II. The Centrality of Race and Ethnicity in RICO's Enactment

During the first half of the twentieth century, a highly secretive and organized criminal cartel--comprised mostly of members of Italian and Sicilian descent--gained tremendous influence over the American economy. The cartel, also known as "La Cosa Nostra" or "the Mafia," profited by managing illegal gambling enterprises, selling and distributing narcotics, and running prostitution rings. It also infiltrated legitimate businesses by buying them out and conducting underground, black-market transactions to eliminate competitors.

The invisibility and secretiveness of the Mafia created an allure that captivated American society. In response to the increasing economic influence of the Mafia, Congress held an eight-day hearing on organized crime in 1951. Most hearings were untelevised at the time, but three major television networks interrupted regular programming in order to broadcast the organized crime hearings. During the hearings, Senator Estes Kefauver, the chair of Congress's Special Committee to Investigate Organized Crime in Interstate Commerce (also known as the "Kefauver Committee" after Kefauver himself), explained the severity of organized crime to the American public and warned that the Mafia already had tremendous influence in many U.S. cities. The hearings spawned two decades of congressional deliberation and research on organized crime, which ultimately led to RICO's enactment in 1970.

Organized crime was considered a relatively new and salient social problem when Congress passed RICO, but widespread organized violence had existed for decades before the statute's enactment. African Americans were common targets of organized violence for almost one hundred years after the Civil War. Many of these violent crimes were committed by small groups of White individuals, White mobs, and organized White supremacist groups. One study found that approximately 2,500 African Americans were victims of White lynch mobs between 1882 and 1930 in ten Southern states: almost every week, a Black man, woman, or child was murdered. This violence continued through the civil rights movement in the 1960s, when mob violence was used as a way to suppress and deter African Americans from exercising their civil rights.

RICO's legislative history suggests that Congress was specifically concerned about the ability of Mafia members to infiltrate legitimate business practices and obtain economic and political power. But the KKK had similar extraordinary influence within the economic and political spheres. Many politicians and business leaders, both national and local, were affiliated with the Klan. Like the Mafia, KKK members often conducted clandestine operations and hid their affiliations with the organization from the public. Despite these parallels between the KKK and the Mafia, Congress never felt compelled to pass federal legislation to address mob violence against African Americans. Organized violence against African Americans was not considered "organized crime" in the way that we think of the term today.

If organized crime plagued the United States for decades before RICO's enactment, then what was so different about the Mafia that motivated Congress to enact RICO? One significant difference was the perceived non-White ethnicities of Mafia members.

Members of La Cosa Nostra were of Italian and Sicilian descent. For decades prior to RICO's enactment, Italian and Sicilian Americans had been victims of anti-immigrant racism and violence within the United States. New Italian and Sicilian immigrants were ostracized and stereotyped as poor and racially inferior. Anti-immigrant sentiment enabled the U.S. government to frame organized crime as a problem of alien conspiracy. Converging constructions of ethnicity and criminality placed the blame for organized crime on new immigrants, and fostered the belief that organized crime was perpetuated mostly by members of immigrant populations. Ironically, most of the individuals who were prosecuted for organized crime under existing racketeering laws from 1953 to 1959, a few years after the Kefauver hearings, were neither Italian nor Sicilian.

Evidence of anti-immigrant sentiment and alien conspiracy beliefs is found in RICO's legislative history. RICO's congressional proponents did not hide their disdain for La Cosa Nostra. During the Congressional debates, policymakers equated defeating organized crime with defeating La Cosa Nostra. In 1965, five years before RICO's enactment, then-President Lyndon B. Johnson established the President's Commission on Law Enforcement and Administration of Justice. The Commission explicitly connected organized crime with Italian-American criminal groups:

Today the core of organized crime in the United States consists of 24 groups operating as criminal cartels in large cities across the Nation. Their membership is exclusively men of Italian descent, they are in frequent communication with each other, and their smooth functioning is insured by a national body of overseers . . . . FBI [Federal Bureau of Investigation] intelligence indicates that the organization as a whole has changed its name from the Mafia to La Cosa Nostra.

G. Robert Blakey, who drafted the RICO statute as a congressional staffer, commented in 1990 that the statute "was sort of like George Keenan's containment policy of the Soviet Union . . . . We tried it and, by God, it The explicit comparison between RICO and policies of Soviet containment illustrates that RICO was just as much of an attempt to protect the United States from perceived ethnic "outsiders" as it was a dedication to fight organized crime.

In concluding this historical analysis, it is important to acknowledge that RICO is still used by the federal government today to combat Mafia-related crime. These prosecutions, however, were excluded from the empirical study that follows on RICO gang prosecutions because the government did not use "gang-specific" language in its anti-Mafia efforts, even though prosecutors considered Mafia-related crime to be "organized crime." The empirical study only included RICO prosecution cases in which the government used "gang" language or terminology. Although outside of the bounds of the empirical study, the reasons for this exclusion may further suggest the complex ways in which "gang" crime has come to be socially constructed as a phenomenon involving select racial minority groups, especially Blacks, Latinos, and Asians.