Thursday, May 11, 2017

Penn State: A Criminal Enterprise

a. An Example: Penn State, Second Mile, and Sandusky

Although no RICO charges, criminal nor civil, have been brought in the recent Penn State sex abuse scandal,44 RICO fits the alleged facts perfectly. This scandal provides an illuminating example of how RICO’s enterprise concept works. If allegations are true, we can see the following circumstances borne out under the statute.

First, Jerry Sandusky, a person associated with both Penn State (a public university) and The Second Mile (a charity Sandusky founded to help at-risk youth), used both Penn State resources (physical facilities such as the athletic locker room, and access to events such as football games, banquets, and team practices) and Second Mile resources (access to youth) to commit racketeering activity (sexual exploitation of children). Stated more simply, (1) Penn State, (2) Second Mile, and (3) Sandusky constitute an “enterprise” within the contemplation of the RICO statute. Sandusky, the defendant, “conducted the affairs” of this enterprise through a pattern of racketeering activity, a § 1962(c) violation.45

This scandal demonstrates the tools that RICO’s enterprise concept can bring to a situation. It is difficult to imagine how Jerry Sandusky could have accomplished the deeds alleged against him without the resources of Penn State and The Second Mile. Schools, courts, and community programs funneled children to The Second Mile as a respectable organization that could help children in need.46 In turn, The Second Mile funneled these children to Sandusky.47 For Sandusky’s purposes, The Second Mile provided him the opportunity to interact with children from broken homes where parental supervision was lax and the opportunity to attend a Penn State athletic event would be especially appealing in light of their disadvantaged background.48 Similarly, Penn State, by allowing Sandusky, who was no longer affiliated with the University, to have wide access to exclusive events such as football games, sports banquets, football practices, and nonpublic facilities such as football locker rooms, enhanced, if not made possible, the years of Sandusky’s sexual abuse of children.49

Penn State, The Second Mile, and their leaders lent their organizations’ prestige, legitimacy, and integrity to Sandusky. This enhanced his ability to abuse children. The status of these institutions and their embrace of Sandusky despite the years of rumors, suspicions, and specific complaints to law enforcement that would have brought down others acting without the help of institutions like these, allowed Sandusky to continue his abuse of children longer than most sexual predators. In short, the Penn State/The Second Mile/Sandusky tragedy aptly demonstrates the enterprise rationale of RICO: one’s ability to commit crimes is strengthened, if not made possible, by use of an organization’s resources.

45. This scenario also shows the versatility of RICO concept. The “person” (defendant) and enterprise could be configured in several ways and still comply with RICO. See § 1962(c). For example, Penn State could be charged as the defendant, and Penn State plus Sandusky could be pled as the “enterprise” (assuming because he is retired and no longer formally associated with Penn State, Sandusky is not an “agent” of Penn State). Or, Second Mile could be pled as the defendant and the enterprise could be some combination of Second Mile, Penn State, and Sandusky (again taking into account whether Sandusky is an agent of either Second Mile or Penn State). Multiple configurations are possible; which one will depend on enterprise principles and if the case is civil, which presents the availability of a “deep-pocket” defendant. See infra Parts V.B and V.C for a discussion of the pleading and statutory requirements for a civil RICO case.