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Issues involving the Continuing Criminal Enterprise (CCE) Act: How the CCEA is a politically generated “quick fix” to the “War on Drugs”
The Continuing Criminal Enterprise (CCE) statute, commonly referred to as the “kingpin statute,” was enacted in October 1970 in an effort to combat drug cartels by directly attacking their leadership.1 The statute makes it a federal crime to commit a continuing series of felony violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970 when those acts are in concert with five or more people. Essentially, a criminal enterprise is comprised of a group with an identified hierarchy, or comparable structure, engaged in criminal activity. The Continuing Criminal Enterprise statute, 21 U.S.C. §848, provided the means by which a “kingpin” could be punished severely and the enterprise could be dismantled through asset forfeiture.2 These kingpin statutes are aimed at the leaders of criminal operations that grow, manufacture, export and sell drugs.3 While Congress’ concern about drug abuse in America is justified, a major concern with statutes like the CCE is the probability that it is applied disproportionately to minority groups.
To convict under the CCE statute, the government must establish five predicate elements.4 First, the defendant must have “violated one of the substantive drug crimes under Title XXI of the United States Code....”5 Second, the defendant must be “engaged in a continuing series of federal drug felony violations.”6 Third, this series of violations must be conducted in concert with five or more people.7 Fourth, the defendant must have served as an organizer, supervisor or some other type of leader within this operation.8 Lastly, the defendant must have derived substantial income or resources from the criminal operation.9 With these elements proven, the law imposes severe mandatory minimum sentences and criminal forfeiture of assets upon one convicted of engaging in a “continuing criminal enterprise.”10
The CCEA has two purposes: (1) to provide debilitating punishment to existing criminal enterprises; and (2) to deter the creation of new enterprises.11 The statute’s provisions reflect these two goals.12 A defendant convicted of operating a continuing criminal enterprise will be sentenced to 20 years, at a minimum, with the possibility of life-incarceration, in addition to forfeiture of all assets derived from the enterprise.13
Under the so-called “super kingpin” provision, added to the CCE statute in 1984,14 there is a mandatory life sentence without possibility for parole for any person convicted of being a “principal” administrator, organizer, or leader of a criminal enterprise that either (1) involves a large amount of narcotics (at least 300 times the quantity that would trigger a five-year mandatory-minimum sentence for possession), or (2) generates a large amount of money (at least $10 million in gross receipts during a single year.
The CCEA has led to the convictions of high profile drug kingpins like Larry Hoover, founder of the Chicago-based gang Gangster Disciples.15 However, the core flaw of the CCEA is that it redefines ordinary criminal activity in essentially political terms to appease the public’s passion for politically generated results or “quick fixes” to issues that were largely created by politicians. Many may justifiably view the CCEA as a politically generated “quick fix” to the “War on Drugs” problem.
Legislative History of the CCEA
In the late 1960s, America discovered that a burgeoning drug problem afflicted society.16 Exponential growth in drug use defied provincial perceptions of a small, contained drug sub-culture, and sophisticated markets emerged to satisfy user demand.17 Just before the CCE statute was enacted, Congress had enacted the Racketeering Influenced and Corrupt Organizations Act (“RICO”). When RICO was enacted, Congress anticipated that the statute would help eradicate organized crime, specifically, but not limited to, the Mafia.18 RICO’s drafters hoped to dismantle the Mafia and other criminal organizations by disabling their enormous financial bases, thus diluting their power.19 Congress concluded that federal drug enforcement laws had been, ‘for the most part, ineffective in halting the increased upsurge of drug abuse throughout our United States.’20 As a result, the CCEA was passed as § 408 of the Comprehensive Drug Abuse Prevention and Control Act of 1970.21 The Act shifted the focus of drug enforcement efforts from strict penalties against small-time users to more severe punishment for drug peddlers.22 Essentially, Congress sought to prosecute those benefiting the most from drug transactions: the kingpins.
As part of the Act, Congress defined a new crime, the “continuing criminal enterprise,” to serve as an additional vehicle to punish the leaders of extensive drug networks.23 Arguably, Congress structured the CCE statute to describe a complex crime, allowing prosecutors to efficiently indict and severely punish those people that Congress believed had been responsible for the rise of drug abuse in America.24 The CCE statute provided prosecutors with a new tool for obtaining lengthy sentences for leaders of drug organizations.25 The CCE offense was the only section in the Act incorporating a mandatory minimum sentence.26
Problems with the CCEA
While mandatory minimum sentences are the product of good intentions, they undoubtedly give prosecutors unbridled discretion to charge under the statute or engage in the plea bargaining processes. With statutes giving mandatory minimum sentences, prosecutors have unreviewable discretion over the charges in a given case, which has likely resulted in severe and arbitrary punishments. While Congress’ concern about drug abuse in America is justified, a major concern with mandatory minimum statutes like the CCEA, is the probability that it is applied disproportionately. Arguably, the CCEA is applied almost exclusively to minority groups.
The Supreme Court has referred to the CCE statute as a carefully constructed provision which aims to reach and punish “the ‘top brass’ in the drug rings, not the lieutenants and foot soldiers.”27 The goal of the CCE statute, and for many prosecutors, has been to punish the leaders of extensive and successful drug operations.28 What the statute has failed to do, however, is to curtail the creation and operation of criminal enterprises. One issue is that the implementation of the statute cannot eradicate the structure of the “enterprise,” it can only remove the person at the top tier, giving opportunities to other members of the enterprise to assume a higher position. Communities with lower socio-economic statuses allow criminal enterprises to thrive because they provide jobs and revenue that remain within the community. Thus, the statute has only been successful in its efforts to punish those who are captured.
Violation of the CCE statute leads to harsh penalties, including a mandatory minimum sentences or the death penalty.29 The fact that the sentence for a first CCE offense is a mandatory minimum 20 years’ imprisonment, a fine not to exceed $2 million, and forfeiture of profits and any interest in the enterprise should be enough to question why the statute has only applied to gangs. It is apparent from the harshness of the punishment that the law targets large-scale drug traffickers responsible for long-term and elaborate drug conspiracies, and not members at the lower tier who make up the users and small-scale drug distributors. It is also apparent to many in the legal community that the application of the CCEA to gang-controlled narcotics enterprises targets minorities.
Michelle Alexander, author of The New Jim Crow, explores this idea of how racial profiling, police brutality, and drug law enforcement in poor communities of color has led to the mass incarceration of poor Blacks.30 Alexander argues that the American criminal justice system functions more like a caste system than a system of crime control. In the mid-1980s, a national sense of urgency surrounded the drug problem igniting Congress to create different penalty structures for drug related offenses. Congress’ resolve to create mandatory minimums and sentencing commissions to combat drug abuse in America ultimately led to politicians revising drug-related legislation to criminalize Blacks at a higher rate than non-Blacks.
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