Iowa's State RICO Statute: Wreaking Havoc on Iowa's Criminal Justice System

• Author: Anna T. Stoeffler
• Position: J.D. Candidate, The University of Iowa College of Law, 2017; B.A., The University of Dubuque, 2013
• Pages: 825-850

Iowa’s State RICO Statute: Wreaking Havoc on Iowa’s Criminal Justice System Anna T. Stoeffler * ABSTRACT: Iowa’s Ongoing Criminal Conduct Act (“IOCCA”) was patterned after the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) and the Model Ongoing Criminal Conduct Act (“Model Act”). Yet, it exceeds the reach and intent of these acts, especially by excluding key provisions of the Model Act’s definition of “specified unlawful activity,” which limited its application to racketeering offenses or offenses characteristic of organized crime. This variation broadens the scope of people who can be charged under the IOCCA—a Class B felony with a 25-year sentence— thereby creating a prosecution tool to over-charge and intimidate defendants into taking plea deals. The ability to charge virtually any individual who commits two felonies in succession with an additional Class B felony for ongoing criminal conduct undermines the intent of the federal RICO statute and the Model Act to protect legitimate commerce from organized crime. It is also contrary to the principles of fairness and justice that society expects of the criminal justice system. This Note advocates that the Iowa Legislature constrict the reach of the IOCCA so that it only criminalizes what it was truly meant to combat: racketeering and organized crime. In doing so, this Note examines the problems and inefficiencies of the IOCCA, as well as the RICO statutes of other states, to determine the most effective approach to protect legitimate commerce from organized crime. I. INTRODUCTION ............................................................................. 827 II. BACKGROUND ............................................................................... 830 * J.D. Candidate, The University of Iowa College of Law, 2017; B.A., The University of Dubuque, 2013. Thank you to Joe Fraioli (Iowa Law Class of 2013) for introducing me to this topic and assisting me with its development; to the staff of Volumes 101 and 102 of the Iowa Law Review for their help on this Note; to Jenn Supple Bartels for her friendship; and to my parents for their continued support. Finally, a special thank you to Ben Bartels, my pre-law advisor at the University of Dubuque, for fueling my fire for the law, challenging me to become my best, and encouraging me every step of the way. 826 IOWA LAW REVIEW [Vol. 102:825 A. F EDERAL RICO, THE M ODEL A CT , AND THE R ISE OF I OWA ’ S S TATE RICO S TATUTE ............................................................. 830 B. T HE IOCCA: A R EFLECTION OF THE M ODEL A CT , IF O NLY IN A B ROKEN M IRROR .................................................................. 832 C. STATE V. REED AND STATE V. OLSEN : A D YNAMIC D UO OF I OWA S UPREME C OURT D ECISIONS WITH D YNAMIC E FFECTS ON THE S COPE OF I OWA ’ S O NGOING C RIMINAL C ONDUCT A CT ........ 834 III. MORE CRIMINAL ACTS FOR FINANCIAL GAIN, MORE PROBLEMS .. 837 A. A S TATISTICAL A NALYSIS OF I OWA ’ S O NGOING C RIMINAL C ONDUCT A CT ........................................................................ 838 B. C OMBATING O RGANIZED C RIME OR A BUSING THE “S PECIFIED U NLAWFUL A CTIVITY ” C ATEGORY OF THE IOCCA FOR P ROSECUTORIAL G AIN ? ........................................................... 839 1. The Technical Fouls of the IOCCA’s Broad Reach .... 840 2. Plea Considerations on Ongoing Criminal Conduct for “Specified Unlawful Activity” .................................. 842 IV. THE IOWA LEGISLATURE SHOULD ADOPT A NEW STATE RICO STATUTE ....................................................................................... 846 A. S TEP O NE : P ROVIDE A S TATEMENT OF P URPOSE ........................ 847 B. S TEP T WO : R EFORM THE D EFINITION OF “S PECIFIED U NLAWFUL A CTIVITY ” TO E XPRESSLY S TATE W HICH C RIMES OR C ATEGORIES OF C RIMES C ONSTITUTE O NGOING C RIMINAL C ONDUCT FOR “S PECIFIED U NLAWFUL A CTIVITY ” ............................................ 848 C. S TEP T HREE : R EQUIRE P ROSECUTORS TO A LLEGE AT L EAST T WO I NTERRELATED A CTS OF “S PECIFIED U NLAWFUL A CTIVITY ” A SSOCIATED WITH R ACKETEERING OR O RGANIZED C RIME IN T HEIR C HARGING I NFORMATION ........................................................ 849 V. CONCLUSION ................................................................................ 850 2017] IOWA’S STATE RICO STATUTE 827 I. INTRODUCTION Critics of the United States’ criminal justice system increasingly call for reform, with scholars and laymen alike highlighting the lengthy sentences for non-violent crimes, 1 racial disparities in conviction and sentencing, 2 police violence, 3 and the ineffectiveness of jury trials. 4 As Judge Kozinski of the Ninth Circuit wrote in his article, Criminal Law 2.0 , “there are enough doubts on a broad range of subjects touching intimately on the integrity of the system that we should be concerned.” 5 Among the frequent concerns affecting the integrity of the criminal justice system is the power of prosecutors in America. Because most criminal cases are resolved through plea bargains, prosecutors have immense power. 6 Prosecutors often have more power to decide a 1 . See Shima Baradaran, Drugs and Violence , 88 S. CAL. L. REV. 227, 259 (2015) (detailing the problems with drug sentencing guidelines, stating, “[d]ue to the assumption that drug crime is violent crime . . . a defendant convicted of murder may have a lower sentence than a nonviolent drug dealer”); Douglas Ray Dunkins Jr., Opinion, I Have a Life Sentence for a Nonviolent Drug Crime. Clemency Is My Only Hope , GUARDIAN (July 16, 2015, 11:45 AM), http://www.theguardian.com/commentisfree/2015/ jul/16/life-sentence-nonviolent-drug-clemency. 2. In male prisons, non-Hispanic blacks “comprised the largest portion of male inmates under state or federal jurisdiction in 2013” at 37%, while non-Hispanic whites accounted for 32% of the prison population and Hispanics made up 22% of the population. E. ANN CARSON, U.S. DEP’T OF JUSTICE, PRISONERS IN 2013 1 (2014), http://www.bjs.gov/content/pub/pdf/p13.pdf. Similarly, the imprisonment rate for black females was double that of white females. Id. As Marc Mauer, the executive director of The Sentencing Project stated, “[t]hese [disparities] also contribute to eroding trust in the justice system in communities of color—an outcome that is clearly counterproductive to public safety goals. It is long past time for the nation to commit itself to a comprehensive assessment of the causes and remedies for addressing these issues.” Marc Mauer, Justice for All? Challenging Racial Disparities in the Criminal Justice System , 37 HUM. RTS. 14, 16 (2010). 3. See, e.g. , Kevin Johnson, Lack of Training, Standards Mean Big Problems for Small Police Departments , USA TODAY (June 23, 2015, 4:39 PM), http://www.usatoday.com/story/news/nation/ 2015/06/23/small-police-departments-standards-training/28823849 (describing the problems facing small police departments, but also discussing the “unprecedented scrutiny” of policing in America); Justin Worland, U.N. Panel Sharply Criticizes Police Brutality in U.S. , TIME (Nov. 28, 2014), http://time.com/3609811/police-brutality-united-states-un-ferguson-torture (discussing incidents of police violence in America and the United Nations’ “critici[sm of] the United States for police brutality, military interrogations and excessive use of force by law enforcement”). 4. Judge Kozinski of the Ninth Circuit described his experience debriefing jurors on their verdicts by saying, “[s]ome of the comments seem entirely rational, but much of what jurors describe looks like a fun-house mirror reflection of Twelve Angry Men .” Alex Kozinski, Criminal Law 2.0 , 44 GEO. L.J. ANN. REV. CRIM. PROC., iii, xix (2015); see also Julius H. Miner, The Jury Problem , 37 J. CRIM. L. & CRIMINOLOGY 1, 2 (1946) (“The woeful lack of intellectual endowment on the part of a juror is no doubt a most serious difficulty of common occurrence. Such lack of endowment is, to the defense lawyer in a criminal case, the very highest qualification any juror can possess. If a prospective juror discloses intelligence and competency he is promptly excused by the defense.”). 5. Kozinski, supra note 4, at xiii. 6. “While there are no exact estimates of the proportion of cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process.” LINDSEY DEVERS, BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE, PLEA AND CHARGE BARGAINING: RESEARCH SUMMARY 1 (2011), http://www.bja.gov/ Publications/PleaBargainingResearchSummary.pdf. 828 IOWA LAW REVIEW [Vol. 102:825 defendant’s fate than jurors, as they have the ability to stack charges to increase the risks a defendant faces by going to trial. 7 Of course, prosecutors are supposed to seek fairness and justice. As the Supreme Court noted in Berger v. United States : [A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor— indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. 8 In an effort to ensure that prosecutors act with fairness and justice, the American Bar Association imposes standards on prosecutors to prevent them from overcharging defendants. 9 However, these standards do not prevent prosecutors from pursuing the most severe charges supported by the evidence, even if a jury conviction is unlikely. 10 Likewise, prosecutors often make charging decisions in private with little or no oversight to hold 7. Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny , 86 IOWA L. REV. 393, 408 (2001)...