An International Success, Applied in the US: The OECD Law Enforcement Group as a Model for US State Prosecutors

In the United States, the federal government plays a lead role in prosecuting corruption at the state and local level–and many anticorruption advocates and scholars (both in the US and internationally) credit this federalization of anticorruption enforcement with getting rampant local corruption under control. Indeed, the DOJ’s Public Integrity Section was founded in 1976 precisely because it was thought that federal enforcement efforts were required to fill the vacuum created by the inability or unwillingness of state and local law enforcement authorities to bring cases against government officials in their own communities.

Leaving aside for the moment the substantial federalism and sovereignty concerns that have been leveled against this approach, it seems that the federalization of state and local corruption prosecutions worked, and contributed to a significant reduction in corruption across the United States. For this reason, anticorruption advocates frequently suggest that the US experience with federal enforcement should serve as a model for the international community. For example, Judge Mark Wolf’s proposal for an International Anticorruption Court explicitly draws on the US approach, and was likely influenced by Judge Wolf’s personal experience as a federal prosecutor of state and local officials.

I would like to propose the reverse: The United States should take a page out of the international enforcement playbook to improve state-level prosecution of state and local corruption, by implementing something like the OECD Anti-Bribery Convention’s closed-door meetings of law enforcement officials, but for US state-level prosecutors. Here’s why:

First off, on the US side: Despite the past successes of federal prosecutions in getting state corruption under control, even the most strident advocate of such prosecutions should concede that this approach has reached the limits of its efficacy. Despite recurrent federal crackdowns over the past several decades, some jurisdictions in the United States remain distressingly corrupt. (Consider, for example, Bob McDonnell in Virginia and Buddy Cianci in Rhode Island.) Moreover–and more importantly–at this point an over-reliance on federal prosecutions has diminished the role that state prosecutions can and should play in the fight against corruption. It’s clear by now that federal enforcement is not enough to “go the last mile” in eliminating corruption from state and local jurisdictions, and so it’s time for some new ideas–ideas that would reinvigorate the role of state prosecutors in these cases.

And here’s where current international approaches may provide some helpful models for the US. In particular, law enforcement officials (primarily prosecutors) from member-countries of the OECD Anti-Bribery Convention meet regularly in closed-door sessions (a meeting distinct from the OECD’s Anti-Bribery Working Group) to discuss ongoing investigations, to share experiences and ideas, and sometimes to raise concerns and criticisms. In the words of one of the group’s annual reports:

The prosecutors-only, day-long session allowed frank discussion and exchange of experiences and ideas. It featured three separate discussions: detection, investigation and prosecution. . . . The prosecutors meeting was an extremely useful exercise, and   attendees benefited greatly from the opportunity to share ideas and experiences.

Others with first-hand experience offer similar accounts. According to former OECD Deputy Secretary-General Richard Boucher, “These are closed-door meetings, where officials can talk frankly with each other about real-life issues they face prosecuting and investigating foreign bribery cases.” He emphasizes that, “If one country hasn’t done enough to investigate an allegation or is reluctant to decide a case, then they face intense questioning by the other members of the Group.” By most accounts, this mechanism has been quite successful, a point acknowledged by Transparency International in its recent and mostly critical report on the OECD Convention as a whole.

This model could be emulated domestically in the US, creating a forum for state prosecutors working on public integrity cases to have regular closed-door meetings to share experiences, exchange information, and (perhaps) to criticize one another. (While there are already some programs that bring together prosecutors from different states, such as those run by the National District Attorney’s Association, they do not focus explicitly on public integrity prosecutions.) A new initiative, with a new mission, could be the impetus needed to make some final gains against corruption in the United States.

More specifically, creating a forum like this could have the following desirable effects:

  1. Encouraging the use of already-existing state laws: Perhaps surprisingly, states with the worst reputations for corruption tend to have the strongest public integrity laws (often passed in the wake of a scandal). Comparing the legal toolkit available in each others’ jurisdictions may lead prosecutors to see their own laws in a new light.
  2. Reassert the states’ role in anti-bribery prosecutions: State prosecutors may have fallen into a rut of thinking their state simply has endemic corruption and there is nothing that can be done about it but wait for the Feds to swoop in occasionally. The very fact that state-level prosecutors are meeting to discuss their role in combating corruption could be the first step in reasserting their own role in combating corruption.
  3. Break up the culture of corruption: To the extent that some state and local enforcement agencies remain captured or corrupt, meetings between prosecutors who are “clean” and independent may have the effect of creating “peer-pressure” on those agencies that remain captured to either clean up or else be looked down upon.

The urge to apply lessons learned in the US in the fight against corruption internationally is understandable, and is based in part on the perception that America’s status as a “clean” jurisdiction is due primarily to the efforts of federal law enforcement officials. The truth is somewhat more complicated, though. Eradicating corruption in the US will also require a significant state role, and in finding ways to enhance that role, the US can profitably learn from innovations at the international level.

14 thoughts on “An International Success, Applied in the US: The OECD Law Enforcement Group as a Model for US State Prosecutors

  1. I agree with your overall point, Chris, that for corruption to be thoroughly rooted out, local law enforcement must be involved. An outside, oversight group swooping in and fixing things is not sustainable; even if it were, it side-steps a central corruption and rule of law concern. I also buy your argument about the utility of closed door meetings, though I have some questions on implementation. Given the federalism concerns that you mention, I assume any such project would have to at least start as an opt-in program. I would worry that in that case it would be a (still very useful) meeting of believers: state prosecutors who want to stamp out corruption and who are hoping to learn from like-minded colleagues about the best way to navigate these tricky political waters. But what about those states in which either the state prosecutors are actually a part of the corrupt apparatus or simply make the calculation they don’t have the heft to really go after local graft? It seems like they should be the main target. Naming and shaming could possibly work (at least in terms of raising uncomfortable questions about why they won’t joint in these closed door meetings), but I don’t think that would be terribly effective, or at least any more effective that regular coverage of local corruption. Or do you think it’s possible to force participation?

    • Thanks for your comment! I share your uncertainty as to whether state prosecutors who are captured or who otherwise suspect their jurisdiction is high on the list to places “to be shamed” would even want to join such a group. However, I guess I would only point to the OECD Law Enforcement Group itself as an example. I have no idea why, for instance, Bulgaria thought it was a good idea to join the group — but they did. Perhaps they thought it would help the perception of their state in the eyes of potential investors. Perhaps they wanted to gain legitimacy in the eyes of their deeply disillusioned citizenry. Whatever the reason, they joined — and so did Mexico, Brazil, Argentina, Russia, and South Africa.

      (I should note, however: I don’t know if these OECD Antibribery Convention member-states actually send their prosecutors to the closed-door meetings, but let’s assume for the sake of argument that all member states send their prosecutors. My research suggests they all send at least some prosecutors, but I’m not sure).

      So perhaps the same thing would happen in the U.S. It sure would look strange if Rhode Island decided not to join this body if all of the other New England states did. RI is desperately trying to attract investors and convince its best and brightest to stay in the state — the same pressures faced by Bulgaria, really — and it may want to join the group for that reason alone.

    • I actually see a lot of potential here from a “naming and shaming” perspective. Even with an opt-in process, it would seem to me that the decision of certain state prosecutors not to participate would be suspect. And, when compared to the scope which the OECD covers, it would be fairly easy for concerned citizens to call attention to the failures of their own state. National news sources will likely have much more impact on state officials than would international media on sovereign officials. And, related to Anusha’s point below on in-group/out-group behavior, states are far less insular than, say, a President/prime minister/dictator of a very corrupt nation.

      Federalism concerns aside, I think Chris’ proposal would be extremely useful not because such a process will be imposed on states by the DOJ, but because states could put pressure on each other, and, relatedly, because states could encourage citizens to demand that their own governments deal with corruption.

      • Thanks for weighing in Bea! Yeah, the way I deal with the Federalism problems in my mind would be that this is some sort of totally opt-in organization with no teeth other than peer pressure/the desire to be part of the club, much like the OECD’s prosecutors meetings. One could argue that prosecutors already compare themselves to those in other states without such a meeting and internal “naming and shaming” mechanism, but my sense is that even this extra formal step towards literally inviting criticism from your peers would be useful.

  2. Corruption is based on institutional power. Where successful efforts at reducing corruption have occurred it is either pitting institutions at each other, or micro/grass roots efforts.

    The difference between the former and the latter is that only the grass roots efforts are of the people; where they fail, they are themselves. In contrast, where institutional efforts fail, there is a risk that the outcome will be worse for the people. I.e., war on drugs has made matters far worse.

    http://www.salon.com/2015/03/01/meet_americas_first_drug_dealer_arnold_rothsteins_wild_real_life_1920s_sopranos_story/

    • Thanks for your response — I would agree but only to the extent that grass roots efforts spur legitimate government action, such as police investigations and prosecutions of previously-immune public officials. As to that, I think that my proposal has a fair amount of the “pitting institutions” flavor in it too — I’m suggesting that states compete with each other on many fields, and one competition that should be elevated is how “clean” they are and how effective their state prosecutors are.

      • “to the extent” leads me to think that our worldviews are far apart. In the places I see a lot of corruption, the government is more of the problem than the solution. For example, in my financial inclusion work in East Africa, it is pretty clear that the institutions are the problem and not the solution. That is, there is no legitimate government action available.

        So I seek solutions externally to “legitimate government action” whatever that means. It might be the case that in some places – USA? – the government can be more of the solution, I don’t know. I’ve not seen it.

        • I don’t think our worldviews are too far apart, actually. I should have been clearer that I was talking about the U.S. — my proposal is to institute a naming-and-shaming mechanism for State-level prosecutors in the U.S. In East Africa I have no doubt that institutions are too deeply compromised to be effective partners in anticorruption work — indeed, they are the targets.

          I will acknowledge, though, that I am counting on grassroots, civil society action to hold government in the U.S. accountable —- I am a strong proponent of the Freedom of Information Act, for instance.

  3. Chris, I think this is a pretty interesting idea, though I wonder if the OECD experience is truly translatable to the domestic, state-level arena. To give some substance to my concerns, consider the following potential differences: First, the international prosecutor-to-prosecutor meetings are most helpful where the nations engaged in the dialogue both could or already are investigating a particular instance of corruption. Evidence sharing and “talking through investigative problems” is helpful in that context precisely because the crime, the perpetrators, and the potential proceeds of the criminal activity stretch across the two borders. To some extent, then, the nations engaged in the international discussion have a stake in the other’s investigative efforts, one that is perhaps without a counterpart when we discuss state-to-state discussions within the U.S.

    Second, and relatedly, the primary benefits of these meetings — encouraging evidence sharing and coordinating multilateral investigations — are probably absent in the domestic context. Law enforcement in one U.S. state presumably has effective legal means for obtaining financial or other evidence held in other states. And since — as I hinted above — domestic political corruption prosecutions by state prosecutors are more likely to be intrastate rather than interstate matters, I would anticipate that we would not see nearly as high of a proportion of multilateral (or multistate) investigations. In the absence of these major benefits, one might wonder whether there are really sufficient incentives to make such a program worthwhile for the states.

    Third, the discussions that take place on the sidelines of the OECD (or other similar bodies) are structured around and overshadowed by a common international legal obligation to outlaw and prosecute these cases. That’s not all; there happens to be a pretty robust peer-review and data compilation component to the WGB that makes it possible to name and shame publicly and contrast state efforts to combat transnational public bribery against set legal obligations. There would not be, unfortunately, a similar legal structure to the state-to-state discussions that you propose.

    • Thanks for your reply! I see your first two critiques as being pretty similar, and based on a sense that these prosecutor-to-prosecutor meetings are useful primarily for sharing information about ongoing cases. For some reason, that’s not how I was thinking about the meetings. Maybe that is what they are doing at the OECD level, but somehow I doubt it since they are in a meeting room full of prosecutors from varying jurisdictions that may have nothing to do with their investigation. I think they just get together to tell war stories and egg each other on.

      That’s more in line with what I had in mind for the States, and it fits in with your last critique — so why, in your mind, can there not be a similar “robust peer-review and data compilation component” for the States? It seems like it would be a lot easier in the American context since the data is probably already gathered by the Feds. With the Feds’ info about the States relative corruption in-hand, the state prosecutors could all spend some time naming and shaming each other behind closed doors. (I don’t think it needs to be public, at least not yet). If the right mix of personal and regional pride could be inserted into the meetings, this could be a pretty useful application of peer pressure.

  4. Thanks for this fascinating post Chris! While I agree that these groups may serve to encourage the use of preexisting state laws or the reassertion of states’ role in anti-bribery prosecutions, I wanted to push back just a little on the notion that these meetings could serve to ‘break up the culture of corruption.’ Peer pressure may be a useful means of encouraging recalcitrant parties to act in many cases. Yet my understanding is that state prosecutors are often perceived to fail to appropriately address the corrupt actions of local politicians in part because of significant political (and potentially even social) pressure against such actions within their communities. Local, presumably ongoing, opposition to this kind of conduct would seem to provide a much stronger form of ‘peer pressure’ than that which a one day meeting with other prosecutors could provide. That being said, I think that the first two rationales that you provide for this proposal make a lot of sense and you’re right to highlight the fact that there is only so much that the use of federal prosecutors to pursue corruption charges can accomplish at the end of the day. Therefore, while I’m somewhat skeptical about this model’s ability to counteract the “culture of corruption” (at least as currently defined here) that may exist in certain enforcement agencies, I think that overall this model would be an important and welcome addition to the US’ efforts to combat corruption.

    • I totally agree that a one day meeting would not constitute an equal counterweight to the “culture of corruption” that may have infected the state prosecutors’ office back home. Perhaps we can make it longer than one day? Ha, just kidding. Your point is well taken — but I think there is at least *some* value to this mingling of prosecutors or else we wouldn’t so regularly consider the OECD convention a success. Perhaps, as Jordan mentioned above, a necessary component to this plan would be some kind of “naming and shaming” review process, even if it only took place internally.

  5. There is some really interesting discussion around this and I couldn’t help but chime in! First, as someone who has worked at a local prosecutor’s office, I cannot tell you how many times I’ve lamented that there was not more cooperation between different state and local-level offices in conducting investigations. I agree with you, Chris, in theory. I think sharing successful tactics and strategies and possibly having informal training would be a great system, however the differences in law and structure of state-level prosecutions might hamper any strides in substance. Even so, in light of recent research some of us have discussed on in-group, out-group behavior, I think these meetings could be helpful. They are different from an oversight group, which as Melanie correctly points out could be costly and unsustainable. In the closed-door meetings, one office is not a higher-level authority. Rather, the offices operates as equals, yet are still outside groups to each other. Thus, the interaction can mutually instill and/or reinforce the obligations the offices have to prosecute these crimes and break up the cultural of corruption on a social psychological level.

    • Totally agree — I think this whole proposal basically hinges on the idea that bringing in an outsider’s perspective on your office, an outsider whom you consider your peer (and not your constituent or your adversary, like citizens or journalists in the prosecutor’s home state), just adds another opportunity for State-level prosecutors to rise to the full potential of their office.

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