Abstract
The intuition holding that an organized crime leader should be punished more severely than a subordinate who directly commits an offence is commonly reflected in legal literature. However, positing a direct relationship between the severity of punishment and the level of seniority within an organizational hierarchy represents a departure from a more general idea found in much of the substantive criminal law writings: that the severity of punishment increases the closer the proximity to the physical commission of the offence. This paper presents an analysis of the said intuition and attempts to ascertain its roots. Rejecting both retribution and deterrence theory as valid explanations, it will be inferred that the imposition of harsher punishment on organized crime leaders is properly based on the multiplicity of offences for which they are responsible, and not the nature of their involvement in any specific offence.
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Notes
According to Silving, with regard to organized criminal activity involving more than five offenders, the penalty for followers would be double the normal punishment for the offence. This rule would not apply to a spontaneous incident involving multiple participants, in which case the punishment of the leaders and the instigators would be double the penalty specified for the offence, whereas the punishment for followers would be reduced by a third.
CrimC (Jer) 40/61 Attorney General v. Eichmann, [1961] IsrDC 5722 at 3 (§ 197) [in Hebrew] (English translation available at http://www.nizkor.org/hweb/people/e/eichmann-adolf/transcripts/Judgment). This same intuition appears to have been improperly applied in a later judgment by the Israeli Supreme Court, which took it to an extreme regarding the size of the “organization” involved. In CrimA 992/03 State of Israel v. Sugaker (unreported, decided on July 15, 2003) [in Hebrew], a headstone setter at the Beersheba cemetery, named Yitzhak Sugaker, offered to pay a thug the sum of NIS 5,000 to severely harm his competitor. The thug accepted Sugaker’s offer but hired two other individuals for the purpose of carrying out the attack. The Supreme Court held that Sugaker was the main offender and that the four persons involved in the affair constituted a gang under his leadership. For this reason, the Court saw fit to impose a harsher punishment on Sugaker than that imposed on the three other persons involved in the incident. It is unclear to me what exactly led the Court to view Sugaker as the “leader of a gang” and not just a person soliciting a crime (actually, in the “second degree,” i.e., soliciting a solicitor). Perhaps this was because the case involved four parties instead of the usual two, namely, a solicitor and a solicitee. Perhaps it was due to the stratification between them—Party A solicited Party B who, in turn, solicited Parties C and D. One way or another, the interesting thing to note is that the Court’s choice to view Sugaker as the leader of a gang resulted in an abandonment of the principle whereby the severity of punishment is a function of proximity to the commission of the offence and led to an adoption of the intuition to treat the organizational leader more harshly than the subordinate perpetrator.
Fletcher demonstrates that in various legal systems, the punishment for aiders and abettors is lower than, or equal to—but never greater than—that of the direct perpetrator. See Fletcher 1998 at 188–90.
The general notion—of culpability increasing in direct proportion to the degree of proximity to the commission of the offence—is applied only rarely in the context of criminal activity characterized by a hierarchy and a division of labor. For such a rare example, see Alldridge 1996 at 251–4 (stating that the extent of a retail drug dealer’s culpability—for any given amount of drugs sold to a user—is greater than that of the wholesale dealer who supplied the retailer with the drugs, since the retail dealer is closer to the core of the offence, i.e., an exploitation of the user’s weakness).
Apparently, leaders too are exchangeable, as the relatively little success of the "headhunting" strategy in law enforcement suggests (see infra note 22).
The term is derived from Jewish law (Hallacha).
It is also possible that the organized crime leader joined the organization after having himself grown up in a crime-ridden neighborhood and, in such a case, perhaps his own responsibility should be mitigated. However, since this is an individualistic consideration of punishment, quite unrelated to the manner in which the offence was committed, it shall not serve as a focus of analysis in this paper.
Think of an aider providing the robbers with a key to the victim's premises.
At one point in her book, Arendt even states that: “… everyone knows that the analogy with a gang of criminals is applicable only to such a limited extent that it is not really applicable at all …” (Arendt 1977[1963] at 290).
Ibid at 272. Bilsky (2004 at 127) has also stressed that the Eichmann court’s deviation from the basic paradigm linking the extent of responsibility to the degree of proximity to the commission of the crime was due to the singularity of the acts ascribed to Eichmann.
Arendt speaks, in general, about “… the inadequacy of the prevailing legal system and of current juridical concepts to deal with the facts of administrative massacres organized by the state apparatus” (ibid at 294).
Ibid at 276.
Joseph Albini characterizes the power structure of organized crime as flexible and variable (Albini 1971 at 264–7). One such structure is the patrimonial model, under which the links between the different ranks in an organization are not based on master-servant relations but rather on patron-client relations. The patron places resources such as money, information, and government connections at the criminal-client’s disposal, as well as access to important specialists such as thugs, fences, money-launderers, etc. In return, the client grants his patron respect, loyalty, and a share of the profit that he generates under his patronage. The Cosa Nostra is a prominent example of an organization usually described in terms of the patrimonial model. Criminologists note that the lower ranks of this organization are not soldiers receiving orders from above but rather independent criminal entrepreneurs (Cressey 1969 at 114–9; More recent studies demonstrate that the patrimonial model mostly characterizes the New York branch of the Cosa Nostra: see Abadinsky 2006 at 114).
Initiation into criminal organizations usually requires the would-be member to commit crime.
United States v. Salerno 481 US 739 (1987); Garofalo v. Gravano 23 F Supp 2d 279 (1998); United States v. Gigante 925 F Supp 967 (1996); United States v. International Brotherhood of Teamsters 946 F Supp 318 (1996).
In re Metropolitan Crime Commission 251 La 518 (1967).
Including Sugaker, who was no more than a “second-degree solicitor”: see supra note 2.
While it is well recognized that utility can not serve as a sole justification for punishment, it is nonetheless worthwhile to track utilitarian ground as it may be there that the seeds of the intuition examined in the text are planted.
According to Cressey, when criminals act alone or within the framework of small gangs, their chances of becoming affluent are limited (ibid at 78–9), whereas, as he puts it, “[i]f I were at random to throw a stone at one of [the members of the Cosa Nostra], the chances are better than 50–50 that I would hit an American millionaire” (ibid at 30). Cressey adds that the chances of a Cosa Nostra member being arrested are much lower than his chances of being injured in a car accident (ibid at 91). Perhaps this is an exaggeration—and it certainly depends on the driving habits of Cosa Nostra members—but it does reflect general notions regarding the ability of criminals operating within an organized framework to evade punishment and continue their criminal activities.
The economic factor of a reduction in violent crime as a result of organization is akin to the more general argument—which will not be discussed here—that organized crime reinforces the social order by generating conditions for economic security among the weaker sectors of society, which would otherwise be inclined towards violent rebellion. For a development of this argument, see Simon 2006 at 77.
The utilitarian calculation might be different for different areas of crime. Thus, for example, in the field of extortion, an organization might be able to reduce its need to use violence through a single violent act (provided that this succeeds to generate a deterrent reputation for all members of the organization), and, at the same time, save victims from the potential exposure to several individual extortionists (thus creating a degree of certainty regarding the level of extortion fees that better allows victims to run their businesses). However, such considerations would not be relevant to criminal vocations less dependant on a violent reputation, such as drug trafficking.
There is no statistical data regarding the effectiveness of law enforcement focused on punishing organizational leaders (the so-called “headhunting” strategy) and there are good reasons to doubt its efficacy. Given the continuity of a criminal organization, every member is replaceable, so that even following the arrest of an organized crime leader, the organization’s criminal activity will continue. The headhunting strategy could even contribute to the organization’s effective operation by facilitating intra-organizational mobility: the possibility that the organized crime leader will be arrested motivates ambitious members to stick out so that they will be chosen to fill the positions left vacant as a result; this, in turn, reinforces the continuity of the organization. For an examination and appraisal of the headhunting strategy, see Lyman and Potter 2004 at 517–20.
Such enforcement strategies might also generate conditions that reduce the dangers entailed by the services that criminal organizations provide; for example, the organizational head may be more successful than the police in guaranteeing the availability of uncontaminated drugs and safer sexual services.
The focus on environmental factors has gained official recognition, as evidenced, for example, by money-laundering legislation, which requires those providing financial services to report suspicious property transactions (since the enactment of the 1970 Bank Secrecy Act), and the prohibition against providing money-transmitting services to entities that organize illegal gambling on the Internet (see Unlawful Internet Gambling Enforcement Act of 2006).
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Acknowledgments
The author wishes to thank the following people for their help and comments: Saliou Bah, Leora Bilsky, Tal Eldar, Alon Harel, Lukas Heckendorn, Shadi Kabaha, Ruth Kanai, Elkana Laist, Dana Pugach, Yaniv Ron-El, Boaz Sangero, Ron Shapira, Keren Shapira-Etinger, Neil Zweil.
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An earlier draft of this paper was introduced to the joined criminal theory thinking group at Tel Aviv University and Bar Ilan University, and to the research fellows at the Swiss Institute of Comparative Law, Lausanne.
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Eldar, S. Punishing Organized Crime Leaders for the Crimes of their Subordinates. Criminal Law, Philosophy 4, 183–196 (2010). https://doi.org/10.1007/s11572-010-9089-2
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DOI: https://doi.org/10.1007/s11572-010-9089-2