Assessing the Effectiveness of Organized Crime Control Strategies: A Review of the Literature
- 4.9 Witness Immunity
- 4.10 Investigative Grand Juries
- 4.11 Citizens' Commission, Police Commissions, and Community-Based Initiatives
- 4.12 Strike Forces and Task Forces
In the United States’ federal system and in many states, the court or prosecutor may grant immunity to reluctant witnesses in exchange for their testimony (Abadinsky, 2003). There are two types of immunity:
- Transactional immunity, which provides blanket protection from prosecution for crimes about which an individual is required to testify; and
- Use immunity, which prohibits the use of information provided by a person from being used against that person.
There are risks to granting immunity. As these witnesses will usually be hostile, their examiners cannot be sure in advance of the precise value of the withheld testimony (King, 1963). Also, prior to the testimony, there is no way of knowing what crimes are likely to be exonerated. Furthermore, under transactional immunity, there are risks of granting an
"immunity bath", whereby a witness mentions a wide range of crimes he has engaged in knowing that he is immunized from prosecution for any crime he refers to while under oath (Kenney and Finckenauer, 1995:328). Moreover, there may be a perception that immunized testimony is unreliable, because it has been purchased (Rhodes, 1984: 192). Immunity has also been criticized on the grounds that it may be granted by prosecutors as a mere
"fishing expedition" to obtain information without any specific suspects or crimes in mind (Albanese, 1996: 192). In addition, immunized witnesses can still have independently derived evidence used against them and are not immune from civil suits initiated by injured parties.
On the positive side, grants of immunity are said to have a favourable impact on a jury, as the testimony is viewed as more credible. The witness, after all, has little reason to lie and faces perjury proceedings if he does. Perjury proceedings are very rare, however, as they occur just once in every 10,000 grants of immunity (President’s Commission on Organized Crime, 1986).
Overall, Rhodes (1984) asserts that the prosecutor’s power to grant immunity is vital in dealing with OC. In prosecuting low-visibility conspiratorial crimes, he argues that there are few alternatives to obtaining the testimony of one of the conspirators. One illustration of the value of information obtained from informants is the case of Tommaso Buscetta, formerly a member of the Sicilian Mafia. His testimony in Palermo, Sicily and New York City helped convict close to five hundred members of the Sicilian and New York La Cosa Nostra (Kenney and Finckenauer, 1995).
In Canada, there are no statutory provisions for granting a person total immunity from prosecution. A prosecutor does have the discretionary power to refrain from laying charges in return for an undertaking to provide testimony. The Law Reform Commission of Canada discourages this practice, taking the view that this informal system of granting immunity is invisible and lacking in accountability (cited in Beare, 1996). On the other hand, the Quebec Police Commission (1976:211), in its report on OC, found it lamentable that such agreements have been regarded in Canada as misuses of discretionary power. The Commission took the view that,
"…the decision not to lay charges against a suspect, when his collaboration is indispensable for the prosecution of other individuals of a higher rank than himself in the organized crime hierarchy, represents a wise use of power which is entirely compatible with the higher interests of justice."
In summary, there are cogent arguments for and against the granting of immunity. However, this review did not find one shred of empirical evidence attesting to the utility of immunity. This observation is corroborated by Albanese (1996:193):
Unfortunately, no objective empirical evidence has been gathered to provide an indication of the relative costs (in terms of unprosecuted crimes and abuses of immunity) versus the benefits (convictions of upper-echelon organized crime figures). When such information is assembled, a more reliable judgment can be made of how witness immunity can be best used to balance the interests of the public and the interests of the witness.
In the United States’ federal system and in about half the states, a grand jury determines whether sufficient evidence exists to issue an indictment. The grand jury comprises a group of citizens drawn from the voting rolls. Aside from these probable cause determinations, the grand jury may be used for investigative purposes as well. When so used, it has broad investigative authority, including the power to subpoena persons and documents (Abadinsky, 2003: 349). In the federal system and in those states where statutes permit, the grand jury is used to investigate corruption in government and law enforcement, as well as the activities of OC. They function much like citizen commissions, with the added benefit that they can prosecute cases they discover (Albanese, 1996: 197).
The Organized Crime Control Act of 1970, enacted in the United States, requires the convening of a special grand jury at least every 18 months in federal judicial districts with a population in excess of one million. The life of these grand juries can extend to 36 months, allowing for the investigation of complex OC cases. The special grand juries hold secret proceedings during which the prosecutor presents evidence to establish probable cause for indictment. In some jurisdictions, such grand juries have the power to publish reports at the completion of their terms (Albanese, 1996:196). While governments are not required to act on these reports, the publicity associated with their release encourages action.
Stewart (1980:124) refers to the investigative grand jury as:
the single most useful tool by which to attack the traditional forms of organized crime…If the witness testifies truthfully, that witness will be ostracized from the criminal community and thereby neutralized as an organized crime operative…Whenever any appreciable number of lower-level offenders are summoned before an investigative grand jury, the higher-ups in the organized crime structure can never be sure what, if anything, is being said. This alone is sufficient to generate tensions within the organized crime structure.
On the negative side, some prosecutors have used the grand jury to harass those viewed as political undesirables. This happened, for example, to antiwar activists in the 1970s (Kenney and Finckenauer, 1995).
The merits of investigative grand juries is a matter of conjecture as the evidence thus far advanced is anecdotal. Albanese (1996:196) asserts that:
"Unfortunately, there has been no objective evaluation of the benefits (in terms of multi-jurisdictional organized crime prosecutions) versus the costs (in terms of harassment, unwarranted privacy invasions, and Fifth Amendment issues) of investigative grand juries."
Citizens’ commissions have been established periodically in the US to deal with crime-related issues. Among the most productive have been the Chicago and Pennsylvania crime commissions. These investigative commissions have been helpful in the investigation of OC. Prosecutors report that information and intelligence received from crime commissions have been useful in identifying areas for further investigation and in developing cases for prosecution (Albanese, 1996:182).
Rogovin and Martens (1994: 389-90) indicate that crime commissions can be:
- Publicly funded, where investigators have police status but no arrest powers and usually no prosecutorial authority (e.g., Pennsylvania Crime Commission);
- Privately funded with no policing authority (e.g., Chicago Crime Commission);
- Government-sponsored, temporary, and designed to investigate a specific incident or phenomenon (e.g., President’s Commission on Organized Crime, Quebec Police Commission, Knapp Commission on police corruption).
Albanese (1996) notes that aside from their contribution in investigating OC, these commissions focus the public’s attention on the issue through their hearings, reports, and publicity. It has also been found that witnesses are more likely to disclose their knowledge to these commissions because their main task is to collect information, rather than build specific cases. In addition, because crime commissions are not designed to develop specific cases, they can take a long-term approach and examine trends and assess the longer effects of developments in OC.
Crime commissions have the power to subpoena witnesses and to hold public hearings. Such hearings serve as a forum to present their findings and to mobilize public opinion in order to encourage institutional responses. In addition, unlike traditional law enforcement agencies, crime commissions are given immunity through their enabling legislation and, hence, can operate without the fear of lawsuits initiated by aggrieved witnesses (Rogovin and Martens, 1994:392).
Because they are mandated to expose crime rather than prosecute individuals, crime commissions, such as those found in several American states, do not need to support their conclusions by proof beyond reasonable doubt. The Pennsylvania Crime Commission, for example, adopts the civil law standard of clear and convincing evidence. Operating with a lesser standard of proof makes it easier to expose OC conditions and individuals, yet protects against the cavalier condemnation of persons that even a lesser standard might permit (Rogovin and Martens, 1994).
Crime commissions may possess other powers not available to traditional law enforcement agencies. For example, the New Jersey Commission of Investigation can incarcerate an immunized witness for refusing to testify. Incarceration then continues until the witness agrees to testify. Some major OC figures were incarcerated for substantial periods for refusing to testify. The late Angelo Bruno, for example, a member of La Cosa Nostra, was imprisoned for two and a half years—the only period of incarceration he ever served (Rogovin and Martens, 1994:391).
The Pennsylvania Crime Commission’s exposure of racketeering in the state’s solid waste industry illustrates the value of such commissions (Rogovin and Martens, 1994:391). The commission gathered information and elicited testimony to show that out-of-state crime groups had invested in Pennsylvania waste corporations. The historic pattern of operation of these groups indicated that their entry in the waste industry would result in racketeering in Pennsylvania. The commission recommended regulations to prevent such activity from taking place and shared key information with federal authorities to facilitate criminal prosecutions and civil remedies. This type of application of commission powers provides a broader range of options than the criminal prosecutions provided for by traditional law enforcement.
The power of crime commissions to investigate OC on a systemic level and to facilitate institutional change is illustrated by the Pennsylvania Crime Commission’s lengthy investigation of the influence of OC in the city of Chester (Rogovin and Martens, 1994:392). Through informants, electronic surveillance, and private hearings, the commission amassed a portrait of a city that was systematically plundered and literally owned by OC. The commission’s work ultimately led to the first change in the partisan control of Chester’s city government in a century, an unintended result of its fact-finding and public education role.
Another example of pervasive corruption was found by the Knapp Commission in its investigation of the New York City Police Department. The commission’s investigation revealed systematic and organized corruption, particularly in the department’s vice divisions, where bribes were an accepted part of police life (Senna and Siegel, 1996: 338).
The Pennsylvania Crime Commission’s 1980 Report details a substantial number of indictments and convictions that were based on information supplied by the Commission. The report notes, however, that despite the successes achieved by law enforcement agencies during the 1970s, OC flourished during that period (Pennsylvania Crime Commission, 1980:259).
The Chicago Crime Commission is the oldest, most active, and is considered the most respected citizens’ crime commission in the US (Hoffman, 1987:83). It is privately-funded and its roll of donors includes some of America’s most prominent businesses—Sears and Roebuck, Kraft, Amoco. The membership comprises nearly four hundred business leaders, many of whom donate their own expertise to the Commission’s work. The Commission performs a "watchdog" role, monitoring the behaviour of public officials responsible for law enforcement.
The Chicago Commission has engaged in awareness-raising activities in relation to OC on an ongoing basis. Public enemies lists, biographical sketches of OC figures, and related information are continually released to the media and, hence, to the public. The Commission has also lobbied in favour of various bills designed to combat OC (Hoffman, 1987:90).
One of the Chicago Commission’s most innovative programs is the "Business Advisory Name Check Service."This service is designed to provide information to legitimate businesses concerning any criminal connections of a loan applicant, potential employee, client, vendor, or business. Each year, the Commission receives between 3,000 to 5,000 requests for information; however, the majority of these requests come from law enforcement and investigative agencies. Many of the requests also originate from out of state. In 1985, the Commission began to cut back this service due to a lack of resources necessary to comply with federal rules regarding reference checks (Hoffman, 1987:94). For example, the Commission faced a $3 million libel suit initiated by a Chicago man for alleged defamatory statements contained in literature it published. While the name check service may reduce the infiltration of OC in legitimate business, Hoffman (1987) notes that such infiltration is a relatively minor and declining problem.
The Quebec Police Commission (1976), in its inquiry into OC, also seemed to make a positive contribution, although much of the evidence of its impact is anecdotal and advanced by the Commission itself. Charges were brought against a number of OC figures following the public hearings. The Commission claimed that citizens became better informed about OC; in fact, a public survey undertaken on its behalf suggested that the population had learned from the hearings (Quebec Police Commission, 1976:315). The Commission claimed that informing citizens was empowering, leading them to resist submitting to fear and intimidation. There was more evidence, according to the police, of cooperation with the authorities, an indication of greater confidence in the justice system. The Commission also claimed that many gangsters kept a lower profile and even left the province or country to avoid testifying before it. Such inactivity or exile was said to disrupt activities associated with OC.
A downside of government-sponsored commissions is that they can be dissolved by the government. Political interference seemed to be at the root of the dissolution of the Pennsylvania Crime Commission in 1994, after this body issued a report linking the State Attorney General to illegal video poker vendors (Albanese, 1996:183). Such commissions are bipartisan in composition and, hence, intended to be politically neutral.
Critics of crime commissions have also expressed the concern that civil liberties can be violated because traditional rules of evidence do not apply and because public commissions are immune from libel or defamation. Crime commissions can become ideological battle fields for those bent on destroying an opponent’s reputation. Rogovin and Martens (1994:399) assert that while these concerns are legitimate, the benefits of these commissions justify the risks inherent in pursuing the delicate balance between the rights of citizens and the prevention of OC.
This review found no objective, empirical study of the impact of commissions. Hoffman (1987:83) adds that,
"No systematic study has ever been conducted on private sector efforts directed against organized crime. And previous studies of citizen participation in crime prevention…failed to examine either the role of the economic elite or citizens’ crime commissions in efforts directed against organized crime."
While some evidence shows that commissions have produced convictions and even the disruption of certain OC activities in certain localities, such accomplishments need to be directly linked to Commission activities. In addition, convictions alone are not an indication of a diminution of OC activities and the disruption of the activities of a group may be temporary. Furthermore, the curtailment of the activities of one group may lead to the emergence of others. A systematic assessment of the effects of a commission’s activities would entail the careful selection of outcome measures, along with a comparison of OC before and after the work of a commission or the comparison of jurisdictions with an active commission to similar jurisdictions lacking such a commission.
As for grassroots efforts to combat OC, the review found no systematic evaluations of such initiatives. An example of this type of initiative was the mobilization against arson on the part of residents of various Boston neighbourhoods in the early 1980s (Brady, 1982). The urban fiscal crisis at that time contributed to the deterioration of both residential and commercial housing. Arson for profit escalated in eastern US cities as a means of financing the renovation or conversion of buildings. Both criminal organizations and legitimate businesses played a role in this activity. Community action took the form of the resident occupation of various fire departments that were slated for closing. Brady’s study contains no discussion of the impact of the community mobilization in Boston on the arson problem. He speculates that, to achieve success, arson-for-profit ought to be tackled through fundamental change in an economic system that provides incentives for such activity, rather than punitive measures focusing solely on those igniting the buildings.
In 1966, the first US "Organized Crime Strike Force" was established in Buffalo, New York (General Accounting Office, 1989). This strike force brought together a team of attorneys and agents from various federal investigative agencies, operating under the Organized Crime and Racketeering Section of the US Department of Justice. The aim was to mount a coordinated attack upon local OC by identifying the power structure of the local OC family, targeting key individuals within the organization, and initiating prosecutions that were most likely to seriously disrupt its operations. The Buffalo Strike Force operated until the end of 1968 and brought indictments against more than 30 individuals involved in OC (General Accounting Office, 1989:8).
Because of the apparent success of the Buffalo Strike Force, these forces were established throughout the US. As of February 1989, there were 14 such strike forces. The strike forces concentrated their efforts on La Cosa Nostra and succeeded in convicting high-level OC figures in Boston, Chicago, New York, Milwaukee, and Cleveland (General Accounting Office, 1989:14). Many of these individuals received lengthy prison sentences. However, no information is available from the 1989 audit as to the number of indictments or convictions achieved. An earlier audit revealed that strike forces convictions, including those of high-echelon figures, often yielded non-custodial or short prison sentences (General Accounting Office, 1977:24-27). However, no comparison is provided in terms of the conviction rates or sentences imposed for comparable cases prosecuted by offices other than the strike forces.
The General Accounting Office (1989:27; 1977:17) lamented the fact that no overall measures of effectiveness were established for the strike forces. Notwithstanding the lack of an evaluation strategy, the GAO (1977:7), in its 1977 audit, declared the strike forces unsuccessful because there had been no coordinated national effort to fight OC. Rather,
" Federal efforts against organized crime are more the result of individual decisions made at the local level than the result of a national strategy, as originally envisioned…In practice, each participating agency fights organized crime as it sees fit" (General Accounting Office, 1977:7). Variations in the definition of OC and the lack of agreed-upon aims were seen by the GAO as contributing to this failure.
In addition, jurisdictional disputes arose between the strike forces and US Attorney’s Offices (General Accounting Office, 1989:21). US Attorneys are the chief federal prosecutors in the judicial districts and they, too, prosecute OC cases in the same regions covered by the strike forces. The conflicts and coordination problems led to the call by an advisory committee to phase out the strike forces and to integrate them within the US Attorneys’ Offices as early as 1974. The strike forces were ultimately disbanded in 1989 as independent entities and were, in fact, merged into US Attorneys’ Offices. As a result, many experienced strike force prosecutors resigned from the US Justice Department (Jacobs and Gouldin, 1999:160).
Organized Crime Drug Enforcement Task Forces, headed by US attorneys, were established in 1983 to identify, investigate, and prosecute high-level drug traffickers (General Accounting Office, 1989). Their aim was to eliminate high-level drug operations through the coordination of federal resources. As of 1989, there were 13 drug task forces in the US and participating agencies included US attorney offices, Drug Enforcement Administration, FBI, US Customs Service, US Marshals Service, Bureau of Alcohol, Tobacco, and Firearms, Internal Revenue Service, the Coast Guard, and state and local law enforcement agencies. Housed in US Attorneys’ Offices, assistant US attorneys work with the initiating law enforcement agency in establishing electronic surveillance, engaging in undercover operations, using investigative grand juries, administering asset forfeitures, and performing other activities usually required in complex drug investigations (Lyman and Potter, 1997:430-431).
In the first two and one-half years, the task forces produced 1,721 indictments against 6,545 defendants, the majority through plea agreements (President’s Commission on Organized Crime, 1986:319; General Accounting Office, 1987:13). The conviction rate is about 95 percent in cases reaching disposition and assets seized approach the cost of the program. In its first two years, assets seized totaled US$158 million and forfeitures totaled US$52 million (General Accounting Office, 1987:9). In addition, close to US$10 million in fines were assessed during the first two years of the program. The task forces have also enhanced international cooperation among law enforcement agencies as nearly half the cases target organizations that are international in scope.
In Canada, the Organized Crime Agency of British Columbia (2001/2002) operates like the American task forces. Established in 1999, it has developed close working relationships with many Canadian law enforcement agencies, as well as the Canada Customs and Revenue Agency, the FBI, and the US Drug Enforcement Agency, among others. On average, projects include eight to nine partners. While no independent assessment as to the outcome of OCABC operations have been conducted, its 2001/2002 Annual Report claims that it has caused
"disruption and suppression of organized crime group activities such as geographic displacement, friction and mistrust among crime groups and disruption of drug distribution networks" (OCABC, 2001/2002:14). In addition, one case led to the confiscation of $6 million in assets.
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