In this his book "The Limits of the Criminal Sanction," Prof. Herbert Packer wrote, "We can have as much or as little crime as we please, depending on what we choose to count as criminal." The same goes for racketeering. We can have as much or as little racketeering as we please, depending on what we choose to count as racketeering.
By favoring legislation conceived and supported by the accounting, securities, banking and insurance industries, and introduced by Rep. Frederick Boucher (D-Va.), The Washington Post chooses to have hardly any racketeering committed by so-called "legitimate" Fortune 500 corporations ("Who's a Racketeer?" editorial, Dec. 6). This doesn't mean that such corporations aren't engaging in patterns of fraud -- racketeering -- on a massive scale. The evidence is overwhelming that they are. It only means that Boucher and The Post choose not to acknowledge the problem and choose instead to undermine the Racketeering Influenced and Corrupt Organizations Act (RICO), which, with its deterrence-potent treble-damage remedy for victims, is a strong anti-corporate fraud law that works. In the name of corporate crime control, Boucher's bill should be defeated.
It is generally agreed by all parties to this conflict that the Boucher bill would effectively exempt the vast majority of so called "legitimate" corporations engaged in fraudulent activity from RICO's reach. By so doing, the Boucher bill engraves a nasty double standard into law: strong penalties for racketeers who wear black shirts and white ties, no penalties for racketeers who wear Brooks Brothers suits and white collars.
This point was made forcefully by the National Association of Attorneys General and the National District Attorneys Association, who have joined the U.S. Justice Department, the North American Securities Administrators Association and the Citizens Coalition to Support and Defend RICO -- an organization of more than 20 public interest groups representing, among others, consumers, the elderly, veterans and students -- to oppose the Boucher bill and any attempt to weaken civil RICO. The prosecutors recently testified before a House Judiciary subcommittee that "the dictionary defines a 'racket' as a 'business run by fraud or extortion' and a 'racketeer' as one who runs a 'racket.' If 'legitimate' business people violate RICO's terms, they ought to be called 'racketeers.' No justification can be offered for limiting the term 'racketeer' -- or RICO -- to those whose names end in vowels."
The Boucher anti-RICO bill represents corporate special-interest pleading at its worst. Corporate lobbyists argue RICO was never intended to apply to "legitimate" businesses, such as General Motors, E. F. Hutton and Price Waterhouse, all of which have been defendants in RICO cases. But the Supreme Court decided the issue of what Congress intended when it held earlier this year that "Congress wanted to reach both 'legitimate' and 'illegitimate' enterprises. The former enjoy neither an inherent incapacity for criminal activity nor immunity from its consequences."
The question is, instead, what Congress intends today in light of the very real problem of corporate crime. According to figures compiled by NAAG and NDAA, fraud costs businesses and individuals upward of $100 billion each year. Securities theft and fraud costs $8 billion. Commodity investment fraud costs $200 million. Roughly half the bank failures and one-quarter of the savings and loan collapses had as a major contributing factor the criminal activity by insiders. Forty-five of the nation's top defense contracting corporations are under criminal investigation for a wide range of charges including false claims, bid rigging and cost mischarging.
The American Bar Association's RICO Committee of the Criminal Justice Section put it this way: "Ultimately, what Congress has to determine is whether the problem of white-collar crime in this country is sufficiently extensive to warrant the retention or creation of a federal remedy. If so, RICO arguably fills the bill. Its reach encompasses most aspects of business crime. It's powerful and flexible, but it passes constitutional muster. Its remedies -- treble damages, costs and attorneys fees -- are hardly novel, but they appear effective."
The Post charges that RICO is being misused by litigants in "run of the mill" business disputes such as landlord-tenant and divorce cases. Only a handful of such cases exist. And if RICO is being misused, those who are falsely alleging fraud should be punished. In a recent California RICO case, the presiding judge found no reasonable basis to support a RICO claim and ordered the plaintiff to pay the defendant $150,000 for bringing the frivolous RICO claim. Instead of leading with these few frivolous lawsuits, The Post could have brought to the attention of its readers examples from the majority of cases where RICO has been used or is being used by victims to gain compensation and punish, through the triple damage remedy, corporations engaged in fraud. These include RICO cases brought by Vietnam veterans, elderly people and the poor who claimed they were defrauded by mobile home, nursing home and home-improvement corporations, respectively.
The question comes down to this: at a time when corporate crime is rampant, costing the nation tens of billions of dollars a year, isn't it important to preserve for prosecutors and victims a strong remedy against the perpetrators? Federal, state and local prosecutors and the public interest community overwhelmingly say yes. Big business says no. The Post has made an unfortunate choice, but the question for Congress remains: which side are you on?