Bridging a Gap in the Fight Against Italian Organized Crime: A Comparative Analysis of RICO and 416-bis
For over a century, organized crime has posed unique challenges to national governments’ law enforcement efforts. These groups stand somewhat distinct from other criminal enterprises.[1] Typically, organized crime syndicates are characterized by their continued existence and systematic extraction of profit from illicit activities, often through intimidation, violence, and corruption of public officials.[2] Perhaps the most visible of these entities is La Cosa Nostra (LCN), better-known colloquially as the Italian-American Mafia.[3] Crafting legal responses to groups like LCN has proven particularly challenging for national governments in both the United States and Italy. With the advent of the Racketeer Influenced Corrupt Organizations Act (RICO), the American federal government has made major strides in dismantling LCN’s extensive criminal enterprises. However, Italy’s ambitious rollout of a similar statute (Italian Penal Code Article 416-bis, or “416-bis”) has proven comparatively limiting in the prosecution of Italy-based Mafia groups.
Recalibrating Criminal Legal Responses to Mafia Groups
Prior to RICO and 416-bis, the national governments had few effective tools to prosecute organized crime.[4] In 1970, Congress passed RICO which created an unprecedented capacious set of criminal and civil enforcement tools tailored to organized crime, making it expressly unlawful for a person “to be employed by or associated with any enterprise […] in the conduct of such enterprise’s affairs through a pattern racketeering activity or collection of unlawful debt.”[5] It additionally imposed substantial penalties on defendants who have committed at least two predicate acts in concert with the racketeering affairs of an enterprise. Using an “enterprise rationale,” the federal government decimated LCN, perhaps most notably during the “Commission Trial” which resulted in the convictions of the heads of New York’s “Five Families” and many of their street-level enforcers.[6]
The creation of an effective analog to RICO in Italy faced its own unique challenges and permutations spanning back to the 1950s. In 1982, the Italian Parliament enacted the La Torre-Rognoni Act (416-bis) which allowed Italian prosecutors to target groups of three or more people whose mission and characteristic crimes emulated the Mafia.[7] To constitute a Mafia-type association, the government must show that the group takes advantage of 1) its intimidating power and 2) of the resulting conditions of submission, while 3) abiding by or enforcing omerta—a code of fear-induced silence that prohibits cooperation with law enforcement.[8] However, the law has had limited success in carrying out its ultimate objective.
416-bis’s Impediments and Potential Lessons from RICO
Since its early days, prosecutors have struggled to mount cases that sufficiently satisfy 416-bis’s definition of “Mafia-type association.”[9] While seemingly capacious, the law fails to define terms such as “membership” or “belonging”, creating difficult problems of over- and under-inclusivity.[10] In one such early case in 1983, the presiding magistrate refused to permit prosecutions of nearly a third of the one thousand plus people Italian law enforcement had arrested for alleged Mafia affiliation.[11] In that instance, prosecutors acknowledged that hundreds had been improperly looped into the fray on evidence as meager as “attendance at Mafia trials, prison receipts of money orders from Mafia-controlled areas, and letters written by known Mafia members.”[12]
In contrast, while RICO also has a broad definition of what constitutes a criminal enterprise, U.S. prosecutors have clearer guidelines in terms of associational language, in part due to the extensive array of predicate crimes that suffice to trigger the statute. Take for instance the requirement that under RICO, a defendant must have committed more than one predicate crime over a ten-year period.[13] In order for RICO to activate, the prosecution need only show commission of two or more predicate acts, even if they were discrete, finite crimes.[14] In contrast, Italian courts have treated 416-bis as applicable only when the charged number of crimes is indefinite.[15] This structural gap produces two problems: first, it places a practically unworkable standard with which Italian prosecutors are forced to work with that limits the applicability of 416-bis; second, absent clearer evidentiary standards, prosecutors risk looping in a wider swath of otherwise innocent parties at the expense of leaving sophisticated career mobsters untouched. In looking to potential reforms, perhaps the sweeping scope and approach taken by the crafters of RICO may offer something of a roadmap to better combatting the Mafia in Italy.
Vincenzo Guido is a staff member of Fordham International Law Journal Volume XLVII.
[1] See Defining Organized Crime, U.N. Office on Drugs and Crime, https://www.unodc.org/e4j/zh/organized-crime/module-1/key-issues/defining-organized-crime.html (last visited Feb. 5. 2024).
[2] See id.
[3] See Jennifer Hunter, Why the Mafia continues to fascinate, Toronto Star (Sept. 20. 2015), https://www.thestar.com/news/insight/why-the-mafia-continues-to-fascinate/article_ba0e7f5c-abd8-58b5-8adf-41f2acfd8520.html.
[4] See Benjamin Scotti, Rico vs. 416-bis: A Comparison of U.S. and Italian Anti-Organized Crime Legislation, 25 Loy. L.A. Int'l & Comp. L. Rev. 143, 148 (2002).
[5] Id. at 150.
[6] See Mahita Gajanan, The Story Behind Netflix’s Fear City And How the Mafia Took Control of New York, Time (July 22, 2020), https://time.com/5869561/fear-city-netflix-documentary/.
[7] See Scotti, supra note 4, at 159.
[8] See Henry Biggs & Pietro Festorazzi, Fuhgeddaboudit: Trying Times for Trying the Mafia under RICO and 416-bis, 42 N.C. J. Int'l L. 823, 840-41 (2017).
[9] See Scotti, supra note 4, at 145.
[10] See id. at 161.
[11] See id.
[12] See id.
[13] See Biggs & Festorazzi, supra note 8, at 838.
[14] See id.
[15] See id.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.