I wonder if an ironic twist to some of the legal processes unveiled in Mr. Dieterle’s excellent blog-post on over-criminalization might lie in a civil RICO action by Caring Hearts against CMS?  Congress passed RICO in 1970 as part of an omnibus statute – the Organized Crime Control Act – mainly to stop the racketeering activities of the Italian-American Mafia. It contained, or some might say conflated, criminal and civil sanctions to effect its purposes. By the 1980s and 1990s both prosecutors and civil litigants were using RICO. The result on one hand was the end of the Mafia’s power. On the other hand, however, RICO’s notoriously expansive and elusive provisions led to an explosion of federal criminal and civil cases against all manner of defendants, including most famously abortion protestors. In these decades there were numerous calls for RICO reform, especially to tamp down on civil litigation, but these efforts largely failed. 

One of the most fecund sources of civil litigation lies in the fact that mail and wire fraud are two of RICO’s notorious “predicate acts.” Federal fraud concepts have themselves expanded promiscuously, incorporating by the 1980s the idea that public officials might defraud citizens of the intangible right of “honest services.” One might easily imagine, then, inventive counsel for Caring Hearts using a theory that continual (criminally negligent) misinterpretation of enabling statutes, or guiding regulations, rises to the level of fraud. If it occurs more than twice it’s a racketeering activity triggering civil RICO. The cycle of over-criminalization, finely elucidated by Mr. Dieterle, continues apace!  

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Jack Epstein resides in Athens Ohio. He holds a JD from Tulane University, and is currently finishing a PhD dissertation on the history of the RICO statute.