Blackmail and Extortion

Extortion is an older term than blackmail. In England, among the earliest extant statutes setting out the crime of extortion was the First Statute of Westminster (1275), 3 Edw. ch. 26 (repealed), which prohibited extortion by a sheriff or other royal official. According to William Hawkins, extortion at common law was "the taking of money by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due" (vol. 1, p. 316).

One sees much the same kind of public corruption case in the late 1200s as in modern cases. Then, as now, extortion has usually embraced takings by various methods: coercion, false pretenses, or bribery. Some American courts attempted to separate bribery and extortion, occasionally even claiming that the two crimes were mutually exclusive (Symposium, pp. 1717–1732). Nonetheless, a solid majority of cases (especially cases before 1850 and cases after 1970) hold that bribery and extortion overlap—sometimes even affirming bribery and extortion convictions for the same transaction.

Coercive extortion by a public official is the seeking or receiving of a corrupt benefit paid under an implicit or explicit threat to give the payer worse than fair treatment or to make the payer worse off than he is now or worse than he expects to be. The payee is guilty of extortion; the payer is the victim of extortion. Thus, coercive extortion has at least three baselines (fair treatment, expected treatment, and the status quo).

For example, it is extortion if a public official threatens to deny a public contract to a bidding contractor who clearly deserves to receive it unless the bidder pays off the official. The official would receive the payoff under a threat to give the contractor worse than fair treatment. In many jurisdictions the contractor would not have done anything illegal since he was forced to buy back only what he deserved in the first place, but in others he would be guilty of bribery. In most payoff situations, however, we will not clearly know who actually deserved to get a public contract. Usually, the official makes the bidder aware that he will not get the contract unless he pays off the official, and if the bidder pays, he will definitely get the contract. If the bidder does not pay, he gets less than fair treatment (coercive extortion). If he pays, he gets more than fair treatment (bribery). Thus the same envelope filled with cash can be both a payment extorted under a threat of unfairly negative treatment and a bribe obtained under a promise of unfairly positive treatment.