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Bribery - Problems

law discretion political criminal

Quantification. Bribery is not normally reported by briber or bribee, nor boasted of. No statistics exist as to the number or amount of bribes or the percentage of transactions affected by them. Consequently, although many historians speak of a government, a country, or an era as "corrupt," there is no quantifiable evidence on which they rest their judgments. By extrapolation from the disparate data available, guesses conceivably might be made that would compare one regime with another as more or less corrupt. But such comparative guesses have not been developed. Historians often take an era in which there is greater legislation against bribery or greater prosecution of it and conclude that this period was more corrupt than an era without legislative or prosecutorial activity. Nothing could be more fallacious. Greater activity indicates greater opposition to bribery and has no necessary connection with an increase in bribery. To take a contemporary American comparison, were the 1970s more corrupt than the 1950s? No one has done the work that can provide a rational answer to this question.

Since bribery is an unquantified phenomenon, it is impossible to say whether the multiplication of laws and prosecutions is reducing it, keeping even with it, or falling behind. In the absence of a quantitative basis for evaluating the efficacy of criminal law in this area, the success of the law is measured in terms of its symbolic impact. The law is more specially vindicated when a powerful person is subjected to it. Hence bribery prosecutions often have a political aspect.

Prosecutorial discretion. Prosecutorial discretion determines to a very large degree the application of the law. Discretion exists at the federal level as to state crimes. Virtually any local bribery has an aspect touching interstate commerce and thus could be federally prosecuted. Prosecution depends on decisions by regional district attorneys and by Washington. Discretion also exists at the charging level. For example, a campaign contribution by a corporation, criminal under federal law, can be prosecuted for having been made or accepted (a misdemeanor); for not being reported (a misdemeanor usually treated lightly); for being made by a federal contractor (a felony; most corporations are federal contractors to some extent); for being a gratuity (a more serious felony); or for being a bribe (a very serious felony).

Prosecutors again have discretion to interpret custom to modify the statutes. A Christmas present to a mailman, for example, is a federal felony if the anti-gratuity law is read literally. Prosecutorial discretion saves the law from being absurd. In a more debatable exercise of discretion, no prosecutor charged Governor Nelson Rockefeller of New York with a crime for giving large loans, as much as $500,000, to public employees in literal violation of an antigratuity statute. In a more central area of concern, many legislative deals or compromises fall literally within the terms of a bribery statute. The older type of statute, providing that giving must be done "corruptly," has left the prosecutor to interpret this vague term with the help of custom to exclude the legislative arena.

Historically, prosecutors have depended on chance to bring cases to their attention. To take the example of a particularly elaborate investigation, the congressmen prosecuted in Abscam became targets when criminal middlemen boasted that they could deliver them. No overall plan to test the members of Congress existed. Since the mid-1970s it has been the conscious policy of the Justice Department to give priority to cases involving high federal or state officials—members of Congress, judges, and governors. This exercise of discretion, rationally defensible, could be followed by a second exercise of discretion, to monitor closely the activities of, say, all members of Congress. Experienced observers suggest that almost any area of government, if probed, will yield evidence of corruption. To what extent shall the prosecutor with limited resources wait for an informant? To what extent shall he probe? The bite of the law depends on his decision. The political power resident in his exercise of discretion is substantial. Coupled with the political aspect of many bribery cases, prosecutorial discretion means that bribery, to an extent unusual in the criminal law, is a crime whose prosecution depends on political, but not necessarily partisan, choices.

Rigorism, cynicism, and relativism. Reciprocities run through human relations, including the political. They can as easily be removed from society as moisture from the atmosphere. Confronted with their ubiquity, one can take three positions. (1) The rigorist—every bargain, even looked-for reciprocation in the area of political judgments, is wrong. Each judgment is to be made on its merits. The standards applied to judges should apply equally to presidents, legislators, and voters. (2) The cynical—most political reciprocities go uncondemned and unpunished. Legislators logroll, presidents use patronage, voters are rewarded by bills that favor their interest. The isolation of a few specific trades as corrupt is hypocritical pretense. In the main, reciprocities rule. A Marxist view of Western society approaches the cynical, even though actual communist societies afford a basis for even greater cynicism. (3) The relativist—custom determines which reciprocities are bad and which are acceptable. No trade is intrinsically evil. The antibribery ethic is sufficiently enforced by a few spectacular cases showing the kinds of trades our society rejects.

Each of these positions has an effect on the criminal law. The internal dynamism of the antibribery ethic pushes toward rigorism. The result is perceptible in the Model Penal Code and modern statutes struggling with definitions that will not make a criminal prosecutor the judge of legislative compromises and election promises. The cynical view is the inevitable reaction to rigorism when it becomes apparent that all reciprocity cannot be eliminated. This view undermines enforcement and even observance of the law. The relativist position is that of the liberal, comfortable with society as it is, who believes that ideal disinterestedness in political judgments can be encouraged if not guaranteed and that its violation can be vindicated in flagrant instances. The relativist, however, has little reason to condemn corruption abroad and, viewing what constitutes corruption as arranged by social convention, has a small moral investment in the criminal law. The removal of moral fire from the law weakens its efficacy.

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