I see what you are saying, and I agree up to a point. It may not violate the letter of the Fifth Amendment, but I do think it violates the intent of the founders. They could conceivably keep bringing up those same 42 items again and again until they get a favorable ruling.
Only if they could show that those 42 incidents were part of different criminal enterprises. What I described is exactly what RICO was intended to do; take a series of events, connect them through a criminal enterprise, and the events become prosecutable through that connection where they were not as isolated incidents. The web of crime becomes a crime in itself.
Mob bosses were extremely difficult targets for prosecution before RICO. They didn't actually commit any robberies or murders or extortions, they didn't leave hard evidence that they ordered them, and any potential witnesses were reluctant or unreliable to connect them to the robberies or murders or extortions. Under RICO, their involvement in the organization becomes a crime, and it gives the government a tool to use to get the top dogs instead of just the foot soldiers.
Picture Michael Corleone (assuming they could never prove that little restaurant incident
he is insulated from every crime his organization commits, and is therefore insulated from prosecution. However, if you can prove that his organization is a "criminal enterprise," and that he is part of it, he can be prosecuted even though the gov't can't show he ever pulled a trigger.
Like I said, I have no problem using something like this against the Mafia. But when the government starts using a law like this against companies or war protesters, then it is a serious problem.
The problem there becomes the fact that criminal organizations take on different forms, and not all of them look like cosa nostra. The mafia can, and has, started corporations to commit all sorts of crimes. Leaving the Italian connection, it is not hard to see where the executives at Enron (and the outside money managers who helped them with their tasks) could be considered by some to be a criminal enterpise engaged in defrauding employees, shareholders, and financial institutions, laundering money, and then conspiring to cover their illegal actions. I don't know the war protesters to which you are referring, but it is not difficult to see where some of the more radical protest groups such as the old Weathermen or today's Animal Liberation Front could certainly be considered by some to be criminal enterprises based on the number of criminal acts committed by their members in the name of the organizations.
I do not say all of that to imply that RICO is never abused or misapplied; all laws eventually are, and RICO, because of its specific purpose, is especially susceptible. But the ability to connect the dots is probably a necessity in today's age of sophisticated criminal organizations, and the difference between a criminal enterprise and a legitimate organization becomes foggy at the point of transition.
