Rooting Corruption out of the Courts: The Use of Undercover Sting Operations

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No anticorruption policy can succeed if the courts themselves are corrupt.  If those tempted to offer or accept a bribe or otherwise rob the public can buy their way out of trouble, laws against corruption are meaningless.  Ensuring judges decide cases honestly is thus the keystone of any broader effort to control corruption.  The best defense against judicial corruption is, as a recent U4 paper stressed, a rigorous process for selecting judges, one which screens out those willing to sell their integrity for a price.

Character tests are not foolproof, however, and so even with the most thorough screening a few crooked apples can slip through.  When they do, rooting them out is especially difficult, for proving a judge has taken a bribe to fix a case is extremely difficult.  A judge may acquit the defendant for any number of reasons, and even if the reason given seems obviously wrong, that alone is not enough to establish corruption.   Moreover, bribery is a consensual crime.  Neither the judge taking a bribe, nor the defendant paying it, nor a go-between facilitating the transaction will have any reason to reveal the crime and every reason to keep it secret.

Purging the judiciary of corrupt judges will thus almost always require an undercover operation, one where law enforcement personnel or informants pretend to be dishonest to elicit incriminating statements or conduct from the investigation’s target.  Such “stings” are often controversial and are fraught with risks, those targeting judges even more so.  Yet given the great harm judicial corruption causes, the risks will often be worth taking.  When they are, designers of a sting may find it useful to review how U.S. authorities minimize the risks of undercover operations in the judiciary. Continue reading →

A Victory for the Government, Justice, and Common Sense, in the Bob McDonnell Appeal

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Over the past year, we had a few posts (from Jordan, Rick, and myself) about former Virginia Governor Bob McDonnell’s appeal of his federal bribery convictions. All of us took the position that McDonnell’s main argument on appeal—that his actions on behalf of a local businessman were not “official acts” (and that the loans and lavish gifts this businessman provided were merely for “ingratiation and access”)—was inconsistent both with the governing law and with the facts as presented in the trial record. (Lots of people, though, including two distinguished criminal law experts on my faculty, took the contrary position.) The issue is important not just for U.S. political and legal junkies, but also because the McDonnell appeal raises more general issues about how we think about the line between illegal corruption and legal (though perhaps sleazy) political wheeling & dealing.

As many readers are no doubt aware, the Court of Appeals for the Fourth Circuit decided the case earlier this month. And while courts don’t always get it right, this time they did: The three-judge panel unanimously rejected all of McDonnell’s arguments, and cogently explained why in this case the evidence was more than sufficient to support a corruption conviction. Indeed, while there are indeed hard questions about the appropriate line between legal and illegal forms of private influence on public officials, the McDonnell case was not even particularly close to that line.

A few quick observations about the Court of Appeal’ opinion: Continue reading →

EU Anticorruption Policy and Due Process: An Inconsistent Approach?

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Advocates have been pushing for a European Union version of the Magnitsky Act for a number of years now (see, for example, here and here). Such legislation for targeted sanctions (including visa restrictions and asset freezes) against alleged human rights abusers in Russia would be much more powerful in Europe than it is in the U.S. Yet, despite support from some member states, proposals in the European Parliament have met with opposition. Much of the concern is, doubtless, geopolitical. Dependent upon Russia for oil, the EU is likely loath to instigate retaliation from its imposing neighbor (as the Magnitsky Act has). Yet, as a previous post on this blog has argued, the EU also objects to the US approach on more principled grounds: namely, the Magnitsky Act runs afoul of due process and presumption of innocence principles in the EU Charter on Fundamental Rights and the European Convention on Human Rights. However, while the EU is busy debating what the right hand should do with respect to targeted sanctions, it may have ignored the left hand’s effect on due process in anticorruption enforcement, as in reflected other areas of EU efforts against graft.

Continue reading →

Announcement: ASIL Anti-Corruption Conference–Call for Papers

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GAB friend and occasional contributor Professor Andrew Spalding contributes the following announcement:

The American Society of International Law (ASIL) has established an Anti-Corruption Interest Group (ACLIG)  designed to create a forum for mutual engagement among practitioners and scholars. The group will be holding its inaugural conference/workshop on October 2-3, 2015, at the University of Pennsylvania.

The ACLIG co-chairs (Professor Spalding and Professor Philip Nichols) are soliciting papers for this event, from both academics and practitioners. Those who are interested in giving a paper at the meeting should submit a one-page proposal to Ms. Lauretta Tomasco at tomascol@wharton.upenn.edu by August 7, 2015 (two weeks from today!). If accepted, a proposer must supply a paper of at least five pages by September 25, 2015. Copies of all papers will be distributed to all participants before the workshop, so that all workshop participants will be able to read the material in advance and come to the workshop prepared to thoroughly discuss the ideas contained in each paper. (The precise format of the conference/workshop will depend on the number of submissions received.)

Submissions on any topic related to corruption are welcome. Possible topics might include but are not limited to:

  • the nature, manifestations and forms of corruption
  • effects of corruption on business, economies, governments, or society
  • domestic control of corruption
  • comparative analysis of domestic corruption laws
  • corporate liability for corruption
  • codes of conduct to control corruption
  • contracting/controlling third party risk
  • corruption within nongovernmental organizations
  • collective anticorruption programs
  • anticorruption certification standards
  • control of transnational corruption
  • national and international anticorruption regimes
  • coordination of anticorruption regimes
  • soft law controls on corruption
  • legal recourse for victims of corruption
  • an anticorruption organization

Those who are interested but have further questions should please contact Professor Spalding at aspaldin@richmond.edu.

Guest Post: The UK Should Fight Corruption Using “Unexplained Wealth Orders”

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Nick Maxwell, Head of Advocacy and Research at Transparency International-United Kingdom, contributes the following guest post:

UK Prime Minister David Cameron has made the fight against global corruption a high priority for his government, declaring that corruption is the cancer that is at the root of many of the world’s problems. But as much as we should applaud the UK’s efforts to support anticorruption measures and good governance abroad, it is equally important that the UK ensure that it is not a safe haven for the proceeds of corruption stolen throughout the world. Yet here the UK has fallen short: We have only seen limited asset restraint and recovery against the proceeds of corruption, especially against those currently associated to power. While estimates of total extent of the problem vary, it is generally agreed that large amounts of unexplained suspicious wealth enter the UK each year and are invested in the British financial system, in property, in luxury goods or in other areas of the economy. And despite the fact that UK law enforcement has the necessary expertise on this issue, the rate of asset recovery by UK agencies of the proceeds of grand corruption is undeniably very low compared to the scale of the problem.

Given the scale of the problem and the inadequacy of the government’s response to date, Transparency International’s UK chapter (TI-UK) established a taskforce of experts to review the legislation in place to deter grand corruption and recover stolen assets that have made their way into or through the UK. The results of the taskforce’s deliberations were published last month as a discussion paper entitled Empowering the UK to recover corrupt assets: New approaches to illicit enrichment and asset recovery; the paper sets out a new proposal for UK law enforcement: the use of an Unexplained Wealth Order (UWO), which would allow UK law enforcement to start proactively questioning suspicious unexplained wealth associated with foreign public officials, and to start civil recovery proceedings against the relevant assets.

Continue reading →

Borrowing Integrity in the United States: Federal Prosecution of State and Local Corruption

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In recent posts I described how developing nations bedeviled by endemic corruption have “borrowed” integrity by contracting out the inspection of imports, the management of public finances, and even the investigation of grand corruption cases to private firms or international agencies.  But it is not just poorer countries where corruption is so ingrained that government must turn to outsiders for help.  The leaders of Mississippi, New York, Louisiana, the City of Chicago, and other state, county, and municipal governments have done so as well.  History and politics have created conditions in these jurisdictions where local officials have been unable to effectively control bribery, nepotism, bid rigging, and other corruption crimes.  Either the police won’t investigate or the prosecutors won’t charge or the courts won’t convict.

Beginning in the nineteen seventies, governors, mayors, and other local officials have either sought, or acquiesced in, help from the federal government.  Agents of the Federal Bureau of Investigation examine allegations of corruption by state and local public servants; the United States Attorney for the region, a Presidential appointee, prosecutes the cases developed by the FBI, and the cases are tried in a federal district court presided over by a judge named by a President.  Although the U.S. Attorney and the judge may have ties to the area where the case has arisen, neither they nor the FBI agents, nor the assistant prosecutors that actually handle the cases, are beholden to local interests.  Not only are they free to pursue cases whatever the local political implications, they often win kudos from their superiors in Washington for nailing a corrupt local official.

Federalizing the investigation and prosecution of state and local corruption has not been without its critics, however, though the criticism has died away for a quintessential American reason. Continue reading →

Anticorruption Bibliography–July 2015 Update

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

Beyond Atlanta: Fixing Corruption in High Stakes Standardized Testing

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Although corruption in educational systems is viewed as a pervasive problem in developing countries, wealthy countries have had their fair share of educational corruption as well. In the United States, for example, the harsh prison sentences in the recent cheating scandal in the Atlanta school system cheating received extensive news coverage this past spring. While it’s true that what happened in Atlanta was particularly wide-spread, involving 44 separate schools (and dozens of principals and hundreds of teachers), this is hardly the first time a significant teacher or administration-driven cheating scandal has come to light. In the last few years, teachers and principals have been caught cheating all over the United States: twenty teachers in Houston were removed from the classroom for cheating on elementary school tests while in Philadelphia, there was a multi-year investigation that involved 138 educators in 27 schools. The National Center for Fair and Open Testing claims that in the last five years, there have been reports of standardized exam cheating in 37 states and the District of Columbia. They have catalogued over fifty different ways that educators helped their students cheat. And although anticorruption efforts in education frequently revolve around the exchange of money or sometimes sex for grades, the sort of cheating involved in these scandals is also a form of educational corruption. Alteration of student tests, even when the students themselves may not benefit from it, is a perversion of the system and a way for teachers and principals to put themselves in line for undeserved awards, given that many educational systems in the U.S. now operate under a high-stakes testing regime in which student performance has a significant impact on teacher and principal evaluations.

Indeed, it is clear that we are not dealing with a few corrupt “bad apples,” but rather with a widespread pattern of teacher and principal corruption. A significant contributor to this problem is the high-stakes testing system described above, which gives teachers and principals to manipulate test results for their own material benefit. Fortunately, there are a few fairly simple steps that would eliminate most of the opportunities for this sort of corruption:

Continue reading →

Singapore and Hong Kong Are Small. So What?

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In my last post, I suggested some reasons why Singapore’s squeaky-clean reputation might not be entirely justified. But nothing I said in that post was meant to deny or disparage Singapore’s extraordinary success in fighting many of the most pervasive and destructive forms of corruption. Indeed, in this post I want to emphasize just how remarkably Singapore—and its fellow Asian city-state Hong Kong—have been in fighting corruption by addressing one of the most common observations raised by those who would either minimize the significance of this achievement, or raise doubts about whether other countries can profitably learn from Singapore and Hong Kong’s experience.

I’m sure many of us who work on international corruption issues have heard something like this from time to time: Whenever we look for success stories or models, someone usually brings up Hong Kong and Singapore as examples of how it is possible, with the right combination of policies and leadership, to get even massive corruption under control within the space of a generation. But, almost as invariably, we hear the skeptical response: “We can’t really learn all that much from Singapore and Hong Kong,” our skeptic intones, “because those are small city-states.”

Now, the skeptics may be right. But what’s always struck me as odd about this exchange (which I’ve heard many times, in one form or another) is that those offering this skeptical view seem to be implicitly assuming that it’s easier to combat corruption in a small city-state than it is in a large country, but they rarely explain why this is true. And at least to me, the case hardly seems self-evident. I’m not saying it’s wrong, but it certainly requires more critical scrutiny than it usually receives. Continue reading →