Beyond deterrence (Part 1)

This is the first post in a series on the theories of criminal punishment on which modern anti-bribery enforcement is based.

Deterrence — most of us would agree that it’s the goal of FCPA enforcement. We want to deter the defendant from repeated bribes (specific deterrence), and put other companies on notice so that they will bribe less (general deterrence).

And we’re right to do so. Nearly all of us feel that a world without bribes would be better than one with them.

It’s not the only theory of punishment that might conceivably guide FCPA enforcement.  

We might believe in retribution –- that we punish companies because bribery is wrong, and they should get what they deserve. By this way of thinking, we punish irrespective of the practical consequences. Whether net levels of bribery go up or down is beside the point.  

And sometimes you will hear people talk of anti-bribery enforcement in this way. But I don’t think it’s the predominant theory of punishment within the anti-bribery community. Whether consciously or not, we generally believe that we should aim to reduce bribery.

But how do we know whether it works or is working? How would we even try to answer that question? That is, what is the criterion by which we are to determine whether our efforts to deter bribery are actually effective? 

An answer probably springs immediately to your mind. But hold on. Not so fast. It might not be as simple as we want to believe. 

So I’d like to spend some time thinking about it.  

In this series, I want to explore a number of questions related to the theory of criminal punishment that underlies modern anti-bribery enforcement. I wrote an academic paper about it, but frankly, blogging is a lot more fun. 

So let’s think about this. What exactly are we trying to deter? How do we go about deterring it?  

And are those methods as effective as we hope? Might there be another theory of punishment that could work better, that could do even more of what we all hope anti-bribery enforcement will do?

Stay with me.

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Andy Spalding is a senior editor of the FCPA Blog. He is an Assistant Professor at the University of Richmond School of Law.