Italy’s Mafia Corruption Laws Are Causing More Confusion than Clarity

Italy has a long history with organized crime, and that history has had a fundamental impact on the country’s experience with corruption. Italy has three traditional mafia associations (the Camorra of Campania, the ‘Ndrangheta of Calabria, and Sicily’s Cosa Nostra), along with a number of smaller groups. For decades, these groups have secured their power not only by exercising violence against local populations, but also by their ability to influence politicians. Historically, it has been common for politicians in mafia-dominated regions to engage directly with the criminal groups, for instance by exchanging lucrative public works contracts for vote mobilization (for example, see here and here).

In the 1980s and 1990s, following an explosion of mafia-related violence, the Italian government began to crack down on organized crime, and this crackdown included new measures that targeted the criminals’ political benefactors. In 1982, the parliament passed Article 416-bis c.p., which defined for the first time the crime of “mafia-type association” (associazione di tipo mafioso). With the passage of this law, anyone who was found to be a member of a mafia-type association could be punished with 10-15 years in prison. In order to be considered a mafia-type association, the group has to follow the mafia method—that is, the use of 1) the force of group intimidation; 2) subjugation; and 3) the code of silence (omertà)—to commit crimes. In recognition of the importance of political alliances for mafia crimes, the procurement of votes is explicitly mentioned in the law as a possible mafia activity. In 1992, the law was amended to more directly target mafiosi’s political allies by criminalizing a rather narrow set of corrupt relationships. In particular, the law specified that politicians who worked with mafia groups by exchanging vote procurement for money would be subject to 7-12 years imprisonment. This amendment (denoted 416-ter) was subsequently reformed in 2014 and again in May 2019, with the result that the culpable conduct for politicians was expanded to include the exchange of votes for money or other benefits. This change reflects the reality that politicians rarely give money directly to mafia contacts but are more likely to provide other benefits, such as securing government contracts or providing jobs.

However, this regime was deemed insufficient, as most government officials are not actually members of mafia groups, and there are many ways in which mafias may benefit officials that do not involve elections. For instance, one might imagine a magistrate who consistently provides favorable rulings for mafia defendants, or a police officer who provides information about ongoing investigations in exchange for money or other benefits. To address these gaps, Italian courts have developed the concept of concorso esterno (external participation). Concorso esterno is not a separate crime in the Italian criminal code, but rather a concept that courts have derived from the combination of Article 416-bis and Article 110 c.p., the provision that establishes that when more than one person is complicit in a crime, each is subject to the same punishment for that crime. Italian courts have reasoned that the conjunction of these two provisions implies that prosecutors may charge individuals who support mafia actors—including politicians and other government officials—almost as if they were mafiosi themselves, and those convicted may be subject to the harsh sentences that await convicted mafiosi.

The concorso esterno regime reduces the ability of corrupt officials to avoid prosecution, and empowers Italian law enforcement to target the political corruption that has undergirded mafia activity. Where the law is used effectively against high-level politicians, it may also help to combat the public perception that politicians who work with the mafia groups enjoy impunity. Moreover, by labeling politicians and other “non-mafia” criminal associates as functionally equivalent to mafiosi themselves, this approach sends a powerful symbolic message, one that is appropriate given the historic symbiosis between politicians and organized crime in Italy. Nevertheless, the concorso esterno theory, which has long been controversial in Italian legal scholarship (for example, see here and here), has some very real downsides.

Continue reading

Italy’s Statute-of-Limitations Reforms: A Helpful But Incomplete Step Toward Ending Impunity

In 2015, a Naples court found former Italian Prime Minister Silvio Berlusconi guilty of paying a senator €3 million to support Berlusconi’s Forza Italia party and sentenced him to three years in prison for this crime. Berlusconi did not serve a day. Under Italian law, defendants are typically entitled to two appeals, which must be resolved before the defendants begin serving their sentences (with a handful of exceptions). Moreover, the statute of limitations clock keeps ticking while these appeals are in process. In Berlusconi’s case, the statute of limitations ran out before his case made its way through Italy’s glacial judicial system—where criminal trials can last an average of four to five years in the court of first instance alone, and the appeals can add an extra three years to the process. This was not the first time Berlusconi had benefitted from Italy’s slow judicial proceedings (see here and here). Nor was he the first politician to do so. In 2004, former Prime Minister Giulio Andreotti famously escaped punishment for mafia association in part due to the statute of limitations.

Corrupt politicians and other white-collar criminals got off scot-free in these and other cases due to the combination of three factors noted above. The first is the extremely slow pace of Italian criminal proceedings. The second is the rule that defendants do not have to begin serving their prison terms until their appeals have been exhausted. And the third concerns the rule that the statute of limitations clock begins when a crime is committed and continues to run for the duration of a defendant’s investigation, trial, and appeal, with no option of suspension. The rationale for this approach to the statute of limitations has traditionally been that the prosecution should not be able to hold a defendant in legal limbo while the case wormed its way slowly through the courts. In practice, however, this system often served to guarantee impunity for corrupt politicians and other wealthy defendants who could afford the high-priced lawyers that would drag out the legal proceedings just long enough to ensure their clients could never be imprisoned.

Furthermore, under the traditional Italian system of calculating the statute of limitations, the clock starts ticking at the moment the crime is first committed, rather than from when the crime is completed. (These are generally the same time for simple crimes like homicide or robbery, but for complex white-collar schemes, such as a bid-rigging conspiracy, there may be a long gap between the moment the crime starts and the time when it ends.) This rule makes prosecuting corruption and other complex financial crimes even more difficult, because such crimes are hard to detect and the investigations often take considerable time. So, what seem to be technical rules of criminal procedure—rules that, in the abstract, might be defended as protecting private citizens from prosecutorial overreach—in practice helped to perpetuate the system of impunity for Italian officials and businesspeople that fuels Italy’s already extraordinarily high levels of perceived corruption.

But there are hopeful signs that Italy may finally be addressing these problems. In December 2018, the Italian Parliament adopted a new anticorruption law, popularly referred to as Spazzacorrotti (“Bribe Destroyer”). (For English-language analyses, see here and here.) That new law, which will be fully implemented in 2020, contains a number of important provisions, including increased penalties for corruption and incentives for voluntary self-disclosure and cooperation. Crucially, the new legislation also amends Italy’s statute of limitations law: Continue reading

New Podcast Episode, Featuring Cristina Bicchieri

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this episode, Nils Köbis interviews University of Pennsylvania Professor Cristina Bicchieri about her interdisciplinary work on corruption and anticorruption, which addresses a range of questions including why corruption can be so “sticky,” the role of social norms in shaping corrupt or non-corrupt behavior, how and why perceptions and attitudes toward corruption may differ between men and women, and what the implications of social norm theory are for effective anticorruption strategy.

You can find this episode, along with links to previous podcast 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.

Some Things Are More Important Than Corruption (Brazilian Elections Edition)

In the anticorruption community, it is fairly common to puzzle over—and bemoan—the fact that voters in many democracies seem to support candidates that are known or reputed to be corrupt. “Why,” we often ask, “do voters often elect or re-elect corrupt politicians, despite the fact that voters claim to despise corruption?” One of the common answers that we give to this question (an answer supported by some empirical research) is that even though voters dislike corruption, they care more about other things, and are often willing to overlook serious allegations of impropriety if a candidate or party is attractive for other reasons. We often make this observation ruefully, sometimes accompanied with the explicit or implicit wish that voters would make anticorruption a higher priority when casting their votes.

We should be careful what we wish for. Continue reading

Is the West Being Too Critical of Corruption in Ukraine? The Debate Continues

A couple weeks back I posted a commentary on an interesting debate over the West’s approach to promoting anticorruption in Ukraine. On the one side, Adrian Karatnycky (the Managing Partner of a consulting firm that assists international clients with government relations in Ukraine) and Alexander Motyl (Professor of Political Science at Rutgers) published a piece arguing that the West’s approach to promoting anticorruption was misguided, for two reasons: First, because (according to the authors) there was too much focus on punishing individual wrongdoers rather than on institutional reform, and second because the emphasis on the failings of the Ukrainian government (and the wrongdoing of individual Ukrainian officials) was undermining a reformist government, and would likely lead Ukrainian voters to embrace populist demagogues. On the other side, Daria Kaleniuk (the executive director of a Ukrainian civil society organization called the Anti-Corruption Action Center) countered that the only reason the Ukrainian government has made any progress on anticorruption reforms is because of pressure from the West, and that holding individual wrongdoers accountable is essential to making progress on this issue and restoring the faith of the Ukrainian people in the institutions of government.

My own take was that Ms. Kaleniuk is likely correct that individual accountability, though not sufficient, is a necessary component of an effective anticorruption strategy; Karatnycky and Motyl’s implicit argument that Ukraine could make headway on the corruption problem without an effective system for holding individual wrongdoers accountable, as long as the country pursues “institutional reforms” (like privatization and de-monopolization), struck me as both facially implausible and inconsistent with what we know about successful anticorruption reforms elsewhere. Karatnycky and Motyl’s second point, about “messaging,” struck me as harder. On the one hand, it’s true that emphasizing only problems and failures and shortcomings might breed cynicism, frustration, and possibly political instability. But on the other hand, exposing corruption may be the only way (or at least the most effective way) to mobilize public opinion to address some very real problems.

I probably wouldn’t have returned to this topic (about which, I can’t repeat enough, I lack genuine expertise), but Mr. Karatnycky and Professor Motyl published a rejoinder to Ms. Kaleniuk last week that I think merits further commentary. The new piece makes a number of separate points, and I won’t touch on all of them. But if I had to sum up their central argument, it would go like this:

Don’t be too critical of the ruling elites—even if those elites are pretty corrupt, and even if the only reason they’ve done much of anything about corruption in the past is because they’ve been pressured or shamed or coerced into doing so. If you’re too mean to them, they might lose the support of the people—and what comes next might be much worse.

That summary, which I admit is a bit of a caricature, might seem unfair. But I don’t think it is. Indeed, I not only think it’s an accurate distillation of Karatnycky and Motyl’s main argument, but I actually think that it’s an argument worth taking seriously, and in some circumstances might even be right. But I’m skeptical it’s right in most cases, and I remain to be convinced that it’s right about Ukraine. Under most conditions, I think it’s probably wrongheaded and dangerous to say that we shouldn’t criticize a government for failing to tackle corruption or try to expose the corruption of individual politicians out of a concern that doing so might undermine the legitimacy of the government.

So, before I proceed, let me make clear that my caricature—“Don’t say mean things about the kinda-corrupt-but-kinda-reformist incumbents”—really is a fair distillation of the argument. Here the key passages from Karatnycky and Motyl’s most recent piece: Continue reading

Guest Post: Berlusconi and Corruption, Stability and Change

Andrea Lorenzo Capussela, an independent researcher who worked on Kosovo and Moldova’s development, and has written on Kosovo and Italy’s political economy, contributes today’s guest post:

There has been some discussion on this blog, prompted by the discussion at last fall’s “Populist Plutocrats” conference, on how corrupt, wealthy politicians can successfully position themselves as populists. One of the leading examples of this seeming paradox is Italy’s Silvio Berlusconi. In a recent post, Matthew Stephenson built on conference remarks from Giovanni Orsina and Beppe Severgnini to suggest that Berlusconi succeeded in part through a “politics of absolution”—the idea that by suggesting to Italian voters that “Italians are fine as they are, with all their vices, and need not change,” Berlusconi secured the support of many ordinary Italians who may themselves have bent or broken the rules, and who as a result of Berlusconi implicitly forgiving them, were willing to support him and to overlook Berlusconi’s own (much larger) infractions.

But as Professor Stephenson points out, there’s still a puzzle here: Voters consistently claim that they dislike corruption, and sometimes they are willing to take to the streets in protest. Indeed, during the two years that preceded Berlusconi’s electoral victory of March 1994, Italy saw frequent and large anticorruption demonstrations. Moreover, the particularism, clientelism, tax evasion, and corruption that Berlusconi both implicitly forgave and further entrenched are likely detrimental to the interests of a vast share of Berlusconi’s own electorate. So why did this message, and this so-called “politics of absolution,” work in the Italian case?

The missing piece of the story, as I argue in my recent book, has to do with the disruptive effect of the Italian anticorruption investigations of the early 1990s, and the fact that despite the success of that campaign in rooting out corruption, it ultimately destabilized Italian politics without offering Italian citizens sufficient reason to believe that the system would change for the better. Berlusconi offered the reassurance of a return to the old ways of doing things—and since most voters expected that such a return was likely, it became a kind of self-fulfilling prophecy. Continue reading

Petty Corruption, Grand Corruption, and the Politics of Absolution

My post last month offered some reflections on Professor Giovanni Orsina’s interesting observations, at last September’s Populist Plutocrats conference, about how the wide-ranging Clean Hands (mani pulite) investigations in Italy may have contributed to the rise of Silvio Berlusconi—first by creating a power vacuum, and second by contributing to the delegitimation of professional politicians and traditional political organizations. Today I want to pick up on another thread of Professor Orsina’s analysis, echoed and amplified by his co-panelist, the journalist Beppe Severgnini. Professor Orsina and Mr. Severgnini’s insight is that is that part of the secret to Berlusconi’s success – and the apparent willingness of many Italian voters to overlook his corruption and other misdeeds – is what for lack of better terminology I’ll call the “politics of absolution.” Here’s how Mr. Severgnini describes the phenomenon (see 57:34 on the video):

[A] populist plutocrat [like Berlusconi] is warm, empathetic, admits his sins – and forgives yours. It’s a very smart thing because he admits his huge sins, and he forgives your little sins…. [To] every shopkeeper who gave 50 Euros to the local policeman, … Berlusconi [said] “OK, don’t worry, this is not important.” … The smart thing, and the very subtle thing [is that by saying,] “I forgive you for those 50 Euros,” … in a way I buy your [acquittal of] me, [even though for me] it was 50 billion, not 50 Euro…. I forgive you the small things, so you forgive me for the big things – and maybe you vote for me. And that’s exactly the psychological trick, and it works extremely well.

Professor Orsina’s analysis is similar, emphasizing the contrast between Berlusconi’s forgiving, indulgent populism and what many voters perceived as the arrogant moralization of his chief opponents on the Italian left (at 45:20):

[The Italian left said to the voters,] “This is a corrupt country, this is a country that must be … corrected, … and we are those who can … teach the Italians how to behave.” Now, this was perceived as extremely arrogant…. On the other side, [Berlusconi] was saying, “Come on, guys! You are good! This is a great country…. I am in no position to tell you what to do…. What I want to do is to create the conditions for you to do what you want to do because what you want to do is good.” Of course there was no match…. Now, of course, when Berlusconi was telling the Italians, “You’re good, you can do whatever you want,” he was wrong. And when the left was telling the Italians, “We should behave better,” they were right…. [But] this [is] … why Berlusconi won the elections and the left lost.

I lack the expertise to assess, or even to intelligently discuss, whether this analysis of Italian politics is correct. But it strikes me as plausible, and moreover, if the diagnosis is accurate in this or other contexts, then understanding the politics of absolution may have at least two implications for efforts to combat corruption. Continue reading