If one thing has become clear to me over the course of the past two weeks, it's that it's all about the money. In response to my seemingly rational argument that it makes more sense to ask for a more narrow remedy that has a chance of being upheld than a broader remedy that has no chance of being upheld, I have received many responses, most of which are not appropriate to be mentioned here. But the one response I have not received from any anti-smoking group or advocate is that my basic premise is wrong.
And, I think, for good reason. I think it makes a lot of sense. Why would asking for $130 billion for a smoking cessation program for all current smokers have any chance of being upheld, given the clear decision of the appellate court in this case? A program for current smokers is most definitely a backwards-looking remedy, intended to redress past industry wrongs and restore the status quo. This is precisely what the D.C. Court of Appeals ruled was not permissible under RICO.
On the other hand, a $10 billion cessation program for current smokers does at least have a chance of being upheld, since it is intended to address future RICO violations. If the companies continue to commit such violations and addict new smokers as a result, then requiring them to pay for cessation programs for those smokers could be seen to be a way to prevent such violations. It is a forward-looking remedy and it may be allowable under RICO.
So the choice is really between asking for $130 billion and with almost 100% certainty getting nothing, and asking for $10 billion with a chance to get $10 billion or even more (if violations continue in the future, beyond the initial five-year period). It seems logical that $10 billion is better than $0.
But not a single anti-smoking group or individual has addressed this basic argument. I really think that the DOJ case is stronger now than it was 2 weeks ago, because there is at least a chance of getting a smoking cessation program for future smokers. There was no possibility of getting any smoking cessation program for current smokers.
So why is it, then, that anti-smoking groups are making such a huge fuss about the narrowed remedy?
I can't answer that question, because I don't know for sure. But I would be remiss if I didn't share my impression, which is that the groups seem to be so overwhelmingly concerned with the amount of money and with extracting huge monetary penalties from the tobacco companies. That concern seems to be so over-riding, that it is actually outweighing any concerns whatsoever about the strength of the legal arguments in the case.
Moreover, the recent behavior of major anti-smoking groups over the potential (and completely hypothetical) loss of $120 billion represents a strategic blunder, because they have created the public impression that they are overwhelmingly concerned with the money.
What is also becoming clear is that anti-smoking groups seem more concerned about money than about achieving justice under the law. The law seems to almost be an obstacle in the way of the groups obtaining what they feel is fair monetary reward, or punishment. The D.C. Court of Appeals decision appears to have never occurred, in the eyes of many anti-smoking groups as well as a number of anti-smoking advocates.
In defending their responses to me, many have written about how important it is to achieve justice. Well that is basically arguing that receiving a $130 billion penalty is justice, but anything short of that is not justice.
Actually, I think it's the case that receiving what the government is entitled to under the law is justice, and anything short of that is not justice. And if the government is not entitled to receive $130 billion for a backwards-looking remedy under the law, then being awarded $130 billion is not justice.
Justice is not defined by the penalties and monetary awards that anti-smoking groups would like to have Judge Kessler order to punish the companies for their racketeering behavior. It is defined by the most appropriate and effective remedies that are consistent with the law of the land: namely, with the RICO statute.