federal incursion. 93 Second, even as what we now call organized crime got its start in the era of bootleggers, so it has nurtured and thrived all these years on the artificial market created by drug repression. 94 The peddler and our various drug police forces have always been virtual partners (and not infrequently actual joint venturers) 95 in driving the drug user to the black market by cutting off all other sources of relief for him, in holding down competition and restricting sources of supply so as to keep prices high, and in discouraging all challenges to the status quo from anyone not wholly law enforcement oriented. Third, besides being a mainstay of organized crime, the drug traffic and the police-peddler partnership contribute very largely to the volume of all crimes against persons and property which are money motivated, it being generally acknowledged that drug users turn to predatory crimes in order to raise money to pay the inflated prices exacted by the peddler for their drugs of choice. 96 Though estimates differ, it is indisputable that the overall crime rate is very substantially inflated--- some say by as much as two-thirds in drug centers like New York City 97 --- on account of this abortive prohibition effort. Finally, a convergence of many new forces seems to be establishing the field of drug abuse as a principal ground for fearful encounters between our dissenting children and these misguided forces of repression.
94. The President's Commission, noting that "almost all" heroin consumption occurs in a "few cities," estimated the volume at 350 million dollars per year and profits (on that drug alone) at 21 million dollars. PRESIDENT'S COMMISSION, supra note 52, at 189.
95. Since the Department of Justice took over from Treasury in 1968, for example, forty-one agents of the Bureau of Narcotics and Dangerous Drugs have been indicted and over one hundred have been ousted because, according to Attorney General Mitchell, they were "on the take."
96. The reported volume of street crimes in the District of Columbia dropped markedly (7.7 per cent in 1970, the first drop in fourteen years). Most observers relate this directly to the District's large scale methadone maintenance programs, which have been meeting the drug needs of thousands of addicts.
97. Mr. Mitchell has estimated that drug users steal property worth 2
billion dollars annually in New York City alone.
back into reasonable perspective. On the one hand, despite impassioned assertions to the contrary, the tapper and the snooper are not really of first importance in any phase of law enforcement. Obviously they have no role in controlling most of the violent encounter crimes. Although automation and miniaturization make the techniques easier to apply and less demanding of manpower, there is still no likelihood that would-be offenders are ever going to be effectively watched in the style of big brother to detect mere criminal intent. 98
These surveillance techniques are most valuable as tools in the investigation of conspiracy-type offenses once the general object of the investigation is known. And, of course, on the other hand, wiretapping is essential in those categories of illegal activity where the enterprise itself operates via electronic communication, such as bookmaking, numbers, and extortion-by-telephone. 99
Only in rare instances, nonetheless, do tapping or bugging produce evidence directly needed to obtain a conviction where guilt would not be otherwise provable. Perpetrators of crimes simply do not make coherent confessions for the benefit of eavesdroppers. And accordingly, most of the problems which purport to turn on the admissibility of this kind of evidence have been overemphasized. 100
Likewise, the potential value of controlling the process through application to a judicial officer, analogous to warrant practices, has probably been overstressed. 101 After the long interval of laissez faire under Section 605 of the Federal Communications Act, 102 the substitute we were given in Title III of the Omnibus Crime Control Act of 1968 103 was little improvement. Some observers speculated that the real reason behind congressional enactment of Title III was to wrest control of wiretapping from the Executive, and that the motive behind that could be traced directly to what the Department of
99. See R. KING, supra note 39, at 172ff.
100. "Organized or professional crime, however, presents a different picture. Here are identifiable individuals. . . .
Dig long enough and evidence of their unlawful activity will turn up." TASK FORCE REPORT, supra note 68 at 92. Cf. ELECTRONIC SURVEILLANCE, supra note 67, at 58 n.165 passim. See also Donnelly, Electronic Eavesdropping, 38 NOTRE DAME LAWYER 667, 679-80 (1963).
101. See, e.g., Westin, The Wiretapping Problem, 52 COLUM. L. REV. 165, 196-208 (1952). But see Berger v. New York, 388 U.S. 41 (1967).
102. Act of June 19, 1934, ch. 652, tit. VL, § 605, 48 Stat. 1103 (1934).
103. Pub. L. No. 90-351, 82 Stat. 197.
Justice had accumulated in its investigations about the complex connections in high places of James Hoffa and Bobby Baker. 104
Be that as it may, when President Johnson took office Congress and the Executive reversed their traditional positions, 105 with federal lawmakers for the first time urging legalization and control of wiretapping, and the Executive pressing for an absolute ban (the Administration-sponsored bill
was called the Right to Privacy Act.) 106 The Department of Justice allegedly stopped the practice, and the Attorney General confessed error in a number of cases where taps had been employed. 107 President Johnson's Crime Commission split between recommending carefully circumscribed authority and a total ban. 108
The 1968 provision is itself a complicated and wordy compromise, not fully satisfactory to anyone. It starts by prohibiting all wiretapping and "bugging" except in narrow categories. 109 Manufacturing, selling, or merely possessing electronic devices is outlawed. 110 Interceptions must be authorized by the Attorney General of the United States or a comparable officer in a state which has passed authorizing legislation, 111 and must then be approved on application to a judge. 112 Everything overheard is required to be preserved on tape, and all parties affected are ultimately entitled to be notified and to hear what has been recorded if they so desire and if the court, in its discretion, permits the disclosure.
All taps and bugs must be reported currently to the Administrative Office of the United States Courts, and periodically reports on all such activity
105. E.g., Hearings on S. 1495, 2813 on Wiretapping The Attorney General's Program Before the Senate Comm. on the Judiciary, 87th Cong., 2nd Sess. 4 (1963). Hennings, The Wiretapping Eavesdropping Problem: A Legislator's View, 44 MINN. L. REV. 813 (1960).
106. S. 928, 90th Cong., 1st Sess, (1967) (introduced Feb. 8 with twenty-one cosponsors).
107. See , e.g. , N.Y. Times, July 13, 1966, at 25, col. 1-4; id. Feb. 15, 1967, at 29, col. 4; id. July 14, 1968, at 1, col. 1. See also Granallo v. United States, 386 U.S. 1019 (1967); O'Brien v. United States, 386 U.S. 1019 (1967).
108. PRESIDENT'S COMMISSION, supra note 52, at 201-03.
109. 18 U.S.C. § 2511 (Supp. V, 1969). Use of illegally intercepted communications is also outlawed, id. § 2515.
110. Id. § 2512.
111. Id. § 2516. The "Standard" (supra note 67) is expected to provide an acceptable model for state enactments.
112. Id. § 2518. But "emergency" taps and bugs may be
installed for forty-eight hours before such application.
It is too early to make final judgments about this new pattern of controls. A few cases in the organized crime category have reportedly been made by reliance on it. 116 But obviously it is going to be cumbersome and full of technicalities that invite prolonged litigation. Further, it may be worse than no law at all to the extent that it makes electronic surveillance virtually impossible in local situations where there is widespread corruption, since too many records must be kept and too many officials must be tipped off as to what is happening. 117
114. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 804, 82 Stat. 197.
115. Act of Oct. 15, 1970, Pub. L. No. 91452, § § 1201-12, 84 Stat. 922.
116. For example, the Justice Department's "Operation Eagle" in June 1970 and "Operation Flanker" in February 1971, were drug-peddler roundups netting, respectively, 160 and 175 participants. The latter involved twelve taps, and though some of the defendants sounded dubiously Italian (Detroit: Brown, Copeland, Cunningham, Dalton, Daniels; Baltimore: Baldwin, Bates, Blackwell, d'Anna, Davis, Dizeo, Dorsey), the operation allegedly crimped several Cosa Nostra families.
117. Moreover, since an illegal tap or bug prevents use of any "evidence derived therefrom" in any proceeding for any purpose, 18 U.S.C. § 2515 (Supp. V, 1969), it is possible that inadvertent or collusive violations could virtually immunize bookie operations. See R. KING, supra note 39, at 181.
118. United States v. Harriss, 347 U.S. 612 (1954); Lanzetta v. New
Jersey, 306 U.S. 451 (1939).
In startling contrast, we have already noted that the public law print of the Comprehensive Drug Abuse Prevention and Control Act of 1970, ran to sixty-one pages. The 1970 Act which did patchwork on the District of Columbia Criminal Code by tightening penal provisions and adding administration-backed features like "no-knock" and preventive detention (as well as repealing the District of Columbia prohibition against kiteflying 122), required eighty-four pages of statutory text, not counting an additional 147 pages in which, in the same measure, the D.C. local court system was reorganized.
The trick of throwing loosely related items into a single omnibus bill, with a compelling public relations title, is itself new on Capitol Hill. Thanks to it, a number of law enforcement provisions that had been languishing around the halls of Congress for decades without receiving serious attention have recently found their way into the United States Code. Some were good but unimportant. Some were fatuous. And some, like the wiretapping statute were ill-considered and indisputably badly drafted. Most of the crime measures were pushed through in two packages, one in 1968 and one in 1970. Each was hailed with great fanfare as the long-awaited deathblow against crime.
Besides setting up LEAA and loosing the flood of federal funds which we have already discussed, the Omnibus Crime Control and Safe Streets Act of 1968 sought to overturn the Mallory- Escobedo- Miranda 123 line of Supreme Court decisions by providing that the only essential test for the validity of confessions should be whether they were voluntary, 124 to restrict federal review of state confession cases, 125 and to overturn the Supreme Court's holding in the Wade case 126 by making eyewitness testimony admissible without the safeguards specified in that opinion. 127 It contained a title on gun
120. Id. § 1951.
121. Id. §§ 2311, 2313.
122. Act of July 29, 1970, Pub. L. No. 91-358, § 802, 84 Stat. 473.
123. Miranda v. Arizona, 384 U.S. 436 (1966); Escobedo v. Illinois, 378 U.S. 478 (1964). See S. REP. No. 1097, 90th Cong., 2d Sess. 10ff. (1968).
124. 18 U.S.C. § 3501 (Supp. V, 1969).
125. See S. REP. No. 1097, supra note 123, at 25. But this direct assault on article III of the Constitution was, happily, knocked out of the Act at the last moment. 114 CONG. REC. 13,652ff. (1968).
126. United States v. Wade, 388 U.S. 218 (1967).
127. 18 U.S.C. § 3502 (Supp. V, 1969).
As the second measure, the Organized Crime Control Act of 1970, emerged in public law form, it ran to forty pages ("it is the purpose of this Act to seek the eradication of organized crime in the United States. . . ."). Its first title attempts to create the phenomenon of the "runaway" grand jury, which has on rare occasions in American history succeeded in embarrassing corrupt or indifferent officials. 134 This special grand jury is given power to investigate and make reports about "noncriminal misconduct, malfeasance, or misfeasance in office by public officials," 135 but other provisions so hobble it that it could never serve as much more than a political weapon in the hands of some incumbent Administration seeking to embarrass its opposition.
Next, after flirting with the fifty-odd immunity statutes which have been lying about in the United States Code, some for almost a century, 136
129. U.S.C. § 7313 (Supp. V, 1969).
130. 28 U.S.C.A. § 532 n. (Supp. 1971).
131. 18 U.S.C. § 3731 (Supp. V, 1969). See S. REP. No. 725, supra note 1, at 95. The provision was the object of more tinkering in the Omnibus Crime Control Act of 1970.
132. 18 U.S.C. § 3103(a) (1964).
133. D.C. CODE ANN. § 22-2306 (Supp. 11, 1970).
134. See HOUSE COMM. ON THE JUDICIARY, INVESTIGATION OF THE DEPARTMENT OF JUSTICE, H.R. REP. No. 1079, 83rd Cong., 1st Sess., 54 passim (1953); S. REP. No. 617, supra note 66, at 47-51.
135. 18 U.S.C.A. § 3333 (Supp. 1971). The misconduct must also be related to "organized criminal activity" whatever that may mean.
136. See 2 WORKING PAPERS, supra note 16, at 1405,
1444-45. Cf. Hearings, supra note 9, at 213-42, 244ff. X
A new perjury statute, 139 overlapping the old one, makes trifling changes which have also been sought by federal prosecutors for years, namely, relieving the government of the burden of proving which of two contradictory statements made under oath is the false one, and wiping out the so-called two-witness rule (so that a perjury conviction can be obtained, theoretically at least, merely by the balancing of one oath against another). 140 "Protected facilities" are provided for witnesses who think they might be subjected to retaliation if they give evidence; they and their families can live in whatever protected housing the Attorney General might choose to provide, for as long after their testimony as the Attorney General thinks protective measures may continue to be necessary. 141
The Act provides for preserving evidence in criminal proceedings by deposition, 142 puts a five-year limit on the application of the exclusionary rule (for example, evidence traceable to illegal wiretaps five years or more before the offense charged will be admissible), 143 and modifies the rule laid down in Alderman 144 that restricts the right of the defense to examine electronic surveillance evidence. 145
The best provision in the 1970 Omnibus Act is doubtless Title VIII, which creates, in effect, a direct federal prohibition against what is designated
138. See In Re Kinoy Testimony, Civil No. M-11-188 (S.D.N.Y., Jan. 29, 1971).
139. 18 U.S.C.A. § 1623 (Supp. 1971).
140. See NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, FINAL REPORT 127-31 (1971); I WORKING PAPERS, supra note 16, at 659 83.
141. 18 U.S.C.A. note preceding § 3481 (1964). This is one of the provisions most deserving of the adjective "fatuous." It arose out of elaborate stage-management precautions surrounding the Valachi fiasco. Obviously no real witness with real fear for himself and his family is going to be much assured by so tenuous an offer, from so transitory a political figure as an incumbent Attorney General (Valachi was already in life-on-life federal custody, yet even he railed against his "protected facilities" in death row at the D.C. jail).
142. 18 U.S.C.A. § 3503 (Supp. 1971). But query why this, like the revisions in grand jury procedures, should not have been left to the already established rulemaking power of the Supreme Court, see FED. R. CRIM. P. 15. Q. FED. R. CRIM. P. 6, 7.
143. 18 U.S.C.A. § 3504(a)(3) (Supp. 1971).
144. Alderman v. United States, 394 U.S. 165 (1968).
145. 18 U.S.C.A. § 3504(a), (b) (Supp. 1971).
"Syndicated Gambling," 146 including any "gambling business" which is run with the participation or acquiescence of an official or employee of any state or political subdivision. 147 The sanctions are adequate ($20,000 and/or five years), and the chief limitation is that the Government has the burden of proving that the gambling activity has at least five managing participants, and has operated continuously for at least thirty days or has grossed more than $2,000 in a single day. 148
The worst provision is unquestionably Title IX, 149 a
melange which appears to have come from someone's notion that concepts borrowed from the
antitrust field might be applied to get at successful racketeers who have used their
ill-gotten gains to expand into legitimate enterprises. 150 Anyone
who can be proved to have invested money which is traceable to an illegal activity (in the
organized crime categories) in any legitimate enterprise which affects interstate commerce
is now punishable by a fine of up to $25,000 and/or imprisonment for twenty years. 151 Moreover, any assets involved in such a transaction shall
be seized and forfeited to the United States. 152 The
Attorney General is empowered to make use of injunctive remedies if he elects to do so, 153 and any injured individual is invited to sue for treble
damages ("including a reasonable attorney's fee"). 154
148. Id. § 1955(b)(i), (ii), (iii).
149. Id. §§ 1961-68.
150. See S. REP. No. 617, supra note 66, at 79-83, 12 1-26, 157-61 passim. A better innovation at the state level is the Florida statute quoted by Mr. McKeon, under which a highly publicized effort was launched, in 1969, to run Mafia figures out of Miami Beach hotel ventures.
151. 18 U.S.C.A. § 1963(a) (Supp. 1971).
152. Id. § 1963(c).
153. Id. §§ 1963(b), 1964(a), (b).
154. Id. § 1964(c).
155. Id. § 3575(b).
criminal "pattern of conduct" which "constituted a substantial source of his income," and in which he "manifested special skill or expertise." 156
When the Organized Crime Act stirred up opposition and was in danger of being stalled in the House Judiciary Committee, its proponents, taking advantage of inflamed public concern about campus bombings, put in an additional title providing for federal regulation of explosives and explosive devices, 157 with heroic penalties ($10,000 and/or ten years) for offenses such as knowingly distributing explosive materials to "an unlawful user of marijuana." 158 Anyone who transports or receives explosives with knowledge they may be used to inflict injury or "to damage or destroy any building, vehicle, or other real or personal property," faces penalties of $20,000 and/or twenty years if any person subsequently is hurt as a result, and life imprisonment, or death, if such transporting or receiving is connected with any loss of life. 159
Besides the National Commission on Individual Rights, set to spring into being in 1972 (which we have already noted as substituting for the Wiretap Commission created by the 1968 Omnibus Act --except that subsequently, in the Omnibus Crime Control Act of 1970, Congress repealed its repealer), the Organized Crime Control Act provides for another commission, to come into existence in 1972 and carry on its activities for a four-year period, through 1976, charged with making a "Review of the National Policy Towards Gambling." 160
The 1970 Omnibus Act reorganizes LEAA and reorients it more towards large urban centers, matching grant programs, and improvements in correctional systems. 161 It contains a provision requiring the Attorney General to make a special report, following the close of each appropriations year, on the activities of his department in federal law enforcement and criminal justice. 162 It tinkers with the irresistible penalties for gun carrying, adding provisions to make the sentences prescribed in 1968163 run consecutively in all cases. 164
157. Id. §§ 841-48.
158. Id. §§ 42(d)(5).
159. Id. § 844.
160. Pub. L. No. 91-452, §§ 804-09, 84 Stat. 922 (1970).
161. Pub. L. No. 91-644; §§ 2-11, 84 Stat. 1880 (1970).
162. Id. § 12.
163. 18 U.S.C. § 924(c) (Supp. V, 1969).
164. Pub. L. No. 91-644, § 13, 84 Stat. 1880.
This latter Act also wipes out all the provisions of the Federal Criminal Appeals Act165 (including the right of appeal from motions suppressing evidence conferred by the 1968 Omnibus Act) in favor of a broader section simply permitting the Government to appeal from all dispositions in criminal cases, and all material orders suppressing or excluding evidence, up to the point where the double jeopardy bar would be encountered. Then it goes on to prescribe severe penalties for assassinating, kidnapping, or assaulting members of Congress, 166 and, finally, to spell out a bouquet of misdemeanor penalties for entering or remaining in any place where the President might be residing or visiting, for being disorderly in the proximity of any such place with intent to disrupt official functions, and for scuffling with Secret Service agents bent on enforcing any such provision. 167
First, there is no area in the criminal law, and no jurisdiction in the United States, where existing statutes now in force are really inadequate. Code revisions and legislative innovations have their place, but new laws are not very much of the answer. Lawmaking merely for newsmaking ("Don't just sit there--- amend something!") is counter-productive. More vindictive penalties do not contribute much either.
Second, predatory and encounter crimes, the assaults on property and persons which put citizens in fear, are not much affected by merely reinforcing the enforcement arm with added manpower and better weaponry;
166. 18 U.S.C.A. § 351 (Supp. 1971).
167. Id. § 1752.
168. President Nixon has just announced (At Williamsburg on March 11,
1971) that next year's LEAA budget will be 5 billion dollars instead of 1.5 billion, and
is going to be handed out to the states with practically no strings, conditions, or
matching requirements. The new name for federal crime aid will be "Special Revenue
Sharing." 117 CONG. REC. S. 224143 (1971).
they respond more directly to diversionary measures like providing methadone for the relief of addicts; 169 they will be much diminished by swifter, more accurate administration of justice in our court systems; and they nourish most tenaciously because of shortcomings in correctional programs. Imaginative use of indeterminate sentencing, halfway houses, work-release plans, probation and parole--- everything, in short, which may provide alternatives for the present role of prisons as dumping pits and breeding grounds--- should be the focal point for effort and resources in this connection.
Third, in the area usually identified as organized crime, the single target more important than all others if we really wish to strike at it, is the problem of corruption. Every activity in this category, even drug peddling and loan sharking, is of necessity carried on with the knowledge and acquiescence of public officials who are supposed to be prohibiting it.170 No one can run an illegal gambling operation, for instance, on any substantial scale for more than a few days without exposing himself to law enforcement forces. But this usually means, alas, exposing himself in one way or another to taking on some silent partners. 171 And the shades of corruption are infinite. With careers on every rung of the political ladder depending so directly on campaign funds, I submit it is unlikely that anyone, save in the most unusual circumstances, reaches high elective office without directly or indirectly, and doubtless often unknowingly, receiving the benefit of crime-generated contributions. Rigorous enforcement of the existing bribery laws, plus realistic disclosure requirements as to the funding of political campaigns, 172 would shatter many organized crime empires overnight.
171. See, e.g., SENATE COMM. ON THE DISTRICT OF COLUMBIA, INVESTIGATION OF CRIME AND LAW ENFORCEMENT IN THE DISTRICT OF COLUMBIA. S. REP. No. 1989, 82nd Cong., 2nd Sess. (1952).
172. Here, again, existing laws, if honestly complied with, would likely
suffice. It is a federal felony, for example, for any corporation or labor
organization to give anything to a candidate for federal office [18 U.S.C. § 610 (1964)]
and for individuals to give "directly or indirectly" more than 5 thousand
dollars (id. § 608) except, in the latter case, through a state or local committee
where, theoretically, gifts should be visible and traceable. See Federal Corrupt
Practices Act of 1925, ch. 368, tit. III, 43 Stat. 1070, now 2 U.S.C. §§ 241-56
Fourth, there are only two justifications for expanding the federal role in law enforcement. 173 One is to supplement state and local forces in combatting activities which are conducted across state lines or which have otherwise outgrown the reach of state and local officials; the other is where it makes a significant difference that G-men and T-men are generally harder to corrupt, and more likely to administer justice evenhandedly, than local authorities. But in this latter connection, with respect to the enforcement of federal statutes as opposed to the deploying of federal investigative agents, it must be remembered that the most politically sensitive public offices in the entire federal structure are those occupied by United States attorneys; incumbents are almost always on their way to higher offices; and they serve without tenure, traditionally dependent on the continuing favor of their sponsoring Senators. Most United States attorneys have enough autonomy so the federal penal code-and all the omnibus additions Congress keeps putting into it-need hold few terrors for the local boss who has good lines into his local political organization. 174
To the extent that there is an exception to what I have just implied, I believe it is in the work of the Internal Revenue Service, whose agents carry on quietly in the shelter of the Treasury Department and come to the prosecutive arm in Justice with fully made cases. And in this connection a specific current situation is noteworthy. In 1951 Congress laid an occupational stamp tax on bookmakers and other persons accepting bets, 175 and a 10 per cent excise tax on bets received. 176 Though unable to devote much manpower to the area, 177 the IRS did more damage over the years to illegal gambling operations by the occasional cases it made under these revenue provisions than any other single law enforcement attack upon them.
In 1968, in the companion cases of Marchetti and Grosso, the Supreme Court invalidated both provisions, carefully pointing out, however, that it was not the taxes themselves, nor their enforcement, which offended the
174. E.g., Turner, U.S. Attorney Balks Indictment of Sheriff and 3 Others in Utah, N.Y. Times, March 12, 1971, at C-15.
175. Act of Oct. 20, 1951, Pub. L. No. 82-183, 65 Stat. 529 [codified in 26 U.S.C. §§ 441112 (1964)].
177. A Treasury request for 35 million dollars for additional agents to
enforce these taxes was included in the 1953 Budget, and was cut out by Congress without
so much as a dissenting query. See FINAL REPORT, supra note 18, at 50-51.
Constitution, but only the registration and disclosure requirements which had been attached to them by Congress. No longer fearful of the Treasury forces, bookies and numbers writers have since had only local authorities to deal with, and in many areas they are flourishing. Bills to remedy this deficiency have been introduced in each succeeding Congress, 178 and even the slow moving American Bar Association has memorialized Congress and the Administration urging reinstatement of the taxes. 179 Yet to date, while fiddling around with other gambling provisions in two of its Omnibus Acts, Congress has continued side-stepping this simple issue. (In February 1971 the Department of Justice did announce sponsorship of bills in both Houses to reinstate the tax, 180 and indicated that this would now become a seriously pushed Administration measure.)
Moreover, there is another long-neglected I.R.S. measure that seems fairly to challenge Congress' sincerity in desiring really to disrupt illegal enterprises like gambling, and that is the proposal to make all expenses incurred in carrying on such enterprises non-deductible. As things presently stand, the illegal expenses of lawful ventures (such as bribes) cannot be written off against income, 181 but the so-called legitimate operating costs of criminal activities (such as the bookies' rent, phone bills, and supplies) are allowable deductions. Why the federal tax laws should thus subsidize organized crime in the same manner as its legitimate victims and competitors has puzzled observers for decades. 182 But the paradox seems never to have troubled Congress. 183
To touch lightly on a few other specific items, I still believe the plain conspiracy measure referred to at the outset of this article would be an improvement over all the verbose embroidery of all the other so-called organized crime measures put together. Sharp distinctions in our drug laws and enforcement policies, distinctions among truly dangerous substances like LSD, truly addicting substances like all the opiates, and truly innocuous substances like marijuana, would help greatly, as would a realistic penalty structure that excluded all possession and recognized trafficking as
179. 94 A. B.A. REP. 883 (1969).
180. Wagering Tax Act Amendments of 1971, S. 431 and H.R. 1010, 92d Cong., 1st Sess. (1971). Congressman Fascell has consistently pressed a similar measure (currently H.R. 4542).
181. 26 U.S.C. § 162(c) (1964).
182. See Baker, The Federal Taxing Power and Organized Crime, 1953 WASH. U.L.Q. 121 (1953).
183. The last bill on the subject S. 3535, 85th Cong., 2d Sess. (1958),
was introduced by Mr. Proxmire on March 21, 1958, and died in committee without hearings.
Curiously, Senator Kefauver himself advocated the change to his readership (E. KEFAUVER, supra
note 51, at 170) but never to his congressional colleagues.
essentially no more than revenue evasion, from the federal viewpoint. The need for a no-nonsense measure to control guns, including, almost certainly, federal regulation with some kind of registration, is obvious and paramount. Laws in the abortion, sex-act, and pornography categories must, to the extent that they now support criminal enterprises and induce crime, be liberalized so they only prohibit the few offenses which truly involve violence or the corruption of children.
Another area which deserves serious attention is the sometimes dubious role of lawyers (and other licensed professionals) as servitors of organized criminal enterprises. The lawyer who moves from defender to counsellor to coconspirator has been an obvious problem on the crime front for decades. 184 He should be dealt with by his professional brethren even before he becomes a putative target for indictment. 185 But the last American Bar Association committee on the subject was disbanded in 1961, and contemporary projects like the new Code of Professional Responsibility186 and Standards Relating to the Defense Functions187 virtually ignored it.
One innovation noted as of possible interest rather than much recommended extending or removing the statute of limitations on key offenses, or key classes of conspiracy, in areas where organized crime is supposed to be flourishing. It is likely that a longer risk of detection and punishment (as in the case of murder) might have more deterrent force than mere increases in the severity of penalties. And a longer limitation on bribery and offenses involving corrupt acquiescence would sometimes let "new broom" regimes swing harder at their fallen predecessors.
A second new area for exploration would be the reverse of all the recent manipulations of antitrust concepts; if businesses and industries really are infiltrated by visible contingents from the underworld, let their simon-pure competitors gang up on the invaders with tactics otherwise outlawed as unfair trade practices.
Finally, though I consider it a venture onto treacherous ground, it may be necessary to readjust our attitudes towards the gambling activity. I do not think we should under any circumstances go to the extreme of legalizing gambling by allowing private entrepreneurs to conduct operations for their
185. See 77 A.B.A. REP. 437-39, 592, 596 (1952); 1 FINAL REPORT, supra note 18, at 69-70, 316 18; 2 Id. at 16-17,187, 195.
186. Adopted by the American Bar Association August 12, 1969. See 5 MARTINDALE-HUBBELL LAW DICTIONARY 263A, 265A (1971). These new Canons contain ample generalization (such as no illegal conduct involving moral turpitude), but only one more or less direct reference to the matter of participation in illegal enterprise [DR 7-102(a)(7)].
187. American Bar Association Project on Standards for Criminal Justice,
approved Feb. 9, 1971. The discussion of Standard 3.7 (Advice and service on anticipated
unlawful conduct), at 219-21, contains helpful cross references to the Code (supra
189. E. REID & 0. DEMARIS, THE GREEN FELT JUNGLE (1963); W. TURNER, GAMBLER'S MONEY (1965).
190. See KING, supra note 39; V. PETERSON, supra
note 39; S. REP. No. 307, supra note 33, at 192-95.