THE citizens of Ireland have expressed their outrage at the ruthless and savage murder of Veronica Guerin, a contract style killing apparently ordered by professional criminals. Inevitably, her killing has led to demands for extensive criminal law reform.
It appears that effective investigation and prosecution of professional criminals is virtually impossible under existing laws and procedures. Perhaps the United States experience in prosecuting organised crime through the enactment of the Racketeer Influenced and Corrupt Organisations Act, otherwise known as the RICO statute, may provide a blueprint for such legal reform.
The US Congress enacted RICO as part of the Organised Crime Control Act of 1970. In so doing, Congress was responding to the unchecked growth of organised crime in the US through various illicit activities such as gambling, loan sharking, narcotics trafficking and violent crime. Legislators were principally concerned with the enormous profits generated by organised crime and its infiltration into legitimate business.
Congress said its purpose was "to seek the eradication of organised crime in the United States by strengthening the legal tools in the evidence gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organised crime".
Recognising that punishing individuals engaged in racketeering activity by conventional criminal penalties (such as fines and jail terms) had proven unsuccessful, Congress adopted a new approach, aimed at attacking the economic base of organised crime. It passed comprehensive criminal forfeiture laws aimed at stripping racketeers and drug dealers of their illicit profits.
But enactment of RICO also represented the realisation that the focus in the battle against organised crime needed to shift away from individual prosecutions towards dismantling the foundations that allowed criminal conspiracies to flourish.
UNDER RICO, the central focus of the criminal prosecution is on so called "enterprise criminality". While individuals are still pursued and prosecuted, the work to dismantle the entire criminal organisation is the ultimate objective.
Under US law, the very existence and utilisation of an enterprise to facilitate criminal conduct triggers the application of a whole range of sanctions, including criminal forfeiture. RICO also significantly expands traditional conspiracy law.
The RICO statute eases the problem of having to prove a single agreement or common objective where unrelated individuals are engaged in highly diversified criminal activity.
Rather than prosecuting each defendant separately for crimes committed on behalf of the criminal enterprise or charging numerous smaller conspirators, RICO allows prosecutors to move against a whole range of people engaged in the one criminal conspiracy.
As the US Supreme Court has observed, RICO has provided the prosecution with "new weapons of unprecedented scope for an assault upon organised crime and its economic roots". It prohibits four types of activity in its efforts to target the proceeds of crime:
. Using income derived from a pattern of racketeering activity to acquire an interest in a criminal enterprise;
. Acquiring or maintaining an interest in a criminal enterprise through a pattern of racketeering activity;
. Conducting the affairs of an enterprise through a pattern of racketeering activity;
. Conspiring to commit any of these offences.
Under RICO, it is an offence to operate or conduct a criminal "enterprise" through a "pattern of racketeering activity" or conspiring to do so.
AGAIN a conviction, the prosecution would have to prove that a defendant was employed by or associated with an "enterprise" engaged in or affecting interstate commerce, the affairs of which are "conducted by or participated in" by a defendant through a "pattern of racketeering activity".
Proof of the existence of a criminal enterprise would satisfy the "enterprise" element. The requirement of a "pattern of racketeering activity" could be established by evidence of the commission of two or more acts of "racketeering activity". Furthermore, drug trafficking and the commission of murder and other violent crimes constitute "racketeering activity" under the ICO statute.
The prosecution theory would be at Ms Guerin was murdered by embers of a criminal enterprise ho operated the "enterprise" through a "pattern of racketeering activity" i.e. the commission of drug trafficking and violent crime.
The scope of criminal liability under RICO would extend beyond merely the actual perpetrator, to include any person who aided and abetted or conspired to commit the murder. Thus, the principal, as well as the person who ordered and directed the killing would be punishable for a RICO violation.
While RICO by itself is no panacea, it has proven to be a potent weapon in the prosecutor's arsenal in combating organised crime and major drug trafficking.
