Corruption in our courts: what it looks like and where it is hidden.

• Author: Pahis, Stratos

NOTE CONTENTS INTRODUCTION I. UNDERSTANDING AND OBSERVING JUDICIAL CORRUPTION A. An Economic Model of Bribery 1. Understanding Defendants' and Litigants' Demand for Corruption 2. Understanding the Supply of Corruption B. Morality and the Risk of First Movers 1. First-Mover Risk 2. First-Mover Risk with Relaxed Assumptions C. Model Predictions and Observations II. SAMPLE AND METHODOLOGY A. Accountability Institutions B. Sample of Judges and Bribes C. Methodology D. Sample Bias III. CORRUPT JUDGES AND COURTS A. Federal Versus State Judges B. Trial Versus Appellate Judges C. Elected Versus Appointed Judges D. Multijudge Corruption Rings IV. FACT PATTERNS OF CORRUPTION A. Types of Cases B. Corrupt Actions: What the Bribes Bought 1. Criminal Cases 2. Civil Cases 3. Traffic Violations 4. Administration of Cases C. Prices: How Much Was Paid D. Risk of Detection and Tip-Offs 1. Prosecutorial Leverage 2. Judicial Conduct Organizations and Uninterested Tip-Offs 3. Judicial Extortion 4. Multijudge Corruption Rings 5. First-Mover Risk V. ANALYSIS A. Criminal Versus Civil Cases 1. Risk of Detection 2. Actual Incidence 3. Bias and Alternative Explanations B. Traffic Bribes CONCLUSION "If experience demands a presumption that a judge will seize every opportunity presented to him in the course of his official conduct to line his pockets, no canon of ethics or statute regarding disqualification can save our judicial system."

--Justice William Rehnquist (1)

INTRODUCTION

A judiciary without honesty has little chance of executing its moral and constitutional duties, no matter how many rules of ethics exist. This is especially true in the United States, where the judiciary is afforded wide discretion. Facts and law require interpretation; justice and equity require judgment. Every decision to grant a motion, to follow precedent, to interpret a statute or facts, to set a sentence or damages--every decision left up to the discretion of a judge--is a potential opportunity for corruption. Eliminating all opportunities for personal gain would require nothing less than the destruction of the independent and adaptable judicial system we know. And so we count on honest judges to navigate our ship of justice through these dangerous waters.

But we do not just keep our fingers crossed and hope we have good captains at the helm. We develop processes of choosing the most skilled and honest judges. We provide them with good pay and professional prestige to lessen the temptations of bribery. And we develop multilevel methods of oversight that intrude minimally (one hopes) upon their discretion and independence. We expect judges to be honest because we establish institutions that incentivize honesty.

Despite the critical importance of maintaining judicial integrity, there is a dearth of empirical literature that analyzes the effectiveness of these institutions. To be sure, some studies have tracked the historical development of judicial integrity institutions and others have catalogued cases of judicial corruption. (2) Others still have relied upon questionnaires to gauge perceptions and incidences of corruption. (3) But because no study has ventured beyond the description of discovered cases of judicial corruption, none has been able to answer the question of how effective our institutions have been at actually unearthing and punishing the crime. (4)

This Note begins to fill in this serious gap in the literature on judicial corruption. By developing an economic model to understand judicial corruption and creating the only recent sample of discovered cases of judicial bribery against which to test its predictions, this Note attempts to assess the effectiveness of our anticorruption mechanisms. In doing so, beyond cataloguing important patterns in judicial corruption, it advances the argument that there is a serious blind spot in the functioning of our anticorruption institutions. While the small sample size limits the certainty of this Note's findings, its analysis suggests that the mechanisms for detecting bribery of judges in civil matters and traffic violations are deficient and that much judicial corruption in these cases likely goes unnoticed.

Before moving on, it is worth mentioning why I have specifically focused this Note on judicial bribery. After all, many forms of judicial corruption exist and may in fact be more widespread than quid pro quo bribery. Cases of judges ruling on matters involving a financial or personal conflict of interest are numerous and are responsible for a large portion of sanctions handed down by state judicial conduct organizations (JCOs). (5) The receiving of gifts, the granting of favors, ex parte communications, and other actions that create partiality or its appearance are also highly prevalent forms of malfeasance dealt with by JCOs.

Despite the importance of these forms of corruption, I have chosen to limit my study to bribery cases for three reasons. First, a recent survey suggests that judicial bribery may be a significant problem in the United States. In a Transparency International survey, 2% of the North Americans (defined to include residents of the United States and Canada) who had come into contact with the judiciary over the previous year reported having paid bribes. (6) Assuming parity of corruption between the United States and Canada, (7) and a U.S. adult population of 220 million, (8) this study implies that over one million bribes are paid in the U.S. judicial system each year. While this survey captures bribes directed not only toward judges, but also toward police, prosecutors, and jurors, the results are alarming enough to warrant further study into judges, whose integrity is most critical to a functioning judicial system. Second, cases of bribery offer greater details for study than do other forms of corruption. Because bribery is prosecutable, incidents of it should be relatively well investigated and reported. Third, bribery is one of the most pernicious forms of corruption. It can purchase favors in high-stakes cases and does not necessitate any personal or professional relationship between the briber and judge. It would seem, therefore, to be one of the most serious--and difficult to detect--forms of judicial corruption that exists. The most recent judicial scandal to come out of Pennsylvania, in which two judges pied guilty to accepting bribes from a private juvenile detention facility in exchange for incarcerating minors for extended periods of time, is evidence of just how vile and pernicious the consequences of judicial bribery can be. During the last five years, the judges collected over $2.6 million in bribes and presided over the trials of five thousand children, including one teenager who was sentenced to five months detention for stealing DVDs from Walmart. (9)

This Note is organized as follows: In Part I, I develop an economic model for understanding judicial bribery. In Part II, I review the accountability institutions of the state and federal judiciaries and describe the sample set of corrupt judges. I then go over the characteristics of the judges and courts in which bribery was discovered in Part III. In Part IV, I discuss the types of bribery discovered, the prices of the bribes and the corrupt actions that they bought, how the judges and bribers transacted the bribes, and what factors led to the bribes' discovery. This analysis leads to the troubling observation that the majority of judges had accepted multiple bribes before being caught and that some were corrupted by as little as a pound of lunch meat.

In Part V, I examine interesting patterns from the data--in particular, the disproportionate amount of discovered bribery in criminal cases as compared to bribery in civil cases. I observe that this discrepancy appears to be due in large part to prosecutorial leverage, which allows criminals to bargain down their sentence in return for incriminating information about judges, leading to an increased rate of detection. After examining other possible explanations for the discrepancy, I argue that the data and model support the conclusion that bribery in civil cases is less likely to be detected than bribery in criminal cases. I conclude with a summary of my findings and suggestions for further research.

1. UNDERSTANDING AND OBSERVING JUDICIAL CORRUPTION

   The study of corruption poses unique problems. Corruption's covert nature means that only a fraction of it is ever exposed. Those cases that are discovered almost certainly share characteristics that led to their discovery. Relying solely on discovered cases of corruption as a means of analysis is therefore a limited method that can provide a distorted view of how much and what kind of corruption actually exists. This limitation has led scholars to rely on survey data of public perceptions of corruption as a proxy for the amount of corruption that exists. (10) The accuracy or inaccuracy of such perceptions notwithstanding, relying solely on public perceptions of corruption is bound to constrain the specificity of the conclusions. This Part provides another framework for understanding judicial corruption.

   1. An Economic Model of Bribery

      Judicial corruption can be understood as the selling and purchasing of legal decisions. Understanding judicial bribery requires understanding the incentives that exist for parties or lawyers to purchase these decisions and for judges to sell them. (11) Below, in an attempt to predict what types of cases and judges will yield the most corruption, I describe the major factors that influence the briber's demand for corrupt judicial services and the judge's supply of those services. (12)

      The model, for purposes of simplification, makes two assumptions. First, the model assumes that judges, litigants, and defendants are amoral. When they refuse to engage in corruption it is not because of any moral aversion, but because the costs imposed on them for doing so are greater than the...