Law as a weapon: how RICO subverts liberty and the true purpose of law.

• Author: Anderson, William L.

In the past three decades, a veritable revolution has occurred in U.S. criminal law. It has taken place for the most part at the federal level, where the number of crimes with which individuals can be charged has grown rapidly. Once there were only three named federal criminal acts: treason, piracy, and counterfeiting. Now there are thousands of federal laws and regulations, and the violation of any one of them, no matter how unintentional and harmless the transgression, can lead to years of imprisonment for the convicted person (Roberts and Stratton 2000).

Paul Rosenzweig has described the nature of the changes as follows:

To [the] fundamental changes in the nature of criminal liability one must also add significant changes in the subject matter of criminal law. At its inception, criminal law was directed at conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts were wrongs in and of themselves (malum in se), such as murder, rape, and robbery. In recent times the reach of the criminal law has been expanded so that it now addresses conduct that is wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum prohibitum)--that is, a wrong created by a legislative body to serve some perceived public good. These essentially regulatory crimes have come to be known as "public welfare" offenses. Thus, today the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. In others the law criminalizes conduct undertaken without any culpable intent. (2003, 2-3) The growth of the federal criminal code has come in the wake of attempts by politicians and federal bureaucrats to "do something" about perceived crime rates, to stop illegal drug use by Americans, and to punish individuals who engage in "white-collar" crime. In the process of expanding the federal role in identifying and prosecuting "criminal" behavior, however, the federal government has become a formidable conviction and imprisonment machine. Unfortunately, as Rosenzweig writes, many of the "crimes" and punishments can be described only as arbitrary, reflecting neither the seriousness of the offense nor the harm (if any) caused to other individuals.

Much of the growth of federal criminal procedures has been tied to the expanded use of the Racketeer Influenced and Corrupt Organizations Act (RICO), which Congress passed without much opposition in 1970 as the centerpiece of President Richard Nixon's "Crime Bill." In this article, we focus on prosecutions under RICO. In many ways, this law has turned out to be a modern-day rendition of the infamous Waltham Black Act of 1723, which, according to Follett, "originally outlawed poaching in disguise or in 'blacked' face, but judicial interpretations soon divorced its various provisions from their original context, leading to a list of fifty or more crimes punishable by death" (2001, 21).

Similarly, RICO has metastasized from its original intent, which was to deal more effectively with the perceived problem of organized crime. Federal prosecutors have discovered that RICO is a powerful weapon that can be wielded against most business owners, should the feds choose to target them. Rudy Guiliani's prosecution of Michael Milken and other Wall Street luminaries in the 1980s--the springboard from which Guiliani rose to become first the mayor of New York City and ultimately a popular public speaker collecting $75,000 per speech--involved some of the early attempts to expand criminal RICO provisions to prosecute private business figures who clearly were not mafiosi. Today, federal prosecutors use RICO routinely to win easy convictions and prison terms for individuals who in the course of business run afoul of federal regulations. For every John Gotti who is brought down by RICO, many obscure business owners and managers are also successfully prosecuted under this law.

Much has been written about the RICO statute. (1) Rather than a summary of this vast literature, we offer a view of RICO from another angle, examining how it has revolutionized federal criminal law and how it has been used--with federal judges, members of Congress, and the press acting as cheerleaders--to overturn the protections inherent in due-process guarantees of the U.S. Constitution. Overturn is not too strong a word in this regard, given that in a RICO case, those charged are treated as guilty until proven innocent.

In tracing the development of RICO, we find that the law was little more than a "bait-and-switch" statute that has had little or no effect in stopping or inhibiting the crimes--murder, rape, robbery, and so forth--that most concerned the public in 1970. Instead, RICO has enabled federal prosecutors in effect to circumvent the constitutional separation of powers between the national and the state governments. Since RICO's passage, the once-clear jurisdictional boundaries between state and federal law enforcement have been erased as more and more individuals find themselves in the federal dock with almost no chance of acquittal.

Although the civil portions of the law have played an important part in the expansion of criminal RICO, we focus here on the criminal side. We examine the political and legal climate that existed when RICO was enacted, and we consider how federal criminal law generally differs from state law. We also point out the "derivative" nature of federal criminal statutes: many of the "crimes" in federal laws are little more than legal fictions that serve only to gain convictions and imprison individuals. Finally, we call for a repeal of the RICO statute and others like it. If law is to serve as a shield for the innocent, as William Blackstone envisioned (Roberts and Stratton 2000), then RICO cannot be tolerated.

Political Climate, "Derivative Crimes," and RICO

The RICO statute emerged from two separate though related sources: fears of crime in general and fears of organized crime. Furthermore, the political situation in 1970 favored the enactment of such a statute.

The U.S. presidential election of 1968 was like no other in the nation's history. In that year, Robert Kennedy, a strong contender for the Democratic nomination, and Martin Luther King Jr., an important political figure in his own right, were assassinated. The Johnson administration increased the intensity of its conduct of the Vietnam War following the Tet Offensive, and protests against the war became more passionate and violent. Then came the disastrous Democratic National Convention in Chicago, where antiwar protesters dominated the action both inside and outside the convention hall.

It is hardly surprising that in such a political climate the "law and order" issue resonated with all the viable candidates, from Kennedy to Nixon to third-party candidate George C. Wallace (White 1969). As Theodore White noted, "The two surest-fire applause lines in any candidate's speech [during the 1968 election campaign] were always his calls for 'law-and-order' at home and 'peace' in Vietnam. This is what the American people--poor and rich, white and black--wanted to hear" (1969, 189). Besides the violence associated with political issues such as opposition to the Vietnam War, crime rates for ordinary offenses were rising. Reported murders, rapes, aggravated assaults, robberies, and burglaries, all increased rapidly, relative to population, from 1960 to 1970. Americans wanted something done about crime, and both Nixon and Congress were looking for something to allay the public's fears. The...