About Matthew Stephenson

Professor of Law, Harvard Law School

Guest Post: Illicit Enrichment Laws and the Presumption of Innocence

GAB is pleased to welcome this guest post by Andrew Dornbierer of the Basel Institute on Governance, author of the recently released open-access book Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth.

Laws targeting illicit enrichment are increasingly prevalent. To date, at least 98 jurisdictions have some form of illicit enrichment law. While the design and scope of these laws vary—some are criminal laws that can be used to convict individuals who control assets disproportionate to their lawful income, while others are civil laws that allow governments to seize assets whose lawful origins cannot be adequately explained—the common characteristic of all illicit enrichment laws is that they do not require prosecutors to secure a conviction for the underlying criminal conduct that allegedly produced the illicit wealth. Rather, illicit enrichment laws only require that the government show that the person enjoyed an amount of wealth that cannot be explained by reference to their lawful sources of income.

This characteristic serves as the primary point of attack for many critics. They claim that by not requiring a state to prove criminal activity, illicit enrichment laws effectively reverse the burden of proof, requiring the targets of the enforcement action to prove their innocence. And some countries have resisted adopting illicit enrichment laws for this very reason. While the UN Convention Against Corruption includes a specific article recommending that state parties consider adopting illicit enrichment laws, during negotiations “many [national] delegations indicated that they faced serious difficulties, often of a constitutional nature, with the inclusion of the concept of the reversal of the burden of proof.” Similar concerns were raised during the drafting of the Inter-American Convention Against Corruption (IACAC), and while in the end this convention did include a provision calling on states parties to adopt illicit enrichment laws, the United States filed a particularly clear reservation to this provision when it joined, noting that because “[t]he offense of illicit enrichment … places the burden of proof on the defendant,” such an offense “is inconsistent with the United States Constitution and fundamental principles of the United States legal system.” And in Ukraine, in February 2019 the Constitutional Court of Ukraine invalidated the local illicit enrichment law on the basis that it was inconsistent with the presumption of innocence.

Is there any truth to the claim that illicit enrichment laws unfairly place a burden of proof on the defendant, and thus violate the presumption of innocence?

The short answer is no.

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Guest Post: How Not To Balance Efficiency and Integrity in Public Procurement–The Case of Italy

Today’s guest post is from Roberta De Paolis, a Ph.D. researcher in criminal Law at the Sant’Anna School of Advanced Studies.

In designing an effective public procurement system, a key challenge is striking the proper balance between ensuring efficiency and promoting integrity. But emergency situations make it hard to maintain an appropriate balance, as the response to the global Covid-19 pandemic has again demonstrated. When confronted with an urgent situation, governments often allow the need for speed to trump the interest in transparency and oversight, and thus grant public procurement authorities exemptions from the ordinary rules and monitoring procedures.

If one wants to find a good example of how not to address the challenge of striking the right balance between these competing interests, one need look no further than Italy. Rather than design a system that can ensure an appropriate degree of integrity without stifling efficiency, while at the same time building in adequate flexibility to handle urgent situations appropriately, the Italian public procurement system is characterized by a set of overly rigid, stifling baseline rules, from which the government has created a set of overly broad discretionary exceptions to address situations in which the application of the usual rules is untenable.

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Anticorruption Bibliography–July 2021 Update

An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. Additionally, the bibliography is available in more user-friendly, searchable from at Global Integrity’s Anti-Corruption Corpus website.

As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

Guest Post: A Market Research Approach to Encouraging Citizen Participation in Anticorruption

Today’s guest post is from Torplus Yomnak, Jake PattaratanakulApichart Kanarattanavong, Thanee Chaiwat, and Charoen Sutuktis of Chulalongkorn University in Bangkok, Thailand.

A team at Chulalongkorn University recently undertook a research project to examine the factors that increase public participation in anticorruption efforts, so as to develop a more effective communication strategy to promote public participation. (The final paper is currently only available in Thai, though an English translation is in progress, and a summary of the work can be found here.) The study employed a concept used in marketing research called “segmentation,” which seeks to identify latent classes of people—sorted by various characteristics and indicators—who will be more responsive to particular kinds of messaging. In marketing research, the idea is to identify which potential consumers will be most responsive to certain marketing strategies. The same research techniques can be used to classify different segments of the public by their likely responsiveness to anticorruption messaging (or to different kinds of anticorruption messaging).

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Special Podcast Episode: ICRN Forum Panel on Communication Between Academics and Policymakers

A new episode of KickBack: The Global Anticorruption Podcast is now available. This episode differs a bit from our usual format. Rather than featuring an interview of a single expert, this week’s episode features a recording of a roundtable discussion held at the fifth annual Interdisciplinary Corruption Research Network (ICRN) Forum, which was held virtually last month with the sponsorship and support of Global Integrity. One of the highlights of the Forum was a special panel entitled “How Can Academia and Policy Communicate in Anti-Corruption?”, which, as the name implies, focuses on improving the channels of communication between the research community (especially academics based at universities) and the policy and advocacy communities. The roundtable, which was moderated by Johannes Tonn of Global Integrity, featured three distinguished experts with substantial experience working to bridge the gap between research and practice: Professor Heather Marquette of the University of Birmingham (currently seconded part-time to UK Government’s Foreign, Commonwealth, and Development Office); Professor Leslie Holmes of the University of Melbourne; and Jonathan Cushing, who leads Transparency International’s Global Health Program.The panelists had a lively discussion about the importance of improving channels of communication between researchers and practitioners, the challenges that researchers face in engaging with the policy community, and some of the approaches that might help overcome those challenges. While I hope the episode may be of interest to all of our readers, I would particularly commend it to up-and-coming scholars. One more quick note: After this week’s episode, KickBack will be going on hiatus for the (Northern hemisphere’s) summer break. We will be back in September with new episodes! You can also find our most recent episode, as well as an archive of prior episodes, at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Guest Post: Highlights from the UNGASS Anticorruption Session Side Events

Last month, the UN General Assembly held its first-ever Special Session focused specifically on the fight against corruption. In addition to the UN General Assembly Special Session (UNGASS) itself, various governments and civil society organizations arranged various side events, held in parallel with the main UNGASS meeting, to allow activists, policymakers, and researchers to share their expertise. Today’s guest post, contributed by Michaella Baker, a JD-MBA student at Northwestern University (working in collaboration with Northwestern Law Professor Juliet Sorensen), summarizes the themes and principal contributions of three of these side events.

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Guest Post: The Case for Corruption Truth Commissions

Today’s guest post is from Blair Glencorse, the Executive Director of the Accountability Lab, a civil society network that promotes accountability, transparency, and open government.

When corruption is deeply entrenched, it is very difficult to dislodge through criminal prosecution and similar law enforcement efforts. In systems that create very strong incentives to behave corruptly—those where powerful social norms favor graft over honesty—one can expect widespread resistance to attempts at stepped-up enforcement of anticorruption rules, given the number of people who might rationally fear being implicated in wrongdoing. Moreover, given the reluctance of participants in systemically corrupt regimes to disclose their illicit conduct and improper relationships, it is very hard to understand how the corrupt systems operate, who the most culpable perpetrators are, and how such systems can be more effectively dismantled.

A promising response to these problems might be drawn from the experience of addressing widespread human rights violations in moments of transition: truth commissions. While it would obviously be very difficult to set up such a commission during normal times, when the opportunity arises—say, after a regime change, or a significant political turnover sparked by popular protests against corruption—a country could set up an independent body—a corruption truth commission—to manage a process by which amnesty would be offered to those who had engaged in unlawful corrupt acts, in exchange for a full and truthful accounting of the corrupt conduct that they had perpetrated or witnessed.

This approach has several practical benefits. It creates a permanent record of the abuse of power, builds an evidence base to go after those perpetrators who either reject the offer of amnesty or are too high-level to be eligible, and can help countries recover ill-gotten assets. By exposing the workings of corrupt networks, corruption truth commissions would also help us better understand how to identify and counter corrupt networks before they can take root.

While the appropriate design of such a body would obviously depend on the specific circumstances of each individual country, five general principles are broadly applicable:

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New Podcast Episode, Featuring Robert Barrington

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Robert Barrington, currently a professor of practice at the University of Sussex’s Centre for the Study of Corruption, who previously served for over a decade as the executive director of Transparency International UK. Over the course of the interview, Professor Barrington and I discuss how is background in the financial sector informed his work as a civil society advocate, the strategies that proved most effective in lobbying for improving anticorruption and corporate transparency laws in the UK (especially the UK Bribery Act, the creation of the “unexplained wealth order” mechanism, and the public registry of companies’ beneficial owners), and the prospects for future progress on fighting corruption in the UK in the post-Brexit world. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Announcement: The Anticorruption Corpus Launch Event

As I mentioned in a previous post, the anticorruption NGO Global Integrity (GI), in collaboration with the UK’s Anti-Corruption Evidence Research Programme, have created a new resource for anticorruption researchers–an Anticorruption Evidence Library–which is based on the bibliography of anticorruption sources that I started compiling several years back (and for which I announce monthly updates on this blog). Tomorrow (Wednesday, June 23), at 9 am US East Coast Time, Global Integrity will be hosting an online event to mark the launch of the library, and to provide scholars, activists, and other researchers more information about how to use the library to identify and access sources that can contribute to developing a solid, evidence-based approach to assessing and addressing corruption problems. You can find out more information about the event, along with a link to preregister, here. I hope to see many of you there!

Guest Post: The Role of Assemblage Theory in Rethinking Anticorruption Reform

Today’s guest post is from Grant Walton, a Fellow at the Development Policy Centre at Australia National University’s Crawford School of Public Policy, and the Chair of ANU’s Transnational Research Institute on Corruption.

For more than twenty years, international donors have advocated and supported anticorruption reform programs in developing countries. While supporters of these efforts can point to some demonstrable successes (see, for example, here and here), many skeptics have questioned the effectiveness of such interventions. Indeed, the harshest critics echo Barney Warf’s assessment that many anticorruption reforms “amount to little more than hollow rhetoric, the punishment of a few sacrificial lambs, and little substantive change.”

In response to these criticisms, some academics have started to reassess the assumptions that have guided donor-supported anticorruption efforts, including how corruption and the responses to it are conceptualized. One of the most innovative strands of this burgeoning literature draws on a framework called “assemblage theory.”

This framework, devised by the philosophers Gilles Deleuze and Félix Guattari, is complex, but to boil it down, assemblage theory attempts to describe the world by focusing on the fluid non-hierarchical relationships that form between humans, ideas, and objects. Assemblages come together at crucial moments (to design a policy for example) and then disperse. Rather than examining the role of different groups or institutions, assemblage theorists focus on the way people, ideas, and objects are connected across time and space, and how these connections help shape events, ideas, and policies.

An increasing number of scholars now draw on assemblage theory to understand the complex world of policymaking, which is rarely a linear process, and involves humans, ideas and objects that stretch across the globe. And, as I highlight in a recent article, anticorruption scholarship in particular has drawn on assemblage theory to reimagine the effectiveness of anticorruption reforms in two ways:

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