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The Misuse of a Powerful Prosecutorial Weapon

Fulton County District Attorney Fani Willis hasn’t just used Georgia’s RICO law to prosecute Donald Trump. Schoolteachers and rappers have also been charged, and the state has used the law to go after protesters. Shouldn’t these tools be reserved for the kinds of prosecutions they were intended for?

Fani Willis discusses Trump indictments
Fulton County, Ga., District Attorney Fani Willis discusses her indictments against former President Donald Trump and 18 others on Monday, Aug. 14, 2023. (Ross Williams/Georgia Recorder)
Following her indictment of Donald Trump and 18 others for election interference under Georgia’s Racketeer Influenced and Corrupt Organizations Act, Fulton County District Attorney (DA) Fani Willis was riding high as one of the country’s most visible local prosecutors. A romantic affair with a special prosecutor working under her supervision changed all of that. Not only has it caused friends and foes alike to question her judgment, but it has emboldened adversaries who want her and her office kicked off the case against Trump.

I am not interested in the details of her affair because Willis has a bigger problem that she may not even appreciate. She has broadly applied the state’s RICO law to questionable cases including the prosecution of public schoolteachers and, currently, her prosecution of a Grammy Award-winning rap artist. Her liberal and possibly improper use of RICO (which stands for Racketeer Influenced and Corrupt Organization) could lead to a hollowing out of the law, rendering it less effective when she goes after real organized criminals.

It was only a couple of months ago that Time named Willis and her team of prosecutors as finalists for the magazine’s Person of the Year. Willis is the first woman to be elected DA of Fulton County, home to most of the city of Atlanta. Now this daughter of a one-time Black Panther who joined a cadre of Georgia elected Black women firsts — including the late Grace Towns Hamilton, the first Black woman elected to the Georgia Legislature, and Shirley Franklin, the first Black woman mayor of Atlanta — has had her hands full fighting a legal effort by one of Trump’s fellow indictees to remove her from the case.

Willis’ case against Trump and company may be one where serious political malfeasance crossing state lines warrants a RICO charge under a broad interpretation of the statute. But to use this law to prosecute public schoolteachers appears to be a clear case of prosecutorial overreach.

Congress intended the federal RICO Act to apply to criminal enterprises that infiltrate legitimate businesses and use interstate commerce. Like other states’ RICO laws, Georgia’s is modeled on the federal statute, and its relevance to prosecuting local schoolteachers, street gangs and certainly rap artists is novel at best. More troubling is that 86 percent of street gangs that have been prosecuted under the federal RICO Act are affiliated with one or more racial minority groups.

In 2013, Willis and her then-boss, District Attorney Paul Howard, brought RICO charges against Atlanta Public Schools Superintendent Beverly Hall and 34 other teachers and administrators, all but one of them African American, in a test-cheating scandal that stemmed from an investigation launched by then-Gov. Sonny Perdue and led by a former state attorney general, Michael Bowers. Bowers released a scathing report that alleged widespread cheating on a standardized test that had been going on for years. He looked at no other school systems except Atlanta’s, so there is no comparative data to know whether Atlanta’s alleged cheating was worse, similar or not as bad as other systems.

Willis helped Howard, Fulton County’s first Black district attorney (and who she later defeated in 2020 to take over the top job), convene a grand jury that handed down the indictments. Nearly two-dozen educators took plea deals, and when the longest trial in Georgia history finally ended after eight months, Willis and her team had won a tainted victory, with 11 convictions. (Hall had died before her case could be heard.) The entire episode was tragic, and many African Americans could not believe that Black prosecutors would use the power of their offices to ruin the careers of young Black teachers who got caught up in a high-stakes testing juggernaut no doubt condoned by their supervisors.

More recently, Willis has come under fire for using the RICO law to indict Atlanta rapper Jeffery Lamar Williams, better known as Young Thug, along with two dozen others on 56 counts. She claimed they were leading a “street-style gang” called Young Slime Life — committing murders, armed robberies, aggravated assaults with deadly weapons, drug dealings and carjackings, among other crimes. Those are horrible crimes, and if convicted they should be punished appropriately. But the prosecution has plenty of laws on the books under which charges could have been levied. Why use RICO?

The question of whether hip-hop musicians are in some cases fronts for violent street gangs is at the heart of the RICO case against Williams and his co-defendants. That particular case became more bizarre when the presiding judge ruled last November that Willis could “conditionally” use the lyrics of Young Thug’s raps as evidence against him.

Other cases across the nation involving hip-hop artists raise issues that go beyond the propriety of the use of RICO. For instance, should artists be held accountable for the content of their lyrics if others commit crimes that they claim were inspired by those lyrics? I don’t pretend to have the answers, but I do believe that words and images created by artists, no matter how offensive, should never be used as criminal evidence in a court of law.

Willis is not the only prosecutor to apply RICO in such questionable contexts. XXL magazine reports that in recent years at least nine rappers, including Kay Flock, Casanova and Fetty Wap, have been indicted under the federal RICO Act.

There are other issues with the proper subjects of RICO prosecutions. Last August, Georgia Attorney General Chris Carr charged 61 activists who opposed the building of a police training facility in Atlanta, dubbed “Cop City” by its critics, under the state RICO act. This seemed like a clear move to intimidate protesters.

Willis undoubtedly will be remembered by some as a hero who wasn’t afraid to indict Trump. Over time, history will judge her professional career in balance. In cases like the teachers’ cheating scandal, reconciliation and restorative justice might have provided the better path toward healing. Charging rappers under RICO and weaponizing their lyrics against them doesn’t sit well with me now and probably never will.

RICO is a powerful and important weapon to combat genuine organized crime. The public interest will be better served if prosecutors reserve its use for that purpose.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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