Document Type

Article

Publication Date

1990

Abstract

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no value to the deterrent or punitive goals of the criminal law, and still find civil RICO lawsuits valuable for their role in compensating crime victims. Or one might find civil RICO of some value to law enforcement, but find that value outweighed by other costs of the remedy - the encouragement of burdensome, frivolous lawsuits or the upset of some appropriate balance between plaintiffs and defendants. But if the inquiry would be only part of an attempt to assess the costs and benefits of civil RICO, it would still be an important part of such an assessment.

The question seems a simple one. No terribly controversial assumptions appear to lie behind it. Obviously, the norms of criminal law represent important social policies. We can, of course, argue about the desirability of any particular criminal statute, but taken as a whole, what the law defines as criminal behavior must be taken to be behavior that society wishes deeply to repress. There are various, necessarily fallible, procedures for enforcing these norms, in order to deter and/or punish their violation. Civil lawsuits of a particular kind have been authorized, in part for the purpose of supplementing those procedures. An evaluation of the utility and fairness of the law permitting such suits should plainly include a discussion of whether the law has served that task. And so we should proceed to ask what civil RICO has contributed to the deterrence and punishment of offenders.

The reader of a paper with this title naturally expects one of two answers to the question posed - or, perhaps more likely in an academic context, some rather judicious middle position blending aspects of both. One possible answer is that civil RICO has vindicated the hopes of its authors and sponsors. Their notion was that far more crimes are committed than the overburdened criminal justice system can possibly handle. Why not provide an incentive for the victims of (at least the more serious, more planned, more continuous) crimes to supplement the efforts of the Justice Department by filing private lawsuits? The victims would be compensated and the wrongdoers punished, all in a single action without the expenditure of state resources or the enhancement of state power. A favorable assessment of civil RICO would claim that this is exactly what has happened. Perhaps a few, or even many, frivolous claims have been made, attracted by the possibility of treble damage recoveries, but this problem will sort itself out: the courts will reject invalid suits, and, at least in cases where recovery is allowed, the private plaintiff has, by definition, succeeded in punishing criminal conduct that often would otherwise have gone unadjudicated.

On the other hand, the answer might be that civil RICO contributes little or nothing to criminal law enforcement. The outlines of such a position would probably go something like this: Take a random sample of reported civil RICO cases. The vast bulk of the sample will consist of what the courts like to call "ordinary commercial disputes." Two businesses have engaged in a transaction or series of transactions that have left one party feeling aggrieved; the aggrieved party claims to have been defrauded by some alleged behavior of its erstwhile associate, now adversary; a lawsuit results in which the aggrieved party demands compensation. Under pre-RICO forms of action, this dispute might be formulated as a breach of contract or a tort of fraud or deceit; today, the plaintiff is likely to assert that the defendant committed a pattern of violations of the federal mail fraud statute in the course of operating his business enterprise and, therefore, violated RICO.

A paper about the utility of civil RICO to the goals of crime prevention and punishment might be expected to adjudicate between these views. My guess would be that most readers would expect the questions addressed to be largely empirical. What sorts of cases have been brought under civil RICO, and do they correspond more to the hopes of its proponents or to the derision of its critics?

If this were to be that kind of paper, I would argue the second, more critical view. And, as we will see, I will eventually make an argument that points in that direction. But on closer consideration, it seems to me that the two views outlined above are divided more by conceptual than by empirical differences. It will perhaps be fruitful to examine their differing assumptions about the nature of criminal law enforcement and the relationship between public law enforcement and private civil lawsuits.

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