Should the U.S. Foreign Corrupt Practices Act (FCPA) be used as a vehicle for restorative justice?
The FCPA is currently enforced with the aim of deterring the bribery of foreign officials. The 1977 law prescribes civil and criminal liability for individuals and entities, with the potential for criminal fines of up to $25 million and imprisonment of individuals for up to 20 years. Those fines go into U.S. government coffers, even when — as is often the case — taxpayers and citizens of an emerging market country are the ones harmed by the bribe.
The theory of restorative justice, on the other hand, seeks to repair the harm caused by criminal acts and heal the community by bringing together victims and perpetrators to diagnose the causes of criminal behavior and determine the appropriate punishment. It aims to offer justice to victims while reintegrating the perpetrator into the community. If this concept were to be applied in an FCPA context, how should we define victims and perpetrators? Andy Brady Spalding of the University of Richmond Law School has an answer. He labels citizens of the host community where bribery occurred as victims and companies that engage in bribery as perpetrators.
Spalding is proposing an alternative approach to FCPA enforcement based on restorative justice principles. In his proposal, the accused multinational corporation (MNC) and Department of Justice (DOJ) would enter into a deferred prosecution agreement (DPA) in which the DOJ would grant a downward departure in fines in return for funding a series of community service projects designed to help the particular local communities where the bribes were made. Read more…