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RICO and the Constitution
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19337 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
6 / 1991 |
6,507 Words |
| Author
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Gerald B. Lefcourt
Gerald B. Lefcourt is a lawyer in private practice in New York
City. |
Although legislation to curb racketeering became effective in 1970, it was not for at least ten years that prosecutors began to use it with any regularity. In the early stages of its development, Racketeer Influenced, Corrupt Organization (RICO) was applied in the context of traditional alleged "organized crime" groups--Mafia "families" or other structured criminal organizations. The bench and the bar so uniformly disapproves of "organized crime" that, in RICO's incipient phase, they exalted its excesses. As a result, they have permitted their agreement with RICO's goals to overcome the proper alarm they should feel about its means. Now, almost twenty years after RICO became law, the very same people who have supported RICO when it has been used against traditional "organized crime" question its broader use in both the civil and criminal context.
For example, in contrast to the cheerleading of previous years, newspaper editorials now question the way RICO grows yearly by leaps and bounds. As RICO is applied more frequently to "white collar" criminal activity, or in its myriad civil applications, many observers have begun to wonder whether this new monster can be controlled.
As the Los Angles Times remarked in an August 16, 1989, editorial,
A good law has several essential attributes: It is clear; it addresses itself to a specific and clearly defined form of illicit conduct; it prescribes a remedy or punishment proportionate to the damage done by the offense. Statutes that fail to meet these tests are enacted not in the cause of justice, but for the convenience of the state. RICO, in fact, is one of the latter.
What has happened to cause not just the Los Angles Times, but many editorial writers, to view RICO in this light? Since 1980, the federal appellate courts have permitted, indeed even encouraged, continued expansion of RICO's breadth. Brick by brick, piece by piece, through a "tyranny of small decisions," RICO's scope has grown out of all proportion. For instance, the following tenets of RICO law have been established by ostensibly small, individual decisions:
1.RICO does not require a nexus to organized crime as in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985);
2.No special "racketeering injury" is required in a civil RICO case, according to the Sedima
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