Empower Local Prosecutors to Fight Corruption

Year after year, indictment after indictment, we are reminded that our state criminal statutes do not meaningfully prohibit, penalize or deter corruption at the highest levels of government.

As corruption cases mount throughout New York State . . . half a dozen district attorneys said local officials they believe to be corrupt have gone unprosecuted because New York laws make it too difficult—more difficult than in most other states—to bring corruption cases. . . .

Are tougher laws the answer? Why is most of the New York corruption being exposed by the Federal Government and not the state and local authorities?

That’s from a New York Times investigation into “dishonesty in government” in Albany following “a series of corruption scandals [including] abuses by half a dozen state legislators.”

The year was 1987.

Then, as now, the FBI and numerous U.S. Attorneys proved themselves remarkably capable of policing corrupt officials in New York State through application of federal laws like extortion, mail fraud and wire fraud. I continue to appreciate the excellent work that they do.

Their success has led some to suggest that we need not fix our state corruption laws at all (an effort that, by the Times’ writing in 1987, had already “been debated for decades”). Why bother, when federal authorities appear to have things under control?

For one, total reliance on federal authorities to safeguard the integrity of state and local government is risky public policy, and inherently in tension with a federal system of sovereign states. Why, in a nation that grants states primacy in police power, would New York cede this area to a federal government of limited powers?

Notions of federalism aside, there is nothing in our law or politics that requires U.S. Attorneys to pursue these cases in the future. And there is nothing to be gained from equipping prosecutors at only one level of government with the statutory tools necessary to drain the swamp. By all indications, there’s enough corruption to go around.

The failure of New York’s district attorneys to bring corruption cases at the highest levels of government is not for lack of will or trying. It’s for lack of state penal laws that adequately outlaw the conduct. It’s because—compared to our federal counterparts—we’re fighting high-level corruption with one hand tied behind our backs.

In 2013, I shared ideas on how we can close this gap with the Moreland Commission to Investigate Public Corruption. These proposals were the recommendations of a special task force I convened during my term as president of the District Attorneys Association of the State of New York, and had been unanimously approved by all 62 of New York’s elected district attorneys.

The state Legislature has not yet acted on these recommendations. I submit there’s never been a better time. New Yorkers deserve honest public servants and transparent public processes, now more than ever. As I told the Moreland Commission, these are three ways we can get there:

End transactional immunity. Contrary to the laws of 49 states, every witness before a New York State grand jury automatically receives full immunity about anything to which they testify. As a result, prosecutors are reluctant to call the very people who know about corruption, for fear of giving them a lifetime pass for their transgressions. This defies logic, and should end today.

Close the bribery carve-out for public officials. To prosecute a person for bribing a real estate developer, a labor leader or even a professional boxer, a state prosecutor need prove only an “intent to influence” the recipient of the bribe. Bribery of a public official, on the other hand, also requires an explicit “understanding or agreement” between the bribe giver and the official for the crime to be complete. In practice, this means that those who bribe public officials are less likely to be prosecuted than those who bribe boxers. There is no justification for this imbalance.

Criminalize undisclosed self-dealing. New York State needs a law that specifically targets public servants who further their own, undisclosed economic interests in the performance of their official duties. A 2010 U.S. Supreme Court opinion limited the ability of our federal partners to prosecute undisclosed self-dealing. This provides an opening for state prosecutors to lead the charge against high-level corruption. More than ten other states punish undisclosed self-dealing as a felony. New York’s district attorneys need a similarly powerful tool.

Corruption in state government has depleted our public coffers, and degraded our public confidence. We needed these changes in 1987, and we badly need them now.

Cyrus R. Vance, Jr. is the Manhattan district attorney.