RICO: Rethinking Interpretations of
Criminal Organizations
Lucy Litt*
Prosecutions under the federal criminal Racketeer Influenced and
Corrupt Organizations Act (18 U.S.C. §§ 1961–1968, hereinafter
referred to as “RICO”) and the related Violent Crimes in Aid of
Racketeering Activity Act (18 U.S.C. § 1959, hereinafter referred to as
“VICAR”) are being used to target alleged street gangs that are not the
complex criminal organizations for which the RICO statute was originally
intended.
RICO prosecutions have an inappropriate and
disproportionately negative impact on young Black and Brown men
(including adolescents) in low-income communities. Law enforcement
officers use notoriously inaccurate gang databases to target these RICO
investigations, arrests, and prosecutions. Young people of color are
overrepresented in gang databases, and this overrepresentation is a
major factor driving their overrepresentation in gang raids and RICO
prosecutions.
DOI: https://doi.org/10.15779/Z38W37KW7T
Copyright © 2021 Regents of the University of California.
*
JD candidate, 2022, Harvard Law School; previously held positions include middle
and high school boys’ special education teacher at Horizon Juvenile Detention Center
(South Bronx, NY), corrections oversight research assistant for Professor Michele Deitch
(University of Texas at Austin School of Law), and program officer working with and on
behalf of adults who were sexually abused in custody at Just Detention International. The
people I acknowledge below do not necessarily endorse the views I present in this Article,
and they did not all work with me as I wrote it. Still, their influence and faith in me have
been invaluable; I would not have been able to write this Article without them. I would
first like to thank Judge John Gleeson (now a Partner at Debevoise & Plimpton LLP) for
the opportunity to write an early version of this paper in his outstanding Complex Federal
Investigations course. I am also grateful to Professors Andrea Armstrong; Susannah
Barton-Tobin, Philip Burling, Jeanne Charn, Michele Deitch, Sharon Dolovich, Jack
Goldsmith, Justin Hansford, Jon Hanson, Ben Heineman, Jr., James Kraska, Andy Lass,
Bruce Mann, Daniel Medwed, Martha Minow, Lynn Morgan, Charles Nesson, Lynn
Pasquerella, Preston Smith II, Ronald Sullivan, Scott Westfahl, David Wilkins, Lucas
Wilson, the HLS librarians, and Dean John Manning. Special thanks to my family,
including Seth and Angela, for their love, generosity, and willingness to learn alongside
me; to C.S. for indispensable patience and suggestions throughout my writing process;
and to D.W. for thought partnership since my first detention center internship in 2010. I

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If gang databases are faulty and are also infused with bias, then
it is appropriate to question whether the raids and prosecutions that are
based on those databases are also faulty and infused with bias. Therefore,
given the influence of flawed gang databases on the use and impact of
RICO, we must examine its legitimacy as applied to alleged street gangs.
The inaccurate and biased dragnet created by RICO street gang
prosecutions sweeps up many people who are not involved in the targeted
organizations and certainly are not contributing members of complex and
criminal conspiracies. Courts that interpret RICO and VICAR broadly
create a low bar for prosecutors and a nearly insurmountable one for
defendants in these cases. Consequently, young Black and Brown men
who were inappropriately charged in the first place decide to plead guilty
to avoid the draconian sentences imposed by the RICO Act.
If the RICO Act were an effective response to organized crime,
then the targeted crimes would presumably have diminished in the lowincome communities of color in which young Black and Brown men are
arrested and charged under RICO—resembling the decrease in La Cosa
Nostra activity over the past few decades (due at least in part to RICO).
That demonstrably has not happened, and the people directly and
indirectly affected are suffering the consequences of ineffective and
inappropriate law enforcement intervention.

have the utmost appreciation for the Berkeley Journal of Criminal Law editors, who gave
me this opportunity and provided exceptionally thoughtful feedback (especially my
fantastic point people, Alexis Hoffman and Tal Ratner Solovey). Credit is also due to
my Alvin Ailey and Justice Initiative communities; Amanda David; Woody Clift;
Stephen Wilder; William McField; Shareef Rashid; Cami Anderson; Nicole Mallon;
Maria Meinerding; Dr. Zulma Ortiz; Pauline Wilson; Margaux Zanelli; Lovisa Stannow;
Leelyn Aquino-Shinn; Amalia Robinson Andrade; Christian Vien; Kris Mady; Kristi
Jobson; Alex Feinson; Enumale Agada; Lindsey Roseman-Valente; Ashley Austin;
Joanna Carns; Bill Van Der Pol; Michelle Kim Hall; Hannah Makowske; Kaitlynn
Milvert; Stacey Menjivar; Zarka Shabir; Liz Hutton; Marvellous Iheukwumere; Gigi
Kisela; Seran Gee; Breanne Parker; Ata Nalbantoglu; Anna Sherman-Weiss; Amber
Aspinall; Mo Light; David Dapaah-Afriyie; Andrew Mettry; Carly Margolis; Sarah
Sadlier; Zekariah McNeal; Molly Boast; Tanya Williams; Elaine Brigham and several
others for their inspiration, insight, and support. Most importantly, I am indebted to my
former students, clients, and their loved ones for their trust, allowing me into their worlds,
and teaching me so much—this Article is dedicated to them, and they drive all that I do.

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This paper problematizes the application of the federal RICO and
VICAR statutes to alleged neighborhood gangs in low-income
communities. It provides a brief history of the RICO Act and its VICAR
expansion; analyzes the aforementioned issues, including how racial bias
informs RICO “gang” prosecutions; and proposes reforms to begin
addressing the systemic injustice these prosecutions cause.
Introduction......................................................................................... 74
I.The RICO and VICAR Statutes: An Abridged History ...................... 83
II.Elements of Federal RICO Claims ................................................... 86
III.Young Black and Brown Men From Low-Income Communities
are Overrepresented in Flawed Gang Databases and the
Misguided RICO Prosecutions Those Gang Databases
Enable ....................................................................................... 90
A. Gang Databases are Inaccurate............................................ 92
B. Young Black and Brown Men are Overrepresented in
Gang Databases .................................................................. 97
C. Law Enforcement Officials Rely on Flawed Gang
Databases for RICO Prosecutions ..................................... 100
D. Bias in the Gang Policing and Prosecution Apparatus
Calls Into Question the Legitimacy of RICO as Applied
to Alleged Street Gangs .................................................... 101
E. Additional Consequences of Inaccurate and Biased Gang
Policing and Prosecution................................................... 101
F. Floyd v. City Of New York: A Potential Tool With
Which to Challenge the Constitutionality of Racially
Biased Gang Databases ..................................................... 103
IV.The Alleged Street Gangs are Not Complex Criminal
Conspiracies ............................................................................ 106
A. Gangs: An Overview ........................................................ 107
B. Alleged Gang Member Categories and Misconceptions .... 109
V.Broad RICO And VICAR Interpretations: The ViolenceEnterprise-Commerce Continuum ........................................... 112
A. Violence ........................................................................... 114
B. Enterprise ......................................................................... 117
C. Commerce ........................................................................ 119
VI.Evidentiary and Procedural Imbalances In RICO Prosecutions of
Alleged Neighborhood Gangs.................................................. 121
A. The Bronx 120 Raid as a Procedural Imbalance Case
Study ................................................................................ 122
B. Double Jeopardy, Previous Offenses, and Statutes of

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Limitations ....................................................................... 124
C. Social Media..................................................................... 127
D. Lack of Indictment Specificity .......................................... 128
VII.Racial Disparities and Profiling in Gang Classification and
RICO Prosecutions .................................................................. 128
VIII. RICO “Street Gang” Convictions Circumvent Courts and Do
Not Make Communities Safer ................................................. 132
IX.Proposed Reforms ........................................................................ 138
Conclusions....................................................................................... 145
Appendix A ....................................................................................... 149

INTRODUCTION
Prosecutions under the federal criminal Racketeer Influenced and
Corrupt Organizations Act1 (“RICO”) and the related Violent Crimes in
Aid of Racketeering Activity Act2 (“VICAR”) have an inappropriate and

1

18 U.S.C. §§ 1961–1968. For a summary of the RICO Act, see CONG. RSCH. SERV.,
96–950, RICO: A BRIEF SKETCH, (2021), https://fas.org/sgp/crs/misc/96-950.pdf.
2
18 U.S.C. § 1959.

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disproportionately negative impact on young3 Black and Brown4 men and
3

References to young people throughout this Article are meant to encompass minors
through those in their early twenties. Brain development continues to occur during this
phase, and the available data suggests that many, if not most, of the defendants in RICO
cases against alleged “neighborhood gangs” fall within this age range; see, e.g., BABE
HOWELL & PRISCILLA BUSTAMANTE, REPORT ON THE BRONX 120 MASS “GANG”
PROSECUTION 14, THE BRONX 120 PROSECUTION (2019), https://bronx120.report/thereport (“The average age of the Bronx 120 defendants [who were charged as part of a
mass gang raid in 2016,] was 25 years old . . . . 110 of the defendants were thirty years
of age or younger, with an average age of 23. Because the conspiracy went back to 2007,
these 110 defendants’ average age was only 14 when prosecutors claimed that a RICO
conspiracy was formed . . . . Of course, individuals can join an existing conspiracy years
after it begins, but many of the Bronx 120 were quite young even at indictment . . . the
youngest charged defendants were 18 . . . they were [all] indicted for a conspiracy that
dated back nine years.”); see also CONG. RSCH. SERV., supra note 1, 28–29, (citing Miller
v. Alabama, 567 U.S. 460, 479 (2012); United States v. Gonzalez, 981 F.3d 11, 18–21(1st
Cir. 2020); United States v. Sierra, 933 F.3d 95, 97 (2d Cir. 2019); United States v.
Chavez, 894 F.3d 593, 609 (4th Cir. 2018); Roper v. Simmons, 543 U.S. 551 (2005);
Atkins v. Virginia, 536 U.S. 304 (2002); and Enmund v. Florida, 458 U.S. 782 (1982))
(“Juveniles convicted of murder in aid of racketeering have sometimes challenged their
sentences on grounds of Eighth Amendment limitations. In Miller, the Supreme Court
held that the Eighth Amendment’s ban on cruel and unusual punishments precludes a
mandatory sentence of life imprisonment without any possibility of parole for an offense
the defendant committed while a juvenile. However, Congress has largely abolished
parole, and the VICAR provision states that murder ‘shall be’ punished by one of two
sentences—death or life imprisonment. The Fifth Circuit resolved the issue under a
similarly worded statute by concluding that in the case of juveniles the language
establishes alternative maximum penalties and ‘provides discretion to the sentencing
judge to sentence anywhere between no penalty and the maximum penalty.’ Most
recently, the Supreme Court in Jones v. Mississippi observed that a juvenile who commits
a homicide when under the age of 18 may be sentenced to life imprisonment without the
possibility of parole as long as the sentencing authority did so as a matter of discretion
and might have imposed a less severe sentence. A number of other lower federal courts
have rejected Miller protection claims from over-aged VICAR murder defendants. The
Eighth Amendment also cabins sentencing authority in capital cases. It forbids imposing
the death penalty upon juveniles; execution of [people with intellectual disabilities]; and
forbids sentencing to death those convicted of felony-murder who neither killed,
attempted to kill, nor intended to kill. In United States v. Savage, the Third Circuit upheld
a sentence of death for a drug dealer convicted of RICO conspiracy, twelve counts of
murder in aid of racketeering, conspiracy to commit murder in aid of racketeering,
witness retaliation, and fire bombing. Savage, who ordered the firebombing that killed
his intended victim and five other occupants of the house, argued unsuccessfully that the
Enmund felony-murder limitation should be extended to accomplices who incur liability
by operation of the transferred intent doctrine.”) (internal citations omitted).
4
Throughout this Article, I capitalize the “B” in “Black” and “Brown” in recognition
of the fact that the terms encompass the several ethnic groups that collectively experience
discrimination and violence across ethnicities when perceived as a single Black or Brown
“race.” In particular, white people stripped myriad Black people of their ethnicities

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adolescents5 in low-income communities.6 Law enforcement officers use
through enslavement, so the term “Black,” can also provide a sense of identity and
community to people who choose that identifier. Several Black journalists and diversity
guides observe a general preference for capitalization of the term “Black,” and other
racial and ethnic categories are often capitalized (e.g., Asian (race) and Peruvian
(ethnicity)). Outside of what I have written in this Article, if someone whom I might call
“Black” or “Brown” for the present purpose expresses their preference for another term
(e.g., Senegalese, or Jamaican), I honor that request; however, I have chosen to use
“Black” and “Brown” in this Article to hopefully avoid causing harm. As a white person,
my decision not to capitalize “Black,” and even “Brown,” could, arguably, be an
orthographic violation. With that said, Black and Brown people do not operate as a
monolith; they differ on this subject among themselves. I also acknowledge that the terms
“Black” and “Brown” can obscure the vast heterogeneity within and across these “identity
categories.” I would likely perpetuate the most harm by using terms like “non-white,”
and I do not know how each of the individuals who collectively comprise the young men
targeted as alleged gang members would wish to be described. I do not capitalize “white”
in this Article because that term has a different history: capitalizing “white,” especially
as a white person myself, risks perceived alignment with, or at least validation of, white
supremacists. Any error, ignorance, or misrepresentation in this Article is entirely my
own, and I appreciate readers’ grace in reading my work.
5
Throughout this Article, I will use the term “young Black and Brown men” to refer to
the young Black and Brown men and adolescents who are disproportionately targeted and
harmed in federal criminal RICO prosecutions of the nature I describe. I will also
occasionally say “young men of color” or “young people” to refer to this group, but I try
to be as specific as possible throughout. Young women also identify as “gang members”
and are sometimes targeted as such; the number of incarcerated women has also increased
in recent years. See, e.g., ZHEN ZENG, U.S. DEP’T OF JUSTICE, JAIL INMATES IN 2018
(2018), https://bjs.ojp.gov/content/pub/pdf/ji18.pdf; WENDY SAWYER, PRISON POLICY
INITIATIVE, THE GENDER DIVIDE: TRACKING WOMEN’S STATE PRISON GROWTH (2018),
https://www.prisonpolicy.org/reports/women_overtime.html; ALEKS KAJSTURA, PRISON
POLICY INITIATIVE, WOMEN’S MASS INCARCERATION: THE WHOLE PIE 2019 (2019),
https://www.prisonpolicy.org/reports/pie2019women.html; Nazish Dholakia, Women’s
Incarceration Rates Are Skyrocketing. These Advocates Are Trying to Change
That, VERA INST. JUST. (2021), https://www.vera.org/blog/womens-voices/womensincarceration-rates-are-skyrocketing. Still, the number of incarcerated women remains
much smaller than the number of incarcerated men, and young men have been central to
the gang studies field. Accordingly, I have decided to focus entirely on young men in
this paper, but the effects of gang policing and prosecution on young women warrant
further research.
6
Alice Speri, The Largest Gang Raid in NYC History Swept Up Dozens of Young
People Who Weren’t in Gangs: The Prosecution of the Bronx 120 Raises Serious
Questions About Due Process and the Abuse of Federal Conspiracy Charges, INTERCEPT
(Apr. 25, 2019), https://theintercept.com/2019/04/25/bronx-120-report-mass-gangprosecution-rico/ (“Police and prosecutors spent years building a case against the Bronx
120. When the conspiracy allegedly started, in 2007, the average age of those who would
eventually be swept up in it was 14. The youngest were 9. By the time the raid happened,
most of those involved in crimes had already been caught by the system — and most
others had moved on with their lives, if not out of the neighborhood, and had jobs and

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notoriously inaccurate gang databases to target RICO investigations,
arrests, and prosecutions. Young people of color are overrepresented in
gang databases, and their overrepresentation is a major factor driving their
overrepresentation in gang raids and RICO prosecutions. Given the
influence of flawed gang databases on the impact of the RICO Act, we
must question the legitimacy the RICO Act as applied to alleged street
gangs. If gang databases are flawed and may also be infused with bias,
then it is appropriate to question whether the raids and prosecutions that
are based on those databases are also flawed and infused with bias.
The inaccurate and biased dragnet created by RICO street gang
prosecutions sweeps up many young people who are not involved in the
targeted organizations at all and certainly are not contributing members
of complex criminal conspiracies. Courts that interpret RICO and VICAR
broadly in these cases create a low bar for prosecutors and a nearly
insurmountable one for defendants. 7 Consequently, young Black and
Brown men who were inappropriately charged in the first place decide to
plead guilty to avoid the draconian sentences imposed by the RICO Act.
Once an individual is charged under RICO, escaping the statute’s
grasp is nearly impossible. RICO and VICAR convictions lead to severe
sentences by design, including possible sentence enhancements for the
activities of other people with whom a defendant was merely associated
(or alleged to have been associated). 8 Separate and apart from whether
families.”). While some cases, such as the Bronx 120 cases (formally entitled United
States v. Burrell, S2 15-CR-95 (S.D.N.Y. 2016) and United States v. Parrish, S1 16-CR212 (S.D.N.Y. 2016)) to which I frequently refer as an example, involve additional
charges (e.g., conspiracy to distribute narcotics; charge of possession or use of a firearm),
I will focus on RICO and VICAR for the purposes of this paper. Both RICO and VICAR
are common prosecutorial tools in mass “gang” indictments that target young Black and
Brown people in low-income communities. While outside the scope of this paper, it is
worth noting the following from HOWELL & BUSTAMANTE, supra note 3, at 19:
The 35 [Bronx 120 defendants] accused of selling marijuana (typically a
misdemeanor at state law) were all required to plead to federal felonies.
Conspiracy and federal sentencing law[s allow] aggregation of the amount of
marijuana that all the defendants sold during the span of the conspiracy (120
defendants over nine years). As a result, most individual defendants had to
plead to participating in a conspiracy to sell more than 50 kilos of marijuana.
7
For federal prosecutors, some RICO cases involve VICAR charges while others do
not; the result either way is a colossal advantage for prosecutors over defendants.
8
Prosecutors can charge conspiracy in these kinds of cases with relative ease—they
only need to show the existence of an agreement and intent to commit some target crime.
This means that a small group of friends could say that they will steal from a local store,
but if one of them looks up the hours or address of the store (an overt act towards the
target offense), prosecutors can conceivably prove a conspiracy charge against the entire
group. However, children are rarely assumed to have the maturity to enter into binding

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they are deemed unlawful, the practical consequences are likely not what
Congress intended. In theory, the criminal statutes Congress passes
presume that the courts will apply them fairly over time—that innocent
people can have faith in the system and will exercise their right to an
adversarial trial, complete with safeguards protecting their due process
rights. Instead, as I will discuss in greater detail, most RICO “street gang”
prosecutions circumvent the courts: in many cases, people who are
innocent, or at least did not participate in a complex criminal organization,
plead guilty to avoid harsh RICO-sanctioned sentences—a decision that
can still result in a felony record, incarceration, and other forms of
punishment. Since much of the plea-bargaining process occurs outside of
public scrutiny, Congress might not even know how prosecutors currently
use the statute or the extent to which defendants are opting into plea deals.
Thus, the consequences of inappropriately overextending this robust
prosecutorial tool9 are vast and especially evident among young Black and

agreements—especially of the magnitude that warrant lengthy prison sentences—and it
is not clear that becoming part of a so-called “crew” requires an agreement and specific
intent to commit target crimes. See Speri, supra note 6 (explaining that, in the 2016
“Bronx 120” gang raid, 35 people were ultimately convicted of federal conspiracy
charges based on selling marijuana, which is only a misdemeanor in New York State.
Unfortunately, the aggregate drug sales amounted to over 50 kilograms of marijuana
(whether or not any of this was even common knowledge) across all defendants in the
raid, throughout the duration of the alleged conspiracy; multiple defendants were charged
with the aggregate amount, rather than the much smaller quantities each might have
sold.); see also HOWELL & BUSTAMANTE, supra note 3, at 7 (“In federal and state ‘mass
takedown’ indictments, defendants generally face conspiracy charges, whether ordinary
or RICO conspiracy. . . . As a substantive matter, proof of conspiracy does not require
proof that a person committed a particular target crime, was present at the time of the
crime, or even knew of the crime. Instead, to prove conspiracy, the prosecution need only
prove the existence of an agreement to commit a target crime, and that some party to the
agreement committed an overt act in furtherance of the agreement. The agreement need
not be explicit, but [it] can be inferred from conduct or circumstantial evidence. Thus,
although in theory the prosecution must prove beyond a reasonable doubt an agreement
to commit a crime, they need not prove that crimes were ever discussed, planned, or
specifically agreed to, instead, they can point to commission of crimes as proof of
agreement. . . . In a typical case, proof of the crimes of other individuals would be
excluded as irrelevant. In contrast, if a defendant is accused of a conspiracy robbery,
evidence of every robbery any member of the group [or alleged group] has ever
committed . . . can be admitted at trial to support the inference that joining or associating
with the group shows the agreement to agree to commit robbery.”) (internal citations
omitted).
9
City University of New York (CUNY) School of Law Professor and Interim Senior
Associate Academic Dean Fareed Nassor Hayat has used the term “weapons” instead of
“tools” in his gang policing and prosecution scholarship. Much of my analysis in this
Article supports his rationale for implementing the term “weapons,” and I have included

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Brown men from low-income communities.
Prior legal scholarship has addressed racial profiling, gang
databases, gang statutes, and the RICO Act, but it rarely addresses the
convergence of these issues. One recent article by Keegan Stephan (a
journalist, community organizer, 2019 graduate of the Cardozo School of
Law, and current judicial law clerk at the Eastern District of New York) 10
engages with upstream practices that influence the outcomes I emphasize
in this Article by analyzing how the vagueness doctrine as proposed in
City of Chicago v. Morales,11 and later applied in Floyd v. City of New
York,12 might provide an opportunity to challenge the constitutionality of
discriminatory gang databases on the same basis as the successful 2013
challenge to former stop-and-frisk policies in New York City. Certainly,
a similar approach could apply in the RICO context as described in this
Article, but further analysis of that possibility is beyond the scope of this
paper. Importantly, the gang policing and prosecution research by Babe
Howell (professor at City University New York (CUNY) School of Law)
and Priscilla Bustamante (adjunct lecturer at Baruch College and Ph.D.
candidate at CUNY), especially with respect to the Bronx 120 gang raid,
as well as legal scholarship by Fareed Nassor Hayat 13 (Interim Senior

his explanation here. See Fareed Nassor Hayat, Killing Due Process: Double Jeopardy,
White Supremacy and Gang Prosecutions, 69 UCLA L. REV. DISC. 18, 20 n.1 (2021),
available at https://www.uclalawreview.org/killing-due-process-double-jeopardy-whitesupremacy-and-gang-prosecutions/ (“This Article uses the word weapons rather than
tools because the prosecutorial state designs and weaponizes laws against Black and
Brown people in furtherance of mass incarceration.”).
10
Keegan Stephan, Conspiracy: Contemporary Gang Policing and Prosecutions, 40
CARDOZO L. REV. 991 (2019), http://cardozolawreview.com/conspiracy-contemporarygang-policing-and-prosecutions.
11
City of Chicago v. Morales, 527 U.S. 41, 97 (1999).
12
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (appeal dismissed
by Second Circuit pursuant to joint stipulation by the parties).
13
I do not detail the work and relevance of abolitionist efforts to dismantle harmful and
historically racist institutions (especially police and the prison industrial complex) in this
Article, but this Article should not be construed to undermine their important work. The
abolition movement is relevant to the issues I discuss here, and that connection warrants
further attention. This Article is intended to offer insight into the current problem of
racial bias in federal criminal RICO and VICAR gang prosecution and to inspire action
that will halt its resulting harms, detailed herein, to low-income communities of color.
Still, what I propose in this Article is not itself enough—at best, I offer some steps on the
route to an end that abolitionists have long envisioned. For more on gang policing and
prosecution through an abolitionist lens, see Fareed Nassor Hayat, Abolish Gang Statutes
with the Power of the 13th Amendment: Reparation for the People, WASH. & LEE L. REV.
(forthcoming),
abstract
available
at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3981955 (“[T]his paper calls upon

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Associate Dean for Academic Affairs and Associate Professor at CUNY
School of Law) were instrumental as I crafted my arguments.14
As noted, this Article discusses the unaddressed convergence of
racial profiling, gang policing and prosecution practices, and the RICO
Act; it does so by demonstrating that application of the statute to young
Black and Brown men in alleged neighborhood gangs is inappropriate,
ineffective, and has a disproportionately harmful impact on these young
men and on low-income communities of color generally. Only one piece
of legal scholarship, by Professor Jordan Blair Woods,15 raises the central
problem described in this Article; however, that article was published ten
years ago and emphasizes somewhat different aspects of the problem.
This Article will introduce generative updated information and expanded
analysis necessary to reengage with the important issue of RICO as
inappropriate, ineffective, and harmful in its application to young Black
and Brown men from low-income communities.
This Article challenges the application of the federal RICO and
VICAR statutes to alleged neighborhood “gangs” (hereinafter
interchangeably called “criminal street gangs”16) in low-income
the United States Supreme Court to . . . target anti-gang statutes as but one incident of
slavery that must be toppled. . . . [It] offers a proposal for the reallocation of funds
towards anti-racist structural change and a centering of community justice based in the
power of the Thirteenth Amendment.”). I have also included a non-exhaustive list of
abolitionist materials and texts for easy reference: Amna Akbar, An Abolitionist Horizon
for (Police) Reform, 108 CAL. L. REV. 1781, 1784 n.6, 1817–37 (2020); ANGELA Y.
DAVIS, ARE PRISONS OBSOLETE? (2003); CRITICAL RESISTANCE, WHAT IS THE PIC?
WHAT IS ABOLITION?, CRITICAL RESISTANCE, http://criticalresistance.org/about/not-socommon-language/ (last visited Dec. 26, 2021); MARK MORRIS, INSTEAD OF PRISONS: A
HANDBOOK FOR ABOLITIONISTS, (PRISON RSCH. EDUC. ACTION PROJECT 1976); Rachel
Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind, N.Y.
TIMES MAG. (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/magazine/prisonabolition-ruth-wilson-gilmore.html; Intercepted: Ruth Wilson Gilmore Makes the Case
For Abolition, INTERCEPT (June 10, 2020), podcast and transcript available at
https://theintercept.com/2020/06/10/ruth-wilson-gilmore-makes-the-case-for-abolition/;
ALEX S. VITALE, THE END OF POLICING, (2018); MORGAN BASSICHIS, ALEXANDER LEE &
DEAN SPADE, Building an Abolitionist Trans and Queer Movement with Everything
We’ve Got, in CAPTIVE GENDERS: TRANS EMBODIMENT AND THE PRISON INDUSTRIAL
COMPLEX, (Eric A. Stanley & Nat Smith, eds., 2011); MAYA SCHENWAR &VICTORIA
LAW, PRISON BY ANY OTHER NAME: THE HARMFUL CONSEQUENCES OF POPULAR
REFORMS (NEW PRESS 2020); MARIAME KABA & NAOMI MURAKAWA, WE DO THIS ‘TIL
WE FREE US, (Tamara K. Nopper ed., HAYMARKET BOOKS 2021).
14
See, e.g., HOWELL & BUSTAMANTE, supra note 3, at 9–10.
15
Jordan Blair Woods, Systemic Racial Bias and RICO’s Application to Criminal Street
and Prison Gangs, 17 MICH. J. RACE & L. 303, 311 (2012).
16
I employ the statutory terms “gang” and “criminal street gang” to promote clarity in
my analysis of the disparate harm caused by RICO and VICAR prosecutions, but these

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communities: charging young Black and Brown men as “gang members”
under RICO damages their lives, their loved ones, their communities, and
their prospects for legitimate employment. The practice also recklessly
exceeds the statute’s intended purpose.17 In this Article, I analyze these
issues and propose reforms.
At the outset, it is important to note that the limited available data
about RICO gang prosecutions makes it difficult to prove to a certainty
the thesis that these prosecutions have a disproportionately negative
impact on young Black and Brown men in low-income communities. The
Department of Justice (“DOJ”) does not share information with the public
about the alleged gangs it prosecutes under RICO, groups it chooses not
to label as gangs, and groups it declines to prosecute as gangs under
RICO.18 Consequently, criminologists rarely conduct empirical studies
on RICO prosecutions. Only four such studies have been published, and
just one of those four analyzes RICO within the racial bias and gang
prosecution context.19 The one criminologist who has evaluated racial
bias and gang prosecution under RICO was further limited in that he could
terms should not be read to suggest inherent criminality among neighborhood groups of
young Black and Brown men and adolescents.
17
Speri, supra note 6 (“‘It may be illegal, but let’s leave it to New York State to
prosecute the drug cases,’ said [Melissa Geller, a lawyer who specializes in RICO cases
and previously represented an alleged Bronx gang member]. ‘Do we really need to
decimate this entire community to make a point? . . . All you’re doing is putting an entire
generation of people in jail.’”); see also HOWELL & BUSTAMANTE, supra note 3, at 10
(“RICO . . . was designed as a powerful tool to combat organized crime, particularly
when such crime infiltrated the legitimate economy . . . . Congress armed federal
prosecutors with the RICO Act . . . to root out wealthy, criminal enterprises that could
hide criminality in legal enterprises or informal associations, retain the most sophisticated
legal teams, and avoid prosecution using ill-gotten wealth . . . . In contrast to the wellresourced ‘criminal racketeering enterprise’ that was the target of RICO as initially
conceived, the 120 defendants named in the April 2016 [Bronx 120] indictment are nearly
all indigent.”).
18
See Woods, supra note 15, at 311.
19
See id. at 323 (explaining that, as of 2012, “three criminological studies on RICO’s
application in criminal contexts [had] been published. None of these studies specifically
examines RICO’s application to gang prosecutions.” Professor Woods’ study was the
first criminological RICO study to focus on gang prosecutions and racial bias); see, e.g.,
Martin G. Urbina & Sara Kreitzer, The Practical Utility and Ramifications of RICO:
Thirty-Two Years After Its Implementation, 15 CRIM. J. POL. REV. 294, 294 (2004)
(providing a general practitioner survey about the use and effects of RICO); John
Dombrink & James W. Meeker, Racketeering Prosecution: The Use and Abuse of RICO,
16 RUTGERS L. J. 633, 642–44 (1985); Carlo Morselli & Lila Kazemian, Scrutinizing
Rico, 12 CRITICAL CRIMINOLOGY 351, 359 (2004). The last two studies each evaluated
over 75 federal appellate RICO cases to assess trends in applications of the RICO statute
by courts.

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not rely on past studies or cases available in legal databases, given the
large number of RICO defendants who agree to plea bargains (presumably
at least in part to avoid the likely draconian impact of not doing so in these
cases). 20
I have included highly suggestive data about racial disparities in
federal racketeering and extortion “offender” numbers reported to the
United States Sentencing Commission (controlling for gender, age, and
level of educational attainment) in Appendix A to this Article. That data,
while compelling, could also be less than representative of the full story.
DOJ data limitations create challenges to proving racial bias or racially
disparate outcomes in federal criminal RICO “street gang” prosecutions.
With that said, news articles21 covering mass street gang arrests in major
20

See
MARK
MOTIVANS,
FEDERAL
JUSTICE
STATISTICS
(2019),
https://www.bjs.gov/index.cfm?ty=pbdetail&iid=6506 (explaining, “Of the 76,639
defendants whose cases were terminated in U.S. district courts in 2016, 91% were
convicted . . . . More than 9 in 10 defendants charged with immigration (98%), weapons
(94%), drug (92%), property (92%), and violent (91%) offenses were convicted. In 2016,
89% of defendants were convicted following a guilty plea, and 2% of convicted
defendants received a bench or jury trial.”); see also Woods, supra note 15, at 324 (citing,
Donald Crump, Criminals Don’t Pay: Using Tax Fraud to Prohibit Organized Crime, 9
HOUS. BUS. & TAX. L. J. 386, 391 (2009) (“Because RICO charges are easy for the
prosecution to prove, defendants will often choose a plea bargain.”)); Joan Wong, Prisons
are packed because prosecutors are coercing plea deals. And, yes, it’s totally legal., NBC
NEWS (Aug. 8, 2019), https://www.nbcnews.com/think/opinion/prisons-are-packedbecause-prosecutors-are-coercing-plea-deals-yes-ncna1034201 (paraphrasing the Pew
Research Center: “of the roughly 80,000 federal prosecutions initiated in 2018, just two
percent went to trial. More than 97 percent of federal criminal convictions are obtained
through plea bargains, and the states are not far behind at 94 percent.”); Alice Speri, New
York Gang Prosecutions Use Conspiracy Charges to Criminalize Whole Communities,
INTERCEPT (June 7, 2018), https://theintercept.com/2018/06/07/rico-gang-prosecutionnyc/ (“Defendants in these kinds of cases, often from New York City’s poorest
neighborhoods, can’t afford to hire attorneys. The conspiracy charges they face — in the
Bronx case, under . . . RICO, a federal law passed in 1970 to combat the Mafia — are
broad and hard to fight, because proving individuals ‘conspired’ with others accused of
crimes is easier for prosecutors than proving they committed that crime . . . . Ninetyseven of the 103 individuals charged after the 2014 Manhattan raid — on state charges
— entered guilty pleas. Of the 120 defendants charged following the Bronx raid, 110
have pleaded so far [on federal charges].”).
21
See generally Karen Savage & Daryl Khan, Teens Remain Squarely in Crosshairs of
NYC Law Enforcement, Panelists Say, JUV. JUST. INFO. EXCH. (Feb. 13, 2017),
https://jjie.org/2017/02/13/teens-remain-squarely-in-crosshairs-of-nyc-lawenforcement-panelists-say/; Clarissa Sosin, A Civil Rights Movement Grows in Brooklyn,
YOUTH TODAY (Mar. 22, 2017), https://youthtoday.org/2017/03/a-civil-rightsmovement-grows-in-brooklyn/; Max Rivlin-Nadler, A Year After NYC’s Biggest “Gang
Raids,” Families Say It’s Just Stop And Frisk By Another Name, VILL. VOICE (Apr. 28,
2017), https://www.villagevoice.com/2017/04/28/a-year-after-nycs-biggest-gang-raids-

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U.S. cities over the past thirty years offer overwhelming evidence that
young Black and Brown men from low-income communities are the
primary suspects who are later convicted and harshly sentenced through
federal RICO prosecutions.22
I.

THE RICO AND VICAR STATUTES: AN ABRIDGED
HISTORY

The RICO statute was enacted by Congress in 1970 with the goal
of protecting white Americans from organized crime by targeted ethnic
groups.23
Specifically, legislators enacted RICO in response to
constituents’ growing concerns about the threat of La Cosa Nostra (also
known as the “Mafia”), a complex enterprise involving many people who
were engaged in extensive, organized, criminal activities throughout the
United States, that was infiltrating and threatening legitimate businesses.
Whether the Italians who were targeted were considered “white” in that
era remains controversial, and they did experience anti-immigrant
discrimination and violence, especially before World War II; AngloSaxon Americans, who were more definitively considered “white”
throughout the nineteenth and early twentieth centuries, did not share that
experience of discrimination. Politicians cited members of immigrant
ethnic groups as the perpetrators of organized crime. In the years leading
up to the enactment of RICO, members of the Mafia were mostly of Italian
descent;24 therefore, Italian Americans became one of the original
targeted ethnic groups in the early years of the RICO Act. 25

families-say-its-just-stop-and-frisk-by-another-name/; Speri, supra note 6.
22
See, e.g., United States v. Parrish, 755 F. App’x 59 (2d Cir. 2018).
23
Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, 941–48
(codified as amended at 18 U.S.C. §§ 1961–68 (2006)).
24
The term “Italian” here is meant to encompass descendants from within the modern
geographical boundaries of Italy, including Sicily. Some scholars describe the Mafia as
being comprised of both Italians and Sicilians. My referring to those involved in the
Mafia as “Italian” is not meant to discount the historical tensions and discrimination
Sicilians have endured for being considered non-Italian; see generally Woods, supra note
15.
25
See, e.g., THE PRESIDENT’S COMM’N ON LAW ENF’T AND ADMIN. OF JUSTICE, TASK
FORCE REPORT: ORGANIZED CRIME 6–10 (1967) (President Lyndon B. Johnson
established the President’s Commission on Law Enforcement and Administration of
Justice shortly before the enactment of the RICO Act. That commission proclaimed a
direct connection between Americans of Italian descent and organized crime: “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 . . . .”); see also Frank D’Angelo,

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In the 1980s, as the “War on Drugs”26 became a recognized
phenomenon, the Supreme Court issued its United States v. Turkette
opinion, in which it attempted to crystalize the definition of a RICO
enterprise; unfortunately, the Court settled on a very broad interpretation
that led to the inconsistency among federal courts that I describe in more
detail later in this Article.27 Still, the broad “enterprise” definition, which
largely stemmed from concerns about organized crime threatening
legitimate businesses, coalesced with the similarly ambiguous “criminal
street gang” definition in federal gang statute 18 U.S.C. § 521(a) (2002)
to provide prosecutors tremendous support in targeting the predominantly
low-income Black and Brown people perceived to be the “threat” at the
heart of the crack boom. Further, RICO provided the foundation for state
gang statutes, the application of which has been reflective of the racist
myth that young Black and Brown men from low-income communities
Turf Wars: Street Gangs and the Outer Limits of RICO’s “Affecting Commerce”
Requirement, 76 FORDHAM L. REV. 2075, 2080–81 (2008) (outlining the legislative
history of the RICO Act in greater detail, including a discussion of the Kefauver and
McClellan Committees, a 1965 congressional address by President Lyndon B. Johnson
discussing organized crime, President Johnson’s “Katzenbach Commission,” and the
collaboration between Senators John L. McClellan (D-AR) and Roman Hruska (R-NE)
that led to Senate Bill 30, which was the precursor to what ultimately became the RICO
Act); see generally Woods, supra note 15, at 310–11 (“RICO’s legislative history
suggests that racial stereotyping was a key factor motivating RICO’s enactment . . . .
Some scholars may explain RICO’s enactment in terms of the broad expansion of federal
criminal laws during the second half of the twentieth century. But the included historical
analysis makes it difficult to deny the connection between RICO, racial subordination,
and the protection of mainstream white America. The urgent need for a federal statute to
protect American society from criminal groups like the Mafia (Italian and Sicilian
‘outsiders’) has transformed into an urgent need for a federal statute to protect American
society from [‘]criminal groups[’] like the Bloods, Crips, and MS-13 (Black and Latino
‘outsiders’)” (internal citations omitted); id. at 311 n.38 (citing MARCELLA BENCIVENNI,
ITALIAN IMMIGRANT RADICAL CULTURE: THE IDEALISM OF THE SOVVERSIVI IN THE
UNITED STATES, 1890-1940, 8 (2011)) (“To Anglo-Saxon Americans, the looks, habits,
and cultural traditions of the new immigrants appeared backward, primitive, and
ultimately inferior. Italians were seen as not only of a lower stock, but also frequently
not as ‘white.’”) (also citing DAVID R. ROEDIGER, WORKING TOWARD WHITENESS: HOW
AMERICA’S IMMIGRANTS BECAME WHITE. THE STRANGE JOURNEY FROM ELLIS ISLAND TO
THE SUBURBS (2006)).
26
This phrase is in quotes because it was a misnomer that played a significant role in
America’s incarceration crisis. See Michelle Alexander, The New Jim Crow, 9 OHIO ST.
J. CRIM. L. 7, 12 (2011) (“The War on Drugs and the ‘get tough’ movement explain the
explosion in incarceration in the United States and the emergence of a vast new racial
undercaste. In fact, drug convictions alone accounted for about two-thirds of the increase
in the federal system and more than half of the increase in the state prison population
between 1985 and 2000.”).
27
United States v. Turkette, 452 U.S. 576, 583 (1981).

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are violent, dangerous, and “gang-affiliated.”28
Elected officials were incentivized by the “War on Drugs” to shift
some of the attention they were dedicating to white-collar and Mafia
forms of organized crime to drug trafficking and violence in low-income
urban neighborhoods.29 Today, use of the RICO statute has expanded to
encompass “street gangs” such as the Bloods, Crips, MS-13, and small
neighborhood “crews,” which are predominantly Black and Latino/x.30
Thus, the historic subordinating and racially stereotyping effects of the
RICO Act have shifted to Black and Latino/x alleged “criminal street
gangs,” very loosely defined. Congress passed the RICO Act to enable
prosecutors to target sophisticated networks colluding in illegal activities;
the statute was not designed for the amorphous, often informal,
neighborhood groups to which it is now being applied.
Prosecutors have numerous advantages when they bring RICO
charges against alleged street gangs. Fundamental among those
prosecutorial advantages is the centrality of enterprise theory31 to RICO
prosecutions—this renders evidence of the conduct of everyone in an
entire group admissible against everyone in the group, beyond evidence
of any individual defendant’s acts.32 RICO sentences are extremely
28

See Hayat, Killing Due Process, supra note 9, at 21–24 n.7–8, 22 (first quoting Frances
Lee Ansley, Stirring the Ashes: Race, Class, and the Future of Civil Rights Scholarship,
74 CORNELL L. REV. 993, 1024 n.129 (1989); then quoting ISABEL WILKERSON, CASTE:
THE ORIGINS OF OUR DISCONTENTS 17 (2020); and then citing Fareed Nassor Hayat,
Preserving Due Process: Applying Monell Bifurcation to State Gang Cases, 88 U. CIN.
L. REV. 129, 138 (2019)); Woods, supra note 15, at 304 (citing NATALIE Y. MOORE AND
LANCE WILLIAMS, THE ALMIGHTY BLACK P STONE NATION: THE RISE, FALL, AND
RESURGENCE OF AN AMERICAN GANG 169 (Chi. Rev. Press, 2001)); MICHELLE
ALEXANDER, THE NEW JIM CROW 162–65, 190, 199–200 (2011).
29
See Speri, supra note 6.
30
Woods, supra note 15, at 311.
31
See id. at 305 (“From a prosecutor’s perspective, RICO’s focus on the criminal activity
of group enterprises, as opposed to the criminal activity of individuals, provides major
advantages over other criminal laws to combat gangs. RICO’s reliance upon enterprise
theory enables prosecutors to introduce all aspects of a gang’s history and criminal
conduct into evidence. The scope of admissible evidence is thus not limited to the
conduct of specific defendants.”) (internal citations omitted).
32
See MICHAEL C. CERNOVICH, GANGS, ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES,
1334–35 (Paul Finkelman, ed., vol. 1 2006); Speri, supra note 6 (“In practice, that means
that if someone is claimed to be a member of a gang and is found guilty of selling
marijuana as part of the gang’s activities, then that person is also liable for any other
crimes committed by the gang as a whole. ‘If a defendant is accused of a conspiracy to
commit robbery, evidence of every robbery any member of the group has ever committed,
as well as knowledge that the group committed other crimes, can be admitted at trial,’ the
[2018 report by INTERCEPT] notes. ‘Showing that a defendant was nowhere near the scene

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lengthy, and they are easily enhanced based on a defendant’s level of
cooperation with grand juries and the prosecution, or the nature of conduct
attributed to the defendant (e.g., violent acts can invite a VICAR charge
in addition to a RICO charge). Violent Crimes in Aid of Racketeering
Activity was one of the offenses Congress added when it passed the
Comprehensive Crime Control Act of 1984.33 VICAR was originally
codified in 18 U.S.C. § 1952B, and it was updated to its current version
in 1988.34 This provision serves as a corollary to RICO, and VICAR
charges can be added to RICO charges against alleged gang members to
compound the effect of both statutes for violent offenses committed with
any connection to a purported RICO enterprise.35
II.

ELEMENTS OF FEDERAL RICO CLAIMS

The RICO Act prohibits a variety of acts when their commission
relates to a pattern of racketeering activity.36 This statute has been used
to prosecute cases in the areas of government corruption and white-collar
crime, among others, in addition to street gangs.37 Pursuant to 18 U.S.C.
§ 1962, RICO claims require that the government establish three elements
about the defendant: (1) formal or informal ties with an “enterprise”; (2)

of the actual robbery would be no defense . . . . The single defendant is faced with the
prospect of defending against allegations relating to all the crimes committed by the
defendant himself as well as dozens of co-conspirators over a span of years,’ the [2018
report by INTERCEPT] continues.”).
33
See U.S. DEP’T OF JUST., VIOLENT CRIMES IN AID OF RACKETEERING 18 U.S.C. § 1959:
A
MANUAL
FOR
FEDERAL
PROSECUTORS,
1
n.1
(2006),
https://www.justice.gov/sites/default/files/usam/legacy/2014/10/17/vcar.pdf.
34
See id.; see also Stantini v. United States, 268 F. Supp. 2d 168, 180 (E.D.N.Y 2003);
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690 § 7053(b), 102 Stat. 4402 (1988)
(clarifying, “[a]fter noting that the statutes the defendants were convicted of violating
were re-numbered from 18 U.S.C. §§ 1952B(a)(5) and (a)(1) to 18 U.S.C. §§ 1959(a)(5)
and (a)(1) without substantive change, he states the following . . . . His view of § 1959
suggests that it is aimed at a conspiracy only and not at a substantive offense. He is
wrong.”).
35
See infra Part IV for further explanation of the advantages that RICO and VICAR
afford federal prosecutors.
36
See, e.g., 18 U.S.C. § 1962(b) (“It shall be unlawful for any person through a pattern
of racketeering activity or through collection of an unlawful debt to acquire or maintain,
directly or indirectly, any interest in or control of any enterprise which is engaged in, or
the activities of which affect, interstate or foreign commerce.”).
37
See id. (“It shall be unlawful for any person through a pattern of racketeering activity
or through collection of an unlawful debt to acquire or maintain, directly or indirectly,
any interest in or control of any enterprise which is engaged in, or the activities of which
affect, interstate or foreign commerce.”); see generally United States v. DeLeon, No.
CR 15-4268, 2020 WL 353856 (D.N.M. Jan. 21, 2020).

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engagement in a pattern of racketeering activity; (3) engagement in
enterprise activities that affect interstate or foreign commerce. 38
Prosecutors are subject to limited accountability39 and can assert
extremely broad statutory interpretations when attempting to demonstrate
that each of these three elements has been satisfied.
The government must establish at least two predicate acts in order
to establish a pattern of racketeering activity, “the last of which [must
have] occurred within ten years (excluding any period of imprisonment)
after the commission of a prior act of racketeering activity.”40
Racketeering activities include state-law felonies41 and violations of
federal law.42 18 U.S.C. § 1961(1) enumerates extensive predicate acts
(both state and federal) that satisfy this requirement.43 Here, too,
prosecutors can assert that, even if a defendant was otherwise acquitted, a
mere allegation can sometimes qualify as a “predicate act” for the purpose
of establishing a pattern of racketeering activity for a RICO charge. 44
38

18 U.S.C. § 1962(c).
See Woods, supra note 15, at 340–43 (discussing “how easy it is for the government
to construct groups of racial minorities who are involved in criminality as criminal street
gangs for RICO purposes . . . . One interpretation . . . is that the term ‘gang’ has taken
on a racialized meaning, independent of its formal definition under the law, which
increases the likelihood that crimes committed by small groups of racial minorities will
be labeled as gang-related crimes . . . . [T]he Esmond Street Crew, the Pitch Dark Family,
and the Chain Gang/Wolf Pack cases show that law enforcement and prosecutors are
sometimes the primary players in this labeling process, and that racial stereotypes enable
these players to use race as a proxy in order to construct crime, perhaps erroneously, as
gang-related. The low burden of proof that the government must meet to establish a
RICO criminal enterprise facilitates these racially biased constructions of group
criminality. The incredible difficulty of raising a successful selective prosecution claim
under the U.S. Constitution makes it even more difficult to challenge these racially biased
constructions of gang crime.”).
40
18 U.S.C. § 1961(5).
41
18 U.S.C. § 1961(1)(A) (State-law felonies).
42
18 U.S.C. § 1961(1)(B)–(G) (Violations of federal law).
43
See 18 U.S.C. § 1961(5) (“[A]t least two acts of racketeering activity, one of which
occurred after the effective date of this chapter and the last of which occurred within ten
years (excluding any period of imprisonment) after the commission of a prior act of
racketeering activity”); 18 U.S.C. § 1961(1)(A) (“[A]ny [state or federal] act or threat
involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in
obscene matter, or dealing in a controlled substance . . . any act which is indictable under
[§ 1961(1)(B)–(G)].”).
44
See CONG. RSCH. SERV., supra note 1, at 1 n.5–6 (“The statute describes these
underlying offenses as “racketeering activities.”). 18 U.S.C. § 1961(1) (defining
“racketeering activity” to mean “any act or threat involving” specified state offenses, any
“act which is indictable under” specified federal statutes, and certain federal “offenses”).
They are often referred to as “predicate offenses.” RJR Nabisco, Inc. v. Eur. Cmty., 579
39

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18 U.S.C. § 1962 (2006) requires that the pattern of predicate
racketeering activity affect interstate or foreign commerce in some way.
During the first few years after RICO was enacted, courts wrestled with
whether interstate or foreign commerce needed to be affected by the
enterprise, on the one hand, or by the predicate racketeering acts, on the
other.45 Today, the majority of courts take a broad view that an
enterprise’s predicate acts need only have a de minimis (or trivial) effect
on interstate or foreign commerce. 46
There is some controversy among the circuit courts over two
questions the Commerce Clause (U.S. Const. Art. I, § 8, cl. 3) raises with
respect to RICO: (1) whether it is constitutional to prosecute
predominantly non-economic47 organizations under RICO; and (2)
whether the government must prove that the non-economic organization’s
racketeering activities have a sizable impact on interstate commerce. The
Sixth Circuit has held that RICO can only be constitutionally applied to
U.S. 325, 329–30 (2016) (“RICO is founded on the concept of racketeering activity. The
statute defines racketeering activity to encompass dozens of state and federal offenses
known in RICO parlance as predicates.”); Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089,
1092 (9th Cir. 2015) (“A RICO claim requires a racketeering activity (known as predicate
acts).”); Sean M. Douglass & Tyler Layne, Racketeer Influenced Corrupt Organizations,
48 AM. CRIM. L. REV. 1075, 1080–81(2011), at 9 (listing the state and federal crimes that
qualify as RICO predicate offenses); see also D’Angelo, supra note 25, at 2083 (citing
18 U.S.C. § 1962(b)–(c), 1962(d), 1963(a) (2000); James B. Jacobs & Lauryn P. Gouldin,
Cosa Nostra: The Final Chapter, 25 CRIME & JUST. 129 (1999) (“A defendant charged
with violating RICO may be sentenced for each of his predicate acts, meaning the
substantive crimes that were committed to acquire or maintain interest in the enterprise
or conduct the affairs of the enterprise. But, in addition, a defendant faces a twenty-year
maximum sentence for a RICO violation and up to twenty additional years if the
government can prove there was a conspiracy under RICO.”) (internal citation omitted).
45
See, e.g., United States v. Nerone, 563 F.2d 836, 853–54 (7th Cir. 1977) (favoring the
enterprise-commerce nexus approach).
46
See United States v. DeLeon, No. CR 15-4268, 2020 WL 353856, at *97 (D.N.M. Jan.
21, 2020) (“Courts of Appeals repeatedly have held that ‘Lopez did not alter the principle
that where the type of activity at issue has been found by Congress to have a substantial
connection with interstate commerce, the government need only prove that the individual
subject transaction has a de minimis effect on interstate commerce.’”) (quoting United
States v. Miller, 116 F.3d 641, 674 (2d Cir. 1997). United States v. Castleberry, 116 F.3d
1384, 1386 (11th Cir. 1997).
47
Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004) (offering a discussion of the
reach of the Commerce Clause, and whether Congress can regulate non-economic
activity, such as violence, that has an aggregate effect on interstate commerce. The Sixth
Circuit explains how restrictions on congressional authority to regulate non-economic
activity under the Commerce Clause have evolved as a result of three main cases: United
States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995); United States v. Morrison, 529 U.S.
598 (2000); and Jones v. United States, 529 U.S. 848 (2000)).

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non-economic organizations engaged in activities that substantially affect
interstate commerce—violence alone is not enough to qualify a noneconomic organization for prosecution under RICO.48 Conversely, the
First Circuit has emphasized the de minimis standard, holding that noneconomic organizations qualify for RICO prosecutions as long as their
actions have any impact on interstate commerce.49
VICAR adopts the RICO definition of racketeering 50 and requires
a defendant to have committed, or attempted to commit, an underlying
state-law offense, (e.g., murder; kidnapping; various forms of assault). 51
The requisite underlying offense translates into a federal VICAR violation
when committed either as (1) consideration for receiving or compelling a
promise of “anything of pecuniary value” in connection with the RICO
enterprise; or (2) “for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering activity.”52
VICAR provides as follows:
(a) Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of
pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering
activity, murders, kidnaps, maims, assaults with a dangerous
weapon, commits assault resulting in serious bodily injury upon,
or threatens to commit a crime of violence against any individual
in violation of the laws of any State or the United States, or
attempts or conspires so to do, shall be punished—
(1) for murder, by death or life imprisonment, or a fine under
this title, or both; and for kidnapping, by imprisonment for
any term of years or for life, or a fine under this title, or both;
(2) for maiming, by imprisonment for not more than thirty
years or a fine under this title, or both;
(3) for assault with a dangerous weapon or assault resulting in
serious bodily injury, by imprisonment for not more than
twenty years or a fine under this title, or both;
(4) for threatening to commit a crime of violence, by
imprisonment for not more than five years or a fine under this
title, or both;
See id.; see, e.g., ORGANIZED CRIME & GANG SECTION, U.S. DEP’T OF JUST., CRIMINAL
RICO 18 U.S.C. §§ 1961–1968: A MANUAL FOR PROSECUTORS 376–77 (6th ed., May
2016), https://www.justice.gov/archives/usam/file/870856/download.
49
See United States v. Nascimento, 491 F.3d 25, 37–38 (1st Cir. 2007).
50
See 18 U.S.C. § 1961(1); 18 U.S.C. § 1959(b)(1).
51
18 U.S.C. § 1959(a).
52
Id.
48

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(5) for attempting or conspiring to commit murder or
kidnapping, by imprisonment for not more than ten years or a
fine under this title, or both; and
(6) for attempting or conspiring to commit a crime involving
maiming, assault with a dangerous weapon, or assault
resulting in serious bodily injury, by imprisonment for not
more than three years or a fine . . . under this title, or both.
(b) As used in this section—
(1) “racketeering activity” has the meaning set forth in section
1961 of this title [18 USCS § 1961]; and
(2) “enterprise” includes any partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity,
which is engaged in, or the activities of which affect, interstate
or foreign commerce.53
The VICAR definition “includes any partnership, corporation,
association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity, which is engaged in, or the
activities of which affect, interstate or foreign commerce.”54 In order to
prove “association-in-fact,” the government must establish that the
enterprise has (1) a common purpose, (2) associates who are acquainted
with one another, and (3) been established for long enough that members
can pursue their common purpose.55
III.

YOUNG BLACK AND BROWN MEN FROM LOW-INCOME
COMMUNITIES ARE OVERREPRESENTED IN FLAWED GANG
DATABASES AND THE MISGUIDED RICO PROSECUTIONS
THOSE GANG DATABASES ENABLE

Some researchers have theorized that the majority of
neighborhood gangs are per se comprised of Black and Brown young
people engaged in criminal activity,56 but this is a flawed assumption:

53

18 U.S.C. § 1959.
18 U.S.C. § 1959(b)(2) (emphasis added).
55
See United States v. Kamahele, 748 F.3d 984, 1003 (10th Cir. 2014); Boyle v. United
States, 556 U.S. 938, 948 (2009); United States v. DeLeon, No. CR 15-4268, 2020 WL
353856, at *53 (D.N.M. Jan. 21, 2020).
56
See, e.g., National Gang Center, National Youth Gang Survey Analysis:
Demographics, U.S. DEP’T OF JUST., https://nationalgangcenter.ojp.gov/surveyanalysis/demographics (last visited Oct. 19, 2021) (“The most recent figures provided by
law enforcement are 46 percent Hispanic/Latino gang members, 35 percent AfricanAmerican/black gang members, more than 11 percent white gang members, and 7 percent
other race/ethnicity of gang members.”); Finn-Aage Esbensen & Dana Peterson Lynskey,
“Young Gang Members in a School Survey,” THE EUROGANG PARADOX, .), 94 (Malcolm
54

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“Audits, lawsuits, and studies have . . . revealed that many people are
erroneously included in gang databases. Across the United States,
communities have complained about the lack of notice given as to who is
added to gang databases and why, the discretion afforded police in adding
people, the police adding people erroneously, and the racial disparity of
those indicted.”57 Law enforcement agencies rely on inaccurate and
biased racial stereotypes when they attempt to identify gang members,
and this misplaced reliance heavily influences the accuracy and
demographic makeup of gang databases and “gang-related” RICO
defendants.58 Antonio Reynoso (New York City Council Member for the
34th District, representing parts of Brooklyn), and Mr. Taylonn Murphy
Sr. (a Harlem father-turned-activist whose daughter, Tayshana Murphy,
was killed in 2011, and whose son, Taylonn Murphy Jr., was one of the
103 people arrested by the New York City Police Department (NYPD)
and Federal Bureau of Investigation (FBI) during the 2014 “gang raid” in
the Manhattanville projects) explained the impact of gang databases in a
recent article for the New York Daily News:
Inclusion in the database can mean intensive surveillance, police
harassment, overcharging, increased bail, risk of deportation and
prejudicial treatment in court: a separate track of justice based on
an allegation that doesn’t even have to be proven. Despite claims
that the database isn’t being shared, the NYPD has coordinated
“gang takedowns” with federal agencies.
This approach cannot be reformed. The NYPD has a long history
of ignoring and subverting reforms. And there is no “better”
database. The database—like stop-and-frisk before it—doesn’t

W. Klein ed., 2001) (citing G. David Curry et al., Estimating the National Scope of Gang
Crime From Law Enforcement Data, NAT. INST. OF JUST.: BRIEF IN REVIEW (1996); G.
David Curry et al., Gang Crime and Law Enforcement Recordkeeping, NAT. INST. OF
JUST.: BRIEF IN REVIEW (1994); Cheryl L. Maxson & Malcolm W. Klein, Street Gang
Violence: Twice as Great or Half as Great?, GANGS IN AMERICA: DIFFUSION, DIVERSITY,
AND PUBLIC POLICY at 71–100 (C.R. Huff ed., 1990); Irving A. Spergel, YOUTH GANGS:
CONTINUITY AND CHANGE, 12 CRIME AND JUST.: A REVIEW OF RESEARCH, at 171 (Michael
Tonry ed., 1990) (“[S]ome gang researchers rely on law enforcement records to describe
gang offenses and gang members (e.g., Curry, Ball, and Decker, 1996; Curry, Ball, and
Fox, 1994; Maxson and Klein, 1990; Spergel, 1990)). This body of research echoes the
general picture of gang members being disproportionately male and from ethnic/racial
minorities, an image often reinforced by the popular press.”)
57
Stephan, supra note 10, at 1017.
58
See Finn-Aage Esbensen & L. Thomas Winfree, Race and Gender Differences
Between Gang and Nongang Youths: Results from a Multisite Survey, 15, JUST. Q. 505,
510 (1998); see generally Woods, supra note 15.

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make us safer; it has been fully operational amid rises in shootings
and violence.59
A. Gang Databases are Inaccurate
Gang databases in cities such as Boston, Chicago, the DCMaryland-Virginia (DMV) region, Los Angeles, and New York have all
been criticized for serious inaccuracies. Josmar Trujillo (a New York City
writer and organizer) and Alex S. Vitale (an author and professor of
sociology at Brooklyn College) illustrate the weak foundation on which
law enforcement officers select people for inclusion in gang databases in
their report entitled Gang Takedowns in the De Blasio Era: The Dangers
of ‘Precision Policing’:
The NYPD admits to categorizing local ‘crews’—smaller, more
local and less formal groupings—alongside gangs within its
database. Like gangs, ‘crews’ have no consensus definition.
Therefore, the NYPD gang database [is] a database of people that
police believe to be grouped together. There is no requirement of
a criminal conviction, much less a violent conviction, to [be]
added to the database.60
Disconcerting revelations about gang database inaccuracies
abound. For example, a 2016 state audit revealed that California’s state
gang database (CalGang) contained “scant documentation for nearly one
in five of the 100,000 database entries. Many people remained in the
system long after they should have been purged . . . with no documented
gang activity. [Also,] CalGang inexplicably contained reports on several
59

Antonio Reynoso & Taylonn Murphy Sr., Delete the NYPD Gang Database, N.Y.
DAILY NEWS (Dec. 19, 2021), https://www.nydailynews.com/opinion/ny-oped-erase-thenypd-gang-database-20211219-fzg62kyfmzbunc673tgpwdmv5m-story.html
(They
provide further explanation and a brief description of their proposed legislation:
“Interpersonal violence in Black, Brown and underserved communities is not simply a
‘gang’ problem but an economic, social and political one. Lack of resources and
opportunities exacerbate conflicts and lead people to feel like they have few choices. The
lack of safe spaces for young people and access to mentorship and guidance are few and
far between. This is where the city should put its resources—not databases. Our bill to
end the gang database closes a pipeline of needless criminalization and puts the focus on
community-based violence reduction initiatives rather than failed police-centered
strategies. While the city has added some anti-violence programs, they’re a drop in the
bucket compared to what’s spent on policing.”).
60
JOSMAR TRUJILLO & ALEX S. VITALE, BROOKLYN COLL. POLICING & SOC. JUST.
PROJECT, GANG TAKEDOWNS IN THE DE BLASIO ERA: THE DANGERS OF ‘PRECISION
POLICING’
6
(2019),
https://static1.squarespace.com/static/5de981188ae1bf14a94410f5/t/5df14904887d561d
6cc9455e/1576093963895/2019+New+York+City+Gang+Policing+Report++FINAL%29.pdf.

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dozen purported gang members less than a year old.”61 As recently as
2017, the Chicago Police Department gang database included over 100
people who exceeded 75 years old; information about the same database
in 2018 revealed that 13 “gang members” were approximately 118 years
old and two were 132 years old.62
People are labeled “gang associates” for having dated “gang
members” or even having close relationships with people who formerly
dated “gang members.”63 Simply wearing local sports team paraphernalia
while attending school has, in some cases, been sufficient for “gang
member” designation:
Three reasons were given for Jorge’s arrest . . . . The first was
that he dressed like a gangster. “MS-13 members currently wear
Chicago Bulls or Brooklyn Nets hats,” the memo stated, citing, as
its source, a resource officer at Brentwood High School.
(Resource officers are members of the Suffolk County Police
Department who are posted inside local schools.) Jorge was seen
wearing a Brooklyn Nets hat that was, according [to] the
document, “indicative of membership in a gang.” He’d also been
seen “performing a gang handshake,” though the memo offers few
details about what it looked like. And, lastly, he was observed in
the company of two people on ICE’s radar—a “confirmed gang
member,” whose name was redacted in the document, and [his
girlfriend, who previously dated, but was later kidnapped and

61
For the full CalGang audit report, see CALIFORNIA STATE AUDITOR, THE CALGANG
CRIMINAL INTELLIGENCE SYSTEM (2015), http://www.voiceofsandiego.org/wpcontent/uploads/2016/08/CalGangs-audit.pdf; see also Alan Judd, L.A.’s Gang-Tracking
Database Offers Lessons to Others, GOVERNMENT TECHNOLOGY (Mar. 9, 2020),
https://www.govtech.com/public-safety/las-gang-tracking-database-offers-lessons-toothers.html; Stephan, supra note 10, at 1017.
62
See Mick Dumke, Chicago’s Gang Database Is Full of Errors — And Records We
Have Prove It, PROPUBLICA (Apr. 19, 2018), https://www.propublica.org/article/politicil-insider-chicago-gang-database (“During January 1984, the Chicago Police Department
labeled more than 700 people as suspected gang members following arrests for various
crimes. One was in his early 30s and identified as a member of the Black P Stones. By
last fall, nearly 34 years later, that individual was 77—and still in what police commonly
refer to as the department’s ‘gang database.’ In fact, the 77-year-old was one of 163
people in their 70s or 80s in the database, which now includes information about 128,000
people and counting, according to records I obtained through a series of requests under
the state Freedom of Information Act. It’s hard to fathom that there are so many elderly,
active gang members in Chicago who need to be tracked by police. But those aren’t the
only curious entries in the database. As of this March, it also included 13 people who are
supposedly 118 years old—and two others listed as 132.”).
63
Jonathan Blitzer, How Gang Victims Are Labelled as Gang Suspects, NEW YORKER
(Jan 23, 2018).

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assaulted by, someone who notoriously claimed MS-13
membership and was now serving time for killing someone].
ICE identifies someone as a gangster if he meets at least two
criteria from a long list that includes “having gang tattoos,”
“frequenting an area notorious for gangs,” and “wearing gang
apparel.” Such nebulous indicators are a recipe for racial
profiling, according to immigrant-rights advocates. “Any student
at Brentwood High School would be at risk of arrest just for
interacting with other students and wearing clothing representing
local sports teams,” Jorge’s lawyer, Alexandra Lampert, an
attorney at Brooklyn Defender Services, told me.64
The U.S. Immigration and Customs Enforcement agency (ICE)
has even reportedly added a child to its gang database for wearing a blue
shirt that was actually just part of the child’s mandatory school uniform.65
Adding to this problem, there are rarely any internal mechanisms
to correct gang database inaccuracies (to the extent that is even possible
in such a flawed system).66 People do not know they have been added, or
the criteria on which their inclusion in a database was founded, and most
individuals in databases have no recourse or means of removing
themselves. Even proposals to implement some sort of appeal process for
people who wish to challenge their inclusion in a gang database are flawed
because they require individuals to know that they are in a gang database
and to have access to critical information as to why they were labeled
“gang members.” Some cities claim to have taken steps to improve their
gang labeling practices following scandalous revelations about their gang
databases, but in most cases, little, including the lack of transparency,

64

Id.
LAILA L. HLASS & RACHEL PRANDINI, IMMIGRANT LEGAL RES. CTR., DEPORTATION
BY ANY MEANS NECESSARY: HOW IMMIGRATION OFFICIALS ARE LABELING IMMIGRANT
YOUTH
AS
GANG
MEMBERS
(2018),
https://www.immigrationresearch.org/report/immigrant-legal-resourcecenter/deportation-any-means-necessary-how-immigration-officials-are.
66
See, e.g., Alex Nitkin, Police Gang Database Is ‘Riddled With Errors’ And Has
Ruined Lives, Aldermen Say — So Why Is CPD Still Using It?, BLOCK CLUB CHICAGO
(July 28, 2021), https://blockclubchicago.org/2021/07/28/police-gang-database-isriddled-with-errors-and-has-ruined-lives-aldermen-say-so-why-is-it-cpd-still-using-it/
(“Deputy Inspector General for Public Safety Deborah Witzburg elaborated on the 2year-old report on Tuesday, telling aldermen that ‘there was no regular review or purge
of outdated or faulty designations, and there were no internal mechanisms to amend
inaccurate information.’ . . . ‘There are no existing protections around the use of the
existing data that are in place today that are any different than what was in place in 2019,’
Witzburg said. ‘So the gang arrest card data, with its flaws in accuracy and reliability,
has still been in use.’”).
65

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seems to have changed.67
Thus, acts as innocuous as lending a cell phone, wearing a shirt of
a particular color while standing on a street corner, or posting a reference
to an alleged gang on social media can implicate someone for “furtherance
of a conspiracy.”68 Moreover, the NYPD, for example, permits assertions

67

CITY OF CHICAGO OFFICE OF INSPECTOR GENERAL, FOLLOW-UP INQUIRY ON THE
CHICAGO
POLICE
DEPARTMENT’S
“GANG
DATABASE”
(Mar.
2021),
https://igchicago.org/wp-content/uploads/2021/03/OIG-Follow-Up-Inquiry-on-theChicago-Police-Departments-Gang-Database.pdf.
68
Stephan, supra note 10, at 1021; see generally Alice Speri, NYPD Gang Database
Can Turn Unsuspecting New Yorkers into Instant Felons, INTERCEPT (Dec. 5, 2018),
https://theintercept.com/2018/12/05/nypd-gang-database; see also Jake Offenhartz, The
NYPD’s Expanding Gang Database is Latest Form of Stop & Frisk, Advocates Say,
GOTHAMIST
(June
13,
2018,
3:00
PM),
http://gothamist.com/2018/06/13/nypd_gang_database_nyc.php; JAMES C. HOWELL &
ELIZABETH GRIFFITHS, GANGS IN AMERICA’S COMMUNITIES 35–36 (3rd. ed. 2019)
(describing gang research findings that young people often had some interactions and
relationships with other young people they identified as gang members, and they had
often acted in ways that might erroneously suggest gang affiliation to law enforcement);
Alice Speri, New York Schools Gang Unit Pushes The Criminalization of Children,
INTERCEPT (Feb. 13, 2020), https://theintercept.com/2020/02/13/new-york-city-schoolsgang-law-enforcement (“[I]n recent years the NYPD has massively expanded a secretive
‘gang database’ that lists tens of thousands of New Yorkers, mostly black and Latino
men, even as gang-related incidents make up a fraction of crime in the city. Police can
add individuals to the database based on a set of broad and arbitrary criteria that include
the people they associate with and locations they frequent—criteria that critics say
effectively punish entire communities. You don’t even have to commit any crimes to be
added to the database, and there is no clear way for people to learn whether they are listed
on it or why.”); Eileen Grench, Department of Investigation Confirms Probe of NYPD
Gang
Database
after
Advocates
Rally,
CITY
(July
27,
2021),
https://www.thecity.nyc/2021/7/27/22597212/department-of-investigation-probes-nypdgang-database (“‘By using invasive surveillance technologies to create networks of social
affiliation, the so-called gang database criminalizes Black and [B]rown New Yorkers for
what they wear, where they live, and how they express themselves,’ Aly Panjwani, of the
nonprofit Surveillance Technology Oversight[.]”); TRUJILLO & VITALE, supra note 60, at
7 (listing factors that NYPD officers consider to “determine” gang membership for entry
into its database). ALEXANDER, supra note 28, at 136–37 (discussing the racial disparities
and profiling involved in the NYPD’s then-active stop-and-frisk program, and how those
practices also created an on-ramp for young Black and Brown men into the criminal legal
system, Michelle Alexander explained: “Ultimately . . . stop-and-frisk operations
amount[ed] to much more than humiliating, demeaning rituals for young men of color,
who must raise their arms and spread their legs, always careful not to make a sudden
move or gesture that could provide an excuse for brutal—even lethal—force. Like the
days when black men were expected to step off the sidewalk and cast their eyes downward
when a white woman passed, young black men know the drill when they see police
crossing the street toward them; it is a ritual of dominance and submission played out
hundreds of thousands of times each year. But it is more than that. These routine

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from select “independent sources” to qualify individuals for its gang
database. One troubling example of an acceptable “independent source”
is the New York City Department of Corrections (DOC): “The [DOC] has
its own internal gang tracking system, the Gang Intelligence Unit (GIU).
Because DOC oversees a confined population that often has to associate
with gangs and others for safety, gang designations can be more
overreaching—and follow individuals after they leave jail.”69 Given that
Black and Brown people are disproportionately likely to be criminalized
as children,70 held in pre-trial detention,71 wrongfully convicted,72 and
incarcerated in general,73 NYPD’s reliance on DOC data is inherently
biased and problematic.
Social media also plays an important role in gang database
determinations. Trujillo and Vitale emphasize the arbitrary ways in which
encounters often serve as the gateway into the criminal justice system. The NYPD made
50,300 marijuana arrests in 2010 alone, mostly of young men of color. As one report
noted . . . [t]hese arrests . . . ‘are the most effective way for the NYPD to collect
fingerprints, photographs and other information on young people not yet entered into the
criminal databases.’ A simple arrest for marijuana possession can show up on a criminal
database as ‘a drug arrest’ without specifying the substance or the charge, and without
clarifying even whether the person was convicted. These databases are then used by
police and prosecutors, as well as by employers and housing officials . . . . In Denver,
displaying any two of a list of attributes—including slang, ‘clothing of a particular color,’
pagers, hairstyles, or jewelry” could qualify a young person for entry into the gang
database in that city.”) (internal citations omitted).
69
TRUJILLO & VITALE, supra note 60, at 8.
70
See generally KRISTIN HENNING, THE RAGE OF INNOCENCE: HOW AMERICA
CRIMINALIZES BLACK YOUTH (2021); ALEXANDER, supra note 28, at 162–65, 190, 199–
200.
71
See generally RAM SUBRAMANIAN, LÉON DIGARD, MELVIN WASHINGTON II &
STEPHANIE SORAGE , VERA INST. OF JUST., IN THE SHADOWS: A REVIEW OF THE RESEARCH
ON PLEA BARGAINING (Sept. 2020), https://www.vera.org/downloads/publications/inthe-shadows-plea-bargaining.pdf; WENDY SAWYER, PRISON POLICY INITIATIVE, HOW
RACE
IMPACTS
WHO
IS
DETAINED
PRETRIAL
(Oct.
9,
2019),
https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/.
72
See DANIELE SELBY, INNOCENCE PROJECT, 8 FACTS YOU SHOULD KNOW ABOUT
RACIAL INJUSTICE IN THE CRIMINAL LEGAL SYSTEM (Feb. 5, 2021),
https://innocenceproject.org/facts-racial-discrimination-justice-system-wrongfulconviction-black-history-month/; SAMUEL R. GROSS ET AL., NAT’L REGISTRY OF
EXONERATIONS, RACE AND WRONGFUL CONVICTIONS IN THE UNITED STATES (Mar. 7,
2017),
http://www.law.umich.edu/special/exoneration/Documents/Race_and_Wrongful_Convi
ctions.pdf.
73
Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, THE
SENTENCING
PROJECT
(Oct.
13,
2021),
https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnicdisparity-in-state-prisons/.

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law enforcement officers infer gang membership from young people’s
social media accounts:
Police interpretation, or perhaps willful misinterpretation, of gang
admission on social media can include emojis, hashtags, or other
forms of communication. There is also the question of how police
can authenticate who is posting or operating a social media
account. Making matters worse, the use of social media posts as
a way to authenticate gang membership significantly expands an
already questionable process by turning the internet into a virtual
police precinct. 74
Attorney Naz Ahmed (who works with the CUNY Creating Law
Enforcement Accountability & Responsibility Project, which serves
individuals who are either being surveilled by the FBI, or approached to
help the FBI surveil Muslim communities) has expressed concern about
what he views as an overlap of his work at CUNY on surveillance and
racial profiling, and the practices that precipitated the Bronx 120 raid:
“Gang raids and Muslim surveillance are no different. The NYPD was
surveilling these kids when they were twelve. The FBI does the same
thing to Muslim communities. It looks at their online activities and says,
‘Oh, you’re going to be a terrorist.’”75 The arbitrariness and inaccuracy
of gang member designation is further undermined by the
overrepresentation of young people of color in gang databases—an
indicator of racial bias in the system.
B. Young Black and Brown Men are Overrepresented in
Gang Databases
Systemic racism in the United States socializes Americans,
especially white and privileged Americans, to associate crime and gang
activity primarily with young Black and Brown men.76 Law enforcement
gang labeling practices are illustrative of this systemic racial bias. As
scholar Babe Howell explains, the gang database information she received
in 2018 showed starker racial disparities than the already-striking
disparities she identified in 2014:77
74

TRUJILLO & VITALE, supra note 60, at 7.
Rivlin-Nadler, supra note 21 (quoting Naz Ahmed).
76
See END CRIMINALIZATION OF YOUTH POLICY BRIEF, THE MOVEMENT FOR BLACK
LIVES (May 2020), https://m4bl.org/wp-content/uploads/2020/05/End-Crimilization-ofYouth-Policy-Brief.pdf; see generally HENNING, supra note 70.
77
See also TRUJILLO & VITALE, supra note 60, at 6 (“New figures from March of 2018
acquired by Howell indicated that over 17,000 people were added to the database from
December 2013 through February 2018, mostly under Mayor Bill de Blasio. The rate at
which people [were added] into the database under de Blasio was 70% higher than that
of the previous administration. Of those added, over 98% were identified as either Black
75

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[L]aw enforcement itself determines whether a group is a gang
and whom to tag as a gang member or associate.
....
[Using the NYPD as an example,] no one outside the NYPD
reviews these [gang member] designations.
The NYPD Patrol Guide does not define a “gang member,” but
the NYPD can certify individuals as gang members without any
proof of criminality. The requirements for activation in the
NYPD’s Enterprise Case Management System “Criminal Group”
list provide three bases to certify a gang member.
....
None of these criteria require any criminal conduct. This, too, is
typical of criteria for identifying gang members in other states and
cities.
As with gang databases across the country, there is no notice
provided by the NYPD to those certified as gang members and no
opportunity to appeal or challenge this designation. Similarly,
groups that are deemed gangs . . . based on peer groups . . . [or
growing] up on a particular block[] are not notified . . . that these
groups are being identified as gangs and targeted for
surveillance. . . .
Fewer than 1% of the individuals in the NYPD’s Gang Database
. . . [is] white. . . . [And] over 98% . . . is Black or Latinx, . . . .
While the media portrays gang membership in racialized terms,
gang researchers using self-reports by teenagers find that gang
membership is rare among all groups. Additionally, whites make
up a substantial portion (40%) of gang members in absolute
numbers. Although the NYPD’s definition of a gang could
include every marching band, fraternity, sorority, and youth group
one could think of, and certainly should include organized crime
and hate groups, the database apparently omits the Mafia, white
supremacist groups, the Proud Boys, and other organized criminal
groups.78

or Hispanic—an even more racially disparate scenario than from the previous years.”).
78
BABE HOWELL, Gang Narratives and Race-Based Policing and Prosecution in New
York City, in ROUTLEDGE INT’L HANDBOOK OF CRITICAL GANG STUD. 177, 178–180
(David C. Brotherton, & Rafael Jose Gude eds., 2021) (citations omitted); see Nick Pinto,
NYPD Added Nearly 2,500 New People to Its Gang Database in the Last Year, INTERCEPT
(June 18, 2019), https://theintercept.com/2019/06/28/nypd-gang-database-additions/
(citing Rosa Goldensohn (@RosaGoldensohn), TWITTER (Oct. 15, 2018, 8:18 PM),
https://twitter.com/RosaGoldensohn/status/1052036066277056513) (According to
reporter Rosa Goldensohn, an NYPD official stated that, even though the Proud Boys
were active in New York, as of late 2018, members of the Proud Boys were not included
in the database. Notably, the Proud Boys is a nationally-recognized group that publicly
requires the commission of violent acts in furtherance of the group’s goals in order to join

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Professor Andy Clarno (who teaches sociology at the University
of Illinois at Chicago and studies the Chicago Police Department gang
database) has articulated similar sentiments: “Gang databases transform
racial stereotypes into so-called facts to circulate amongst these agencies,
which creates a network of criminalizing surveillance that has had
devastating impacts on Black and Brown people and communities in
Chicago.”79 Others have noted that, instead of identifying “gang
members” in any accurate way that serves as meaningful law enforcement
intelligence, gang databases are instead more often used by schools to
inform expulsion decisions, agencies pressuring public housing
authorities to more aggressively ban certain individuals from using their
programs, and hundreds of local and federal agencies, such as the New
York City Department of Investigations or ICE, with which police
departments share their inaccurate data.80
Such labels disproportionately target, and therefore have a
its highest ranks.); see, e.g., Alyxandra Goodwin, What You Need to Know About
Chicago’s ‘Gang Database’ and the Lawsuit From Local Activists, BLACK YOUTH
PROJECT (May 7, 2017), http://blackyouthproject.com/chicago-gang-databasedeportation; Jillian Jorgensen, Activists Urge Inspector General to Probe NYPD’s Gang
Policing Tactics, N.Y. DAILY NEWS (May 16, 2017), http://www.nydailynews.com/newyork/manhattan/activists-urge-inspector-general-probe-nypd-gang-databases-article1.3171323; Donna Ladd, Only Black People Prosecuted Under Mississippi Gang Law
Since
2010,
JACKSON
FREE
PRESS
(Mar.
29,
2018),
http://www.jacksonfreepress.com/news/2018/mar/29/only-black-people-prosecutedunder-mississippi-gan; Philip Marcelo, Gang database made up mostly of young black,
Latino men, AP NEWS (July 30, 2019), https://apnews.com/article/massachusettsimmigration-us-news-ap-top-news-ri-state-wiredd5643e358c3456dbe14c16ade03711d); Emmanuel Felton, Gang Databases Are A Life
Sentence for Black and Latino Communities, PAC. STANDARD (Mar. 15, 2018),
https://psmag.com/social-justice/gang-databases-life-sentence-for-black-and-latinocommunities; Heather Cherone, Chicago Still Using ‘Deeply Flawed’ Gang Databases:
Watchdog, WTTW News (Mar. 31, 2021), https://news.wttw.com/2021/03/31/chicagostill-using-deeply-flawed-gang-databases-watchdog; Eileen Grench, NYPD Gang
Database Targeted By City Council Member, CITY (Sept. 15, 2021),
https://www.thecity.nyc/2021/9/15/22674782/nypd-gang-database-targeted-citycouncil; see generally Joshua D. Wright, The Constitutional Failure of Gang Databases,
2 STAN. J. C.R. & C.L. 115 (2005).
79
Nitkin, supra note 66.
80
See, e.g., id.; Josmar Trujillo, Probe NYPD Gang Tactics, AM N.Y. (Sept. 17, 2018),
https://www.amny.com/opinion/probe-nypd-gang-tactics-1-21008637;
Maria
Ines
Zamudio, Federal Immigration Agencies Used Chicago Gang Database Thousands Of
Times,
NPR
(Apr.
12,
2019),
https://www.npr.org/local/309/2019/04/12/712788497/federal-immigration-agenciesused-chicago-gang-database-thousands-of-times; see also, ALEXANDER, supra note 28, at
136.

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disproportionately negative impact on, low-income urban communities of
color, especially young Black and Brown men in those communities; they
embolden law enforcement officers to rely on racist stereotypes and
profiling as they plan and execute mass arrests of young men of color on
RICO charges.
C. Law Enforcement Officials Rely on Flawed Gang
Databases for RICO Prosecutions
Gang database inclusion serves as a predicate for surveillance and
incorporation into broad RICO conspiracy cases.81 Indeed, once someone
is added to a gang database, they become subject to social media
monitoring, as described earlier in this Part, and other forms of
surveillance. Law enforcement can then add the social media contacts of
that person (e.g., “friends” or “followers”) to the same database and
commence construction of criminal cases using that information. 82
Journalist Max Rivlin-Nadler described the practical
consequences of gang-database-informed social media surveillance by
law enforcement in his 2017 article entitled A Year After NYC’s Biggest
“Gang Raids,” Families Say It’s Just Stop And Frisk By Another Name:
[L]ooking at a New York County indictment filed as part of the
2014 raids in Harlem’s Manhattanville and General Ulysses S.
Grant Houses, which resulted in the arrest of 103 men and was the
81
Stephan, supra note 10, at 1020 (citing Megan Behrman, When Gangs Go Viral: Using
Social Media and Surveillance Cameras to Enhance Gang Databases, 29 HARV. J.L. &
TECH. 315, 320–23 (2015); then citing Meredith Broussard, When Cops Check Facebook,
ATLANTIC (Apr. 19, 2015), https://www.theatlantic.com/politics/archive/2015/04/ whencops-check facebook/390882; then citing Kim Strosnider, Anti-Gang Ordinances After
City of Chicago v. Morales: The Intersection of Race, Vagueness Doctrine, and Equal
Protection in the Criminal Law, 39 AM. CRIM. L. REV. 101, 109–10 (2002); then citing
David R. Truman, The Jets and Sharks Are Dead: State Statutory Responses to Criminal
Street Gangs, 73 WASH. U.L.Q. 683, 720–28 (1995); and then citing Alice Speri, In New
York Gang Sweeps, Prosecutors Use Conspiracy Laws to Score Easy Convictions,
INTERCEPT (July 12, 2016, 1:25 PM), https:// theintercept.com/2016/07/12/in-new-yorkgang-sweeps-prosecutors-use-conspiracy-laws-to- score-easy-convictions)); COALITION:
INVESTIGATE NYPD’S “INHERENTLY UNRELIABLE” GANG DATABASE, FILTER (Sept. 24,
2020), https://filtermag.org/nypd-gang-database/. For more on the history and current
status of gang databases, see Lauren M. Pittman, Constructing A Compromise: The
Current State of Gang Database Legislation and How to Effectuate Nationwide Reform,
106 IOWA L. REV. 1513 (2021); Rivlin-Nadler, supra note 21.
82
Stephan, supra note 10, at 1021 (citing Megan Behrman, When Gangs Go Viral: Using
Social Media and Surveillance Cameras to Enhance Gang Databases, 29 HARV. J. L.
TECH. 315, 320–23 (2015); Broussard, supra note 81; Jake Offenhartz, supra note 68;
Dermot Shea, Criminal Group Database is Vital Tool to Controlling Gang Violence, N.Y.
DAILY NEWS (June 12, 2018), https://www.nydailynews.com/opinion/).

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city’s largest raid until [the Bronx 120 raid in 2016], the NYPD
and [D]istrict [A]ttorney built cases that heavily relied on
Facebook status updates like “Fuck Grant” and “Money Ave Up.”
Much of the government’s case was built around normal
interactions between individuals who happen to be growing up
close to one another, and are shouting out of the buildings they
live in.83
Thus, prosecutors use gang database information to obtain
indictments, usually without alerting the people being investigated and
indicted, and these indictments result in militarized gang raids about
which the press is notified in advance.84
D. Bias in the Gang Policing and Prosecution Apparatus
Calls Into Question the Legitimacy of RICO as Applied
to Alleged Street Gangs
Ultimately, the overrepresentation of young Black and Brown
men in flawed gang databases, and law enforcement reliance on those
databases, drives the racial disparities in RICO “street gang” cases. If
gang databases are flawed and are also infused with bias, then it is
appropriate to question whether the raids and prosecutions that are based
on those databases are also flawed and infused with bias. Given the
influence of flawed gang databases on the use and impact of RICO, we
must examine the legitimacy of RICO as applied to alleged street gangs.
The stop-and-frisk initiative in New York City provides a useful analogy
for doing so.
E. Additional Consequences of Inaccurate and Biased Gang
Policing and Prosecution
Although beyond the scope of this paper, it is worth observing
that the damaging results of gang stereotyping, especially within the
context of RICO prosecutions, extend beyond low-income communities
of color—racial bias in gang labeling and this inappropriate expansion of
RICO also distract law enforcement and the general public from the
83
84

Rivlin-Nadler, supra note 21.
Stephan, supra note 10, at 1022; see Speri, supra note 6 (“More than half of the 120

indicted in the ‘largest gang takedown’ in New York City history were never actually
alleged by prosecutors to be gang members at all.”); see also id. (“‘Why on earth
would they bring mass gang indictments, have a press conference saying that this is
the largest takedown of two violent gangs in history, and actually be taking down
dozens of people who are not gang members, and 80 individuals who are not
violent?’ . . . ‘It’s because these prosecutions are politically advantageous. These
cases make for easy wins, high-profile, good press coverage, . . . a platform to appear
tough on crime.’” (quoting Professor and Bronx 120 expert Babe Howell)).

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threats posed by extremist groups, such as white supremacists; this
practice absorbs resources 85 that could be more usefully employed against
other—active—threats facing the U.S. today.86
Furthermore, gang experts agree that law enforcement gang
suppression tactics will not eliminate gangs.87 Massive gang raids often
waste resources on mass arrests, after which several of the individuals
arrested are released without charges or turn out not to have been affiliated
with the group at issue. Sometimes these sensationalized raids also
distract law enforcement from holding its own officers accountable for
misconduct. For example, several of the Los Angeles officers involved
in the 1987 Operation Hammer raid, after which many young people were
released without charges, displayed similar behavior to that which they
ascribed to gangs:
[T]hey wore special tattoos and pledged their loyalty to the antigang unit with a code of silence. They protected their turf by
intimidating [alleged] Rampart-area gang members with
unprovoked beatings and threats. Rafael Perez, an officer in the
Rampart Division who was arrested in 1998 for stealing cocaine
from a police warehouse, provided testimony for [his fellow]
officers’ arrests when he implicated 70 officers in a variety of
illegal activities: planting evidence, intimidating witnesses,
beating suspects, giving false testimony, selling drugs, and
covering up unjustified shootings.88
85
Anita Abedian, Gang Takedown of New York Part Two: Bigger and Badder!, VILL.
VOICE (Apr. 29, 2016), https://www.villagevoice.com/2016/04/29/gang-takedown-ofnew-york-part-two-bigger-and-badder/ (“About seven hundred feds and NYPD officers
were involved [in the Bronx 120 raid], as opposed to some four hundred law enforcement
officials in the [2014] Harlem bust.”).
86
This claim presumes the effectiveness of such measures, which is also a subject of
controversy; see, e.g., SIMON HALLSWORTH & TARA YOUNG, WORKING WITH GANGS AND
OTHER DELINQUENCY GROUPS, PRACTICAL INTERVENTIONS FOR YOUNG PEOPLE AT RISK,
81–89 (Kathryn Geldard ed., 2009) (cautioning, “[w]hile the evaluation literature on gang
intervention programmes is principally concerned with the relative success or failure of
various individual projects in suppressing or preventing gangs from forming, it also pays
to consider the wider social impact of the anti-gang crusade on the [targeted] communities
. . . considering instead the social costs attendant on such repression by the state. . . .
[A]mong which must be included: the mass criminalization of young people . . . .”).
87
See, e.g., HOWELL & GRIFFITHS, supra note 68, at 45 (describing the sensationalized
Operation Hammer gang sweep in Los Angeles, after which most of the young people
arrested were released without charges, as inefficient and ineffective).
88
HOWELL & GRIFFITHS, supra note 68, at 46. See also Jimmy Jenkins, Arizona
Department of Corrections orders removal of patch with ‘disturbing imagery’ after
Republic
investigation,
ARIZ.
REPUBLIC
(Dec.
9,
2021),
https://www.azcentral.com/story/news/local/arizona-breaking/2021/12/09/correctionsofficials-order-removal-patch-disturbing-imagery/6452547001/; Cerise Castle, A

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Gang experts have long emphasized that gangs serve many
purposes besides engaging in allegedly criminal activity and they are
more likely to form in low-income communities.89 Gang affiliation tends
to correlate with poverty, marginalization, inadequate schooling, and
limited access to jobs; gangs can offer a sense of belonging, protection,
and credibility. In the absence of legitimate employment opportunities,
gangs can also provide critical, albeit illegal, means of income through
jobs in the illicit drug market.90
F. Floyd v. City Of New York:91 A Potential Tool With
Which to Challenge the Constitutionality of Racially
Biased Gang Databases
Contemporary laws are unlikely to include prima facie racial
classifications, and that lack of clear discriminatory intent makes it
difficult for affected parties to prevail on equal protection claims.
Therefore, successful equal protection claims of racially disproportionate
law enforcement practices are rare. 92 In City of Chicago v. Morales,93 the
Supreme Court concluded that a criminal law violates the Due Process
Tradition of Violence: The History of Deputy Gangs in the Los Angeles Sheriff’s
Department, KNOCK LA, https://knock-la.com/tradition-of-violence-lasd-gang-history/
(last visited Dec. 27, 2021); Cerise Castle, LASD Gangs: A Database of Known
Associates of Deputy Gangs in the Los Angeles Sheriff’s Department, KNOCK LA,
https://lasdgangs.knock-la.com/ (last visited Dec. 27, 2021).
89
See, e.g., JAMES DIEGO VIGIL, GANGS, POVERTY, AND THE FUTURE, URBAN LIFE:
READINGS IN THE ANTHROPOLOGY OF THE CITY 245–46 (George Gmelch & Petra
Kuppinger eds., 6th ed. 2018) (“Poverty is the central reason for the rise of street gangs
throughout the contemporary world . . . . The children of the poor are put at risk by
factors over which they have no control: their family’s living conditions, work situations,
health problems, and educational limitations. Especially damaging are the social
structural breakdowns that occur when family resources are strained [and] school systems
overwhelmed . . . . The effects of poverty in children’s lives are clear, and what children
learn in the streets shapes and molds them in powerful ways. . . . [S]treet gangs are the
offspring of marginalization. In hierarchical societies, certain groups become relegated
to the fringes, where social and economic conditions result in the destabilization and
fragmentation of people’s lives.”).
90
See JOHN M. HAGEDORN, A WORLD OF GANGS: ARMED YOUNG MEN AND GANGSTA
CULTURE (2008); IRVING A. SPERGEL, THE YOUTH GANG PROBLEM: A COMMUNITY
APPROACH 161 (1995); JAMES DIEGO VIGIL, A RAINBOW OF GANGS: STREET CULTURES
IN THE MEGA-CITY 7 (2002); see generally Nancy Ritter et al., Changing Course:
Keeping Kids Out of Gangs, 273 NIJ J. 16 (2014).
91
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).
92
See, e.g., United States v. Armstrong, 517 U.S. 456 (1996) (establishing that suspicion
of gang involvement is race-neutral and therefore sufficient grounds for targeting an
individual for non-gang-related drug enforcement).
93
City of Chicago v. Morales, 527 U.S. 41, 56 (1999).

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Clause on vagueness grounds if it either fails to give notice of the
prohibited conduct or permits arbitrary and discriminatory law
enforcement. Even though the Court held that the statute at issue in
Morales violated both prongs of the vagueness doctrine, the opinion made
clear that violation of only one of the two prongs is necessary to find a
criminal statute void for vagueness.94
The Morales decision opened the door to reconceptualizing the
vagueness doctrine as a possible defense against arbitrary or
discriminatory law enforcement in gang policing. 95 Prior to Morales,
statutes only violated the vagueness doctrine if they conflicted with both
vagueness prongs, but the Morales opinion changed that.96 This
conceptual shift was especially significant given the often-insuperable
discriminatory purpose requirement for equal protection claims.97 In
other words, the Morales decision made it possible to infer that a violation
of the discretion prong of the vagueness doctrine could, on its own, be
used to address practices that ordinarily would not meet the exceedingly
high discriminatory intent threshold required to prove that a facially
neutral policy or custom violates the Equal Protection Clause. 98
Viewing RICO prosecutions that are based on gang databases
through the lens the Supreme Court applied to the loitering statute in
Morales, the act of establishing gang databases and relying entirely on
those databases could, in theory, align with the view that a statute might
be constitutional if applied only to probable gang member suspects. 99 But

94

See Kim Strosnider, supra note 81, at 112–27.
See Lanzetta v. New Jersey, 306 U.S. 451 (1939) (holding that a statute governing
gang policing violated the vagueness doctrine).
96
Strosnider, supra note 81, at 113–14.
97
Washington v. Davis, and Village of Arlington Heights created a very high bar for
proving equal protection violations by requiring a showing of intentional discrimination.
Washington v. Davis, 426 U.S. 229 (1976); Vill. of Arlington Heights v. Metro Hous.
Dev. Corp., 429 U.S. 252 (1977).
98
Stephan, supra note 10, at 996; see also Grayned v. City of Rockford, 408 U.S. 104,
108–09 (1972) (Marshall, J., anticipating the potential of the vagueness doctrine to
combat instances of discriminatory enforcement).
99
See City of Chicago v. Morales, 527 U.S. 41, 62–63 (1999) (“It is true, as the city
argues, that the requirement that the officer reasonably believe that a group of loiterers
contains a gang member does place a limit on the authority to order dispersal. That
limitation would no doubt be sufficient if the ordinance only applied to loitering that had
an apparently harmful purpose or effect, or possibly if it only applied to loitering by
persons reasonably believed to be criminal gang members. But this ordinance, for
reasons that are not explained in the findings of the city council, requires no harmful
purpose and applies to nongang members as well as suspected gang members. It applies
to everyone in the city who may remain in one place with one suspected gang member as
95

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gang databases are notoriously filled with people who are not probable
gang members at all.100 Monitoring and charging suspected gang
members with established crimes, rather than discretionary crimes by
tenuous association, might satisfy Justice O’Connor’s concurring
criterion that statutes must address conduct that is clearly harmful in its
own right.101 Nonetheless, gang databases do not give people notice when
they are labeled as “gang members”; indeed, people who are added to
gang databases rarely know about their inclusion, not to mention the
rationale behind that decision. In most cases, law enforcement officers
have historically compiled gang databases using highly discretionary
criteria, and people added to gang databases lack any promising means of
ascertaining or contesting their status.
The successful 2013 claim in Floyd v. City of New York might
have clarified this landscape.102 In Floyd, the Southern District of New
York (S.D.N.Y.) held that the stop-and-frisk initiative violated the Equal
Protection Clause due to racial discrimination, and the way the plaintiffs
demonstrated discriminatory intent shows promise for challenging gang
policing and prosecution practices such as gang databases and the
overbroad application of the RICO Act. During the major stop-and-frisk
years, the approximate demographic makeup of New York City residents
was 23% Black, 29% Latino/x,103 and 33% white; however, 83% percent

long as their purpose is not apparent to an officer observing them. Friends, relatives,
teachers, counselors, or even total strangers might unwittingly engage in forbidden
loitering if they happen to engage in idle conversation with a gang member.”) (internal
citations omitted).
100
See Dumke, supra note 62.
101
Morales, 527 U.S. at 67.
102
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (appeal dismissed
by Second Circuit Court of Appeals pursuant to joint stipulation of parties).
103
The terms “Latino” and “Latinx” are used in some of the quoted materials throughout
this Article. There is ongoing debate among people who identify as Latino/x about the
most appropriate identifier. Similar to the reasoning in supra note 4 about the terms
“Black” and “Brown,” I use “Latino/x” here in recognition of the diversity of preferences
among Latino/x people and because I cannot capture the individual preferences of every
person to whom this Article might apply. It is also worth noting that additional identifiers,
beyond Latino/x, are also part of this conversation (e.g., Chicana/o, Latina/x, and
Hispanic—each of which has a different history and varies in popularity). For more on
this topic, see Harmeet Kaur, Why People are Split on Using ‘Latinx’, CNN (Aug. 12,
2020),
https://www.cnn.com/2020/08/12/us/latinx-term-usage-hispanicstrnd/index.html. On a separate note, many New Yorkers assert that the stop-and-frisk
initiative persists still today. See Alice Speri, The NYPD Is Still Stopping and Frisking
Black People at Disproportionate Rates, INTERCEPT (June 10, 2021),
https://theintercept.com/2021/06/10/stop-and-frisk-new-york-police-racial-disparity/.

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of those stopped and frisked were Black or Latino/x. 104 Stop-and-frisk
policy merely instructed officers to apprehend “the right people,” and
officers relied on criminal suspect data that was predominantly comprised
of Black and Latino/x people to determine who “the right people” were.105
Furthermore, officers did not use any factors related to criminal activity
when deciding whom to stop, and the factors they did consider were both
vague and prone to racial bias.106 Ultimately, the Southern District of
New York held that the facially-neutral NYPD stop-and-frisk policies
violated the Equal Protection Clause: race-based suspicions transposed
onto stop-and-frisk practices violated the Equal Protection Clause because
the criteria law enforcement used were too vague and indicated that
officers had excessive discretion (especially considering that the program
already had a de facto disproportionate impact on people of color). This
decision was novel because, rather than challenging a statute, it instead
involved a constitutional challenge to a policy that had the force of law, 107
a concept first introduced in Monell v. New York City Department of
Social Services.108 Gang databases have had effects similar to those
ascribed to the stop-and-frisk program. Given that RICO prosecutions
rely on gang databases, Floyd might offer a means for articulating the
problem of their disproportionate racial impact in constitutional terms.
IV.

THE ALLEGED STREET GANGS ARE NOT COMPLEX
CRIMINAL CONSPIRACIES

The question of whether RICO is inappropriately applied to
alleged street gangs turns on whether the people being charged as alleged
gang members are, in fact, members of the kinds of complex criminal
conspiracies for which the statute is designed. A clearer picture of the
individuals I am writing about is necessary to understand this distinction.
In this Part, I will provide an overview of gangs and discuss the important
distinction between the young Black and Brown men who are
inappropriately and disproportionately the targets of RICO street gang
prosecutions and the members of organized crime groups Congress had
in mind when it enacted the RICO statute.

104

Floyd, 959 F. Supp. 2d at 559.
Id. at 561.
106
Id. at 578 (discussing how perceived “furtive movements” are subjective and prone to
racial bias by officers).
107
Id. at 564, 659–60.
108
436 U.S. 658 (1978); see Stephan, supra note 10, at 1011–12 (citing Monell to explain
the requirements for establishing a policy or custom that carries the force of law).
105

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A. Gangs: An Overview
While scholars can articulate some catalysts for gang formation
and membership, defining a gang is much more complicated. Gang
experts have struggled to define the term, and they have not settled on a
single definition.109 The U.S. government similarly lacks a single
comprehensive definition. The lack of a clear and consistent definition of
gangs renders questionable the legitimacy of imposing harsh, life-altering
RICO sentences on young Black and Brown men based on their alleged
gang involvement. The DOJ defines “gangs” as follows:
(1) [A]n association of three or more individuals;
(2) whose members collectively identify themselves by adopting
a group identity which they use to create an atmosphere of fear or
intimidation frequently by employing one or more of the
following: a common name, slogan, identifying sign, symbol,
tattoo or other physical marking, style or color of clothing,
hairstyle, hand sign or graffiti;
(3) the association’s purpose, in part, is to engage in criminal
activity and the association uses violence or intimidation to
further its criminal objectives;
(4) its members engage in criminal activity, or acts of juvenile
delinquency that if committed by an adult would be crimes;
(5) with the intent to enhance or preserve the association’s power,
reputation, or economic resources;
(6) the association may also possess some of the following
characteristics:
(a) the members employ rules for joining and operating within
the association;
(b) the members meet on a recurring basis;
(c) the association provides physical protection of its
members from other criminals and gangs;
(d) the association seeks to exercise control over a particular
location or region, or it may simply defend its perceived
interests against rivals; or
(e) the association has an identifiable structure.
(7) this definition is not intended to include traditional organized
crime groups such as La Cosa Nostra, groups that fall within the
Department’s definition of “international organized crime,” drug
trafficking organizations or terrorist organizations. 110
109

See, e.g., HOWELL & GRIFFITHS, supra note 68, at 51–80, for an entire chapter about
challenges and considerations associated with attempts to define “gangs” and “gang
members.”
110
About Violent Gangs, U.S. DEP’T OF JUST., (Apr. 30, 2021)

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The DOJ’s definition is notably different from the definition of
“criminal street gangs” in 18 U.S.C. § 521:
(a) Definitions. . . . “criminal street gang” means an ongoing
group, club, organization, or association of 5 or more persons—
(A) that has as 1 of its primary purposes the commission of 1
or more of the criminal offenses described in subsection (c);
(B) the members of which engage, or have engaged within the
past 5 years, in a continuing series of offenses described in
subsection (c); and
(C) the activities of which affect interstate or foreign
commerce.
....
(c) Offenses.
(1) a Federal felony involving a controlled substance (as
defined in section 102 of the Controlled Substances Act (21
U.S.C. 802)) for which the maximum penalty is not less than
5 years;
(2) a Federal felony crime of violence that has as an element
the use or attempted use of physical force against the person
of another;
(3) a Federal offense involving human trafficking, sexual
abuse, sexual exploitation, or transportation for prostitution or
any illegal sexual activity; and
(4) a conspiracy to commit an offense described in paragraph
(1), (2), or (3).111
This difference between the DOJ and federal statutory definitions
is important for two reasons: (1) the DOJ does not account for impact on
interstate or foreign commerce in its definition of gangs, while that is a
central criterion in 18 U.S.C. § 521; and (2) unlike 18 U.S.C. § 521,112 the
DOJ distinguishes between its definitions of gangs and other organized
crime groups: “Through their use of open intimidation and identifiable
insignia, gangs may be distinguished from other organized criminal
groups such as La Cosa Nostra and transnational criminal organizations
who rely on secrecy and clandestine control of legitimate businesses and

https://www.justice.gov/criminal-ocgs/about-violent-gangs.
111
18 U.S.C. § 521.
112
Although beyond the scope of this paper, the distinction between “gangs” and
“transnational” organized crime, including drug trafficking organizations and groups
labeled “Foreign Terrorist Organizations,” creates ambiguity within which racial bias,
equal protection, and due process questions arise; the importance attached to impact on
interstate commerce, as articulated in 18 U.S.C. § 521, is similarly controversial.

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governments to advance their criminal aims.”113 Neither the RICO nor
VICAR statute contains an explicit definition of criminal street gangs, so
they presumably rely on at least one of the definitions above. The lack of
clarity about the definition of a gang undermines the fundamental
principles of fairness and consistency that are supposed to underlie the
American “justice” system.
B. Alleged Gang Member Categories and Misconceptions
Children join “crews” for several reasons—especially in areas
with densely-populated low-income housing. When kids grow up
together, live in the same buildings, attend the same schools, play in the
same recreational areas, and have families facing some of the same
challenges, they are likely to form bonds. Young people also look up to
their older peers, such as older siblings, without the developmental
maturity to objectively assess every possible consequence of the actions
taken by those idolized older peers. These ties sometimes become real or
imagined “crews.”
Criminology scholars J. Mitchell Miller and Richard A. Wright
include a contribution from Dr. Dana M. Nurge (an associate professor of
criminal justice in the School of Public Affairs at San Diego State
University) in their 2005 Encyclopedia of Criminology, in which Nurge
highlights an important distinction for understanding the concept of a
youth gang114:
[T]here are some commonly identified features of gangs, and
characteristics that distinguish youth gangs from other types of
groups, such as organized crime groups, hate groups (e.g.,
skinheads), and drug gangs or crews. Some of the primary
distinctions between organized crime (such as the Mafia) and
youth gangs are age differences (organized crime being
comprised largely of adults), the group’s purpose or function
(whereas organized crime groups are created specifically for
criminal purposes, youth gangs fulfill many other functions, and
crime may or may not be a primary activity); and structure or
organization (whereas organized crime is highly structured, youth
gangs are typically loosely and informally organized).
Differences are also usually evident when comparing hate groups
About Violent Gangs, U.S. DEP’T OF JUST., supra note 110.
To reiterate, my use of the term “youth gang” is only to align my argument with terms
used in existing scholarship; it is not meant as a determination as to the appropriate
application of the term “gang” to any group of people. I prefer to entirely avoid labeling
young people as “gang members” because it can lead to such drastic consequences and
perpetuates the sweeping, inaccurate approach to labeling young people that is
foundational to the issues I address in this Article.
113
114

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and youth gangs. Whereas hate groups—such as skinheads—are
organized with a specific purpose (to spread their message
through literature and actions that reflect their beliefs) and are
driven by a specific ideology (racism being at its core), youth
gangs typically lack any specific ideology or agenda and are
generally less purposive (in terms of activities). . . . Generally
speaking . . . drug gangs tend to be smaller, more cohesive and
structured groups that are specifically organized around drug
sales. Youth gangs, on the other hand . . . may have individual
members who are involved in drug sales, [but] it is usually not a
group function. Most youth gangs are simply not organized
enough to operate a drug business successfully.115
In terms of the purposes youth gangs have been found to serve for
the individuals who associate with them, Dr. Nurge continues: “youth
gangs have been found to fulfill similar functions for their members,
providing protection or security, a sense of family or belonging, status or
prestige, recreational opportunities or something to do, and in some cases
economic rewards (e.g., money earned through illicit activities).”116 Gang
115
ENCYCLOPEDIA OF CRIMINOLOGY 613, (J. Mitchell Miller & Richard A. Wright eds.,
2005); see also HOWELL & GRIFFITHS, supra note 68, at 38 (debunking the misconception
that gang-involved adults pressure young people to join gangs); id. at 34–35 (explaining
that while gang members might be involved in some level of drug sales, street gangs
rarely control entire drug operations. Howell and Griffiths elaborate that gang studies
demonstrate notable differences between youth gangs and drug gangs or cartels. In
Baltimore, for example, one study showed that there were over 300 drug-trafficking
entities, almost none of which were comprised of youth gang members. If anything,
young people who might be gang-affiliated enter the drug distribution process at the street
level, but even that role rarely proves lucrative for the youth gang as a whole. Another
distinction between youth and drug gangs is that violence among youth gangs more often
arises from non-drug-related conflicts; that is not true of drug gangs. Even if drugs play
a role in the conflict, youth gangs rarely fight about control over the drug market itself.);
id. at 247 (“Law enforcement officers themselves recognize the tangential and infrequent
involvement of gangs in drug distribution. From the 1996 [National Youth Gang Survey]
onward, Howell, Egley, and Gleason (2002) found that only a minority of gang-problem
jurisdictions report that gangs controlled a majority of the drug distribution in their
jurisdiction. The bulk of the evidence from law enforcement, field studies, and youth
surveys finds that most gangs lack key organizational characteristics to effectively
manage drug distribution operations. Decker (2007) outlines specific criteria required
for large-scale operations . . . and few street gangs meet these criteria.”) (internal
citations omitted); James Densley, David Pyrooz & Scott Decker, Op-Ed: The Real
Cultural Significance of ‘West Side Story’? It Spread Powerful Myths about Gangs, L.A.
TIMES (Dec. 10, 2021), https://www.latimes.com/opinion/story/2021-12-10/west-sidestory-gang-myths-spielberg.
116
ENCYCLOPEDIA OF CRIMINOLOGY, supra note 115, at 614; see also Brenda C. Coughlin
& Sudhir Alladi Venkatesh, The Urban Street Gang after 1970, 29 ANN. REV. SOCIO. 41,
44 (2003) (“The consensus appears to be that drug trafficking is usually a secondary
interest compared to identity construction, protecting neighborhood territory, and

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experts James C. Howell and Elizabeth Griffiths further observe that most
members of youth gangs do not remain involved with these groups for
more than a few years. 117 These descriptions suggest that in organized
crime groups, even low-level crime contributes to the enterprise,
benefiting fellow members throughout some sort of large-scale enterprise;
that does not seem to apply in the youth gang context.
With this explanation in mind, I believe it will be helpful for
readers of this Article to conceptualize federal criminal RICO gang
prosecutions as they pertain to three different categories: (1) complex and
prevalent organizations that engage in illicit activities, including violence,
to benefit the collective enterprise, often also exert control over a
significant geographical area or aspect of commerce, and can manage
substantial distribution operations118 (e.g., the Mafia, and its infiltration
of unions nationwide;119 in some cases, MS-13, with its control over
MacArthur Park in Los Angeles;120 and the Sinaloa Cartel, which is
considered one of the largest and most influential drug trafficking
organizations in the world121); (2) youth street gangs (“youth gangs”) as
described above (to the extent that so-called “members” of groups in this
category are consistent, and with the acknowledgment that “youth gangs”

recreation.”). For personal accounts of young people arrested as part of the 2016 Bronx
gang raid, see Mirela Iverac, An Oral History of New York’s Largest Gang Bust, N.Y.
MAG. (Aug. 2018), https://nymag.com/intelligencer/2018/08/an-oral-history-of-newyorks-largest-gang-bust.html.
117
HOWELL & GRIFFITHS, supra note 68, at 38–40.
118
To clarify, I am not expressing an opinion about the culpability or proper treatment of
any group in this category—that is beyond the scope of this Article. I merely mention
them to better illustrate my broader points about the other two groups I describe here.
119
See James B. Jacobs & Ellen Peters, Labor Racketeering: The Mafia and the Unions,
31 CRIME & JUST. 229–82, (2003), https://www.researchgate.net/profile/James-Jacobs14/publication/288438924_Labor_Racketeering_The_Mafia_and_the_Unions/links/591
c615ba6fdcc3f521e9d4a/Labor-Racketeering-The-Mafia-and-the-Unions.pdf;
see
generally OXFORD HANDBOOK OF ORGANIZED CRIME (Letizia Paoli ed., Oxford Univ.
Press 2014).
120
See, e.g., Matthew Ormseth & Melissa Hernandez, Attacks on transgender women
expose MS-13 gang’s grip on MacArthur Park, L.A. TIMES (Aug. 26, 2021),
https://www.latimes.com/california/story/2021-08-26/ms-13-gang-targets-transgenderwomen-macarthur-park; Timothy Michael, MS-13’s Stronghold on MacArthur Park And
Transphobia, PRIDE LA (Sept. 15, 2021), https://thepridela.com/2021/09/ms-13sstronghold-on-macarthur-park-and-transphobia/.
121
See, e.g., Kate Linthicum, Did Jailing ‘El Chapo’ Matter? In Seizing a City, the
Sinaloa Cartel Shows it’s Still Strong, L.A. TIMES (Oct. 19, 2019),
https://www.latimes.com/world-nation/story/2019-10-19/el-chapo-sinaloa-cartelculiacan; OXFORD HANDBOOK OF ORGANIZED CRIME, supra note 119, at 208–11.

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constantly splinter, dismantle, and change;122 examples in this category
might include Reckless Fam, Very Crispy Gangsters,123 Money Avenue,
Make It Happen Boys,124 or Young Bosses125); and (3) people who are in
some way acquainted with individuals who might have ties to a gang or
who are entirely unacquainted with gangs but are erroneously perceived
as having ties to “gang members.”
Drawing these distinctions is not intended as a comment about the
definitiveness of the first category, nor is it meant as a judgment about
how to address the activities of those who fall within the first category.
Rather, the purpose is to highlight the different characteristics of youth
gangs and fringe acquaintances relative to groups in the first category,
which is a significant distinction when assessing the inappropriateness of
RICO Act prosecutions of people in the second and third categories.
The flawed and biased gang policing and RICO prosecution
apparatus and the inappropriate designation of alleged youth street gangs
as complex criminal organizations enable inaccurate and biased dragnets
to ensnare many young men of color who are neither involved in the
targeted organizations, nor contributing members of criminal
conspiracies, complex or otherwise.
V.

BROAD RICO AND VICAR INTERPRETATIONS: THE
VIOLENCE-ENTERPRISE-COMMERCE CONTINUUM

As described, once alleged gang members are charged in a RICO
case, courts that tend to interpret RICO and VICAR broadly create a low
hurdle for prosecutors and a nearly insurmountable one for defendants.
The RICO and VICAR statutes bear all the hallmarks of the flawed
approach Congress often has taken when confronted with domestic
activities that appear to jeopardize public safety: imposing excessive
charges and sentences on an overbroad and vulnerable category of people,
exacerbating inequities, and testing or exceeding the limits of the
Constitution. In this Part, I will turn my attention to three central
components126 of the broadly applied RICO and VICAR statutes:

122

See HOWELL & GRIFFITHS, supra note 68, at 39.
See GANGS AND CREWS OF NEW YORK, INTERCEPT (June 11, 2018),
https://theintercept.com/document/2018/06/11/gangs-and-crews-of-new-york/.
124
See Anita Abedian, Taylonn Murphy Trial Reveals Overreaching Prosecution Tactics,
VILL. VOICE (Apr. 20, 2016), https://www.villagevoice.com/2016/04/20/taylonnmurphy-trial-reveals-overreaching-prosecution-tactics/.
125
See Abedian, supra note 85.
126
Further analysis is warranted regarding whether the RICO statute encroaches on the
Sixth Amendment right to counsel of defendants in “street gang” prosecutions. Some
123

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violence, enterprise, and commerce. These three components are
significant in the analysis of the inappropriate, largely ineffective, and
disproportionately negative impact of the RICO and VICAR statutes on
young Black and Brown men. First, states promulgate and enforce their
own violent crime statutes, and most violent crime is prosecuted in state
courts; state procedural and evidentiary rules are generally more
protective than their federal counterparts, in part because they account for
the severity of consequences associated with violent crime convictions.
Federal prosecutors in RICO cases are required to prove at least two
predicate acts127 as articulated by the statutes of the state in which an
alleged (sometimes violent) offense occurred, but without affording
defendants the greater state-level protections. Second, RICO enterprises
need not be particularly consistent, organized, or planned in their
decision-making;128 this amorphous description enables RICO (and its
experts have suggested that the most qualified attorneys (who have the most extensive
experience with these kinds of cases) are only allowed to represent one person in each
case (leaving all remaining defendants to rely on other attorneys who may have less or
no RICO street gang case experience). Experts also caution that the ethical rules
governing attorney conflicts of interest might make it more difficult for defendants to
obtain the best possible, or even adequate, counsel given the large numbers of defendants
who often know and live in close proximity to one another; see, e.g., Max Rivlin-Nadler,
How A Group Policing Model Is Criminalizing Whole Communities, NATION (Jan. 12,
2018),
https://www.thenation.com/article/archive/how-a-group-policing-model-iscriminalizing-whole-communities (“The indictments also create huge problems for the
indigent defense system, because defendants in these cases are almost always poor.
Public-defense offices can defend only one of the indicted individuals because of
conflicts, leaving the rest to be represented by court-appointed attorneys.”).
127
The VICAR statute requires the government to show that the defendant committed (or
attempted or conspired to commit) a violent crime. Due to its requirement of a violent
predicate act, in particular, the VICAR statute applies to a defendant who committed,
attempted, or conspired to commit: “murders, kidnaps, maims, assaults with a dangerous
weapon, commits assault resulting in serious bodily injury upon, or threatens to commit
a crime of violence against” an individual in violation of state or federal law. 18 U.S.C.
§ 1959(a).
128
Boyle v. United States, 556 U.S. 938, 947–48 (2009) (“The crux of petitioner’s
argument is that a RICO enterprise must have structural features in addition to those that
we think can be fairly inferred from the language of the statute. Although petitioner
concedes that an association-in-fact enterprise may be an ‘informal’ group and that ‘not
“much”‘ structure is needed . . . he contends that such an enterprise must have at least
some additional structural attributes, such as a structural ‘hierarchy,’ ‘role
differentiation,’ a ‘unique modus operandi,’ a ‘chain of command,’ ‘professionalism and
sophistication of organization,’ ‘diversity and complexity of crimes,’ ‘membership dues,
rules and regulations,’ ‘uncharged or additional crimes aside from predicate acts,’ an
‘internal discipline mechanism,’ ‘regular meetings regarding enterprise affairs,’ [a name,]
and ‘induction or initiation ceremonies and rituals[.]’ We see no basis in the language of
RICO for the structural requirements that petitioner asks us to recognize. As we said in

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potential for resulting in draconian sentences) applicable to groups that do
not resemble those for which the statute was designed and do not pose the
same scale of threat to the public. Third, an enterprise, for both RICO and
VICAR purposes, must affect interstate or foreign commerce, but that
effect need only be de minimis;129 this, too, leads to the statute being
construed overbroadly and thus misapplied in ways that are especially
harmful young Black and Brown men.
A. Violence
When Congress passed VICAR, it provided federal prosecutors in
racketeering-related proceedings with several substantial exceptions from
otherwise applicable protections available to defendants.
Thus,
prosecutors are directed to look to state laws to define the violent act in
question, but not to all otherwise relevant state procedural and evidentiary
protections.130 In other words, “Congress did not intend to incorporate
the various states’ procedural and evidentiary rules into the RICO statute.
The statute is meant to define, in a more generic sense, the wrongful
conduct that constitutes the predicates for a federal racketeering

[United States v. Turkette, 452 U.S. 576, 583 (1981)], an association-in-fact enterprise is
simply a continuing unit that functions with a common purpose. Such a group need not
have a hierarchical structure or a ‘chain of command’; decisions may be made on an ad
hoc basis and by any number of methods—by majority vote, consensus, a show of
strength, etc. Members of the group need not have fixed roles; different members may
perform different roles at different times. The group need not have a name, regular
meetings, dues, established rules and regulations, disciplinary procedures, or induction
or initiation ceremonies. While the group must function as a continuing unit and remain
in existence long enough to pursue a course of conduct, nothing in RICO exempts an
enterprise whose associates engage in spurts of activity punctuated by periods of
quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse,
complex, or unique . . . .”).
129
See United States v. DeLeon, No. CR 15-4268 JB, 2020 WL 353856, at *101 (D.N.M.
Jan. 21, 2020) (“The Court agrees that the United States ‘need not show a nexus to
interstate commerce for each predicate act underlying’ a VICAR conviction.
Accordingly, all the United States must show is: (i) a connection between [the syndicate]
and the Defendants’ acts of violence; and (ii) that [syndicate’s] activities have a de
minimis impact on interstate commerce.”) (internal citations omitted).
130
See, e.g., id. at *127 (“References to state law in federal racketeering statutes like
VICAR—’in violation of the laws of any State,’ 18 U.S.C. § 1959(a)—and RICO—
’which is chargeable under State law,’ 18 U.S.C. § 1961(1)(A)—define the conduct that
violates federal law; those references do not incorporate state procedural or evidentiary
rules. See United States v. Crenshaw, 359 F.3d 977, 988 n.4 (8th Cir. 2004) (commenting
that a state procedural rule providing that ‘a conviction cannot be based upon
uncorroborated accomplice testimony’ does not apply in a VICAR prosecution)”).

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charge.”131 This means that although a federal prosecutor must prove all
elements of the violent offense as articulated by the state in which the
offense occurred, 132 that prosecutor is not constrained by the procedural
and evidentiary protections of that state, such as statutes of limitations133
or accomplice-corroboration requirements.134 Among the many factors
that make successfully defending people charged under RICO and
VICAR especially difficult, two notable ones are that (1) some of the
defendants will already have been convicted of the predicate state-law
offense(s); and (2) each defendant can be charged with the offenses of all
other “members” of the “enterprise” over the course of time the RICO
case spans—even if a defendant had no knowledge of the acts, did not
participate, and had not been involved with the enterprise or offenses for
years. 135
131

United States v. Paone, 782 F.2d 386, 393 (2d Cir. 1986).
See DeLeon, 2020 WL 353856, at *127 (citing Carrillo, 229 F.3d at 183) (“[T]he
United States still must prove the elements of the predicate state-law offense. . . . ‘[T]he
proposition that the indictment need not recite all elements of the state-law offense
constituting a racketeering act does not, without further explanation, lead to the
conclusion that the government is excused from proving those elements.’”)); see also
U.S. DEP’T OF JUST., VIOLENT CRIMES IN AID OF RACKETEERING, supra note 33, at 25.
133
See DeLeon, 2020 WL 353856, at *130 (citing United States v. Licavoli, 725 F.2d
1040, 1046–47 (6th Cir. 1984)) (“State statutes of limitations are among the procedural
rules that federal racketeering statutes do not incorporate.”); see also United States v.
Revel, 493 F.2d 1, 3 (5th Cir. 1974).
134
See DeLeon, 2020 WL 353856, at *127 (quoting United States v. Crenshaw, 359 F.3d
977, 988 n.4 (8th Cir. 2004)) (“[A state procedural rule that] ‘a conviction cannot be
based upon uncorroborated accomplice testimony’ does not apply in a VICAR
prosecution.”); see also United States v. Shryock, 342 F.3d 948, 987 (9th Cir. 2003)
(citing United States v. Erwin, 793 F.2d 656, 669 (5th Cir. 1989)) (“[In a VICAR
prosecution, a] state accomplice-corroboration rule does not apply with respect to
predicate acts for RICO prosecutions because the accomplice-corroboration rule is
procedural, rather than an element of the offense.”).
135
Telephone interview with a defense attorney who worked on United States v. Parrish,
755 F. App’x 59 (2d Cir. 2018) (Oct. 7, 2020); see, e.g., Speri, supra note 6 (“‘The
fundamental problem with putting 120 people on an indictment is that there’s almost no
way to defend that case,’ said Melissa Geller, a lawyer who represented one of the
[Bronx] 120 and specializes in white-collar RICO cases. ‘It’s a due process issue.’”);
Speri, supra note 20 (“Threatened with draconian sentences, almost all defendants in
these situations agree to plea deals . . . scoring prosecutors dozens of easy convictions.
‘The government doesn’t have to do a lot of heavy lifting to prove that there was an
alleged agreement between two people,’ said Anthony Posada, supervising attorney with
the Community Justice Unit at Legal Aid Society . . . . ‘By using a statute that has very
severe penalties, you sort of do this thing where you overcharge. . . . Large amounts of
bail are set on people . . . [the people charged] are more likely to plead guilty . . . .’”);
see also, Abedian, supra note 124 (quoting Ian Weinstein, a professor at Fordham
University School of Law: “The least involved person in the conspiracy is as guilty of
132

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VICAR thus strips, from what would otherwise be a state-level
case, defendants’ state procedural and evidentiary protections, simply
because the defendant is prosecuted in federal court on a RICO/VICAR
charge. This is especially concerning given that the federal system, unlike
the state systems, arguably is not designed for most violent offenders. 136
States, which have jurisdiction over most violent crimes, promulgate and
enforce their own violent crime statutes within a system that has
heightened procedural and evidentiary protections for defendants, and
afford the prosecutors much less discretion, than is the case for federal
prosecutors in the federal criminal justice system.137 People incarcerated
for violent offenses are in the minority in federal prisons as well, further
indicating that violent offenses are generally left to the states, rather than
the federal criminal legal system.138 That VICAR and RICO serve to
conspiracy as the most involved person.”).
136
See, e.g., Judge John Gleeson, Complex Federal Investigations lecture at Harvard Law
School (Sept. 16, 2020) (“More than anything else, we see that the grand jury process is
what accounts for state prosecutors wanting to team up with the Feds, rather than using
the cumbersome features of state law.”); United States v. Calandra, 414 U.S. 338 (1974)
(holding that a witness subpoenaed to testify before a grand jury may not invoke the
exclusionary rule as grounds for refusing to answer questions relating to evidence
obtained in violation of the Fourth Amendment); United States v. R. Enterprises, Inc.,
498 U.S. 292 (1991) (holding that a court may not quash a grand jury subpoena duces
tecum in response to a relevancy challenge unless it can determine that there is no
possibility the materials sought will produce evidence relevant to the subject of the grand
jury investigation).
137
See infra Parts V and VI for further discussion of the weaker procedural and
evidentiary protections in federal criminal RICO cases; see also Simon Davis-Cohen, The
Appeal Presents: Raided, APPEAL (Apr. 18, 2019), https://theappeal.org/the-appealpresents-raided/ (“The federal government can also link someone to a criminal conspiracy
with the testimony of just one cooperating witness. ‘There are just very loose evidentiary
standards when it comes to federal conspiracy cases,’ explained David Patton, executive
director of Federal Defenders of New York. ‘The prosecutors are allowed to bring in
hearsay that they otherwise, in a normal case, wouldn’t be able to use.’ Court records
show this loose burden of proof may have led the prosecution to make tangible errors.
One example is the case of a defendant, whom the government initially tried to charge
with conspiracy to commit a shooting, based solely on the account of one anonymous
cooperating witness (Witness 1). The witness said they were told by another anonymous
cooperating witness (Witness 2) that the defendant spoke to the shooter about a rivalry a
year and a half before the shooting took place. But when the government was asked to
verify this, the story unraveled: Both witnesses said the defendant was not involved and
the government admitted its mistake.”); John C. Jeffries, Jr. & John Gleeson, The
Federalization of Organized Crime: Advantages of Federal Prosecution, 46 HASTINGS
L.J. 1095, 1098 (1995).
138
THE SENTENCING PROJECT, TRENDS IN U.S. CORRECTIONS (Aug. 2020),
https://www.sentencingproject.org/wp-content/uploads/2020/08/Trends-in-USCorrections.pdf.

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transfer state violent offenses into the federal system adds to the existing
power imbalance in an already harsh statutory and sentencing regime.
B. Enterprise
RICO broadly defines an enterprise as “any individual,
partnership, corporation, association, or other legal entity, and any union
or group of individuals associated in fact although not a legal entity.”139
The Supreme Court attempted to clarify the RICO definition of an
enterprise in its 1981 decision, United States v. Turkette. Justice White
wrote the opinion for the majority, holding that the term “enterprise”
under the RICO statute does not exclusively apply to legitimate business
contexts; instead, the statute applies equally to racketeering activity in
both entirely illegal criminal organizations and legitimate ones.140 This
“clarification” resulted in “an explosion in the application of the criminal
RICO statute to alleged street gangs.”141
Unfortunately, Turkette said what a RICO enterprise is not, but it
did not provide much guidance about what the requisite organization or
structure of a RICO enterprise is. The circuit courts were left to resolve
this lingering ambiguity among themselves,142 which resulted in a circuit
split.143 The majority view (adopted by the Third, Fourth, Fifth, Sixth,
Seventh, Eighth, and Tenth Circuits) was that a RICO associated-in-fact
enterprise should have an organization that is independent from the
commission of the predicate racketeering offenses. 144 Courts subscribing
to this view attempted to narrow the “enterprise” concept by attaching
indicators such as “continuity of . . . personality,”145 “hierarch[y],”146

139

18 U.S.C. § 1961(4).
United States v. Turkette, 452 U.S. 576, 583 (1981) (defining a RICO enterprise as “a
group of persons associated together for a common purpose of engaging in a course of
conduct. . . . [Which] is proved by evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as a continuing unit”).
141
Judge John Gleeson, Complex Federal Investigations lecture at Harvard Law School
(Sept. 23, 2020).
142
See Woods, supra note 15, at 313 (citing Corey P. Argust et al., Racketeer Influenced
and Corrupt Organizations, 47 AM. CRIM. L. REV. 961, 976 (2010)).
143
Id.
144
See id. (Citing Michael Morrissey, Structural Strength: Resolving a Circuit Split in
Boyle v. United States with a Pragmatic Proof Requirement for RICO Associated-in-Fact
Enterprises, 77 FORDHAM L. REV. 1939, 1967 (2009)).
145
United States v. Tillett, 763 F.2d 628, 631 (4th Cir. 1985) (citing United States v.
Lemm, 680 F.2d 1193 (8th Cir. 1982)).
146
Calcasieu Marine Nat’l Bank v. Grant, 943 F.2d 1453, 1461 (5th Cir. 1991) (quoting
Delta Truck & Tractor, Inc. v. J.I. Case Co., 855 F.2d 241, 243 (5th Cir. 1988)).
140

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“consensual decision-making,”147 “joined in purpose,”148 and “distinct
organizational structure.”149 The circuits in the minority (the Second,
Ninth, and Eleventh) held that evidence of the predicate racketeering
crimes was sufficient to prove an enterprise, and that an independent
organization was not necessary under this RICO interpretation. 150 The
Supreme Court subsequently addressed this contentious ambiguity in
Boyle v. United States, in which the Court required RICO enterprises to
have a structure of some sort, but aligned with the minority view that the
predicate racketeering offenses provide sufficient evidence to satisfy this
requirement. 151 Boyle established that RICO enterprises need not be
particularly planned in their decision-making, consistent, or organized—
creating another exceedingly broad category that can easily absorb
alleged “criminal street gangs.”152
147

United States v. Rogers, 89 F.3d 1326, 1377 (7th Cir. 1996) (citing Richmond v.
Nationwide Cassel L.P., 52 F.3d 640, 644 (7th Cir. 1995)).
148
Id.
149
See Freedom Med. Inc. v. Gillespie, 634 F. Supp. 2d 490 (E.D. Pa. 2007); see, e.g.,
United States v. Abed, 203 F.3d 822, 15 (4th Cir. 2000); United States v. Riccobene, 709
F.2d 214, 224 (3d Cir. 1983); United States v. Johnson 440 F.3d 832, 840 (6th Cir. 2006);
United States v. Kragness, 830 F.2d 842, 855 (8th Cir. 1987); United States v. Smith, 413
F.3d 1253, 1267 (10th Cir. 2005); see also Price v. Amerus Annuity Grp. Co. (In re Am.
Inv’rs Life Ins. Co. Annuity Mktg. & Sales Practices Litig.), 2006 U.S. Dist. LEXIS
35980, at *22 (E.D. Pa. June 2, 2006) (“Several Courts of Appeals have rejected
association in fact enterprise pleadings where the plaintiffs failed to allege any
organizational structure for the enterprise. See Vandenbroeck v. CommonPoint Mortg.
Co., 210 F.3d 696, 700 (6th Cir. 2000) (alleged enterprise ‘too unstable and fluid an entity
to constitute a RICO enterprise’); Stachon v. United Consumers Club, Inc., 229 F.3d 673,
676 (7th Cir. 2000) (refusing to accept ‘vague allegations of a RICO enterprise made up
of a string of participants . . . lacking any distinct existence and structure’); Simon v.
Value Behavioral Health, Inc., 208 F.3d 1073, 1083 (9th Cir. 2000) (affirming dismissal
where plaintiff ‘never alleged the existence of a system of authority that guided the
operation of the enterprise’). See also Feinstein v. Resol. Tr. Corp., 942 F.2d 34, 42 n.7
(1st Cir. 1991) (approving dismissal where complaint contained ‘no allegations
articulating how any of the [defendants] may have comprised part of an ‘ongoing
organization’).”).
150
See generally Woods, supra note 15, at 314.
151
Boyle v. United States, 556 U.S. 938 (2009).
152
Id. at 948 (excerpted quotation, which includes the language at 948, is included, supra
note 130); see, e.g., United States v. Palacios, 677 F.3d 234, 248 (4th Cir. 2012) (“RICO
makes it ‘unlawful for any person . . . associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of
racketeering activity.’ 18 U.S.C. § 1962(c). It also criminalizes conspiracy to engage in
such activity. . . . [I]n Boyle v. United States . . . [the Supreme Court] cautioned . . .
against reading the term ‘enterprise’ too narrowly . . . .”); see also United States v.
McClaren, 998 F.3d 203, 217 (5th Cir. 2021); United States v. Brown, 973 F.3d 667, 682

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C. Commerce
An enterprise, for both RICO and VICAR purposes, must affect
interstate or foreign commerce, but that effect need only be de minimis.153
Congress regulates interstate commerce via the Commerce Clause, and it
does so, inter alia, by regulating particular kinds of participation in
commerce for policy reasons.154 The Supreme Court has rarely limited
Congress’ Commerce Clause authority.155 Consequently, given the
(7th Cir. 2020).
153
See, e.g., Matthew H. Blumenstein, RICO Overreach: How the Federal Government’s
Escalating Offensive Against Gangs Has Run Afoul of the Constitution, 62 VAND. L. REV.
211, 214 (2019) (examining the history of conflict between the First and Sixth Circuits
regarding the constitutionality of federally prosecuting alleged noneconomic street gang
members accused of intrastate violence under the RICO statute: “In Waucaush v. United
States, [380 F.3d 251, 255–56 (6th Cir. 2004),] the Sixth Circuit held that a member of a
noneconomic street gang could not be convicted under RICO unless the gang
substantially affected interstate commerce. [However], [i]n United States v. Nascimento,
[491 F.3d 25, 37 (1st Cir. 2007),] the First Circuit held that gangs need only have a de
minimis effect on interstate commerce to be properly subjected to prosecutions of this
sort.”) (internal citations omitted).
154
See United States v. DeLeon, No. CR 15-4268 JB, 2020 WL 353856, at *68 (D.N.M.
Jan. 21, 2020) (“[A]ccording to Chief Justice John Marshall, the ‘power to regulate’ an
activity is the power ‘to prescribe the rule by which’ the activity ‘is to be governed.’
Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 196 (1824) (Marshall, C.J.). Under that broad
definition, many laws qualify as regulations, including laws: (i) prohibiting shipment of
goods made under certain labor conditions, see United States v. Darby, 312 U.S. 100, 113
(1941); (ii) imposing production limitations, see Wickard v. Filburn, 317 U.S. 111
(1942); (iii) affirmatively authorizing navigation and trade, see Gibbons v. Ogden, 22
U.S. (9 Wheat) at 12–13; (iv) proscribing racial discrimination in particular industries,
see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 261 (1964) (hotels);
Katzenbach v. McClung, 379 U.S. 294, 304–05 (1964) (restaurants); and (v) prohibiting
extortionate lending practices, Perez v. United States, 402 U.S. 146, 156–57 (1971).”)
(cleaned up); DeLeon, 2020 WL 353856, at *70 (quoting Gonzales v. Raich, 545 U.S. 1,
40 (2005) (Scalia, J., concurring in judgment) (“‘That simple possession is a
noneconomic activity is immaterial to whether it can be prohibited as a necessary part of
a larger regulation. Rather, Congress’s authority . . . depends only upon whether they are
appropriate means of achieving the legitimate end . . . .’”; elaborating, “Congress, could
not have prohibited felons from possessing firearms . . . if it enacted those prohibitions
. . . without tying [them] to a regulation of [multistate] commerce . . . because
the Necessary and Proper Clause presupposes an exercise of another congressional power
[to create federal crimes].”).
155
DeLeon, at *99 (“The Court concludes that VICAR is facially constitutional . . . .
Unlike the statutes in United States v. Lopez and United States v. Morrison, VICAR
contains an express jurisdictional element, confining its scope . . . . In United States v.
Bolton, 68 F.3d 396 (10th Cir. 1995), the Tenth Circuit analyzed 18 U.S.C. [§] 922(g),
which prohibits a convicted felon from ‘possess[ing] in or affecting commerce, any
firearm or ammunition.’ 18 U.S.C. [§] 922(g). The Tenth Circuit reasoned that, unlike
18 U.S.C. [§] 922(q), which the Supreme Court invalidated in United States v. Lopez, 18

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expansive concept of congressional regulatory power under the
Commerce Clause, even a very nebulous enterprise can easily satisfy the
“interstate commerce” element of a RICO or VICAR charge. In fact,
courts have held that telephones, mobile phones, the U.S. Postal Service,
the internet, and even supplying condoms manufactured in another state
can be “instrumentalities of interstate commerce” under RICO.156
U.S.C. [§] 922(g) contains a jurisdictional element . . . that the firearm [was], at some
time, in interstate commerce is sufficient to establish its constitutionality under the
Commerce Clause.’”) (second and third brackets not in original).
156
See United States v. Velasquez, 881 F.3d 314, 329 (5th Cir. 2018) (“Use of
instrumentalities of interstate commerce such as telephones, the U.S. Postal Service, and
pagers to communicate in furtherance of the enterprise’s criminal purposes can also
constitute the enterprise affecting interstate commerce.”); see, e.g., United States v.
Doherty, 867 F.2d 47, 68 (1st Cir. 1989) (“We agree with [appellant] DOHERTY that the
government showed only minimal effects on interstate commerce, but RICO requires no
more than a slight effect upon interstate commerce.”); United States v. Robinson, 763
F.2d 778, 781 (6th Cir. 1985) (“In the present case, the parties stipulated that the alcohol
sold by the appellants to Ann’s Liquors was manufactured out of state. In our view, this
is a sufficient impact upon interstate commerce for purposes of Section 1962(c).”);
United States v. Allen, 656 F.2d 964, 964 (4th Cir. 1981) (“[T]he supplies used in Allen’s
bookmaking operations which originated outside of Maryland provided a sufficient nexus
between the enterprise and interstate commerce to invoke RICO.”); United States v.
Altomare, 625 F.2d 5, 7–8 (4th Cir. 1980) (citing Perez v. United States, 402 U.S. 146
(1971)) (“Altomare next asserts that the County Prosecuting Attorney’s office did not
have the requisite nexus with interstate commerce to be within the jurisdiction of RICO.
Because of the very nature of the powers and duties conferred upon it, however, that
office necessarily is an institution ‘engaged in, or the activities of which affect, interstate
or foreign commerce.’ 18 U.S.C. [§] 1962(c). The record reveals that interstate telephone
calls regularly were placed from the prosecutor’s office, that certain of the supplies and
materials purchased and used by the prosecutor’s office had their origins outside of West
Virginia, and that persons who were not citizens or residents of the State were involved
in investigations and litigation conducted by the prosecutor’s office. These contacts
provide a sufficient basis for invoking RICO’s jurisdiction over the prosecuting
attorney’s office.”); United States v. Campanala, 518 F.2d 352, 364 (9th Cir. 1975), cert.
denied, 423 U.S. 1050 (1976)); United States v. Millán-Machuca, 991 F.3d 7, 18 (1st Cir.
2021) (citing United States v. Rodríguez-Torres, 939 F.3d 16, 27 (1st Cir. 2019));
R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1353 (5th Cir. 1985) (citing United States
v. Rone, 598 F.2d 564, 573 (9th Cir. 1979)) (“The nexus with interstate commerce
required by RICO is ‘minimal.’”), abrogated on other grounds in H.J. Inc. v. Nw. Bell
Tel. Co., 492 U.S. 229, 235 (1989); United States v. Delgado, 401 F.3d 290, 297 (5th Cir.
2005) (“[E]vidence presented at trial showed that TMM used Western Union, telephones,
the U.S. Postal Service, and pagers to transfer money and communicate with each other
in furtherance of TMM’s criminal purposes. . . . Thus, TMM was engaged in and affected
interstate commerce.”); United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004)
(“[T]he pimps and their prostitutes used instrumentalities of interstate commerce—
pagers, telephones, and mobile phones—to communicate with each other while
conducting business. Pipkins used the Internet to promote his online escort service which

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The nexus connecting the commerce element of VICAR and the
violence and enterprise elements is strikingly minimal. In United States
v. DeLeon, the court explained that the VICAR interstate nexus
requirement applies only to the RICO enterprise. The VICAR violent
offense need be tied to the enterprise only in some minimal way: if the
RICO enterprise has a de minimis interaction with interstate commerce,
then the VICAR interstate nexus requirement is satisfied. 157 The violent
act and interstate commerce elements do not require their own nexus—
the nexus connecting violence to the RICO enterprise automatically
connects the violence and commerce elements so long as the enterprise
and commerce elements are somehow linked.158 Thus, prosecutors need
to meet only a very low standard in order to connect these three VICAR
elements, providing yet another prosecutorial advantage in VICAR and
RICO prosecutions.
VI.

EVIDENTIARY AND PROCEDURAL IMBALANCES IN RICO
PROSECUTIONS OF ALLEGED NEIGHBORHOOD GANGS159

As with the loose violence-enterprise-commerce interpretation
described above, once alleged gang members are charged in a RICO case,
courts also tilt the playing field toward prosecutors and against defendants
through evidentiary and procedural imbalances. In this Part, I will detail
ways in which procedural and evidentiary imbalances during RICO gang
prosecutions disregard critical components of fairness in the criminal

advertised . . . prostitutes. . . . Finally, the pimps furnished their prostitutes with condoms
manufactured out of state, purchased from Atlanta gas stations.”).
157
See DeLeon, at *101.
158
Id. (quoting United States v. Dally, No. 07-748, 2009 WL 10708281, at *5 (D.N.M.
Apr. 2, 2009)) (“[VICAR’s] interstate nexus requirement is satisfied by establishing a
connection between the § 1959 act of violence and a RICO enterprise which has a de
minimis interstate commerce connection. . . . The interstate-nexus requirement applies
to the activities of the enterprise as a whole; there is no requirement that the violent crimes
in aid of that enterprise have their own specific connection to interstate or foreign
commerce apart from the enterprise.”); id. (“The Court agrees that the United States ‘need
not show a nexus to interstate commerce for each predicate act underlying’ a VICAR
conviction. United States v. Fernandez, 338 F.3d at 1250. Accordingly, all the United
States must show is: (i) a connection between [the enterprise] and the Defendants’ acts
of violence; and (ii) that [the enterprise’s] activities have a de minimis impact on interstate
commerce.”).
159
For critiques of plea bargaining, gang experts, bail, militarized gang raids, the
prejudicial effect of social media posts and music lyrics on jurors, and additional law
enforcement and prosecutorial tactics that create additional barriers for defendants in
RICO gang cases, see generally HOWELL & BUSTAMANTE, supra note 3; HOWELL, supra
note 78, at 177–93.

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legal system and leave alleged gang members exceedingly vulnerable.
First, I illustrate these imbalances through a case study of the 2016 “Bronx
120” raid: for instance, in gang raids, police can arrest people whom the
prosecution has affirmatively identified as not being “gang members”; in
addition, some defendants in the Bronx 120 case faced new conspiracy
charges linked to state crimes for which they had already served their
sentences. Second, I will highlight additional procedural imbalances,
including how state court protections do not transfer into federal courts
when federal prosecutors prove predicate crimes as defined by the statutes
of the states in which the alleged incident(s) occurred. In the final two
Sections, I will discuss ways in which federal criminal RICO gang
prosecutions even deprive defendants of the many protections afforded by
the Federal Rules of Evidence, for example, through reliance on social
media and hearsay, and through a lack of indictment specificity.
A. The Bronx 120 Raid as a Procedural Imbalance Case
Study
In April of 2016, the U.S. Attorney for the Southern District of
New York, the Commissioner of the NYPD, the Special Agent-in-Charge
of the New York Field Office of the U.S. Immigration and Customs
Enforcement’s Homeland Security Investigations (“HSI”), the Special
Agent-in-Charge of the New York Field Division of the Drug
Enforcement Administration (“DEA”), and the Special Agent-in-Charge
of the New York Field Division of the U.S. Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) announced that a federal grand jury
indicted 120 alleged members and associates of two so-called “rival street
gangs” in the Bronx. The operation that resulted in the arrests of those
individuals later became known as the largest “gang raid” in New York
City history. The two indictments, formally entitled United States v.
Parrish, No. S1 16-CR-212 (S.D.N.Y. 2016) and United States v.
Burrell., S2 15-CR-95 (S.D.N.Y. 2016) alleged racketeering conspiracy,
narcotics conspiracy, narcotics distribution, and firearms charges.
According to the U.S. Attorney’s Office for the S.D.N.Y., “[t]he
Indictments [stemmed] from a joint investigation by the NYPD’s Bronx
Gang Squad, HSI’s Violent Gang Unit, the New York Field Division of
the DEA, and the ATF’s Joint Firearms Task Force.”160 Oddly, although
160
U.S. ATT’Y’S OFF., S.D.N.Y., 120 Members and Associates Of Two Rival Street Gangs
In The Bronx Charged In Federal Court With Racketeering, Narcotics, And Firearms
Offenses (Apr. 27, 2016), https://www.justice.gov/usao-sdny/pr/120-members-andassociates-two-rival-street-gangs-bronx-charged-federal-court. It is worth noting that,
according to the Immigration and Customs Enforcement website, “HSI’s mission is to

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most of the defendants were U.S. citizens, HSI (which purports to focus
on criminal organizations that threaten or seek to exploit the customs and
immigration laws of the United States) conducted the thousands of
wiretaps. Professor Babe Howell and her research partner Priscilla
Bustamante studied the Bronx 120 prosecution and ultimately confirmed
that dozens of young people who weren’t actually in gangs were arrested
during the raid; several of the arrests were based on who the individuals
knew, rather than what they actually did,161 i.e., guilt by association:
One of the most startling revelations of the review of the Bronx
120 prosecutions is that half of those swept up in the largest gang
raid in the history of New York were not affirmatively alleged to
be members of either of the two rival gangs allegedly targeted by
the mass indictments. The prosecutor’s sentencing submissions
and statements affirmatively state that 34 of those subjected to the
raid and arrested as part of the RICO case were not gang members.
An additional 17 individuals are characterized as “associates of”
or “associated with” the two rival gangs. . . . Thus, 51 of the
defendants swept up in “the largest gang takedown in New York
City history” were affirmatively not alleged to be gang members.
For another 13 there is no clear allegation relating to gang
membership. Their dispositions suggest they were not gang
members.162
Details of the case were kept confidential by a strict federal
protective order after the raid, but parents of defendants were allowed to
view discovery materials confidentially. An anonymous group of
defendants’ mothers revealed that multiple defendants were facing
conspiracy charges linked to state crimes for which they had already
served their sentences. According to journalist Simon Davis-Cohen, “[a]t

investigate, disrupt and dismantle terrorist, transnational and other criminal organizations
that threaten or seek to exploit the customs and immigration laws of the United States.”
U.S. IMMIGR. AND CUSTOMS ENF’T, HOMELAND SECURITY INVESTIGATIONS,
https://www.ice.gov/about-ice/homeland-security-investigations (last visited Jan. 5,
2022).
161
HOWELL & BUSTAMANTE, supra note 3, at 18 (“The broad range of sentences in these
mass indictments provides strong support for the conclusion that the raids and indictments
were overbroad, sweeping in defendants that not even the prosecution believed to be ‘the
worst of the worst.’ 22 defendants received sentences of time served (average time served
was 5.9 months) and 3 received nolle prosequis (declined prosecutions). Another 18
received a sentence of less than two years. . . . 35 of the defendants were convicted based
on their role selling marijuana.”) (At the time this data was collected, it excluded
outcomes for two pending cases and three cooperators). As I will discuss in Part VIII,
these outcomes might be more indicative of plea deals negotiated out of fear than of actual
guilt.
162
Id. at 9–10 (internal citations omitted).

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least 113 of the [Bronx 120] defendants have now pleaded guilty, others
made separate agreements with the government, and two went to trial,
resulting in convictions. Among the guilty pleas . . . 53 [were sentenced
to] three to 10 years, and 14 [were sentenced] to over 10 years.”163
B. Double Jeopardy, Previous Offenses, and Statutes of
Limitations
The RICO Act relies on past crimes, but the Fifth Amendment of
the U.S. Constitution prohibits multiple prosecutions for the same crime
(this rule is known as the Double Jeopardy Clause or “double jeopardy”).
The constitutional prohibition against double jeopardy, absent
congressional assertion of intent to impose multiple punishments for the
same offense, 164 would conceivably bar the practice of basing RICO
charges on crimes for which an accused individual was previously tried.165
It demonstrably does not; instead, courts presume that Congress intended
to permit the imposition of separate sentences for RICO offenses and any
predicate acts under state law.166 Similarly, courts have concluded that
163

Davis-Cohen, supra note 137.
See, e.g., Missouri v. Hunter, 459 U.S. 359, 366 (1983) (“With respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater punishment than the legislature
intended.”); United States v. Ayala, 601 F.3d 256, 264–65 (4th Cir. 2010) (“The Double
Jeopardy Clause states that no person shall ‘be subject for the same offence to be twice
put in jeopardy of life or limb.’ In the context of a single criminal prosecution, the clause
‘protects against multiple punishments for the same offense.’ . . . It does not, however,
prohibit the legislature from punishing the same act or course of conduct under different
statutes.”) (internal citations omitted).
165
See generally CONG. RSCH. SERV., supra note 1, at 30 (Ex post facto concerns are
beyond the scope of this paper because the cases of the young people who are the focus
of this paper arose after the RICO and VICAR statutes were finalized; nonetheless, it is
noteworthy that, “[b]y the same token, ex post facto might appear to bar a RICO charge
built upon a predicate offense committed before RICO was enacted or before the crime
was added to the list of RICO predicates.”).
166
See United States v. Garcia, 754 F.3d 460, 474 (7th Cir. 2014) (citing United States v.
Morgano, 39 F.3d 1358, 1366 (7th Cir. 1994)) (“The only question before us is thus
‘whether Congress, in making the predicate RICO acts relevant to sentence determination
via the Sentencing Guidelines, intended to allow defendants to receive consecutive
sentences for both the predicate acts and the RICO offense.’ We held in Morgano that
Congress intended exactly this, and every other circuit to consider the question has agreed
with this view.”); see also, HOWELL & BUSTAMANTE, supra note 3, at 7–8 (“[B]ecause
conspiracy or RICO conspiracy charges have elements that are different from the target
crime, double jeopardy does not preclude trial for a conspiracy to commit an offense to
which an individual has already pleaded guilty (or for that matter been acquitted or
granted some form of leniency). Many of the defendants in the federal mass gang
prosecutions face conspiracy charges relating to conduct for which they have already
164

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Congress intended separate sentences for both the RICO conspiracy to
commit a substantive RICO offense and the substantive offense itself.167
pleaded guilty and served time, or even for cases that were resolved without criminal
convictions.”); Hayat, Killing Due Process, supra note 9, at 20–21 (“[T]he Supreme
Court has relegated the multiple punishment doctrine to a tool of statutory interpretation
rather than a constitutional protection for criminal defendants. The dismantling of the
Fifth Amendment double jeopardy protection is the product of white supremacy, couched
in a legislative intent narrative . . . .”) (internal citations omitted); id. at 26–27 (explaining
the four forms of double jeopardy and providing an overview of double jeopardy
caselaw).
167
See United States v. Pratt, 728 F.3d 463, 477 (5th Cir. 2013) (“Pratt was charged under
18 U.S.C. § 1962(d) with conspiring to violate a substantive RICO provision, § 1962(c).
The elements of a conspiracy under § 1962(d) are simply ‘(1) that two or more people
agreed to commit a substantive RICO offense and (2) that the defendant knew of and
agreed to the overall objective of the RICO offense.’ The defendant need not be one of
the people who agreed to commit the substantive offense. Section 1962(c) makes it
‘unlawful for any person employed by or associated with any enterprise . . . to conduct or
participate, directly or indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity.’”) (internal citations omitted); Pratt, 728 F.3d at 478 n.59
(Citing United States v. Martino, 648 F.2d 367, 383 (5th Cir.1981) and United States v.
Dixon, 509 U.S. 688, 705, (1995)) (“To the extent Pratt’s argument contemplates a future
prosecution for a charge other than § 1962(d), it is unlikely she would be protected by
double jeopardy in any event. We have held that separate prosecutions for conspiracy to
violate RICO and for substantive RICO violations based on the same underlying
racketeering activities do not violate the Double Jeopardy Clause. Nor is successive
prosecution in different proceedings for separate crimes based on the same conduct
prohibited as a general matter.”) (internal citations omitted); see, e.g., Ayala, 601 F.3d at
265–66 (“If anything, we think that the available evidence suggests that Congress did
indeed intend to impose multiple punishments. For one thing, it placed the [RICO and
VICAR] offenses in different chapters and provided each with its own penalties. . . . For
another, Congress was clearly aware of the RICO statute when it enacted the VICAR
statute, given that the latter defines ‘racketeering activity’ by reference to a provision of
RICO. . . . Had it wanted to impose a single punishment when a defendant violated both
statutes during the same course of conduct, Congress easily could have said so . . . . Our
conclusion is bolstered by the fact that these statutes are directed at two different but
related problems. . . . While the RICO statute addresses participation in racketeering
enterprises generally, the VICAR statute addresses the particular danger posed by those
. . . who are willing to commit violent crimes in order to bolster their positions within
such enterprises. In this sense, the VICAR statute ‘complements’ the RICO act by
allowing the government to address these interrelated problems. . . . We find additional
support in the case law of other circuits. The Second Circuit, for instance, has held that
a defendant may be punished in a single prosecution for substantive violations of both the
RICO and VICAR statutes. . . . Likewise, the First Circuit has held that a defendant may
be punished for both a VICAR conspiracy and a substantive RICO offense. . . . In the
related context of successive prosecutions, the Third Circuit has rejected a double
jeopardy challenge where the first prosecution included a RICO conspiracy charge and
the second included a VICAR conspiracy charge. . . . [W]e conclude that there is no
Double Jeopardy bar to punishing a defendant for both a murder conspiracy under §

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Moreover, in Gamble v. United States, the Supreme Court ruled that
successive state and federal prosecutions are not precluded by the Double
Jeopardy Clause.168
These doctrinal features enabled significant procedural
imbalances in the context of the Bronx 120 raid. For example, consistent
with applicable law, the Bronx 120 prosecutors presented past conduct
that had not resulted in convictions to support new federal charges against
defendants.169 In fact, any contact a defendant might have had with the
courts was available to federal prosecutors, who then used that
information to advocate for pre-trial detention and harsher sentencing.
Experts Babe Howell and Priscilla Bustamante described the
disastrousness of this practice for defendants:
The extent to which conduct that had not resulted in convictions
was used to support the new charges and to argue for harsher
sentences was surprising. Defense attorneys routinely accept
‘adjournments in contemplation of dismissal’ and pleas to
violations for minor misconduct, assuring those arrested that they
will not have a criminal record. When helping young people who
are on the wrong path, the New York State courts provide second
chances in the form of programming and youthful offender
treatment which results in a sealed record and is not a criminal
conviction. A great deal of advocacy on the part of defense
counsel, well-considered exercises of discretion by courts or
prosecutors, and lack of reliable evidence may all justify nonprosecution or non-criminal charges. Still, the Bronx 120
indictments show us that any contact with the criminal justice
system, any charges levied against a defendant, can be later
offered in bail appeals or sentencing submissions. These contacts
and charges will be used by the prosecution to argue for detention
and higher sentences, even in the absence of a criminal
conviction.170
1959(a)(5) and a racketeering conspiracy under § 1962(d) when the offenses arise out of
the same course of conduct.”) (internal citations omitted); see also CONG. RSCH. SERV.,
supra note 1, at 30 (citing United States v. Schiro, 679 F.3d 521, 525–28 (7th Cir. 2012);
United States v. DeCologero, 530 F.3d 36, 71 (1st Cir. 2008); United States v. Jones, 482
F.3d 60, 71–72 (2d Cir. 2006); United States v. Wheeler, 535 F.3d 446, 450 (6th Cir.
2008); and United States v. Dean, 647 F.2d 779, 788 (8th Cir. 1981) (“In the RICO
context, the courts have held that the Double Jeopardy Clause does not bar successive
RICO prosecutions of the same defendants on charges of involving different predicate
offenses, enterprises, or patterns. They have been more receptive to double jeopardy
concerns in the case of successive prosecutions of the same enterprise. There, they have
invoked a totality of the circumstances test.”).
168
Gamble v. United States, 139 S. Ct. 1960, 1964 (2019).
169
See HOWELL & BUSTAMANTE, supra note 3, at 21.
170
Id.

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In addition to past court involvement, crimes for which the
statutes of limitations would have expired in other kinds of cases are
available to prosecutors for an extended period during RICO gang
prosecutions; the statute of limitations does not commence until the
conspiracy indictment begins or the conspiracy itself culminates.171
C. Social Media
The Federal Rules of Evidence prohibit the use of hearsay
evidence in court. Social media posts are typically considered hearsay
evidence, but they are nonetheless allowed as evidence in RICO
prosecutions.172 Prosecutors in RICO cases have latitude to expand
“evidentiary rules [to] permit statements of any co-conspirator made in
furtherance of the conspiracy to be offered for the truth of the matter
asserted”; and allowance of social media posts permits “statements of
alleged ‘co-conspirators’ to be used without the benefit of crossexamination,” as well as “to prove affiliation, association, enterprise and
guilt,” all without the benefit of traditional due process or any
substantiation of veracity with respect to the truth of the matter
asserted. 173
Due process rights can vary depending upon particular
circumstances (e.g., due process rights might diverge from those in most
misdemeanor or felony cases in the context of the “special needs”
exception to the Fourth Amendment for Transportation Security
Administration agents; when officers stop someone at the U.S.-Mexico
border; in capital punishment cases; or pursuant to the state secrets
exception in the U.S. Foreign Intelligence Surveillance Court). Based on
this reality, some might posit that due process rights are justifiably
restricted in RICO cases. The fluidity of due process is beyond the scope
of this paper, but the fact that so many individuals are inappropriately
charged under RICO and VICAR indicates that the rights of defendants
in these cases should not change before courts determine whether the
federal statute even applies. Moreover, the fact that these cases rarely
reach courts, because the majority of defendants opt for plea deals, renders
early and stricter adherence to traditional due process rights especially
important.

171

Id.
See FED. R. EVID. 801–03; see, e.g., Abedian, supra note 124.
173
HOWELL & BUSTAMANTE, supra note 3, at 8, 27.
172

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D. Lack of Indictment Specificity
Finally, courts have permitted as lawful RICO gang prosecution
indictments that are notably general and broad; they often lack specific
information tying individual defendants to times, locations, or alleged
conduct. Indictments that do not provide specific details deny defense
attorneys the individualized information they need to defend their clients.
Generalized indictments also prevent individuals who might not have
committed a violent offense, or be members of an alleged gang, from
obtaining pre-trial releases, or even case dismissals, because these
individuals lack necessary information to contest charges or the terms of
their pre-trial restrictions.174
VII.

RACIAL DISPARITIES AND PROFILING IN GANG
CLASSIFICATION AND RICO PROSECUTIONS

RICO was enacted in response to approximately two decades of
concern about organized, violent crime overtaking major U.S. cities and
industries.175 The Mafia posed a threat to white America and its legitimate
business enterprises, and alarms about it were sounding for legislators
nationwide. Still, such organized and violent crime was not new to
America: white supremacist gangs such as the Ku Klux Klan (“KKK”)
had infiltrated U.S. politics and the economy for decades.176 The KKK
had also developed collective, organized plans to commit violence against
formerly enslaved Black people and their descendants and supporters.
Congress did not enact RICO for application to white supremacist gangs;
174

Id. at 26.
THIRD INTERIM REP. OF THE SPEC. COMM. TO INVESTIGATE ORGANIZED CRIME IN
INTERSTATE COMM., S. REP. NO. 82-307, at 170 (1951).
176
See, e.g., Woods, supra note 15, at 319; see generally S. POVERTY L. CTR., Ku Klux
Klan: A History of Racism (Mar. 2011), https://www.splcenter.org/20110228/ku-kluxklan-history-racism; S. POVERTY L. CTR., Whose Heritage? Public Symbols of the
Confederacy (Feb. 2019), https://www.splcenter.org/20190201/whose-heritage-publicsymbols-confederacy. Congress passed The Ku Klux Klan Act of 1871 as a partial
response to this issue, but that legislation did not end white supremacy; indeed, white
supremacy persists to this day in various explicit, political, economic, and cultural forms.
See, e.g., Hayat, Killing Due Process, supra note 9, at 21 n.7–8 (discussing and defining
racism and white supremacy); id. at 31–32 (“When not affirmatively advocating for white
supremacy, the Supreme Court has been either oblivious to or wholly dismissive of its
existence as a reality in our country, even though this is widely accepted among social
scientists, historians, and scholars in countless fields. Yet, on a few notable occasions,
the Court has revealed its consciousness of structural, systemic racism in our legal and
criminal justice system. . . . Loving v. Virginia [and] Ramos v. Louisiana.”) (citing Peggy
Cooper Davis, Loving v. Virginia and White Supremacy, 92 N.Y.U. L. REV. ONLINE 48
(2017)) (citing Ramos v. Louisiana, 140 S. Ct. 1390, 1393 (2020)).
175

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although the statute could conceivably also be used for that purpose, white
(non-Italian) organized crime was never the target—in fact, some of the
legislators participated in white supremacist organizations themselves.177
As noted, in the 1950s, 1960s, and 1970s, Italians were not
necessarily considered white by all; 178 indeed, Italians faced some of the
harshest anti-immigrant discrimination in America at that time.179 As
Italian organized crime became more widespread, white legislators
perceived a threat that, while informed by violence and corruption, was
thus also racially biased. And just as RICO had racist undertones at its
time of enactment, the racial and ethnic makeup of the groups the DOJ
has subsequently identified as the most prominent criminal street gangs 180
continues to result in law enforcement, including prosecutors, leveraging
RICO to target people of color who are today similarly deemed to be
threatening to white “mainstream” U.S. society.
Many of the factors that promote “gang” formation (e.g., poverty,
lack of employment opportunities, and safety concerns) are overrepresented in low-income communities. Today, low-income urban
communities predominantly consist of people of color, especially Black,
Latino/x, and indigenous people, as a result of the history of systemic
racism in the United States.181 However, these persistent inequities do not
177

See, e.g., DAVID CUNNINGHAM, KLANSVILLE U.S.A.: THE RISE AND FALL OF THE CIVIL
RIGHTS-ERA KU KLUX KLAN 113 (2013); see generally MICHAEL WOODIWISS,
ORGANIZED CRIME AND AMERICAN POWER 73 (2001).
178
See BENCIVENNI, supra note 25 (describing late nineteenth and early twentieth century
perceptions of Italians as non-white and the negative stereotypes with which Italian
immigrants to America were often associated); see generally ROEDIGER, supra note 25;
Woods, supra note 15, at 311.
179
See WOODIWISS, supra note 177; see, e.g., Anita Christina Butera, Assimilation,
Pluralism and Multiculturalism: The Policy of Racial/Ethnic Identity in America, 7 BUFF.
HUM. RTS. L. REV. 11 (2001); Rachel Rossoni Munafo, National Origin Discrimination
Against Americans of Southern and Eastern European Ancestry: A Review of the Legal
History and Judicial Interpretations, 25 CATH. L. 50, 52 (1979) (citing Salvatore J.
LaGumina, WOP!: A Documentary History of Anti-Italian Discrimination in the United
States (1973)).
180
Criminal Street Gangs, U.S. DEP’T OF JUST., (Apr. 19, 2021)
https://www.justice.gov/criminal-ocgs/gallery/criminal-street-gangs.
181
See NEIGHBORHOOD POVERTY, NATIONAL EQUITY ATLAS (last visited Dec. 3, 2021),
https://nationalequityatlas.org/indicators/Neighborhood_poverty#/; TRACY HADDEN LOH
ET AL., BROOKINGS INSTITUTION, THE GREAT REAL ESTATE RESET (Dec. 6, 2020),
https://www.brookings.edu/essay/trend-1-separate-and-unequal-neighborhoods-aresustaining-racial-and-economic-injustice-in-the-us/; JENNY ROWLAND-SHEA ET AL.,
HISP. ACCESS FOUND. & CTR FOR AM. PROGRESS, THE NATURE GAP: CONFRONTING
RACIAL AND ECONOMIC DISPARITIES IN THE DESTRUCTION AND PROTECTION OF NATURE
IN AMERICA (July 2020), https://www.hispanicaccess.org/news-resources/research-

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reflect some sort of heightened, innate proclivity for gang involvement
among Black and Brown people; the assumption that innate proclivity or
socioeconomic marginalization inevitably causes the racial disparities in
RICO prosecutions distracts from the substantial role of racially biased
law enforcement in creating and perpetrating those disparities.182
Professor Babe Howell’s analysis of the NYPD Gang Database is
emblematic of de facto racial profiling by law enforcement:
Fewer than 1% of the individuals in the NYPD’s Gang Database
(officially named the Criminal Group Database) are white. . . .
Over 98% of the gang database is Black or Latinx, nearly 8% were
added to the gang database prior to their 18th birthday, and about
3% of the individuals in the gang database were females. . . . The
library/item/978-the-nature-gap-confronting-racial-and-economic-disparities-in-thedestruction-and-protection-of-nature-in-america; see generally JORJA LEAP, JUMPED IN:
WHAT GANGS TAUGHT ME ABOUT VIOLENCE, DRUGS, LOVE, AND REDEMPTION (2012);
JORJA LEAP, PROJECT FATHERHOOD (2016); CELESTE FREMON & TOM BROKAW, G-DOG
AND THE HOMEBOYS: FATHER GREG BOYLE AND THE GANGS OF EAST LOS ANGELES
(2008).
182
Racist gang labeling, policing, and prosecution has occurred throughout the U.S. for
decades. Several scholars, especially sociologists and anthropologists, have written about
gangs and the ways in which problematic “gang policing” and “gang control” practices
play out in specific geographic areas, such as in Los Angeles (e.g., Jorja Leap; Jorje David
Mancillas; Xuan Santos) or Chicago (e.g., Roberto R. Aspholm; John M. Hagedorn). For
an example of how Professor Babe Howell describes this phenomenon in New York City,
see HOWELL, supra note 78, at 177 (“The recent trend in gang policing and prosecution
of ‘gangs’ in New York City makes little to no sense without an understanding that the
exaggerated gang narrative is used to insulate policing from critique and to generate
support for oppressive race-based profiling. Like loitering laws, the war on drugs,
‘Broken Windows’ policing, and stop-and-frisk policing, gang policing allows for
aggressive surveillance, policing, prosecutions, and control of people of color based on
discretionary enforcement and non-enforcement of the law. Discretion in enforcing each
of these policing strategies has hinged primarily on appearance and geography. Unlike
previous iterations of oppressive, race-based policing, ‘gang policing’ has yet to fall into
disrepute because the gang label triggers fear. . . . [T]he exaggeration of gang problems
to create moral panic and shore up support for police is not new and has precedents across
the country. . . . In short, gang policing allows law enforcement to engage in intensive
surveillance and policing of suspect racial groups with no oversight. It also leads to
conspiracy cases that are so difficult to defend that there is virtually no check on gang
policing and prosecutions in the form of trials.”). See also JOSMAR TRUJILLO & ALEX S.
VITALE, Misguided strategy: New York City’s Decision to Criminalize Gangs, in
ROUTLEDGE INT’L HANDBOOK OF CRITICAL GANG STUD. 225–42 (David C. Brotherton &
Rafael Jose Gude, eds., 2021). For additional scholarship on gang databases, policing,
and prosecution, see Stephan, supra note 10; Rebecca J. Marston, Guilt by AltAssociation: A Review of Enhanced Punishment for Suspected Gang Members, 52 U.
MICH. J.L. REFORM 923 (2018); Robin Petering, The Potential Costs of Police Databases:
Exploring the Performance of California’s Gang Database (CalGang), 5.1-3 J. FORENSIC
SOC. WORK 67 (2015).

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database has been insulated from review thus far because, unlike
stop-and-frisks and quality-of-life arrests, the database and related
data-gathering are largely unknown to the public and are not
subject to judicial review.183
Jordan Blair Woods, in Systemic Racial Bias and RICO’s
Application to Criminal Street and Prison Gangs, reported that, as of
2012, the DOJ generally excluded white-affiliated gangs from its list of
prominent criminal street gangs. Gangs affiliated with white identity only
appeared in lists of prison and motorcycle gangs, and they were fewer in
number than those associated with people of color. 184 The “Criminal
Street Gangs” section of the DOJ’s “About Violent Gangs” website
remains unchanged in this respect.185 Indeed, studies show that law
enforcement officers have underestimated the number of white gang
members for many years, and this tendency persists. For example,
criminologists conducting a multistate survey across nearly fifty schools
spanning over ten cities throughout the United States found that more than
25% of participants who considered themselves “gang members”
identified as white or some other white-perceived, European, ethnicity.186
The limited empirical research that does exist on racial disparities in
federal RICO prosecutions and indictments paints a picture unreflective
of even that reality: as Professor Woods explained his findings, “a facially
neutral law (RICO) and a facially neutral concept (‘criminal street gang’)
are being applied to prosecute criminal groups that are predominantly
affiliated with racial minorities.”187
Racist stereotypes, reinforced by the media, politics, and
socialization in the U.S., can have the result of predisposing the general
public to perceive young Black and Brown men as dangerous, ganginvolved criminals, and law enforcement officers to perceive any young
Black or Brown man they arrest as likely to have been involved in gang
activity, whether or not the individual acted as part of a group or in fact
has any ties to a gang. Gang databases or terminology indicative of gang
involvement on police reports can influence prosecutors’ decisions to
pursue RICO charges when determining how to prosecute young Black

183

HOWELL, supra note 78; see also Ashley Southall, As Shootings Increased, N.Y.C
Returned to Disputed Tactic: Gang Takedowns, N.Y. TIMES (Aug. 26, 2021),
https://www.nytimes.com/2021/08/26/nyregion/nypd-shootings-gang-arrests.html.
184
Woods, supra note 15, at 336.
185
See About Violent Gangs, U.S. DEP’T OF JUST., supra note 110; Criminal Street Gangs,
U.S. DEP’T OF JUST., supra note 180.
186
See Woods, supra note 15, at 308; see also Esbensen & Winfree, supra note 58.
187
Woods, supra note 15, at 335.

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and Brown men.188 Racial bias in policing and prosecution thus becomes
a self-fulfilling prophecy in which law enforcement personnel at all levels
increasingly risk “organizing” young Black and Brown men into
“organized crime” groups to which they do not actually belong.189
VIII. RICO “STREET GANG” CONVICTIONS CIRCUMVENT
COURTS AND DO NOT MAKE COMMUNITIES SAFER
It could be argued that RICO, while imperfectly applied to young
Black and Brown men from gang databases, still allows law enforcement
to reduce crime because some young men who do not ultimately receive
RICO convictions are nonetheless convicted for lesser offenses. This
theory (compounded by erroneous gang databases and, as I will discuss,
high rates of largely unsupervised plea bargaining) undermines the
legitimacy of law enforcement and the criminal legal system writ large.
The RICO statute only requires a few individuals (“targets”) to be tied to
predicate charges for RICO to sweep up additional people (“affiliates”)
who are in any way associated with those targets; so-called affiliates do
not even necessarily have to have committed lesser predicate offenses.
Thus, law enforcement officers can arrest the acquaintances of RICO
targets and can then proceed to charge them for whatever non-RICO, nonpredicate violations they might have committed. This is the opposite of
the foundational values on which our justice system is constructed, and
which law enforcement purports to uphold: the friends of RICO targets
suffer a presumption of guilt by association and are only investigated ex
post facto and without the benefit of a presumption of innocence.
A skeptic might further reject the analysis put forth thus far and
instead maintain that the ends justify the means—essentially, that the
current practice of charging young Black and Brown men as street gang
members under the RICO Act must be justified because the courts are
ultimately convicting many of the people charged, whether for RICO or
188

See Christian B. Sundquist, Uncovering Juror Racial Bias, 96 DENV. L. REV. 309,
332–45 (2019) (discussing extensive analysis of racism, including discussion of PeñaRodriguez v. Colorado, 137 S.Ct. 855, 869 (2017), and subsequent cases, in addition to
analysis of social science and legal scholarship on the complexity of racism in both
American culture and the U.S. criminal legal system); see generally Emily Badger et al.,
Extensive Data Shows Punishing Reach of Racism for Black Boys, N.Y. TIMES (Mar. 19,
2018), https://www.nytimes.com/interactive/2018/03/19/upshot/race-class-white-andblack-men.html (quoting Berkeley Law Professor Dr. Khiara Bridges: “Simply because
you’re in an area that is more affluent, it’s still hard for black boys to present themselves
as independent from the stereotype of black criminality[.]”).
189
Interview with an Assistant Federal Defender, Federal Defenders of New York, Inc.,
in the Eastern District (Oct. 24, 2020); see generally Woods, supra note 15, at 338.

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other offenses. This theory stems from an illusory notion of courts
actively validating that (1) alleged street crews are complex criminal
conspiracies, and (2) gang databases provide a reliable and lawful 190 basis
for prosecuting alleged street crews under RICO. Indeed, the conclusion
is reminiscent of (now-refuted) post-9/11 justifications for torture191 or
the controversial arguments in favor of the designation of “suspected
terrorists” under the International Emergency Economic Powers Act192
190

Courts have not yet found gang databases to be unlawful, but the 2013 S.D.N.Y.
decision in Floyd v. City of New York suggests that such a conclusion might be possible.
191
AM. C.L. UNION, BRADBURY AND BYBEE MEMOS ARE RELEASED IN RESPONSE TO
LONG-RUNNING ACLU LAWSUITS (Apr. 16, 2009), https://www.aclu.org/pressreleases/justice-department-releases-bush-administration-torture-memos. For more on
the subject from Professor Jack Goldsmith, who withdrew the memos, see JACK
GOLDSMITH, THE TERROR PRESIDENCY (W. W. NORTON & COMPANY 2007) at 141–76.
Professor Goldsmith also reflects on this experience within the context of the ability of
the U.S. government to operate outside of the law in pursuit of so-called “enemies”
throughout history. See, e.g., JACK GOLDSMITH, IN HOFFA’S SHADOW (PICADOR 2019) at
109 (“The attorney general is the chief prosecutor and thus the fulcrum of American
justice. ‘The prosecutor has more control over life, liberty, and reputation than any other
person in America,’ Attorney General Robert Jackson said in a famous [1940] speech
. . . . With the snap of his finger, the prosecutor can start a financially ruinous
investigation and then can secure a grand jury indictment based on a ‘one-sided
presentation of the facts.’”), 122–24 (“[John] Ashcroft deployed the [Robert] Kennedy
model aggressively to find and incapacitate the 9/11 enemy. The Justice Department he
led took hundreds of undocumented immigrants from the Middle East and South Asia off
the streets for immigration violations. It deployed criminal laws to jail or hold “material
witnesses,” usually with little proof of terrorist ties. It approved aggressive interrogations
bordering on torture. And it signed off on the legality of Stellarwind, President George
W. Bush’s post-9/11 surveillance program that intercepted the telephone calls and email
messages of Americans and collected metadata in bulk. President George W. Bush
secretly approved Stellarwind in the Oval Office on the morning of October 4, 2001.
According to an official government report, a few hours later the legal authorization for
the program was ‘pushed in front of’ Ashcroft by an unnamed person ‘and he was told to
sign it.’ Ashcroft had not been ‘read in’ to the classified program before October 4, and
he had done no research on its legality.’. . . Ashcroft’s signature on the authorization was
critically important as well. The intelligence bureaucracy charged with executing
Stellarwind had good reason to worry that it violated criminal restrictions on domestic
surveillance. Ashcroft’s sign-off solved that problem. As a practical matter, Justice
Department approval of an intelligence operation precludes the Department from
prosecuting anyone involved in implementing it, even if the program is later deemed to
violate the law. It’s an extraordinary power. It’s also an example of . . . the government’s
ability, in secret, to determine the limits on its actions and thus to skirt legal rules that
bind everyone else . . . . For the six decades prior to 9/11, presidents and attorneys
general, under pressure to find and defeat various ‘enemies’ in American society, had
secretly blessed surveillance practices that would be declared illegal when they came to
light years later.”).
192
The International Emergency Economic Powers Act, Title II of Pub.L. 95–223, 91

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(IEEPA) and its more recent expansion by Executive Order (E.O.)
13224.193 To illustrate this comparison, journalist Elizabeth Goitein’s
description of E.O. 13224 and its practical effects provides a useful
example:
Executive Order 13224 [issued by George W. Bush in the wake
of 9/11] prohibited transactions not just with any suspected
foreign terrorists, but with any foreigner or any U.S. citizen
suspected of providing them with support. Once a person is
“designated” under the order, no American can legally give him a
job, rent him an apartment, provide him with medical services, or
even sell him a loaf of bread unless the government grants a
license to allow the transaction. The Patriot Act gave the order
more muscle, allowing the government to trigger these
consequences merely by opening an investigation into whether a
person or group should be designated.
Designations under Executive Order 13224 are opaque and
extremely difficult to challenge. The government needs only a
“reasonable basis” for believing that someone is involved with or
supports terrorism in order to designate him. The target is
generally given no advance notice and no hearing. He may
request reconsideration and submit evidence on his behalf, but the
government faces no deadline to respond. Moreover, the evidence
against the target is typically classified, which means he is not
allowed to see it. He can try to challenge the action in court, but
his chances of success are minimal, as most judges defer to the
government’s assessment of its own evidence.
....
Americans were significantly harmed by designations that later
proved to be mistakes. For instance, two months after 9/11, the
Treasury Department designated Garad Jama . . . based on an
erroneous determination that his money-wiring business was part
of a terror-financing network. Jama’s office was shut down and
his bank account frozen. News outlets described him as a
suspected terrorist. For months, Jama tried to gain a hearing with
the government to establish his innocence and, in the meantime,
obtain the government’s permission to get a job and pay his
lawyer. Only after he filed a lawsuit did the government allow
him to work as a grocery-store cashier and pay his living
expenses. It was several more months before the government
reversed his designation and unfroze his assets. By then he had

Stat.
1626
(enacted
Oct.
28,
1977),
https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter35&edition=prelim.
193
Exec. Order No. 13,224, 3 C.F.R. 13,224 (signed on Sept. 23, 2001),
https://www.state.gov/executive-order-13224.

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lost his business, and the stigma of having been publicly labeled
a terrorist supporter continued to follow him and his family.194
The U.S. government leveraged E.O. 13224 to shut down
organizations, even including charities, “without ever having to prove its
charges in court.”195 The parallels between E.O. 13224 and the
development and use of gang databases are staggering: “When police add
people to gang databases based on non-criminal criteria and inclusion is
often erroneous [and] racially biased . . . the consequences are profound.
[Inclusion] can immediately make people ineligible for jobs and housing,
subject to increased bail and enhanced charges, and more likely to get
deported.”196
As with gang databases, lack of oversight and
overwhelming information imbalance can create a breeding ground for
bias and inaccurate, but life-altering, designations. We must learn from
our mistakes.
Another possible refutation of the arguments put forth in this
Article could rely on the premise that convictions indicate judicial
oversight and approval of the outcomes of RICO street gang prosecutions.
That is largely not the case, however, as convictions are not necessarily
indicative of guilt.197 People have been convicted of crimes they did not
commit, and the fault in this logic extends beyond America’s history of
wrongful convictions (especially convictions of innocent men of color). 198
The severity of the charges alleged gang members face under the RICO
Act forces those charged to choose between two bad options: (1) risk an
extreme sentence by going to trial,199 or (2) plead guilty and reduce the
likely sentence. The majority of defendants choose the second option, 200
194

Elizabeth Goitein, The Alarming Scope of The President’s Emergency Powers,
ATLANTIC
(Jan/Feb
2019
issue),
https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergencypowers/576418/.
195
Id.
196
Stephan, supra note 10, at 1018–19 (internal citations omitted).
197
See SUBRAMANIAN ET AL., supra note 71, at 3–4 (“In whatever form it takes, plea
bargaining remains a low-visibility, off-the-record, and informal process that usually
occurs in conference rooms and courtroom hallways—or through private telephone calls
or e-mails—far away from the prying eyes and ears of open court. Bargains are usually
struck with no witnesses present and made without investigation, testimony, impartial
fact-finding, or adherence to the required burden of proof.”) (internal citations omitted).
198
See SELBY, supra note 72; GROSS ET AL., supra note 72.
199
See, e.g., Carissa Byrne Hessick, The Constitutional Right We Have Bargained Away,
ATLANTIC (Dec. 24, 2021), https://www.theatlantic.com/ideas/archive/2021/12/right-tojury-trial-penalty/621074/.
200
See SUBRAMANIAN ET AL., supra note 71, at iii (“Only 2 percent of federal criminal
cases—and a similar number of state cases—are brought to trial. More than 90 percent

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even if they are innocent or at least not part of criminal conspiracies. 201
Once someone accepts a plea deal, their case does not go before a judge
or a jury—plea bargains circumvent critical checks on law enforcement.
Therefore, most street gang convictions of young Black and Brown men
under RICO do not indicate that courts have found the convicted people
of convictions, at both federal and state levels, are the result of guilty pleas. Plea
bargaining is so fundamental to the system that even in 1970, Chief Justice Warren Burger
of the U.S. Supreme Court estimated that a 10 percent reduction in guilty pleas would
require doubling the amount of judicial capacity in the system.”).
201
See, e.g., Abedian, supra note 124. For more about factors that influence Black and
Brown people to accept plea deals, as opposed to going to trial (e.g., Black people are
more likely to be held in pretrial detention than white people), see generally
SUBRAMANIAN ET AL., supra note 71; SAWYER, supra note 71; SENTENCING PROJECT,
REPORT TO THE UNITED NATIONS ON RACIAL DISPARITIES IN THE U.S. CRIMINAL JUSTICE
SYSTEM (Apr. 19, 2018), https://www.sentencingproject.org/publications/un-report-onracial-disparities/; Emily Yoffe, Innocence Is Irrelevant, ATLANTIC (Sep. 2017),
https://www.theatlantic.com/magazine/archive/2017/09/innocence-isirrelevant/534171/; Speri, supra note 6 (“Kraig Lewis was living in Connecticut and was
nine credits away from his MBA when the neighborhood he had spent his life trying to
get away from came back to haunt him. Growing up in a mostly poor and at times violent
section of the Bronx, Lewis had seen his share of illegal activity. Some of those behind
the criminality—mostly low-level drug dealing—were his friends. Lewis hung out with
them while also keeping focused on school. Education was his ticket to a different life,
his mother always said, and no one could take that away from him. She was wrong.
Three years ago . . . helicopters and armored vehicles swarmed Lewis’s old
neighborhood, and SWAT teams and some 700 officers with the NYPD and a host of
federal law enforcement agencies knocked down doors at the Eastchester Gardens public
housing project and nearby homes. At the same time, 40 miles and a world away, police
showed up at the loft apartment Lewis shared with his girlfriend in the seaside city of
Bridgeport. Lewis, who had no criminal record and had never been arrested before, was
taken away in handcuffs while his 6-year-old son was asleep in his bed. Police drove
Lewis to the local station and then back to the Bronx, to a police precinct where he saw
dozens of his childhood friends, some for the first time in years. Lewis was one of 120
people, almost all young black and Latino men, who were indicted following that predawn raid . . . . For Kraig Lewis, the toll of the raid is still unfathomable. He lost two
years of his son’s childhood, his life in Connecticut, and the chance at a degree he had
worked so hard to earn. Perhaps worst of all, he lost his dreams and his self-confidence.
‘Everything I imagined for myself . . .’ he said, ‘I have nothing.’ His probation conditions
require him to stay in New York—which means at his mother’s place in the Bronx—but
they also require him not to interact with his co-defendants, the only friends he has around
here. ‘I’m not supposed to be around them because they violate my probation,’ he told
me recently, growing frustrated. ‘Like how? They put me back in the neighborhood. I
spent two years in prison with them every day. And then you put us back and tell us we
are not supposed to be around each other. These are the only people I know who are left.’
Mostly, Lewis stays at home, reliving his days at the Metropolitan Detention Center in
his head. ‘I’m hurt,’ he said. ‘I’m not going to lie, it takes a lot sometimes to just
move. . . . I feel like society did me wrong, I didn’t deserve that,’ he added. Then,
pointing to the floor, he said, ‘My soul is still down here and I’m trying to pick it up.’”).

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guilty—rather, they occur outside of the traditional justice process. U.S.
District Judge Jed Rakoff has expressed concern about this trend:
Anyone who is arrested and charged in a criminal case is facing
the same dilemma. Do I put the system to the test? In the old
days, if you put the system to the test, and you still were convicted,
you would face a sentence that was probably no more than 10
percent higher than what you would face if you pled guilty. Now
you face a sentence that may be 500 percent higher than if you
pled guilty. The result is that people, including unfortunately
many innocent people but also many guilty people who
nevertheless would have put their case to a jury, because they felt
there were extenuating circumstances, no longer choose to go to
trial . . . . After the mandatory minimums and other laws were
passed, that percentage [of people who chose to go to trial] went
down dramatically. . . . It’s very bad for the system because a trial
is the one place where the system as a whole gets tested and where
you find out what the truth is. And instead what we have is a
system where everything is negotiated in secret in a prosecutor’s
office, and you never find out what the truth is or whether the
system was working.202
Moreover, many people who accept plea deals still spend time in
custody to serve their shortened sentences;203 the number of young Black
and Brown men who end up in prison for RICO street gang charges does
not necessarily indicate that courts found that number of them guilty
under the statute or that law enforcement reduced crime as a result of
RICO prosecutions.
Communities suffer from the improper, ineffective, and biased
use of the RICO statute against alleged gang members who are targeted
based on flawed gang databases. Members of some communities have
reported that the use of gang databases to inform gang raids and
subsequent conspiracy convictions has had a silencing effect—people are
afraid to report crime for fear of the possible unintended consequence that
they or someone they know will be added to a gang database. Concerns
about how ICE uses gang databases to spur deportation proceedings 204
and erosion of trust in the law enforcement system205 exacerbate this
202

Iverac, supra note 116.
See SUBRAMANIAN ET AL., supra note 71, at 26–27 (“The odds of receiving a plea offer
that includes incarceration are almost 70 percent greater for Black people than white
people.”).
204
See, e.g., Blitzer, supra note 63; TRUJULLO & VITALE, supra note 60, at 20–21;
Stephan, supra note 10, at 1020–21.
205
For more on reasons why Black and Brown people might distrust the system, see
CRIMINAL JUSTICE FACTSHEET, NAACP, https://naacp.org/resources/criminal-justicefact-sheet (last visited Dec. 3, 2021).
203

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phenomenon. Moreover, raiding an entire neighborhood and removing
over 100 young men inevitably harms any community; as Taylonn
Murphy explained in reference to the 2014 raid in his community,
“[w]hen you take 103 individuals out of any community . . . you
absolutely and positively take away a generation. You’re weakening our
community. You’re losing all these resources[.]”206 As Professor and
Associate Dean Fareed Nassor Hayat emphasized in his critique of
multiple punishments (or “double jeopardy”) for singular crimes in gang
prosecutions:
[I]f we believe that ‘no one is free until everyone is free’ and that
‘injustice anywhere is a threat to justice everywhere,’ we must
object to, intervene in, and correct for constitutional violations,
even where the criminal defendant is the most despised and, in the
eyes of the court, the most dangerous among us. Much like the
objection, rejection, and protest of the extension of the Patriot Act,
the negligent spreading of coronavirus among the incarcerated,
and the countless killings of unarmed Black people, the same
treatment is required in response to anti-gang statutes. The same
Constitution . . . must be equally applied to actual or accused gang
members.207
Competing narratives persist about the two largest “gang raids” in
New York City, but one thing is clear: these “takedowns” do not change
the low-performing local public schools and high unemployment rates
(e.g., 60 percent unemployment in Eastchester Gardens—one area
affected by the raids).208 Arresting over 100 young men in an already
strained community is not a preventative measure—it is a sweeping
reaction that tears families apart. Some of those young men might be the
only people who walk their younger siblings to school each day, others
might take care of ailing or elderly relatives, and still others might be
making strides with mentors in their lives in ways that have not yet fully
materialized.
IX.

PROPOSED REFORMS209
Several proposals could serve as a foundation from which to

206

Rivlin-Nadler, supra note 21.
Hayat, Killing Due Process, supra note 9, at 22–24 (internal citations omitted).
208
See Iverac, supra note 116.
209
My use of this term should not be construed to undermine the work of abolitionists.
Some activists argue that reforms simply mask the severity of fundamental problems at
the core of the American criminal legal system, thereby stalling radical change. My
proposals are meant to address the crisis facing the young men who are at risk of being
targeted as alleged gang members right now; however, they do not resolve the systemic
injustices that facilitated and enable the inappropriate, ineffective, and disproportionately
207

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address the harm caused, and risks created by, misapplication of the RICO
Act to young Black and Brown men in the so-called “gang policing” and
prosecution context:210
(1) Government agencies with access to demographic information
about defendants in RICO gang prosecutions must prioritize collecting

harmful application of the RICO and VICAR statutes to young Black and Brown men.
See, e.g., Akbar, supra note 13, at 1787–88 (“Reform is one strategy toward the
transformation abolition seeks. Rather than aiming to improve police through better
regulation and more resources, reform rooted in an abolitionist horizon aims to contest
and then to shrink the role of police, ultimately seeking to transform our political,
economic, and social order to achieve broader social provision for human needs. But
abolitionist organizers understand that demands on the state are insufficient to undo the
carceral state. So, as they run campaigns to divest from, dismantle, and delegitimize the
police, they run experiments in accountability and collective care. . . . Abolition
challenges reform frameworks in two fundamental ways. First, it advances reform as a
strategy or tactic toward transformation, rather than an end in itself. And second, it
supplants state and society for police as the object of transformation. In turn, it indicates
the need for a range of tactics, experiments, and projects for decarceration and depolicing,
and ultimately the need to rethink the state. Reform alone will not be enough. Abolition
requires that we become more comfortable with the disruption and delegitimization of
prevailing political, economic, and social relations that hold in place brutal inequality. It
connects us to grassroots movements that are necessary sources of political power for
decarceration and depolicing. Abolitionist demands speak to the fundamental crises of
our times, challenge our siloed expertise as legal scholars, and invite us to reconsider our
commitments to the status quo. Why have decades of police reform failed to mitigate
police violence? Agendas focused on reforming and relegitimizing the police have failed
to consider the footprint, power, resources, and legitimacy of police as the heart of the
problem. By contending with abolitionist critique and organizing, we deepen our
understanding of policing and cogenerate strategies that have the potential for political,
economic, and social transformation. Such reorientations can create space for scholars
to think about meaningful reform projects that transform the structures and relations of
power that undergird policing and the country.”) (internal citations omitted).
210
Some experts suggest that targeted policing of only those individuals suspected of
violence, especially gun violence, could help reduce shootings while also preventing
unnecessarily sweeping gang “takedowns.” I do not include that proposal here because
court-involvement and incarceration cause trauma for everyone involved and often
further entrench the challenges that lead to gang involvement in the first place; see, e.g.,
Southall, supra note 183 (“Officials say their focus has narrowed to the gang leadership
and members who have been involved in shootings. For example, out of the 37
defendants named earlier this year in a set of Brooklyn indictments targeting the Hoolies
crew and the 900 gang—both based in Bedford-Stuyvesant—24 were identified as
gunmen. Prosecutors said the remaining defendants drove them to hits, procured guns
and plotted attacks. [Eric Gonzalez, the Brooklyn district attorney,] said he believe[s] the
indictments have helped to bring down shootings in Brooklyn, pointing to maps that
showed incidents falling recently in the public housing developments where the gangs
battled. ‘It just stops cold,’ he said. ‘We believe the guys we took out in our gang
investigation are the shooters.’”).

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correct and complete data and making it publicly available (or, at the very
least, available to defendants and their counsel). Such data should include
information about individuals who accept plea bargains, and the terms
thereof, as well as about defendants who go to trial. For example, the
DOJ and Federal Bureau of Prisons (BOP) should collect and make
publicly available anonymized demographic data about individuals
convicted on RICO charges, as well as those serving sentences for RICO
convictions.211 Importantly, increased transparency and improved data
collection by government agencies alone is insufficient; legislators,
progressive prosecutors, scholars, and organizers must advocate for, and
subsequently use, such data to inform efforts to address the statute’s
disproportionately negative impact.
(2) Gang labeling and gang databases should be eliminated. 212
Even if these databases offer some limited value in efforts to combat
organized crime, they lack oversight, are highly subjective, and they do
not reflect the distribution of self-reported gang members described
earlier in this Article. Therefore, gang databases are not tracking the
“right” people (to the extent that “appropriate” targets for policing and
prosecution of this nature exist at all). If some obscure justification
enables gang databases to remain in use, they should be constantly
monitored for bias, ideally by independent monitors or invested civilian
oversight bodies.213 State and local law enforcement agency budgets
211
In addition to the DOJ data limitations described earlier in this paper, anyone
researching this issue will likely be limited to reliance on surnames, sentencing
documents, court observations, and the Bureau of Prisons lookup database when
attempting to ascertain the race or ethnicity of defendants in gang-related RICO cases;
see, e.g., HOWELL & BUSTAMANTE, supra note 3, at 13.
212
For an example of advocacy around this issue in New York City, see WHO WE ARE,
G.A.N.G.S. COALITION, https://gangscoalition.org/ (“The . . . Coalition is made up of
organizers, experts, legal advocates, and directly impacted community members that seek
to abolish surveillance and criminalization tools predicated on association, including
gang or crew labels. The Coalition’s goal is to dismantle systems that increase
surveillance, and/or police contact, or enhance punishment based on law enforcement
profiling of Black, Latinx and immigrant communities as gang or crew members. Central
to eliminating the use of these tools is the redirecting of resources away from the police
department and prosecutors and towards harm-reducing, community-based programs that
are proven to make neighborhoods safer.”).
213
For instructive and comprehensive discussions of effective independent oversight in
the corrections context, see generally Michael B. Mushlin & Michele Deitch, Opening
Up a Closed World: What Constitutes Effective Prison Oversight, 30 PACE L. REV. 1383
(2010); Michele Deitch, Special Populations and the Importance of Prison Oversight, 37
AM. J. CRIM. L. 291 (2009). For resources on the basics of civilian oversight, see National
Association for Civilian Oversight of Law Enforcement, Civilian Oversight Basics 2016,
https://www.nacole.org/civilian_oversight_basics. But see Akbar, supra note 13, at

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should include dedicated resources for screening gang database
information, training officers, and eradicating racially biased gang
classification methods. Federal law enforcement agencies could also
benefit from replicating state-level screening, training, and
troubleshooting measures. The results of such resource allocations should
ultimately prove to be cost-effective insofar as they lead to jurisdictions
spending less money and fewer resources on costly incarceration, reentry
facilitation, and support services. Most importantly, any decision about
the future of gang databases should be the result of genuine collaboration
between community groups, such as the Grassroots Advocates for
Neighborhood Groups & Solutions (G.A.N.G.S.) Coalition in NYC, and
other stakeholders. The communities which law enforcement claims to
protect through gang databases should lead the process of identifying the
priorities and tools that will promote their collective safety and wellbeing.
(3) State and federal governments must create and maintain
safeguards against misusing “gang prevention” measures as a justification
for racial profiling; such safeguards might require coaching law
enforcement officials and the legislators who fund them, independent

1804–05 (“Calls for community policing and civilian review overlook critiques and
inconclusive evidence over whether either curbs police violence or power. Many
accounts—in disciplines like sociology, history, political science, and American and
Black studies—frame community policing as central to government attempts to
relegitimize police amidst the rebellions of the 1960s. Rather than directly address
concerns about police violence and economic inequality, the state invested in community
policing in an attempt to reestablish control. Indeed, community policing started as a
reform, and is now seen as central to the growth of policing. Fundamentally, [this] ‘more
democracy’ frame [that proposes civilian review] fails to account for the antidemocratic
nature of the carceral state. Police and prisons lock people out of formal political
channels. Incarceration removes a person from their family and community and
undermines their ability to engage in civic and social life. Governments deploy arrests
and criminal records to deny people the right to vote, to participate in a jury, to find legal
work, or to receive government benefits; arrests and criminal records can further create
grounds for eviction, deportation, license suspension, and the loss of custodial rights.
Mass criminalization creates such ‘extraordinary rates of contact’ between criminal legal
institutions and the citizenry that prisons and police become central in shaping notions of
citizenship and expectations of the state among ‘custodial citizens.’ For so many people,
contact with the criminal system is a demobilizing force that leads to their ‘absence, rather
than their presence, in mainstream political life.’ To call for the democratization of
policing without grappling with the carceral state’s central role in denying primarily
Black, brown, and poor people participation in formal democratic channels and civic and
community life—let alone determining the conditions of their lives and engagement with
their communities—is a contradiction in terms. And of course, this is just the tip of the
iceberg, given the central role of money in politics, and central role of criminalization in
maintaining economic stratification.”) (internal citations omitted).

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oversight mechanisms—both government-funded oversight that is housed
and funded independently from law enforcement, as well as some form of
civilian oversight—and broader community input. Federal prosecutors
and judges, ideally with the assistance of Congress, should also enact
procedural safeguards to this end, as detailed below.
(4) Conviction integrity units214 should receive additional support
to conduct thorough reviews of all allegedly gang-related RICO
conspiracy convictions. Ideally, this change could be effected without
increased funding for prosecutors; the combination of additional pressure
and scrutiny without corresponding additional resources might serve to
incentivize prosecutors to shift their priorities away from gang-related
RICO cases.
(5) Congress should ban militarized raids of the nature employed
in RICO-related gang “takedowns.” As was the case with the Bronx 120,
targets of gang takedowns are rarely all charged with violent crimes.
Prosecutors generally build these cases over the course of months or years
and by the time of the arrests, they know enough about their targets to
arrest them in a manner that is less publicly traumatic for the targeted
individuals, their loved ones, and their communities, especially when law
enforcement can conclude that individuals do not pose a threat of violence
or a flight risk.215 These targets have not been found guilty at the time of
their arrest, and they might never be: they deserve to be treated
accordingly. Indeed, they should be treated humanely regardless of
outcome.
(6) As scholars Babe Howell and Priscilla Bustamante have
suggested, Congress should amend the RICO statute “to require a
jurisdictional minimum for the impact on interstate commerce exceeding
$10 million per year to prevent [prosecutors from using] RICO to bring
214
See, e.g., THE NATIONAL REGISTRY OF EXONERATIONS, CONVICTION INTEGRITY
UNITS,
https://www.law.umich.edu/special/exoneration/Pages/Conviction-IntegrityUnits.aspx (“A Conviction Integrity Unit (CIU) is a division of a prosecutorial office that
works to prevent, identify, and remedy false convictions. They are sometimes called
Conviction Review Units (CRUs).”).
215
See HOWELL & BUSTAMANTE, supra note 3, at 23 (“A recent two-part series in the
New York Times reports that 81 civilians and 13 law enforcement officers died in SWAT
operations between 2010 and 2016. The city of Houston has decided to stop using ‘NoKnock’ warrants altogether due to the outsized risks. In the case of the Bronx 120 raids,
a man plunged to his death in the Bronx on April 27, 2016[,] when he climbed out the
window to evade police. Risk of death is not the only unnecessary harm related to
militarized raids inflict. Each defendant was part of a family and part of a community.
The fear and trauma inflicted on family members and communities by a military-style
pre-dawn raid is not justified by the charges.”) (internal citations omitted).

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ordinary street crimes into federal court.”216
(7) Congress—and the Supreme Court, if presented with a
relevant case—should eliminate the RICO practice of re-prosecuting
predicate acts that have already been adjudicated. Double jeopardy in
RICO cases, especially in alleged gang prosecutions of people from lowincome communities, warrants greater scrutiny, as do RICO-related
exceptions to evidentiary rules, especially those relating to hearsay, social
media, and past crimes.217
(8) In light of the previous proposal, defense attorneys, judges,
and prosecutors at the state court level should adjust their approach to plea
deals, case dismissals, and other forms of resolution to counteract the
tendency of prosecutors to leverage past charges against defendants in
federal RICO indictments.
(9) Legislators should “revise sealing provisions in relation to
arrests that do not result in prosecution and prosecutions that do not result
in criminal convictions.”218 Stricter sealing provisions could disrupt the
practice of leveraging this kind of information against RICO conspiracy
defendants.
(10) State and local elected officials should reallocate law
enforcement resources away from RICO “gang” prosecutions to violence
intervention experts, such as those at Save Our Streets, Cure Violence,
Urban Peace Academy, the Los Angeles Mayor’s Office of Gang
Reduction and Youth Development, 696 Build Queens Bridge, and We
Care Outreach. These experts can intervene if gang activity or violence
is alleged to have occurred and prevent unnecessary law enforcement
contact in the first instance.219 Resources should also go to related
grassroots organizations, such as G.A.N.G.S. Coalition. Additionally,
elected officials “should spend more effort and money to alleviate the
conditions attending violence, like unemployment, homelessness and the
216

Id. at 30.
For proposals of this nature with a focus on state-level gang statutes and prosecution,
see Hayat, Applying Monell Bifurcation, supra note 28; Fareed Nassor Hayat, Preserving
Due Process: Require the Frye and Daubert Expert Standards in State Gang Cases, 51
N.M. L. REV. 196 (2021); Hayat, Killing Due Process, supra note 9; Fareed Nassor Hayat,
Two Bites at the Apple: Requiring Double Jeopardy Protection in Gang Cases, 73
RUTGERS L. REV. 1463 (2021).
218
HOWELL & BUSTAMANTE, supra note 3, at 21.
219
See LEAP, ABOUT VIOLENCE, supra note 181; LEAP, PROJECT FATHERHOOD, supra
note 181. While many of these programs are inherently imperfect, and they can take time
to reach their maximum effectiveness, they nonetheless could provide valuable
interventions by respected, trained community members who, most importantly, are not
law enforcement officers.
217

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flow of illegal guns from other states.”220
(11) Advocates should urge Congress to establish a higher bar for
enterprise involvement, and the bar for RICO conspiracy prosecutions
should be especially high for individuals found to be mere affiliates of, or
entirely uninvolved in, the alleged gang at the heart of any given RICO
case. Despite their lack of gang involvement, these individuals are
nonetheless being dragged into RICO gang prosecutions, with high
sentencing exposure and often extensive pre-trial detention.
(12) As I discussed in Part III, the 2013 S.D.N.Y. decision in
Floyd v. City of New York221 could serve as a means for challenging the
constitutionality of RICO prosecutions based on flawed gang databases in
court, given the disproportionately negative impact of the practice on
young Black and Brown men.
***
The New York City G.A.N.G.S. Coalition has also released
recommendations informed by proven, evidence-based methods of
violence reduction, some of which overlap with the proposals described
above. These proposals include (1) “Social Inclusion;” (2) “Credible
Messengers;” and (3) “Community Investments.” According to the
220

Southall, supra note 183; see also DERECKA PURNELL, BECOMING ABOLITIONISTS:
POLICE, PROTESTS, AND THE PURSUIT OF FREEDOM 134–36 (Astra Publ’g House 2021)
(“Currently, to deter gun violence, prosecutors will charge Black people though the
federal system instead of the state system . . . . ‘Project EJECT’ provides an example.
The federal government works with the police department in Jackson, Mississippi to ‘cut
off the flow of young people to Jackson’s street gangs’ by using federal funding to
‘purchase software, equipment and technology to ‘improve their knowledge of the gang
structure in our community and target the ‘worst of the worst’ gang members in Jackson.’
Jackson is 82 percent Black and has a per capita income of twenty-two thousand dollars.
A quarter of the residents live in poverty, more than double the national rate. Rather than
proactive, community-based investments in employment, education, housing, and
conflict mediation that [prevents] people from surviving in ways that are criminalized,
governments invest in reactive policing and prosecution that imprison poor and workingclass people.”); JONATHAN RAPPING, GIDEON’S PROMISE 16–17 (2020) (“Roughly 80
percent of people accused of crimes cannot afford a lawyer, increasing the likelihood that
they will end up convicted. A boy raised by a family in the bottom 10 percent of the
income distribution is twenty times more likely to be incarcerated as an adult than is a
boy raised by a family in the top 10 percent. One study found that less than half of all
incarcerated people were employed for two full years before being incarcerated. It also
found that of those who were, the median income was only $6,250. . . . African
Americans are nearly six times as likely to be incarcerated as are their white counterparts.
For African American men in their thirties, one in every ten is in prison or jail at any
given time . . . . [A] black male born today has a one-in-three chance of being
incarcerated at some time in his life.”) (internal citations omitted).
221
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).

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Coalition:
Social Inclusion [e]mpower[s] youth and young adults . . . to take
part in community-based work, access quality employment and
participate in decision-making processes[, which] can reduce
violence. . . . The work of credible messengers and violence
interrupters has been demonstrably proven to reduce shootings
and violence. . . . [Finally,] increase[d] funding for programs that
. . . support [rather than] criminalize people would work to
address the root causes of violence, and not simply attempt to
arrest our way to safety.
These include: [e]mployment
development; [s]ustainable housing; [c]onflict transformation;
[m]ental health initiatives; [and r]estorative justice. 222
The twelve reform proposals described in this Part and the three
additional recommendations presented by the New York City G.A.N.G.S.
Coalition, even taken as a whole, provide only partial solutions.223
Alternatively, amending RICO (and VICAR) to expressly exclude federal
criminal RICO prosecutions of “gangs” would immediately achieve
significant and much-needed reform.
CONCLUSIONS
Application of the RICO Act to alleged neighborhood gangs is
both fueled by and continues to perpetuate systemic racism in the United
States. The RICO statute is harsh and has devastating consequences as
applied in modern-day prosecutions of gangs (and alleged gangs) in lowincome communities. State and federal law enforcement’s pretextual use
of “gang prevention” to justify racial profiling perpetuates inequity and
racism by disproportionately and inappropriately labeling young Black
and Brown men as gang members for RICO prosecution. Such
neighborhood gangs do not wield a fraction of the power and influence of
the statute’s true original target: the Mafia. These “gangs” are often
groups of friends that are rarely “organized,”224 and they demonstrably do
not threaten legitimate businesses. Their leaders, if any exist, are neither
as insulated nor as powerful as were the Mafia bosses of the early-to-mid
twentieth century, rendering RICO far less necessary for “turning” low222

ALTERNATIVES
TO
GANG
POLICING,
G.A.N.G.S.
COALITION,
https://gangscoalition.org/alternatives/ (last visited Dec. 27, 2021); see also COALITION
DEMANDS, G.A.N.G.S. COALITION, https://gangscoalition.org/coalition-demands/ (last
visited Dec. 27, 2021).
223
For additional, relevant policy recommendations to address racism and racial profiling
by law enforcement, see generally Justin Hansford, The Whole System is Guilty as Hell,
HARV.
J.
AFR.
AMER.
PUB.
POL’Y
(Apr.
26,
2015),
https://hjaap.hkspublications.org/2015/04/26/the-whole-system-is-guilty-as-hell/.
224
Interview with attorney from the Federal Defenders of New York, supra note 189.

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level alleged gang members to gain access to their suspected leaders.
Most225 of these alleged neighborhood gangs hardly even resemble the
Bloods and Crips of the 1970s, 1980s and 1990s, which had national name
recognition and notorious nationwide rivalries, even though they, too,
were in a category easily distinguishable from the Mafia.226
This Article is not intended to discount the very real safety
concerns of neighborhood residents who live in proximity to violence,
and, potentially, neighborhood gangs. As the New York City G.A.N.G.S.
Coalition has articulated: “[V]iolence is unfortunately still a reality in
some communities of color, alternatives to gang policing tactics are
crucial to helping keep neighborhoods safe without criminalizing or
incarcerating its residents.”227 Claims that incarceration in the U.S. has
rehabilitative effects are largely disproven. 228 It is unlikely that many
people benefit from the decades of incarceration resulting from
inappropriate application of RICO to the members of these alleged
gangs—not communities, not families, and certainly not the incarcerated
individuals.229 In some cases, mass arrests based on RICO indictments
225

As I noted earlier in this Article, the nature of MS-13, 18th Street, or similarly
recognized groups is beyond the scope of this paper.
226
See generally HERBERT C. COVEY, CRIPS AND BLOODS: A GUIDE TO AN AMERICAN
SUBCULTURE (2015); ENCYCLOPEDIA OF GANGS, (Louis Kontos & David C. Brotherton
eds., Praeger Publishers 2008).
227
ALTERNATIVES
TO
GANG
POLICING,
G.A.N.G.S.
COALITION,
https://gangscoalition.org/alternatives/ (last visited Dec. 27, 2021). The coalition
observes that “[t]here are proven, evidence-based methods that have worked in the past
and are working today to drive down violence.” See discussion supra Part IX.
228
Experts have explained this in myriad ways (e.g., prisons are more punitive in the U.S.
than in countries like Denmark, Germany, or the Netherlands, which are intentionally
structured to provide skills training and treat incarcerated people with dignity and respect;
incarceration in the U.S. does not address many of the root problems that make
marginalized people more likely to feel compelled to engage in activities that violate the
law in order to survive). See, e.g., MARIEL ALPER, MATTHEW R. DUROSE & JOSHUA
MARKMAN, BUREAU OF JUSTICE STATISTICS, 2018 UPDATE ON PRISONER RECIDIVISM: A
9-YEAR
FOLLOW-UP
PERIOD
(2005-2014)
(May
2018),
https://bjs.ojp.gov/library/publications/2018-update-prisoner-recidivism-9-year-followperiod-2005-2014 (showing that 68% of recently released individuals were re-arrested
within three years, 79% were re-arrested within six years, and 83% were re-arrested
within nine years); Sara Tsompanidi, Does Prison Rehabilitate?, MEDIUM (Sep. 19,
2019), https://medium.com/@saratsompanidi/does-prison-rehabilitate-545c94e4d5c2;
RAM SUBRAMANIAN & ALISON SHAMES, VERA INSTITUTE OF JUSTICE, SENTENCING AND
PRISON PRACTICES IN GERMANY AND THE NETHERLANDS: IMPLICATIONS FOR THE UNITED
STATES (Oct. 2013), https://www.prisonpolicy.org/scans/vera/european-americanprison-report-v3.pdf.
229
Even if one accepts the premise of retributionists that incarceration need not benefit
people who are found guilty of committing crimes, incarceration decreases the wellbeing

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can, themselves, actually have the effect of making community members
feel less safe. For example, Taylonn Murphy Sr. expressed the disconnect
between the articulated justification for the 2014 raid and his reality:
I think the narrative they were trying to spin was that we did these
raids because these two individuals got killed. And you know my
daughter was one of the individuals that got killed. And I found
that to be very troubling because you know you’re trying to pin a
whole neighborhood against me and my family. Saying that
you’re the reason for 400 police officers coming [into] our
neighborhood and kidnapping individuals or arresting individuals
or detaining individuals and I had to immediately speak out about
that. I had to immediately say ‘hey listen, the two individuals that
killed my daughter were already arrested.’ You can’t be vilifying
a whole neighborhood saying they had something to do with my
daughter’s death because that’s not true.230
Overbroad RICO gang prosecutions call into question the very
legitimacy of our justice system and its proclaimed orderly, and fair,
administration of justice.231 Beyond the obvious interest of defendants in

of families (e.g., children lose consistent interaction with, and support from, an important
adult in their lives; intimate partners experience strain on their relationships and possibly
their living and economic situations; criminal records frequently lead to difficulty gaining
employment upon release; exposure to trauma inside detention facilities, besides being
inhumane in itself, can cause issues for family members who worry about their
incarcerated loved ones or feel unequipped to provide the support needed upon release;
people held in federal custody to serve their sentences are placed in Federal Bureau of
Prisons facilities throughout the U.S., rather than facilities within their state—making
visitation with loved ones extremely difficult if not impossible). See also SHARON
DOLOVICH & ALEXANDRA NATAPOFF, THE NEW CRIMINAL JUSTICE THINKING 87 (N.Y.
UNI. PRESS 2019) (“[M]any punitive aspects of the criminal process flow simply from
passing through the process itself, captured by [Malcolm] Feeley’s famous phrase ‘the
process is the punishment.’ Defendants incur arrests records, undergo pre-trial
incarceration, lose time from work, and may even lose their jobs in connection with the
mere fact of having been brought into the criminal system. As Issa Kohler-Hausmann
has described, even when cases are dismissed . . . defendants are often still marked,
controlled, surveilled, and burdened in lasting ways. In sum, many of the punitive
features of the criminal process are simply beyond counsel’s reach.”).
230
TRUJILLO & VITALE, supra note 60, at 4.
231
Broad discussion of the history, purpose, and impact of the American law enforcement
and criminal legal systems is beyond the scope of this paper; however, a number of
scholars and abolitionists have argued that these systems have never worked for
marginalized people or communities and never will. For examples of this position,
critical discussion of the relationship between law and systemic injustice, and analysis of
various psychological perspectives on legitimacy and legitimation, see generally
POLICING THE BLACK MAN: ARREST, PROSECUTION, AND IMPRISONMENT, (Angela J.
Davis ed., Pantheon Books 2017); KABA & MURAKAWA, supra note 13; Ronald Chen &
Jon Hanson, The Illusion of Law: The Legitimating Schemas of Modern Policy and

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swift disposition of criminal cases, transparent procedures, fair and
equitable discovery, and specific charging documents, their interests are
also aligned with those of other stakeholders: taxpayers who fund the
legal and incarceration systems, as well as overloaded law enforcement,
court, and prison personnel share some of those same interests. Indeed,
the very legitimacy of the judiciary depends upon a shared perception of
fair and consistent administration of justice. Even when charged
individuals succumb to pressure to accept plea deals for potentially
shorter sentences, any amount of incarceration, and supervision upon
release, comes at a significant financial, socioeconomic, opportunity, and
psychological cost to the individuals charged and to society.
Moreover, modern application of the RICO Act to young Black
and Brown men in alleged neighborhood gangs runs the risk of law
enforcement imposing inaccurate “gang member” labels that could result
in the prosecution and incarceration of innocent young men who lack
gang ties entirely.232 When innocent young people become enmeshed in
the criminal legal system, they miss important opportunities such as
education in a more traditional school setting, healthy socialization with
Corporate Law, 103 MICH. L. REV. 1 (2004); Tom R. Tyler, Psychological Perspectives
on Legitimacy and Legitimation, 57 ANN. REV. PSYCHOL. 375 (2006); KIMBERLÉ
CRENSHAW ET AL., CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE
MOVEMENT (1995); DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE
PERMANENCE OF RACISM (1992); Kimberlé Williams Crenshaw, Race, Reform and
Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV.
L. REV. 1331 (1988); Inés Valdez, Mat Coleman & Amna Akbar, Law, Police Violence,
and Race: Grounding and Embodying the State of Exception, PROJECT MUSE: THEORY &
EVENT 23 (2020) 902, muse.jhu.edu/article/767874; Hansford, supra note 223; Hayat,
Applying Monell Bifurcation, supra note 28; Hayat, Require the Frye and Daubert Expert
Standard, supra note 217; Hayat, Two Bites at the Apple, supra note 217; Hayat, Killing
Due Process, supra note 9; Ion Meyn, Constructing Separate and Unequal Courtrooms,
63 ARIZ. L. REV. 1 (2021).
232
See, e.g., Ariel Louise Gibbs, A Pre-Conviction List: Exploring Gang Documentation
Through the Voices of Those Impacted (Summer 2019) (M.A. dissertation, San Diego
State University) (ProQuest), https://www.proquest.com/dissertations-theses/preconviction-list-exploring-gang-documentation/docview/2314065454/se2?accountid=14496; see generally Josmar Trujillo, New York City has a gang policing
problem,
N.Y.
AMSTERDAM
NEWS
(Mar.
29,
2018),
www.amsterdamnews.com/news/2018/mar/29/new-york-gang-policing; HOWELL &
BUSTAMANTE, supra note 3, at 30 (“The fact that many swept up in the [Bronx 120] raids
and prosecution were neither gang members, nor charged with violence, raises questions
about the criteria that gang units and prosecutors were using to levy accusations against
individuals. Across the country, gang units have been responsible for some of the largest
scandals in policing history, including the Rampart scandals in Los Angeles. In New
York City, gang unit officers have more misconduct complaints (and settlements) than
patrol officers.”) (internal citations omitted).

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peers and adults, exposure to career possibilities, and relationships with
family and partners—not to mention the effect that forcibly removing so
many young people from a community at once can have on that
community. As part of an oral history of the 2016 Bronx gang raid, Pastor
Timothy English, chairman of the nonprofit Bronx Clergy Criminal
Justice Roundtable, illustrated this effect:
The life of the community is young people. You want to hear
laughter, you want to hear kids on the streets. You want to see
them playing basketball in front of the fire hydrant. It’s . . . I can’t
describe it. You feel something is missing. It’s almost like after
a major storm or catastrophe, where valued aspects of the
community are missing. The houses are blown down. It feels like
that, like something really happened.233
The extreme and dire consequences RICO prosecutions pose for
defendants and the country are a call to action.
APPENDIX A
The data included in this Appendix is meant to be illustrative
only.234 This Article is not written for social science or statistical
purposes, and the available data is limited. The information summarized
below indicates that young Black and Brown men are convicted for
federal racketeering offenses at younger ages and lower levels of
educational attainment, overall, and in greater numbers proportionately,
than their white peers. These disparities support the premise that RICO
is destroying the lives of already vulnerable, marginalized, young men at
an alarming rate. If so, its use in this context is an undeniable abuse of
power that must be addressed.
RICO and VICAR ought to be used only as a last resort. If RICO
were an effective response to the challenges young Black and Brown men
are deemed to present (and face), then the activities that threaten the safety
of their communities would presumably have diminished, resembling the
decrease in Mafia activity over the past few decades. 235 They
233

Iverac, supra note 116. This oral history also includes informative reflections of those
targeted in the raid, their loved ones, and some law enforcement officers.
234
The data included in this Appendix was obtained using the tools made available by
the United States Sentencing Commission: Interactive Data Analyzer, U.S. SENTENCING
COMM’N, https://ida.ussc.gov/analytics/saw.dll?Dashboard (last visited 12/4/2020). The
“crime type” was “Extortion/Racketeering,” so further information and extraction would
be necessary to fully understand this cohort of federal offenders.
235
See, e.g., Blumenstein, supra note 153, at 215 (citing Lesley Suzanne Bonney,
Comment, The Prosecution of Sophisticated Urban Street Gangs: A Proper Application
of RICO, 42 CATH U. L. REV. 579, 580 (1993)) (describing the effectiveness of RICO

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demonstrably have not diminished. Such sweeping use of these statutes
can destroy lives, and, accordingly, these laws should be limited in their
use as the lethal weapons that they are.
SNAPSHOT OF 2018
2018 Not Controlling for Gender:
● There were 288 federal RICO236 offenders in total
o 146 were Black and Latino/x237 (50%)238
o 120 were white (41%)
o The remaining individuals identified as “Other”
● 30 federal RICO offenders were 25 years old and younger
o 24 were Black and Latino/x (80%)
o 5 were white (16%)
o The remaining individual identified as “Other”
2018 Male Offenders Only:
● Of the 250 of the 288 federal RICO offenders who were male
o 122 were Black and Latino/x (48%)
o 107 were white (42%)
o The remaining individuals identified as “Other”
● 27 of the male federal RICO offenders were 25 years old and
younger
o 23 were Black and Latino/x (85%)
o 3 were white (11%)
o The remaining individual identified as “Other”
● 61 male federal RICO offenders had not completed high school
o 31 were Black and Latino/x (50%)

prosecutions against the Mafia in major U.S. cities throughout the late eighties and early
nineties).
236
Use of the term “offender” is not meant to suggest that all people accounted for in this
data set were guilty, and it is not meant as a statement about character. The website uses
the term “offender,” so that is the language employed here for consistency.
237
I combined Black and Latino categories into one group in order to illustrate the thesis
of this Article and how stark the racial disparity is when viewing the combined Black and
Latino data in relation to the other categories.
238
Percentages are rounded down to the closest whole number and are, therefore, merely
approximations.

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o 22 were white (36%)
o The remaining individuals identified as “Other”
● 160 male federal RICO offenders had completed, but not
exceeded, high school
o 91 were Black and Latino/x (56%)
o 57 were white (35%)
o The remaining individuals identified as “Other”
● 19 male federal RICO offenders had completed college or more
o 2 were Black and Latino/x (10%)
o 14 were white (73%)
o The remaining individuals identified as “Other”
SNAPSHOT OF 2015–2019239
2015–2019 Male Offenders Only:
● 982 male federal RICO offenders
o 416 were Black and Latino/x (42%)
o 472 were white (48%)
● 135 male federal RICO offenders were 25 years old and younger
o 109 were Black and Latino/x (80%)
o 22 were white (16%)
● 235 male federal RICO offenders had not completed high school
o 128 were Black and Latino/x (54%)
o 72 were white (30%)
● 217 male federal RICO offenders had started college
o 66 were Black and Latino/x (30%)
o 129 were white (59%)
● 95 male federal RICO offenders had completed college or more
o 11 were Black and Latino/x (11%)
o 69 were white (72%)

These numbers are calculated from the combined totals (not including the “Other”
identity category), based on all available information for 2015-2019.
239

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2015–2019 Not Controlling for Gender:
● 1104 federal RICO offenders total
o 485 were Black and Latino/x (43%)
o 512 were white (46%)
● 121 federal RICO offenders were 25-years-old and younger
o 97 were Black and Latino/x (80%)
o 19 were white (15%)
● 264 federal RICO offenders had not completed high school
o 143 were Black and Latino/x (54%)
o 81 were white (30%)
● 243 federal RICO offenders had started college
o 84 were Black and Latino/x (34%)
o 133 were white (54%)
● 110 federal RICO offenders had completed college or more
o 16 were Black and Latino/x (14%)
o 79 were white (71%)
2015–2019 Male Federal RICO Offenders by Age:
● 21 and under: total of 6 male federal RICO offenders
o 5 were Black and Latino/x (83%)
o 1 was white (16%)
● 21-25: total of 129 male federal RICO offenders
o 104 were Black and Latino/x (80%)
o 21 were white (16%)
● 26-30: total of 128 male federal RICO offenders
o 87 were Black and Latino/x (67%)
o 30 were white (23%)
● 31-35: total of 131 male federal RICO offenders
o 71 were Black and Latino/x (54%)
o 43 were white (32%)
● 36-40: total of 144 male federal RICO offenders
o 67 were Black and Latino (46%)
o 66 were white (45%)

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● 41-50: total of 207 male federal RICO offenders
o 49 were Black and Latino/x (23%)
o 126 were white (60%)
● 51-60: total of 148 male federal RICO offenders
o 27 were Black and Latino/x (18%)
o 107 were white (72%)
● Over 60: total of 89 male federal RICO offenders
o 6 were Black and Latino/x (6%)
o 78 were white (87%)

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