Corruption in Our Courts: What It Looks Like

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Corruption in Our Courts: What It Looks Like and Where It Is Hidden,  Stratos Pahis



abstract. Recent surveys and events indicate that judicial corruption could be a significant


problem in the United States. This Note builds an economic model of bribery to better

understand the incentives behind this pernicious phenomenon. It then compiles a data set of

discovered incidents of judicial bribery in the United States to test the effectiveness of our antijudicial-

corruption institutions. This analysis suggests that our institutions are particularly

ineffective at preventing and uncovering judicial bribery in civil disputes and traffic hearings.

author. Yale Law School, J.D. 2009; Universidad Complutense de Madrid, M.A. 2005;

Dartmouth College, B.A. 2004. I am grateful to Professor Susan Rose-Ackerman for inspiring

my interest in this topic and for her invaluable support and feedback over many drafts of this

Note. I am also indebted to the members of The Yale Law Journal Notes Committee—in

particular to Victoria Weatherford for her patience, meticulous editing, and insightful

comments. Thanks also to Sam Ferguson for his helpful feedback. All errors that remain are of

course mine alone.
 
corruption in our courts


1903

“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 Rehnquist1

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

1904

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

judicial corruption); Geoffrey P. Miller, Bad Judges, 83 TEX. L. REV. 431 (2004) (cataloguing

cases of judicial malfeasance).

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 pled 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

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.

i . 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.

A. 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

This Article is continued at the link below:

 http://impeachrandykennedy.files.wordpress.com/2011/05/yale-law-on-judiciary.pdf