Simone Lawson
Bribery is a crime in the United States, and both the offeror and the recipient can be criminally charged. The crime of bribery is complete as long as the defendant reasonably believes that the bribe will achieve its intended purpose, even if they are mistaken. Bribery of public officials and witnesses is prohibited under 18 U.S.C. § 201, which comprises two distinct offenses: bribery and illegal gratuity. Bribery requires a specific intent to influence or be influenced in an official act, while illegal gratuity involves a gift given or received for or because of any official act. Attempted bribery is a crime, and the penalties for bribery convictions can include imprisonment, fines, or both.
| Characteristics | Values |
|---|---|
| Nature of the crime | Bribery is a crime that negatively impacts economic growth and constitutes an attempt to illicitly influence the open market. |
| Definition | Bribery is defined as the giving or receiving of anything of value with the intent to influence an official act or in return for being influenced. |
| Distinction from gratuity | Bribery requires a direct quid pro quo relationship between the thing of value given and a specific future act, while gratuity involves a looser connection and may be given as "thanks" for an act without a specific intent. |
| Penalties | Section 201(b) bribery is punishable by up to 15 years in prison, a fine of USD 250,000 (USD 500,000 for organizations), or up to three times the value of the bribe, whichever is greater, and disqualification from holding federal office. Section 201(c) gratuity is punishable by up to 2 years' imprisonment and a fine of USD 250,000 (USD 500,000 for organizations). |
| Obstruction of justice | Bribery can be used to obstruct justice by preventing witnesses or victims from reporting crimes or cooperating with law enforcement, which carries additional penalties of up to 5 years in prison, a fine, or both. |
| Facilitation payments | The FCPA's anti-bribery provision allows for facilitation or "grease" payments to expedite non-discretionary acts by government officials, such as the issuance of licenses or visas. |
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What You'll Learn
Bribery of public officials
The second offence, codified in section 201(c), concerns what are commonly known as "gratuities". This section prohibits a public official from accepting anything of value "for or because of" any official act and prohibits anyone from giving anything of value for such a reason. A conviction under this section is punishable by a maximum of 2 years' imprisonment and a fine of up to USD 250,000 for individuals (USD 500,000 for organisations).
The distinction between bribery and gratuities is important and sometimes difficult to discern. If the connection between the giving or receiving of something of value and the doing of the official act is direct and the money is given to purchase or ensure an official act, it is considered bribery. If the connection is looser and the money is given as "thanks" for an act but not in exchange for it or to "curry favour" with the public official, it is considered a gratuity.
It is important to note that hospitality expenses, such as gifts, meals, or entertainment, are not expressly prohibited under Section 201. However, they may still constitute "things of value" and form the basis of criminal liability if given or received with the intent to influence an official act.
The definition of public official under Section 201 precludes the statute's use against purely private commercial bribery. Additionally, campaign donations to political candidates do not constitute bribery as they do not occur directly enough to establish a "quid pro quo" relationship. However, solicitation of a bribe is a crime, and violators may be prosecuted under federal statute 18 U.S.C. 201.
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Bribery and gratuities
Bribery is a crime in the United States, and both the offeror and the recipient can be criminally charged. The crime of bribery is complete as soon as there is a solicitation, regardless of whether the solicitation results in the receipt of a valuable gift. The penalty for attempted bribery is often identical to that for completed bribery.
Section 201 of Title 18, which deals with "Bribery of public officials and witnesses", comprises two distinct offences, but only the first is considered "true bribery". The first offence, codified in section 201(b), prohibits the giving or accepting of anything of value to or by a public official if it is given "with intent to influence" an official act or received "in return for being influenced". This is punishable by up to 15 years in prison, a fine of USD 250,000 (USD 500,000 for organisations), or up to three times the value of the bribe, whichever is greater, and disqualification from holding any federal office.
The second offence, codified in section 201(c), concerns "gratuities". This prohibits a public official from accepting anything of value "for or because of" any official act, and prohibits anyone from giving anything of value for such a reason. This is punishable by up to two years in prison and a fine of USD 250,000 (USD 500,000 for organisations).
The distinction between bribery and gratuities is that bribery requires a direct quid pro quo relationship, in which money is given to purchase or ensure an official act, whereas gratuities have a looser connection, where money is given as "thanks" for an act, or to "curry favour" with a public official.
Public Law 87-849, which came into force on 21 January 1963, was enacted to "strengthen the criminal laws relating to bribery, graft, and conflicts of interest". It created a category of "special government employees" who were exempt from certain prohibitions.
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Penalties for bribery
Bribery is a crime under US law, and both the offeror and the recipient can be criminally charged. The penalties for bribery in the United States can vary depending on the specific circumstances and the prosecuting entity. Here is an overview of the penalties for bribery:
Criminal Penalties
According to the US Department of Justice, a conviction under 18 U.S.C. § 201(b) for bribery of public officials carries a maximum penalty of 15 years in prison. On the other hand, a conviction under 18 U.S.C. § 201(c) for gratuities or less direct forms of influence carries a maximum penalty of 2 years in prison.
Civil Penalties
Legal entities and individuals may face civil penalties in addition to, or separate from, criminal penalties. These civil penalties can reach up to USD 16,000 per violation for anti-bribery provisions and range from USD 7,500 to USD 150,000 for individuals and USD 75,000 to USD 725,000 for companies regarding accounting provisions. The Securities and Exchange Commission (SEC) can also impose additional civil penalties and require the disgorgement of ill-gotten gains, which can amount to significant sums.
FCPA Violations
Violations of the Foreign Corrupt Practices Act (FCPA) can result in substantial penalties. Individuals can face fines of up to USD 250,000 and imprisonment of up to 5 years per violation. Additionally, violations of the FCPA's accounting provisions can lead to fines of up to USD 5 million and imprisonment of up to 20 years. The penalties for corporate entities can also be severe, with fines of up to USD 2 million per violation for anti-bribery provisions and up to USD 25 million per violation for accounting provisions.
Corporate Liability
Companies found guilty of bribery may face significant monetary penalties under the US Sentencing Guidelines and the Principles of Federal Prosecution of Business Organizations. The implementation and effectiveness of a company's compliance program can play a crucial role in mitigating or avoiding corporate criminal liability.
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Obstruction of justice
Bribery is a crime, and both the offeror and the recipient can be criminally charged. A "'quid pro quo' relationship must be demonstrated, in which the recipient directly alters behaviour in exchange for the gift. The intent to influence the discharge of another's official duties must also be proven.
To be convicted under 18 U.S.C. § 1510, it must be proven that the defendant offered or paid a bribe with the specific intent to obstruct justice. This means hindering or preventing law enforcement from obtaining evidence, making arrests, or carrying out other essential functions. The defendant must have understood the payment as a bribe and intended to obstruct justice, even if they were mistaken about the existence of a federal investigation. The act of bribery is sufficient for prosecution, regardless of whether the obstruction attempt was successful.
The penalties for interfering with a witness in a criminal investigation under this statute include fines, imprisonment of up to five years, or both. This is in contrast to a "gratuity" conviction, which carries a maximum sentence of two years.
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Anti-bribery laws
Bribery is a crime in the United States, and both the offeror and the recipient can be criminally charged. The crime of bribery is committed when there is a quid pro quo relationship, where the recipient directly alters their behaviour in exchange for a gift. The US Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) are authorised to punish domestic bribery.
The DOJ and SEC also collaborate with various law enforcement agencies, domestic and foreign, and federal prosecutors to prosecute violations. The Foreign Corrupt Practices Act (FCPA) is structured around two sets of provisions, which may create liability for companies and individuals:
- The anti-bribery provisions prohibit companies and individuals from bribing foreign government officials by offering, promising to give, authorising the giving of, or giving money or something else of value to obtain or retain business.
- The accounting provisions require issuers to maintain certain record-keeping and internal control standards and prohibit them from falsifying books and records, circumventing internal accounting controls, and failing to implement internal accounting controls.
The FCPA also covers foreign persons or companies that commit bribery in US territory, as well as US or foreign public companies listed on US stock exchanges or required to file periodic reports with the SEC.
In addition to the FCPA, there are other federal statutes that address bribery, such as the Travel Act, 18 U.S.C. § 1952, and mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343, and 1346.
At the state level, there are also laws and regulations that limit how gifts and expenditures may be provided to and accepted by public officials, such as the Rules of the House of Representatives and the Standing Rules of the Senate, which apply to members of Congress.
Public Law 87-849, enacted in 1963, also strengthened the criminal laws relating to bribery, graft, and conflicts of interest. This law created a category of special government employees and exempted them from certain prohibitions imposed on ordinary government employees.
The penalty for attempted bribery is the same as for completed bribery and can result in up to 15 years' imprisonment, a fine of USD 250,000 (USD 500,000 for organisations), or up to three times the value of the bribe, whichever is greater, and disqualification from holding any federal office.
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Frequently asked questions
Yes, bribery is a crime in the US. Bribery of public officials and witnesses is covered under 18 U.S. Code § 201.
The penalty for bribery in the US can include up to 15 years in prison and a fine of up to USD 250,000 for individuals (USD 500,000 for organizations) or up to three times the value of the bribe, whichever is greater. Additionally, the convicted person can be disqualified from holding any federal office.
Bribery requires a specific intent "to influence" a particular official act or "being influenced" in exchange for a future official act, i.e., a quid pro quo relationship. Illegal gratuity, on the other hand, only requires that the unlawful gift be given or received "for or because of" any official act, with a looser connection between the gift and the act. The penalty for an illegal gratuity conviction is lower, with a maximum of two years' imprisonment and a fine of up to USD 250,000 for individuals (USD 500,000 for organizations).
