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Is More “Enforcement” An Inherent Good?

The OECD Working Group on Bribery does good work in raising awareness of bribery and its effects and seeking to reduce bribery and corruption around the world.

Yet, every time I read its annual report (see here for the recently released report) I find myself asking the same question.

Does the OECD (and other civil society groups) view more “enforcement” as an inherent good regardless of enforcement theories, regardless of resolution vehicles, and regardless of outcomes?

It would appear the answer is yes given the OECD’s focus on and emphasis of enforcement statistics.  Consider the following paragraph from the introduction to the report from the OECD Secretary General.

“Active enforcement is the best weapon we have to fight foreign bribery. Between 1999, when the Convention entered into force, and December 2012 90 companies and 221 individuals were sanctioned under criminal proceedings for foreign bribery, and 83 individuals were sentenced to prison. These figures are set to increase, with approximately 320 investigations under way and criminal charges laid against 166 individuals and entities. However, there has been little or no enforcement in over half of the Parties to the Convention.”

It is fairly obvious why OECD member countries have varying degrees of enforcement of bribery and corruption offenses.  Among other reasons, in most OECD member countries, prosecuting authorities have two choices – to prosecute or not to prosecute – there is no such thing as non-prosecution or deferred prosecution agreements.  Moreover, in many OECD member countries there is no such thing as corporate criminal liability – or even if there is – such corporate liability can only be based on the actions of high-ranking executives or officers. This of course is materially different than the U.S. respondeat superior standard in which a business organization can face legal liability based on the actions of any employee to the extent the employee was acting within the scope of his or her duties and to the extent the conduct was intended to benefit, at least in part, the organization.

In this new era of FCPA enforcement, the majority of “enforcement” is generally accomplished with enforcement vehicles that bypass the judicial system in which the enforcement agency are not put to any burden of proof.

Is this something to highlight and celebrate?

Moreover, if the OECD is going to advance the notion that more “enforcement” is an inherent good, it should at least ensure that its enforcement statistics are accurate.

The OECD report contains a table titled “Decisions on Foreign Bribery Cases from 1999 to December 2012,” and it contains a column titled “number of individuals and legal persons acquitted / found not liable.”  According to the OECD report only 1 individual or legal person has been acquitted or found not liable in a U.S. foreign bribery case.

However, in 2012 alone, 26 individuals or legal persons (combining the defendants in the Africa Sting case, Lindsey Manufacturing case and John O’Shea case) were acquitted or found not liable in a foreign bribery case.

Perhaps though in its focus on more “enforcement,” the OECD cares little about judicial findings of prosecutorial misconduct or statements from judges in FCPA cases that the case represented  “a long and sad chapter in the annals of white collar criminal enforcement” or that the government “shouldn’t indict people on stuff [it] can’t try.”

More “enforcement” of bribery and corruption laws is not necessarily an inherent good.  In legal systems based on the rule of law, enforcement theories and procedures matter, resolution vehicles matter, and outcomes matter.

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