Criminal RICO (Racketeer Influenced and Corrupt Organizations Act) and Double Jeopardy Analysis in the Wake of Grady v. Corbin: Is This RICO's Achilles' Heel?

• NCJ Number: 138459
• Journal: Cornell Law Review Volume: 77 Issue: 3 Dated: (March 1992) Pages: 687-722
• Author(s): R L McGee
• Date Published: 1992
• Length: 36 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

Concluding that the conduct test for assessing double jeopardy rendered by the U.S. Supreme Court in Grady v. Corbin (1990), when literally applied, creates potentially anomalous results under RICO (Racketeer Influenced and Corrupt Organizations Act) and is inconsistent with RICO's goals, this note proposes a resolution of the problem that will not weaken RICO.

Abstract

In Grady v. Corbin, the U.S. Supreme Court significantly modified double jeopardy analysis by implementing a "conduct" test that focuses on the acts underlying the criminal charge rather than the statutory elements of the offense. This conduct test gives defendants strong protection under the double jeopardy clause. In an effort to curtail the extensive infiltration of organized crime into legitimate business, RICO's broadly defined provisions enhance penalties and create new substantive offenses that augment a State's criminal prosecution resources. RICO punishes an offender for engaging in a "pattern" of criminal activity, individual instances of which are already proscribed by State and Federal penal laws. "Grady," if literally applied, has the potential to undermine RICO provisions. Part I of this note summarizes the structure of RICO and the history of double jeopardy analysis, with a focus on "Blockburger" and its progeny. Part II discusses 'Grady" and highlights Justice Scalia's dissent on the practical implications of the majority's conduct test. Part III analyzes the potential effects of the "Grady" conduct test when applied to RICO and argues that effective prosecution of RICO offenses necessarily infringes on individual constitutional rights. This part also reviews recent decisions construing "Grady" that indicate the Supreme Court must reformulate the conduct test in order to provide a consistent standard for lower courts to follow. The note argues that the appropriate solution is to confine "Grady" to its facts or construe the "Grady" decision as inapplicable in a RICO context. 188 footnotes