In 2021, Secretary of Homeland Security Alejandro Mayorkas asserted that “[d]omestic violent extremism is the greatest terrorist-related threat” facing the United States. Although domestic extremism is often characterized as a lone wolf threat, it is frequently spurred on by white supremacist and neo-Nazi organizations that use the internet to radicalize their members and then avoid accountability by hiding behind constitutional protections—a strategy called “leaderless resistance.” This strategy results in devastating consequences. While the number of hate groups and hate crimes in the United States have risen to record highs, constitutional protections prevent domestic extremist organizations from being treated the same as foreign terrorist organizations. In turn, those who support domestic extremist organizations are also largely precluded from prosecution for providing material support.
Enter the Racketeer Influenced and Corrupt Organizations Act (RICO). Despite its roots in countering the mafia and other organized crime groups, RICO has become a catch-all statute to prosecute criminal organizations of all types. The statute allows the government to encapsulate and address decentralized organizations whose members commit criminal offenses without explicit agreement or instruction. In essence, RICO allows the government to constitutionally criminalize organizational membership and involvement.
The organizations that lead the “leaderless” resistance must be held accountable. This Note asserts that Congress can use RICO’s model of organizational accountability to create a domestic extremism statute that enables the government to undermine these organizations by: (1) designating domestic extremist organizations; and (2) prosecuting their support networks. This statute would provide the government with an effective and constitutional method to deter the greatest current extremist threat to the United States.