Revisiting Restitution: A Reparative Agenda for Enforcement of the Foreign Corrupt Practices Act
Molly I. Bodurtha*
The United States’ anti-corruption efforts do little to repair, and may even perpetuate, the inequities exacerbated by transnational public corruption. The U.S. Government has collected approximately $28 billion in criminal penalties by prosecuting U.S. firms for foreign corrupt practices, yet it regularly fails to provide restitution to those victimized by such offenses. This failure persists despite compelling legal, practical, and ethical reasons for doing so. These counterweights include statutory obligations to award restitution to all victims of federal offenses against property, the profitability of enforcement efforts, and the existence of separate U.S. Government programs that operationalize workable reparations models in the kleptocracy regulation context. This failure is, in large part, due to distinctive difficulties that arise as to the desirability and practicability of criminal restitution in the public corruption context. Beyond the analytical difficulty in determining precisely who a public corruption offense victimizes, restitution paid to foreign governments defrauded by U.S. bribe-payers may risk enabling culpable persons and institutions on the demand-side of the charged conspiracy. This Note examines these difficulties from a doctrinal perspective. Thereafter, this Note offers several considerations for policymakers to weigh as they develop improved restitution policies. Finally, this Note recommends that the United States clarify, standardize, and decolonize its policies and practices regarding restitution for foreign corruption offenses.
* Ombudsperson, Columbia Journal of Transnational Law; J.D. Candidate, Columbia Law School, 2023. Thank you to Professor Richard Briffault for his immense guidance as I pursued this research and for his example as a scholar, educator, and practitioner in the public integrity field. I am additionally grateful to Richard Messick for his mentorship and for generously sharing his expert insights; to Professor Kevin E. Davis for directing me to my Note’s central inquiry; to Scott Andersen and Samuel J. Hickey for their illuminating comments; to Professor Matthew S. Erie and Dr. Sokphea Young for introducing me to this field; to all of the above for their instructive scholarship; to the hard-working editors of the Columbia Journal of Transnational Law; and to my Mom, Dad, Bubbe, and Zeyde. All errors are my own.