Journal of Criminal Law and Criminology Volume 48 | Issue 4 Article 8 1958 Legal Methods for the Suppression of Organized Crime (A Symposium) Arthur Buller Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Arthur Buller, Legal Methods for the Suppression of Organized Crime (A Symposium), 48 J. Crim. L. Criminology & Police Sci. 414 (1957-1958) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. CRIMINAt LAW CASE NOTES AND COMMENTS Prepared by students of Northwestern University School of Law, under the direction of the student members of the Law School's Journal Editorial Board. Arthur Buller, Editor-in-Chief Arthur Rollin, Associate Editor Marvin Aspen Jay Oliff Malcolm Gaynor Louis Sunderland Ronald Mora Howard Sweig LEGAL METHODS FOR THE SUPPRESSION OF ORGANIZED CRIME (A SYMPOSIUM) Organized crime is a vital problem in the "The Use of Equitable Devices to Suppress field of law enforcement. Because of the nature Organized Crime", will consider the mechanics of its various forms of activity, the suppression and availability of the use of the injunction and of organized crime presents difficulties not other equitable remedies where the usual legal ordinarily encountered in other areas of criminal remedies have proved inadequate. The fifth and conduct. In this and subsequent issues of the concluding paper, "Indirect Control of Organized Journal, a series of articles will examine these Crime Through Liquor License Revocation", will problems and the legal remedies available for examine this tactic as a substitute for direct their solution. criminal prosecution. The existence of organized crime in any com- Warren L. Swanson* munity requires the co-operation of the local Legal Remedies Against Corrupt Law police or prosecutor. The legal methods for the prosecution or removal from office of such cor- Enforcement Officers rupt officials will be discussed in the first paper ARTHUR BULLER of the present symposium: "Legal Remedies The chief source of revenue for organized Against Corrupt Law Enforcement Officers". crime is gambling.' This form of vice requires Where the primary law enforcement officials public patronage; for this reason, the police fail to perform their duties, effective methods of generally are aware of the existence of such enforcement must be found. This problem will illegal activity.2 The public will not patronize be analyzed in the second and third papers: gambling houses unless there is some assurance "The Investigative Function of the Prosecuting of freedom from interference by the police. Attorney"; and "Circumventing the Corrupt * Editor-in-Chief, Criminal Law Case Notes and Prosecutor: Supercession by the State Attorney General and the Appointment of a Special Comments, 1956-57. Now Teaching Associate, The Prosecutor." Northwestern University School of Law. papers published as part of this symposium were corruption, Apart from the problem of official prepared under Mr. Swanson's direction. the usual forms of criminal prosecution often 'Senate Special Committee to Investigate Or- have been found ineffective in permanently ganized Crime in Interstate Commerce, Third eliminating organized gambling and vice. Interim Report, S. REP. No. 307, 82d Cong., 1st Alternative devices must therefore be employed. Sess.2 2 (1951). The fourth of the symposium paper, entitled Id,at 184. 19571 CRIMINAL LAW CASE NOTFS AND COMMENTS 6 Consequently criminal elements have centered the laws. The actual application of this discre- their activities mainly in those areas in which tion to a particular case is controlled neither by they have achieved, or are able to achieve, law nor by the courts;7 the prosecutor selects official immunity from legal process. The basic the person and the time to prosecute.8 problem thus presented is how to sever this 6 An example of the difficulty corrupt connection betweep law enforcement encountered by the courts in trying to pin down the legal meaning of officers and organized crime. the word "discretion" is found in State v. Wallach, The corrupt official, from the public prose- 353 Mo. 312, 182 S.W.2d 313 (1944). The court cutor to the policeman on the beat, is subject to there ascribed to the prosecutor the discretion to penal sanctions for misconduct in office, a "act officially in such circumstances, upon each criminal offense, and to a civil removal action separate case, according to the dictates of his own where he has failed to perform the obligations judgment and conscience uncontrolled by the of his office. The fundamental obligations of law judgment and conscience of any other person, such enforcement officials have been divided into discretion to be used in accordance with established two classifications: discretionary duties and principles of law... 2' Query, if the prosecutor ministerial duties, with different standards for must act in accordance with "established prin- ciples of law," is it really true that he can act upon each. A determination of the remedies available each case guided by his own judgment and con- against a particular official, including the prose- science and without outside influence? cutor himself, requires a consideration of the The Wallach case highlighted another difficulty character of his functions, i.e., whether they are in this matter of discretion. The court said that the discretionary or ministerial. prosecutor may in good faith (but not arbitrarily) exercise his discretion with respect to when, how and NATURLE OF = PROSECUTOR'S OFFICE against whom to initiate criminal proceedings. When is performance, or the lack of it, in good Since the foremost obligation of the prose- faith; or the converse, when does it indicate bad cutor is to enforce the law through prosecution faith, or arbitrariness? of its violators, if the criminal elements can Where a prosecutor was shown to have failed control his office, they are in a position to completely in commencing any prosecution for 3 frustrate such enforcement. Under the various violation of gambling laws, even after having full state statutes, the prosecutor theoretically information about the conditions, it was held that should use the machinery of his office whenever he had been guilty of bad faith and arbitrariness in he has reason to believe that crimes have been the use of his discretion. The court found that "He committed by particular individuals.4 As a had made no effort whatsoever to perform his practical matter, however, his obligation to duties as prosecuting attorney" and that he "never initiate prosecution is discretionary. 5 In other reached the point of even pretending to exercise discretion." McKittrick v. Wymore, 345 Mo. 169, words, the prosecutor, in the exercise of his 132 S.W.2d 979, 986 (1939). In McKittrick v. general duty of prosecuting violators of the law, Graves, 346 Mo. 990, 144 S.W.2d 91 (1940), it was has a very broad, vaguely limited discretion to held that the prosecutor-defendant wilfully and un- pursue that course of action which seems right lawfully failed to properly enforce liquor control to him under the circumstances. His discretion laws, where there was continuous long existing apparently is not subject to review so long as it conditions of flagrant and notorious gambling, is founded upon a good faith effort to enforce prostitution, and illegal sale of intoxicating liquor, frequently commented upon by the press. The 3See Ploscowe, ORGANIZED CRIME A.-NDLAW prosecutor had made no attempt to prosecute, ENFORcEMENT, 217 (1952). claiming that, since the police did not attempt any 4 Id, at 218. enforcement, he was excused from doing so. 5 See People v. Pollach, 25 Cal. App. 440, 77 7See, e.g., Leone v. Fanelli, 87 N.Y.S.2d 850 P.2d 885 (1938); United States v. Thompson, 251 (1949). In the Fandli case, an attempt was made to U.S. 407 (1920); United States v. Brokaw, 60 F. compel the local district prosecutor to "forthwith Supp. 100 (S.D. Ill. 1945); District of Columbia v. and diligently prosecute the indictment against one Buckley, 128 F.2d 17 (D.C. Cir. 1942). Frank Smith ...... The court pointed out that it was CRIMINAL LAW CASE NOTES AND COMMENTS (Vol. 48 In formulating his decision whether or not to the strongest possible case. A problem is pre- prosecute, the prosecutor may be influenced by sented, however, where the prosecutor has one or more of the following considerations: merely a complaint that a crime has been com- Will prosecution be a waste of time? Will it be mitted, or that some individual or group is unduly expensive to the state? What are the carrying on a particular form of criminal ac- chances of obtaining conviction? Are there tivity. The question thereby presented resolves extenuating circumstances? Will there be un- itself into two alternatives: 1) Is the prosecuting favorable political reverberations, both as to attorney only a lawyer for the state who pre- himself and his party or associates? Was the law sents to a court or grand jury the evidence ob- that was violated an "undesirable" one? If the tained by others concerning the crime and the offender is a friend, the prosecutor may feel an alleged guilty?; or 2) Does he have the broader indictment a poor way to repay friendship.9 duty of independently gathering the evidence?" Though not all of these considerations are Unfortunately, most state statutes fail to assign proper elements of discretion, they are of such a to the prosecutor any precise duties in the insti- personal nature as motivating factors that their tution of criminal investigations.