Friday, September 02, 2005

How easy is it to prosecute corruption?

I guess the first problem is “who owns the bulldozer”? If the parties to corruption include powerful government or corporate agents, the ones who own the bulldozer, prosecution is problematic.
The very acts which constitute corruption, including; bribery, extortion, intimidation, can be well complemented by bevies of aggressive lawyers. The general rule, if all else fails, is to stall and create maximum confusion.

Not surprisingly it is the small fish most often successfully prosecuted. The big fish have the resources to avoid the risks of corruption.

Undeniably, there is a major effort by many anticorruption authorities. In the end, their powers are only as good as the laws provided by the legislators. The next question is, who pays the legislators?

A survey of anticorruption laws, on the face of it, suggests clear definitions of corruption and the powers to prosecute. For example, the British Crown Prosecutors Office guidelines seem unequivocal:

“Bribery and corruption are extremely serious offences, which strike at the heart of public confidence in administrative and judicial affairs. This factor alone will weigh heavily when considering the public interest in prosecuting.

“Bribery and attempted bribery (i.e. where there is an offer to bribe, but the offer is not taken up) are common law offences punishable by imprisonment or a fine at large, or both. The category of persons who may be bribed is extensive, including for example, a jury member, a coroner and a member of the armed forces.

“The nature of the office of the person bribed is immaterial as long as it is a public office. It is immaterial if the functions of the person who receives or is offered a reward have no connection with the United Kingdom and are carried out in a country in a country or territory outside the U.K.

“The offence of bribery is also committed by the person who receives the bribe. Receipt of the bribe could also be charged as the common-law offence of misfeasance.”

These guidelines are defined through both common law and legislation. To a degree they are echoed in other jurisdictions. The USA situation is perhaps complicated by their federal system of law, but the outcomes should be similar to the UK.

As to the ability to prosecute, the situation is no doubt similar as well. It is often far easier to prosecute on the basis of ‘umbrella’ charges, such as Interference with commerce by threats or violence ("Hobbs Act" Extortion) or Interstate and foreign travel or transportation in aid of racketeering enterprises (The Travel Act), in the USA.

On the other hand the choice of charge might reflect the degree of difficulty in proving one specific over another: Bribery requires "intent to influence" or be influenced (There must be a quid pro quo).
Illegal gratuity requires that it be accepted "for or because of" an official act and can simply be a reward for some future act they will take or have already taken. Ahhhh! Legal mumbo jumbo!
In terms of the extortion, the defendant does not need to induce the giving of the money; he simply has to be a public official. The person who gives the money/gift to the official would be charged with bribery.

The elements of official bribery vary by jurisdiction, but generally are: Giving or receiving a thing of value to influence an official act.

The thing of value is not limited to cash or money. Courts have held that such things as lavish gifts and entertainment, payment of travel and lodging expenses, payment of credit card bills, “loans,” promises of future employment, and interests in businesses can be bribes if they were given or received with the intent to influence or be influenced.

In the USA some state statutes might distinguish between felonies or misdemeanors according to the amount of illegal payment.

Again, these interpretations come from different jurisdictions and simply reflect an overall approach to the issue of official corruption. Each sovereign nation or state has some variation from those outlined.

The fact is what seems to be clear and unequivocal is still subject to a mauling by the legal system, as a recent San Francisco news article illustrates:

Jury's quick decision surprised many (The San Diego Union-Tribune July 20, 2005)
The Monday-morning quarterbacks of the legal world were dissecting the City Hall corruption trial yesterday, second-guessing decisions not to put the councilmen on the stand and marveling at the warp speed of jury verdicts...
… many members of the legal community said they were surprised by the guilty verdicts, and were busy yesterday trading insights and opinions on what went wrong, what tactics might have made a difference and what might be possible grounds for appeal and a motion for a new trial.”

The legal beagles were not particularly interested in the ethical questions of the trial, but simply what were the lessons so that the profession could do better next time. After all, for most the job is getting acquittals. The ethics can look after themselves.

Back in 2002 we were greeted with headlines like: Anti-Bribery Law Takes a Hit.
The story revealed that …a decision by a federal judge in Houston undermined the Foreign Corrupt Practices Act, making it difficult for weak and demoralized prosecutors to bring to justice U.S. corporate executives who openly bribe foreign government officials.
The judge in the case ruled that under the law, it is perfectly legal for an executive from a US company to bribe a foreign official to reduce the company's tax burden or customs duties in that country. The clever little loophole distinguishes a class of bribery which the act does not cover. Clever work by corporate America and the lawyers!
Never mind that the thrust of the act, under a UNESCO convention, is intended to outlaw bribery per se.

The fight against corruption and successful prosecutions would have a greater chance of success if the legal and corporate communities showed some ethical will. For that matter many areas of criminal activity would be quickly circumscribed. I guess when there is big money at stake ethics is just too much to ask.

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