Where Should U.S. State Governments Put Their Anticorruption Agencies?

As other contributors on this blog have argued, U.S. states should assume a greater role in investigating and prosecuting corruption crimes, rather than leaving anticorruption enforcement efforts entirely to the federal government. But the call for a greater state role in anticorruption naturally invites a follow-up question: which office or unit within the state government should have principal responsibility for anticorruption? For starters, should the state have a specialized unit dedicated to investigating or prosecuting corruption crimes? And if so, where within the state government should that unit be located?

There are a range of potential answers to these questions. A 50-state survey from the Center for the Advancement of Public Integrity (CAPI) finds that although the vast majority of states have some kind of anticorruption commission, roughly half have no specialized anticorruption unit dedicated to investigating or prosecuting corruption crimes. States that do have such units house them in one of three places: (1) the state attorney general’s office, (2) local prosecutors’ offices, or (3) the state police.

State Unit Dedicated to Prosecuting Corruption?

Source: Center for the Advancement of Public Integrity at Columbia Law School

Having a specialized unit to prosecute corruption promotes the development of the expertise critical to successfully prosecuting corruption cases. Maintaining specialized anticorruption units also ensures resources are dedicated specifically to combating corruption, fosters norms of (and a reputation for) impartiality, and enhances deterrence by increasing officials’ perception that they’ll get caught if they do something wrong. But where a specialized anticorruption unit is located within state government affects the degree to which these benefits will be realized. In this respect, the three models of current state practice, as discussed in the CAPI survey and illustrated in the above map, differ along two dimensions: (1) the level of government (state or local); and (2) the nature of the law enforcement agency (prosecutors or police). An examination of both dimensions indicates that state-level prosecutors—state attorneys general—are best-equipped to house specialized anticorruption units.

Consider first the level-of-government question. The fifty U.S. states are divided into over 3,100 local government units (counties or county equivalents), which have the substantive authority to enforce the vast majority of the state’s criminal laws within their local jurisdictions. In comparison, state authorities’ geographic jurisdiction is larger, but their substantive jurisdiction is narrower. They are often tasked with combating crimes like election fraud, public benefits fraud, or crimes that cross county lines. State authorities’ larger geographic jurisdiction and narrower substantive jurisdiction provide at least three reasons why state governments rather than local governments should have primary responsibility for prosecuting corruption:

  • Impartiality: State authorities are less likely to suffer from conflicts of interest than local authorities, who are more likely than state authorities to know personally the government officials they are tasked with investigating. Even assuming local authorities are in fact independent and fair-minded, public perception that they are more partisan or parochial may detract from the legitimacy of corruption prosecutions, which inevitably face charges of partisanship in the best of circumstances. State authorities are more removed from the local political context and therefore are less vulnerable to attacks on their neutrality.
  • Capacity: State authorities’ limited substantive jurisdiction allows them to specialize and dedicate more time and money to public corruption cases, which are often resource-intensive. Local authorities, with their broader jurisdiction, may be tempted to concentrate limited resources on attention-grabbing violent crimes rather than nonviolent crimes like public corruption. In addition, state authorities’ larger geographic jurisdiction means they would handle more corruption cases and thus develop more expertise than would local corruption units.
  • Coordination: Centralizing anticorruption prosecution at the state level simplifies coordination with other law enforcement agencies. A statewide unit would serve as the sole point of contact for corruption investigations, which frequently require cooperation among various agencies at multiple levels of government—especially if a corruption scheme extends beyond the boundaries of a single county.

It’s important to note that a state-based unit won’t be appropriate for prosecuting all instances of corruption. As is current practice, federal prosecutors should take the lead when state officials’ impartiality is called into question. And when local authorities become aware of local corruption that would fly under the state’s radar, they should investigate as long as they have the capacity to assemble a strong case and don’t have any conflicts of interest; otherwise they can easily refer the case to the state unit. But as a matter of resource allocation and institutional design, it would be better to concentrate dedicated anticorruption resources at the state level rather than the local level.

Consider next the question of whether the specialized anticorruption unit should be housed in the state prosecutor’s office or in the state police. While every successful corruption investigation will involve both police and prosecutors at some point, the pertinent question is which of the two should lead the investigation from the beginning. Police lead investigations of most crimes. They talk to witnesses and conduct forensic analyses, consulting with the prosecutor only occasionally if at all. After the police determine who’s to blame for a crime, they turn the case file over to the prosecutor. In contrast to typical practice, corruption investigations should be led by prosecutors. There are two main reasons for this:

  • First, corruption prosecutions are legally complicated and difficult to prove, and prosecutors have the legal training necessary to ensure that an investigation builds the best case possible. A prosecutor can work backwards from the ultimate goal—conviction—to make sure that the evidence gathered supports each legal element of the charged crime. The prosecutor is also better able to assess the admissibility of evidence and predict possible defenses. If she recognizes gaps in a case, she can direct the gathering of additional evidence to ameliorate her concerns.
  • Second, police agencies are at greater risk than prosecutor’s offices to be themselves corrupted. Police agencies are better-funded, larger organizations whose employees spend much of their time essentially unsupervised, and whose officers have broad discretionary authority that can be more easily abused in the carrying out of day-to-day duties. (The recent Massachusetts State Police overtime theft scandal provides a case in point.) Moreover, when a police officer engages in corrupt behavior, fellow officers are known to close ranks and form a “blue wall of silence” to shield their colleagues from accountability. (For examples of scholarship documenting this phenomenon, see here, here, and here.) The vulnerability of police agencies to corruption and their tendency to cover it up when it occurs suggest a prosecutor-led anticorruption unit would be better positioned to address corruption that crops up among police.

That said, assigning prosecutors the lead in pursuing corruption investigations doesn’t mean that state police forces should have no role. Forming specialized units within police agencies to complement a prosecution-led unit could develop much-needed expertise in anticorruption investigative techniques.

In sum, while having any investigative unit dedicated to public corruption is a good thing, states would be best served by locating that unit in their attorney general offices. The good news is that most states with anticorruption units have done just that. So why do some states house their anticorruption unit elsewhere? There’s no single answer, but one theme that stands out is legal: many state attorneys general lack jurisdiction to bring public corruption charges on their own. They can initiate public corruption prosecutions only at the request of a local district attorney. Fortunately, most of these limits appear to be statutory and thus could—and should—be changed.

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