The Vicious Federal Injustice System

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For the last several months, the LRC page has dealt with the U.S. war in Afghanistan, mistakenly called the u201CWar on Terror.u201D (If President George W. Bush believes that he can use the U.S. Armed Forces to eliminate u201Cterroru201D from the earth, perhaps he can use these guys to get rid of the u201Cscary monstersu201D that seem to lurk in my two-year-old daughter’s room at night.) One reason for the war, as we have been told ad nauseum, has been to punish those entities that helped plan and carry out the September 11 attacks.

In theory, this is all well and good, provided the evil doers are punished and those who are innocents and noncombatants are spared, something that has not been the case in this era of u201Ccollateral damage.u201D However, this war has also been trumpeted as a mechanism to transfer our u201Csuperioru201D system of justice abroad, and for that Bush has sought the support both of liberals and conservatives.

From what I see, however, I am not sure that people in Afghanistan or anywhere else will be better off by our exporting of the U.S. system of justice. For the past century, and especially in the last three decades, the U.S. Government has slowly been imposing a vicious, arbitrary, and unconstitutional regime of injustice, one that in some ways is as bad as anything that has been imposed by the worst totalitarian governments that we have come to vilify. Thanks to our various u201Cwars on crime,u201D the U.S. Department of Justice has become the staging area for crimes against Americans who are not criminals themselves.

While some of my article will be anecdotal, let me point out a chilling statistic that by itself tells the story of injustice in the USA. This nation, which has about five percent of the world’s population, imprisons more people than any other country. At present, there are about eight million people in prison worldwide; two million of those are imprisoned in this country. To put it in plain arithmetic, the USA’s prison hold one-fourth of the world’s prisoners, while we have about one-twentieth of the world’s population. Either Americans are more criminally oriented than anyone else on the face of the earth, or there is a real problem with our legal system. I’d like to think it is the latter.

Libertarians are quite familiar with my last set of statistics, and many have pointed out that more than half of those imprisoned in the USA are incarcerated for crimes associated with the use, sale, and production of illegal drugs. People from Lew Rockwell to Gary Becker have correctly noted that this regime of prohibition criminalizes acts that by any stretch of the imagination are not criminal. Furthermore, even the violent crime associated with illegal drugs occurs mostly because prohibition destroys the property rights that permit the sale of other goods to be conducted in a peaceful manner.

(As a libertarian friend of mine once said, one does not see drivers of beer trucks shooting at each other. However, one of the most infamous crimes in U.S. history, the St. Valentine’s Day Massacre, involved the simple distribution and sale of alcoholic beverages during the infamous era of Prohibition during the 1920s and early 1930s.)

Yet, the drug war is not the only federal government initiative that wrongfully fills our prisons. The most devastating weapon in the federal prosecutor’s arsenal is the 1970 Racketeer Influenced Corrupt Organizations Act (RICO), and it has managed to send thousands of people to prison, even though few of those people actually were criminals by any stretch of the imagination.

Passed in 1970 as the centerpiece of President Richard M. Nixon’s u201CWar on Crime,u201D RICO was an attempt to do an end run around constitutional protections of criminal defendants. Up to then, a number of alleged u201Cmafiososu201D were being acquitted in state courts — and especially those in New York City and Philadelphia — of serious charges such as murder and kidnapping.

Frustrated with what they perceived to be a lack of justice, Nixon and numerous members of Congress sought a way to try these characters in federal courts and have what essentially would be a lower burden of proof to boot. Instead of having to prove to juries that u201CJimmy da Weaselu201D had ordered the murder of u201CTommy da Capo,u201D federal prosecutors simply had to allege a u201Cpattern of racketeering,u201D that is to show that a number of illegal activities in which the defendant was directing constituted a u201Cconspiracyu201D to violate the laws of the United States.

The legalities are a bit complicated, but the end result was this: no longer did prosecutors have to prove murder or robbery or such cases. Rather, the prosecutor simply had to u201Cproveu201D that that Jimmy seemed to be doing some illegal things, which in itself became a federal crime. While the burden of proof still remained u201Cguilt beyond a reasonable doubt,u201D what was needed to be proven was much less burdensome to prosecutors than the old state charges.

The excesses of the civil portion of RICO became painfully evident a few years ago when the U.S. Supreme Court upheld the successful lawsuit of abortion clinic owners against Operation Rescue, an anti-abortion group. However, long before anti-abortion protesters became linked with Vito Corleone, clever U.S. attorneys had already discovered how to apply RICO to political enemies and others who might prove to be unpopular.

Because so-called Mafiosos were considered to be murderous and ruthless, the RICO statute was created to be ruthless as well. People accused under RICO could find their assets seized, which meant that many of them would have difficulty even paying their lawyers. However, as U.S. attorneys began to apply RICO elsewhere, it was quickly discovered that many of the new folks in the RICO dock were not hardened criminals — or even criminals at all — and, thus, could find themselves paralyzed when charged under the statute.

One of the most creative users of RICO was Rudy Guliani, who was U.S. attorney in New York long before he became mayor of Gotham City. Guiliani’s office used RICO in its prosecution of Marc Rich, but there was an even bigger fish that was caught on the RICO hook: Michael Milken.

During the late 1970s and early 1980s, Milken and his financial operation, Drexel Burnham Lambert of California, managed to raise hundreds of billions of new capital for high-technology businesses that otherwise would not have been financed with conventional means. The financing mechanism was the high-risk, low-grade bond, or u201CJunk Bond,u201D and it meant that operations such as MCI and CNN could see the light of day.

The u201CJunk Bondu201D was so successful that in 1987, Milken reported an income of more than $500 million. This clearly did not sit well with the political classes, and Milken had made more than a few enemies in the financial world, so the choice by Guiliani and his bosses at the U.S. Department of Justice to prosecute Milken through RICO was easy. (Guiliani already had declared war on Wall Street, and earlier had taken out two top people of the New York Stock Exchange in handcuffs and leg chains in order to humiliate them. The charges were later dropped.)

When one speaks of the Milken u201Cconvictionu201D and imprisonment, most who are at least somewhat familiar with the case will say that Milken pleaded guilty because there the government had overwhelming proof of u201Cinsider tradingu201D and other such crimes allegedly committed by Milken. Nothing could be further from the truth.

The government never proved that Milken had committed any criminal offenses at all, including insider trading. Instead, the government took a number of business practices such as u201Cparking stocksu201D (which I cannot explain in this brief space except to say that it falls in the u201Cgray areau201D of securities law) that pushed the envelope of financial regulation and u201Cbundledu201D them into a conspiracy charge. Even had the courts found that Milken’s activities indeed were legal violations, he would have received only fines for what he did.

However, under RICO, Milken was not charged for these alleged violations per se, but rather for u201Cconspiringu201D to commit those violations, and conspiracy is a u201Ccrimeu201D that demands harsh prison sentences. Furthermore, the reason that Milken pleaded guilty was not because the evidence was overwhelming, but rather because the government said that even if he were acquitted at trial, prosecutors would simply file more charges — and also charge his brother and other family members of RICO crimes. Under that weight, Milken capitulated. The man who was in large part responsible for the high-tech u201Crevolutionu201D (since such innovation would not have been financed under conventional banking practices) — and had earned billions of dollars doing so — found himself in prison for a few years. Guiliani, on the other hand, was elected mayor of New York and has found his own fame and, especially, fortune.

That Milken went down under the RICO juggernaut was ominous, indeed, for it emboldened federal prosecutors. But it is not only the very wealthy who are thrown into the RICO maw. Ordinary people also have been crushed in its path.

Each Sunday afternoon, a woman and her two children come to our home after having visited her husband and their father in the local federal prison here in Cumberland, Maryland. (I will not disclose his name to protect him from possible retaliation by the feds.) Until six years ago, he was a moderately successful businessman. An INS raid on his business, however, changed everything.

Without going into detail about his case, let me simply say that it was the typical malicious federal prosecution that LRC readers have come to understand and despise. When the U.S. attorney charged him and his partner with RICO violations, the government also seized his property (before conviction — this is perfectly legal, compliments of Congress) and, thus, rendered him helpless in seeking legal help. He finally was forced to use a public defender.

It was clear that in his business practices, he had violated an INS regulation, one that calls at most for fines if violated. However, by u201Cbundlingu201D those violations together, he suddenly became a u201Cconspiratoru201D and u201Cmoney launderer,u201D despite the fact he was not working with anyone who had obtained money through illegal means.

A federal judge found him guilty, but instead of sentencing him to the requisite 25 years in prison, the judge gave him 10 years. While there were serious grounds for appeal, he and his family had been financially exhausted through property confiscation and by the tactics of the U.S. attorney. So he sits in prison, and his wife and children are impoverished.

The story of our friends is only one of thousands in this country. All three branches of government are equally guilty in this set of legal atrocities. Congress has passed the law and even strengthened it; the executive branch enforces it, and the Supreme Court has called it constitutional.

Nor have the usual voices of protest uttered any peeps. When the law was first debated and passed, the ACLU correctly declared that it would create a number of legal abuses. Today, the ACLU is much more interested in protecting this nation’s liberal abortion laws, and it sees RICO as an ally against anti-abortion protesters. Trial lawyers have found that they now can represent even more criminal defendants, and that civil RICO, with its triple damages clause, can win them bagfuls of money in court.

In other words, there is not one powerful political constituency that wants to put the brakes on the RICO business. Civil libertarians such as Nat Hentoff and some libertarians may point out what is happening, but few people care. And now that RICO is being enforced and strengthened by post September 11 legislation, it will be used more and more against people who cannot defend themselves against the vicious powers of the federal government.

I recently spoke to a federal magistrate who thought that there was nothing wrong with RICO or the way it is used. His son works for the Justice Department in a program that shows police and prosecutors of Third World countries how to investigate and prosecute crime. Thus, once again, the U.S. Government expends resources to oppress people at home and to do harm abroad. In the name of promoting justice, the government demonstrates to others how to destroy any semblance of the rule of law. The federal monster continues to grow.

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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