Current RICO Policies of the Department of Justice

Open Access

Abstract

In H.J. Inc. v. Northwestern Bell Telephone Co. the United States Supreme Court issued its latest opinion interpreting the reach of the Racketeer Influenced and Corrupt Organizations Act (RICO).' The H.J. Inc. decision comes at a time when the RICO statute is at the center of controversy. Those opposed to private treble damages suits particularly attack the statute. The defense bar attacks the use of the statute in white-collar prosecutions, especially in those cases involving securities fraud. If the defense bar has its way in Congress, RICO could not be invoked in cases involving fraud alone. The criminal defense bar also has criticized the pretrial restraining orders and subsequent forfeitures that have been ordered by the courts in several high-profile RICO cases. The Department of Justice, the agency primarily responsible for bringing RICO actions on behalf of the Federal Government, must formulate a reasonable plan for the development of RICO. RICO has proven to be the Department's most effective tool against organized crime and other serious criminal activity, and the flexibility it gives prosecutors must be retained. At the same time, we must concede the legitimate concerns of the private bar, the public, and, of course, the Supreme Court, that RICO, like any statute, is subject to abuse. Most current efforts at legislative reform of RICO have been designed to curb alleged abuses by private plaintiffs. Nevertheless, we continue to fear that our use of RICO will be unfairly lumped together with the many private RICO suits that have created calls for reform. If we let this brush tar our image, Congress might curtail needlessly the criminal provisions of this most important statute. Our best defense is our record. It is important, therefore, to review the evolution and success of criminal RICO prosecutions.