RICO is a pathetic means to an end. We need to do way better than RICO.
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 reality, RICO acts as an arbitrary penalty enhancer and prosecutorial bargaining tool. A violation of RICO is a crime of convenience—for prosecutors, that is. What defendant, charged with a predicate act carrying a potential sentence of a few years, would refuse to bargain with a prosecutor who says, “I’ll take the RICO charge with its mandatory twenty-year sentence off the table if you plead guilty to the predicate offense”? If this tactical weapon fails, a prosecutor faced with a resolute defendant determined to roll the dice at trial can still rest easy, knowing that RICO has stockpiled new procedural weapons in the prosecutor’s war chest. For example, RICO allows the government join into a single prosecution widely diverse defendants and crimes that, absent RICO, would be too disjointed to be allowed in the same trial under the rules of evidence and criminal procedure.
Owing to the highly derivative character of RICO offenses, a prosecutor has options when deciding what charges to seek in an indictment. There are few constraints on a prosecutor’s discretion to include a RICO charge along with others. Given the formidable sentences RICO threatens and the relatively weak evidence needed to prove that a defendant associated with a group of individuals who committed other crimes, prosecutors have much to gain by including a RICO charge. Such abuse of prosecutorial discretion aids politically motivated or vindictive prosecutions and produces concomitant suffering and injustice for the victimized defendants. Moreover, such abuse of prosecutorial discretion is virtually irremediable because of the legal doctrine of absolute prosecutorial immunity, which bars civil suits for damages against prosecutors.
https://www.independent.org/publications/tir/article.asp?id=215