Academic journal article Independent Review

Law as a Weapon: How RICO Subverts Liberty and the True Purpose of Law

Academic journal article Independent Review

Law as a Weapon: How RICO Subverts Liberty and the True Purpose of Law

Article excerpt

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. …

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