Crim Law and Philos (2010) 4:183–196

DOI 10.1007/s11572-010-9089-2

ORIGINAL PAPER

Punishing Organized Crime Leaders for the Crimes

of their Subordinates

Shachar Eldar

Published online: 5 February 2010

 Springer Science+Business Media B.V. 2010

Abstract The intuition holding that an organized crime leader should be punished more
severely than a subordinate who directly commits an offence is commonly reflected in
legal literature. However, positing a direct relationship between the severity of punishment
and the level of seniority within an organizational hierarchy represents a departure from a
more general idea found in much of the substantive criminal law writings: that the severity
of punishment increases the closer the proximity to the physical commission of the offence.
This paper presents an analysis of the said intuition and attempts to ascertain its roots.
Rejecting both retribution and deterrence theory as valid explanations, it will be inferred
that the imposition of harsher punishment on organized crime leaders is properly based on
the multiplicity of offences for which they are responsible, and not the nature of their
involvement in any specific offence.

Keywords Organized crime
Criminal responsibility
Punishment

Retribution
Deterrence

The intuition holding that an organized crime leader should be punished more severely
than a subordinate who directly commits an offence is commonly reflected in legal liter-
ature. The positions of Helen Silving and Paul Robinson are particularly noteworthy in this
respect. Silving (1967 at 137) has proposed that the maximum penalty for the leaders and
organizers of a criminal act involving more than five offenders should be one and a half

An earlier draft of this paper was introduced to the joined criminal theory thinking group at Tel Aviv
University and Bar Ilan University, and to the research fellows at the Swiss Institute of Comparative Law,
Lausanne.

S. Eldar (&)
Ono Academic College, Kiryat Ono, Israel
e-mail: eshachhar@ono.ac.il

Present Address:
S. Eldar
Swiss Institute of Comparative Law, Lausanne, France

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times greater than the penalty for the direct perpetrators subordinate to them, and three
times greater than the penalty for the direct commission of the offence by a single
offender.1 Silving’s rationale for enhancing the punishment of the leader is intuitive: ‘‘No
doubt, the [leader]’s conduct is more reprehensible.’’ (ibid at 147) However, she does point
out that the follower who actually commits the crime may be just as dangerous as the
leader. According to Robinson (1987 at 49), the sentence of an organized crime leader for
an offence committed by his organization should be 40–90% greater than the penalty
imposed on the direct perpetrator; however, he provides no explanation for these
percentages.
The same intuition is reflected in judicial rulings, perhaps finding its most famous
expression in the trial of Nazi official Adolf Eichmann. In its judgment, the Jerusalem
District Court held that, ‘‘… in general, the extent of responsibility increases as we draw
further away from the man who uses the fatal instrument with his own hands and reach the
higher ranks of command….’’2
However, the intuition positing a direct relationship between the severity of punishment
and the level of seniority within an organizational hierarchy is certainly a departure from
the more general notion found in much of the criminal law writings: that the severity of
punishment increases the closer the proximity to the physical commission of the offence
(Sayre 1930 at 702; Fletcher 1978 at 636–7). This is the underlying basis of the laws of
complicity. Culpability is generally found in its most concentrated form in the person
intentionally pulling the trigger and fades with its derivative application to distant
accomplices. Accessories are demarcated from perpetrators and are considered secondary
participants because of their indirect role in the commission of the offence (Dressler 1985
at 102; Smith 1991 at 81–90; Fletcher 1998 at 188–903; Gardner 2008 at 437–40). And yet,
once an indirect perpetrator is defined as an ‘‘organizational leader,’’ the notion of miti-
gated punishment the further one is removed from the physical commission of the offence
is replaced with the opposite intuition, i.e., enhanced punishment the higher up the

1
According to Silving, with regard to organized criminal activity involving more than five offenders, the
penalty for followers would be double the normal punishment for the offence. This rule would not apply to a
spontaneous incident involving multiple participants, in which case the punishment of the leaders and the
instigators would be double the penalty specified for the offence, whereas the punishment for followers
would be reduced by a third.
2
CrimC (Jer) 40/61 Attorney General v. Eichmann, [1961] IsrDC 5722 at 3 (§ 197) [in Hebrew] (English
translation available at http://www.nizkor.org/hweb/people/e/eichmann-adolf/transcripts/Judgment). This
same intuition appears to have been improperly applied in a later judgment by the Israeli Supreme Court,
which took it to an extreme regarding the size of the ‘‘organization’’ involved. In CrimA 992/03 State of
Israel v. Sugaker (unreported, decided on July 15, 2003) [in Hebrew], a headstone setter at the Beersheba
cemetery, named Yitzhak Sugaker, offered to pay a thug the sum of NIS 5,000 to severely harm his
competitor. The thug accepted Sugaker’s offer but hired two other individuals for the purpose of carrying
out the attack. The Supreme Court held that Sugaker was the main offender and that the four persons
involved in the affair constituted a gang under his leadership. For this reason, the Court saw fit to impose a
harsher punishment on Sugaker than that imposed on the three other persons involved in the incident. It is
unclear to me what exactly led the Court to view Sugaker as the ‘‘leader of a gang’’ and not just a person
soliciting a crime (actually, in the ‘‘second degree,’’ i.e., soliciting a solicitor). Perhaps this was because the
case involved four parties instead of the usual two, namely, a solicitor and a solicitee. Perhaps it was due to
the stratification between them—Party A solicited Party B who, in turn, solicited Parties C and D. One way
or another, the interesting thing to note is that the Court’s choice to view Sugaker as the leader of a gang
resulted in an abandonment of the principle whereby the severity of punishment is a function of proximity to
the commission of the offence and led to an adoption of the intuition to treat the organizational leader more
harshly than the subordinate perpetrator.
3
Fletcher demonstrates that in various legal systems, the punishment for aiders and abettors is lower than,
or equal to—but never greater than—that of the direct perpetrator. See Fletcher 1998 at 188–90.

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organizational hierarchy and the further away from the direct commission of the offence.4
Can this reversal be explained in terms of retribution or deterrence theory?
One possible explanation could be based on the element of coercion, which many find
inherent to the ‘leader-solider’ relationship. When the physical perpetrator of the offence is
devoid of the capacity to choose whether to act, or when his capacity is seriously impaired
or diminished by coercion, it is often said that the indirect instigator of the offence bears
more moral and legal responsibility for its commission. Ashworth (2006 at 413), for
example, allows for ‘‘those, admittedly rare, cases in which the accomplice is no less
culpable, even more culpable, than the principal—as where a powerful figure orders a
weak-willed person to commit a certain crime.’’ A related argument may be framed in
Kantian terminology. The Kantian categorical moral imperative is to respect the autonomy
of fellow humans and not to make use of others merely as a means. Insofar as organized
crime leaders force their subordinates to do vice, they are violating the Kantian imperative
(perhaps in two separate ways, treating both victims and followers as mere means to satisfy
leaders’ goals) and should be subject to harsher retribution. There have been many per-
suasive attempts to integrate Kantian notions into the criminal law, indeed to establish the
Kantian imperative as a basis for proscribing criminal responsibility and punishment (Duff
1986; Hampton 1991; Fletcher 1993). However, this line of argument should be rejected on
empirical grounds, as its underlying assumption is negated by data that has been gathered
with regard to the activity of various criminal organizations. According to a large body of
research, criminal organizations do not rely on the coercion of subordinates and actually
operate in a manner similar to that of a legal enterprise (Smith 1978; Ruggiero 1996 at
25–45; Abadinsky 2006 at 14–34; Grennan and Britz 2006 at 19). The tendency of
members in criminal organizations to act within an organized framework is better
explained by emphasizing the positive incentives of organized activity than by theories
ascribing central importance to the element of coercion. Cressey (1969 at 232–43) has
shown that the activity of the Cosa Nostra relies on the positive incentives provided to
successful members, in accordance with a capitalistic approach. The organization’s hier-
archy facilitates mobility, and its members are motivated by personal ambition and a desire
to climb the organizational ladder. Similarly, Ianni’s (1974 at 81, 301–5) comprehensive
study of African–American crime syndicates at the beginning of the 1970s demonstrates
that these groups were also characterized by motivation through positive incentives, and
the relationship between the head of the organization and its members was similar to
employer-employee relations in a legal business. Reports on the use of intra-organizational
coercion within the Columbian Cali drug cartel demonstrate that coercive measures are
designed to prevent members from informing, embezzling, and violating the organization’s
operational procedures—and not to motivate them to commit offences (Lyman and Potter
2004 at 322). Other researchers (Grennan and Britz 2006 at 307) note that the success of
organizations notorious for ironclad discipline, such as the Japanese Yakuza, is also not
based on fear and coercion but rather on the atmosphere of competition generated between
organization members, since advancement within the ranks depends on their ability to
generate profit for the organization through personal initiative. This description is akin to
entrepreneurship, and indeed research shows that both rank and file in criminal

4
The general notion—of culpability increasing in direct proportion to the degree of proximity to the
commission of the offence—is applied only rarely in the context of criminal activity characterized by a
hierarchy and a division of labor. For such a rare example, see Alldridge 1996 at 251–4 (stating that the
extent of a retail drug dealer’s culpability—for any given amount of drugs sold to a user—is greater than that
of the wholesale dealer who supplied the retailer with the drugs, since the retail dealer is closer to the core of
the offence, i.e., an exploitation of the user’s weakness).

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organizations may act in entrepreneurial fashion (Abadinsky 2006). We may follow Maltz
(1994 at 31) in concluding that Discipline ‘‘does not play an important part in defining
organized crime.’’ As Maltz explains, ‘‘[w]hen all individuals in a group are armed and
have no compunction about using their weapons, which is one of the criteria for acceptance
by the group, then the ability to govern them must depend to a great extent on the consent
of the governed.’’ This is a far cry from reduced or diminished capacity on the part of the
subordinates. In short, the subordinate is not a puppet on the leader’s strings.
Another way of stressing this last point is by referring to private law notions of agency.
Fletcher (1978 at 656) made the following observation on the application of criminal vs.
private law: ‘‘In criminal schemes, the principal is the actor-on-stage, who makes the final
determination whether to commit the discrete criminal act. In an ongoing commercial
relationship between principal and agent, master and servant, the principal remains behind
the scenes and directs the activity of the agent’’. Can this private law principle be conjured
in the context of criminal law, allowing us to treat the leaders of organized crime as
principals? One obvious objection is the general inapplicability of private law doctrine to
the question of just desert in criminal liability. Another objection, and more to the point, is
that private law doctrine conditions the ascription of the ‘‘principal’’ label to the distant
master on the existence of a relationship based upon impairment of the agent’s autonomy.
As Fletcher goes on to note: ‘‘if [the actor-on-stage] enjoys sufficient autonomy, he is no
longer an agent, but an independent contractor.’’ And so, this line of argument is also
thwarted by the data concerning the relatively high autonomy experienced by those holding
subservient positions in criminal organizations.
Some pin the added culpability of the leader on the notion of interchangeability of
subordinates, meaning that seen in the eyes of the leaders, subordinates have no personal
importance and they can be discarded and replaced at will (Wilson 2002 at 198). This
notion should also fall in face of the aforementioned empirical data, suggesting that
membership in a criminal organization implies at least some measure of entrepreneurship.
Sure enough, even though subordinates act in an entrepreneurial fashion, they may still be
interchangeable in the eyes of leaders; but given the fact that subordinates act as auton-
omous moral agents, little or no moral implications ensue from the mere possibility of
interchangeability.5 It may be instructive to note that the notion of interchangeability has
no significant—if any—bearing on a philosophical discussion characterizing a topic related
to this paper, that of ‘‘dirty hands’’. For present purposes, the relevant aspect of the ‘‘dirty
hands’’ polemic is the subject of moral responsibility in the political sphere, where it is
widely maintained that a politician may direct others to perform acts that inflict moral
burdens that the politician would not be able to bear on his own (Williams 1981; Walzer
1974). In the words of Hugo in Jean-Paul Sartre’s play Dirty Hands (1948): ‘‘Anyone can
kill if not made to see what he is doing.’’ The distance maintained by politicians from the
actual realization of their directives keeps their hands relatively clean, i.e. relieves them of
some of the deontological blameworthiness attached to acts needed for such realization. It
matters not that the women and men in charge of manifesting these acts are inter-
changeable state officials—they maintain no distance from the morally objectionable acts
and dirty their hands completely.
The high level of autonomy experienced by subordinates in the commission of offences
also excludes the possibility of alluding to the doctrine of innocent agency, or perpetration-
by-means, in which the indirect instigator of a crime replaces the person physically

5
Apparently, leaders too are exchangeable, as the relatively little success of the ‘‘headhunting’’ strategy in
law enforcement suggests (see infra note 22).

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committing it as principal, the latter being perceived as an innocent ‘‘tool’’ in the hands of
the former. In actuality, the leader is not the principal perpetrator of the offence, but rather
his liability hinges on the liability of the autonomous subordinate, which brings us back to
the question of finding a desert basis for the leaders’ harsher punishment.
Another possible retributive justification for treating the organized crime leader harshly is
that he ‘‘sins and causes others to sin’’6: not only is he himself a wrongdoer, but, to a large
extent, he is also responsible for introducing his subordinates to the world of crime. It may be
the young ‘‘hit man’’ who fires the gun, but it is the organization that has prepared him for this
role, and from a tender age. Youngsters in certain neighborhoods have been brought up on the
values of criminal organizations, and as they mature it is only natural for them to want to
become part of organized crime in any way possible (Cressey 1969 at 238–9). Nevertheless,
the fact that the crime boss leads others to wrongdoing is not the key to treating him more
severely than the direct perpetrators. There is a serious theoretical difficulty to establish that
the organized crime leader is responsible for bringing about or creating the wrongdoings of
subordinates. For example, perhaps the organized crime leader is not involved in the
recruitment process in any way, or did not recruit the particular subordinate for whose acts he
is being held responsible; he may not have even been in control of the organization when the
given member was recruited. It is also possible that the member spent his adolescence in a
neighborhood under the shadow of one criminal organization and, then, after moving, nat-
urally joined the ruling organization in his new neighborhood, controlled by a different
organized crime leader.7 It would seem that the desire to hold organized crime leaders
responsible and punish them more severely for offences committed by their subordinates
exists regardless of whether or not they actually played a part in recruiting the perpetrators.
Therefore, recruitment is not a crucial factor in the intuition for treating leaders more harshly.
However, this does not mean that the act of recruitment lacks any normative or legal sig-
nificance: it might be desirable to hold the recruiting leader accountable for a discrete offence
of recruiting a person to a criminal organization.
A more persuasive argument is that the organized crime leader does in a sense cause the
wrongdoing of organization members, not by recruiting them but rather by creating the
infrastructure that enables their wrongdoing. Indeed, the typical organized crime leader is
not directly involved in the offences committed, but he is the one who facilitates their
perpetration by concentrating sufficient power in his hands to exert control over markets,
gain the support of corrupt public officials, and create an effective infrastructure for serious
crime (Chambliss 1998 at 81–113). However, on its own, this characterization of the
organized crime leader as someone who facilitates the commission of an offence cannot
explain the desire for harsher treatment, since this can also clearly be said about an
accessory8—in fact, most definitions of accessorial liability are worded in terms such as
facilitation or equivalencies to refer weak forms of causation or alternatives to causation
(Smith 1991 at 73–93; Moore 2007 at 412)—and, as stated above, accessorial liability is
based on the notion whereby the severity of punishment is a function of proximity to the

6
The term is derived from Jewish law (Hallacha).
7
It is also possible that the organized crime leader joined the organization after having himself grown up in
a crime-ridden neighborhood and, in such a case, perhaps his own responsibility should be mitigated.
However, since this is an individualistic consideration of punishment, quite unrelated to the manner in which
the offence was committed, it shall not serve as a focus of analysis in this paper.
8
Think of an aider providing the robbers with a key to the victim’s premises.

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commission of the offence, not the opposite intuition that demands harsher punishment for
the organized crime leader.
One may still dispute the assumption that the organized crime leader facilitates the
commission of offences. Perhaps it is more accurate to say that the organized crime leader
organizes the commission of offences that, without his involvement, would have been
committed in an unorganized fashion. This in fact is highly plausible, and supported by
empirical data suggesting that when criminal organizations dissolve, individual perpetra-
tors and small groups quickly fill the vacuum left by it (Albini 1971 at 289; Albanese 1994
at 83; Kenney and Finckenauer 1995 at 138–9). This more realistic view, especially when
combined with the empirical data presented above as to the level of entrepreneurship
among subordinates, undermines attempts to envision the lower strata of organized crime
as made out of ‘‘pawns in a complex game of criminal chess in which one organization
seeks to delibilitate or neutralize the other’’ and the leaders as ‘‘‘prime movers’ without
whose skills, efforts, dynamism and influence some criminal activity would not occur’’
(Wilson 2002 at 196–7). As we have seen, these dramatic descriptions are unfounded, as
they overstress the influence of organized crime leaders. Leaders of criminal organizations
obviously instigate some crimes, otherwise, and given their general disassociation with the
actual commission of offences, they would not be considered criminals at all. But the more
plausible alternative to organized crime is not no-crime, but rather disorganized crime.
With that in mind, we can now formulate the question in terms of the comparative disutility
of organized vs. disorganized crime. But having a question well stated does not necessarily
make it easy to answer, and despite what appears to be a general disfavour for organized
forms of crime, the particular question at hand does not lend itself to ready answers. This
point will be discussed further in the account of deterrence factors below.
That being the case, how is it possible to support the view expressed in the Eichmann
judgment? Why should the extent of culpability (and punishment) increase as we draw
further away from the person using the fatal instrument with his own hands and reach the
higher echelons of command? As we have seen, it is hard to justify the intuition for treating
an organized crime leader more harshly than the direct perpetrator by referring solely to
retribution-based considerations. Nevertheless, it is obvious that the view of the court in
Eichmann stems from a value judgment regarding the greater degree of culpability of the
high echelon of command to which Eichmann belonged. Hannah Arendt’s famous book on
the Eichmann trial (Arendt 1977[1963]) could provide a key for resolving these questions.
In brief, Arendt offers retributive explanations for treating Eichmann more harshly and, at
the same time, hints that the analogy between Eichmann and the organized crime leader is
invalid.9
According to Arendt, the view expressed in the Eichmann judgment could stem from
the fact that the familiar criminal categories addressed by the court (e.g., murder, com-
plicity) are inadequate for describing Eichmann’s unique acts. Eichmann’s case is not one
of enhanced responsibility for familiar offences, but rather of responsibility for an
essentially different, more severe offence:
For just as a murderer is prosecuted because he has violated the law of the com-
munity, and not because he has deprived the Smith family of its husband, father, and
breadwinner, so these modern, state-employed mass murderers must be prosecuted
because they violated the order of mankind, and not because they killed millions of
9
At one point in her book, Arendt even states that: ‘‘… everyone knows that the analogy with a gang of
criminals is applicable only to such a limited extent that it is not really applicable at all …’’ (Arendt
1977[1963] at 290).

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people. Nothing is more pernicious to an understanding of these new crimes, or

stands more in the way of the emergence of an international penal code that could
take care of them, than the common illusion that the crime of murder and the crime
of genocide are essentially the same, and that the latter therefore is ‘‘no new crime
properly speaking.’’ The point of the latter is that an altogether different order is
broken and an altogether different community is violated.10
This means that we should not be speaking of a quantitative, but, rather, a qualitative
difference; not a gradual increase in responsibility the further removed from the hand that
pulls the trigger, but a qualitative difference between the individual murderer and the mass
murderer guilty of genocide.11 Arendt’s theory could explain judicial intuitions such as that
expressed in the Eichmann judgment, but it is certainly not valid with respect to organized
crime leaders engaged in familiar categories of crime.
Another explanation that Arendt provides for the view expressed in Eichmann is based
on the special danger entailed, in her opinion, by the creation of the ‘‘bureaucratic crim-
inal,’’ who does not act out of evil and cruelty but rather out of a ‘‘banal’’ desire to excel in
a wicked regime:
The trouble with Eichmann was precisely that so many were like him, and that the
many were neither perverted nor sadistic, that they were and still are, terribly and
terrifyingly normal. From the viewpoint of our legal institutions and of our moral
standards of judgment, this normality was much more terrifying than all the atrocities
put together, for it implied – as had been said at Nuremberg over and over again by
the defendants and their counsels – that this new type of criminal, who is in actual
fact hostis generis humani, commits his crimes under circumstances that make it
well-nigh impossible for him to know or to feel that he is doing wrong.12
This explanation for treating Eichmann more severely is only fully valid with regard to
nations in which evil objectives are adopted by society as a norm. Luban et al. (1992) have
shown how obstacles to acknowledging guilt could, in part, also characterize bureaucra-
cies—such as business corporations—that are smaller in scale than the state. According to
their approach, organizational features such as a division of labor, as well as the
fragmentation of knowledge characterizing the decision-making process and the actual
implementation of decisions, engender mechanisms that numb the sense of guilt among
organization employees at all levels. Typically, supervisors in a bureaucratic organization
parcel out individual tasks to subordinate employees within the framework of an overall
project. Each employee only has a general and vague notion of the full nature of the
project, while the supervisors themselves are unaware of the specific details associated
with the performance of the individual tasks assigned to the employees. Therefore, a
situation may develop in which no member of an organization is capable of recognizing a
moral problem, since such a problem does not arise from the activity of any single member,
but only from the combined activities of the organization. Ruggiero (1996) termed this
scenario ‘‘sins without sinners’’. Unlike business corporations, it would seem that no such

10
Ibid at 272. Bilsky (2004 at 127) has also stressed that the Eichmann court’s deviation from the basic
paradigm linking the extent of responsibility to the degree of proximity to the commission of the crime was
due to the singularity of the acts ascribed to Eichmann.
11
Arendt speaks, in general, about ‘‘… the inadequacy of the prevailing legal system and of current
juridical concepts to deal with the facts of administrative massacres organized by the state apparatus’’ (ibid
at 294).
12
Ibid at 276.

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obstacles to acknowledging guilt exist in criminal organizations. First of all, research has
shown that criminal organizations typically deviate from the strict bureaucratic structure
(Albini 1971 at 264–7; Abadinsky 2006 at 6)13; secondly, and most important, obstacles to
acknowledging guilt do not exist in criminal organizations, which, by definition, are
characterized by illegal activity that both leaders and members are fully aware of.14
Arendt provides guilt-based explanations for the aforesaid view expressed in the
Eichmann judgment: when judging crimes against humanity committed by an evil regime,
responsibility increases the further removed from the actual perpetrator and the higher up
the chain of command. However, this still does not explain the desire, expressed by legal
scholars, to treat organized crime leaders more stringently.
In conclusion, there seem to be no convincing retribution-based arguments for treating
an organized crime leader more harshly than the direct perpetrator. I suspect that the
intuition calling for such harsh treatment cannot be explained by the liberal notion of
culpability; nor can it be based on the severity of the concrete act ascribed to the organized
crime leader (in terms of the physical and mental elements of the offence). Perhaps the
explanation may be found in a different conception of guilt, derived from assumptions
regarding the character of the organized crime leader himself (Duff 1993; Fletcher 2007).
We are willing to impute to an organized crime leader—more than to a junior member of
the organization—the type of demonic evil that, in our moral judgment, is only reserved for
the rich and powerful; those who are not driven to crime by the forces of destiny but who
steer their way through a life of crime for their own personal gain. The assumption that this
willingness underlies the intuition for treating organized crime leaders more severely is
supported by the various labels that courts have attached to them, such as ‘‘boss’’15 or
‘‘vice lord’’16—labels carrying connotations of success. This attitude is also exhibited by
demands to treat white-collar criminals harshly, which is sometimes based on a desire to
punish those considered to be successful (Gustafson 2007 at 691). Anyone labeled a leader
is also inflicted with all of those same attributes that justify a harsh assessment of char-
acter.17 It may also be assumed that the demonization of the organized crime leader stems
from a wider phenomenon of a fear of organizations and their control over our daily lives,
which has occupied such diverse writers as Jürgen Habermas (trans 1989) and Naomi Klein
(2000).
If the intuition for treating the leader harshly cannot be explained by some special,
inherent evil in the act of leadership absent from the direct act committed by the

13
Joseph Albini characterizes the power structure of organized crime as flexible and variable (Albini 1971
at 264–7). One such structure is the patrimonial model, under which the links between the different ranks in
an organization are not based on master-servant relations but rather on patron-client relations. The patron
places resources such as money, information, and government connections at the criminal-client’s disposal,
as well as access to important specialists such as thugs, fences, money-launderers, etc. In return, the client
grants his patron respect, loyalty, and a share of the profit that he generates under his patronage. The Cosa
Nostra is a prominent example of an organization usually described in terms of the patrimonial model.
Criminologists note that the lower ranks of this organization are not soldiers receiving orders from above but
rather independent criminal entrepreneurs (Cressey 1969 at 114–9; More recent studies demonstrate that the
patrimonial model mostly characterizes the New York branch of the Cosa Nostra: see Abadinsky 2006 at
114).
14
Initiation into criminal organizations usually requires the would-be member to commit crime.
15
United States v. Salerno 481 US 739 (1987); Garofalo v. Gravano 23 F Supp 2d 279 (1998); United
States v. Gigante 925 F Supp 967 (1996); United States v. International Brotherhood of Teamsters 946 F
Supp 318 (1996).
16
In re Metropolitan Crime Commission 251 La 518 (1967).
17
Including Sugaker, who was no more than a ‘‘second-degree solicitor’’: see supra note 2.

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subordinate—then perhaps it is rooted in utilitarian considerations, i.e. deterrence.18

Indeed, some of the features of organizational control could justify enhanced deterrence,
although, as we shall see below, there are also several variables in the utilitarian calculus
that make it hard to reach definitive conclusions in this matter.
It is evident that advancement in an organizational hierarchy entails various advantages
such as increased power, respect, and remuneration. These benefits provide an incentive for
continuing along the path of crime, and considerations of deterrence are expected to offset
this by providing a counter-incentive in the form of harsh punishment. As a rule, the higher
up the chain of command the greater the deterrence necessary to overcome the temptation
to act within an organized framework. Criminological literature provides evidence that a
rise in the organizational hierarchy also entails a reduction in the risks of arrest and
punishment. Ianni (1974 at 315) has convincingly shown that ‘‘[t]he lower one’s status and
the closer one is to the actual street transaction, the higher are the risks of arrest.’’
According to the fundamental premises of economic analysis of the law, the degree of
deterrence is calculated as a product of the severity and likelihood of expected punishment
(Posner 1985; Shavell 1985). Therefore, the lower the organized crime leader’s risk of
punishment—compared to that faced by the direct perpetrator—the more severe should be
the punishment that he can expect if he is apprehended and convicted at trial.
A further justification for enhanced deterrence against an organized crime leader could
be based on the nature of organization itself, namely, the fact that the leader creates a
special danger to the public by organizing the criminal activity of his subordinates. One
prevailing view held by scholars is that the increased specialization of organized criminal
activity advances the efficiency and continuity of crime in such a manner that, on the
whole, the phenomenon of organized crime poses a greater danger to society than that of
individual crime. With regard to the phenomenon of criminal conspiracy, Brickey (1983)
has developed a concept of ‘‘group danger’’ that could also be useful in the present context.
Brickey has tried to identify the rationale for criminalizing a conspiracy to commit an
offence even though conspiracy is just a ‘‘meeting of minds,’’ which, on their own, are not
criminal (according to the principle of nullum crimen sine actu). According to Brickey, this
meeting of minds creates a group danger that does not exist as long as the plan only exists
separately in the head of each potential conspirator. The group danger rationale implies a
cognate set of assumptions: (1) that collective activity increases the likelihood that the
unlawful goal will be achieved and decreases the probability that it will be abandoned at an
early stage; (2) that combined activity facilitates the attainment of more complex objec-
tives that would be unachievable by individual perpetration; (3) that collective action
enhances the prospect that the criminal activity of the group may be expanded beyond its
initial objectives (ibid at 443). These assumptions could also be valid in establishing a
rationale for treating the organized crime leader more harshly.
According to Cressey (1972 at 56), while a reduction in the risk of individual criminal
activity almost always entails a parallel reduction in the effectiveness of such activity
(whereby the individual criminal must choose between dangerous, profitable activity and
safer, less profitable activity), organized crime could be both profitable and safe.19 The
18
While it is well recognized that utility can not serve as a sole justification for punishment, it is none-
theless worthwhile to track utilitarian ground as it may be there that the seeds of the intuition examined in
the text are planted.
19
According to Cressey, when criminals act alone or within the framework of small gangs, their chances of
becoming affluent are limited (ibid at 78–9), whereas, as he puts it, ‘‘[i]f I were at random to throw a stone at
one of [the members of the Cosa Nostra], the chances are better than 50–50 that I would hit an American
millionaire’’ (ibid at 30). Cressey adds that the chances of a Cosa Nostra member being arrested are much

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division of labor according to area of expertise is important here, as is the multiplicity of

skills and resources available. These attributes make the organization stronger and more
dangerous than just the sum of its membership. Lyman and Potter (2004 at 322–3) view the
added danger of organized crime in its subversion of civil society, its harm to the rule of
law, its detrimental influence on economic markets, and its corruption of financial insti-
tutions designed to serve the public. Other scholars have identified the added danger of
organized crime in its quiet control over the political process and its corruption of legal and
administrative bodies (Mahan 1998 at X), or in its ability to expand, both in terms of
personnel and the extent of harm inflicted, and maintain continuity and stability in a
manner virtually independent of the composition of its individual membership (Brenner
2002 at 10–1). The more the organized crime leader can be said to be responsible for the
organization of crime and, thus, for the special ills of organized crime, the more worthy he
is of enhanced deterrence.
On the other hand, it might be argued that, from a utilitarian perspective, organized
criminal activity entails positive consequences that offset its dangers, thus justifying a
more ‘‘lenient’’ approach. It is at this point that we must return to the idea that the
alternative to organized crime is not no-crime but rather disorganized crime. Judged from
the viewpoint of law and economics, organized crime may actually be the lesser evil. Thus,
well rooted in the various definitions of the phenomena of organized crime is the idea of its
tendency towards monopolizing markets (Abadinsky 2006 at 3; Grennan and Britz 2006 at
12–4); indeed, the very concept of organization entails a decrease in the number of agents
competing in the same market. Monopolies are often frowned upon due to their impairing
effects on the supply of goods and on optimal pricing. These effects are in no doubt
harmful when applied to useful goods. The other side of the same coin however, is that
these hindering effects are useful when applied to harmful goods. Organizing drug dis-
tribution, prostitution or gambling may diminish the comfortable availability of such vices,
thereby making them less attractive for public consumption (Ruggiero 1996 at 37–8).
Further economic analysis of organized crime could indicate that its organizational
nature can be expected to reduce the scope of violent crime (Schelling 1973 at 94–6).20 It is
a well-known phenomenon that the police turn a blind eye to entire realms of crime as long
as their public exposure is kept low (e.g., varying degrees of enforcement with regard to so-
called victimless crimes, such as prostitution and illegal gambling). Police intervention in
these areas of crime is often demanded only when they generate public fear, which is the
typical response to a violent crime that attracts the spotlight (e.g., when a prostitute or a
client is murdered, or a debtor is injured by a violent bookie). The aggregate interest of the
individuals involved in these areas of crime is to reduce violent crime to a minimum in
order to limit the harmful consequences of police interference with their profitable criminal
pursuits. However, the costs of a violent strategy are mostly extraneous to the consider-
ations of a non-organized criminal. It may be in the interest of each individual offender to
maximize his own profit through the use of violence, the harmful consequences of which

Footnote 19 continued
lower than his chances of being injured in a car accident (ibid at 91). Perhaps this is an exaggeration—and it
certainly depends on the driving habits of Cosa Nostra members—but it does reflect general notions
regarding the ability of criminals operating within an organized framework to evade punishment and
continue their criminal activities.
20
The economic factor of a reduction in violent crime as a result of organization is akin to the more general
argument—which will not be discussed here—that organized crime reinforces the social order by generating
conditions for economic security among the weaker sectors of society, which would otherwise be inclined
towards violent rebellion. For a development of this argument, see Simon 2006 at 77.

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Crim Law and Philos (2010) 4:183–196 193

are spread out among all criminals. Thus, for example, an independent bookie may be
tempted to use violence to collect a debt, since the potential economic benefit is all his and
he will only suffer a small portion of the increased enforcement against illegal gambling
that results from his violent behavior. In contrast, when criminals organize, the costs of
heightened enforcement are fully internalized by the organization, and the aggregate
interest of all members leads them to adopt a strategy of reduced violence. Indeed,
criminological literature documents cases in which organized crime leaders have ordered
their subordinates to limit the commission of crimes that attract negative public attention
(Cressey 1972 at 57). It has been said that the famous gangster Benjamin ‘‘Bugsy’’ Siegel
tried to silence public fear of the Mafia by declaring ‘‘we only kill each other’’ (Albini 1971
at 9) (indeed, Siegel himself was apparently killed by mob hit men).
An effective strategy of reduced violence would only be possible under circumstances
of cooperation and a shared interest among criminals—conditions that are created when
criminals band together in organized crime. Paradoxically, the larger and stronger a
criminal organization is, the greater its interest and ability to show restraint, and the lower
its willingness to resort to violent crime. In the same manner—no less paradoxical—a
further reduction in violent crime could stem from the combination of organized crime and
police corruption. When corrupt elements within the police force cooperate with organized
crime they may be assisting in the concentration of a significant amount of power that
further increases the organization’s ability to reduce the violent crime committed by its
members as well as violent inter-gang competition (Chambliss 1998 at 91–2).
An economic analysis reveals an additional mechanism for limiting violent crime within
the framework of a criminal organization, this time by reducing the need to use violence. In
order to be effective, various areas of crime demand a violent reputation. A clear example
of this is loan-sharking. In order for loan sharks to successfully collect the debts owed to
them debtors must fear the possibility that the loan shark may employ violence as a
collection method. This fear derives from the loan shark’s violent reputation, and such a
reputation is first acquired through the exercise of force. It is enough for a loan shark to
break the arm of one debtor in order to acquire a reputation that enables him to continue
collecting debts without a need to use any further violence. The problem is that each
individual loan shark must acquire such a reputation by first acting violently, which means
that many arms will have to be broken. On the other hand, if the loan shark leverages his
acquired reputation and hires subordinate collectors, then they only have to mention the
name of their boss—without any further need to use violence—in order to collect debts
successfully. In an extreme case, an entire loan-sharking operation may acquire the nec-
essary reputation through the single violent act of one of its members.
A comparison between the harms of organized versus disorganized crime is obviously
not exhausted by these anecdotal and rather ad-hoc examples. A more complete utilitarian
calculation requires empirical data comparing the overall harm of organized versus dis-
organized crime and the extent of resources necessary to combat each.21 The examples
given above serve to show that such a comparison might lead to conclusions that run

21
The utilitarian calculation might be different for different areas of crime. Thus, for example, in the field
of extortion, an organization might be able to reduce its need to use violence through a single violent act
(provided that this succeeds to generate a deterrent reputation for all members of the organization), and, at
the same time, save victims from the potential exposure to several individual extortionists (thus creating a
degree of certainty regarding the level of extortion fees that better allows victims to run their businesses).
However, such considerations would not be relevant to criminal vocations less dependant on a violent
reputation, such as drug trafficking.

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194 Crim Law and Philos (2010) 4:183–196

counter to the intuition regarding the added dangerousness of criminal organizations and
their leaders. In anyway, the added danger of organized crime has never been substantiated.
Overlooking the dangerous-demonic characterization of the organized crime leader carries
several practical implications. This perception of the crime boss focuses enforcement
efforts on his apprehension and punishment,22 whereas a more realistic view, which also
takes into account the advantages of organized crime over unorganized crime, could reveal
a wider variety of enforcement strategies. For example, with regard to areas of violent
crime that existing methods of law enforcement have failed to eradicate, officials might
consider strategies that would induce criminals to band together in an organization that
internalizes the costs of violent activity and results in less use of violence according to the
economic mechanisms described above.23 Such strategies would turn the organized crime
leader into an administrator, to whom the state would ‘‘outsource’’ control over areas of
crime that traditional policing fails to cope with. Another possibility is to shift the focus of
enforcement from the organized crime leader to environmental factors that facilitate the
organization’s existence. Criminal organizations are ‘‘open systems’’ whose operation
depends on various entities such as investors, suppliers, clients, and banks (Smith 1978;
Meyer 1997 at 255). Isolating criminal organizations from the environment that supports
them could turn out to be an effective enforcement strategy.24
However, this paper is not concerned with alternative enforcement strategies, but rather
with the level of punishment handed down to organized crime leaders. Up to this point, we
have shown that both considerations of retribution and deterrence are inadequate to the task
of establishing a convincing rationale for the prevailing intuition that the organized crime
leader should be punished more severely than the direct perpetrator for each given offence.
From this it may be not too unsafe to assume, by way of negative inference, that the
intuition hereby investigated stems from a confusion between the wish to hold an orga-
nized crime leader responsible for the sum total of all acts committed by organization
members—overall responsibility greater than the individual responsibility of each mem-
ber—and a belief that he should be treated more harshly than the direct perpetrator for each
separate offence. The leader is subject to greater punishment than a subordinate simply
because the aggregate of all offences he is involved in is greater than that of the subor-
dinate. This mathematical notion of added punishment for compounded offences is deeply
rooted in moral and legal thinking, and I believe that it is at the heart of the investigated
intuition. It follows, that the key to determining the punishment of an organized crime

22
There is no statistical data regarding the effectiveness of law enforcement focused on punishing orga-
nizational leaders (the so-called ‘‘headhunting’’ strategy) and there are good reasons to doubt its efficacy.
Given the continuity of a criminal organization, every member is replaceable, so that even following the
arrest of an organized crime leader, the organization’s criminal activity will continue. The headhunting
strategy could even contribute to the organization’s effective operation by facilitating intra-organizational
mobility: the possibility that the organized crime leader will be arrested motivates ambitious members to
stick out so that they will be chosen to fill the positions left vacant as a result; this, in turn, reinforces the
continuity of the organization. For an examination and appraisal of the headhunting strategy, see Lyman and
Potter 2004 at 517–20.
23
Such enforcement strategies might also generate conditions that reduce the dangers entailed by the
services that criminal organizations provide; for example, the organizational head may be more successful
than the police in guaranteeing the availability of uncontaminated drugs and safer sexual services.
24
The focus on environmental factors has gained official recognition, as evidenced, for example, by money-
laundering legislation, which requires those providing financial services to report suspicious property
transactions (since the enactment of the 1970 Bank Secrecy Act), and the prohibition against providing
money-transmitting services to entities that organize illegal gambling on the Internet (see Unlawful Internet
Gambling Enforcement Act of 2006).

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leader is not the gravity of his actions with regard to each offence but rather the multi-
plicity of offences committed by his organization. This observation may imply a need to
devise a substantive doctrine by which to make the leader of a criminal organization
legally responsible for all offences perpetrated by his subordinates. Regretfully, the
underlying theory of such a doctrine, as well as its scope, is beyond the reach of the present
presentation.

Acknowledgments The author wishes to thank the following people for their help and comments: Saliou
Bah, Leora Bilsky, Tal Eldar, Alon Harel, Lukas Heckendorn, Shadi Kabaha, Ruth Kanai, Elkana Laist,
Dana Pugach, Yaniv Ron-El, Boaz Sangero, Ron Shapira, Keren Shapira-Etinger, Neil Zweil.

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