![]() ![]() 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 usedwith federal judges, members of Congress, and the press acting as cheerleadersto overturn the protections inherent in due-process guarantees of the U.S. Much has been written about the RICO statute. ![]() ![]() For every John Gotti who is brought down by RICO, many obscure business owners and managers are also successfully prosecuted under this law. 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. Rudy Guilianis prosecution of Michael Milken and other Wall Street luminaries in the 1980sthe springboard from which Guiliani rose to become first the mayor of New York City and ultimately a popular public speaker collecting $75,000 per speechinvolved some of the early attempts to expand criminal RICO provisions to prosecute private business figures who clearly were not mafiosi. 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. Similarly, RICO has metastasized from its original intent, which was to deal more effectively with the perceived problem of organized crime. 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). 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 Nixons ∼rime Bill. In this article, we focus on prosecutions under RICO. 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. 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. 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 whitecollar crime. In others the law criminalizes conduct undertaken without any culpable intent. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. Thus, today the criminal law has strayed far from its historical roots. These essentially regulatory crimes have come to be known as public welfare offenses. 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 acts were wrongs in and of themselves ( malum in se), such as murder, rape, and robbery. At its inception, criminal law was directed at conduct that society recognized as inherently wrongful and, in some sense, immoral. To fundamental changes in the nature of criminal liability one must also add significant changes in the subject matter of criminal law. Paul Rosenzweig has described the nature of the changes as follows: 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). Once there were only three named federal criminal acts: treason, piracy, and counterfeiting. 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. In the past three decades, a veritable revolution has occurred in U.S.
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