RICO and the Legion of Doom

Comic book supervillains, like real world criminals, often form groups and work together to advance their nefarious schemes.  The Legion of Doom, the Brotherhood of (Evil) Mutants, and the Evil League of Evil are examples of organized supervillain teams.  With organization comes a price, however.  Participating in these groups makes their members more vulnerable to criminal prosecution and civil claims under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO (there are also similar state laws).  But before discussing RICO and its applicability to supervillain teams, let’s first consider why other theories of criminal liability may not be the best fit.

I. Aiding and Abetting

Aiding and abetting may be a route to prosecution of members of a supervillain organization that “aid, abet, counsel, command, induce or procure” the commission of a crime by another, presumably another member of the organization. 18 USC 2 (state laws are similar).  The problem is one of proof.  Unless someone (perhaps whichever villain was caught in the act) testifies as to the nature of the scheme or some physical evidence ties a given supervillain to the crime (e.g. a diabolical device with Lex Luthor’s fingerprints all over it) the prosecution may have difficulty proving that a particular member of the organization aided or abetted the commission of the crime.

II. Conspiracy

At first glance conspiracy seems a better fit, but like aiding and abetting it has problems in practice.  Under US federal law, conspiracy generally requires an agreement between two or more people to commit an illegal act as well as for at least one member of the conspiracy to “do any act to effect the object of the conspiracy.”  18 USC 371.  However, at common law conspiracy did not require an overt act, and some states and specific federal conspiracy statutes do not have that requirement; mere agreement is sufficient.  See, e.g, United States v. Shabani, 513 U.S. 10 (1994).  It may seem like conspiracy is a fairly easy charge to run afoul of, but that low bar is justified by a strong public policy against conspiracy, probably because agreement makes it more likely that the crime will actually be committed and because cooperation can make possible more heinous crimes than could be committed by a single person.

But although the bar is low, evidence of agreement is still necessary.  Ordinarily this can be accomplished through informants, sting operations, surveillance, and plea deals that encourage conspirators to testify against each other.  In the case of a supervillain organization, however, it may be difficult to arrange surveillance or a sting operation without a superhero’s assistance (e.g. The Invisible Woman’s invisibility or Superman’s X-ray vision), and that kind of close cooperation with the police raises other concerns.  Informants are a possibility, but it may be difficult to offer a supervillain something valuable enough to warrant betraying his or her organization.  And plea deals only work if a supervillain is willing to testify in exchange for something.  A well-run supervillain organization may be able to enforce a ‘no snitching’ policy.

Conspiracy is most useful if the entire organization agrees to cooperate on a particular criminal scheme, but that agreement may be difficult to prove if not all of the members actually participate directly in the scheme (remember the problems with relying on other members’ testimony).  If not all of the members participated in the conspiracy, or if their participation cannot be proven, then the organization can live on minus a few members, and in most comic books that means the roster will be filled out again within a couple of issues.  What’s needed is a way to take down the entire organization at once, particularly the leadership, even if direct involvement in a given criminal act cannot be proven.

III. RICO

The problems with conspiracy and aiding & abetting are problems in the real world, too, especially when dealing with organized crime.  For example, it can be very difficult to prove that a mob boss ordered a hit, especially if the members of the organization won’t testify.  This was the inspiration behind the RICO Act.

In a nutshell, RICO allows prosecutors to charge members of an organization  with racketeering if the organization has committed 2 crimes out of a list of 35 within 10 years (exhibited a ‘pattern of racketeering activity’).  The individual members charged with racketeering must also have done at least one of the following (this is a broad paraphrase of 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

As you can see, conspiracy has raised its head here as well, and in this context it is very useful as it stretches the already broad reach of the statute.  Whichever way it is accomplished, racketeering is a serious charge carrying up to a 20 year prison term as well as the possibility of treble damages in an accompanying civil suit.  For example, a member of the X-Men who was kidnapped by the Brotherhood of Evil Mutants could file a civil RICO claim.

Many of the crimes covered by RICO are inapplicable to a typical supervillain group (they don’t usually engage in bankruptcy fraud, for example), but several are likely to apply, including murder, kidnapping, arson, robbery, bribery, terrorism, and (federal) theft.  For some of the underlying crimes (e.g. murder, kidnapping), it is sufficient for the crime to be threatened.  Supervillain organizations frequently engage in many of those crimes.

It should be noted that in practice RICO is sometimes used against what you might think of as ‘proper’ organized crime groups or gangs, but it’s also sometimes used against more nebulous, loosely affiliated groups.  In those cases it can sometimes be difficult for prosecutors to prove the existence of a criminal enterprise.  That’s definitely not the case with groups like the Brotherhood of Evil Mutants or the Evil League of Evil.  Not only are they a well-defined organization with a leadership structure and a headquarters, they’ve got ‘evil’ right in their names!  It’s a prosecutor’s dream.

IV. Conclusion

RICO is clearly a danger to any traditionally-organized supervillain team.  A few successful convictions for kidnapping or robbery by less capable members could lead to racketeering charges and civil suits against the entire membership.  Forward-thinking supervillains might consider adopting a cell organizational structure that is more resistant to legal tools like RICO (and to infiltration by meddling superheroes)–or at least changing the group’s name to something a little less suspicious.

13 Responses to RICO and the Legion of Doom

  1. Villains can always take the Doctor Doom approach and take over a country somewhere. That gives them some sort of diplomatic immunity as sovereign monarchs. Short of declaring war on the country in question (which the U.S. never seemed to want to try with Latveria for some reason) the villains could do whatever they wanted so long as they made sure never to be caught on foreign soil.

  2. Scott W. Somerville

    It’s worth noting the logic behind RICO and many other federal criminal statutes–sometimes criminal enterprises can become so powerful they dwarf the resources of local law enforcement. Any run-of-the-mill supervillain could overwhelm Rhode Island. If you’re going to tackle an entire group of superbaddies, you need all the firepower of the federal government. (Plus some.)

  3. Pingback: DYSPEPSIA GENERATION » Blog Archive » RICO and the Legion of Doom

  4. Okay, I originally posted this in the real estate article, but this does seem more on point. The civil suit aspects of the RICO act, and the increasing use of them by state and federal governments to seize property in conjunction with RICO suits/prosecutions seem particularly relevant in the case of supervillains. In terms of super-weapons like giant lasers, death rays and the like such measures would not be necessary, seeing as they are contraband anyway.

    However the extremely high-tech vehicles and bases which such organizations tend to develop seem like an attractive asset for the government to attempt to acquire, enough so that I could easily seem them pursuing RICO proceedings against nominal ‘heroes’ in order to gain access to their assets and technology. The collateral damage, and necessary fraud, tax and securities violations necessary for Batman to conduct his business would almost certainly be sufficient to get at least an indictment against him, or the crimefighting organization which he operates. Clearly the Gotham PD would benefit from owning their own Batmobiles and whatnot, and this seems like a reasonable avenue for them to pursue to achieve that goal.

  5. If we can’t get RICO charges brought against the idiots at the RIAA or Halliburton, how would the legal system possibly have a chance against a league of geniuses??

  6. Pingback: (Fictional) law of super-heroes

  7. “But although the bar is low, evidence of agreement is still necessary. Ordinarily this can be accomplished through informants, sting operations, surveillance, and plea deals that encourage conspirators to testify against each other. In the case of a supervillain organization, however, it may be difficult to arrange surveillance or a sting operation without a superhero’s assistance (e.g. The Invisible Woman’s invisibility or Superman’s X-ray vision), and that kind of close cooperation with the police raises other concerns. Informants are a possibility, but it may be difficult to offer a supervillain something valuable enough to warrant betraying his or her organization. And plea deals only work if a supervillain is willing to testify in exchange for something. A well-run supervillain organization may be able to enforce a ‘no snitching’ policy.”

    That assumes there are no cops with superpowers…

  8. @Romeo Vitelli: I’m intrigued by the Dr. Doom approach. What kind of international law applies to him in that case? Raises questions concerning what would happen if someone like Omar al-Bashir had superpowers or a large criminal enterprise behind him.

  9. Michael E Piston

    Section 249 of the Immigration and Nationality Act provides that anyone who entered the U.S. to January 1, 1972 may, in the discretion of the Attorney General be adjusted to permanent resident if they have not been convicted of certain crimes and is a person of good moral character. So even if Superman failed to take advantage of the Reagan amnesty of the mid-1980s he could still legalize his status now.

  10. What are those certain crimes? Do we know? Are we allowed to?

    • Sure. 8 USC 1259 (which is where § 249 of the INA is codified) says: “such alien shall satisfy the Attorney General that he is not inadmissible under section 1182 (a)(3)(E) of this title or under section 1182 (a) of this title insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens.” None of that sounds like Superman to me.

  11. A very interesting article. One issue that you did not touch on however: the effect on criminal responsibility in a world where there are villians with mind control powers. Unless the Fantastic Four catch Puppet Master in the act of holding one of his mind controlling figurines in his hand and shouting “Rob that bank!” at it; saying that you only commited that crime because your mind was being controlled would be very hard to prove. Temporary insanity would be the closest real-world defense, except that it hinges on the fact that another person deliberatly caused you to become temporarly mentally incapacitated

    • This is something we plan to cover in a future post. As a sneak peek I’ll just say that we think there are closer real-world defenses than temporary insanity that actually fit mind control pretty well.

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