This law, originally aimed at the Mob, makes normal business a crime when it is part of an illegal conspiracy. (Emphasis added.) — The Economist September 16, 2004

Quel horreur! The pinstriped lumped in with sweaty, illiterate thugs! Shocking words flung about Judge Gladys Kessler’s (above) court in the Washington Dizzo: RICO conspiracy! RICO enterprise! RICO liability!

The case concerns the Justice (!) Department’s attempt to mulct $A400 billion from certain tobacco companies via the Racketeer-Influenced and Corrupt Organisations legislation.

Pro-rata for Australia, that is about $30 billion, enough to fund a really madcap election campaign, if not two. Any Prime Minister might be tempted to import this devilish bit of American culture.

RICO is an accident of history. Organised crime is systematic criminal activity for money or power. Perhaps fearing public outrage, the British lawyer-judge cartel did not invent a rule to conceal evidence of a pattern of criminal behaviour until Makin v Attorney General of NSW (1894). The rule still splendidly protects organised criminals, respectable and unrespectable alike, except in the US.


In 1963, a hitter in the Genovese family, Joe Valachi (above), explained the inner structure of the Mafia to Senator John Little (Big John) McClellan’s Senate Permanent Investigations Subcommittee. McClellan got some bright young lawyers, including Bob Blakey, to work up legislation that would give the FBI at least a sporting chance against organised criminals.

They came up with an omnibus Organized Crime Control Act, of which RICO is Title IX. RICO is fairly complex, but it is basically an exception to the rule against pattern evidence, but only for certain organised criminals. The rule still neatly protects such systematic/serial criminals as rapers and paedophiles.

RICO defines systematic as a pattern of a minimum of two or more chargeable — not necessarily convictions — offences within 10 years, each carrying a minimum of 12 months in prison. A criminal enterprise is the vehicle through which the crimes are committed.


Amusingly, the final blame for RICO goes to two organised criminals, President Richard Nixon, who was pardoned, and his Attorney General, John Mitchell (pictured with Martha, above), who went to prison. Nixon was elected in 1968 partly on a platform of getting tough on organised crime, and Blakey’s Act went through in 1970.

RICO would clearly make it harder for lawyers to get rich organised criminals off, including — gasp! — pillars of bench and bar. I asked Blakey, now a law professor at Notre Dame, how he got it past the American Bar Association. He replied:

“Only with difficulty. The ABA at first endorsed it. We had an in with the President. It then raised objections. We overcame them with White House support.”

The consequences were profound. In Chicago between 1984 and 1994, the wretched RICO gaoled 20 judges for extorting bribes, and 50 lawyers for paying them. Happily, that sort of thing could never happen here, but the episode did tend to give new meaning to the term, cartel, at least in the US.

On a cheerier note, in Personal Injuries (1999), Scott Turow, a Chicago prosecutor/novelist who put Judge Reginald J. Holzer away for 13 years in 1986, noted a practical problem when a lawyer first gets a hint that a judge is amenable to a bribe. His character, lawyer Robbie Feaver, complains:

” … it’s like tipping in Europe. How much is enough? … Where’s that college course in bribery when you really need it?”

October 4, 2004

Evan Whitton  says the RICO law broke the rule against pattern evidence — and a lot of lawyers got nabbed