In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of the predicate criminal acts rather than of the alleged enterprise, roughly the same figure appears: about forty percent of the cases involve allegations of concerted criminal activity by more-or-less organized criminal groups, with the rest divided among the various types of perversion of legitimate institutions discussed in the preceding sections. These figures demonstrate that the principal use of RICO has not been to deal with the distinctive evil of infiltration by the mob into legitimate enterprises, but rather to add an additional weapon to prosecutors' efforts to attack organized criminal groups themselves for their primary illegal activities.
The illicit association cases present a broad spectrum of illegal activities. In many of the cases, the illicit activities charged as predicate acts involve repeated instances of the same general type of criminal conduct. The large number of RICO narcotics prosecutions typify this kind of case, although similar examples involving gambling and prostitution activity can be cited. Other cases involve arson, extortion, and theft or fencing schemes.
The use of RICO in many of these cases appears indistinguishable from the use of ordinary conspiracy law. Although most of the RICO cases seem to involve particularly large or lucrative conspiracies, some of them are strikingly ordinary criminal conspiracies. Why have prosecutors invoked RICO so frequently? The cases in this area are so diverse that no single answer is possible. In some instances, particularly in simple cases involving schemes limited to one particular sort of crime, the answers parallel those we have already seen in the political corruption, white collar, and labor racketeering areas.
Gerard E. Lynch,
RICO: The Crime of Being a Criminal Parts III and IV,
Colum. L. Rev.
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