Michael Vick and the Feds

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At this writing, the sports world waits for Atlanta Falcons quarterback Michael Vick to announce he will "cooperate" with the federal prosecutors and plead guilty to federal dogfighting "crimes." Unfortunately, the case is lost in the matrix of animal cruelty, race, and all of the other things that come when celebrities — and especially black celebrities — are charged with crimes.

Yet, what is unsaid in this case perhaps is the most important thing — if one holds that the greatest threat to our liberties is an out-of-control federal government. To put it another way, the real story as far as I am concerned is that we are seeing another sorry chapter in the saga of abuses by federal criminal authorities.

Those who have read my articles over the past five years know that I have come out squarely against federal criminal abuses. Candice E. Jackson and I have published a number of articles and papers that have dealt with what Reason Magazine called "Washington’s Biggest Crime Problem," and the Vick case does nothing to change my mind. Indeed, the pattern of legal federal abuses in this case once again confirm to me that once Washington decided to shred the Constitution, it made sure nothing would be left behind.

Unfortunately, my comments so far are going to lead to my receiving countless emails from animal lovers and animal rights people who have decided by now that I am defending dogfighting and cruelty to animals. While those things are not irrelevant to Vick’s behavior and very questionable judgment — provided the things alleged are true — they are irrelevant to my point that federal involvement has taken a bad situation and has made it much worse.

Therefore, let me start at the beginning, and then work through my various points. The first — and most important — point is that Virginia law makes dogfighting illegal. If Michael Vick and his Bad Newz Kennels were a dogfighting venue, then he and his cohorts can be charged under Virginia criminal statutes.

At this time, I do not know if Virginia authorities were looking into this alleged operation — or if authorities were looking the other way. However, even if they were looking the other way, that still does not mean that the federal authorities should have intervened.

Second, there is no legal justification for federal involvement. True, the feds (thanks to the courts, which have expanded Washington’s power well beyond any Constitutional bounds) constantly invoke the "Interstate Commerce Clause" of the Constitution, but that clause is used only as a tool to increase the government’s authority over nearly every aspect of our lives. What once was a statement that gave Congress authority to deal with issues of commerce between the states has become a legal excuse for Congress to stick its nose where it never was intended to go.

Of course, it is not the members of Congress who have arrested and charged Michael Vick; it is the employees of the U.S. Department of Justice. In other words, Congress might have given itself authority it did not have, but then it made things worse and turned that authority over to the executive branch, which has few checks and balances keeping federal prosecutors from doing whatever they please — and the law, and more important, justice, be damned.

If Vick decides to plead guilty, it will be one more episode of the disappearance of the right to a fair trial. Why would Vick plead out? It is because federal prosecutors are preparing to bring in more indictments, this time under the Racketeering Influenced and Corrupt Organizations Act, or RICO. This abominable “law” (if one can call it that) takes so-called bad acts and then bundles them into the federal “crime” of “racketeering,” which is a nice way of saying that under RICO, people are charged with what only can be called imaginary crimes.

Candice E. Jackson and I wrote the following about RICO:

In many ways, this law has turned out to be a modern-day rendition of the infamous Waltham Black Act of 1723, which, according to (Richard) Follett, "originally outlawed poaching in disguise or in u2018blacked’ face, but judicial interpretations soon divorced its various provisions from their original context, leading to a list of fifty or more crimes punishable by death."

We further write:

Similarly, RICO has metastasized from its original intent, which was to deal more effectively with the perceived problem of organized crime. Federal prosecutors have discovered that RICO is a powerful weapon that can be wielded against most business owners, should the feds choose to target them. Rudy Giuliani’s prosecution of Michael Milken and other Wall Street luminaries in the 1980s — the springboard from which Giuliani rose to become first the mayor of New York City and ultimately a popular public speaker collecting $75,000 per speech — involved some of the early attempts to expand criminal RICO provisions to prosecute private business figures who clearly were not Mafiosi. Today, federal prosecutors use RICO routinely to win easy convictions and prison terms for individuals who in the course of business run afoul of federal regulations. For every John Gotti who is brought down by RICO, many obscure business owners and managers are also successfully prosecuted under this law.

In criticizing the law for being used "beyond its original intent," we are not saying that the "original intent" was a good thing. Indeed, in that article, we call for the repeal of RICO, and the sooner the better. The real purpose of invoking the RICO statutes is to employ a "legal" weapon that is so powerful that few people can avoid being crushed by it, Michael Vick included. Although Vick might have the money to pay good lawyers, nonetheless, they cannot get beyond a law that was fashioned in a way that it is almost impossible for a jury to render a "not guilty" verdict, no matter what the real legal issues might have been.

The RICO law came about because state authorities could not win convictions against individuals allegedly tied to organize crime, the Mafia. It was too easy for evidence (and people who were to testify against those who were charged) to disappear, and it was much too easy for people associated with the defendants to intimidate, threaten, or bribe jurors. Moreover, many jurors tended to sympathize (or even romanticize) organized crime figures and concluded that since Mafiosi tended to "whack" their own, perhaps the legal system should not interfere.

The "genius" of the RICO statutes, however, was in the fact that it set a de facto lower burden of proof for criminality, and it empowered federal prosecutors in ways that no one had seen in this country before. Writes attorney Daniel Fischel:

To achieve its objective of preventing the infiltration of legitimate businesses by organized crime, RICO gave the government sweeping new powers, including the power to freeze a defendant’s assets at the time of indictment and confiscate them after conviction. Traditionally, criminal defendants are presumed to be innocent and face punishment only after conviction. RICO, by allowing the government to seize entire businesses connected even indirectly with a defendant at the time of indictment, before any proof of guilt, is a major exception to this general principle. The government is authorized, in effect, to act as prosecutor, judge, and jury in the same case. The government under RICO is also able to make it more difficult for the accused to wage a defense by, for example, seizing the funds that a defendant would have used to hire an attorney. And if a defendant is convicted, RICO provides for onerous criminal penalties.

Candice Jackson and I make the following points:

In reality, RICO acts as an arbitrary penalty enhancer and prosecutorial bargaining tool. A violation of RICO is a crime of convenience — for prosecutors, that is. What defendant, charged with a predicate act carrying a potential sentence of a few years, would refuse to bargain with a prosecutor who says, "I’ll take the RICO charge with its mandatory twenty-year sentence off the table if you plead guilty to the predicate offense"? If this tactical weapon fails, a prosecutor faced with a resolute defendant determined to roll the dice at trial can still rest easy, knowing that RICO has stockpiled new procedural weapons in the prosecutor’s war chest. For example, RICO allows the government to join into a single prosecution widely diverse defendants and crimes that, absent RICO, would be too disjointed to be allowed in the same trial under the rules of evidence and criminal procedure.

Owing to the highly derivative character of RICO offenses, a prosecutor has options when deciding what charges to seek in an indictment. There are few constraints on a prosecutor’s discretion to include a RICO charge along with others. Given the formidable sentences RICO threatens and the relatively weak evidence needed to prove that a defendant associated with a group of individuals who committed other crimes, prosecutors have much to gain by including a RICO charge. Such abuse of prosecutorial discretion aids politically motivated or vindictive prosecutions and produces concomitant suffering and injustice for the victimized defendants. Moreover, such abuse of prosecutorial discretion is virtually irremediable because of the legal doctrine of absolute prosecutorial immunity, which bars civil suits for damages against prosecutors.

And this is what Michael Vick faces, and I can guarantee you that at this writing, his attorneys have told him that if the government files RICO charges against him, it will be almost impossible for them to mount any kind of defense. The RICO statutes, in essence, turn "guilty beyond a reasonable doubt," which is the standard in criminal law, into "preponderance of the evidence," the standard for civil law. That is because one does not have to "prove" the original bad acts, only "racketeering," which is in itself an "imaginary crime." Jackson and I write:

Under RICO, individuals who engage in what prosecutors allege to be extortion, illegal gambling operations, and the like are not charged with those specific crimes, but rather are accused of racketeering, which is a derivative catch-all term. Because RICO cases are tried in federal courts, U.S. attorneys do not have to prove to juries and judges that the accused engaged in the aforementioned crimes (which as a rule are violations of state criminal law); they must show only that it appears the defendants carried on those activities. Moreover, for a RICO conviction, the prosecutor must meet only the civil standard of "preponderance of the evidence," not the higher standard of "guilt beyond a reasonable doubt" that historically has been required for criminal conviction.

To put it another way, should Vick decide to go to court and fight the charges, he almost surely will lose and will be facing up to 20 years or more in prison. Should he agree to plead guilty, he will lose a year of freedom, and perhaps will be permitted to make a comeback in professional football.

Whatever one thinks of dogfighting — and I believe it to be cruel and barbaric — nonetheless what the federal authorities are doing is much more cruel and barbaric, and threatens life and liberty more than anything Vick and his friends might have done at the Bad Newz Kennels. The bad publicity already has ensured that no more dogs ever will fight and die on Vick’s Virginia property, but one must understand that what federal prosecutors do every day makes the actions of Vick and his friends seem tame by comparison.

In his excellent article on the conviction of Jos Padilla, William Norman Grigg writes the following:

I have no brief for José Padilla as an individual; he appears to be a standard-issue street thug who got the standard prison-upgrade to minor league Muslim fanatic. But there are gravities of loathsomeness, and Padilla is being used by people immeasurably more evil than he is to accomplish unspeakably vile ends.

I believe I can say the same thing about the Vick case. What he did was wrong and thuggish, but while Michael Vick allegedly was a danger to some dogs, that was and is nothing compared to the dangers that federal authorities impose upon the people of this country — and, indeed, the world — every day. That, I believe, is the central issue in this case, not the guilt or innocence of a professional football player.

August 20, 2007

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. He also is a consultant with American Economic Services.

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