Thursday, October 20, 2005

L.A. Times Editorial on DOJ Decision Gets it Right, But Doesn't Go Far Enough

In an editorial yesterday entitled "The Rule of Law Prevails," the Los Angeles Times argued that the Supreme Court's refusal to accept for review the D.C. Circuit Court of Appeals' ruling that disallowed disgorgement as a remedy in the DOJ's civil RICO case against the tobacco companies was appropriate and just, as it allows the rule of law to govern the case.

According to the editorial: "The Justice Department's effort to recoup the industry's past profits in a civil suit brought under the Racketeer Influenced Organizations Act was a classic example of overreach. ... Congress clearly meant for the so-called disgorgement of ill-gotten gains to be a remedy available to the prosecution only in criminal RICO cases, where the government has to prove its case beyond a reasonable doubt before a jury. In its civil case against the cigarette makers, the government faces a lower burden of proof. As the appellate court rightly ruled, under the RICO law, remedies in civil cases are limited to forward-looking behavior. So the government can seek billions from the tobacco companies to fund new smoking cessation programs, for example, but it cannot attempt to recover past profits."

The Rest of the Story

I think the L.A. Times expresses a sentiment that anti-smoking advocates would be wise to pay attention to: that there is a value we place in society on the rule of law prevailing, even when our gut feelings and emotions may wish for a different outcome.

Many anti-smoking advocates are angry (and appropriately so) at the tobacco companies for their actions over the past five decades which have led to the addiction of smokers and many thousands of deaths. And they would like to see justice served, which is also an entirely appropriate sentiment.

However, I think it's important to realize that justice is not served and will not be served by the inappropriate application of the law against the tobacco companies or by the improper interpretation of the law by the courts in order to help society achieve its considered judgments against the industry, no matter how appropriate those judgments may be. Public figures, and that includes public health practitioners, must seek remedies to this problem that are consistent with the law of the land.

So the sentiment that the L.A. Times is expressing is also an entirely appropriate one: that under the RICO law under which this case is being tried, it is very clear that forward-looking civil remedies are required; thus, disgorgement of past profits is not allowable and by not reviewing the appellate court's decision at this time, justice has been served (at least temporarily - since the Court could agree to review the decision at a later date).

Even people who we are absolutely convinced are criminals are entitled to a fair trial. Even mass murderers are entitled to the defenses that the law has to offer. It's an important part of our system of justice. In fact, in many ways, this is what ensures freedom and individual rights in a democracy.

Look at the concerns that are being expressed over the trial of Saddam Hussein. Here is a guy who is apparently so heinous that we justified killing nearly 2,000 U.S. soldiers to get him out of power, and the only concern that is being expressed about his trial is that not enough safeguards are being taken to ensure that he has a fair trial and that his rights as a defendant are not violated. Human Rights Watch is observing every aspect of the trial and was extremely "troubled" by what was going on.

That is distasteful to me. It makes me sick to think about. Here we have an individual who committed the worst imaginable crimes against humanity and killed thousands of his own people and the only thing we're worried about is that we are not too quick to sentence him. Nevertheless, it is a necessary measure to maintain the integrity of human rights throughout the world.

If public health practitioners and anti-smoking advocates are truly interested in maintaining the integrity of our legal system, the system by which citizens are able to pursue justice, then I think they should show more of an interest in making sure that the remedies they are seeking are appropriate under the law, and less of an interest in trying to extract the highest possible penalties they can think of asking for when it has been made very clear to them that such penalties are not permissible.

I think the L.A. Times is right on track in its opinion, but I don't think it went far enough. While it is true that according to the appeals court, remedies in civil RICO cases must be forward-looking, that is certainly not a sufficient criterion. They also must serve to prevent and restrain future RICO violations.

Funding new smoking cessation programs does not do that. Thus, it is not allowable under RICO. The government cannot "seek billions from the tobacco companies to fund new smoking cessation programs." It is simply not consistent with the law.

One minor note before concluding: I think the L.A. Times probably made a little too much out of the Supreme Court's failure to review the case at this time. I don't think that decision necessarily reflects a feeling that it is very unlikely that the Court would overturn the appellate court's decision. I think it's entirely possible that the Court simply has no interest in considering this issue in the middle of the case, before there has even been a ruling from the District Court. Ultimately, if the Supreme Court upholds the Appeals Court decision, then I think the rule of law will have prevailed. The final outcome is net yet clear.

The rest of the story suggests that despite how strongly anti-smoking advocates may feel about the actions of the tobacco companies, our system of justice still requires that remedies be sought which are consistent with the law of the land. As much as we might like to see the tobacco companies punished, it is inappropriate to seek punishment that is not allowable under the law, and ultimately, it undermines, rather than enhances, our investment in justice.

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