Where I Stand — Mike O’Callaghan: How laws that should protect are used to hurt citizens

Wednesday, May 6, 1998 | 10:05 a.m.

HOW MANY TIMES must Americans be abused by government agencies and courts that misuse laws to punish the very people they were designed to protect? Last week the nation was shocked by recent revelations of laws being used to terrify taxpayers. Most of the laws broken were written to protect the taxpayers, not brutalize them. The laws aren't bad, but a few of the people executing them are very bad.

The ongoing charade in the name of justice still being run by special prosecutor Kenneth W. Starr is another example of a law being used by a dangerous man running amok. Of course, we all must admit that the law creating a special prosecutor was purposefully flawed by partisan politicians during its initial writing.

Associate Justice of the U.S. Supreme Court Antonin Scalia warned us about the dangers of the special prosecutor 11 years ago. Scalia foresaw the dangers of the law including even the method used to select the prosecutor. He concluded, "It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the president, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned."

Although I have good reason to believe the office of special prosecutor will be done away with in the coming years, Scalia doesn't believe Congress has the desire or guts to get rid of it. He believes our republic has been permanently encumbered with "an institution that will do it great harm." Every day Starr operates, he proves the wisdom of Scalia's foresight.

Another law, not viewed as a threat to anybody but organized crime when written in 1970, has about come full circle. It is the Racketeer Influenced and Corrupt Organizations Act. This law, better known as RICO, was designed to battle organized crime and can result in stiff penalties for people taking part in serious crimes by using a business or organization. It's a law with good intentions.

In past columns, I've questioned the use of RICO to freeze the assets of a defendant even before a trial. Federal prosecutors have been using asset freezing to force now-penniless defendants into plea bargaining because they can't afford a trial with competent legal representation.

Four years ago, the Los Angeles Times editorialized, "Not surprisingly, some RICO prosecutions under this vague and excessively broad statute have impinged on the due-process rights of defendants. Critics charge they also have led to prison sentences and assessments of damages far beyond the bounds of fairness." The same editorial said it was time for Congress to turn its attention to cleaning up the obvious problems allowed by RICO. Still no changes were made.

Just last week the use of RICO hit a new abusive legal low. In Chicago, a U.S. district court jury was led by a prosecutor to convict anti-abortion activists with it. Notre Dame Professor G. Robert Blakely, who drafted the original law in 1970, now has serious concern about its use. "If you look at this case and say it's about abortion, you're missing the point. Everybody who loves the First Amendment has got to sleep uneasily tonight," Blakely told Dirk Johnson of the New York Times.

There are more than enough laws to prosecute and jail people who commit violent acts. The federal prosecutors would much rather use RICO because the penalties can bankrupt the people and organizations convicted by it. What a nice clean way to chill dissent from any group the government disagrees with.

John Leo writing in U.S. News & World Report gives us a little more insight into the dangers of the way RICO is being used and why the ACLU remains silent. Leo writes: "It takes little imagination to see how almost any protest group could be hammered by RICO, from Greenpeace and anti-nuclear protesters back to Cesar Chavez's grape boycott (which certainly induced the growers' fear of wrongful economic injury). This has been clear for years. In 1970, the ACLU opposed RICO as being 'one of the most potent, and potentially abusive, weapons for silencing dissent.' Since then, the ACLU's voice has been more muted and ambivalent, mostly because its feminist allies argued hard that RICO was an ideal weapon to use in the abortion wars. The ACLU really ought to make an effort to recapture the principled position it staked out in 1970. Either you believe in First Amendment rights, or you don't."

And where has Congress been? In 1994, the Supreme Court ruled that if RICO wasn't intended to apply to political groups, Congress should make that explicit.

Well?