Crooked Politicians: Elusive Criminal Punishments and Paths to Accountability

55 Pages Posted: 9 May 2022

See all articles by Pedro Gerson

Pedro Gerson

California Western School of Law; Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: August 21, 2020

Abstract

In the past decade there have been numerous failed prosecutions of high-profile corruption cases. This record is problematic because it risks public institutions’ legitimacy, potentially increasing corruption. The Supreme Court has borne much of the blame for this situation due to its decisions narrowing the construction of anti-corruption criminal statutes. Many have criticized the Court for having a myopic view of governance and allowing a misplaced fear of a democratic chilling effect get in the way of accountability. Others have called for substantive and/or procedural criminal law reform to enable law-enforcement authorities to secure convictions in cases of public wrongdoing. This article argues that the Supreme Court’s anti-corruption jurisprudence is not rooted in notions of democracy but in criminal law. In mostly unanimous decisions, the Court has repeatedly struck down or narrowed statutes relying on traditional doctrines of criminal law interpretation. Unanimity suggests that more than politics, the Court is doing law. I then suggest that contrary to public perceptions, data from the Department of Justice and an analysis of lower court decisions shows that corruption prosecutions are not in dire straits. In fact, anti-corruption criminal law in the United States appears to be working. Taking this conclusion and looking to international best-practices, I argue that rather than focusing on criminal law, reformers should look to preserve and promote impartial governance through administrative laws and institutions. I also suggest that the United States could follow other countries in implementing more robust administrative sanctions to ensure accountability in acts of public malfeasance that do not rise to the level of criminal offenses.

Suggested Citation

Gerson, Pedro and Gerson, Pedro, Crooked Politicians: Elusive Criminal Punishments and Paths to Accountability (August 21, 2020). 54, Loyola of Los Angeles Law Review, 1013 (2021). , Available at SSRN: https://ssrn.com/abstract=3678803

Pedro Gerson (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States

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