South Florida Sun-Sentinel
October 31, 2010
Because accomplices in criminal conduct can generally be treated
as full-fledged partners, criminal laws frequently result in
punishment as severe for those cast in a supporting role as for
criminals with a leading part. In some scenarios, the facilitators
who make crime possible in the first place are seen as especially
culpable. "Principal enabler" was the description California's
Attorney General attached to Howard K. Stern for feeding Anna Nicole
Smith's ultimately fatal drug problems.
With public corruption, though, the business people who enable corruption to flourish by facilitating kickbacks are rarely prosecuted with the full force of the law. Few go to prison and many are never even charged with a crime. In the stunning series of more then a dozen public corruption arrests that have engulfed Broward County, the resulting guest lists for federal and state prison have not so far included the enablers from the business community. While there are sound reasons for the overwhelming focus on political figures, an examination of the issue suggests that this result is dictated not by the law, but by the practical realities of prosecuting public corruption.
In legal terms, a business person who lubricates palms to get favors from government can be as culpable as the politician whose palms are greased. To be neck-deep in criminality as an "aider and abettor," the facilitator needs only to assist in a "substantial step" toward the commission of the crime. Unremarkably, funding kickbacks easily suffice. Even less demanding at times is the test for establishing one's status as a co-conspirator. It takes an explicit or implicit agreement to achieve illicit purposes along with overt acts to further the scheme. Conspiracy theory can make a minnow as fully accountable as the sharks in the seas of corruption.
Corrupt politicians are the big fish
In concept, these laws mean that the corrupt officials and corrupting business people who shared in the scheme should be sharing handcuffs and jail time. In general, however, this is not a partnership that shares equally. The reasons begin with the undeniably paramount goal of targeting corrupt officials and bringing them to justice. They are considered much higher value targets because of the power they hold and the trust they betray. It is also evident that prosecuting well-known defendants broadcasts a higher decibel message in the media and therefore, the theory goes, greater deterrence to other potential wrong doers.
While graft-ridden politicians are necessarily a top priority, prosecutors face major obstacles in nailing them. Part of the this challenge results from exacting legal standards. Earlier this year, in the case of ex-Enron CEO Jeffrey Skilling, the U.S. Supreme Court watered down the law for charging the corruption crime of "theft of honest services," taking a powerful and flexible tool from the hands of federal prosecutors.
The legal weaponry arming state prosecutors seems strengthened rather than restricted following the court decision in the case of Keith Wasserstom. In that decision, the Florida judiciary validated the conviction of the former Hollywood commissioner based on official misconduct for disguising his personal business connections to official city business. But state authorities generally have fewer resources for combating corruption. Meanwhile, defense lawyers in the state system have procedural advantages, including more access to documents and witnesses, that often increase the difficulty of securing conviction.
And yet even greater than the challenge of legal hurdles is the scarcity of witnesses willing to step forward and testify against public officials. Even honest business victims who lose opportunities rather than "pay to play" with crooked politicians rarely complain to authorities. These victims believe - perhaps all too correctly - that blowing the whistle could means blowing their chance of ever doing any business at city hall in the future. There is another, far greater community of indirect victims of government corruption - the public that suffers when government provides inferior services at greater cost due to corruptly awarded contracts or when land use controls are sabotaged by zoning schemes. These victims may complain to their neighbors but ordinarily lack evidence to share with prosecutor.
Undercover stings can be problematic
Because the honest victims who could use witnesses may be chronically unwilling to testify, prosecutors are often obliged to set up stings that use undercover agents to create artificial scenarios to set the bait and trap the crooks. Despite frequent howls of "entrapment," these traps usually work in securing convictions, but still raise two concerns. First, while undercover operations can convict real crooks, the sting usually relies on a fictitious scenario, such as a non-existent business run by an undercover agent passing as a sleazy business person, rather than true crimes of the past. Additionally, because they entail elaborate planning and may require months, even years of stroking and cajoling before gaining the trust of the targeted politician, successful undercover operations have a substantial cost in terms of time as well as human and financial resources.
Because honest business persons rarely step forward, and undercover operations typically orchestrate fictitious scenarios, prosecutors need the assistance of the dishonest participants in the actual corruption schemes if those crimes are to be prosecuted. Recruiting dishonest participants to testify about their wrongdoing, at the cost of destroying their personal and professional reputation, is tough enough. Securing that testimony without an assurance of immunity from prosecution, or at least a no-jail time plea deal, is often near-impossible. Rather then be revealed as both a crook and a snitch, private accomplices may stonewall investigators assuming that if they deny and the politician denies, the prosecutors are left with a state of denial rather than a provable case. At times, a paper trail of funds or other assets may tie the palm greaser to the outstretched palm. But unless documents connect the dots, silence, even denials, from the private participants sometimes equate to the dead end for a corruption investigation.
Free passes often yield big results
As a result, when neither undercover tapes nor paper trials can prove a case, rather than give up a chance to jail a crooked official, prosecutors instead may issue free passes to the enabler. The result can be some striking successes. Broward's remarkable succession of federal and state corruption prosecutions has assuredly left many officials sleepless and, perhaps for a time, even crimeless. And yet, the result may be a mixed message for the enablers. If the private sector accomplices can avoid jail by "turning state's evidence," in the infrequent case in which they are caught, the message of deterrence may ring loudly for politicians but merely whisper to the business community that holds the key.
Because, overwhelmingly, political corruption is fueled by money, attacking these crimes at their source means targeting the sleazy businesses who provide the funding. Even if city and county halls are abuzz about former colleagues in prison garb, this shock and awe also needs to reach across the executive suites of South Florida. Until deterrence drills deep enough to strike the resources that fund corruption, the foundation remains intact for more schemes, perhaps more carefully concealed, because for some businesses, crime still pays. The other part of the equation - getting honest victims of extortion schemes to testify - may be even more challenging then securing crooked participants to confess and face jail time. But unless the honorable majority is willing to join forces with prosecutors in an anti-corruption partnership, the partners in crime will be back.
Kendall Coffey, a former U.S. attorney for South Florida, is a legal analyst and partner at Coffey Burlington in Miami.
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