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.
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.
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.
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.