4.5.3 Corruption

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Overview

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Corruption is “the abuse of entrusted power for private gain”, a high level definition provided by Transparency International1) Transparency International is a global movement working in over 100 countries to end the injustice of corruption .

According to the United Nations2) United Nations, International Anti-Corruption Day - December 9, Background, Accessed: 7 April 2022, https://www.un.org/en/observances/anti-corruption-day/background :

Corruption is a complex social, political and economic phenomenon that affects all countries. Corruption undermines democratic institutions, slows economic development, and contributes to governmental instability.Corruption attacks the foundation of democratic institutions by distorting electoral processes, perverting the rule of law, and creating bureaucratic quagmires whose only reason for existing is the soliciting of bribes. Economic development is stunted because foreign direct investment is discouraged and small businesses within the country often find it impossible to overcome the “start-up costs” required because of corruption.On 31 October 2003, the General Assembly adopted the United Nations Convention against Corruption and requested that the Secretary-General designate the United Nations Office on Drugs and Crime (UNODC) as secretariat for the Convention’s Conference of States Parties ( resolution 58/4). The Assembly also designated 9 December as International Anti-Corruption Day, to raise awareness of corruption and of the role of the Convention in combating and preventing it. The Convention entered into force in December 2005.Governments, the private sector, non-governmental organizations, the media, and citizens around the world are joining forces to fight this crime. The United Nations Development Programme(UNDP) and the United Nations Office on Drugs and Crime (UNODC) are at the forefront of these efforts.

Definitions

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Although the definition of corruption by Transparency International is not perfect and not legal, it encapsulates three core elements of corruption: Abuse, Entrusted Power, and Private Gain. See Table .

Classification of the elements of Corruption3) U4, Basic Guide to Anti-Corruption, Accessed 6 April 2022, https://www.u4.no/topics/anti-corruption-basics/basics

Type of Corruption	Description
Abuse	Corruption involves a violation of norms of conduct or professional obligations – explicit or implicit – arising from formal or other entrusted duties. The notion implies decision-making without due impartiality; counter to public policies; or more broadly against the public interest.
Entrusted Power	Corruption arises when a person misuses the authority derived from all kinds of formal or professional roles, but also informal or traditional ones. This phrasing covers not only public officials but also individuals working in the private sector, media, civil society actors, and religious leaders. It also covers people such as community elders who hold customary authority. A company employee selling commercial secrets to a competitor is an example of private sector corruption.
Private Gain	The gain realized through corruption is private because it does not benefit the entity or the collective that the official is entrusted to represent or serve. Private gain expresses the opposite of public good. But the gain need not go directly to the official in question: it may also benefit a designated family member, friend, associate, or political party. Also note that anything of value can constitute a benefit: it’s not only money and material goods, but also power and influence, and other advantages – even sexual favors.

Another way to define corruption at a high level is that it is a form of dishonesty that is undertaken by an individual or organization in a position of authority in order to gain benefits, including personal gain.

Public Corruption involves a breach of public trust and/or abuse of position by federal, state, or local officials and their private sector accomplices. By broad definition, a government official, whether elected, appointed or hired, may violate federal law when he/she asks, demands, solicits, accepts, or agrees to receive anything of value in return for being influenced in the performance of their official duties.4) Legal Information Institute, Cornell Law School, Public Corruption, Accessed: 6 April 2022, https://www.law.cornell.edu/wex/public_corruption

Taxonomy of Corruption

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Under the umbrella of Corruption, there is a taxonomy of the elements that are useful for differentiating the kinds of Corruption (i.e., Taxonomy). These elements can be used to categorize corruption; these terms are often additive in nature. For example, the Conflict of Interest leads to Bribery of an Administrative Corruption nature.

Classification of the elements of Corruption5) U4, Glossary of Terms, Accessed 6 April 2022, https://www.u4.no/terms

Corruption Term	Definition
Active Bribery	Active bribery refers to the act of promising or giving a bribe, as opposed to the act of receiving a bribe (passive bribery). The term does not mean the active briber has taken the initiative, since the bribe may have been demanded by the receiving party (who commits “passive bribery”). When a citizen reluctantly makes an informal payment in order to receive medical care, which would be refused otherwise, she is nevertheless committing active bribery. The distinction between active and passive bribery is primarily made in legal definitions, which need to be precise and allow for the possibility to sanction either side of the transaction, as appropriate. The classification is similar to the distinction between supply-side and demand-side corruption, which is used in analyzing the patterns of incentives or drivers of corrupt practices.
Administrative Corruption	Corruption occurs at the interface between the state, represented by public officials/bureaucrats in decision-making positions, and the public/citizens when they need a service. For example, when a citizen coming to take out an ID card is only provided this service if he/she pays the bureaucrat an unofficial payment in addition to the official fee.
Bribery	The offer or exchange of money, services, or other valuables to influence the judgment or conduct of a person in a position of entrusted power. The benefit does not need to go to the official in question directly – it can go to a spouse, a child, another relative, a friend, or even to the official's political party as a donation. A bribe is sometimes paid after the fact – for instance, in monthly installments to the official issuing permits to street vendors as long as they are allowed to operate. This form of bribery is called a kickback. Bribery is widely criminalized, and both the party paying the bribe and the party receiving may be liable (see active bribery/ passive bribery). However, in practice, certain forms of bribery are often exempt from prosecution (see facilitation payments).
Clientelism	An informal exploitative system of exchanges (of resources, services, favors) between a wealthier and/or more powerful “patron” or “boss” and less wealthy/weaker “clients” or “followers.” Such systems are typically found in settings where formal governance structures fail to provide adequate resources (including protection), leaving poor and/or marginalized members of society to seek assistance from powerful figures that can deliver them. The corruption dimension is clear when the “patron” is an elected official who distributes resources under his/her control inequitably (abusing his/her entrusted power), as a reward for electoral support (private benefit). Similar informal systems may not involve elected officials directly, but may nevertheless undermine formal rules and institutions, including efforts to combat corruption.
Conflict of Interest	A conflict of interest is a conflict between an entrusted duty on the one hand and the private interest of the duty-bearer on the other hand. For example, a parliamentarian sitting on the committee for healthcare reform might own stock in a major pharmaceutical company. The existence of this private interest could improperly influence the performance of entrusted responsibilities. Because conflicts of interest create opportunities for corruption to take place, they should be avoided or managed.
Demand-Side Corruption	The demand side of the bribe (also known as “passive” bribery) focuses on the person or entity soliciting or receiving the bribe.
Embezzlement	The misappropriation of property or funds legally entrusted to someone in their formal position as an agent or guardian. Accountants and financial managers typically have access to an agency's funds and so are in a position to embezzle them. Other forms of embezzlement include the taking of supplies, equipment, etc.
Extortion	The practice of obtaining something (money, favors, property) through the use of threats or force. For example, extortion takes place when armed guards exact money for passage through a roadblock. Withholding life-saving medical attention unless a bribe is paid could also be considered an act of extortion. See also sextortion, which involves threats or force to obtain sexual benefits.
Facilitation Payments	Refer to relatively small, individual amounts paid beyond the official fees to speed up services such as customs clearance, work permits, border crossings, etc. Technically, these are a bribe. In many countries, however, facilitation payments by companies doing business abroad are exempt from prosecution for bribery in their home countries as long as they are used to speed up legal processes, rather than to avoid regulations. This exception recognizes the fact that in certain settings, it is impossible to operate a business without conceding to such payments.
Fraud	An economic crime involving deceit, trickery, or false pretenses by which someone gains unlawfully. Fraud often accompanies corrupt acts, in particular embezzlement, where it is typically used to falsify records to hide stolen resources.
Grand Corruption	In contrast to “petty corruption”, high-level or “grand” corruption is perpetrated at the highest levels of government and usually involves both substantial benefits for the officials involved and significant losses for the state and its citizens. It can refer to specific acts such as ministers taking multi-million dollar bribes to award lucrative government concessions or embezzling millions from state coffers into a secret bank account. But it also refers to illicit exchanges in the realm of policy formation (see also state capture). Though large sums of money may be involved, other benefits like high-level appointments, inside information, and policy influence can be the currency of grand corruption. Corruption at this level is also sometimes referred to as political corruption.
Kickback	A bribe is paid after the fact for an undue favor or service. For instance, a company that receives a government contract might send the responsible official regular payoffs for the duration of the contract. Street vendors may pay the permission-granting authority a small sum each month as long as they are allowed to operate.
Kleptocracy	A Greek word meaning “rule by thieves”, kleptocracy refers to a system of government in which leaders use their position for private gain at the expense of the governed. It is typically correlated with autocratic regimes with no meaningful accountability mechanism, effectively allowing the leader to plunder the state and its citizens for personal enrichment and to entrench his hold on power. Some well-known former kleptocrats include Francois Duvalier (“Papa Doc”) of Haiti, Mobutu of Zaire, and Suharto of Indonesia.
Nepotism	A form of favoritism involving family relationships, in which someone exploits his or her authority to procure jobs or other favors for relatives. When this treatment is extended to friends and associates, the appropriate term is cronyism.
Passive Bribery	Refers to the act of receiving the bribe. This does not mean the passive briber has taken no initiative – in many cases, he or she may have demanded the bribe in the first place.
Patronage	The support or sponsorship of a patron (wealthy or influential guardian). Patronage is used to make appointments to government jobs, promotions, contracts for work, etc. The desire to gain power, wealth, and status through their behavior motivates most patrons. Patronage violates the boundaries of legitimate political influence and the principles of merit.
Petty Corruption	Alternatively called “administrative” or “bureaucratic” corruption, the term refers to the everyday corruption that takes place when bureaucrats meet the public. While the sums of money involved tend to be small, they are far from “petty” for the people concerned. Examples include paying bribes to get an ID; enrolling in school; or having a phone line installed.
Political Corruption	The term is both narrowly used to designate the manipulation of policies, institutions, and rules in the financing of political parties and in electoral campaigns, and also more broadly as a synonym for “grand corruption”, or corruption taking place at the highest levels of government where policies and rules are formulated and executive decisions are made.
Sextortion	The abuse of power to obtain a sexual benefit or advantage. Related to the concept of extortion.
Sporadic Corruption	Sporadic corruption is the opposite of systemic corruption. Because it occurs irregularly, it does not threaten the mechanisms of control or the economy as such. It is not crippling, but can seriously undermine morale and sap the economy of resources.
State Capture	Coined by the World Bank in the early 2000s, state capture refers to a type of systemic political corruption in which private interests significantly influence a state's decision-making processes to their own advantage. For example, businesses can improperly influence legislators to pass favorable laws.
Supply-Side Corruption	Supply-side refers to the person or entities who offer or provide the illicit benefit in corrupt transactions. The officials with entrusted authority who received illicit benefits constitute the demand side. The distinction is similar to that between active and passive bribery, which is used primarily for legislative purposes. Also similar is the fact that the term “demand-side” does not imply that it is the official on the receiving end who proactively solicited the bribe. The distinction between supply and demand can be useful in analyzing the different sets of incentives that contribute to corruption.
Systemic Corruption	(Also known as endemic corruption). A situation when corruption is an integral part of a state's economic, social and political system, and where most people have no alternatives to dealing with corrupt officials. Sporadic corruption, in contrast, occurs irregularly and does not compromise the mechanisms of governance in the same crippling way.
Trading in influence	(Also known as influence peddling). Trading in influence occurs when a person who has a real or apparent influence on the decision-making of a public official exchanges this influence for undue advantage. The offense is similar to bribery with one important difference: trading in influence concerns the “middleman”, or the person that serves as the go-between the decision-maker and the party that seeks an improper advantage. The final decision-maker may not even be aware of the illicit exchange. One example is when an MP receives a payment from a company to attempt to convince fellow legislators to support amendments that would benefit that company. Trading in influence is difficult to prove because the legal definitions involve disputable criteria of “intentionality” and “undue”/improper influence. Trading in influence is also often difficult to distinguish from permissible forms of lobbying.

Corruption is Ubiquitous

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Often it is assumed that corruption is a “third world problem”. While it is often prevalent or detected more in the third world, it does not mean that the CBDC can ignore the problem here or around the world. Figure provides a map of known corruption around the world.

The ubiquitous nature of Corruption in the world.

The Foreign Graphics website produced a report and reported the following about the U.S.6) Foreign Policy, Report: Corruption in the U.S. at Worst Levels in Almost a Decade, 28 January 2021, Accessed: 8 April 2022, https://foreignpolicy.com/2021/01/28/report-transparency-international-corruption-worst-decade-united-states/ :

In the annual Corruption Perceptions Index (CPI), the United States fell to a low of 67 out of a maximum possible score of 100, down from a high of 76 in 2015. By its nature, corruption is difficult to document, so the index relies on a variety of different sources to measure the level of perceived public sector corruption. The lower the score, the worse the corruption. Two-thirds of the 180 countries and territories included in the 2020 index scored below 50, with an average of 43.

U.S. Laws and Regulations

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There is no single law or regulation within the U.S. that covers Corruption, but a whole set of laws or frameworks. Table outlines most of the laws as determined by U.S. Department of Justice.

There are roughly 10 Laws and Regulations in the U.S. covering Corruption.

List of U.S. Laws and Regulations covering Corruption.

Law or Regulation	Description
U.S. Foreign Corrupt Practices Act	1. Under the Foreign Corrupt Practices Act (FCPA), it is unlawful for a U.S. person or company to offer, pay, or promise to pay money or anything of value to any foreign official for the purpose of obtaining or retaining business.2. A U.S. person or company may also be an officer, director, employee, or agent of a company or any stockholder acting on behalf of the company. And a foreign official may be a foreign political party or candidate for foreign political office.3. Also covered by the FCPA is the authorization of any money, offer a gift, or promise authorizing the giving of anything of value to any person while knowing that all or a portion of it will be offered, given, or promised—directly or indirectly—to any foreign official for the purposes of assisting the U.S. person or company in obtaining or retaining business.4. “Knowing” includes the concepts of conscious disregard and willful blindness.5. The FCPA also covers foreign persons or companies that commit acts in furtherance of such bribery in the territory of the United States, as well as U.S. or foreign public companies listed on stock exchanges in the United States or which are required to file periodic reports with the U.S. Securities and Exchange Commission.6. The FCPA accounting provisions require such publicly listed companies to make and keep accurate books and records and to devise and maintain an adequate system of internal accounting controls. The accounting provisions also prohibit individuals and businesses from knowingly falsifying books and records or knowingly circumventing or failing to implement a system of internal controls. U.S. persons or companies, or covered foreign persons or companies, should consult an attorney or use the Department of Justice Opinion Procedure when confronted with FCPA issues.
18 U.S. Code § 201 - Bribery of public officials and witnesses	Section 201 of Title 18 is entitled “Bribery of public officials and witnesses.” The statute comprises two distinct offenses, however, and in common parlance, only the first of these is true “bribery.”7) U.S. Department of Justice, 2041. Bribery Of Public Officials, Accessed: 6 April 2022, https://www.justice.gov/archives/jm/criminal-resource-manual-2041-bribery-public-officials The first offense, codified in section 201(b), prohibits the giving or accepting of anything of value to or by a public official, if the thing is given “with intent to influence” an official act, or if it is received by the official “in return for being influenced.” The second offense, codified in section 201(c), concerns what is commonly known as “gratuities,” although that word does not appear anywhere in the statute. Section 201(c) prohibits that same public official from accepting the same thing of value if he does so “for or because of” any official act and prohibits anyone from giving any such thing to him for such a reason. The specific subsections of the statute are: 1. Briberya. § 201(b)(1): offering a bribe to a public officialb. § 201(b)(2): acceptance of a bribe by a public official2. Gratuitiesa. § 201(c)(1)(A): offering a gratuity to a public officialb. § 201(c)(1)(B): acceptance of a gratuity by a public official.The two offenses differ in several respects. The most important of these differences concerns how close a connection there is between the giving (or receiving) of the thing of value, on the one hand, and the doing of the official act, on the other. Also see: Anti-Corruption in the United States
18 U.S. Code § 1952 - Interstate and foreign travel or transportation in aid of racketeering enterprises	(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to—(1) distribute the proceeds of any unlawful activity; or(2) commit any crime of violence to further any unlawful activity; or(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform—(A) an act described in paragraph (1) or (3) shall be fined under this title, imprisoned not more than 5 years, or both; or(B) an act described in paragraph (2) shall be fined under this title, imprisoned for not more than 20 years, or both, and if death results shall be imprisoned for any term of years or for life.
18 U.S. Code § 1341 - Frauds and swindles	“There are two elements in mail fraud: (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts).” Schmuck v. United States, 489 U.S. 705, 721 n. 10 (1989); see also Pereira v. United States, 347 U.S. 1, 8 (1954) (“The elements of the offense of mail fraud under . . . § 1341 are (1) a scheme to defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme.”); Laura A. Eilers & Harvey B. Silikovitz, Mail and Wire Fraud, 31 Am. Crim. L. Rev. 703, 704 (1994) (cases cited).8) U.S. Department of Justice, 940. 18 U.S.C. Section 1341—Elements of Mail Fraud, Accessed: 6 April 2022, https://www.justice.gov/archives/jm/criminal-resource-manual-940-18-usc-section-1341-elements-mail-fraud
18 U.S. Code § 1343 - Fraud by wire, radio, or television	The elements of wire fraud under Section 1343 directly parallel those of the mail fraud statute but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme. United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995) (citing United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990) (per curiam)); United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except that it speaks of communications transmitted by wire); see also, e.g., United States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used) (citing Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.1341 (West 1994)), cert. denied, 115 S.Ct. 2289 (1995); United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant's knowing and willful participation in a scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of the scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) (“Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.”). 9) U.S. Department of Justice, 941. 18 U.S.C. 1343—Elements of Wire Fraud, Accessed: 6 April 2022, https://www.justice.gov/archives/jm/criminal-resource-manual-941-18-usc-1343-elements-wire-fraud
18 U.S. Code § 1346 - Definition of “scheme or artifice to defraud”	Honest services fraud is defined in federal statute 18 U.S.C. §1346 as a scheme to defraud another of the intangible right to honest services through a scheme to violate a fiduciary duty by bribery or kickbacks. A fiduciary duty is a duty to act only for the benefit of the public, an employer, shareholders, or a union. The statute was created by Congress as a response to the government's limitation in its use of the wire fraud statute.https://www.federalcriminallawyer.us/honest-services-fraud/
Sections 13(b)(2)(A) and (B) of the Securities Exchange Act of 1934	Sections 13(b)(2)(A) and (B) of the Securities Exchange Act of 1934, as amended. Section 13(b)(2)(A) of the Exchange Act requires issuers to make and keep books, records, and accounts, that accurately and fairly reflect the transactions and dispositions of the assets of the issuer. Section 13(b)(2)(B) of the Exchange Act requires issuers to devise and maintain a system of internal accounting controls that, among other things, is sufficient to provide reasonable assurances that assets are used, transactions are executed, only in accordance with management’s general or specific authorization. https://tinyurl.com/5n87cf3u
15 U.S. Code § 78dd–1 - Prohibited foreign trade practices by issuers	The Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. (“FCPA”), was enacted for the purpose of making it unlawful for certain classes of persons and entities to make payments to foreign government officials to assist in obtaining or retaining business. Specifically, the anti-bribery provisions of the FCPA prohibit the willful use of the mails or any means of the instrumentality of interstate commerce corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce the foreign official to do or omit to do an act in violation of his or her lawful duty or to secure any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person. Since 1977, the anti-bribery provisions of the FCPA have applied to all U.S. persons and certain foreign issuers of securities. With the enactment of certain amendments in 1998, the anti-bribery provisions of the FCPA now also apply to foreign firms and persons who cause, directly or through agents, an act in furtherance of such a corrupt payment to take place within the territory of the United States. The FCPA also requires companies whose securities are listed in the United States to meet its accounting provisions. See 15 U.S.C. § 78m. These accounting provisions, which were designed to operate in tandem with the anti-bribery provisions of the FCPA, require corporations covered by the provisions to (a) make and keep books and records that accurately and fairly reflect the transactions of the corporation and (b) devise and maintain an adequate system of internal accounting controls.10) U.S. Department of Justice, Foreign Corrupt Practices Act, Accessed: 6 April 2022, https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act
17 CFR § 240.15d-1 - Requirement of annual reports from Securities Exchange Act of 1934	This practice note discusses reporting obligations under Section 15(d) (15 USCS § 78o) of the Securities Exchange Act of 1934, as amended (the Exchange Act). Section 15(d) provides that any issuer who registers a class of securities under the Securities Act of 1933, as amended (the Securities Act) shall become subject to periodic reporting requirements under Section 13(a) (15 USCS § 78m) of the Exchange Act, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K. However, Section 15(d) does not trigger all Exchange Act obligations. For example, reports under Section 16 (15 USCS § 78p) or Section 13(d) or obligations with respect to proxies are not triggered by the application of Section 15(d) alone. https://tinyurl.com/583z6nxv
2018 Chapter 8 Chapter Eight - Sentencing of Organizations	The guidelines and policy statements in this chapter apply when the convicted defendant is an organization. Organizations can act only through agents and, under federal criminal law, generally are vicariously liable for offenses committed by their agents. At the same time, individual agents are responsible for their own criminal conduct. Federal prosecutions of organizations therefore frequently involve individual and organizational co-defendants. Convicted individual agents of organizations are sentenced in accordance with the guidelines and policy statements in the preceding chapters. This chapter is designed so that the sanctions imposed upon organizations and their agents, taken together, will provide just punishment, adequate deterrence, and incentives for organizations to maintain internal mechanisms for preventing, detecting, and reporting criminal conduct. This chapter reflects the following general principles: 1. First, the court must, whenever practicable, order the organization to remedy any harm caused by the offense. The resources expended to remedy the harm should not be viewed as punishment, but rather as a means of making victims whole for the harm caused.2. Second, if the organization operated primarily for a criminal purpose or primarily by criminal means, the fine should be set sufficiently high to divest the organization of all its assets. 3. Third, the fine range for any other organization should be based on the seriousness of the offense and the culpability of the organization. The seriousness of the offense generally will be reflected by the greatest of the pecuniary gain, the pecuniary loss, or the amount in a guideline offense level fine table. Culpability generally will be determined by six factors that the sentencing court must consider. The four factors that increase the ultimate punishment of an organization are: (i) the involvement in or tolerance of criminal activity; (ii) the prior history of the organization; (iii) the violation of an order; and (iv) the obstruction of justice. The two factors that mitigate the ultimate punishment of an organization are: (i) the existence of an effective compliance and ethics program; and (ii) self-reporting, cooperation, or acceptance of responsibility.4. Fourth, probation is an appropriate sentence for an organizational defendant when needed to ensure that another sanction will be fully implemented or to ensure that steps will be taken within the organization to reduce the likelihood of future criminal conduct. These guidelines offer incentives to organizations to reduce and ultimately eliminate criminal conduct by providing a structural foundation from which an organization may self-police its own conduct through an effective compliance and ethics program. The prevention and detection of criminal conduct, as facilitated by an effective compliance and ethics program, will assist an organization in encouraging ethical conduct and in complying fully with all applicable laws.