sentencing options.152 Several methods have evolved to address this potential issue, such as: •
Representative charges that capture a continuing course of criminal conduct over a period of time. Where permitted, charges for a corruption offense committed between [date] and [date] will eventually permit an order of confiscation for all the benefits derived from this “course of conduct” over the entire period. • Rebuttable presumptions and extended confiscation. A rebuttable presumption, raised on conviction for a single offense, could allow the inference that benefits derived over an extended, specific period of time are benefits of that offense. Such a presumption would permit the confiscation of assets that may have been derived from other offenses for which the offender was not charged or convicted. Similarly, provisions that allow the court to confiscate assets for “related criminal activities” will permit the court to include any related or similar criminal activity in calculating benefits (see sections 6.3.1 and 6.3.3 for additional information).
If the relevant legal system permits a value-based confiscation order only for the conduct on which the defendant is convicted, a practitioner must take care in choosing the charges on which to prosecute the defendant (that is, choose the offense according to the desired confiscation). In addition, any decision to drop or amend charges must be considered carefully because such decisions can have drastic effects on the calculation of benefits. Gross or Net Benefits In most jurisdictions, the term “benefits” is specifically defined as “gross benefits”— not “net benefits” or “profit”—after deduction of any expenses incurred in deriving the benefit. A calculation based on “net benefits” would enable the corrupt official to deduct legal, banking, transportation, and other fees paid in the process of laundering funds and would enable him or her to retain parts of the proceeds. The computation of gross benefits should not be mitigated by any loss in value or dissipation of an asset because the value of the criminal benefit is “crystallized” at the moment the benefit is generated. Joint and Several Liability In some jurisdictions, defendants can be held jointly and severally liable for valuebased confiscation orders. The result is that the full value of the benefit is recoverable from each of the convicted defendants. For example, in the case of a crime committed by five people that generated a total benefit of $500,000, the entire amount is recoverable from each individual, rather than $100,000 from each of the five offenders. This is useful if four of the defendants are found to be impecunious, but the fifth has assets of $1 million. 152. This would not be an issue if proceeding on the offense of illicit enrichment or unjust resources because all benefits would be linked to the one offense.
Mechanisms for Confiscation
I 113