only upon a showing of success; i.e., a high number of arrests. An effective organized crime investigative effort may not be able to produce such statistics without years of intelligence gathering, and the drive for statistics may divert investigative energy to meaningless low-level gambling arrests that have little effect on the criminal organizations. Even with these known problems, the organized crime units of all but a few city police departments are staffed by less than 10 men, and only 6 prosecutors' offices have assigned assistants to work exclusively or particularly in organized crime cases.

Effective investigation and prosecution of organized crime require extensive experience. Assistant prosecutors rarely stay in a district attorney's office for more than a few years, if that long.122 On the investigative level, with the exception of some Federal agencies, assignment to the organized crime intelligence unit may be only a step in an officer's career. The most proficient people are likely to be promoted out of the unit into supervisory positions, and their replacements must then start the difficult job of acquiring the skills for the peculiar demands of organized crime investigation. In addition, few units have any personnel with the necessary accounting and legal knowledge.

Lack of Coordination. Local police are hampered by their limited geographical jurisdiction, and law enforcement has not responded by developing sufficient coordination among the agencies.123 One gambling operation may range through several police jurisdictions; if only one agency is involved in the investigation, it may be unable to detect key elements of the illegal enterprise. The potential for Federal-local cooperation was illustrated in the past 3 years in Chicago. With search warrant affidavits signed by FBI agents and based on FBI information, Chicago police have arrested almost 1,000 gambling defendants and seized money and wagering paraphernalia valued at approximately $400,000. The monthly gross of gambling sites so raided exceeded $82 million.12 Unfortunately, such instances of sustained intensity are extremely rare.

Agencies do not cooperate with each other in preparing cases, and they do not exchange information with each other. Enforcement officers do not trust each other for they are sensitive to organized crime's ability to corrupt law enforcement. Agencies have not developed strategies to overcome these problems and to insure that needed data may be effectively transferred.

Failure to Develop Strategic Intelligence.125 Intelligence deals with all of the things that should be known before initiating a course of action. In the context of organized crime there are two basic types of intelligence information: tactical and strategic. Tactical intelligence is the information obtained for specific organized crime prosecutions. Strategic intelligence is the information regarding the capabilities, intentions, and vul

122 See General Report of this Commission, THE CHALLENGE OF CRIME IN A FREE SOCIETY 147-48 (1967), and Report of the Task Force on the Administration of Justice, ch. 4.

12 In regard to the problem of lack of coordination among police agencies, see the General Report of this Commission, THE CHALLENGE OF CRIME IN A FREE SOCIETY 119-20 (1967); for a more detailed treatment, see Report of the Police Task Force, ch. 4.

124 A program involving the Federal Bureau of Investigation and the Chicago Police Department, principally the Intelligence Division, was formally initiated in 1963. With information supplied by the FBI, police raids on gambling estab lishments have been carried out very successfully. Between 1963 and 1966 a total of 82 raids have been conducted upon sizable crap games, high-stake poker games, policy wheels, number games, horse bookmaking, sports book. making, wire rooms, and casino gambling. As a result of these raids, $382,398 in wagering paraphernalia and currency have been seized. Records confiscated

nerabilities of organized crime groups. For example, the body of knowledge built up by the FBI concerning the structure, membership, activities, and purposes of La Cosa Nostra represents significant strategic intelligence.

At present, most law enforcement agencies gather organized crime intelligence information with prosecution as the immediate objective. This tactical focus has not been accompanied by development of the full potential for strategic intelligence. That failure accounts for the gaps in knowledge, described above, concerning the ways in which criminal cartels organize and operate as a business. Prosecution based merely upon individual violations that come to the attention of law enforcement may result in someone's incarceration, but the criminal organization simply places someone else in the vacated position.

A body of strategic intelligence information would enable agencies to predict what directions organized crime might take, which industries it might try to penetrate, and how it might infiltrate. Law enforcement and regulatory agencies could then develop plans to destroy the organizational framework and coherence of the criminal cartels. Comprehensive strategic planning, however, even with an expanded intelligence effort, will not be possible until relevant disciplines, such as economics, political science, sociology, and operations research, begin to study organized crime intensively.

Gambling is the

Failure to Use Available Sanctions. largest source of revenue for the criminal cartels, but the members of organized crime know they can operate free of significant punishment. Street workers have little reason to be deterred from joining the ranks of criminal organizations by fear of long jail sentences or large fines. Judges are reluctant to jail bookmakers and lottery operators. Even when offenders are convicted, the sentences are often very light. Fines are paid by the organization and considered a business expense.

And in other organized crime activity, when management level figures are convicted, too frequently the sentences imposed are not commensurate with the status of the offender.

The pub-✓

Lack of Public and Political Commitment. lic demands action only sporadically, as intermittent, sensational disclosures reveal intolerable violence and corruption caused by organized crime. Without sustained public pressure, political office seekers and office holders have little incentive to address themselves to combatting organized crime. A drive against organized crime usually uncovers political corruption; this means that a crusading mayor or district attorney makes many political enemies. The vicious cycle perpetuates itself. Politicians will not act unless the public so demands; but much of the urban public wants the services provided by organized crime and does not wish to disrupt the system that provides those services. And much of the public does not

indicate that the monthly bookmaking take in Chicago is approximately $6.300,000; policy wheel and numbers, $1,050,000; and casino gambling, $1,200,000. This program has apparently seriously curtailed important sources of organized crime revenue in the Chicago area. Other gambling enforcement efforts in Cook County have been less effective. Of the 11,158 gambling arrests made in 1963, for example. 76.2 percent were dismissed; only 16.3 percent resulted in convictions. Only 17 jail terms were imposed, and only 4 of those were in excess of 30 days. Blakey, Local Law Enforcement Response to Organized Crime, Jan. 1967 (unpublished report to this Commission).

125 With regard to the concept of strategic intelligence, see generally KENT STRATEGIC INTELLIGENCE (1949); PLATT, STRATEGIC INTELLIGENCE PRDUCTION (1957). For a discussion of organized crime intelligence, see OFFICE OF THE N.Y. COUNSEL TO THE GOVERNOR, COMBATING ORGANIZED CRIME A REPORT OF THE 1965 OYSTER BAY, NEW YORK, CONFERENCES ON COMBATING ORGANIZED CRIME 31-34 (1966).

see or understand the effects of organized crime in society.

A NATIONAL STRATEGY AGAINST ORGANIZED CRIME

Law enforcement's way of fighting organized crime has been primitive compared to organized crime's way of operating. Law enforcement must use methods at least as efficient as organized crime's. The public and law enforcement must make a full-scale commitment to destroy the power of organized crime groups. The Commission's program indicates ways to implement that commitment.

PROOF OF CRIMINAL VIOLATION

The previous section has described the difficulties that law enforcement agencies meet in trying to prove the participation of organized crime family members in criminal acts. Although earlier studies indicated a need for new substantive criminal laws, the Commission believes that on the Federal level, and in most State jurisdictions where organized crime exists, the major problem relates to matters of proof rather than inadequacy of substantive criminal laws, as the latter-for the most part—are reasonably adequate to deal with organized crime activity. The laws of conspiracy have provided an effective substantive tool with which to confront the criminal groups. From a legal standpoint, organized crime continues to grow because of defects in the evidence-gathering process. 126 Under present procedures, too few witnesses have been produced to prove the link between criminal group members and the illicit activities that they sponsor.

Grand Juries.127 A compulsory process is necessary to obtain essential testimony or material. This is most readily accomplished by an investigative grand jury or an alternate mechanism through which the attendance of witnesses and production of books and records may be ordered. Such grand juries must stay in session long enough to allow for the unusually long time required to build an organized crime case. The possibility of arbitrary termination of a grand jury by supervisory judges constitutes a danger to successful completion of an investigation.

be appealable by the prosecutor and provisions made for suspension of such dismissal orders during the appeal.

The automatic convening of these grand juries would force less than diligent investigators and prosecutors to explain their inaction. The grand jury should also have recourse when not satisfied with such explanations.

The Commission recommends:

The grand jury should have the statutory right of appeal to an appropriate executive official, such as an attorney general or governor, to replace local prosecutors or investigators with special counsel or special investigators appointed only in relation to matters that they or the grand jury deem appropriate for investigation.

When a grand jury terminates, it should be permitted by law to file public reports regarding organized crime. conditions in the community.

Immunity, 128

A general immunity statute as proposed by the Commission 129 is essential in organized crime investigations and prosecutions. There is evidence to indicate that the availability of immunity can overcome the wall of silence that so often defeats the efforts of law enforcement to obtain live witnesses in organized crime cases. Since the activities of criminal groups involve such a broad scope of criminal violations, immunity provisions covering this breadth of illicit actions are necessary to secure the testimony of uncooperative or criminally involved witnesses. Once granted immunity from prosecution based upon their testimony, such witnesses must testify before the grand jury and at trial, or face jail for contempt of court.

Federal, State, and local coordination of immunity grants, and approval by the jurisdiction's chief law enforcement officer before immunity is granted, are crucial in organized crime investigations. Otherwise, without such coordination and approval, or through corruption of officials, one jurisdiction might grant immunity to someone about to be arrested or indicted in another jurisdiction.

In connection with the problems of securing evidence against organized crime, the Commission considered issues relating to electronic surveillance, including wiretapping and "bugging"-the secret installation of mechanical devices at specific locations to receive and transmit conversations.

Significance to Law Enforcement. The great majority of law enforcement officials believe that the evidence necesary to bring criminal sanctions to bear consistently on the higher echelons of organized crime will not be obtained without the aid of electronic surveillance techniques. They maintain these techniques are indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, and to serve as substitutes for them--each a necessary step in the evidence-gathering process in organized crime investigations and prosecutions.

As previously noted, the organizational structure and operational methods employed by organized crime have created unique problems for law enforcement. Highranking organized crime figures are protected by layers of insulation from direct participation in criminal acts, and a rigid code of discipline inhibits the development of informants against them. A soldier in a family can complete his entire crime career without ever associating directly with his boss. Thus, he is unable, even if willing, to link the boss directly to any criminal activity in which he may have engaged for their mutual benefit. Agents and employees of an organized crime family, even when granted immunity from prosecution, cannot implicate the highest level figures, since frequently they have neither spoken to nor even seen them.

Members of the underworld, who have legitimate reason to fear that their meetings might be bugged or their telephones tapped, have continued to meet and to make relatively free use of the telephone-for communication is essential to the operation of any business enterprise. In legitimate business this is accomplished with written and oral exchanges. In organized crime enterprises, however, the possibility of loss or seizure of an in

131 See the General Report of this Commission, THE CHALLENGE OF CRIME IN A FREE SOCIETY 141 (1967).

132 For one view on this subject, see Blakey, Aspects of the Evidence Gathering Process in Organized Crime Cases: A Preliminary Analysis 83, printed as appendix C of this volume.

1 Testimony in support of the Attorney General's program (S. 2813), Hearings Before the Sen. Comm. on the Judiciary, 87th Cong., 2d Sess. 172-73 (1962).

criminating document demands a minimum of written communication. Because of the varied character of organized criminal enterprises, the large numbers of persons employed in them, and frequently the distances separating elements of the organization, the telephone remains an essential vehicle for communication. While discussions of business matters are held on a face-to-face basis whenever possible, they are never conducted in the presence of strangers. Thus, the content of these conversations, including the planning of new illegal activity, and transmission of policy decisions or operating instructions for existing enterprises, cannot be detected. The extreme scrutiny to which potential members are subjected and the necessity for them to engage in criminal activity have precluded law enforcement infiltration of organized crime groups.

District Attorney Frank S. Hogan, whose New York County office has been acknowledged for over 27 years as one of the country's most outstanding, has testified that electronic surveillance is:

the single most valuable weapon in law enforcement's fight against organized crime. . . It has permitted us to undertake major investigations of organized crime. Without it, and I confine myself to top figures in the underworld, my own office could not have convicted Charles "Lucky" Luciano, Jimmy Hines, Louis "Lepke" Buchalter, Jacob "Gurrah" Shapiro, Joseph "Socks" Lanza, George Scalise, Frank Erickson, John "Dio" Dioguardi, and Frank Carbo . . .

135

Over the years New York has faced one of the Nation's most aggravated organized crime problems. Only in New York have law enforcement officials achieved a level of continuous success in bringing prosecutions against organized crime. For over 20 years, New York has authorized wiretapping on court order. Since 1958, bugging has been similarly authorized. 13+ Wiretapping was the mainstay of the New York attack against organized crime until Federal court decisions intervened.13 Recently chief reliance in some offices has been placed on bugging, where the information is to be used in court. Law enforcement officials believe that the successes achieved in some parts of the State are attributable primarily to a combination of dedicated and competent personnel and adequate legal tools; and that the failure to do more in New York has resulted primarily from the failure to commit additional resources of time and men. The debilitating effect of corruption, political influence, and incompetence, underscored by the New York State Commission of Investigation, must also be noted.

In New York at one time, Court supervision of law enforcement's use of electronic surveillance was sometimes perfunctory, but the picture has changed substantially under the impact of pretrial adversary hearings on motions to suppress electronically seized evidence. Fifteen years ago there was evidence of abuse by low-rank policemen. Legislative and administrative controls, how

134 N.Y. CODE CRIM. PROC. § 813a, b (1958).

155 In Benanti v. United States, 355 U.S. 96 (1957), the Supreme Court held that evidence obtained as the result of a wiretap conducted by State officers was inadmissible in a Federal court, on the grounds that its divulgence would be a violation of 605 of the Federal Communications Act. Many New York State prosecutors thereafter refrained from offering wiretap evidence secured under State court order because of the conflict with Federal law.

ever, have apparently been successful in curtailing its incidence.

The Threat to Privacy. In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas. When dissent from the popular view is discouraged, intellectual controversy is smothered, the process for testing new concepts and ideas is hindered and desirable change is slowed. External restraints, of which electronic surveillance is but one possibility, are thus repugnant to citizens of such a society.

Today, in addition to some law enforcement agents, numerous private persons are utilizing these techniques. They are employed to acquire evidence for domestic relations cases, to carry on industrial espionage and counterespionage, to assist in preparing for civil litigation, and for personnel investigations, among others. Technological advances have produced remarkably sophisticated devices, of which the electronic cocktail olive is illustrative, and continuing price reductions have expanded their markets. Nor has man's ingenuity in the development of surveillance equipment been exhausted with the design and manufacture of electronic devices for wiretapping or for eavesdropping within buildings or vehicles. Parabolic microphones that pick up conversations held in the open at distances of hundreds of feet are available commercially, and some progress has been made toward utilizing the laser beam to pick up conversations within a room by focusing upon the glass of a convenient window. Progress in microminiaturizing electronic components has resulted in the production of equipment of extremely small size. Because it can detect what is said anywhere not just on the telephone-bugging presents especially serious threats to privacy.

Detection of surveillance devices is difficult, particularly where an installation is accomplished by a skilled agent. Isolated instances where equipment is discovered. in operation therefore do not adequately reflect the volume of such activity; the effectiveness of electronic sur

veillance depends in part upon investigators who do not

discuss their activities. The current confusion over the legality of electronic surveillance compounds the assessment problem since many agents feel their conduct may be held unlawful and are unwilling to report their activities. It is presently impossible to estimate with any accuracy the volume of electronic surveillance conducted today. The Commission is impressed, however, with the opinions of knowledgeable persons that the incidence of electronic surveillance is already substantial and increasing at a rapid rate.

Present Law and Practice. In 1928 the Supreme Court decided that evidence obtained by wiretapping a defendant's telephone at a point outside the defendant's premises was admissible in a Federal criminal prosecu

130 Olmstead v. United States, 277 U.S. 438 (1928).

137 48 Stat. 1103 (1934), 47 U.S.C. 605 (1958).

138 See testimony of Att'y Gen. Nicholas Katzenbach, Hearings Before the

tion.136 The Court found no unconstitutional search and seizure under the Fourth Amendment. Enactment of Section 605 of the Federal Communications Act in 1934 137 precluded interception and disclosure of wire communications. The Department of Justice has interpreted this section to permit interception so long as no disclosure of the content outside the Department is made.138 Thus, wiretapping may presently be conducted by a Federal agent, but the results may not be used in court. When police officers wiretap and disclose the information obtained, in accordance with State procedure, they are in violation of Federal law.

Law enforcement experience with bugging has been much more recent and more limited than the use of the traditional wiretap. The legal situation with respect to bugging is also different. The regulation of the national telephone communication network falls within recognized national powers, while legislation attempting to authorize the placing of electronic equipment even under a warrant system would break new and uncharted ground. At the present time there is no Federal legislation explicitly dealing with bugging. Since the decision of the Supreme Court in Silverman v. United States, 365 U.S. 505 (1961), use of bugging equipment that involves an unauthorized physical entry into a constitutionally protected private area violates the Fourth Amendment, and evidence thus obtained is inadmissible. If eavesdropping is unaccompanied by such a trespass, or if the communication is recorded with the consent of one of the parties, no such prohibition applies.

The confusion that has arisen inhibits cooperation between State and Federal law enforcement agencies because of the fear that information secured in one investigation will legally pollute another. For example, in New York City prosecutors refuse to divulge the contents of wire communications intercepted pursuant to State court orders because of the Federal proscription but do utilize evidence obtained by bugging pursuant to court order. In other sections of New York State, however, prosecutors continue to introduce both wiretapping and eavesdropping evidence at trial.

Despite the clear Federal prohibition against disclosure officers have been undertaken, although prosecutions of of wiretap information, no Federal prosecutions of State

State officers under State laws have occurred.

One of the most serious consequences of the present state of the law is that private parties and some law enforcement officers are invading the privacy of many citizens without control from the courts and reasonable legislative standards. While the Federal prohibition is a partial deterrent against divulgence, it has no effect on interception, and the lack of prosecutive action against violators has substantially reduced respect for the law.

The present status of the law with respect to wiretapping and bugging is intolerable. It serves the interests neither of privacy nor of law enforcement.) One way or the other, the present controversy with respect to electronic surveillance must be resolved.

Subcomm. on Criminal Laws and Procedures of the Sen. Comm. on the Judiciary, 89th Cong., 2d Sess., at 34 (1966).

The Commission recommends:

Congress should enact legislation dealing specifically with wiretapping and bugging.

All members of the Commission agree on the difficulty of striking the balance between law enforcement benefits from the use of electronic surveillance and the threat to privacy its use may entail. Further, striking this balance presents important constitutional questions now pending before the Supreme Court in Berger v. New York,139 and any congressional action should await the outcome of that case.

All members of the Commission believe that if authority to employ these techniques is granted, is must be granted only with stringent limitations. One form of detailed regulatory statute that has been suggested to the Commission is outlined in appendix C, infra.140 All private use of electronic surveillance should be placed under rigid control, or it should be outlawed.

was committed as part of a continuing illegal business in which the convicted offender occupied a supervisory or other management position.

This will make it possible to distinguish, for example, between the streetworker in a gambling operation and an office supervisor or higher management person.

There must be some kind of supervision over those trial judges who, because of corruption, political considerations, or lack of knowledge, tend to mete out light sentences in cases involving organized crime management personnel. Consideration should therefore be given to allowing the prosecution the right of appeal regarding sentences of persons in management positions in an organized crime activity or group. Constitutional requirements for such an appellate procedure must first be carefully explored.

APPEALS FROM SUPPRESSION ORDERS

141

The other members of the Commission have serious doubts about the desirability of such authority and believe that without the kind of searching inquiry that would result from further congressional consideration of electronic surveillance, particularly of the problems of bugging, there is insufficient basis to strike this balance against the interests of privacy.

Matters affecting the national security not involving criminal prosecution are outside the Commission's mandate, and nothing in this discussion is intended to affect the existing powers to protect that interest.

SENTENCING

Criminal statutes do not now authorize greater punishment when the violation was committed as part of an organized crime business. The Model Sentencing Act creates a separate category for such violations. It provides for 30 years' commitment of any felony offender who is so dangerous that the public must be protected from him and whose felony was committed as part of a continuing criminal activity in concert with one or more persons. 142 The Model Penal Code also contains separate provisions for heavier sentences of defendants connected with organized crime.113

The Commission recommends:

Federal and State legislation should be enacted to provide for extended prison terms where the evidence, presentence report, or sentence hearing shows that a felony

15 No. 615, U.S., April 6, 1967.

110 Blakey, Aspects of the Evidence Gathering Process in Organized Crime Cases: A Preliminary Analysis 106-113, printed as appendix C of this volume. 11 No. 615, U.S., April 6, 1967.

112 NAT'L COUNCIL ON CRIME & DELINQUENCY, MODEL SENTENCING ACT art. 3, $5(b), (c) (1963). See also Rector, Sentencing the Racketeer, 8 CRIME & DELINQUENCY 385-89 (1962).

13 Article 7, § 7.03 (Proposed Official Draft 1962) provides in part: "The Court may sentence a person who has been convicted of a felony to an extended term of imprisonment if . . .

The Commission's recommendation 11 that prosecutors be permitted to appeal trial court orders suppressing evidence is particularly important in organized crime cases, where so much investigative and prosecutive time has expended, and where evidence gathering is extremely difficult. Allowing appeals would also help overcome corrupt judicial actions. In gambling cases, particularly, arbitrary rejection of evidence uncovered in a search is one method by which corrupt judges perform their services for organized crime.

PROTECTION OF WITNESSES

No jurisdiction has made adequate provision for protecting witnesses in organized crime cases from reprisal. In a few instances where guards are provided, resources require their withdrawal shortly after the particular trial terminates. On a case-to-case basis, governments have helped witnesses find jobs in other sections of the country or have even helped them to emigrate. The difficulty of obtaining witnesses because of the fear of reprisal could be countered somewhat if governments had established systems for protecting cooperative witnesses.

The Commission recommends:

The Federal Government should establish residential facilities for the protection of witnesses desiring such assistance during the pendency of organized crime litigation.

After trial, the witness should be permitted to remain at the facility so long as he needs to be protected. The Federal Government should establish regular procedures to help Federal and local witnesses who fear organized crime reprisal, to find jobs and places to live in other parts of the country, and to preserve their anonymity from organized crime groups.

"(2) The defendant is a professional criminal whose commitment for an extended term is necessary for protection of the public.

"The Court shall not make such a finding unless the defendant is over twenty-one years of age and:

"(a) the circumstances of the crime show that the defendant has knowingly devoted himself to criminal activity as a major source of livelihood; or "(b) the defendant has substantial income or resources not explained to be derived from a source other than criminal activity."

FREE

CRIME IN A the Administration of

14 General Report of this Commission, THE CHALLENGE OF SOCIETY, ch. 5 (1967); Report of the Task Force on Justice 117-48.