Professional Documents
Culture Documents
Bribery
If any of the offenses considered in this book has a claim to being the
quintessential white-collar crime, it is probably bribery: its perpetrators are
typically upper-income professionals (whether they are the bribees who accept
the bribes, or the bribers who have enough capital to pay them); it is invariably
committed in the context of governmental or commercial activities; its harms
are subtle and often attenuated; its victims are difficult to detect; and, often,
the only thing that separates bribery from legitimate 'gifts' is a hard-to-prove
mental element of willfulness or, even more obscurely, 'corruption.'
The potential for moral ambiguity in the crime of bribery is illustrated by
the case of House Majority Leader Tom DeLay, which was mentioned in the
Introduction. Recall that DeLay and several of his Republican House
colleagues allegedly told Congressman Nick Smith that, in return for his vote
for President George W Bush's Medicare bill, they would give his son, Brad,
substantial financial and political support in his congressional campaign. 1
The question is: was this bribery or just political log-rolling? My aim here is
to use this and other problematic cases as a vehicle to analyze two more
foundational issues: (1) why is bribery morally wrong?; and (2) where should
the outer limits of the offense lie?
1.
DEFINING BRIBERY
Before we can say why bribery is wrong, we need to have a preliminary idea
of what it is. However, there is an inevitable potential for circularity here: ultimately, a determination of its precise contours will turn on an understanding
of why bribery is wrong.
One problem is that there are hundreds of bribery and corruption provisions
in force throughout the United States,2 the United Kingdom, 3 and in virtually
I See sources cited in the Introduction, n 4. The Congressmen also allegedly told Smith that
if he didn't accept their offer, they would ensure that his son would never win his election.
The 'extortion' aspect of the Delay case is dealt with in ch. 17.
2 For a helpful overview of the American law of bribery, see Sarah N Welling, et aI., Federal
Crimhlal Law and RelatedActions: Crimes, Forfeiture, the False Claims Actand RICO (St. Paul,
Minn: West Group, 1998), vol. 1, ch. 7.
3 In England and Wales, the leading bribery statutes are the Public Bodies Corrupt Practices
Act and the Prevention of Corruption Act. There are also a number of special offenses covering
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Bribery
every other legal system around the world4-and there is a good deal of
variation among them. Although I will be giving special consideration to
several of the most interesting and problematic aspects of the leading
American bribery statute, 18 USC 201,5 my overarching interest here will
be in articulating a deeper, more universal conception of bribery, one which is
correlated only imperfectly with the concept of bribery that can be found in
any specific statute.
As a framework for analysis, then, I propose the following working definition of bribery: X (a bribee) is bribed by Y (a briber) if and only if: (1) X
accepts, or agrees to accept, something of value from Y; (2) in exchange for
X's acting, or agreeing to act, in furtherance of some interest of Y's; (3) by
violating some duty of loyalty owed by X arising out of X's office, position,
or involvement in some practice. 6 This section focuses on the questions of
who can be a bribee and a briber. The next section focuses on bribery as an
agreement.
Like offenses such as conspiracy and dueling, a completed act of bribery
requires the voluntary concerted criminal participation of rwo parties. In
order for there to be a bribe, there must be both a briber and a bribee (or at
least an intended briber and bribee).
that could be bribed for much of that history has been a judge--a fact that is
illustrated by references to bribery in both the Hebrew Bibles and early
English common law. 9 Over time, however, the universe of people considered
capable of being bribees has grown considerably, in rwo ways: first, the class
of people who are considered 'public officials' has grown. For example, under
section201(a), the term 'public official' is now broadly defined to include members of Congress, virtually all officers and employees of all three branches of
government, jurors, and persons who act 'for or on behalf of' the federal government, such as private employees who receive federally administered
funds.!O Secondly, despite the non-applicability of section 201 itself to private
party bribees, the law is increasingly moving in the direction of criminalizing
commercial bribery. For example, separate provisions of federal law now
make it a crime for investment advisers, contestants in broadcast quiz shows,
bank employees, sellers of alcoholic beverages, labor union officials, railroad
employees, and radio disc jockeys to receive bribes of various sorts. l1 There
are also numerous other provisions, in the United States and elsewhere, that
make it a crime to bribe employees of private firms.!2 In short, although, historically, bribery could be committed only by public officials, and many leading statutes continue to be restricted in this way, cases in which payments
are received by department store buyers, contest judges, athletes, and other
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8 See, eg Exodus 23:9 ('Do not take bribes, for bribes blind the clear-sighted and upset the
pleas ofthose who are in the right.'); Deuteronomy 16:19 (similar). It is worth noting that, under
the original Israeli law of bribery, bribe-taking by judges was considered a more serious offense
than bribe-taking by other kinds of government officials. Cf Penal Law Revision (Bribery and
Rewards) Law 1950 l(a) with 2.
9 See, eg Henry de Bracton (Samuel E Thorne (trans.)), On the Lawsand Customs of England,
(Cambridge, Mass.: Harvard U. Press, 1968) vol. 2, 302-03 (citing biblical sources).
10 18 USC 201(a); Dixson v United States, 465 US 482 (1984) (applying statute to employee
of private nonprofit corporation that administered subgrant from municipality's federal block
grant). One of the most notable aspects of section 201(b) is that it prohibits bribery of officials
who work for the federal government, but not those who work for state and local governments.
When the federal government wants to prosecute state and local government officials for bribery
and other forms of corruption, it frequently charges them, under the Hobbs Act, 18 USC 1951,
with the offense of extortion 'under color of official right.' It can also use 18 USC 666, which
prohibits bribery of state and local officials of entities that receive at least $10,000 in federal funds.
See also Krichman v United States, 256 US 363, 366--68 (1921) (concluding that earlier federal
bribery statute did not reach federal employees such as 'window cleaners, scrubwomen, elevator
boys, doorkeepers, pages ... or baggage porters'). Although the Court has not had occasion to
revisit the question, the prevailing view in the lower courts is that the current bribery statute is not
limited in the same way as the earlier statute, and that every federal employee should be regarded
as a 'public official' for purposes of section 201. Welling, et al. (n 2 above, vol. 1, at 201 & n 3).
11 eg 18 USC 215 (bribery of bank employees); 27 USC 205(c) (bribery in alcoholic
beverage industry); 29 USC 186 (bribery of labor representatives); 49 USC 11907 (bribery of
railroad employees). Commercial bribery can also serve as a predicate offense under the mail
fraud, wire fraud, RICO, and Travel Act statutes.
12 See Perrin v Uuited States, 444 US 37, 44 nn 9 & 10 (1979) (listing statutes); Gunter Heine,
et al., (eds.) Private Commercial Bribery: A Comparison of National and Supranational Legal
Structures (Freiburg: International Chamber of Commerce, 2003) (study of laws in thirteen
OECD countries).
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private sector actors are now, arguably, as central to the concept of bribery as
those involving more traditional bribees such as judges and legislators. 13
One interesting question that has arisen in recent years concerns the
circumstances under which witnesses should qualify as potential bribees. The
leading case is United States v Singleton, in which the prosecutor offered a
wimess 'leniency' in return for his agreeing to testify on behalf of the government, and the defendant subsequently argued that such an offer (ie of'something of value' in return for testimony) constituted an illegal gratnity under 18
USC 201.!4 Under section 201 (b)(4), bribery is explicitly defined to include
cases in which a person corruptly receives something of value 'in return for
being influenced in testimony under oath or affirmation as a wimess.' Oearly,
then, the statute would apply to a wimess who agreed to give perjured testimony in return for payment. But would it apply to a witness who agreed to
give testimony that was truthful? Such a wimess might have an argument
that, rather than receiving something of value in return for being influenced
in his role as a witness, he was actually receiving something of value in return
for his being influenced to become a wimess. As such, there would be no positional duty for him to violate. His act would thus be analogous to a private
person who accepted payment in return for deciding not to run for some
political office 15-an act that would not on its face appear to constitute
receiving a bribe.
Bribery as an Agreement
In this section, we consider two related issues: (1) how bribes differ from gifts,
tips, and campaign contributions; and (2) what it means for the briber to give the
bribee 'something of value' in return for the bribee's acting on the briber's behalf.
16 Cf Stuart P Green, 'The Criminal Prosecution of Local Governments' (1994) 72 North
Carolina Law Review 1197, 1215-17 (concerning application of federal environmental crime
statutes to municipalities).
17 Singleton, 165 F 3d at 1302 & n 2.
18 I have previously dealt with the supposed problem of self-prosecution in Green, above
note 16, at 1209-10.
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the thing of value given by the briber to the bribee need not, of course, be
money. Bribes have been premised on a wide range of things of value, such as
offers of future employment, unsecured short-term (and subsequently repaid)
loans, restaurant meals and tickets for athletic events, ostensibly valuable
(but actually worthless) stock certificates, and even sexual favors. 24 Indeed, in
the Talmudic tradition, bribes could be effected even by means of 'pleasant
words' of f1attery.2S
On the other hand, as I have discussed elsewhere in the context of theft law,
the term 'thing of value' cannot always be taken literally.26 We need to think
about the term in relation to the underlying purposes and policy concerns of
the relevant statute. In the case of bribery, we would need to inquire into the
extent to which an expansive interpretation of the term 'thing of value' might
create a chilling effect in the context of, for example, dealings between
department store buyers and suppliers, political fundraising activities, and
the social lives of government officials.
The question of chilling effect also arises in the legislative context. If
legislator A offers legislator B $100,000 in return for voting for some piece of
legislation, then it would not be hard to conclude that the 'something of
value' requirement had been satisfied. But what if legislator A offered legislator B not money, but rather his endorsement in the next election, or perhaps
his support for some other piece of legislation in which B had a special
interest? Would that be bribety, or merely log rolling, legislative 'business as
usua!'? Given the interest our society presumably has in a legislative process
unconsttained by outside control, including by courts and prosecutors, we
would do well to approach such situations with caution. Conceptually, one
way to do so is simply to decide that endorsements and votes will not constitute
things of value for purposes of bribery law.
Another interesting context in which the 'thing of value' question arises is
provided, again, by a case in which a prosecutor made a deal with a witness
to give something in return for testimony. In United States v Medina, the
defendant, charged with drug trafficking, sought to exclude testimony given
by a cooperating government witness who had, in exchange for his agreement
to testify on behalf of the government, received not only a promise of leniency
but also cash payments of over $105,000.27 In ruling on the motion, the court
seemed reluctant to follow the approach used by the Tenth Circuit in Singleton,
and refused to hold that prosecutors acting within the scope of their duties
could never violate s 201. Instead, the Medina court distinguished between
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24 See, respectively, United States v Biaggi, 909 F 2d 662, 684-85 (2nd Cir 1990); United
States v Gorman, 807 F 2d 1299, 1304-05 (6th Cir 1986); United States v Sun Diamond
Growers, 526 US 398, 401-02 (1999); United States v Williams, 705 F 2d 603, 623 (2d Cir
1983); Scott v State, 141 NE 19,23 (Ohio 1923).
25 Meir Tamari, Al Chet: Sins in the Marketplace (Northvale, NJ: Aronson, 1996) at 137.
26 See Stuart P Green, 'Plagiarism, Norms, and the Limits of Theft Law: Some Observations
on the Use of Criminal Sanctions in Protecting Intellectual Property Rights' (2002) 54 Hastings
Law Journal 167, at 211-2L
27 41 F Supp 2d 38 (D Mass 1999).
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201
Mens Rea
Having considered the formal elements of bribery, I now want to turn to its
moral content. Here we apply our three-part framework in considering its
mens rea, harmfulness, and moral wrongfulness.
28 Nevertheless, the court ultimately denied the motion on the grounds that the witness was
being paid not for his testimony as a witness but rather for his help as an informant. 41 F Supp
2d at 48-53. See also United States v Murphy, 193 F 3d 1, 9 (1st Cir 1999) (recognizing distinc
tion between offering witnesses leniency and 'just pay[ing] witnesses money for their testimony');
United States v Condon, 170 F 3d 687, 689 (7th Cir 1999), cert denied, 526 US 1126; United
States v Hunte, 193 F 3d 173, 176 n 4 (3rd Cir 1999).
29 United States v Quinn, 359 F 3d 666, 675 (4th Cir 2004).
30 United States v Biaggi, 853 F 2d 89, 97-99 (2d Cir 1988), ,ert denied, 489 US 1052
(1989).
2.
31
32
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Harmfulness
Much of the literature on bribery and other forms of corruption focuses on
the numerous ways in such acts are believed to be harmful to society.36
Bribery 'corrupts' political and commercial life by inviting inappropriate
grounds for decision-making." It creates political instability, distorts markets,
undermines legitimacy, retards development, wastes resources, undercuts
confidence in decision-making institutions, and leads to injustice, unfairness,
and inefficiency. In the Talmudic view, even a wise person who accepts a gift
but otherwise intends to maintain objectivity in the case before him will find
that his judgment is distorted. 38
The precise nature of the harm that a given act of bribery canses will vary
depending on the nature of the official act that is compromised, whether by
judge, legislator, administrator, juror, wimess, executive, or other official.
Consider, for example, the difference in harm between cases in which, in
return for payment: (1) a military officer agrees to share secrets that could
result in loss of life, and (2) a waiter agrees to give a patron a better table in
his restaurant (if in fact the latter case involves a bribe at all39 ).
Of course, none of this is to say that every act of bribery will necessarily
lead to any actual bad decisions. As we shall see below, a legislator or judge
can be bribed into making the same correct decision she would have made
absent the bribe. All that is required is that the decision-making process itself
be corrupted by the payment of the bribe.
Moral Wrongfulness
So fa~ we have been talking about 'bribes' as if they were single, uni-directional
transactions. In fact, however, bribes involve two distinct parts: a bribe must
be given (or at least offered) by a briber; and it must be received (or at least
solicited) by a bribee. Although the modern American statutory approach
is to impose the same penalty for bribe-taking and bribe-giving, there is
some evidence that the general public regards bribe-taking as the more
serious offense:o and it is in fact treated as such in some foreign statutes.41
39
40
In a recent study, respondents were asked which they regarded as more serious: a public
36
37
official accepting a bribe, or a private citizen giving a bribe to a public official. Seventy four per
cent said they regarded the former as more serious; 12 per cent said the latter was more serious;
14 per cent said they were equal in seriousness. Training and Research Institute, National White
Collar Crime Center, The National Public Survey on White Collar Crime (2000) <http://www.
nw3c.orglresearch_topics.html> accessed 22 Aug. 2005. Of course, it should be pointed out that
such data could also be consistent with the view that what respondents thought was more seri~
ous was corrupt action by officials (whether offering or taking bribes) as opposed to corrupt
action by private individuals.
41 eg Israel Penal Law Revision (Bribery and Rewards) Law, 1950 S 3 (person giving bribe is
liable for only half the penalty applicable to person accepting bribe).
Bribery
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the Third World. And, indeed, one of the goals of legislation such as the
43
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Bribery
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47 Law Commission for England and Wales, Report No. 248, Legislating the Criminal Code:
Corruption (HMSO, 1998), at paras 5.4-5.10.
48 Ibid at 54.
49 Cf RA Duff, 'The Limits of Virtue Jurisprudence' (2003) 34 Metaphilosophy 214 ('A
judge's duty is to decide the cases that come before her through a process that accords with the
requirements of justice .... [A] judge who decides in favour of the party who is legally entitled to
win only because she was bribed to do so has failed to observe a basic requirement of natural justice, that she attend only to legally relevant considerations in making her decision.').
so I say fortuitously, although one could imagine a legislator or judge who would accept a
bribe only in circumstances in which he was able to vote the (correct' way.
Sl Maimonides, the great 12th century Talmudic commentator, makes a similar point: Bribery
involves an intention to pervert justice, and such intention exists even when the judge is bribed to
acquit the innocent or convict the guilty. Thus, it is not surprising that modern Israeli bribery law
makes explicit (that the crime of bribery takes place not only when the purpose of the bribe is to
induce an unlawful act or to pervert justice, but also when the object is to obtain performance of
a lawful act which it is the duty of the recipient to perform in any case.' Israeli Penal Law, Art 5,
S 293(7).
53
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vote in the interests of the House Republicans rather rhan his constituents, he
would surely have been disloyal to those constituents. On the other hand, it
seems that Nick's loyalty to his constituents was in competition with rhe loyalty he presumably had to his son. Moreover, had the threat been more diresay, if his colleagues had threatened to kill Brad uuless Nick voted their
way-then we might well conclude rhat such coercion should relieve him of
whatever competing moral or legal duties he might have.
Now let us imagine a case in which a police officer, P, offers, in return for a
payment, to forgo arresting D for a crime that D has committed54 (another
way to put it is that P threatens to arrest D for a crime rhat D has committed
uuless D pays Pl. Here, P, the would-be bribee, is using coercion to obtain a
bribe. As such, P has simultaneously committed bribery and some additional
3.
The criminal law often must confront questions about how to treat parties
who influence, solicit, provoke, incite, advise, counsel, command, encourage,
58 Presumably, this intuition is reflected in laws that prohibit the application of the death
penalty to non~trigger persons. See generally Tison v Arizona, 481 US 137 (1987).
59 This list of terms is derived from Sanford H Kadish, 'Complicity, Cause and Blame: A Study
in the Interpretation of Doctrine' (1985) 73 California Law Review 323,343.
60 See generally Herbert Wechsler, et aL, 'The Treatment of Inchoate Crimes in the Model
Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy' (1961) 61
Columbia Law Review 571.
61 See generally Daniel H Lowenstein, 'When is a Campaign Contribution a Bribe?,' in
William C Heffernan and John Kleinig (eds.) Private and Public Corruption (Lanham, MD:
Rowman & Littlefield, 2004). For a discussion of a recent case that presents this ambiguity in
dramatic fashion, see Andrew Longstreth, 'Mississippi Maelstrom,' American Lawyer (August
2004) (concerning controversial bribery prosecution of Paul Minor, a prominent Mississippi
lawyer who gave campaign contributions to local judges). See also Uttited States v Brewster, 506
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illustrates, there are very real issues of doctrine that turn on fairly fine features
of moral analysis, such as whether a witness should be viewed as having taken
a bribe if he accepts something of value in return for doing what is arguably
'the right thing.' As I hope to have shown, only if we are clear about exactly
why it's wrong to commit bribery can we be clear about exactly where the
outer limits of the offense should lie.