One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name.
RICO's complexity has attracted several efforts to unscramble the many issues of interpretation it poses. The potency of its sanctions and the procedural advantages it bestows on prosecutors have drawn polemics of praise and criticism from practitioners and scholars with ties to law enforcement or defense practice. Yet there has been little discussion of the fundamental questions RICO poses concerning some of our basic assumptions about criminal law and procedure.
One reason for this lack of discussion may be that the uses of RICO that most starkly raise the issues I have in mind were not contemplated in the congressional debates about the statute and have become more clearly dominant with the passage of time. Congress viewed RICO principally as a tool for attacking the specific problem of infiltration of legitimate business by organized criminal syndicates. As such, RICO has hardly been a dramatic success. Few notable RICO prosecutions have dealt directly with this sort of criminal activity.
Instead, prosecutors have seized on the virtually unlimited sweep of the language of RICO to bring a wide variety of different prosecutions in the form of RICO indictments. All but ignoring those subsections of RICO that directly prohibit the act of infiltrating legitimate business by investment of illicit profits or by illegitimate tactics, prosecutors have relied principally on the expansive prohibition of the operation of an enterprise through a pattern of racketeering activity to strike at those – whether or not they fit any ordinary definition of "racketeer" or "organized criminal" – who commit crimes in conducting the affairs of businesses, labor unions, and government offices.
Gerard E. Lynch,
RICO: The Crime of Being a Criminal Parts I and II,
Colum. L. Rev
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/131