A Brief History of Resistance to the RICO Statute and What Can Be Done
The Rise of the Resistance to RICO
Over the past several weeks and months, Georgia’s RICO statute has faced an onslaught of criticism from defense attorneys and opinion pieces in print media. There is a move afoot to pare back the RICO statute in the legislature in the upcoming session. Hopefully, these efforts will not succeed. The statute itself is good. Indeed, the vast amount of good accomplished by Georgia’s RICO statute far outweighs any rare misapplication by the untrained or overambitious practitioner.
The RICO statute has been a subject of derision since its inception. Federally, the Racketeer Influenced and Corrupt Organizations Act, commonly known as the RICO statute, was enacted in 1970 as a part of the Organized Crime Control Act. Its primary aim was to combat organized crime by allowing prosecution of individuals involved in a criminal enterprise. Over the years, the RICO statute has not only targeted traditional organized crime groups, such as the Mafia, but also has been extended to white-collar crimes, corrupt organizations, and civil cases.
As a result, RICO’s broad application has faced significant resistance from various quarters, including legal professionals, businesses, and civil rights organizations. It is worthwhile to explore the historical context of this resistance, its motivations, and the evolving legal landscape around the RICO statute.
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1. The Origins of the RICO Statute
The RICO statute was born out of a need to address the increasing threat posed by organized crime in the mid-20th century. Organized crime syndicates, particularly the Mafia, had entrenched themselves in various industries, from gambling and drug trafficking to legitimate businesses, thereby influencing economic and political spheres. Traditional legal mechanisms were inadequate to dismantle these organizations, as they could only prosecute individual crimes without addressing the broader criminal enterprises.
Senator John L. McClellan and Attorney General Robert F. Kennedy, Democrats, were among the key figures advocating for stronger legal tools to combat organized crime. This led to the development and eventual passage of the RICO statute, which introduced a novel legal framework: it allowed for the prosecution of all individuals associated with a criminal organization, regardless of their direct involvement in specific criminal acts.
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2. Early Resistance to RICO
Legal Community Concerns
Initially, the legal community expressed concerns about the potential for abuse of the RICO statute. One of the main points of resistance was the statute's broad language, which defined "racketeering activity" to include a wide array of criminal acts. Critics argued that this broad definition could lead to overzealous prosecutions, where minor players in an organization could face the same severe penalties as the masterminds.
Moreover, the statute allowed for both criminal and civil penalties, including forfeiture of assets, which raised concerns about the potential for excessive punishment. The legal principle of proportionality—ensuring that punishment fits the crime—seemed at risk under RICO’s provisions.
Business Sector Concerns
Civilly, businesses also resisted RICO's application, fearing the stigma associated with being labeled as a "racketeering enterprise." The statute's civil provisions, which allows private parties to sue for treble damages, led to concerns about frivolous lawsuits. Businesses, particularly those in highly regulated industries like banking and finance, worried about the ease with which competitors or disgruntled clients could file RICO suits to gain leverage or inflict damage.
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3. Expansion of RICO and Increased Resistance
Beyond Organized Crime
As the RICO statute began to be applied beyond organized crime, the resistance intensified. Prosecutors and civil litigants used RICO against white-collar crimes, including securities fraud, embezzlement, and even political corruption. This expansion led to criticisms that RICO was being used as a "super-litigation weapon," transforming it from a tool against organized crime into a broad instrument for various types of litigation.
The legal community again voiced concerns about due process and the risk of chilling legitimate business practices. The fear was that the threat of RICO litigation could deter normal business operations, particularly in industries where aggressive strategies were commonplace.
Civil Liberties Resistance
Civil liberties organizations raised alarms about RICO's potential to infringe on constitutional rights. The statute’s ability to target groups as "criminal enterprises" raised concerns about First Amendment rights, particularly regarding freedom of association and, now, of speech. There was a fear that RICO could be used to target political dissidents or unpopular organizations under the guise of combating racketeering.
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Landmark Cases and Judicial Interpretation
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One of the earliest significant challenges to RICO came in the case of United States v. Turkette (1981). The Supreme Court addressed whether RICO could be applied to both legitimate and illegitimate enterprises. The Court upheld the broad application of RICO, confirming that it could target both legal and illegal organizations involved in racketeering activity. This decision reinforced the statute's broad scope, much to the chagrin of its critics.
In Sedima, S.P.R.L. v. Imrex Co., the Supreme Court addressed the civil application of RICO. The case focused on whether plaintiffs needed to show a prior criminal conviction to bring a RICO civil suit. The Court ruled that no prior criminal conviction was necessary, significantly lowering the threshold for civil RICO suits. This decision led to a surge in RICO litigation, sparking further resistance from businesses and legal experts concerned about misuse of the statute.
Another pivotal case was H.J. Inc. v. Northwestern Bell Telephone Co., where the Supreme Court clarified the "pattern of racketeering activity" requirement under RICO. The Court ruled that a pattern could be established through either related acts occurring over a substantial period or acts with the threat of future criminal conduct. This interpretation widened the scope for RICO prosecutions and civil actions, prompting more vocal opposition from those fearing the statute’s misuse. As noted in the opinion,
suppose a hoodlum were to sell "insurance" to a neighborhood's storekeepers to cover them against breakage of their windows, telling his victims he would be reappearing each month to collect the "premium" that would continue their "coverage." Though the number of related predicates involved may be small and they may occur close together in time, the racketeering acts themselves include a specific threat of repetition extending indefinitely into the future, and thus supply the requisite threat of continuity. In other cases, the threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity's regular way of doing business.
Legislative Attempts to Amend RICO
In addition to the judicial limitations and clarifications above, there have been legislative efforts to curb and limit the power of federal RICO. Against overreach and misuse. Proposals have included narrowing the definition of racketeering activity, raising the threshold for civil suits, and limiting the types of cases that can be pursued under RICO.
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The Good of RICO
Although the RICO case involving Young Thug and others have dominated the Atlanta news media for quite a while, there exists a vast number of cases where RICO was used appropriately to end the devastation of violent gangs, human traffickers, and the like.
In addition to these, I have personally handled many multi-million-dollar theft cases, drug traffickers operating out of our prisons, organized retail criminal enterprises, corrupt politicians, and sovereign citizens utilizing Georgia’s RICO statute. I am not alone. District Attorneys and their Assistants in Cherokee, Cobb, Columbia, Floyd, Coweta, Gwinnett, and others are using the statute effectively to face down the tsunami of crime that comes with being the tenth-largest state in the Union with a population greater than the country of Sweden.
Last week, the Georgia Gang Investigator’s Association released its latest survey estimating more than 127,000 known gang members. An increase of 80% in the past 6 years. Yet, during this time, a decrease in Atlanta occurred. Specifically, 2022, Atlanta police saw a decline of 26.7% in homicides and 27.8% in firearm aggravated assaults the same year that the above indictment was released.
As the legislature meets, please consider this -- give District Attorneys and law enforcement more resources. Don’t water down the most effective tool that we have in the arsenal to battle and combat crime -- Georgia's RICO statute.
?Conclusion
The Georgia RICO statute remains a powerful and indispensable tool in the fight against organized crime and complex criminal enterprises. Its successes in dismantling criminal organizations, addressing corruption, and tackling financial fraud underscore its importance in our legal system.
There is an old saying “don’t throw the baby out with the bathwater.” As the legislature meets, proposals will be offered to amend Georgia’s RICO statute. It is helpful to remember that striking a balance between effective enforcement and protecting individual rights requires ongoing vigilance. Law enforcement agencies and prosecutors must exercise discretion in applying RICO, focusing on cases that genuinely warrant its use. Training by qualified practitioners and oversight by vigilant District Attorneys can help ensure that RICO is applied judiciously and that its powerful tools are not used to target individuals or groups unjustly. By addressing these concerns, RICO can continue to serve as a cornerstone of efforts to combat organized crime while upholding the principles of justice and fairness.