Redefining Organised Crime: A Challenge for the European Union? 9781509904709, 9781509904730, 9781509904723

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REDEFINING ORGANISED CRIME: A CHALLENGE FOR THE EUROPEAN UNION? The definition of organised crime has long been the object of lively debate, at national and international level. Sociological and legal analysis has not yet led to one definitive answer to the question of what exactly ‘organised crime’ means. Nonetheless, many instruments adopted both at international and national levels set forth special legal regimes designed to target criminal groups featuring a stable organisation, which are perceived as particularly dangerous to society. Therefore, identifying the notion of organised crime is crucial to establishing the scope of any legal instrument specifically designed for combating it. The aim of this book is to reassess the scope, the effectiveness and the overall coherence of existing definitions of organised crime, and to identify any need for a reconsideration of these definitions, specifically with reference to the EU legal order. It will be of interest to academics, practitioners and legislators working in the sphere of EU criminal law and of organised crime more generally. Volume 6 in the series Hart Studies in European Criminal Law

Hart Studies in European Criminal Law Series Editors: Professor Katalin Ligeti, University of Luxembourg; Professor Valsamis Mitsilegas, Queen Mary University of London; Professor Anne Weyembergh, Brussels Free University Since the Lisbon Treaty, European criminal law has become an increasingly important field of research and debate. Working with the European Criminal Law Academic Network (ECLAN), the series will publish works of the highest intellectual rigour and cutting edge scholarship which will be required reading for all European criminal lawyers. The series is happy to consider both edited and single authored titles. The series defines ‘European’ and ‘criminal law’ in the broadest sense, so books on European criminal law, justice and policy will be considered. The series also welcomes books which offer different methodological approaches. Volume 1: EU Criminal Law after Lisbon: Rights, Trust and the Transformation of Justice in Europe by Valsamis Mitsilegas Volume 2: Challenges in the Field of Economic and Financial Crime in Europe and the US Edited by Vanessa Franssen and Katalin Ligeti Volume 3: Chasing Criminal Money: Challenges and Perspectives On Asset Recovery in the EU Edited by Katalin Ligeti and Michele Simonato Volume 4: Limits to EU Powers: A Case Study of EU Regulatory Criminal Law by Jacob Öberg Volume 5: The Needed Balances in EU Criminal Law: Past, Present and Future Edited by Chloé Brière and Anne Weyembergh

Redefining Organised Crime A Challenge for the European Union?

Edited by

Stefania Carnevale, Serena Forlati and Orsetta Giolo

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Stefania Carnevale, Serena Forlati and Orsetta Giolo 2017 Stefania Carnevale, Serena Forlati and Orsetta Giolo have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-470-9 ePDF: 978-1-50990-472-3 ePub: 978-1-50990-471-6 Library of Congress Cataloging-in-Publication Data Names: Carnevale, Stefania, editor.  |  Forlati, Serena, editor.  |  Giolo, Orsetta, editor. Title: Redefining organised crime : a challenge for the European Union? / edited by Stefania Carnevale, Serena Forlati, and Orsetta Giolo. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2017.  |  Series: Hart studies in European criminal law  |  Includes bibliographical references and index. Identifiers: LCCN 2017032007 (print)  |  LCCN 2017032869 (ebook)  |  ISBN 9781509904716 (Epub)  |  ISBN 9781509904709 (hardback : alk. paper) Subjects: LCSH: Organized crime—European Union countries.  |  Transnational crime— European Union countries.  |  United Nations Convention Against Transnational Organized Crime (2000)  |  Mafia.  |  Criminal law. Classification: LCC KJE8781.C75 (ebook)  |  LCC KJE8781.C75 R43 2017 (print)  |  DDC 345.24/02—dc23 LC record available at https://lccn.loc.gov/2017032007 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

CONTENTS

List of Contributors�������������������������������������������������������������������������������������������������� vii

1. The Notion of Organised Crime: Why Definitions Matter����������������������������1 Stefania Carnevale, Serena Forlati and Orsetta Giolo Part I: Redefining Organised Crime: The International Level 2. Definitions: Some Methodological Remarks�������������������������������������������������11 Baldassare Pastore 3. What is Organised Crime?������������������������������������������������������������������������������27 Federico Varese 4. The Notion of Organised Crime in the United Nations Convention against Transnational Organized Crime��������������������������������������������������������57 Gioacchino Polimeni 5. Reconsidering Transnational Organised Crime in the Shadow of Globalisation: The Case of Human Smuggling across the Mediterranean�������������������������������������������������������������������������������������������������75 Monica Massari 6. Development of Organised Crime: The Phenomenon and Definition�������93 Ivan Kleimenov 7. The Relationship between Transnational Organised Crime and Terrorism: An International Law Perspective���������������������������������������121 Alessandra Annoni 8. The Notion of Organised Crime and the American Convention on Human Rights������������������������������������������������������������������������������������������145 Laura Salvadego 9. The Notion of Organised Crime and the European Convention on Human Rights������������������������������������������������������������������������������������������171 Serena Forlati 10. The Notion of Organised Crime in EU Law������������������������������������������������191 Vincenzo Militello

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Contents Part II: Redefining Mafia-Type Organisations: A Case Study on Italy

11. Defining the Mafia: Between Sociology and Law����������������������������������������225 Nando dalla Chiesa 12. The Organisational Features of Organised Crime: The Mafia as a Professional Bureaucracy�����������������������������������������������������������������������251 Antonio La Spina 13. The Notion of Mafia in Italian Criminal Legislation and Case Law����������267 Ciro Grandi 14. The Boundaries of Mafias: Relationships and Business in the ‘Grey Area’�����������������������������������������������������������������������������������������������293 Vittorio Mete and Rocco Sciarrone 15. Beyond the Legal Definition: External Participation in Mafia-Type Organisations������������������������������������������������������������������������������������������������317 Marco Venturoli 16. Mafia Definition and Legislative Gaps: A Critical Criminology Approach�������������������������������������������������������������������������������������������������������341 Orsetta Giolo 17. The Notion of Organised Crime as a Justification for Special Rules of Criminal Procedure: The Derogations from the Ordinary Model and their Rationale����������������������������������������������������������������������������������������359 Stefania Carnevale 18. Concluding Remarks: Reconceptualising Organised Crime—Five Challenges �����������������������������������������������������������������������������������������������������385 Valsamis Mitsilegas

Index�����������������������������������������������������������������������������������������������������������������������387

LIST OF CONTRIBUTORS

Alessandra Annoni, Associate Professor of International Law, University of Ferrara Stefania Carnevale, Associate Professor of Criminal Procedure, University of Ferrara Nando dalla Chiesa, Professor of Economic Sociology, State University of Milan Serena Forlati, Associate Professor of International Law, University of Ferrara Orsetta Giolo, Associate Professor of Philosophy of Law, University of Ferrara Ciro Grandi, Researcher in Criminal Law, University of Ferrara Ivan Kleimenov, Professor of Criminal Law, Higher School of Economics, Saint Petersburg Antonio La Spina, Professor of Sociology, University of Palermo Monica Massari, Associate Professor of Sociology, Federico II University of Naples Vittorio Mete, Researcher in Political Sociology, University of Florence Vincenzo Militello, Professor of Criminal Law, University of Palermo Valsamis Mitsilegas, Professor of European Criminal Law, Queen Mary University of London Baldassare Pastore, Professor of Philosophy of Law, University of Ferrara Gioacchino Polimeni, Former Director, United Nations Interregional Crime and Justice Research Institute (UNICRI) Laura Salvadego, Researcher in International Law, University of Macerata Rocco Sciarrone, Professor of Economic Sociology, University of Turin Federico Varese, Professor of Criminology, University of Oxford Marco Venturoli, Research Fellow in Criminal Law, University of Ferrara

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1 The Notion of Organised Crime: Why Definitions Matter STEFANIA CARNEVALE, SERENA FORLATI AND ORSETTA GIOLO

Our project is based on the assumption that many instruments adopted both at the international and national levels set forth special legal regimes designed to target criminal groups featuring a stable organisation—and which are perceived as being particularly dangerous to society. Identifying the notion of ‘organised crime’, which is at the basis of this approach, is crucial in order to establish the scope of, and appropriately implement, any legal instrument specifically designed to combat this type of criminal phenomenon. The aim of this book is to reassess the scope, effectiveness and overall coherence of existing legal definitions of organised crime, and to identify whether there is a need for a reappraisal of these definitions. The ­analysis stems from the conviction that, within the European Union (EU) legal order, an appropriate identification of what amounts to ‘organised crime’ is central to the multifaceted efforts to combat this phenomenon in the framework of EU Judicial Cooperation in Criminal Matters. We intend to offer an opportunity for reflection on the adequacy of the current EU legal framework in the light of developments occurring at an international and domestic level. The definition of ‘criminal organisation’ that is included in Article 2 of Framework Decision 2008/841/JHA,1 which is modelled on the United Nations ­Convention against Transnational Organized Crime (UNTOC),2 is designed with the aim of facilitating judicial cooperation and mutual recognition of decisions and judgments. At the same time, it has an impact on the implementation of a number of other instruments, such as the European Arrest Warrant,3 the enforcement of custodial sentences in the EU,4 the European supervision order for transfer 1  EU Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime [2008] OJ L300/42. 2  Opened for signature 15 November 2000, entered into force 29 September 2003, 2225 United Nations Treaty Series 209. 3  EU Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. 4  EU Council Framework Decision 2008/909 of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.

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Stefania Carnevale, Serena Forlati and Orsetta Giolo

of defendants,5 the protection of victims6 and the confiscation and freezing of assets.7 The definition adopted by the Framework Decision has been criticised for being excessively vague, and potentially leading to over-criminalisation.8 It was also suggested that Italy’s legislation and experience should serve as a model for further harmonisation at EU level.9 However, any such harmonisation effort must take into account its likely impact on the ability of the EU and its Member States to effectively combat very different patterns of organised crime. Moreover, our attempt to focus specifically on the problem of defining organised crime—as a red thread throughout the book—stems also from another, partially related belief. Namely, we believe that the problem can be addressed adequately through an interdisciplinary dialogue not only between international, EU and domestic lawyers— but also between sociologists, criminologists and lawyers. While sociologists and criminologists are in a better position to identify the characteristic features of old and new forms of organised crime, the lawyers’ task is to ‘translate’ these features into legal definitions that are at the same time effective—that is, they should allow for swift implementation of law-enforcement mechanisms; capable of encompassing the most dangerous forms of organised crime; sufficiently precise to respect the principle of legality—and in keeping with other fundamental rights. These reasons explain the two-pronged approach adopted in the book. On one hand, the collection of essays aims to compare the notion of organised crime that emerges from sociological and criminological studies with the legal definitions of this phenomenon, so as to identify possible gaps or shortcomings in the ‘legal toolkits’ used in combating it. This choice is based on the awareness that organised crime is a complex phenomenon and is constantly changing, but legislative sources do not always take into account such features. While sociological and criminological studies may detect the different manifestations and evolutions of organised crime in a timely manner, it is more difficult to ‘translate’ them into satisfactory legislative action, since the requirements stemming from the legality principle and from the need to typify criminal behaviours are at times at odds with the inherent mobility of criminal phenomena. The main research question is not only what organised crime is, but whether and to what extent legal sources reflect the evolution of organised criminal groups, taking into account the most

5  EU Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. 6  EU Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, ­support and protection of victims of crime. 7  EU Directive 2014/42/EU of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union. 8  F Calderoni, ‘A Definition that Does Not Work: The Impact of the EU Framework Decision on the Fight Against Organized Crime’ (2012) 49 Common Market Law Review 1365–94. 9  See, notably, European Parliament resolution of 25 October 2016 on the fight against corruption and follow-up of the CRIM resolution, para. 18(b).

Why Definitions Matter

 3

recent outcomes of sociological and criminological research. The tension between ­reality and law should be addressed by identifying the criminal features of organised crime that create the highest social alarm and including these elements in appropriate legal definitions. On the other hand, we intend to assess the need for a new EU legal definition by comparing the approach to the issue adopted at international level with, specifically, the Italian experience in the definition of mafia-like organisations. This choice implies addressing and comparing two legal frameworks which are apparently quite distant, particularly as regards the issue of definition. Indeed, the instruments of international and EU law usually take a rather vague approach to the notion of ‘organised crime’ as such, laying emphasis rather on the serious nature of the unlawful activities in which criminal organisations are involved; these definitions have the specific objective of favouring international cooperation and judicial assistance and aim both to cover very different forms of organised crime and be compatible with the many different national legal approaches and responses to criminal organisations. The Italian example, by contrast, is linked to a specific local experience and legislative measures are tailored so as to counter a particularly serious form of organised crime. Specifically analysing the Italian example is thus justified not only because of the seriousness and pervasiveness of the criminal phenomenon it involves—as the mafia epitomises, in many respects, the very idea of organised crime—but also because of the peculiarity of the definition adopted by Italian legislation, which attempts to rely on sociological data and observation. Notwithstanding many weaknesses, the long-term experience of Italian institutions in the fight against mafia-type organisations is often seen as an important source of information and inspiration for other States and at the international level when addressing these issues; and it is no mere chance that Italy has long been at the forefront in promoting initiatives for combating organised crime at an international (notably, United Nations (UN)) and European level (within both the EU and the Council of Europe). Whereas other national legislatures have adopted a similar approach in recent years (eg, some EU Member States, as is discussed by Militello, and ­Georgia, a case that is addressed by Kleimenov and Forlati), Italian legislation was the first to address this specific type of criminal phenomenon and has been in place for several decades now. Comparing the pros and cons of the two options in light of the difficulties raised by the Italian approach and in an effort to identify its loopholes may therefore be useful for the purpose of assessing the need to re-define organised crime at EU level. At the same time, this collection offers a non Italianspeaking readership a glimpse into the lively discussion in Italy on these complex issues—a debate that involves not only scholars, but also courts, politicians and the civil society more broadly. Part I, which is devoted to the definition of organised crime at the international level, opens with a discussion of the role of interdisciplinarity: as organised crime is a particularly complex phenomenon, it is essential that any assessment concerning the appropriateness of legislative choices regarding its definition be

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made in a comprehensive and holistic way, so as to take into account the different ­perspectives and insights needed to fully comprehend the problem (­Pastore). Moreover, Varese critically appraises the historical evolution from n ­ arrow definitions aimed at specifically targeting Cosa Nostra, to an e­ mphasis on ‘illicit enterprises’ or ‘illegal activities’, to the current focus on ‘networks’. While Varese puts forward his own definition of organised crime (as ‘a group that attempts to regulate and control the production and distribution of a given commodity or service unlawfully’) he points out that organised crime is a concept surrounded by uncertainty also from the sociological point of view and whose features may change over time and vary in different areas of the world. The UNTOC includes no definition of ‘organised crime’ and only a very loose one of ‘organised criminal group’—whereas these two concepts are not necessarily equivalent. The Convention fails to identify clearly the phenomenon that it is designed to combat—and this makes it more difficult to appreciate whether the conditions triggering the obligations set out therein are actually met. Although to date there has not been any systematic collection of data on the implementation of the UNTOC, and the Conference of the Parties has been rather slow in setting up a mechanism for reviewing the implementation of the Convention and its Supplementing Protocols,10 recent developments testify to the relevance of this instrument. For instance, Article 18 UNTOC has been invoked by France as a legal basis for a request for mutual assistance in a case that is the subject of a dispute now pending before the International Court of Justice;11 and the Italian authorities relied on this instrument in a complex investigation on a network of migrant smugglers and human traffickers.12 Indeed, the approach taken by the Palermo Convention has the advantage of providing a flexible tool that can be easily adapted to the very different forms in which criminal organisations develop, although it does not easily apply as regards ‘criminal systems’ which merely integrate human resources, rather than being an organised body (Polimeni). However, one should not overlook the fact that ‘new’ forms of crime, such as those in the field of human trafficking, can grow in the interstices of the applicable legal regimes: at times, the official rhetoric justifies them as being designed to control outputs of globalisation, such as human mobility, whereas in fact they create the conditions for the flourishing of illegal 10  See UNTOC Conference of the Parties, res 8/2, ‘Mechanism for the review of the implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto’, in Report of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime on its eighth session, held in Vienna from 17 to 21 October 2016, UN Doc CTOC/ COP/2016/15, 10. 11  Immunities and Criminal Proceedings (Equatorial Guinea v France), Request for the Indication of Provisional Measures, Order of 7 December 2016, para 25. 12 Thus, on 12 January 2016 Yuri Fedotov, Executive Director of the United Nations office on Drugs and Crime, praised the extensive use by the Italian authorities of the legal tools provided by the UNTOC, including ‘special investigative techniques, protection of witnesses and strong international cooperation to discover and disrupt illicit financial flows’, in the criminal investigation known as ‘Glauco I’ (available at www.unodc.org).

Why Definitions Matter

 5

­ arkets and the proliferation of criminal organisations involved in them (Massari). m ­Moreover, domestic law definitions do not always adequately address the involvement of per se legal structures in forms of organised crime; this phenomenon, which is discussed in relation to Russia (Kleimenov), also finds some parallels in the Italian experience as regards the—lack of—criminalisation of the collusion between the mafia and legal and political power (Giolo). Another problematic aspect relates to the distinction between organised crime and terrorism, which is not always clear-cut; this problem is accentuated by the difficulty of elaborating an internationally agreed definition also of the latter phenomenon. Despite the possible overlap between the two forms of criminal activity, the approach to the ‘war on terror’ adopted in recent years at international level seems to overlook the potential of the Palermo Convention as a tool to combat international ­terrorism as well (Annoni). The fight against organised crime also plays a specific role in its interaction with international human rights law: the aim of combating this particularly dangerous form of crime may justify derogations and limitations to fundamental human rights while, at the same time, States’ positive obligations to ensure the free and full enjoyment of human rights to individuals under their jurisdiction requires them to take specific, efficient action against organised crime. Very different forms of organised crime have been active in different areas of the world, such as, notably, the paramilitary groups operating in Latin America and mafia-like associations in Italy. A comparative analysis of the case law of the Inter-American and European Court of Human Rights (ECtHR) shows that, in both frameworks, human rights norms are flexible enough to allow States to effectively combat old and new forms of organised crime, as long as absolute rights are respected (Salvadego, Forlati). However, the existing case law has not developed clear-cut criteria for identifying the notion of ‘organised crime’ at stake. Specifically as regards the ECtHR, the omission of specific, precisely defined criteria is consistent with the principle of subsidiarity; moreover, it would eventually fall upon States Parties to ensure respect for the principle of legality—that is, the main limitation to the discretion they enjoy in developing criminalisation provisions—even when international obligations in the field may not be fully in line with the latter principle. Besides, a finding by the ECtHR that domestic legislative definitions simply transposing the provisions of the Framework Decision are not in keeping with the principle of legality would seem unlikely in light of the ECtHR’s systemic approach to the interpretation of the Convention, whereby its provisions are read in light of other international instruments (including not only other instruments adopted by the Council of Europe, but also EU law as an expression of ‘European consensus’ and the UNTOC itself) (Forlati). Different considerations may apply with regard to the definition of ‘criminal organisation’ included in Framework Decision 2008/841/JHA, which has been discussed widely and has been the subject of some reform proposals. The different criminalisation models adopted by EU Member States make it difficult to envisage complete harmonisation in this regard, but some progress towards a ­common

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approach to the definition of organised crime has been pursued through the implementation of the Framework Decision (Militello). While the Framework Decision’s efforts towards legislative approximation in the Member States as regards the ‘definition of offences relating to participation in a criminal organisation’13 are instrumental in enhancing judicial cooperation,14 this definition has a ‘spillover’ effect on other albeit connected issues regulated by other instruments adopted in the framework of EU Judicial Cooperation in Criminal Matters.15 It is mainly with regard to these other instruments that the risks of over-criminalisation and the need to reform the current definition of ‘criminal organisation’ should be assessed. This conclusion would seem to be confirmed by the findings in Part II, which addresses the Italian experience in the fight against the mafia, exemplifying an opposite trend. In Article 416 bis of the Italian Criminal Code, the Italian legislature sought to develop a legal definition of ‘mafia-type association’ (participation in which is a criminal offence per se) that draws directly from the sociological features of the mafia. This important definition is in part the fruit of the scholarly work of Italian sociologists and criminologists, who have identified the peculiarities of the ‘mafia-type model’ as a complex organisational structure (La Spina), the aims it pursues (power accumulation and economic gain), and the specific method used to gain criminal power and, later on, to exercise it through control over the territory, recourse to violence, a thick network of personal allegiances and the relationship to political power (dalla Chiesa). The sociological features of this specific kind of criminal organisation, which can evolve over time, need to be properly understood so as to assess whether the legal definition adopted in Article 416 bis is (still) appropriate for the purpose of targeting the mafia. In this perspective, a careful analysis of that provision and of its implementation in practice is crucial to test its appropriateness and effectiveness. Indeed, Italian case law on this criminal provision is very rich and has been essential for adapting the legal model to developments in the social, political and economic fields (Grandi). However, these adaptations through implementing practice become problematic when what is at stake are the wide ‘grey areas’ that include individuals who are not part of mafia-type groups, but support their criminal activities ‘from the outside’ (Mete and Sciarrone). The attempts by Italian courts to apply criminal sanctions against this ‘grey area’ raise a number of difficulties in terms of compatibility both with Italian constitutional guarantees and with international human rights obligations. A legislative act would probably be required to address these ­difficulties 13 

See the Preamble of the Framework Decision, recital 3. 3 of the Preamble also calls attention to the Hague Programme, which states that ‘the approximation of substantive criminal law serves the purpose of facilitating mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters and concerns areas of particularly serious crime with cross-border dimensions’. 15  See European Commission, A Di Nicola, P Gounev, M Levi, J Rubin and Barbara Vettori, Study on paving the way for future policy initiatives in the field of fight against organised crime: the effectiveness of specific criminal law measures in targeting organised crime (European Commission, Brussels, 2015). 14  Recital

Why Definitions Matter

 7

(Venturoli); at the same time, a critical criminological approach may help us to understand why the Italian legislature has so far not formally r­ egulated the crime of external support to mafia-type associations. In this context, truly problematic aspects also emerge from the ‘silence’ of the law, which is reluctant to acknowledge the close connections between criminal organisations and powerful (legal) groups (Giolo). Finally, the Italian case shows that an appropriate definition of the concept of ‘organised crime’ is crucial not only for substantive criminal law, but also and above all for criminal procedure and penitentiary law, with the same kind of ‘spill­ over’ effect that can be detected at EU level. Italian criminal procedure sets forth a special regime (the so-called ‘double track’) curtailing fundamental rights and originally applicable to criminal proceedings where allegations of mafia-related crimes were raised; however, this double track has gradually also been applied to other forms of criminal association, such as drug-related crimes, sex crimes and organised crime in general. In this context, the Italian Constitutional Court, in particular, has upheld the most sensitive aspect of the special regime (the compulsory pre-trial detention) only in the case of mafia-type organisations, in light of their specificities and especially dangerous nature. As regards other forms of criminal association (even where they are considered to pose a serious threat), the Constitutional Court has deemed this interference with fundamental rights as incompatible with Italian constitutional values (Carnevale). Arguably, also in the framework of EU Law, the purpose of any piece of legislation is critical to any assessment of the appropriateness of the legal definition of criminal organisation it adopts. The loose definition included in Framework Decision 2008/841/JHA and modelled against the UNTOC would seem to be relatively unproblematic for the purposes of mere criminalisation, which is the direct object of the Framework Decision—also in light of the fact that Member States still enjoy the discretion to specifically target the most dangerous forms of organised crime operating within their territories and that, ultimately, it is incumbent on Member States to ensure respect for the principle of legality also when they implement EU Law. If, however, this same notion is used for the purpose of regulating forms of judicial cooperation which entail serious interference with fundamental rights, doubts arise. As Valsamis Mitsilegas also observes in his concluding remarks, using criminal law towards serving broader law enforcement cooperation objectives inevitably creates tensions in the perspective of human rights protection. N ­ either EU institutions—nor, actually, any other legislature— should overlook these ­tensions when relying on the notion of ‘organised crime’. This project is the result of collaborative efforts undertaken at the Inter-­ Disciplinary Research Centre on Mafia and Other Forms of Organised Crime (MaCrO), established in 2011 at the Department of Law of the University of Ferrara. ­Participants were invited to reflect on the issue of definition in two workshops held in September 2012 and December 2013, respectively; all of the contributors took part either in those events or in seminars on related issues in the following years. We warmly thank them for accepting the challenge to put their views in writing.

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We take the opportunity to also thank all those who have contributed in many different ways to the shaping and completion of this project: speakers and ­participants taking active part in MaCrO events, stimulating discussion and reflection on the most appropriate ways to tackle organised crime at the international, EU and domestic levels; Khrystyna Gavrysh and Dr Elisabetta Bonomo of the Department of Law of the University of Ferrara for their help in the proofreading phase; Wall Street Centro traduzioni ed interpretariato di Ferrara for excellent assistance with translation and language revision;16 Hart Publishing for accepting the project and for their patient support. Last but not least, our gratitude goes to the Department of Law of the ­University of ­Ferrara and to the Region of Emilia-Romagna, whose financial support in the framework of Regional Law No 3/2011 made it possible to organise the two ­workshops mentioned above and to cover the costs of translation and linguistic revision of this book. We also wish to acknowledge the personal support afforded to us especially by Professor Massimo Mezzetti, Regional Councillor for Culture, Youth and Legality Policies, and Dr Gian Guido Nobili, Coordinator of Research and Assessment Activities, Office of the Presidency, Region of EmiliaRomagna, who made a significant contribution to the successful fulfilment of this project. Finally, some significant developments have taken place while this book was going to press. While it is not possible to discuss them thoroughly, we should at least mention some important instruments targeting terrorism adopted by the UN Security Council (notably Resolutions 2354(2017) and 2368(2017)) and the European Union (Directive (EU) 2017/541). In Italy, the judgments of both the Court of Cassation in Contrada, of 6 July 2017, and the Rome High Court in the so-called ‘Mafia capitale’ case, of 20 July 2017, have important implications for the topics addressed here.

16  Wall Street Centro traduzioni ed interpretariato di Ferrara provided a translation into English of the essays by S Carnevale, N dalla Chiesa, O Giolo, V Militello and M Venturoli. If not otherwise indicated, translations into English of legislation, case law and scholarship are either by the authors or by the translator.

Part I

Redefining Organised Crime: The International Level

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2 Definitions: Some Methodological Remarks BALDASSARE PASTORE

I.  Purposes of Definition The study of definition has a long and distinguished past. Definitions serve a ­variety of functions and their general character varies with their function. Ad ­ efinition is always a tool. Definitions are used in order to answer certain questions and different definitions may be more or less suited to the problem at hand. Definitions explain the meaning of a term. They also are helpful to investigate the thing or things denoted by the term. From this point of view, a definition is a starting point. It works like a preunderstanding for a more complete understanding. An understanding may be more or less suitable for a given context. Understanding is conditioned by preunderstandings arising out of particular historical-cultural settings. Usually we deal with the distinction between nominal and real definitions.1 Nominal definitions are verbal agreements about the use of terms, or suggestions to use an expression in a certain way. Real definitions aim not just to tell us about the way words are used, but also to find some attributes that are in some way essential to the object being defined. The real definition of an object is an analysis of that object.2 At any rate, definition is a remedy for uncertainty and confusion. Defining is a process of expression that provides the precise meaning of a word or phrase.3 Definitions fix language as a sort of road map demarcating what words mean or the essence of the thing defined. To define is to state the words or the sets of properties possessed by the phenomenon which is to be defined with an acceptable degree of precision. But words are the means to a knowledge of things and 1  See R Robinson, Definition (Oxford, Oxford University Press, 1954, Reprinted 2003); A Gupta, ‘Definitions’ (2015) Stanford Encyclopedia of Philosophy, available at www.plato.stanford.edu/entries/ definitions/. 2 Robinson, Definition (n 1) 26. 3  See A Matthews, A Diagram of Definition: The Defining of Definition (Assen, Van Gorcum, 1998) 2.

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the word ‘thing’ can be used in a very broad sense to cover anything, whether a physical object, or an event, or a character, or a concept, or a doctrine, or a ­practice, or anything else at all that can possibly be symbolised by words. In this case we may speak of ‘word–thing definitions’. They correlate a word to a thing in the form of saying that a word means a certain thing.4 These definitions capture discourse about things. It is impossible to make or receive a word–thing definition without having an opinion about the existence of the object assigned to the word by the definition.5 Language is the medium we use to make sense of the world around us. L ­ anguage means the way situations are encountered, the way problems are phrased. The world is not an independent object for language, rather the world presents itself in language.6 Language and world are conterminous. Moreover, we can subdivide word–thing definitions into lexical and stipulative definitions. ‘Lexical definition is that sort of word–thing definition in which we are explaining the actual way in which some actual word has been used by some actual persons.’7 Stipulative definition implies ‘the explicit and self-conscious setting up of the meaning-relation between some word and some object, the act of assigning an object to a name (or a name to an object), not the act of recording an already existing assignment’.8 They say how words ought to be used rather than how they are used.9 We can stipulatively introduce a name through a description. In any case, description is context-determined. Furthermore, it occurs within a conceptual framework and entails an understanding of the conditions and consequences of an operant system of meanings. Thus description is also theory-determined. The description serves to fix the reference of the name.10 Stipulative definitions gain their significance by their authority over use.11 The advantage of a stipulative definition is the removal of an ambiguity and the avoidance of an inconvenience caused by the ambiguity. Stipulation is a means of ensuring that we are all talking about the same thing when we use the same word. Stipulative definitions are the cure for ambiguity.12 They delimit the confines of the meaning of vocables and consist of a proposal for their use. A stipulative

4  ‘Word–word definitions’, by contrast, correlate a word to a word in the form of saying that one word means the same as another word. See Robinson, Definition (n 1) 16–18, 27–30. Word–word and word–thing definitions are nominal definitions. 5  ibid 64. 6  See H G Gadamer, Wahrheit und Methode (1960), in Gesammelte Werke, Band 1 (Tübingen, J C B Mohr (Paul Siebeck), 1986) 392, 446–47, 452–54, 478–79. 7 Robinson, Definition (n 1) 35. 8  ibid 59. 9  ibid 60. Stipulative definitions often consist in adopting one of the many common meanings of a common word and discarding the rest. 10 ibid 104. With reference to legislative definitions see G Tarello, L’interpretazione della legge (Milano, Giuffrè, 1980) 214–15. 11  See Matthews, A Diagram of Definition (n 3) 8, 12. 12 Robinson, Definition (n 1) 66–67.

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­ efinition informs how the term should or must be used. A redefinition is a species d of stipulative definition. It specifies the meaning of a term or a syntagm and, in this way, it reduces vagueness. An expression is vague when it lacks precision in its meaning, so that it is impossible to determine its limits and range of application.13 Defining is a specialised linguistic practice.14 It implies a special sort of social knowledge (a shared understanding among people about the objects in their world, and how they ought to use language). Such social knowledge takes the form of an explict and often ‘authoritative’ articulation of what particular words mean and how they should be used to refer to reality.15 When we define phenomena or things, we participate in a process of socially constructing an understanding of reality.16 Understanding is grounded in and constituted by a historical situation. From this point of view, all definitions are selective and are constructed for specific interests and purposes. They valorise one point of view and silence another. Definitions are abstractive and selective in the sense that they frame and direct our attention to certain aspects of a ­phenomenon, but not to others.17 Definitions serve certain interests and purposes in certain contexts and they can be judged for their usefulness only with respect to such interests and p ­ urposes.18 An important distinction that can be made with regard to definition is the distinction between their purposes and the methods by which they achieve their purposes.19 There are several indicators that are understood to be features of any definition: its ‘object’ (the thing to which it refers), the ‘function that is carried out’ (the effect of the definition), its ‘modality’ (the technique which is used to define), and its ‘form’.20 What counts as ‘essential’ about a given definition is an evaluative question of importance. It depends on our needs and interests in a given historical situation.21 Definitions need to be assessed based on the needs and interests of a community of language.22 A definition is a matter of choice, and value judgements loom large in the m ­ aking of that choice. To define is necessarily to simplify and focus on some rather than all of the features exhibited by any phenomenon (including cultural ­phenomena). Defining is an intellectual activity that implies selecting some features by reference to the background conceptual framework and the relevant interests involved 13  A Sgarbi, ‘What Is a Good Legislative Definition?’ (2013) 4 Beijing Law Review 28, 30; U Scarpelli, ‘La definizione nel diritto’ (1959) in L’etica senza verità (Bologna, Il Mulino, 1982) 214–16. 14  See E Schiappa, Defining Reality. Definitions and the Politics of Meaning (Carbondale, Southern Illinois University Press, 2003) 21. 15  ibid 3. 16  ibid 152. 17  ibid 153, 178. 18  ibid 156. 19  On the description of the different methods of definition, see Robinson, Definition (n 1) chap V. 20  Sgarbi, ‘What Is a Good Legislative Definition?’ (n 13) 29–31. 21 Schiappa, Defining Reality (n 14) 176. 22  ibid 178.

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in the definitional process. It is influenced by the adopted conceptual scheme, and by categories incoporated in it. Values are already present in the categories of our conceptual schemes.23 To produce a definition implies formulating it in a ­language, inserting it in a context of categories and logical links. Definitions are sensitive to historical change and context. A definition explains an unknown or dubious meaning by using a better known and less dubious meaning. To define is to attribute meaning by means of a statement, that is, a sequence of signs. Often these signs are written. Definitions assist in eliminating ambiguities (they delimit the extent of the meanings of words), in explaining something (they may be intended to incorporate new knowledge: they entail formulating an adequate characterisation of the object to which the term will refer), and in influencing attitudes (they may have the aim of provoking emotional reactions; the objective is to establish bonds with respect to what is said).24 Definitions involve issues of power and influence.25 Definitions are persuasive because they imply and encourage a set of attitudes, evaluations and actions among people.26 Definitions serve interests and advance values. So they have practical consequences.

II.  Legislative Definitions The act of defining often has a prescriptive dimension. Definitions prescribe ­language use (how a term ought to be used) and influence our attitudes and behaviours. Legislative definitions work in this way. Formulating definitions in legal contexts implies a stipulative approach. Giving a definition is the same thing as constituting a way of understanding the world in the sphere of intersubjective experience and interaction. Law has an inherent constitutive force. According to this perspective, every legal rule is constitutive of some normative entity. Such entities are institutions, rights and powers, as well as obligations and prohibitions. Moreover, law ascribes sense or value to possible behaviours. Imperative and deontic sentences are not the only way to express rules. Rules can also be expressed by means of ascriptive, evaluative and sense-conferring sentences.27 The language involved in the enunciation and application of rules constitutes a special segment of human discourse with special features.28 23 

See V Villa, ‘Legal Theory and Value Judgments’ (1997) 16 Law and Philosophy 447, 465–70. Sgarbi, ‘What Is a Good Legislative Definition?’ (n 13) 29. Reality (n 14) 169. 26  ibid 152. 27  R Guastini, ‘Six Concepts of “Constitutive Rule”’ in T Eckhoff, L M Friedman and J Uusitalo (eds), Vernunft und Erfahrung im Rechtsdenken der Gegenwart, Rechtstheorie, Beiheft 10 (Berlin, Duncker & Humblot, 1986) 264–66. 28  See H L A Hart, ‘Definition and Theory in Jurisprudence’ (1953) in Essays in Jurisprudence and Philosophy (Oxford, Clarendon Press, 1983) 26. 24 

25 Schiappa, Defining

Definitions: Some Methodological Remarks

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Legal texts are linguistic formulations which do not always have a single meaning. To avoid problems of interpretation, the legislator resorts to definitions. A term or a word is legally defined when a legal statement gives it a (totally or partially) determined meaning. A legal statement that defines a term is a legal (or legislative) definition.29 By offering more precise terminology, one may seek to minimise the variations in meaning, so that the expectations of the intended users regarding what is commanded and what is applicable to specific cases become more certain.30 Definitions are used for two basic purposes in law: explaining the meaning of unclear, ambiguous or vague words, and attributing a specific meaning to words. Legal definitions commit both the legislator, the interpreters and the people subject to the law to a particular definition of a word. Legal definitions may be examined from three perspectives: their pragmatic funcion, their propositional structure and their argumentative role.31 Legal texts are normative documents which result from the activity of agents provided with the competence (conferred by norms) to formulate them. They indicate the structural relation between a typical fact and a legal consequence. Legislative decision-making is a process encompassing the determination of facts and their evaluation. Once the facts are determined, the legislator decides what to do given those facts. The first step is to assess the facts. The next step is to name them, and therefore to choose an appropriate definition. Defining implies naming. Naming functions by defining or redefining phenomena.32 The use of definitional sentences assumes a special and very complicated setting, namely the existence of a legal system with all that this implies. This use has a special connection with rules of law under which, given certain facts, certain legal consequences follow. Words are used to draw conclusions of law.33 Legislative definitions are tools used to connect factual data with legal consequences. This approach could be linked with the theoretical position which stresses the inseparability of the determination of facts and their legal qualification (or their legal and/or political evaluation). Legal documents refer to facts with certain names, which have legal consequences.34 In their logical structure, legal rules can be construed as conditional sentences having the standard form: ‘If p, then q’. The protasis refers to a certain class of facts (‘p’) as a condition, while the apodosis provides some legal effects (‘q’) as a consequence of such facts. Accordingly, the judicial application of a legal rule amounts 29 Sgarbi, ‘What Is a Good Legislative Definition?’(n 13) 33. See A Ross, ‘Definition in Legal ­ anguage’ (1958) 1 (3–4) Logique et Analyse 139; A A Martino, Le definizioni legislative (Torino, L Giappichelli, 1975) 22–25; Tarello, L’interpretazione della legge (n 10) 152–54; A Belvedere, ‘Definizioni’ in Digesto delle Discipline Privatistiche. Sezione civile, V (Turin, Utet, 1989) 149. 30  Sgarbi, ‘What Is a Good Legislative Definition?’ (n 13) 31. 31  F Macagno, ‘Definitions in Law’ (2010) 2 Bulletin suisse de linguistique appliquée 199. 32 Schiappa, Defining Reality (n 14) 131. 33  Hart, ‘Definition and Theory in Jurisprudence’ (n 28) 27–28, 34. 34 J Wróblewski, The Judicial Application of Law, edited by Z Bankowski and N MacCormick (Dordrecht, Kluwer Academic Publishers, 1992) 131–36.

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to ascertaining that the required fact has occurred and stating the consequence provided for.35 The facts determined by legislative provisions are designated by terms in legal language. The quantity of these facts depends on the vocabulary of legal language, which is in turn conditioned by the scope and technique of legal regulation. The more causistic the style of regulation is, the more names will be needed to designate the elements of reality regulated by legal rules. However, among the r­ elevant facts there are facts which are not singled out in legal language: for example, facts stated in terms of specialised extra-legal areas (natural science, technology, social science). In legal language we have facts determined in a descriptive manner, facts determined in an evaluative manner, facts that have mixed features, facts determined directly (positively), facts determined through negation, facts determined without stating their consistency (or inconsistency) with legal rules (in a simple way), and facts whose determination is conditioned by stating this relation (in a relational way).36 The proof of these facts is an element of the application of law. Information received by a court is used in proving statements concerning the existence of facts. When a legislator produces a definition that does not correspond to the ­current use, this is a stipulation. When a definition produced by a legislator only partly reflects the current use, the legislator is redefining.37 Legislative definitions are part of the legislator’s speech and the interpreter cannot ignore the proposed determination of meaning they represent. These definitions are rules. They often are constitutive of the meaning of terms. Moreover, they are rules aimed at directing the behaviour of judges and other officials by controlling their interpretation, application and enforcement. Legal language (the language in which normative documents are formulated) is substantially a part of current language. Legal language is a technical language, but it is expressed in natural language. This is the reason why it depends on rules, practices and conventions that inform and condition the natural language of the community of which it has become part. The semantic richness of the natural language can be a problem, because the indeterminacy, vagueness and ambiguity of its terms pose a difficulty in the elaboration of normative texts. Technical language, with the formulation of specific terms, can reduce uncertainty about meaning.38 Indeterminacy, vagueness and ambiguity can be reduced in statutes and regulations. However, since human legislators cannot envisage all the cases relevant to 35  R Guastini, ‘Facts in Legal Language’ (1989–90) 23 Annali della Facoltà di Giurisprudenza di ­Genova 263, 270–71. 36  On this type of facts, with several examples, see Wróblewski, The Judicial Application of Law (n 34) 137–43. See also Tarello, L’interpretazione della legge (n 10) 224–31 and Guastini, ‘Facts in Legal Language’ (n 35) 268–69. 37  Sgarbi, ‘What Is a Good Legislative Definition?’ (n 13) 33. 38  ibid 34.

Definitions: Some Methodological Remarks

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their concerns, the indeterminacy and vagueness of expressions give interpreters a chance to be flexible in regard to new and unanticipated applications.39 The precision and univocity given to concepts by legislative definitions are never perfect. It is always possible that indeterminacy, vagueness or ambiguity may turn up in what now seems a precise and unambiguous term. Stipulative definitions in law, designed to cover events, are always liable to appear inadequate in the light of some new and unforeseen circumstances.40 Establishing a legislative definition is to determine the meaning of terms, phrases, words present in normative texts while seeking to minimise semantic instability. Legislative definitions constitute an important instrument through which the legislator combats the ambiguity and vagueness of a term, making it less uncertain in the act of interpretation of different users. It is thus important for the definitions to be well-formulated. A definition must explain how to use a term and it must not contain ambiguities. If a legislator intends to limit the discretion of the interpreters, then he must be precise in his statements. A good definition aids in the demarcation of the area of use.41 Drafting a definition implies adhering to certain standards of accuracy.

III.  Organised Crime: Searching for a Common Definition The definition of ‘organised crime’ has been at the centre stage of sociological, criminological and legal debate for several decades. A clear and focused definition is important for public policy purposes. Such a definition would have the support of many because ‘if we are to build a knowledge that is accumulated over time from a number of researchers and a variety of studies, there must be some common definition(s) to insure that we are all meaning the same thing’.42 But a definition is not truly common, not really shared, if the vagueness of its wording leaves room for alternative interpretations. The need for a common and unambiguous definition emerges in different contexts: in the context of academic research, at the level of strategic analysis, at the level of law enforcement, in the context of legal cooperation and mutual assistance, and at the level of politics and policymaking. A commonly accepted definition would facilitate the shared pursuit for knowledge. It would enhance communication on the subject matter and prevent

39  See J Waldrom, ‘Vagueness in Law and Language: Some Philosophical Issues’ (1994) 82 California Law Review 509, 536; T A O Endicott, Vagueness in Law (Oxford, Oxford University Press, 2000) 31–32. 40 Robinson, Definition (n 1) 70. 41  Sgarbi, ‘What Is a Good Legislative Definition?’ (n 13) 35–36. 42  J O Finckenauer, ‘Problems of Definition: What is Organized Crime?’ (2005) 8 (3) Trends in Organized Crime 63, 71.

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misinterpretations among participants in the same discussion.43 It is relevant from a practical point of view: organised crime is not only a subject of academic study, but also a practical problem about what needs to be done. Typically, criminal law punishes serious forms of antisocial behaviour. A crime is a conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.44 The criterion of ‘harm’ will differ according to the social and political values of each society, but all agree that conduct that impairs the security of the community or hurts the physical well-being or welfare of its members constitutes ‘harm’.45 A crime is an intentional act or omission in violation of criminal law, committed without defence or justification, and sanctioned by the State. Some elements are important in this definition: the act should actually be committed or represent an omission of a legal duty; the act must be voluntary and committed when the actor has control over his actions; the act should be intentional, whether the intent is general or specific; the act should be a violation of a criminal law, as distinct from a non-criminal law or civil and administrative law (this is necessary so that the State can take action against the accused; some acts, however, may be both criminal and non-criminal and could invite action on the basis of both criminal and non-criminal laws); the act should be committed without defence or justification; the act should be sanctioned by the State (persons can be punished only for those acts that may be considered to be socially harmful and for which society has provided punishment).46 Crime is a legally forbidden and intentional action which has a harmful impact on social interests, a criminal intent, and legally prescribed punishment for it. Therefore, no action is to be viewed as crime unless it has the following characteristics: the behaviour must be harmful in terms of its impact on social interests; the harm which occurs must be forbidden by law; the act which brings harmful consequences must be intentional; the act, to cause the harm, must have deliberate motivation; there must be a fusion of criminal intent and conduct; there must be a ‘causal’ relation between the legally forbidden harm and the act/conduct; and there must be legally prescribed punishment for the harmful conduct.47 The idea of harm is an important part of the conception of crime. It should also be an important part of our conception of what is organised crime.48 43  M van Dijck, ‘Discussing Definitions of Organised Crime: Word Play in Academic and Political Discourse’ (2007) 1 HUMSEC Journal 65, 67–70. 44  S Henry, ‘Social Construction of Crime’ in J Miller (ed), 21th Century Criminology: A Reference Handbook (Thousand Oaks, Sage Publications, 2009) 1–2. 45  See R Wacks, Law. A Very Short Introduction (Oxford, Oxford University Press, 2008) 56. 46  S E Brown, F-A Esbensen and G Geis, Criminology. Explaining Crime and Its Context (Cincinnati, Anderson Publishing, 1991) 13–14; N Lacey, ‘Legal Constructions of Crime’ in M Maguire, R Morgan and R Reiner (eds), The Oxford Handbook of Criminology, 3rd edn (Oxford, Oxford University Press, 2002) 270–71. 47  See A Ashworth, Principles of Criminal Law, 5th edn (Oxford, Oxford University Press, 2006) 30–31; Lacey, ‘Legal Constructions of Crime’ (n 46) 268–69. 48  Finckenauer, ‘Problems of Definition’ (n 42) 78.

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Discussing the definition of ‘organised crime’ concerns what these words refer to. The quality of the definition will be related to the underlying purpose of drafting the definition. We can discern three different approaches to defining ‘organised crime’: the ‘lexical’ approach, the ‘essentialist’ approach and the ‘formalist’ approach.49 According to a ‘lexical’ approach, the word combination ‘organised crime’ is split up in two parts. In order to know what ‘organised crime’ means, it seems sufficient to determine the meaning of the words ‘organised’ and ‘crime’ separately. We could define ‘organised crime’ as a crime that is organised.50 In the ‘essentialist’ approach, a definition contains those components which together and exclusively are considered the necessary distinctive features. In most cases the ‘essential’ features are empirically observed features and should be recognised in any manifestation of organised crime. Definitions are attempts to capture observed key features of organised crime. In the ‘formalist’ approach, a definition is regarded as a rule of decision aiming at a clear and unambiguous delineation of a domain of objects or ­phenomena. The definition can consist of one or more criteria enabling the user of the definition to determine whether a given object or phenomenon is included in, or excluded from, the domain. A definition creates boundaries for concepts and phenomena; this is also because, when we deal with ‘organised crime’, such a definition is indispensable in order to demarcate the exact limits of public authorities’ actions. As a matter of fact, one of the primary functions of criminal law is to authorise the punishment of convicted offenders. According to the principle of legality, no crime or punishment can exist without legal grounds. This principle, as a core value in criminal law prosecution, implies correspondence between legal provisions and actual events that can be empirically verified or falsified in the trial. Legality requires a guarantee, which may be considered as a semantic rule on the formation of legal language prescribing the maximum precision of meaning of the terms employed in it. Organised crime is a complex phenomenon and a conceptual category. It is an umbrella concept.51 It falls within the category of concepts that should be understood as sharing ‘family resemblances’.52 Organised crime groups share attributes like family resemblances, which vary from one instance to other, forming a set rather than a single thing. The question then becomes: what elements are 49 

van Dijck, ‘Discussing Definitions of Organised Crime’ (n 43) 71–77. By the way, we point out that, in the case of the meaning of ‘organised crime’, the whole is more than the mere sum of the parts. It makes no sense attempting to define ‘organised crime’ by breaking this phrase up in two components which are then separately attributed meaning. See van Dijck, ‘Discussing Definitions of Organised Crime’ (n 43) 73. 51  K von Lampe, ‘The Trafficking in Untaxed Cigarettes in Germany: A Case Study of the Social Embeddedness of Illegal Markets’ in P C von Duyne, K von Lampe and N Passas (eds), Upperworld and Underworld in Cross-Bonder Crime (Nijmegen, Wolf Legal Publishers, 2002) 191. 52 ‘Family resemblance’ is a philosophical idea made popular by Ludwig Wittgenstein. See L Wittgenstein, Philosophical Investigations (1953) (Oxford, Basil Blackwell, 1978) para 67. 50 

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c­ onsidered important when we identify organised crime groups? Here ‘we see a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail’.53 When we talk about ‘organised crime’ we must begin by identifying what it is we are talking about. The use of an interdisciplinary approach is needed here because we are dealing with a complex problem. Several disciplines could be explored in order to understand this problem, some of which are sociology, economics, law, anthropology, psychology, history and political science. Organised crime has been defined in a variety of ways and there is little consensus regarding its meaning.54 But the issue of definition is important, since how we define organised crime has very significant implications for how we attempt to explain it and the steps we take as a society to prevent or control it.55 A uniform definition is necessary because of the danger that organised crime represents for the entire society. Agreeing upon a commonly accepted definition of what is organised crime has been a continuing problem not only for research, but also for public policy and law.56 From this point of view, the definition is important because the manner in which the problem of organised crime is posed goes a long way towards determining how laws are framed, how investigations and prosecutions are conducted, how research studies are done,57 and—when we examine organised crime in its contemporary transnational forms58—how mutual legal assistence across national borders is or is not rendered.

53 Wittgenstein, Philosophical

Investigations (n 52) para 66. Klaus von Lampe has compiled a collection of definitions of organised crime which proves that this concept harbours a quagmire of definitional debate. It shows that a universal definitional consensus is not forthcoming. See K von Lampe, ‘Definitions of Organized Crime’, www.organized-crime.de/ organizedcrimedefinitions.htm. See also V Ruggiero, ‘Crimine organizzato: una proposta di aggiornamento delle definizioni’ (1992) 2 (3) Dei delitti e delle pene 7; B Dobovšek, ‘Organised Crime—Can We Unify the Definition?’ (1996), Policing in Central and Eastern Europe, College of Police and Security Studies, Slovenia, www.ncjrs.gov/policing/org323.htm; F E Hagan, ‘“Organized Crime” and “organized crime”: Indeterminate Problems of Definition’ (2006) 9 (4) Trends in Organized Crime 127. 55  Since crime is defined by law, it could be argued that legal definitions of organised crime are the most important issue when it comes to definition. Definitions contained in statutes must target specific acts as being legally proscribed. They must sharply define what behaviour is to be subject to legal remedy. See Finckenauer, ‘Problems of Definition’ (n 42) 68. 56  ibid 63. 57  ibid 68. 58  The nature of organised crime has changed dramatically, especially in the past three decades. The expansion in the idea of what organised crime is can be attributed to many factors, including the globalisation of the economy, the permeability of national borders, the advances in communications technology and global transportation, which facilitates the increased movement of people and goods around the world. See ibid 79–81. See also J S Albanese, Organized Crime. From the Mob to ­Transnational Organized Crime, 7th edn (London, Routledge, 2015). According to Article 3 of the United Nations Convention against Transnational Organized Crime (2000) an offence, which involves an organised criminal group, is transnational in nature if 54 

a) it is committed in more than one State; b) it is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; c) it is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or d) it is committed in one State but has substantial effects in another State.

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At any rate, this phenomenon cannot be defined on the basis of crimes alone. Any definition must address and account for the elusive modifying term ­‘organised’.59 So the problem in defining ‘organised crime’ comes not from the word ‘crime’, but from the word ‘organised’. When we talk about an organised criminal group we mean a continuing ­criminal enterprise with a persistent criminal programme and a strong and stable organisational structure. Moreover, an organised criminal group is necessarily a ­profit-seeking criminal entreprise.60 What is essential to the definition of organised crime is the ability to use and reputation for use of violence, or the threat of ­violence, in order to facilitate criminal activities and to gain or maintain monopoly control of particular criminal markets. Another essential feature is that organised crime employs the corruption of public officials to assure immunity for its ­operations and protect its criminal enterprises from competition.61 Several characteristics provide a framework for conceptualising the nature of organised crime and criminal organisations.62 Organised crime groups do not have political agendas. Their interest in government is limited to its neutralisation (through bribery, payoffs, etc) and exploitability. Organised crime groups have a well-structured hierachy with leaders or bosses and followers in some rank order of authority. The members of the group are engaged in conspiracies to commit crimes. Someone in the group is in a position to decide what should be done, by whom, how and when. These groups are self-perpetuating. They continue beyond the life or participation of any particular individual. Leaders and followers who die or go to jail are replaced by new leaders and followers. This continuity is maintained over time and across crimes. Criminal organisations are secret societies. Their survival depends on a parti­ cularly strict code of conduct. They generally restrict membership according to certain criteria. Violence and the threat of violence are important dimensions of o ­ rganised crime. They are used to accomplish many ends. The ability to use violence, whether directly or in the form of a credible threat, is a generalised ingredient of organised crime groups. Violence creates a climate of fear and intimidation. The recourse to violence is valuable on the outside, against unyielding victims, rival groups, recalcitrant cooperators, and officials loyal to the State; and on the inside, to punish defectors, discourage internal competitors for the leading ­positions, or, conversely, to challenge the leaders.

59 

Finckenauer, ‘Problems of Definition’ (n 42) 64. G Turone, ‘Legal Frameworks and Investigative Tools’ (2007) 73 Resource Material, Fuchu, Tokyo, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) 48, www.unafei.or.jp/english/pdf/RS_No73/No73_00All.pdf. cf Annoni, chap 7 in this volume. 61  Finckenauer, ‘Problems of Definition’ (n 42) 81–82. 62 ibid 65–67; Hagan, ‘“Organized Crime” and “organized crime”: Indeterminate Problems of Definition’ (n 54) 128–34; M D Maltz, ‘Toward Defining Organized Crime’ in H E Alexander and G E Caiden (eds), The Politics and Economics of Organized Crime (Lexington, DC Heath, 1985) 21. 60 

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Organised crime exists for purposes of economic gain. Making a profit is its ­ rimary goal. Profit can come from illegal enterprises, but it can also come from p legal businesses. Organised criminal groups have an economic and entrepreneurial dimension, which is connected to the objective of obtaining, directly or indirectly, a financial or other material benefit. ‘Organized crime is any group committing systematically serious crimes having an economic aspect with a sort of a business organization, where costs, profits, money laundering, investments and reinvestiments are programmed with an entrepreneurial approach, so that the group may acquire a favourable position within an illegal market and, through that, and through consequent reinvestments, within the legal economy itself ’.63 In this way, organised crime attacks fair competition and the healthy functioning of the market in general. It causes disturbing effects on the market, such as the damage to the integrity of the financial system as caused by money laundering activities. Organised crime generally seeks to neutralise or nullify government by avoiding investigation, arrest, prosecution and conviction through payoffs to public officers (police, prosecutors, judges). The corruption of public officers and the political process is a characteristic of organised crime groups. Payoffs enable these groups to operate with immunity. Organised crime denotes those types of crime that pose a particular threat to ­society and to the State’s power because of its entrepreneurial and perpetual nature.64 Elements of this framework may be variable and differently connected.65 We should keep these characteristics in mind as we explore and examine organised crime in both its national and transnational forms.66

IV.  The Mafia-Type Association In the Italian Criminal Code we can distinguish between two main categories of ‘unlawful association’: the common type and the so-called ‘mafia-type’ association. The common type presents a general scheme. It is a general category to which specific and sectorial organised criminal groups (including the mafia-type ones) belong.67 Groups that engage in drug trafficking68 and human trafficking69 are 63 

Turone, ‘Legal Frameworks and Investigative Tools’ (n 60) 48–49. van Dijck, ‘Discussing Definitions of Organised Crime’ (n 43) 83. 65  The capacity of a criminal organisation for causing economic, physical, psychological and societal harms is a function of these elements. See Finckenauer, ‘Problems of Definition’ (n 42) 78–79. 66  ibid 67, 79–81. 67  Turone, ‘Legal Frameworks and Investigative Tools’ (n 60) 49–52. 68  Art 74 of Presidential Decree 9 October 1990 no 309 on Narcotics. 69  This crime of association was created by Law 11 August 2003 no 228 on Trafficking in Human Beings by introducing into the Italian Criminal Code the new para 6 of Art 416 and by rewording Arts 600, 601 and 602 (on slavery and similar practices) of the same Code. These provisions were introduced pursuant to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, adopted by the UN General Assembly in November 2000. See Turone, ‘Legal Frameworks and Investigative Tools’ (n 60) 50. 64 

Definitions: Some Methodological Remarks

 23

examples of the common type of unlawful association. They are two specific sub-classes. The common type of unlawful association is more generally defined. It occurs when at least three persons join together with the aim of committing a number of crimes and setting up an internal permanent organisational structure suitable for the same.70 The crime of mafia-type unlawful association refers to a particular kind of organised crime, which is characterised—in addition to the common elements— by a very peculiar force of intimidation and a deep-rooted code of silence closely connected thereto. Reliance on the force of intimidation and the code of silence are defining elements of the so-called ‘mafia method’. Therefore, several provisions dealing with unlawful association have been included in the Italian Criminal Code. Each one of them is specifically defined in order to cover the whole range of possible criminal groups having an economic and entrepreneurial dimension.71 Here we are dealing with an example of definition per genus proximum et differentiam specificam. The differentia specifica is that part of the definition not provided by the genus.72 In other words, we have a tree-like structure: the common type of unlawful association forms the trunk of the tree; its sub-classes referring to groups that engage in drug trafficking and human trafficking and mafia-type association are the branches of the tree. The trunk of the tree acts like a foundation frame on which further categories of unlawful association are built. ‘Mafia-type criminality’ is a sophisticated kind of organised crime. The southern Italian mafia organisation has long been considered a paradigm of organised crime or tout court identified with it,73 but the mafia is something more than mere organised crime. The mafia is a power structure. It is unique in its exercise of a quasi-governmental role. It develops and assumes power where and when government cannot or will not exercise a monopoly on the use of force.74

70  Art 416 paras 1–5 Italian Criminal Code. See the definition given by Art 2 of the United Nations Convention against Transnational Organized Crime adopted on 15 November 2000, 2225 UNTS 209:

‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit. The Italian notion is basically consistent with the UN definition, with one significant exception: a group of persons acting with the aim of committing only one specific crime cannot be classified as an ‘organized criminal group’ under Italian legislation. In all other respects, the approach to organised crime is broadly the same, particularly as regards the perception of its economic and entrepreneurial dimension. See Turone, ‘Legal Frameworks and Investigative Tools’ (n 60) 48. 71  ibid 49, 51–52. 72  On this type of definition see Aristotle, Topics, I, 4–6. On its use in Italian legislation see Martino, Le definizioni legislative (n 29) 68–70; Tarello, L’interpretazione della legge (n 10) 194–202. 73 L Paoli, ‘Organised Crime in Italy: Mafia and Illegal Markets—Exception and Normality’ in C Fijnaut and L Paoli (eds), Organised Crime in Europe. Concepts, Patterns and Control Policies in the European Union and Beyond (Dordrecht, Springer, 2004) 263. 74  Finckenauer, ‘Problems of Definition’ (n 42) 73–75.

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According to the Italian legal definition given in Article 416 bis, paragraph 3 of the Criminal Code, the association is mafia-type when the participants take advantage of the intimidating power of the association and of the resulting conditions of submission and silence (omertà) to commit criminal offences, to manage or at all events control, either directly or indirectly, economic activities, concessions, authorizations, public contracts and services, or to obtain unlawful profits or advantages for themselves or for others or with a view to prevent or limit the freedom to vote, or to get votes for themselves or for others on the occasion of an election.75

As a matter of fact, the impact of the mafia in Italian society is complex and multidimensional. It affects politics, the economy, culture and development. It affects society as a whole. The concept of mafia-type association involves some aspects which are strongly intertwined: the existence of an associative link between three or more individuals, an organisational structure, a common criminal goal, the overlap between criminal and legitimate settings (the official economy and political spheres), and the systematic recourse to violence and intimidation in order to polarise markets and exercise actual power and control over territories and condition economic activities. The meaning of ‘mafia-type association’ cannot be limited to the involvement of such criminal organisations in illegal markets. Their peculiarity lies in their will to exercise political power and sovereign control over the people in their communities.76 The mafia has some characteristic features: a code (a group of rules), territorial extension, physical coercion and an administrative force capable of ensuring the observance of the rules and effecting coercitive measures. Therefore, the mafia phenomenon is complex. It is a unit with multifarious aspects: criminal, economic, political, cultural and social. The mafia is a system of violence and illegality that aims to accumulate wealth and to obtain positions

75 

As Turone wrote, the crime of mafia-type association has been defined by the Italian legislature, observing the typical modus operandi of the traditional Sicilian mafia. However, the result was a general legal definition, which applies to any criminal group acting in the same way, no matter in what part of the country the group might be active, and no matter how the group might be named. This is why the Italian legal definition of mafia-type association may be of some interest also in other countries, where new mafias may come to life.

See Turone, ‘Legal Frameworks and Investigative Tools’ (n 60) 53. See, in this regard, Art 416 bis(8) of the Italian Criminal Code: The provisions of this article are also applicable to the Camorra, to the ‘Ndrangheta and to any other associations, whatever their local titles, also foreign, seeking to achieve objectives that correspond to those of mafia-type unlawful association by taking advantage of the intimidating power of the association. 76 

Paoli, ‘Organised Crime in Italy’ (n 73) 277.

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 25

of power, which also uses a cultural code and which enjoys a certain degree of popular support.77 The mafia is a political subject. It contributes to the production of politics in a comprehensive sense. It determines or contributes to the decisions and choices that regard the manipulation of power and the distribution of resources. The mafia has two faces. It is external to and antagonistic toward the State, because it does not recognise the State monopoly of force and resorts to murder (having the death penalty in its code). It is internal to and collusive with the State, because a series of activities are connected with the use of public finances (eg, public works contracts) and imply an active participation in public life (elections, control of the functioning of institutions). The mafia can be considered a ‘winning model’ of organised crime (at least until now), due to its complexity and long-standing role in society. It combines continuity with innovation because of its elasticity and adaptability.

V. Conclusions Organised crime (including the mafia) is a construct that encompasses a multitude of facets of social reality. The study of organised crime has borrowed concepts and theories from a variety of academic disciplines.78 Furthermore, it incorporates the findings of police and judicial investigations into scientific reflections on the phenomenon. What is needed is a comprehensive approach aimed at gaining a better understanding of the structure, activities and conditions which facilitate organised crime groups. Developing models of their structural and operational characteristics is an important method of producing a cumulative body of knowledge that may assist law-enforcement agencies in their investigative efforts to weaken and disrupt organised crime activity.79 From this point of view, the definition of organised crime implies models that can be used to examine this complex phenomenon, harmonise legislation,80 ­procedures, legal practice, and build a coherent system of rules against it.

77  See U Santino, Dalla mafia alle mafie. Scienze sociali e crimine organizzato (Soveria Mannelli, Rubbettino, 2006) 245–46. The author proposes a definition that assumes the ‘paradigm of complexity’. 78  K von Lampe, ‘The Interdisciplirary Dimensions of the Study of Organized Crime’ (2006) 9 (3) Trends in Organized Crime 77, 89. 79  V Le, ‘Organised Crime Typologies: Structure, Activities and Conditions’ (2012) 1 International Journal of Criminology and Sociology 121. 80  See, in this regard, F Calderoni, Organized Crime Legislation in the European Union. Harmonization and Approximation of Criminal Law, National Legislations and the EU Framework Decision on the Fight Against Organized Crime (Heidelberg, Springer, 2010).

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3 What is Organised Crime? FEDERICO VARESE

I. Introduction What are we to understand by organised crime? This is the question that is addressed in this volume, and that I asked myself back in 2010, when I edited a collection of essays on organised crime.1 The concept has a chequered history: over the past hundred years, it has been used to refer to diverse phenomena often with overly political and partisan intentions, leaving readers unsure as to what it means. New constructs have emerged vying for attention, stealing some of its attributes and indirectly suggesting that the old one is obsolete. Thus, organised crime has fallen into disrepute among a number of scholars. American criminologist Dwight C Smith as early as 1971 suggested that it is ‘a concept so overburdened with stereotyped imagery that it cannot meet the basic requirements of a definition—it does not include all the phenomena that are relevant; it does not exclude all the phenomena that are not relevant’.2 The aspiration of these remarks is to outline the evolution of the concept over the past century and sketch a viable definition of organised crime that does not overlap with other constructs such as ‘illegal (or illicit) enterprise’ and ‘criminal network’ and is capable of generating

1  This chapter is a slightly modified and updated version of F Varese, ‘What is Organized Crime?’ in F Varese (ed), Organized Crime: Critical Concepts in Criminology (London, Routledge, 2010) vol I, 11–33. I am grateful to the publisher for allowing me to reprint the text. Since its publication, I have received helpful comments from Dwight C Smith. 2  D C Smith, ‘Some Things that may be More Important to Understand about Organized Crime than Cosa Nostra’ (1971) 24(1) University of Florida Law Review 1, 10. Scholars who have rejected the possibility of producing a viable definition include K von Lampe, ‘Not a Process of Enlightenment: The Conceptual History of Organized Crime in Germany and the United States of America’ (2001) 1(2) Forum on Crime and Society 99, 113; M Levi, ‘Perspectives on “Organised Crime”: An Overview’ (1998) 37(4) The Howard Journal 335; P C van Duyne, Organized Crime in Europe (New York, Commack, 1996) 53. See also K von Lampe, ‘The Interdisciplinary Dimensions of the Study of O ­ rganized Crime’ (2006) 9(3) Trends in Organized Crime 77, 80 and K von Lampe, ‘The Study of Organised Crime: An Assessment of the State of Affairs’ in K Ingvaldsen and V Lundgren Sørli (eds), Organised Crime: Norms, Markets, Regulation and Research (Oslo, Unipub, 2009).

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hypotheses and empirical predictions. The essay is organised as follows. Section II charts the evolution of the definition of organised crime over the past hundred years ­drawing upon a content analysis of 115 definitions used in the period 1915–2009 in a variety of academic and official documents. It focuses on two aspects of organised crime definitions, namely structure and activities. Section III offers some critical remarks on selected aspects of the evolution of the concept. Section IV suggests a tentative definition of organised crime. Section V concludes.

II.  Content Analysis of 115 Definitions of Organised Crime How has organised crime been defined in the past hundred years? The first systematic content analysis of definitions was conducted by Hagan in a paper published in 1983. The 13 definitions under analysis originated from American sources in the period 1969–81, all but one from academic writers. The picture that emerges from Hagan’s review is one of consensus and convergence on a coherent designation, namely that organised crime involves the pursuit of profit through illegal activities by an organised hierarchy that shows continuity over time (11 out of 13 definitions). Among the means discussed, the use of violence (n=10) and ­corruption (n=10) are the most recurrent. The study is based on a very small ­sample of definitions and is now in need of an update. Also, the categories chosen by Hagan collapse diverse dimensions and give the misleading impression that scholars agree on a basic set of elements. For instance, one item coded by Hagan is ‘organized continuing hierarchy’ which covers most authors in the sample. However, such a construct is too wide, combining authors who thought that organised crime should be understood as a monolithic and highly regulated rational bureaucracy with those who referred to organised crime as an entity that displays only some signs of ‘continuity’. In order to update and extend Hagan’s review, I have conducted a content analysis of 115 definitions of organised crime used from 1915 to 2009. The main source is the list compiled by Klaus von Lampe and freely available on the web (www. organized-crime.de/OCDEF1.htm). I have supplemented it with definitions contained in Maltz (1973) and Hagan (1983). The data set includes authors from 23 different countries, although the overwhelming majority are American. Forty-one per cent of definitions originate from official documents, such as statutes, laws and government reports, while 4.3 per cent are contained in legal or social ­science dictionaries. Popular sources are excluded. The data are biased towards ­criminology and criminal justice sources, while other disciplines such as history, politics, sociology and economics are hardly present; thus the ­analysis below should be considered as charting the evolution of the concept mainly

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 29

among c­ riminologists and criminal justice practitioners and in official documents, including some ­statutes (see Tables A1 and A2 for some descriptive statistics of the data set).3 For the purpose of this preliminary analysis, I have used a ‘bottom-up’ coding strategy. Namely, I first read all the definitions and listed the key words and concepts that appeared. I then re-read and coded all definitions using the list I had devised. A few of the dimensions I use were present in the original Hagan review, such as ‘violence’, ‘corruption’ and ‘monopoly’, but most of my coding categories are new and derived from the texts (see the Appendix to this chapter for the complete list). Since the data set contains publication dates, I grouped the definitions by decades, in order to obtain a chronological picture of the evolution of the concept. The reader should note that the number of definitions produced in the first two time periods (before 1950, and 1950–59) is limited (three and four, respectively). Drawing on these results, below I discuss issues related to the structure, and then to the activities of organised crime.

A. Structure In this section, I review how authors have characterized the structure of organised crime over the years. I will focus upon a selected number of features, namely ‘specialisation’, ‘hierarchy’, ‘illegal enterprise’ and ‘La Cosa Nostra’. Figure 1 ­summarises the trend over time. In order to interpret Figure 1 accurately, the reader should note that the lines have been smoothed by the software I have used (Microsoft Excel). The underlining data matrix includes only one data point for each decade.

i. Specialisation Starting in the mid-1850s, the expression ‘organised crime’ was used in the USA to refer to phenomena ranging from plumbers conspiring to raise prices in New York City,4 to a lynching mob in Barnwell, Southern Carolina, operating with the tacit support of the local authorities,5 to revolutionary fervour in 1840s Europe6 and the Camorra in Naples,7 to the collusion between city officials and brothel owners in Manhattan.8 It was not until the twentieth century that references to the 3 

I have excluded non-academic dictionaries from the von Lampe sample. New York Times (18 September 1883) 4. 5  Brooklyn Eagle (30 December 1889) 2. See also Brooklyn Eagle (22 March 1888) 2. 6  New York Times (27 October 1857) 4. 7  See also the use of ‘organized crime’ in reference to the Camorra in G W Appleton, ‘The “Camorra” of Naples’ (1868) 5(5) The Galaxy. A Magazine of Entertaining Reading 641 ff. 8  See the 1896 Report by the New York Society for the Prevention of Crime, headed at the time by the reformist Reverend Charles Parkhurst, cited in T J Gilfoyle, City of Eros. New York City, Prostitution, and the Commercialization of Sex, 1790–1920 (London, WW Norton & Company, 1994), 406 n 23 and 418 n 2. Parkhurst had gone undercover to expose the collusion between the police and brothel 4 

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internal structure of a criminal group began to emerge.9 For instance, a report of the Chicago City Council Committee on Crime dating from 1915 maintains that an organised crime group has ‘its own language; it has its own laws; its own history; its tradition and customs; its own method and techniques; its highly specialized machinery for attacks upon persons and property; its own highly specialized modes of defense’ (emphasis added).10 In the decade up to 1949, one out of three definitions in the data set mentions specialisation, as does one out of four in the subsequent decade.

ii. Hierarchy From the 1920s to the 1940s, the concept of organised crime virtually d ­ isappeared from public debate,11 and the term ‘racketeering’ was used more widely.12 The 1950s saw a return to favour of the expression organised crime thanks to the 1950 Senate Committee chaired by Estes Kefauver, whose televised hearings of criminal figures being questioned on gambling, narcotics and corruption made ‘taking the Fifth’ part of American vernacular.13 By this time, ‘hierarchy’ had entered academic and official definitions of the phenomena: in the 1950s, one out of four definitions mentioned ‘hierarchy’ explicitly. In the 1960s the number grew to five out of 11 definitions (45.5 per cent).

owners in Manhattan in 1892. His efforts marked the beginning of the progressive reform movement that years later succeeded in passing the alcohol prohibition laws (ibid 299). See also M Dash, Satan’s Circus. Murder, Vice, Police Corruption and New York’s Trial of the Century (London, Granta, 2007) 48 n 68, 107. 9 But see the rather fictionalized account of a gentleman undergoing an initiation ritual in a New York gang published in 1835 (H H R, ‘Passages in the Life of a Hunchback’ (1835) August The Ladies’ Companion, a Monthly Magazine; Devoted to Literature and the Fine Arts 154, 155). In an interview with the Brooklyn Eagle (9 March 1890) 12, police officer Timothy Phelan stated, ‘crime is bad, but organized crime is worse’, in reference to gangs that, under the influence of alcohol, ‘rob and kill’. 10  Quoted in G Tyler, Organized Crime in America: A Book of Readings (Ann Arbor, University of Michigan Press, 1962) 5. The definition appears to be compatible with the overall approach of the so-called Chicago school of sociology. See M Haller, ‘Introduction’ in J Landesco, Organized Crime in Chicago (Chicago, University of Chicago Press, 1968) x–xi. 11  See von Lampe, ‘Not a Process of Enlightenment’ (n 2) 105. 12  In the 1920s, the term ‘organised crime’ was replaced by ‘racketeering’, a somewhat narrower concept. Historian Andrew Cohen has traced its origin to 1927 Chicago, where Gordon Hostetter, an anti-union activist, used the term to describe—and smear—workers’ unions and trade associations (A W Cohen, ‘The Racketeer’s Progress: Commerce, Crime and the Law in Chicago, 1900–1940’ (2003) 29(5) Journal of Urban History 575). 13  D R Wade, ‘The Conclusion that a Sinister Conspiracy of Foreign Origin Controls Organized Crime: The Influence of Nativism in the Kefauver Committee Investigation’ (1996) 16 Northern Illinois University Law Review 371, 405; C Sifakis, The Mafia Encyclopedia, 2nd edn (New York, Checkmark Books, 1999) 193–95. The original reports are available online at www.onewal.com/maf-kef.html. These hearings were the first to be televised live (D R Wade, ‘The Conclusion that a Sinister Conspiracy of Foreign Origin Controls Organized Crime’ 403).

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Figure 1:  Structure-related Keywords in Definitions of Organized Crime, 1915–2010 Sources: M Maltz, ‘On Defining Organized Crime: The Development of a Definition and Typology’ (1976) 22(3) Crime and Delinquency 338–346; F E Hagan, ‘The Organized Crime Continuum: A Further Specification of a New Conceptual Model’ (1983) 8(2) Criminal Justice Review 52–57; K von Lampe, www.organized-crime.de/OCDEF1.htm.

Donald Cressey, a consultant on the 1967 US President’s Commission on Organized Crime,14 was the academic champion of the view that organised crime was hierarchically structured. For this American criminologist, organised crime was an organisation rationally designed to maximise profits by performing illegal services and providing goods that were demanded by society. In a 1967 paper, he wrote: The organized criminal, by definition, occupies a position in a social system, an ‘organization,’ which has been rationally designed to maximize profits by performing illegal services and providing legally forbidden products demanded by members of the broader society in which he lives.15

Cressey maintained that just as legitimate firms grow in size and complexity, so do criminal groups: in order to cut costs, pool capital, coordinate corruption of law enforcement and ultimately gain territorial or product monopolies, roles in illegal organisations grow in number and complexity.16 Cosa Nostra stands at the

14  The full name was President’s Commission on Law Enforcement and Administration of Justice. See D R Cressey, ‘Methodological Problems in the Study of Organized Crime as a Social Problem’ (1967) 374(1) Annals of the American Academy of Political and Social Science 101; J S Albanese, ‘Government Perceptions of Organized Crime: The Presidential Commissions, 1967 and 1987’ (1988) 52(1) Federal Probation 58; M Woodiwiss, ‘Enterprise Not Ethnicity: An Interview with Dwight C. Smith Jr.’ (2015) 18(1–2) Trends in Organized Crime 41, 46 f. 15  Cressey, ‘Methodological Problems’ (n 14) 107. 16  ibid 108 and D R Cressey, Theft of a Nation: The Structure and Operations of Organized Crime in America (New York, Harper and Row, 1969) 74. See also J L Albini, ‘Donald Cressey’s Contributions to the Study of Organized Crime: An Evaluation’ (1988) 34(3) Crime and Delinquency 338, 342.

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­ innacle of such a continuum of rational development towards a complex hierarp chy: it has codified internal roles such as enforcer, corrupter, corruptee and, above each ‘family’, stands a commission that oversees, plans and coordinates the activities of all subgroups across different cities and possibly abroad.17

iii.  La Cosa Nostra/Italian American Mafia Cressey’s depiction of organised crime was intimately linked to the efforts of some American investigative agencies and the Johnson Administration (1963–69) to prove the existence of an ‘organization variously called “the Mafia”, “La Cosa ­Nostra” or “the syndicate”’.18 Indeed, Cressey makes it clear that his work is in great part aimed at generating social alarm.19 American congressional authorities started to focus on Italian gangsters in the 1950s at the time of the Kefauver ­Committee (1950–51), which stated that ‘a sinister criminal organization known as the Mafia’ operates in the US.20 The November 1957 conclave of Italian mobsters at Joseph Barbara’s house in Apalachin, New York gave further support to the view that a foreign (Italian) nationwide conspiracy was controlling illegal activities in most American cities.21 When Joe Valachi, a ‘soldier’ in the Genovese crime family, gave his televised testimony to the Permanent Subcommittee on Investigations of the US Senate Committee on Government Operations (best known as the McClellan Committee) in 1963, many were convinced of the existence of a national organisation able to take decisions, to supervise and ensure a high degree of compliancy among its members, and to survive changes in leadership. The mafia was a far cry from a transient and unstructured urban gang.22 By 1963, the FBI had started to focus its attention on La Cosa Nostra and to collect (between 1961 and 1967) material comprising more than 300 volumes of electronic intercepts, only a small portion of which has ever been made public.23 This material supposedly 17 Cressey, Theft of a Nation (n 16) 210, 228 and 316, and D R Cressey, Criminal Organization: Its Elementary Forms (London, Heinemann Educational Books, 1972). 18  Cressey, ‘Methodological Problems’ (n 14) 103. The practice of equating Cosa Nostra to organised crime might have been to some extent a consequence of data collection. ‘Police departments collected information on Italian criminals and put it in a file labeled “organized crime”. Then when asked who were involved in organized crime, the only possible answer was “Italians, of course”’ (D C Smith, personal communication, 29 April 2015, by email). An early critic of this practice is T C Schelling, ‘What is the Business of Organized Crime?’ (1971) 20(1) The Journal of Public Law, 71, 73. 19  See, especially, Cressey, Theft of a Nation (n 16) 54–71. 20  US Senate Special Committee to Investigate Organized Crime in Interstate Commerce, Third Interim Report (1 May 1951) available at www.onewal.com/kef/kef2.html, 2. See also von Lampe, ‘Not a Process of Enlightenment’ (n 2) 105. The Kefauver Committee had relatively little to say about the internal structure of organised crime (D C Smith, ‘Paragons, Pariahs and Pirates: A Spectrum-based Theory of Enterprise’ (1980) Crime and Delinquency 26(3) 358, 366). 21  The 1961 appointment of Robert Kennedy as Attorney General gave further impetus to the fight against organised crime. Until the early 1960s, the bulk of organised crime convictions originated from IRS tax investigations (Albanese, ‘Government Perceptions’ (n 14) 60). 22  Smith, ‘Paragons, Pariahs and Pirates’ (n 20) 367. 23  ibid. Notoriously, J Edgar Hoover, the director of the FBI from 1935 to 1972, refused to devote many resources to the fight against syndicates. For speculation as to Hoover’s motives, see H Messick, The Silent Syndicate (New York, Macmillan, 1967) 287 and Cressey, Theft of a Nation (n 16) 21–24.

What is Organised Crime?

 33

confirmed Valachi’s testimony.24 In this period, academics such as Cressey and official reports alike used the expression organised crime as synonymous with the Italian American mafia. For instance, W J Duffy wrote: ‘organized crime is a combination of two factors: (1) lucrative income producing criminal activities … (2) a criminal organization variously known as the Mafia, the Outfit, Cosa Nostra or Crime Syndicate’.25 This trend is reflected in the data set, as shown in Figure 1. In the 1960s, 27.3 per cent of the entries defined organised crime as the Italian American mafia or La Cosa Nostra (20 per cent in the 1970s).

iv. Enterprise Cressey converted to the view of organised crime as a nationwide conspiracy formed by Italians when faced with the evidence presented to him while serving on the 1967 President’s Committee.26 Yet his book, The Theft of a Nation (1969), failed to convince his colleagues. Starting with Hawking in 1969, the view of organised crime as a monolithic entity, perfectly rational and organised along military lines by Italians, came under sustained and relentless academic criticism. Possibly the most influential of such critics was Dwight C Smith, author of The Mafia M ­ ystique (1975).27 Smith tried to direct the debate on organised crime away from an emphasis on ‘conspiracy’ and ‘ethnicity’, and argued for a view of organised crime as a business activity. Criminals are not a class apart, but rather entrepreneurs

See also the very plausible suggestions made by Smith in his interview with Woodiwiss, ‘Enterprise Not Ethnicity’ (n 14) 52 and Hoover’s new biography (B Gage, G-Man: J. Edgar Hoover and the American Century (New York, Simon & Schuster, forthcoming). Interestingly, it was the FBI that added ‘La’ to the label ‘Cosa Nostra’, ‘an indisputable marker of the Bureau’s involvement—like a fingerprint,’ according to D C Smith (personal communication by email, 18 December 2015). 24  eg, Cressey, ‘Methodological Problems’ (n 14) 104. On top of this sustained official attention given to the mafia, in 1969 Mario Puzo published The Godfather. 25  Cressey, ‘Methodological Problems’ (n 14) 29. See also Task Force Report, Organized Crime. President’s Commission on Law Enforcement and Administration of Justice (Washington, DC, United States Government Printing Office, 1967) 1:

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. 26  Cressey, ‘Methodological Problems’ (n 14). Contrary to claims by Smith, ‘Paragons, Pariahs and Pirates’ (n 20) 375, there is no evidence that Cressey disagreed with Daniel Bell’s theory that blocked social mobility for ethnic minorities explained the presence of so many Italian-Americans in organised crime at this particular historical juncture in US history. Indeed, Cressey referred approvingly to Bell (1953). See Cressey, ‘Methodological Problems’ (n 14) 102. 27  D C Smith, Mafia Mystique (New York, Basic Books, 1975). See G Hawkins, ‘God and the Mafia’ (1969) 14 (Winter) The Public Interest 24; J Albini, The American Mafia: Genesis of a Legend (New York, Appleton ­Century Crofts, 1971); F A J Ianni and E Reuss-Ianni, A Family Business: Kinship and Social Control in Organized Crime (London, Routledge & Kegan Paul, 1972). See also L Paoli, ‘The Paradoxes of Organized Crime’ (2002) 37(1) Crime, Law and Social Change 51; D C Smith, ‘Organized Crime and Entrepreneurship’ (1978) 6 International Journal of Criminology and Penology 161.

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who operate under conditions of illegality.28 Smith, like Cressey, ­acknowledged the importance of ethnic ties in reducing uncertainty and increasing trust in the underworld.29 He also accepted that a connection between production of goods and services and the establishment of territorial monopolies might exist.30 Yet, Smith departed from Cressey in highlighting that illegal entrepreneurs ­operate in an environment characterised by uncertainty, where regulation to ensure order and protect property rights is absent.31 Rational organisation and predictable rules in the underworld were a figment of the official imagination. Since the mid-1980s, Peter Reuter has further undermined the view that criminal groups are large enterprises that exercise control over illegal markets. Rather, markets such as numbers (a form of illegal lottery), loan-sharking and bookmaking in New York City are populated by numerous, relatively small and often ephemeral enterprises that are in competition with each other.32 Illegality is the main variable that prevents an organised crime group from growing. In order to reduce the threat of being arrested, individuals that run illegal businesses tend to reduce the amount of information available to employees and customers. As information does not spread, it is harder to reap the benefits of a division of labour and economies of scale in areas such as reputation-building. Reuter adds that opportunities for vertical integration are limited in the underworld. Internalising a function implies higher risks of arrest and seizure of assets and higher costs of managing an expanding and more diverse workforce. The latter costs, in particular, are likely to escalate rapidly. In fact, it is very difficult to monitor the performance of employees who, given the illegal nature of the business, also need to work in covert settings and minimise the production of written documents that can become proof of their illegal activity. Thus, illegal enterprises are likely to have lower capitalisation, fewer personnel, and less formal management than comparable legal enterprises.33 Illegality also (by definition) means that contracts are not enforceable in courts, thus making transactions less predictable.34

28 

Smith, ‘Paragons, Pariahs and Pirates’ (n 20) 375. See also ibid 370. ties provide the strongest possibility of ensuring trust among persons who cannot rely on the law to protect their rights and obligations within cooperative but outlawed economic activity’ (ibid 375). 30  ‘The results of efforts to protect an entrepreneur’s core technology is the creation of a territory, or domain: a set of claims staked out in terms of a range of products, population served, or services rendered’ (ibid 376). 31 ibid 373 and 375. Yet he acknowledged that ‘regulators’ do also exist in the underworld (ibid 376). 32  P Reuter, The Organization of Illegal Markets: An Economic Analysis (New York, United States National Institute of Justice, 1985) ix. 33 Reuter, The Organization of Illegal Markets (n 32). See also discussion in Paoli, ‘The Paradoxes of Organized Crime’ (n 27) 66. 34 The difficulty of monitoring distant agents due to product illegality also drastically reduces the geographical expansion potential of criminal firms (Reuter, The Organization of Illegal Markets (n 32) 21 f). 29  ‘Ethnic

What is Organised Crime?

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It follows that such small enterprises cannot hope to control sizeable sectors of illegal markets: if they tried, they would have to collect a significant amount of information on their competitor, enhance their reputation and use violence to prevent market entrants. Any such actions could attract the attention of law enforcement and lead to arrest.35 The historian of organised crime in Chicago, Mark Haller endorses Reuter’s analysis and extends it back in time and beyond New York City. Haller’s point of departure in a paper titled ‘Illegal Enterprise’ (1990) is that Italian-American groups were far from able to control most illegal markets, and in any case they emerged after illegal enterprises had already shaped American cities.36 When it comes to discussing internal structure, Haller outlines the existence of business partnerships and cooperation among illegal entrepreneurs (often aided by corrupt police officers) who remained independent illegal operators, rather than joining a single (or a few) structured, hierarchical organisations. ‘Partnerships’ allowed several entrepreneurs to pool resources, provide local management and share risks in a single enterprise.37 While these scholarly efforts were underway, a major piece of legislation, the Racketeer Influenced and Corrupt Organizations Act (1970), introduced the concept of ‘enterprise’. According to this Act— widely known as RICO—an individual who belongs to an enterprise that has committed any two of 35 crimes within a 10-year period can be charged with racketeering.38 The combined efforts of scholars like Smith, Reuter, Haller and others paid off: references to ‘enterprise’ started to appear in the definitions in the 1970s and continued to grow decade after decade (Figure 1). We should also note that references to ‘Cosa Nostra’ declined in the 1970s and disappeared in the subsequent decades (Figure 1).39 Indeed, during the 1970s and 1980s, ‘hierarchy’ also declined significantly (it is present in, respectively, 6.7 per cent and 7.7 per cent of the definitions), but it returned in the 1990s and 2000s, these latter results being driven to an extent by the characteristics of European definitions.

35  ibid; see also P Reuter, Disorganized Crime: The Economics of the Visible Hand (Cambridge, MA, MIT Press, 1983) and P Reuter, Racketeering in Legitimate Industries: A Study in the Economics of ­Intimidation (Santa Monica, The RAND Corporation, 1987). 36  M Haller, ‘Illegal Enterprise: A Theoretical and Historical Interpretation’ (1990) 28(2) Criminology 207, 208. 37  ibid 215 and 222. 38 C Morselli and L Kazemian, ‘Scrutinizing RICO’ (2004) 12 Critical Criminology 351 and Woodiwiss, ‘Enterprise Not Ethnicity’ (n 14) 49. 39  Some definitions continue to have references to specific groups, eg, the President’s Commission on Organized Crime, created by Reagan in 1983, listed, in addition to Cosa Nostra, other organised crime entities, such as outlaw motorcycle gangs, Colombian cartels, the Japanese Yakuza and Russian gangs. See Albanese, ‘Government Perceptions’ (n 14) 59, 62 and Paoli, ‘The Paradoxes of Organized Crime’ (n 27) 56.

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v.  Networks and Harm Recent developments include the emergence of concepts such as ‘networks’ and ‘harm’. Although they belong to different analytical levels (the former refers to structure, while the latter to the consequences of organised crime), we shall briefly review them together. Since the 1970s, there has been an exponential growth in sociology publications that contain ‘social network’ in the abstract or title, as ­documented quantitatively by Borgatti and Foster.40 Such growth has also been felt in the field of organised crime research since at least the 1990s.41 ‘Network’ has even entered a (still limited) number of definitions of organised crime, namely 3.4 per cent in the 1990s, and 5.2 per cent in the 2000s (Figure 2). For instance, McIllwain reframes some classical definitional issues—such as the provision of illicit goods and services—with references to network structures: Human relationships form the least common denominator of organized crime. The actors composing these relationships engage in the process of social networking for the provision of illicit goods and services. They also protect, regulate and extort those engaged in the provision or consumption of these goods and services.42

Some criminologists have gone beyond advocating the use of network data for the study of organised crime organisations and proposed a more general ‘criminal network perspective’ for the understanding of organised crime. One proponent of such a perspective, Carlo Morselli, writes that ‘a network is a self-organizing structure that is driven by the emergent behaviour of its parts’.43 The network perspective is able to capture ‘a flexible order’, structural arrangements that are lighter on their feet than ‘slow moving’ hierarchies and quick to adjust to changing situations and opportunities.44 Such a framework can account for organisational systems ranging from simple co-offending to attempts at monopolizing markets or territories, from one-time partnerships to membership in quasi-structured organisations, from ties based on family, to those based on friendship, background affinities, resource sharing and so on. Criminal opportunities are generated—and collaboration to seize such opportunities occurs—within networks.

40  S P Borgatti and P Foster, ‘The Network Paradigm in Organizational Research: A Review and Typology’ 2003 29(6) Journal of Management 991, 992. 41  See, eg, G W Potter, Criminal Organizations: Vice, Racketeering, and Politics in an American City (Prospect Heights, Waveland Press, 1994); J O Finckenauer and E J Waring, Russian Mafia in America: Immigration, Culture and Crime (Boston, Northeastern University Press, 1998); N Coles ‘It’s Not What You Know–It’s Who You Know that Counts: Analysing Serious Crime Groups as Social Networks’ (2001) 41(4) British Journal of Criminology 580; K von Lampe, ‘Criminally Exploitable Ties: A Network Approach to Organized Crime’ in E C Viano, J Magallanes and L Bidel (eds), Transnational Organized Crime: Myth, Power, and Profit (Durham, Carolina Academic Press, 2003) 9; E Chattoe and H Hamill, ‘It’s Not Who You Know–It’s What You Know About People You Don’t Know that Counts’ (2005) 45(6) British Journal of Criminology 860. 42  J S McIllwain, ‘Organized Crime: A Social Network Approach’ (1999) 32(4) Crime, Law and Social Change 301, 319. 43  C Morselli, Inside Criminal Networks (New York, Springer, 2009) 11. 44 ibid.

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Figure 2:  ‘Networks’ and ‘Harm’ in Definitions of Organized Crime, 1980–2010 Source: K von Lampe, www.organized-crime.de/organizedcrimeDEF1.htm.

Although analytically distinct, we also observe a rise in references to the ‘harmful’ consequences of organised crime (Figure 2, 13.8 per cent and 10.5 per cent respectively). Rather than trying to specify what organised crime is, several authors define organised crime by the harm that it causes. The rise of references to harm is likely to be related to the emphasis on harm reduction in other realms of the criminal justice system, such as drug use, prostitution and the public’s protection against violent and sexual offenders.45 In conclusion, Figures 1 and 2 suggest a trend towards a higher level of generality within definitions of organised crime. From the 1950s onwards, organised crime was narrowly depicted as a highly structured entity, often a synonym for a single crime group, the Italian-American mafia. As this perspective came under sustained criticism in the 1970s, a more general term, ‘enterprise’, came to be preferred by many scholars of the phenomenon. Since the 1990s, an even more general term has appeared in the von Lampe data set, namely ‘network’. As organised crime is being defined more broadly, it loses specificity, paradoxically leaving it more open to political interpretations; or else the analysis of specifics is subsumed by practical concerns such as its harmful effects. The organised crime label can now be applied to any criminal activity deemed harmful or ‘serious’.

B. Activities We now turn to a review of what organised crime does, as it emerges in the definitions analysed. Figure 3 summarises some key words—‘monopoly’, ‘the provision of illegal goods and services’, ‘illegal activities’ and ‘predation’—used by authors describing the activities of organised crime. 45  Harm reduction is a movement within the criminal justice system that advocates the adoption of pragmatic and evidence-based public health policies designed to reduce the harmful consequences of various high risk activities. G A Marlatt, Harm Reduction: Pragmatic Strategies for Managing High–Risk Behaviors (New York, Guilford Press, 2002).

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Figure 3:  Activity-related Keywords in Definitions of Organized Crime, 1915–2010 Sources: Maltz, ‘On Defining Organized Crime’ (figure 1); Hagan, ‘The Organized Crime Continuum’ (ibid) and von Lampe (ibid).

i. Monopoly ‘Monopoly’ has the highest percentage of entries in relation to the 1950s (two out of four). References to monopoly continued in the subsequent decade (three out of eight; 27.3 per cent). An advocate of such a view is Thomas C Schelling, who was awarded the Nobel Prize in economics in 2005. In his two papers on organised crime (Schelling 1967 and 1971), the American economist introduces a crucial distinction between producers of illicit goods and services, and organised crime. The former category includes the bookmaker, the loan shark and the brothel keeper. As for the latter, he writes evidently [by organised crime] we do not merely mean ‘crime that is organized’ … The characteristic [of organised crime] is exclusivity or, to use a more focused term, monopoly. From all accounts, organized crime does not just extend itself broadly, but brooks no competition. It seeks not only influence, but exclusive influence. In the overworld its counterpart would be not just organized business, but monopoly. (Emphasis in the original.)46

Some businesses, continues Schelling, lend themselves more to monopolisation than others. For instance, bars provide a focus for would-be monopolists, since they are fixed establishments, while marijuana distribution may be moved around more easily.47 Certain structural features, such as technology, the market, consumer demand and personnel requirements, may well help predict which markets are more likely to become monopolised than others. Once a monopoly is in place, it breeds violence: large-scale monopolistic entities cannot allow competition any more than a tax authority can. 46 

Schelling, ‘What is the Business’ (n 18) 72 and 73.

47 Reuter, The Organization of Illegal Markets (n 32) 31. For an example taken from illegal abortions,

see T C Schelling, ‘Economics and Criminal Enterprise’ (1967) 7 (Spring) The Public Interest 61, 75.

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Schelling differs from Cressey in one crucial respect. For Cressey, ordinary criminals are wholly predatory, while organised criminals offer a service to society. Schelling reverses this perspective, arguing that it is organised crime that is wholly predatory. Monopolisation does not bring any benefit to the criminal entrepreneur: [T]he interpretation that I want to suggest is that organized crime does indeed have a victim. The victim is the bookmaker—the man who sells illicit services to the public. And the crime of which he is the victim is the crime of extortion. He pays to stay in business.

For the future Nobel Prize winner, organised crime operated like a taxing authority but provided no benefit to its victims.48

ii.  The Provision of Illegal Goods and Services The view that organised crime is involved in attempts to monopolise markets or territories coexisted in the 1960s with another characterisation, namely that the essence of organised crime is to provide illegal goods and services (Figure 3). For instance, the Task Force on Organized Crime of the 1967 President’s Commission asserted on its first page, ‘the core of organized crime activity is the supplying of illegal goods and services—gambling, loan sharking, narcotics, and other forms of vice—to countless numbers of citizen customers’.49 Cressey follows suit by arguing that organised criminals offer a service to a segment of society. ‘If La Cosa Nostra were suddenly abolished, it would be sorely missed because it performs services for which there is a great public demand’.50 A link between the official consensus that the Italian-American mafia dominates organised crime in the US and is involved in supplying the public with goods and services is confirmed empirically by a correlation analysis among the seven items, which shows that ‘Cosa Nostra’ and ‘the provision of illegal activities’ are strongly related, with a 0.910 coefficient (significant at 0.004).

iii.  Illegal Activities In parallel with the rise in ‘enterprise’ discussed above, the 1970s see a growth in authors who favour references to illegal activities as the core activities of organised crime and a decline in the ‘monopoly’ view (‘enterprise’ and ‘illegal activities’ have a 0.720 correlation coefficient).51 An example is the following definition by the ­British Home Office from the early 1990s, which combines references to ­‘enterprise’ and ‘illegal activities’ (note also the mention of transnational ­activities): ­‘Organised

48 

Schelling, ‘What is the Business’ (n 18) 76; Schelling, ‘Economics’ (n 47) 67. Task Force Report, Organized Crime: President’s Commission on Law Enforcement and Administration of Justice (Washington, United States Government Printing Office, 1967) 1. 50  Cressey, ‘Methodological Problems’ (n 14) 107. 51  For a recent critique of the ‘monopoly’ view, see, eg, F Allum and J Sands, ‘Explaining Organized Crime in Europe: Are Economists Always Right?’ (2004) 41(2) Crime, Law and Social Change 133. 49 

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crime constitutes any enterprise, or group of persons, engaged in continuing illegal activities which has as its primary purpose the generation of profits, irrespective of national boundaries’ (emphasis added).52 Schelling’s contention that monopolisation amounts to extortion almost failed to be picked up,53 as illustrated by the ‘predation’ variable in Figure 3. The results of the analysis above mirror those referring to ‘structure’. Over the past century, authors have moved away from mentioning specific behaviour patterns, such as attempts to monopolise markets and supply illicit goods and services, in favour of the more general term ‘illegal activities’. Notably, hardly any author mentions ‘predation’—logically, predation is a subset of ‘illegal activities’—as a feature of organised crime.

III.  A Critical and Selective View of Organised Crime Perspectives How are we to evaluate the trajectory of the definitions of organised crime in the past century? Below I touch upon only a few selected issues, namely, Cressey’s model and the rise of the concepts of ‘enterprise’ and ‘networks’. In many academic reviews, Cressey comes across as the main foe of organised crime studies. He is criticised for his over-reliance on the Valachi testimony, his emphasis on ethnicity, and more generally for his description of the structure of organised crime.54 As for the first charge, he should be given a suspended sentence. The American criminologist acknowledged that Valachi’s testimony was at times contradictory.55 Moreover, he noted that the statements contained in the testimony were often the product of interactions whereby senators interrupted the witness, typically failing to return to issues that the mobster had raised.56 Recent evaluation of Valachi’s testimony suggests that in many parts it is consistent with other sources. Historian David Critchley has concluded that Valachi gave valuable intelligence to US law enforcement. Critics were ‘incorrect to assert that Valachi’s public evidence “was not corroborated on any essential point”’. Nor was ­Valachi’s testimony noticeably marred by any ‘coaching’ he allegedly received from his

52 B Huber, ‘England’ in W Gropp and B Huber (eds), Rechtliche Initiativen gegen organisierte ­Kriminalität (Freiburg, Iuscrim, 2001) 203, 216, available at: http://organized-crime.de/OCDEF1.htm. 53  For a partial exception see the following definition by A A Block and W J Chambliss, Organizing Crime (New York, Elsevier, 1981)12: ‘Thus we suggest that organized crime is a term that refers to those illegal activities connected with the management and coordination of racketeering (organized extortion) and the vices—particularly illegal drugs, illegal gambling, usury, and prostitution.’ Emphasis added. 54  See Hawkins, ‘God and the Mafia’ (n 27), Albini, The American Mafia (n 27), Ianni, A Family ­Business (n 27) and Smith, ‘Paragons, Pariahs and Pirates’ (n 20). 55 Cressey, Theft of a Nation (n 16) 37. 56 ibid.

What is Organised Crime?

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FBI handlers.57 Certainly, Valachi’s recollections were partial and, as mafia boss Joseph Bonanno claimed, he did not see the entire picture. Yet, his evidence was substantiated by the later memoirs of Nick Gentile and Bonanno himself.58 Overall, the description of Cosa Nostra, as a set of hierarchically structured crime groups of Italian-American extraction coordinated by a Commission, has been confirmed.59 Yet, Cressey’s work fails to stand the test of time for at least two reasons. His prediction that criminal groups would continue to grow in size and complexity into a Weberian ideal-type rational bureaucracy failed to acknowledge that, like any other organisation, an organised crime group is based on a set of agency relationships. Any organisation faces problems of asymmetric information, imperfect monitoring and opportunistic behaviour, although such problems are pervasive in the underworld. Political and economic institutions in the overworld arise to alleviate agency problems: committees monitoring the behaviour of members of Parliament, legal machinery to enforce civil and property rights, and so on. In the overworld, long multi-stage chains of agency relationships have developed to mitigate agency problems. But the longer the chain, the harder it is to monitor agents. Conversely, the shorter the agency chain, the easier it is to solve the governance problem.60 Agency problems are the most acute in the underworld. Thus one would expect organised crime groups to be localised, relatively small and unable to control members perfectly. Subsequent historical research has in fact ascertained that, contrary to Cressey’s assertion, Italian-American mafia families are localised, the ‘boss of bosses’ does not have ‘absolute control over mafia members’ and Italian hegemony over organised crime in the US has always been limited.61 Secondly, Cressey failed to distinguish the loan shark, the brothel keeper, the prostitute and the abortionist from those who aspired to govern transactions in the underworld by providing services of dispute settlement, cartel enforcement, and more generally governance of illegal transactions. Ultimately, Cressey assumed that vertical integration of functions was an inexorable trend within firms, legal and criminal alike. Indeed, he even predicted that Cosa Nostra would

57  D Critchley, The Origins of Organized Crime in America: The New York City Mafia, 1891–1931 (London, Routledge, 2009) 167. 58  ibid. See N Gentile, Vita di Capomafia. Memorie raccolte da Felice Chilenti (Rome, Crescenzi Allendorf, [1963]1993); J Bonanno with S Lalli, A Man of Honour: The Autobiography of Joseph Bonanno (New York, Simon and Schuster, 1983). 59  See, eg, A Graebner Anderson, The Business of Organized Crime (Stanford, Hoover ­Institution Press, 1979); N Pileggi, Wise Guy: Life in a Mafia Family (New York, Simon and Schuster, 1985); P Maas, Underboss: Sammy the Bull Gravano’s Story of Life in the Mafia (New York, Harper Paperbacks, 1997); J D Pistone and R Woodley, Donnie Brasco: My Undercover Life in the Mafia (New York, Signet, [1989] 1997) and J D Pistone and C Brant, Donnie Brasco: Unfinished Business (Philadelphia, Running Press, 2007). 60  J E Stiglitz, ‘Whither Reform? Ten Years of the Transition’. Annual Bank Conference on Development Economics, Keynote Address 28–30 April 1999’ (Washington, World Bank, 1999) available at www8.gsb.columbia.edu/faculty/jstiglitz/sites/jstiglitz/files/1999_4_Wither_Reform.pdf. 61 Critchley, The Origins of Organized Crime (n 57) 189. cf Cressey, Theft of a Nation (n 16) 38.

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gradually shift from a rank-oriented to a task-oriented enterprise. Such a prediction was also predicated on the assumption that the organisation would be able to integrate more and more tasks and ensure significant coordination among its different branches. He failed to see that gaining and maintaining control over such a large entity was far from likely.62 The ‘enterprise perspective’ championed by authors such as Smith, Reuter and Haller crucially highlighted the agency problems that obtain in criminal organisations, drawing upon advances in industrial economics, and in particular the work of Oliver E Williamson on transaction-cost economics. Yet these authors are not unanimous on the extent to which an economy exists beyond the individual firms. For instance, Reuter’s dissection of the organisation of illegal markets suggests that external capital markets are virtually impossible to develop: ‘growth’—he writes— ‘must be internally financed out of profit’.63 Haller’s example of the Colonial Inn criminal partnership suggests instead that in certain cases external capital is available as well as mechanisms to reduce risk. The Colonial Inn was an illegal casino that opened in 1945 in Florida. A variety of entrepreneurs joined forces to establish this enterprise: Mayer Lansky arranged for political protection; Frank ­Ericson, Frank Costello, Vincent Alo and Joe Adonis provided starting capital; while Mert Werthmeimer was appointed as the manager.64 The appointed manager of the Colonial Inn, Mr Werthmeimer, had agreed to cover 50 per cent of any losses that might occur. In order to insure himself against such a risk, Werthmeimer approached Jack Guzik (a partner of Tony Accardo, the boss of the Chicago ‘Outfit’) for insurance against financial losses, offering him 50 per cent of his profits in exchange for covering 50 per cent of his potential losses. Guzick agreed and both benefited from the high earnings of the Casino.65 Thus, it transpires that a rudimentary capital market and ways to insure against risk did exist, and Italian organised crime was able to make criminal markets operate smoothly. Most crucially, the ‘enterprise perspective’ in the 1970s and 1980s did not emphasise the distinction between producers of goods and services, and providers of services of dispute settlement and protection in criminal markets. Such a distinction would prove to be crucial in identifying groups that are likely to engage in violence to control territories and markets, as opposed to groups that are happy to compete on the open market. The network perspective draws attention to a fundamental tool for the study of human societies, Social Network Analysis (SNA). SNA is a methodology for coding and analysing a special type of data. Such data have a peculiar structure:

62  Cressey, ‘Methodological Problems’ (n 14) 242–4. An additional reason that makes Cressey’s work dated is the ultimate aim of his book, namely that of raising awareness of the danger of organised crime in the US, rather than analysing the phenomenon. 63 Reuter, The Organization of Illegal Markets (n 32) 14. 64  Some partnerships were particularly successful and far reaching, such as the one involving Al Capone in the city of Cicero, outside Chicago (Haller, ‘Illegal Enterprise’ (n 36) 218 and 221). 65  ibid 217.

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actors are located both on the rows and the columns of a data matrix, while standard representations of data in a matrix list cases on the rows and variables on columns. Network data thus capture an essential feature of social interaction, namely the interdependence of actors in the social world.66 SNA is particularly apt at representing the informality of relations within organised crime groups. To the extent that a particular group has some formal roles—such as boss, underboss and soldier—SNA is able to describe and model the informal patterns among members and how they evolve over time. The position of a soldier strategically placed near the boss in the informal pattern of ties can help predict future interactions and conflict above and beyond formal titles. Ultimately SNA is a technique of data analysis and any organisation can be thought of as a network-based social system. As modelled by SNA, hierarchies, too, are networks. Whether an organisation is ‘slow-moving’ or ‘quick on its feet’ is an empirical question rather than a theoretical premise or assumption. The network perspective of organised crime remains at a high level of generality, subsuming almost any form of co-offending, ranging from car thieves to structured groups that aspire to control territories and markets. In order to generate hypotheses, the perspective needs to identify a more specific object of study. One route it could take is to focus on the problem of enforcing deals and promises among criminals (a central theme in the study of organised crime) in the absence of third party enforcers. Since at least the 1970s, many contributions in applied game theory, experimental economics, anthropology and economic history have shown that appropriate punishments can be inflicted so as to reduce the future payoffs of any defector (and transmit information on such defectors) in bilateral continuing relationships and within the context of small groups.67 Punishment takes the form of refusing future interaction. A minimum of collective action is then required to ensure that information on cheats flows to others in the group. Throughout the economic history of several countries some clever informal systems of governance have emerged before the rise of national states and have extended quite beyond extremely small groups to people who did not know each other. Greif ’s (1993) study of Maghribi traders’ system of communication and collective punishment is such an example, as is Greif, Milgrom and Weingast’s (1994) exploration of how groups of traders (guilds) in late medieval Europe created a system of informal judges able to record accurately and reliably traders’ past history so that they could punish cheaters by refusing to trade with them in the future. If the network

66 When it comes to data analysis, standard methods—such as general linear model analysis— cannot be used because they assume independence of observations (G Robins and Y Kashima, ‘Social Psychology and Social Networks’ (2008) 11(1) Asian Journal of Social Psychology 1). Several continuous-time Markov chain models of social networks have been formulated in order to test hypotheses of tie formation over time. See T A B Snijders, ‘The Statistical Evaluation of Social Network Dynamics’ (2001) 31 Sociological Methodology 361. 67  See A K Dixit, ‘Economic Governance’ in S N Durlauf and L E Blume (eds), The New Palgrave Dictionary of Economics (London, Palgrave Macmillan, 2008), on whose paper this section draws.

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perspective were to focus on the conditions under which we could expect such ­informal systems of punishment to emerge and collapse, it would make a significant addition to the study of organised crime.68 SNA (the data technique) would not be mandatory to study these arrangements. Ultimately, the enterprise and the network perspectives conceptualise organised crime too broadly. In section IV below I will argue for a narrower definition. I will also introduce a distinction between organised crime and mafia, and will define the latter analytically, rather than just in reference to a specific criminal organisation such as Cosa Nostra, and argue that organised crime and mafia belong to the same genus of states and insurgencies. Each sub-section below starts with what I consider a viable definition of organised crime and mafia respectively.

IV.  Organised Crime and Mafia as Forms of Governance I propose to consider the phenomenon of organised crime as part of a broader category, namely, that of governance. The concept of ‘governance’ has been used widely in business studies, economics, politics and sociology since the 1980s.69 Like any other concept, it has been deployed to refer to a variety of objects. Two applications, however, have been given an analytical definition, ie, corporate governance and economic governance. The former refers to the way a corporation is managed internally and the way it deals with its shareholders and the outside world. In the formulation of Oliver E Williamson, the latter refers to the ‘study of good order and workable arrangements’.70 Broadly speaking, economic governance is the set of rules and norms that regulate exchange.71 Although corporate governance and economic governance are connected,72 I will concentrate on economic governance (henceforth, governance). Ordering of exchange may emerge spontaneously, through repeated interaction, or be supplied by an institution. As for other social arrangements, there is also a dark side to governance. Property rights can be protected for some at the expense of others, resources can be mobilised in order to secure benefits

68  For such an exploration see the study of the drug market in F Varese, ‘How Mafias Migrate: The Case of the’ Ndrangheta in Northern Italy’ (2006) 40(2) Law and Society Review 411. 69  O E Williamson, ‘The Economics of Governance’ (2005) 95 American Economic Review 1. 70 ibid. 71  See Dixit, ‘Economic Governance’ (n 67). 72  ibid. The fundamental contributions of R Coase, ‘The Nature of the Firm’ (1937) 4 Economica 386 and O E Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (New York, Free Press, 1975) have highlighted how the boundaries of a corporation are themselves endogenous and that a firm might consider it more efficient to solve problems of governance by vertically integrating a trading party. See also O E Williamson, The Mechanisms of Governance (New York, Oxford University Press, 1995).

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for a select few, even at the expense of overall long-term economic efficiency.73 Thus, the study of governance should include also less-than-good arrangements.74 A focus on governance should also help us dispense with the artificial dichotomy between the economic and political nature of organised crime,75 while retaining the crucial distinction between producers of goods and services, and suppliers of forms of regulation, protection and governance. Below, I will discuss organised crime and the mafia as forms of governance while making some reference to the State and insurgent groups.

A.  Organised Crime Definition: an organised crime group attempts to regulate and control the production and distribution of a given commodity or service unlawfully. As stated by Schelling, burglars may be in the underworld but do not seek to govern it.76 Such an attempt requires investments in a special set of resources, which are not necessarily available to illegal entrepreneurs. The most crucial of such resources is violence. The group is bound to clash with others who also wish to engage in the sale and distribution of the commodity the group wants to regulate. Thus an organised crime group must be stronger than the individuals that operate in its area of influence. Only those who possess force can guarantee that their decisions will be respected and their punishments executed.77 Information is also a crucial resource, as the group needs to know who deals in what in a given market, in order to prevent them from doing so.78 The above characterisation does not imply any particular organisational structure. However, for organised crime to be effective, one would expect the presence of a rudimentary structure, a system for issuing orders, and someone who benefits from such governance and some continuity over time—all features that have been mentioned over the past century as being part of organised crime.79 Empirically, we could take gang wars and truces, and market sharing arrangements, as suggesting the presence of organised crime. 73 For insightful examples referring to the modern state, see F C Lane, ‘National Wealth and Protection Costs’ in Venice and History: The Collected Papers of Frederic C. Lane (Baltimore, The Johns Hopkins University Press, [1941]1966) 373 and ‘The Economic Meaning of War and Protection’ in Venice and History: The Collected Papers of Frederic C. Lane (Baltimore, The Johns Hopkins University Press, [1942]1966) 383. 74  cf Williamson, ‘The Economics’ (n 69) 1. 75  Paoli has pointed out that such a dichotomy is misplaced for mafia groups (Paoli, ‘The Paradoxes of Organized Crime’ (n 27) 74 and L Paoli, Mafia Brotherhoods: Organized Crime, Italian Style (New York, Oxford University Press, 2003) 172. See also Cressey, Theft of a Nation (n 16) 110. 76  Schelling, ‘What is the Business’ (1971). 77  D Gambetta, The Sicilian Mafia (London, Harvard University Press, 1993). 78 D Gambetta, Codes of the Underworld. How Criminals Communicate (Princeton, Princeton ­University Press, 2009). 79  See, eg, D C Smith, ‘Illicit Enterprise: An Organized Crime Paradigm for the Nineties’ in R J Kelly, K L Chin and R Shatzberg (eds), Handbook of Organized Crime in the United States (Westport, Greenwood Press, 1994) 121, 135, who derives the emergence of organisational structure from the conditions of illegality, uncertainty, self-interest and investment.

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The humorous Exemplary Story by Miguel de Cervantes, Rinconete and ­Cortadillo ([1613]1998), points to the existence of what we mean by organised crime. When two delinquents, a cardsharper and a pickpocket, start to practise their trade in the city of Seville, they soon discover that an underworld syndicate controls crime in the city. Rather than being ‘a free trade’, as Cortado expected, stealing is regulated by a society headed by crime boss Monipodio, who acts like a ‘father and a leader’ and along the way ensures protection against the officers who deal with vagrants, confers upon the two men a new name, and tells them when and where they can carry out their trade.80 Severe penalties are in place for those who break the rules of the syndicate. In a light-hearted manner, this short story suggests that attempts at controlling crime are not new. For an in-depth analytical exploration of an instance of an organised crime group one can turn to the case explored in the paper by Levitt and Venkatesh (2000). The group, defunct at the time of their writing, had been located in an inner-city neighbourhood of a large, industrial American city.81 The structure of drug selling in the city was rather elaborate. The top level included four to six individuals responsible for the long-term strategy of the organisation and for maintaining ties to suppliers and affiliates in other regions. Other individuals at the top were responsible for collecting dues, overseeing recruitment and serving as a liaison to the community. The next level down included local gang leaders with a specific territorial responsibility for one gang, and this is the level for which the authors have data. Gang leaders paid a fee to the superior level and were the residual claimant on the profits. At this level, the gang had some formal roles, such as enforcer, responsible for ensuring the safety of the members, treasurer and runner, who transported drugs to and from the supplier. At the street level, foot soldiers sold the goods and reported to the enforcer. At the periphery of the groups were individuals (‘rank-and-file’) who were not full members and paid duties to the gang to receive protection, status and a supply of drugs to sell in other parts of the city. The group was in charge of a territory, controlling access to the drug market in that area, and was involved in wars with a competing gang to increase its market share. Drugs were sold either by gang members, or by independent sellers who paid ‘the gang leader … in return for the right to sell heroin on the gang’s turf ’.82 During the period for which Levitt and Venkatesh have data, the gang fought prolonged and costly wars for the control of territory from which to sell. In ­particular, it was involved in a series of violent conflicts with a rival gang that controlled an area immediately to the north, culminating in the conquest of the rival gang’s

80  M de Cervantes, Rinconete and Cortadillo, in M de Cervantes, Exemplary Stories (Oxford, Oxford University Press, [1613]1998) 71, 80. 81  S Levitt and S A Venkatesh ‘An Economic Analysis of a Drug-Selling Gang’s Finances’ (2000) 115(3) Quarterly Journal of Economics 755, 759. The data available to the authors include detailed records of earnings and expenses that had been kept by the gang leader. 82  ibid 765.

What is Organised Crime?

 47

12-square territory.83 The participants themselves made it clear that they used violence on their competitor’s turf as a strategy for shifting demand to their own territory.84 The income recorded by the leader increased significantly after the war, although the conflict was costly: ‘Gang surplus and drug revenues are … almost double the mean values for these variables observed over the sample.’85 Since many of the customers came on foot, increasing the gang’s turf from 12 to 24 square blocks substantially reduced competition.86 Schelling (1971) maintains that organised crime is purely predatory. In the case analysed in Levitt and Venkatesh (2000), it is clear that the overall organisation was supplying a service. The gang leaders paid a fee to the ‘central leadership’ and in return received protection (both on their turf and in prison), stable alliances with other gang sets such that gang members can travel to other areas of the city with relative safety, access to reliable sources of wholesale drugs, and the possibility for members to rise up the hierarchy into the upper echelon.87

Gang members (officers and foot soldiers) were paid a wage, while the recorded financial data also include expenses for funerals and disbursements to families of deceased members. Rank and file, who had to pay the gang, received in return— write the two authors—‘protection, status, and a reliable supply of drugs for those who deal independently’.88 Overall, the gang was selling a product to its customers, offered protection and other services to its members and clients, and in turn received protection from the higher level of the organisation. It would not be enough to describe this gang as just a network or an illicit enterprise. Although it would be correct to depict the group as a network, such a description would only be the obvious starting point of analysis. Two co-offenders stealing a car are also a network, but in all other respects this network would differ from the gang. It would also be correct to suggest that the gang was an enterprise. Indeed, its main aim was to sell drugs and make a profit. However, it also bore greater ambitions, namely, that of being the only seller of drugs. In order to achieve this, it developed special skills, such as violence, and engaged in wars with other firms. Clearly, the gang was a special type of enterprise aspiring to conquer a market. On the other hand, to regard all illicit enterprises as organisations that aspire to govern territories or markets would be misleading. Under certain conditions, an organised crime group can evolve into something else. Certain variables, such as technological innovation, might increase or reduce 83 

ibid 764. ibid 782. ibid 781. 86 ibid 782. Expansion was a bonus but also a cost, both financially and militarily. Levitt and Venkatesh speculate on why it was harder in the instance of these two gangs to agree on a collusive equilibrium rather than fight costly wars and suggest that part of the explanation is due to the inability of the leadership to control foot soldiers. 87  ibid 762. 88  ibid 762. 84  85 

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the ability of an organised crime group to fulfil its aspiration to control a given market. For instance, the impact of pagers and mobile phones and the ‘one-shot’ mobiles that cannot be easily traced can weaken the ability of a gang to control the market, as buyers and sellers can easily coordinate their transactions bypassing the organised crime group. Rather than pointing to a weakness of the d ­ efinition, this would qualify as dynamics specific to a situation and would require ­conceptualising the resulting entity as something different from organised crime. Even if the scope for controlling certain markets shrinks and an organised crime group turns into an illicit enterprise in competition with others, it does not follow that the definition is not viable.

B.  The Mafia Definition: a mafia group is a type of organised crime group that attempts to control the supply of protection. A drug syndicate may try to be the sole supplier of drugs in a given domain, while a mafia attempts to be the sole supplier of protection. Thus, the scope of a mafia group is much wider than that of an organised crime group, since it attempts to protect any transaction, not just those related to, say, drugs, in a given domain. As in the case of organised crime, violence and the ability to collect reliable information are two key resources for a mafia group, and one would expect some rudimentary hierarchical structure to develop. Since the 1990s, a series of ethnographies have claimed that the Sicilian Cosa Nostra, the Hong Kong Triads, the Russian mafia and the Japanese Yakuza are essentially forms of governance specialising in the supply of protection.89 This body of research suggests that such groups can be collectively referred to as ‘mafias’. A mafia is a set of mafia groups that share the same rituals and rules. For instance, a number of mafia families operate in Sicily and the ‘Sicilian mafia’ is the collective entity of which they are a part. At different points in the history of each mafia, different arrangements regulate (or fail to regulate) the relations among mafia groups. The relations between groups are often dependent on clever institution builders and historical circumstances. Contrary to Schelling’s claim (1971), extensive evidence exists that the services offered by mafias are ultimately genuine. For instance, scholars have established that mafias are able to supply genuine services like protection against extortion; protection against theft and police harassment; protection in relation to credit 89 F Sabetti, Political Authority in a Sicilian Village (New Brunswick, Rutgers University Press, 1984); Gambetta, The Sicilian Mafia (n 77); Y K Chu, The Triads as Business (London, Routledge, 2000); F Varese, The Russian Mafia (Oxford, Oxford University Press, 2001); F Varese, Mafias on the Move: How Organized Crime Conquers New Territories (Princeton, Princeton University Press, 2011); P B E Hill, The Japanese Mafia: Yakuza, Law, and the State (Oxford, Oxford University Press, 2003). See also P Wang, ‘The Chinese Mafia: Private Protection in a Socialist Market Economy’ (2011) 12(4) Global Crime 290–311.

What is Organised Crime?

 49

obtained informally and the recovery of loans; and the settlement of a variety of social disputes. The mafia offers protection services to traders of illegal commodities, such as protection for thieves, prostitutes, loan sharks and drug dealers. Mafiosi also protect their clients against law enforcement.90 The following extract from the memoirs of Antonio Calderone, the vice-­ rappresentante of the Catania mafia family, appears to be an instance where the mafia intimidated a firm. [In the mid-fifties] we Mafiosi were in dire economic straits. But the idea of wholesale extortion never entered our heads. The only instance I remember was an extortion that took place in the late fifties or early sixties against the Rendos, who had the largest construction firm in Catania. The goal was to do the Costanzo brothers [the main competitors of the Rendo] a favour. A bomb was placed in the chimney of the Rendo offices; after that, the usual phone call asking for money was made.91

In this case, extortion and protection are a matter of perspective. As mafia boss Joe Bonanno put it in his autobiography, ‘what is seen as extortion from the outsider is viewed as self-protection by the insider’.92 From the point of view of the Rendos, the Calderone family was engaged in predatory behaviour. From the point of view of the Costanzo brothers, Tonino Calderone was protecting them vis-a-vis competitors. In a protected market, a firm faces a cost of entry higher than it would face were the market not protected. The firm trying to enter might well consider this a form of extortion, while those who operate in the market would consider it a genuine service of protection, that is, protection against competition.93 An even more sophisticated form of market protection undertaken by mafias is the enforcement of cartel agreements. Producers have an incentive to enter into cartel agreements but also to undercut fellow conspirators, placing themselves in a classic prisoner’s dilemma. The mafia offers to enforce the cartel agreement among producers, thereby deterring conspirators from cheating on the deal.94 It does not follow that mafias provide protection on the basis of universal criteria, such as fairness or merit. Indeed, the mafia operates without consideration for justice, fairness or the well-being of society at large. In the world run by the mafia, there is no such thing as a ‘right’, even to the protection for which one has paid. Mafiosi can ask for more favours or more money, or collude with other mafias

90  For detailed references to the relevant authors, see the review in Varese, ‘How Mafias Migrate’ (n 68) 412–13. 91 P Arlacchi, Men of Dishonor. Inside the Sicilian Mafia: An Account of Antonino Calderone (New York, William Morrow and Company, 1993) 53. 92 Bonanno, A Man of Honour (n 58) 79. 93 Gambetta, The Sicilian Mafia (n 77) 31 f. 94  J Landesco, Organized Crime in Chicago (Chicago, University of Chicago Press, [1929]1968); P Reuter, ‘Racketeers as Cartel Organizers’ in E A Herbert and G E Caiden (eds), Political and ­Economic Perspectives on Organized Crime (Lexington, Mass, D.C. Heath, 1984) 49; Reuter, Racketeering in Legitimate Industries (n 35); Gambetta, The Sicilian Mafia (n 77) 195–225; D Gambetta and P Reuter, ­‘Conspiracy Among the Many: The Mafia in Legitimate Industries’ in G Fiorentini and S Peltzman (eds), The Economics of Organised Crime (Cambridge, Cambridge University Press, 1995) 116.

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against dutifully paying clients, and there is no higher authority to which a victim can appeal.95 Under certain conditions, criminals associated with the mafias described above have engaged in extortion, the forced extraction of resources for services that are promised and not provided.96 For instance, the shorter the time horizon of the mafia group, the more likely it is to engage in extortion. However several confusions and selection biases cause this phenomenon to be overplayed. For instance, many confuse the imposition of protection with extortion. Certainly, mafias force victims to pay, but it does not follow that what it is paid for is inevitably bogus. Moreover, if individuals living in a mafia territory believe that the Mafioso ‘life expectancy’ is short, they will be more reluctant to pay protection, and a greater degree of coercion will be required.97 As the level of coercion increases, it is more likely that evidence will filter out of the underworld, while voluntary transactions are less likely to be reported and exposed.98 As for the case of an organised crime group, it would be misleading to refer to mafia groups as just social networks or enterprises. Mafias deal in protection as a commodity rather than as a right, but the logic of protection leads them to acquire features of a state. A full appreciation of these dynamics does away with the artificial distinction between the ‘political’ and the ‘economic’ nature of the mafia.99 Feudal lords were at the head of a political and economic enterprise, and so are mafia bosses. A key reason for this is that protection is a natural monopoly, as noted by Lane (1958) and Nozick (1974). Once a group has the ability to govern a given market, say drugs, it should have what it takes to govern neighbouring markets. If this logic were taken to its extreme consequences, organised crime groups would evolve into fully fledged mafia groups. Indeed, such dynamics are at work in the case studied by Levitt and Venkatesh (2000). One type of income recorded by the gang leader was ‘street taxes’, ie, money extracted from individuals and some companies that were conducting business on the gang’s turf. Grocery store owners, unlicensed taxi drivers, people dealing in stolen goods (fences), and those providing services such as auto or plumbing repair are among those required to pay street taxes.100 Interestingly, this income stream is rather small in the first year for which the authors have data—$1,200—but it increases to $5,800 by the last year of the gang’s existence. This is not an isolated case. For instance, journalist Mark Stevenson has recently documented a similar transition from organised crime group to fully fledged mafia in Ciudad Hidalgo, in Mexico, in a reportage

95 Gambetta, The

Sicilian Mafia (n 77) 33; Varese, The Russian Mafia (n 89) 6 and 190. recent discussions of protection and extortion, see F Varese, ‘Protection and Extortion’ in L Paoli (ed), The Oxford Handbook of Organized Crime (New York, Oxford University Press, 2014) 343 and P Campana, ‘Organised Crime’ in W Bernasco, H Elffers and J L Van Gelder (eds), Oxford ­Handbook of Offender Decision Making (Oxford, Oxford University Press, forthcoming). 97 Gambetta, The Sicilian Mafia (n 77) 33. 98 ibid. 99  cf Gambetta, The Sicilian Mafia (n 77). 100  Levitt and Venkatesh, ‘An Economic Analysis’ (n 81) 766. 96  For

What is Organised Crime?

 51

titled, ‘Mexico cartels go from drugs to full-scale Mafias’.101 Thus, the arguments advanced by Reuter discussed above suggesting that criminal firms are bound to be small apply only to situations where state policing is generally effective, such as in parts of the United States. Arguments such as Reuter’s cannot be taken to extend beyond a rather limited number of cases. Organised crime groups and mafias can grow in size, scope and complexity when States fail to control territories within their borders. Yet, it would be rash to expect that under all circumstances organised crime groups do evolve into mafia groups, as suggested by Hill (2003). Such a transition is likely only in conditions of ineffective state policing or when the State’s representatives have decided to withdraw from certain areas and ­markets, as was arguably the case in much of Japan in the twentieth century. Not surprisingly, the Yakuza has grown in size and complexity. Both organised crime groups and mafia groups have been defined here against the backdrop of existing States, with which they compete in offering services of governance. Logically, all share a crucial aspiration, that of governing exchanges. The State is indeed the most common and most well-developed institutional structure, which provides governance for those having assets and wanting to exchange them. At its core, the State is a third party that uses violence to protect assets and enforce agreements (contracts) among individuals, and a territory where these individuals reside demarcated by the reach of the enforcer’s enforcement power.102 In the process of enforcing contracts, it delineates rights. The rights that the State delineates are designated as ‘legal’. Economic or natural rights not backed by legal rights are not part of the scope of the State.103 One implication of the perspective presented here, namely, that organised crime, mafias and States belong to the same category, points to the existence of some hybrids, such as insurgencies and paramilitary groups. Paramilitary groups in Northern Ireland are reported to be the main players in the protection market (some police estimates suggest that they control as much as 80 per cent of it).104 Other insurgent groups—such as the Indonesian Free Aceh Movement and the National Liberation Army in Columbia—behave in the same way as their N ­ orthern Ireland counterparts and impose their system of taxation on the population living in their territories.105 Until recently, the Revolutionary Armed Forces of Colombia (FARC) was a major insurgent group in Columbia, controlling an area of some 42,000 km2. In this territory, it carried out regular censuses and established a specific ‘tax’ rate for each member of the community under its control and it also protected coca plantations and laboratories. After the Cali and Medellin cartels were dismantled in the early 1990s, the FARC began to provide protection to the 101  AP (16 August 2009). This development is explored in greater depth by S Brophy, ‘Mexico: ­Cartels, Corruption and Cocaine: A Profile of the Gulf Cartel’ (2008) 9(3) Global Crime 248. 102  Y Barzel, A Theory of the State: Economic Rights, Legal Rights and the Scope of the State ­(Cambridge, Cambridge University Press, 2001). 103 ibid. 104  Irish News (21 February 2003). 105  See, respectively, Jakarta Post (23 January 2003) and The Houston Chronicle (28 October 2001).

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smaller trafficking groups that replaced them.106 There is evidence that the protection offered by the FARC was genuine and that a rudimentary judicial system was in place, including complaint offices hearing all types of cases.107 Reportedly, there was a degree of popular support for these tribunals.108 Setting aside political and moral considerations, insurgent groups can be ­conceptualised as lying on a continuum from the mafia to the State. Table 1:  Key Features and Differences between Organised Crime, Mafia and State Collective Action mechanisms constraining the institution of governance: Present

Single market controlled *

Several markets controlled/market for protection State

Insurgencies

Absent

Organised crime group    Mafia group/Mafia

* In this cell, one could place institutions that control markets with the sanction of the State, such as guilds and trade unions. It should be noted, however, that States ultimately enforce such a control.

Table 1 summarises some key distinctions. An organised crime group attempts to govern a given market, while the mafia attempts to govern several markets in a given domain. Thus, both criminal organisations share crucial features with States and insurgent groups. What distinguishes each of them is the set of collective action mechanisms that constrains institutions of governance and makes them accountable to the people, who in turn could be defined as victims, customers, or citizens. A possible evolutionary trajectory would go from organised crime to mafia to State. To chart this trajectory is a complex task, which goes beyond the confines of this chapter.109 It should be noted that such entities lie on a continuum. 106 

New York Times (21 April 2000). Rueda, Confesiones de una guerrillera (Bogotá, Editorial Planeta Colombia, 2009); The Independent (21 July 2013); F E Thoumi, ‘Organized Crime in Colombia’ in L Paoli (ed), The Oxford Handbook of Organized Crime (New York, Oxford University Press, 2014) 177; M Aguilera Peña, ‘Las guerrillas marxistas y la pena de muerte a combatientes. Un examen de los delitos capitales y del “juicio revolucionario”’ (2014) 41(1) Anuario Colombiano de Historia Social y de la Cultura 201. 108  San Francisco Chronicle (18 December 2000). 109  This theme has been addressed by, eg, D C North and R P Thomas, The Rise of the Western World (Cambridge, Cambridge University Press, 1973); E Kiser and Y Barzel, ‘The Origins of Democracy in England’ (1991) 3(4) Rationality and Society, 396; and M Olson, Power and Prosperity (New York, Basic Books, 2000). 107  Z

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V. Conclusions This chapter has analysed the evolution of the concept of organised crime as present in 115 definitions collected mainly in the von Lampe data set. The analysis presented in Section II has uncovered a clear trend over the past century. Organised crime started by being defined in rather narrow terms, with reference to La Cosa Nostra, hierarchical structure, monopolisation and the provision of illegal goods and services. By the 1970s, this perspective—mainly associated with the work of Donald Cressey and US official commissions on organised crime—had come under severe academic criticism. References to more general concepts such as ‘illicit enterprise’ and ‘illegal activities’ have become popular since the 1970s. In more recent times, we have observed a rise in allusions to ‘networks’ and an emphasis on the harmful consequences of organised crime. The overall trajectory is towards definitions that are less and less specific in characterising organised crime. In Section III, I discussed selected issues related to the evolution of this literature, in particular the contribution of Cressey and the rise of both the ‘enterprise’ and the ‘network’ perspectives. Ultimately, I argued that these perspectives have contributed to making the object of study, organised crime, a rather elusive entity. In Section IV, I advanced what I believe is a narrower yet viable definition of organised crime, capable of identifying a specific type of criminal entity and generating testable hypotheses. I compared and contrasted organised crime with the mafia, arguing that they all belong to the same set of phenomena, which can be referred to as governance.

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Appendix: Descriptive Statistics of ‘Organised Crime Definitions Data Set’ The definitions contained in the data set come mainly from the von Lampe collection (N=105). Three sources are present in both von Lampe and Hagan (1976). The total cases recorded are 115. For these data, I have coded 44 variables, such as the author(s), year of publication, type of source (academic, official or dictionary), discipline of origin, country of origin, and key words or concepts. Table A1 below presents the descriptive frequencies of the countries in the data set. Table A1:  Frequency and Percentage of Definitions by Country of Origin Country

Frequency

Per cent

USA

69

60.0

Europe (excluding UK)

17

14.8

UK

10

8.7

Canada

5

4.3

Africa

4

3.5

Asia

3

2.6

Oceania

3

2.6

International

2

1.7

Americas (excluding USA)

2

2.6

115

100.0

Total

Table A2 below presents the frequencies of definitions by decades. Table A2:  Frequency and Percentage of Definitions by Decades Decade

Frequency

Per cent