Recently, the Coalition for Integrity released a report on Enforcement of Ethics Rules by State Agencies (along with an associated index and map) which examined the performance of state-level ethics agencies across the United States. In addition to providing basic enforcement statistics, the report emphasized two aspects of these agencies’ performance. First, the report looked at how these agencies enforced the ethics laws they were charged with enforcing, to see how aggressively agencies stand up for ethical government within their legal authority. Second, the report examined how transparent the agencies were in that enforcement, and hence how accountable these agencies make themselves to the public. (The report also ranked each state and agency based on their transparency of enforcement). Both of these aspects of agency performance are crucial to creating a culture of honest government and a robust ethics enforcement regime. Some our headline findings with respect to each of these dimensions of performance were as follows: Continue reading
An unusual feature of US law enforcement is the important role of the county sheriff. As of 2013, over 3,000 sheriffs’ offices across 47 U.S. states employed 352,000 people—roughly one-third of the country’s law enforcement personnel. The sheriff’s job varies from state-to-state, but the common denominator is responsibility over county corrections, including the operation of jails and transportation of inmates to and from court. In some states—Massachusetts, for instance—that’s essentially the extent of sheriffs’ duties. In other states, though, sheriffs wield much broader authority. Texas sheriffs, for example, can enforce the state’s criminal laws anywhere in their county, even where municipal police departments have jurisdiction. Most states are somewhere in the middle, tasking sheriffs with general law enforcement duties only in unincorporated parts of the county and sometimes with security for state government buildings, in addition to their correctional responsibilities.
Despite the variety of roles played by sheriffs, many commentators view sheriffs as merely another kind of police. After all, they wear badges, can legally use force, and, in many parts of the country, patrol the beat. But sheriffs are distinct from their police counterparts in significant respects. Most notably, whereas police chiefs are appointed by city officials, sheriffs are popularly elected by the county they serve. And, unlike police departments, which are creatures of state statute, the responsibilities of a county sheriff are often rooted in the state constitution.
These differences render sheriffs more susceptible than police to corruption for three reasons:
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?
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.
This may be the year the United States finally requires disclosure of who owns American corporations. By a 43-16 vote, the House Financial Services Committee recommended on June 11 that the full House of Representatives approve legislation creating a beneficial ownership registry accessible to federal and state law enforcement agencies and presumably to foreign law enforcement authorities through a valid mutual legal assistance request. At the same time, a bipartisan group of Senators, including two conservative Republicans who back President Trump, is proposing similar legislation in the Senate.
The American legislative process is an arduous one. The Financial Services Committee’s proposed bill must be passed by the House of Representatives; an identical bill approved by the Senate, and President Trump must then sign it. Long-time supporters of a registry cite two reasons for optimism a bill will pass this year. One, 10 Republican members of the Financial Services Committee voted for the bill and others may support it when the House considers it, and second, the Senate bill has the support of Republican Senators close to President Trump.
Back in 2014, the New York Times reported that the Central Intelligence Agency had been paying the office of then-President of Afghanistan Hamid Karzai tens of millions of dollars in cash for more than a decade. Afghan officials termed these payments “ghost money,” a convenient term that I adopt here—though some might simply call it bribery. This case was hardly unique. Indeed, the practice of engaging in state-sponsored bribery in the interests of national security appears to be a longstanding and global one: Over last half-century or more, the CIA has reportedly made cash payments to heads of state from Angola to Zaire in exchange for favors.
U.S. officials have defended this controversial practice. One former CIA operations officer even went so far as to say that state-sponsored bribery serves a productive role in the anticorruption fight: where the CIA is asked “to monitor the level of corruption in a place like Afghanistan,” “it only makes sense that U.S. operatives would have to talk to, and if necessary, bribe those involved in the corruption to find out what is going on.”
Yet even if one sets aside the question of whether ghost money itself presents the same normative concerns as regular bribery by private parties (an issue previously discussed on this blog), ghost money raises more problems than it solves for the anticorruption fight. In particular, the U.S. practice of making ghost money payments in places like Afghanistan likely has three significant adverse collateral consequences: Continue reading
Last month, I saw a news report about the international reaction to the Ukrainian Constitutional Court’s decision striking down Ukraine’s criminal offense of “illicit enrichment” as unconstitutional. For those unfamiliar with this topic, the crime of “illicit enrichment” makes it a criminal offense for a public official to realize a significant increase in his or her assets that the public official cannot reasonably explain. The crime of illicit enrichment is related to, but distinct from, civil asset forfeiture systems under which the government may seize—as presumptively the proceeds of unlawful activity—assets that the owner cannot reasonably explain. The main difference is that a civil forfeiture order results in the loss of assets, while a criminal offense can result in fines or incarceration, as well as the other collateral consequences of a criminal conviction. Some anticorruption activists support the criminalization of illicit enrichment on the grounds that it is often difficult or impossible to prove the underlying corruption offenses, but a substantial unexplained increase in a public official’s wealth is sufficient to prove that the official is corrupt. Critics warn that criminalizing illicit enrichment is incompatible with traditional notions of the presumption of innocence. (The UN Convention Against Corruption (UNCAC), perhaps unsurprisingly, fudges the issue, with UNCAC Article 20 calling on States Parties to “consider” adopting an illicit enrichment offense, “[s]ubject to [that country’s] constitution and the fundamental principles of its legal system.”)
In its decision last February 26, Ukraine’s Constitutional Court went with the critics, holding that the criminalization of illicit enrichment a criminal offense was an unconstitutional infringement on the presumption of innocence. This decision met with swift condemnation from the G7, which issued a joint statement with the World Bank declaring that the “recent elimination of the illicit enrichment offence from [Ukraine’s] criminal code is a serious setback in the fight against corruption” that has “weakened the impact of the whole anti-corruption architecture.” Illicit enrichment, the G7 and World Bank admonished, “is not a new offence. In 2010 there were more than 40 countries that criminalized illicit enrichment,” and “[c]ourts around the world have recognized that the criminalization of illicit enrichment is a powerful tool in the fight against corruption, while at the same time respecting fundamental human rights and constitutional principles such as [the] presumption of innocence[.]” The G7-World Bank joint statement closed by calling on Ukrainian authorities to “reinstat[e] criminal liability for illicit enrichment in line with UN, OECD, and [European Court of Human Rights] principles.”
Now, as a policy matter, I tend to agree with the G7-World Bank position here. I think that appropriately tailored and cabined illicit enrichment offenses can be useful tools, and (as others have also pointed out), it’s not true that such offenses have any inherent conflict with the presumption of innocence. Nonetheless, I found the letter an exercise in outrageous, condescending hypocrisy, one that the G7 countries in particular should be ashamed to have written. Continue reading