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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.


Constitutional Law | Criminal Law | Law