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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.
