Even “Tough on Corruption” Proponents Should Worry about “Zero Tolerance” Rules

“Zero tolerance for corruption,” as Professor Stephenson suggested in a 2014 post, is an expression that can be construed in several different ways: from a general attitude that corruption should be considered “a high priority,” to an uncompromising policy mandating that “all feasible measures to minimize corruption must always be used.” In this post I will discuss another common, narrower understanding of “zero tolerance for corruption,” according to which corruption – at least in certain contexts – must always be addressed with a mandatory predetermined harsh sanction. A clear example of such a “zero tolerance” rule is the Colombian and Peruvian law demanding the instant termination of “any public contract tainted by corruption.” Another illustrative example is the EU’s directive mandating debarment from public contracting of any company convicted of offenses of corruption, fraud, or money laundering.

Granted, the potential deterrent value of mandatory harsh sanctions for corruption is substantial. A company aware that any conviction for corruption will inevitably incur severe penalties is more likely to be dissuaded from violating the law. Nevertheless, the costs of this “take no prisoners” approach to anticorruption may be much higher than the actual benefit. Thus, as Rick Messick recently showed, the law mandating termination of corruption-tainted public contracts has proven to have disastrous ramifications for the infrastructure in Peru and Colombia. As it turns out, not only has the nondiscretionary cancellation of corruption-tainted public contracts halted the advancement of existing infrastructure projects, but it has also deterred investors and developers from taking any part in such projects, for fear that they will be cancelled due to “the tiniest of infractions by anyone associated with the project.” Similarly, debarment is nothing less than “a death-sentence” for companies whose main business involves public contracts, and its mandatory imposition for even a relatively minor offense may be so draconian as to be counterproductive.

This kind of cost-benefit reasoning, though compelling to some, would not convince many proponents of an unequivocally “tough on corruption” stance. Many anticorruption hardliners believe in maximizing deterrence notwithstanding any associated costs. From this point of view, the end of deterring corruption justifies all necessary means. Yet even for those who take this view, it turns out that “zero tolerance” may not be the ideal approach. Supporters of “zero tolerance” rules assume that adoption of mandatory sanctions for corruption would guarantee that actors in the anticorruption system – judges, prosecutors, and legislators – will adhere to the “zero tolerance” ideal, and that such rules would be sustainable. But these decisionmakers in the anticorruption system may evade the application of “zero tolerance” rules where doing so would lead to sanctions perceived (rightly or wrongly) as patently absurd or unjust. In other words, a “zero tolerance” rule on the books does not guarantee that a “zero tolerance” policy would actually be implemented. Consider the various ways that actors in the anticorruption system may avoid triggering the mandatory sanctions for corruption:

  • Judiciary: Consider a judge who knows that any judicial determination of corruption – however minor – would necessarily entail imposition of sanctions that the judge perceived as disproportionally unjust. Even if such a judge wouldn’t blatantly defy the “zero tolerance” rule, it’s likely that such a judge would find ways to write her opinion in a way that avoided triggering the mandatory sanctions. In 1995, for example, an Israeli magistrate court refrained from convicting a public servant who had pled guilty to accepting bribes; the court explicitly stated that it did so to prevent the defendant’s mandatory exclusion from public service. (The judgement was later reversed on appeal, and the reversal was upheld by the Supreme Court.) But avoidance of a “zero tolerance” rule may be much more veiled. For example, in order to prevent the termination of a corruption-tainted public contract, as required by Peruvian and Colombian law, a judge might rule that the infraction in the specific case did not amount to “corruption” but only to a “technical regulatory violation.” In a legal system where this holding serves as a binding precedent, it would have negative long-term implications for combating corruption. Another, even more troubling evasion technique would be a judicial ruling (contrary to the judge’s actual belief) that there was not enough evidence to conclude that there was any violation of the law in a specific case. This phenomenon, which scholars claim exists in various legal contexts, may prove to be particularly prevalent in the corruption context, where the evidence is often (though not always) sufficiently murky that an acquittal could be defensible.
  • Prosecution: If the prosecutor concludes that convicting a defendant of corruption would inevitably trigger intolerable results, the prosecutor might exercise her discretion to dismiss the case or to file charges that will not trigger the “zero tolerance” rule. The U.S. Department of Justice, for example, has devised its prosecutions against or settlements with certain companies in a way that would not put them at risk of the EU-mandated automatic debarment. (A prosecutor may of course choose to leverage the threat of mandatory debarment for corruption conviction in order to reach a plea agreement with the defendant, which would not entail debarment but nonetheless would conserve prosecutorial resources.)
  • Legislature: Though the legislature might be reluctant to repeal a “zero tolerance” rule outright, for fear of appearing “soft on corruption,” there are various ways in which a legislature might circumscribe the scope of a “zero tolerance” rule without repealing it. For example, the legislature may adopt direct or indirect exceptions to the rule, thus limiting its application in certain situations – and rendering the “zero tolerance” aspect of the rule merely theoretical. For example, the Peruvian legislature could enact a rule according to which a corruption-tainted public contract will not be terminated where the associated costs are expected to exceed a certain predetermined amount, or where public security would be compromised. There are two main risks in adopting exceptions to the aforementioned “zero tolerance” rule. First, the exceptions might eventually “swallow” the rule itself. Second, and perhaps more importantly, when the legislature announces that under certain circumstances acts of corruption would not trigger the mandatory sanction, this encourages potential violators to act in a certain way that would exclude their case from the application of the formerly “zero tolerance” rule. In addition, the legislature might choose to confront the broad application of the “zero tolerance” rule in an indirect way, by decriminalizing certain acts of “light” corruption, or by deciding that such acts would not fall under the definition of “corruption.” Such a move, which is similar to one of the ways described above in which courts may refrain from application of the “zero tolerance” rule, may be more harmful to anticorruption efforts than simply recognizing that not all acts of corruption need to be punished harshly.

Even when a “zero tolerance for corruption” rule exists on the books, various actors in the anticorruption system could interfere with or undermine the application of the rule, particularly when the rule would lead to results that seem manifestly unwise or unjust. The purported “zero tolerance” rule may often be nothing more than an illusion. The question then becomes whether it is better to maintain a formal “zero tolerance” position, while recognizing that in practice deviations are inevitable, or whether it would be better to formally and frankly acknowledge that harsh mandatory sanctions are not always appropriate, and to build in exceptions and some degree of balancing into the official legal framework. As discussed above, there are a number of reasons to prefer the latter approach, even for those who believe that reducing corruption is society’s highest priority.

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