tion: inspiring aspiration for membership, training for membership, and selection for membership. Some recruits are deliberately sought out and trained on the assumption, implicit or explicit, that without the induction of youngsters the organization will founder. Other recruits, usually mature college graduates, are sought out because they possess the expert skills needed for modern large-scale business operations. Both kinds of recruits. must now remain for years in a kind of probationary status because inducting them into a "family" might change the balance of power between "families," thus disturbing the peace.

The most successful recruitment processes are those which do not appear to be recruiting techniques at all. These are the processes by which membership becomes highly desirable because of the rewards and benefits the prospective members believe it confers on them. Some boys grow up knowing that it is a "good thing" to belong to a certain club or to attend a certain university, and they know it is a "good thing" because men they emulate have or have had membership. Other boys grow up knowing that it is a "good thing" to become a member of a criminal "family," for the same reason. Because the activities of the cartel and confederation are illegal, it is necessary for aspirants to abandon some of the values of conventional society as they learn to aspire to membership. They do so because they grow up in social situations in which the desire for membership comes naturally and painlessly. It is still an honor to be taken into the society of "stand-up guys," and, moreover, not all the best things in life are free.

It has long been known that in a multi-group type of society such as that of the United States, conflicting standards of conduct are possessed by various groups. Discovery of the processes leading to the invention of criminal subcultures which conflict with the standards of conventional groups is now the focus of the research of many social scientists. It has for some time been acknowledged that the condition of conflicting standards, which anthropologists and sociologists call "normative conflict," is not distributed evenly through the society. Simply stated, persons growing up in some geographic or social areas have a better chance than do others to come into contact with norms and values which support legitimate activities, in contrast to criminal activities, while in other areas the reverse is true. Individuals who come into intimate association with legitimate values will use legal means of striving for "success," while individuals having such associations with criminal values will use illegitimate means. McKay has referred to the acquisition of desires for membership in either non-criminal or criminal groups as an "educational" process, and he has pointed out that in many neighborhoods alternative educational processes are in operation, so that a child may be educated in either conventional or criminal means of achieving success.5+

Martin has referred to these alternative processes for education in the values of conventional society and the values of the society of organized crime by reporting that in some neighborhoods of South Brooklyn boys grow up

Henry D. McKay, "The Neighborhood and Child Conduct," Annals of the American Academy of Political and Social Science, 261: 32-42, January, 1949.

under two "flags." One is the flag of the United States, symbolizing conventional institutions, traditions, and culture, and the other is the flag of organized crime, symbolizing traditions quite different from conventional American ones.55 For syndicate members, recruitment of boys who grow up under the "syndicate flag" is no real problem, for the boys have in a sense recruited themselves. Helpful, however, is what Martin calls the "legend" of the importance of syndicate men in political, economic, and social affairs. A story about the virtues of the members of a social group need not be true in order to be effective; it can be wholly false or it can be an elaboration of some incident that occurred in the past, as most legends are. A "stand-up guy" can be made into a revered hero, even if that "stand-up guy" also kills and "works over" his devoted subjects. A powerful illicit cartel can, similarly, become so respectable, once it has undermined legitimate political and economic processes, that aspirants do not even have to experience any psychological conflict as they transfer their allegiance from conventional society to criminal society in order to achieve its economic rewards.

In his testimony before the McClellan Committee, Mr. Valachi argued, in effect, that in the 1930's the boys who were to become recruits to Italian-Sicilian "families" of organized criminals trained themselves. As they participated in boys' criminal activities such as burglary, they were observed by the syndicated criminals in the neighborhood, who paid special attention to the behavior of the boys when they were jailed. A boy who revealed nothing about himself or his criminal associates was a likely candidate for membership; other boys were not. Thus, the recruits trained themselves to adhere to a code which put them under the domination of the recruiters. This process is still in operation. It is old fashioned and inefficient, however. Syndicate members now deliberately set out to help boys obtain skills that will be valuable to the syndicate. These include skill in crime and personal values about silence, honor, and loyalty— values which make them controllable, as ex-convicts who cannot find legitimate employment are controllable. On the streets of Brooklyn the important attribute sought is the orientation of the "stand-up guy":

. . He

Some hoodlums are assigned to recruiting learns which kids are good prospects and which are not. Like a telephone company public-relations man enrolling Amherst seniors or a California airplane plant personnel manager looking over graduate engineers from M.I.T., he wants the best and the smartest. He also wants the strongest, the meanest, and the most vicious. He starts testing boys at sixteen or seventeen. They are put into teams of six, eight, or ten for training. There are rules to be followed by the trainees and rewards to be won. Mob injunctions begin with omerta, the heart of the syndicate code of honor. Silence on pain of death; say nothing, know nothing. Drink if you wish, but don't get drunk. Avoid narcotics; they are all right to sell, no good to use. The rewards

Op. cit., supra note 36, at p. 6u.

include money, status, and release from the yoke of morality... Eventually, the mob men plan burglaries for the recruits. There are techniques to be taught. 56

Nowadays, being a "stand-up guy" and being skilled in the perpetration of lower-class crimes like robbery and burglary is not enough, however. 57 One must have the business skills of a purchasing agent, an accountant, a lawyer, or an executive. No longer do these skills come "automatically" as one climbs the ladder from the shop floor to the executive office of legitimate business. Neither do they come "automatically" in organized crime if slum boys are recruited because they are "honorable" and skilled in burglary. College training is needed. "Family" members are now sending their sons to college to learn business skills, on the assumption that these sons will soon be eligible for "family" membership. One particular college has in its student body an over-representation of the sons and other relatives of "family" members. Accounting and business administration are the favorite major subjects of the males.

Not everyone who wants to participate in the businesses conducted by crime syndicates can do so. One cannot "just decide" to become a "family" member, or to participate in business affairs controlled by a "family," any more than he can “just decide” to become a professional baseball player, a policeman, or a banker. His desires must be matched by his competence, and by the desires of those who control membership in the profession he wants. Until recently, "competence" was judged by estimates of loyalty and a certain toughness made evident in the condition of being "right." But the procedures for selecting men for highly desired positions are always more stringent than those for positions which are less desirable. Martin tells how the selection process operates on the streets of South Brooklyn:

From a safe distance the mob instructors observe the operation [of a burglary] and prepare for a subsequent critique of the job... A team that shows capacity for avoiding trouble is allowed eventually to operate on its own, though it must still get mob clearance on each job. Frightened kids are weeded out, tougher ones move closer to the day when they join the syndicate and achieve the good life.58

Again we point out that the skills now needed and sought are not merely those necessary to "avoiding trouble." Relatively unskilled men will always be needed to conduct street operations, and these men must of necessity be honorable and, thus, exploitable. But because organized crime is becoming increasingly respectable there is less "trouble" to avoid. The pattern of authority can therefore shift from "rank" to "expertise." The man who relies alone on the old fashioned virtues of honor and obedience will not go far in the organized crime of the future, because these virtues are not essential when the organization is so powerful that it need not be kept Identive power is still prevalent, but we are wit

secret.

nessing a shift from respect for a patriarch to respect for a "stand-up guy," regardless of age. Respect for men of rank is still an important control device, but the deference now seems to be as much to a man of wealth as to "the old man," as much to a leader of a business as to a governor.

As organized crime has gained power and respectability by moving out of bootlegging and prostitution and into gambling, usury, and control of legitimate businesses, the need for secrecy and security has decreased and the need for expertise has increased. If this trend continues, the pattern of extreme totalitarian control will change. Even now, neither the multimillionaire Boss nor the millionaire Soldier is able to handle alone the complicated problems of business organization and finance. In criminal life as in non-criminal life, fewer and fewer jobs are simple and routine. Soon there will be no place in the higher levels of organized crime for high school dropouts. As the technical competence of even lower-echelon members increases, decision-making will be decentralized, and individual freedom of action will expand. There already are signs that each member's frontiers of action are expanding. They probably will continue to expand as organized crime continues to move away from profit and control by violence and toward profit and control by fraud.

Perhaps, however, we should expect a new wave of violence in organized crime before the lines between membership and non-membership become blurred by the increasing need for workers with the kind of business skills which only legitimate society can provide. As the shift to the authority of the expert occurs and, concurrently, as decision-making is decentralized, opportunities for the present unskilled participants to achieve positions of power will decrease.

In legitimate life, government officials, and others, are urging that each individual citizen must be given his rights as a member of society and as a human being, to justice, to a living wage, to human dignity. Most respectable citizens are now demanding those rights, primarily in the form of opportunities to achieve, and they are rejecting governments which will not or cannot make the opportunities available. We expect that within the next decade the disrespectable citizens who are the underlings of organized crime will similarly demand, from the unofficial governments that rule them, their opportunities to achieve. We can expect them to grow tired of a system which denies equal opportunities to low-status personnel, even if everyone in the system is relatively rich. If these men begin demanding their rights we will witness in the ranks of organized crime rebellions comparable in principle to the current rebellions of Negroes.

A PROPOSAL FOR STUDY

One who tries to accumulate data on organized crime experiences somewhat the same frustrations as does a policeman seeking to eliminate it. Not the least of these is the frustration stemming from the fact that "organized crime" is not against the law. What is against the law

58 Supra note 36, at p. 62.

is: s: smuggling, selling narcotics and untaxed liquor, gambling, prostitution, usury, murder, conspiracy, etc. Careful studies of "homicide in America" can be undertaken because police and other governmental agencies routinely maintain files on homicide, inadequate as they may be for research purposes. But attempts to conduct comparable studies of "organized crime in America" will necessarily lead to frustration because, not being a legal category, there is no way routinely to assemble information about the subject. Even the "Organized Crime" sections of the Department of Justice, of the Federal Bureau of Investigation, and of large metropolitan police departments must be concerned more with accumulating evidence that an individual violated a law than with the structure and functioning of any businesses or other organizations in which that individual participates. In the last analysis, what law-enforcement agencies want, and need, to know is that a suspect's behavior has been in violation of a specific criminal law. Whether an individual's specific crime is later described in social terms as "organized crime," "property crime," "dishonorable crime,' "nasty crime," or some other type of crime not specified in the criminal law is not of much relevance to them.

One who would study an illicit cartel or even an illicit small business must, then, surmount the fact that illicit businesses are not, as such, illicit. Except when conspiracy statutes are violated, it is not against the criminal law for an individual or group of individuals to rationally plan, establish, develop, and administer a division of labor for the perpetration of crime. None of the laws pertaining to legitimate businesses or cartels apply. This is more than a "problem of definition." It is a fact of life which permits directors of criminal business organizations to remain immune from arrest, prosecution, and imprisonment unless they themselves violate specific criminal laws such as those prohibiting the sale of narcotics. It is the problem of organized crime.

Stated in different terms, if "organized crime" is to be controlled, legislatures must in the long run be able to define it as precisely as burglary or larceny or murder are now defined in criminal statutes. Once defined, the behavior involved can be prohibited by criminal law, as behavior defined as burglary is prohibited. Law-enforcement agencies then could take effective steps to bring offenders to trial for committing organized crime, not merely for committing the crimes that are organized, such as gambling. Currently, even experienced lawenforcement officers disagree on definitions and, accordingly, on the incidence of organized crime in their own communities. If one policeman tells another that he has been working on a case of "organized crime" he might be understood as saying that he has been investigating a forgery or shoplifting ring, a troupe of pickpockets, or even a juvenile gang, although he means to say that he has been investigating illicit gambling operations in his community or even that he has been gathering evidence regarding a conspiracy among "family" leaders to commit murder.

Numerous attempts to define the phenomenon in social and behavioral terms, rather than in legal terms, have been made. These definitions have been useful in making decisions about the allocation of law-enforcement personnel and resources, but their authors have not squarely faced the problem of making participation in "organized crime" a crime. For example, if a police chief establishes a vice squad or even an intelligence division, then the criminal activities processed by this unit are likely to be defined, for administrative purposes, as "organized crime." On this ground, police departments with both a narcotics division and an organized crime division are likely to operate on the assumption that the illegal distribution of narcotics is not organized crime.

What is needed is detailed and precise specification, by social scientists, law-enforcement personnel, and legislators working together, of the formal and informal structures of illicit governments and businesses. This will not be an easy task. Defining illicit businesses in organizational terms will be at least as difficult as identifying the formal and informal structures of large corporations. But not until this task has been accomplished will legislative bodies be able to proceed with the process of (a) specifying that a person committing a crime while occupying a position in an illicit division of labor shall be subject to different procedures in criminal law administration than a person committing the same crime while not participating in such a division of labor, or (b) declaring development of and participation in such divisions of labor a violation of criminal law. We are not unduly optimistic. Given the scarcity of hard facts about the organization of organized crime, even five researchers working together over a period of five years might not accomplish the task.

The prior efforts of social scientists to define a category of crime in non-legal terms are not very helpful in defining organized crime precisely enough to outlaw the category of behavior itself, for two reasons. First, one who would define organized crime must be concerned with formal and informal structure because that is what "organization" means. This problem does not confront persons attempting to define other types of crime. Second, as our analysis of the organized criminal's behavioral code has shown, the structure of organized criminal businesses cannot readily be discussed without reference to the attitudes of the criminals involved. The rules, agreements, and understandings that form the foundation of social structure appear among individual participants as attitudes. As a criminal participates in a division of labor rationally designed to maximize the profits from crime, he assumes anti-legal attitudes of such character that it is possible to say that he is engaged in a "continuous" or "self-perpetuating" conspiracy. Whether a person is properly labelled an "organized criminal" depends in part on whether he exhibits these attitudes.

The sociological work on the definition of "whitecollar crime" can be used to illustrate both the advantages and problems of dealing with social categories of crime

256-177 O - 67 - 5

rather than with the specific crimes involved. Sutherland defined white-collar crimes as crimes committed by persons of respectability and high social status in the course of their occupations. 59 This definition has had an important effect on criminological theory because it called attention to offenders and offenses frequently overlooked by persons studying crime. It was customary, for example, to attribute criminality to social and personal pathologies, but invention of the "white-collar crime" concept challenged this kind of theory by identifying a category of criminals who are "persons of respectability and high social status," and, hence, not the victims of personal and social pathologies. But because the concern was for the social status of offenders, rather than for a type of crime such as fraud or abortion (both sometimes committed by persons of "respectability and high social status" in the course of their occupations), an accurate measure of the frequency of white-collar crime is impossible. Statistics and other data are not routinely compiled on "white-collar crime" by law-enforcement agencies, or even quasi law-enforcement agencies such as the Interstate Commerce Commission, because "whitecollar crime" is not itself an offense. The data compiled are data about specific offenses such as fraud, abortion, and violations of various statutes regulating business and professional practices, not about "whitecollar crime."

Another illustration of the advantages and disadvantages of combining specific types of crimes into social categories is found in Cressey's work on "criminal violation of financial trust.' 99 60 This term was invented when it was discovered, in connection with a study of embezzlement, that some men committed to prison for "embezzlement" had in fact committed some other offense, and that some men committed for forgery, larceny by bailee, and confidence game had in fact committed embezzlement. The new category avoided the error of extending a legal concept beyond its legal meaning (e.g., calling all the behavior "embezzlement"), and at the same time it provided a rigorous definition of the behavior being studied. But, like "white-collar crime," the fact that the category is not a legal entity makes it all but impossible to assemble data on the incidence of the criminal behavior included in the category.

The problem of defining, studying, and then controlling organized crime is not as simple as the problems encountered by Sutherland and by Cressey. Organized criminals do not have identifying personal characteristics as do white-collar criminals. Organized crimes, ranging from gambling to murder, do not have a characteristic in common, as do crimes involving the violation of positions of financial trust which were accepted in good faith. The behavior in which we are interested involves some but not all criminal conspiracies, some but not all cases of illegal gambling, some but not all cases of assault and murder, some but not all cases of prostitution and bootlegging, some but not all cases of burglary, larceny and robbery, and some but not all cases of almost any other kind of crime.

50 Edwin H. Sutherland, White Collar Crime (New York: Dryden Press, 1949). 60 Donald R. Cressey, Other People's Money (Glencoe, Ill. The Free Press. 1953), pp. 19-22. See also Jerome Hall, "Some Basic Questions Regarding Legal Classifications for Professional and Scientific Purposes," Journal of Legal Education, 5: 329-342, 1953.

It is helpful to specify that an organized crime is any crime committed by a person occupying a position in an established division of labor designed for the commission of crime. This means that the organized criminal's activities are coordinated with the activities of others by means of rules, in the same way that the activities of a cashier are coordinated with the activities of a stockroom clerk, a salesperson, and an accountant in a retail firm. The organized criminal, thus, has his criminal obligations, duties, and rights specified for him in somewhat the same way that a public employee's obligations, duties and rights are specified in a "job description" and other sets of rules. He occupies a position in a set of positions which exist independently of any current incumbent.

This preliminary definition of the "organized crime" category does not differentiate among the positions existing in the division of labor used by small working groups of criminals, in the division of labor used by small illicit businesses, and in the division of labor characterizing illicit cartels. The deficiency must remain until much more is known about the formal and informal structures of each of these kinds of criminal organizations. Before "organized crime," as such, can be outlawed, we must be able to identify in some detail the division of labor to be prohibited. Examination of the proceedings of a recent series of meetings of some of the nation's leading authorities on organized crime provides some important clues in regard to the division of labor, or in other words the formal and informal structure, of the relevant organizations. The members of these Oyster Bay Conferences on Combating Organized Crime seem to have paid more attention to the attempt to define "organized crime” than to the attempt to identify the structure of illicit organizations. Nevertheless, they did identify three critical positions in the division of labor of America's illicit cartel and confederation. One of these is the position of "fixer” or Corrupter, the second is the position of Corruptee, and the

third of Enforcer.

The members of the Conference Group did not use the terms "corrupter," "corruptee" and "enforcer." In one publication they listed the following characteristics of the "most highly developed forms" of organized crime: (1) Totalitarian organization. (2) Immunity and protection from the law through professional advice, or fear, or corruption, or all, in order to insure continuance of their activities. (3) Permanency and form. (4) Activities which are are highly profitable, relatively low in risk, and based on human weakness. (5) Use of fear against members of the organization, the victims and, often, members of the public. (6) Continued attempt to subvert legitimate government. (7) Insularity of leadership from criminal acts. (8) Rigid discipline in a hierarchy of ranks.61

In another publication, the Conference Group made the following seven statements about the characteristics of the type of organization which they are working to combat: (1) Organized crime is a business venture. (2) The principal tool of organized crime is muscle. (3) Organized crime seeks out every opportunity to corrupt or have influence on anyone in government who can or

61 Combating Organized Crime, Report of the 1965 Oyster Bay, New York, Con. ferences on Combating Organized Crime (Albany: Office of the Counsel to the Governor, 1965), pp. 19-24.

may in the future be able to do favors for organized crime. (4) Insulation serves to separate the leaders of organized crime from illegal activities which they direct. (5) Discipline of a quasi-military character. (6) An interest in public relations. (7) A way of life in which members receive services which outsiders either do not receive or receive from legitimate sources.62

These lists of identifying items do not characterize organized crime in all of its manifestations, and they are not unique to organized crime. Moreover, some of them refer to the attitudes and values of participating members, some to modes of operation, some to objectives, and some to the divisions of labor, the structure, of illicit businesses. The latter is of most relevance, because, as indicated, structure means organization, and information about organization is needed for control. By emphasizing "immunity," "protection," "corruption," "low risk," etc., the Conference Group suggested that two positions in the structure of illicit business are those of Corrupter and Corruptee. While some small working groups of criminals also possess these positions, such groups can operate without them for long periods of time. The business of gambling and selling illicit products and services cannot. The position of "Corrupter" is as essential to an illicit business as the position of "negotiator" is to a labor union.

Next, the Conference Group's stress on "totalitarian organization," "fear," "rigid discipline," and "muscle" suggests that the structure of criminal businesses necessarily contains a position for Enforcer. We know of no other form of coordinated American criminality that contains this position. As we showed earlier, an Enforcer is a penal administrator analogous to a prison warden or the man charged with making the arrangements for imposing the death penalty. We also showed that the presence of a position for an Enforcer gives the illicit organization the character of government rather than of business. Here, we only emphasize that the divisions of labor for small working groups of criminals do not contain the position of Enforcer. The members of a pickpocket troupe or a check-passing ring are likely to take punitive action against any member who holds out more than his share of the spoils or who betrays the troupe to the police. The members of a gypsy band that engages in a wide variety of criminal activities are likely to censure, condemn, and even ostracize a member who cheats his fellows or who informs the police about their crimes. But none of these groups has been rationally organized in advance to enforce specific rules prohibiting dishonesty and informing to the police. Accordingly, they do not recruit persons to, or train persons for, a well-established position of Enforcer. We believe that only the illicit division of labor customarily called "organized crime" contains a position to be occupied permanently or temporarily by persons whose duty it is to maintain organizational integration by making arrangements for the maiming and killing of members who do not conform to organizational "law."

If the positions of Corrupter, Corruptee, and Enforcer are in fact essential to the operation of the business of

63 A Theory of Organized Crime Control, op. cit., supra note 4, at pp. 18-21.

gambling, prostitution, usury, distribution of narcotics and untaxed liquor, and extortion, then identification of a defendant as an "organized criminal" becomes clearly a matter of identifying the structure of the illicit business in connection with which he has committed his crime. An organized crime becomes any crime committed by a person occupying, in an established division of labor, a position designed for the commission of crime, providing that such division of labor also includes at least one position for a Corrupter, one position for a Corruptee, and one position for an Enforcer. We are still a long way from the precision necessary to make such specification in a statute, and we therefore are a long way from effective legislative control of what has traditionally been called "organized crime."

Our view is that an "organized criminal" is one who has committed a crime while occupying an organizational position for committing that crime. This view has been taken in a round-about way by one of the nation's leading legislative experts on organized crime, Senator John L. McClellan. His position is found in Senate Bill 2187, co-authored with Senator Frank J. Lausche and introduced in the 89th Congress on June 24, 1965-“A bill to Outlaw the Mafia and Other Organized Crime Syndicates." Despite its title, the bill is designed to outlaw membership in specified types of organizations. Among the listed activities of these organizations, significantly, are the tendencies to corrupt and coerce. Although Attorney General Katzenbach raised questions about the Constitutionality of the bill, its theoretical value should not be overlooked. The preamble to the bill—“Findings and Declaration of Fact"-attempts to describe in precise legal terms the characteristics of the organizations in which membership is outlawed. The attempt flounders because there is confusion of organizational structure, organizational goals, and values of members of the organization. Nevertheless, the second, fourth and fifth points outlined below validate our argument that description of organizational structure, including description of positions of Corrupter, Corruptee, and Enforcer, are essential to understanding and controlling organized crime.

First, the preamble defines the objectives of the organizations in which membership shall be a felony: "There exist in the United States organizations, including societies and syndicates, one of which is known as the Mafia, which have as their primary objective the disrespect for constituted law and order."

Second, the preamble describes the types of crime the members of the organizations perpetrate as they express their disrespect for constituted law and order. These are the types of offenses customarily called "organized crime": "The members of such organizations are recruited for the purpose of carrying on gambling, prostitution, traffic in narcotic drugs, labor racketeering, extortion, and commercial type crimes generally, all of which are in violation of the criminal laws of the United States and of the several States."

Third, the preamble acknowledges that members of such organizations share a code of conduct, one essential part of which is secrecy about membership and about