RICO

The Racketeer-Influenced and Corrupt Organizations Act (RICO) has had a troubled history even before this year. As an act it is only dubiously aligned with the Anglo-American tradition of law, which ordinarily requires proof beyond a reasonable doubt that someone broke a particular law on a particular occasion. RICO bypasses via what you might call a dramatic approach: instead of establishing that Person X did Crime Y on occasion Z, it tells a story about how Person X and Person Q and perhaps several other persons have been engaged in an ongoing criminal conspiracy. You have to prove a couple of crimes still -- a historic one and a more recent one, more or less -- but you are then allowed to assume the conspiracy as an ongoing fact.

There are reasons to be suspicious of granting prosecutors this power to bypass ordinary standards. Humans are storytelling creatures by nature, and having a story that explains can end up enabling a lot of cognitive biases that often lead humans to bad decisions. Cognitive bias is a dread fact afflicting even the most rigorous science. Achieving reasonable clarity on the facts is hard in criminal law, and a great deal is at stake. Letting prosecutors tack up a story with only a couple of things they can actually nail down is likely to lead to suspect convictions. 

Sometimes juries don't buy it. One of the most famous RICO prosecutions was 1979's US vs. Barger, in which the US Federal government tried and failed to paint the Hells Angels Motorcycle Club as a racketeering organization. It was clear that some Angels had guns, and others had drugs; they never could show that the club was in the business of guns or drugs. Even with a story the prosecutors told in the blackest terms, the jury saw the club in a different light. They saw the guns and drugs as individual acts within a culture that embraced outlaw imagery, and didn't buy that it was a criminal enterprise. Prosecutors spent a lot of money, as well as a lot of time, trying to build their case; in the end, the audience for whatever reason wouldn't believe it. 

Georgia is now running two RICO cases [correction: under Georgia's version of the Federal statute, which is even broader] in which the political bias of the jury is likely to play a big role in what kind of story they are prepared to believe. Personally I think it's simultaneously ridiculous and also highly plausible to view a political campaign's efforts to work recounts as a racketeering conspiracy: ridiculous because it's not criminal, and indeed universal to high-level campaigns, but plausible because frankly all these politicians are criminals and the whole business has become a species of corrupt racketeering. 

That, though, is a reason to indict all the major politicians; it won't do for us to pretend that they aren't all engaged in corrupt conspiracies, just this one guy and his team. (The irony of seeing former prosecutor Rudy Giuliani of all people indicted under RICO, after he made his name using it against the mob, is striking.) We're not bringing charges against the Biden crime family? The Clintons? The Pelosis? All of them? 

Yet I suspect that the indictment inside Atlanta is likely to produce a jury for whom the story of the Trump organization as an ongoing criminal conspiracy won't even have to be sold. The jury may well come into the room believing that, and confirmation bias will then allow them to believe everything else. A conviction there is highly probable unless his lawyers succeed in getting a jury from the state more broadly, as they might for example by a change of venue or a shift to prosecution in Federal court. 

The second case is against a group of what it is popular to call ANTIFA organizations, some 60 members of them who are protesting the 'cop city' development of the Atlanta Police Department. The thing about these sorts of organizations is that they're not criminal enterprises, because they're not enterprises. They are conspiracies, certainly; and they are often criminal conspiracies, in that they conspire about the practicalities of violating the law and getting away with it. But to be convicted under RICO, you have to show that the acts are part of an ongoing criminal enterprise, and these kids aren't trying to make any money. They're trying to effect political change, even if it costs them money (or jail time). 

I personally think that prosecutors should have to prove everything they want to punish you for to the 'beyond a reasonable doubt' standard. These dramatic prosecutions don't seem to me to be in good order, or in the best of our traditions of ordered liberty. The state should always have to prove its case before a jury if it wants to deprive any citizen of life or liberty; I don't even think plea bargains should be permitted, as that loophole has expanded to embrace 90% of prosecutions (98% in Federal court). The state almost never now has to actually prove its case, even when they aren't granted the power to go spinning stories that are barely tacked up with facts. 

Generally I see commentary about this that the prosecutions show a kind of fairness, as Georgia's prosecutors are going against both Trump and ANTIFA. That's an optimistic way of looking at it. In both cases, the establishment is going after its enemies. Calling that evenhanded is fair only insofar as you are likening them to a swordsman, who slays his foes on his right hand as well as on his left. 

9 comments:

  1. Does the "criminal enterprise" change if the Antifa are found to be employed to do their mischief?

    ReplyDelete
  2. I have not read any commentary, but if it is as you say I think you have every right to disapprove. How is a plan to discredit and remove both Trump advocates and the less-Bidenish wing of the Democratic Party evenhanded in any real sense?

    I think I would have approved of this conviction-by-narrative in my younger days. My sense of justice was so offended by groups of bad guys getting away with things that I may have regarded their rights as less important than individuals. I don't really recall. But a career of learning that the stories told about supposed bad guys are often inverted, poorly substantiated, or following a prejudice rather than actual evidence that I want a much tighter rein on such things now.

    There is also the comedy routine by Bill Burr about Metoo that is pretty accurate in what happens with mission creep when going after bad guys. https://www.youtube.com/watch?v=2VU671ecPdU (In case you don't know, Bill Burr = language alert.)

    ReplyDelete
  3. The government demonstrates difficulties with the learning curve.

    1979's US vs. Barger, in which the US Federal government tried and failed to paint the Hells Angels Motorcycle Club as a racketeering organization.

    Was followed by a major operation in 2015 where shoot-outs in Waco (choice of location after the 1993 Religious Cult vs Feds showing even more learning disabilities) between various "clubs" of bikers and an ad hoc alliance of law enforcement agencies* resulted in 9 deaths, (zero of whom were cops ore even civilians) 20 woundings, 177 arrests, 7 years of legal nonsense and zero convictions on any local, state, or federal racketeering charges.


    * The famed Texas Rangers, who have a historical museum in Waco, distinguished themselves, if not covered themselves in glory, by missing the meeting.

    ReplyDelete
  4. James,

    "Does the 'criminal enterprise' change if the Antifa are found to be employed to do their mischief?"

    Presumably that could constitute an enterprise, but I don't think it's the case. As the article notes, these are mostly children of privilege who are protesting because its cool in their social and age group. It's the union of what people have been calling 'wokeness,' Black Lives Matter, antifascist action, all of that stuff. They're not paid, they're wealthy enough to afford the time.

    I have some visibility into similar groups in the DC area, and they're a mixture of young activists like this led by middle aged white feminists. None of them are paid to do it; it's all volunteer. They're true believers.

    ReplyDelete
  5. AVI,

    Bill Burr definitely has his moments. He did a similar routine about how generals should be studying the way that white women put themselves at the front of the oppression line and took over 'the Woke movement,' which he describes as having been about helping minorities with genuine oppression. As per the comment to James above, he's definitely right: the leadership is often middle aged women with axes to grind, but also enough years of experience to be effective organizers. They're dedicated because of their ideology, and they're effective because of their commitment and experience.

    ReplyDelete
  6. In fact I guess it's the same demographic that you were talking about as being the real salvation of churches: the middle aged women who bake cookies and teach people how to sing the songs. Different songs, same cookies.

    ReplyDelete
  7. J. Melcher,

    "Was followed by a major operation in 2015 where shoot-outs in Waco (choice of location after the 1993 Religious Cult vs Feds showing even more learning disabilities) between various "clubs" of bikers and an ad hoc alliance of law enforcement agencies* resulted in 9 deaths, (zero of whom were cops ore even civilians) 20 woundings, 177 arrests, 7 years of legal nonsense and zero convictions on any local, state, or federal racketeering charges."

    Yes, I wrote about that a lot at the time it happened. It looks like the police killed everyone who was killed, arrested all the bikers and charged them to the ceiling, allowed their lawyers access to evidence only if they'd sign a waiver promising not to go to the press about what that evidence showed, and then dropped all the charges in return for promises not to talk to the press.

    https://grimbeorn.blogspot.com/2015/12/waco-update-defense-lawyer-barred.html

    https://grimbeorn.blogspot.com/2016/04/waco-update.html

    https://grimbeorn.blogspot.com/2019/04/waco-update.html

    It was a massacre of citizens by the police, and one of these stories about who 'the good guys' and 'the bad guys' are was allowed to wash it all clean. Nobody was ever convicted of any charges related to the killings - or anything else that happened that day.

    Waco's second rodeo, really. I still remember how the Justice Department bulldozed the Branch Davidian compound before evidence could be collected.

    ReplyDelete
  8. Janet Reno had made her reputation as a child advocate by railroading people into jail during the satanic conspiracies panic. This was just the natural extension of her having more power.

    ReplyDelete
  9. We know it's broken, but most normies are afraid to admit it- an admittedly unstable world scares them and they can't have it- true though it may be. I don't know what it will take to shake them into reality.

    ReplyDelete