Vanderbilt Law Review

First Page



The United States has a problem with gangs. According to the Department of Justice, there are more than twenty thousand gangs in the United States today, with over one million members. There are gangs in every state and in the District of Columbia. This is a dire problem in the eyes of federal government officials. According to Attorney General Michael Mukasey, "Gangs threaten our society .... They bring a culture of violence and drugs to our doorsteps, creating an atmosphere of fear, diminishing the quality of life, and endangering the safety, well-being, and future of our children." In response, the federal government is becoming increasingly involved in investigating, prosecuting, and imprisoning gang members. The Racketeer Influenced and Corrupt Organizations Act ("RICO") is central to this initiative. RICO enables aggressive federal prosecution of criminal activities committed in connection with illicit organizations, or "enterprises." Because modern gangs often display the level of cohesion and organization required to qualify as "enterprises" under the law, RICO seems an apt prosecutorial device. Furthermore, the statute's stiff sentences, accompanied by the unavailability of parole,1' give the prosecutions teeth, while federal resources help augment overwhelmed state systems. This initiative entails an aggressive expansion of federal power that is constitutionally questionable at its outer bounds. Specifically, it is constitutionally problematic for the government to prosecute noneconomic street gangs for violent intrastate activities. A noneconomic street gang is a gang that (1) does not engage in economic activity, such as dealing drugs or providing prostitution or gambling, and (2) operates in neighborhoods, as opposed to in prisons or on motorcycles.13 In the last four years, federal courts of appeals have scrutinized at least two RICO prosecutions against gangs of this sort for violent intrastate activity, and those courts reached divergent opinions about the constitutionality of such prosecutions. This Note argues that such prosecutions are constitutional only when the gangs have had a substantial effect on interstate commerce.

The Note proceeds as follows. Part II describes RICO's origin and the federal government's increasing use of the statute to combat gangs nationwide. Then, it describes the statutory elements that RICO prosecutions must satisfy: (1) that an enterprise existed, (2) that the enterprise engaged in or affected interstate commerce, (3) that the defendant was employed by or associated with the enterprise, and (4) that the defendant participated in the enterprise's conduct through (5) a pattern of racketeering activity.'

Part II also briefly explores Commerce Clause doctrine and its evolution into a controversial basis for regulating intrastate criminal activity, as illuminated by the modern trilogy of United States v. Lopez, United States v. Morrison, and Gonzales v. Raich.

Part III examines conflicting decisions from the First and Sixth Circuits regarding the constitutionality of federal RICO prosecutions of noneconomic street gangs accused of intrastate violence. In Waucaush v. United States, the Sixth Circuit held that a member of a noneconomic street gang could not be convicted under RICO unless the gang substantially affected interstate commerce. In United States v. Nascimento, the First Circuit held that gangs need only have a de minimis effect on interstate commerce to be properly subjected to prosecutions of this sort.

Part IV analyzes the constitutionality of these prosecutions as illuminated by Supreme Court precedent and the circuit split, and it argues that noneconomic street gangs must have a substantial effect on interstate commerce for these prosecutions to be constitutional. Under Lopez and Morrison, regulation of noneconomic intrastate violence is beyond the power of the federal government. And while the Raich Court referred to classes of activity-instead of particular instances of activity-for the purposes of Commerce Clause analyses, noneconomic intrastate gang violence is not in the same class as the activity that RICO legitimately covers. Furthermore, Raich may be distinguishable because it involved regulation of a fungible commodity. Finally, allowing federal regulation of noneconomic intrastate gang violence impermissibly alters the delicate balance of power between federal and state governments. Part V concludes.