Judicial corruption occurs when judges are unwilling or unable to act as independent and neutral arbiters. Corrupt judges abuse their authority for personal gain, accepting bribes from parties before the court, or embezzling court funds. Alternately, judicial corruption may result from the politicization of the judiciary, with powerful government officials interfering in court proceedings and compromising the independence of the judiciary. The occurrence of any type of judicial corruption distorts the judicial process in favor of the powerful and well connected and deprives average citizens of their right to a fair hearing before an impartial judge.
Defining Corruption
Transparency International, a watchdog group that monitors global corruption, distinguishes between two main types of judicial corruption. The first type of corruption is bribery; this occurs when judges use their authority for personal, material gain. For example, a judge may refuse to hear a case or admit evidence unless a party before the court provides a financial incentive. This type of judicial corruption has been documented in virtually every country.
The second type of corruption occurs when there is inappropriate political influence over the judiciary; this type of corruption is far more prevalent in the developing world. Here, judicial appointments are a form of political patronage. As a result, the independence of the entire judiciary is compromised, and judges are compelled to issue rulings favorable to political and business elites. Moreover, other actors in the judicial branch, including lawyers, prosecutors, and police officers, are also corrupted, acting on behalf of the ruling party or powerful private interests, such as organized crime or drug cartels.
This type of entrenched judicial corruption has far-reaching consequences. Most basically, corrupt judicial systems deny individuals the right to a fair trial, a right that is enshrined in both national constitutions and international human rights treaties. Moreover, the prevalence of judicial corruption undercuts public trust in the government, and an uncertain legal environment discourages economic growth.
Judicial Independence in the United States
In the United States, a clear constitutional separation between the judicial branch and the elected branches of government has largely prevented the corruption of the judiciary. Specifically, federal judges are nominated by the president and must be confirmed by the Senate. Although presidents frequently nominate judges who share their political views, judicial selection is based on merit considerations, such as academic credentials and prior legal experience. Since judicial appointments are not a form of patronage, once they are on the bench, judges are autonomous actors; as such, they are not beholden to the partisan or ideological preferences of elected officials. Overall, the professionalization of the U.S. judiciary helps ensure that judges elevate adherence to the law over their own personal or political interests.
Alexander Hamilton, in Federalist No. 78, made the case for judicial independence most cogently. In his view, an independent judiciary was a bulwark against tyranny, serving as a “barrier to the encroachments of the representative body.”
The U.S. Constitution protects judicial independence in several ways. First, under Article III, virtually all federal judges are given lifetime tenure on the condition of “good behavior.” In addition, Congress may not use pay reductions as measures to punish or pressure judges. Finally, the process for impeaching federal judges is complex, preventing impeachment from being used as political cudgel against judges who make unpopular decisions. According to Article II of the U.S. Constitution, federal officials, including judges, can only be removed from office if they have committed “treason, bribery, or other high crimes and misdemeanors.” To initiate impeachment proceedings, the House of Representative must first pass articles of impeachment by a simple majority; following this, the Senate conducts a trial. At the conclusion of the trial, a federal judge can only be removed from office if convicted by a two-thirds vote. The removal of federal judges is rare; since 1789, only 15 judges have been impeached, and of those, only eight judges were convicted by the Senate and removed from office.
Judicial Accountability in the United States
Although the U.S. judicial system is largely free from the type of systemic political corruption that has plagued judiciaries in other parts of the world, Congress, acting in concert with the judicial branch, has sought to devise accountability measures to discipline judges who engage in unethical or illegal behavior on the bench. Here, a key challenge is designing measures that effectively police judicial behavior and prevent corruption, without encroaching upon the independence of the judiciary.
Most basically, in the United States all federal judges below the level of the Supreme Court are expected to adhere to the canons of the Code of Conduct for United States Judges, adopted in 1983 by the Judicial Conference of the United States. The document prescribes rules for maintaining the impartiality of the federal judiciary; for example, judges are banned from holding leadership positions in political organizations, and judges are expected to disqualify themselves from cases in which they hold a personal interest. Judges who fail to adhere to the code may be subject to administrative sanction.
In 1980, in order to enhance accountability, Congress passed the Judicial Conduct and Disability Act (JCDA); the intention of the act is to investigate and punish judicial behavior “prejudicial to the effective and expeditious administration of the business of the courts.” Individuals who believe they have been victims of judicial misconduct or incompetence have the right to file a complaint with the chief justice of the corresponding circuit court; the chief justice may either dismiss the complaint or authorize an investigation. In order to preserve judicial independence, investigations into misconduct are undertaken by a committee of judges; the committee is solely responsible for determining guilt and recommending administrative sanction.
According to scholar Mary Volcansek, in the decade following the implementation of the JCDA, more than 1,900 complaints were filed against federal judges. The vast majority were dismissed or withdrawn, and only 415 complaints were investigated. Volcansek found that only eight complaints resulted in formal sanction; these sanctions included censures and recommendations of voluntary retirement.
In 2004, in response to congressional concerns about the rigor of JCDA investigations, William Rehnquist, the chief justice of the U.S. Supreme Court, established a committee to assess whether the judges conducing JCDA investigations were treating their colleagues with undue leniency. The committee, which was chaired by Associate Supreme Court Justice Stephen Breyer, examined a sample of 539 JCDA complaints; in a report released in 2006, the commission found that only 2 to 3 percent of these complaints were mishandled. The committee concluded that the judiciary was able to rigorously implement the act and succeeded in detecting and punishing corruption within its ranks.
Cases of Judicial Corruption in the United States
In recent decades, there have been several prominent instances of judicial misconduct at both the state and federal level. One of the most extensive cases of judicial corruption was uncovered by Operation Greylord, the code name for a joint Federal Bureau of Investigation (FBI)–Internal Revenue Service (IRS) probe into the judicial system in Cook County, Illinois. The probe began 1980, when Terrence Hake, a criminal defense attorney, approached the FBI; Hake reported that Cook County judges regularly fixed trials, including felony trials, in exchange for bribes. To document this corruption, the FBI first manufactured more than 70 criminal cases; then agents posing as defense lawyers contacted judges, offering them bribes in return for leniency toward their clients. Operation Greylord was notable in that it represented the first time that federal investigators were permitted to use listening devices inside a judge’s chambers. The undercover operation lasted more than three years; eventually, 92 officials were indicted, including 17 judges. In the aftermath of the scandal, Illinois moved to strengthen its judicial code of conduct, requiring judges to report on judicial officers who they believed had engaged in misbehavior.
Another major case of corruption was revealed in 2008, when two Pennsylvania judges were implicated in the so-called Kids for Cash scandal. A federal investigation found that beginning in 2003, Mark Ciavarella and Michael Conahan, judges on the Court of Commons Pleas in Luzerne County, Pennsylvania, received millions of dollars in kickbacks from private, for-profit juvenile detention facilities in exchange for sentencing juvenile offenders to time in those same facilities. The federal investigation was triggered by a complaint from the Juvenile Law Center, which noted that Ciavarella and Conahan frequently sentenced first-time, nonviolent offenders to lengthy terms in detention. A subsequent investigation found that the judges had systemically denied juvenile defendants the right to due process; an average hearing in Ciaveralla’s court lasted only four minutes, and children under age 14 often appeared without legal counsel.
In 2011, both judges were given heavy fines and sentenced to jail time, with Ciavarellia receiving 28 years in federal prison, and Conahan receiving 17.5 years. In addition, the Pennsylvania Supreme Court vacated the rulings against all juveniles who had appeared before Ciavarella and Conahan between 2003 and 2005. The scandal prompted several state-level reforms; in 2009, the Pennsylvania legislature created the Interbranch Commission on Juvenile Justice to prevent future corruption in juvenile courts. In addition, the Pennsylvania Supreme Court adopted stricter rules for sentencing juvenile offenders, including a requirement that all children under the age of 14 have a lawyer present during court proceedings.
At the federal level, the 1804 impeachment proceedings against Supreme Court Justice Samuel Chase set a precedent for future trials, establishing a high bar for proving judicial misconduct. Chase, who joined the court in 1796, was aligned with the Federalist movement and was a strong supporter of President John Adams. In 1804, members of the House approved articles of impeachment against Chase, alleging that he had politicized the court by using his authority to prosecute members of Thomas Jefferson’s Republican party. In his subsequent Senate trial, Chase defended himself, arguing that he was being targeted for his political views rather than his conduct; he was eventually acquitted and retained his position on the Supreme Court. This trial represented the only time in history that a U.S. Supreme Court justice was impeached.
Another notable impeachment case occurred 1912, when the House voted to impeach Robert Archbald, who sat on the now-defunct federal Commerce Court. His critics alleged that he had abused his power, accepting bribes, including a European trip and land deals; in return, Archbald gave favorable treatment to powerful business interests. Despite appearing in person to defend himself against the charges, in 1913, Archbald was convicted by the Senate on five of the 13 articles of impeachment and removed from office. The Senate also banned him from ever holding public office. This made Archbald the third federal judge convicted by the U.S. Senate, following John Pickering in 1803 and West H. Humphreys in 1896.
Subsequently, in 1926, the House initiated impeachment proceedings against George W. English, a Woodrow Wilson appointee who served on the U.S. District Court for the Eastern District of Illinois. The articles of impeachment charged that English had used his position on the court to harass his opponents; this included allegations that he had threatened a newspaper editor with jail time after he wrote a critical editorial, as well as charges that he threatened to disbar attorneys. In November, before the impeachment proceeding could begin, White resigned, and the House dismissed the articles.
Since 1986, five judges have been impeached for misconduct; of those, four were convicted by the Senate and removed from office, and one resigned. One of those impeached judges was Alcee Hastings, who served on the U.S. District Court for the Southern District of Florida. President Jimmy Carter appointed Hastings to the court in 1979; two years later, Hastings was accused of accepting a bribe of $150,000 from two FBI agents posing as defendants in a criminal case. In 1983, Hastings was tried in criminal court on charges of “conspiracy to solicit and accept money in return for unlawful influence in the performance of lawful government functions”; he was acquitted, however, after his accused co-conspirator refused to testify.
Subsequently, in 1988, the House voted on articles of impeachment against Hastings, and in October 1989 the Senate, by a vote of 62–26, found him guilty of eight of the 11 articles. This made Hastings the sixth federal judged to be removed from office. He was also the first federal official to be convicted by the Senate following an acquittal in a criminal trail. In 1993, Hasting returned to politics after successfully running for a seat in the House of Representatives; he currently represents Florida’s 20th District.
International Judicial Corruption
In the United States, cases of judicial corruption are relatively infrequent, reflecting unethical or illegal behavior on the part of individual judges. In many countries, however, the corruption of the judiciary is endemic, with political leaders and powerful private interests compromising the independence of the judiciary. In such cases, citizens lack access to the justice system and must often pay bribes in order to deal with routine legal matters.
In 2006, Transparency International’s Global Corruption Barometer, a survey of more than 59 thousand individuals in 62 countries, asked respondents to report on their experience with corruption in the judiciary. Transparency International found that in one-third of the countries covered by the survey, at least 10 percent of respondents who interacted with the judicial system in the last year reported paying a bribe to a judicial officer. The rates of reported bribery were highest in Africa and Latin America; 21 percent of African respondents reported paying a bribe, as did 18 percent of Latin American respondents. The rates of reported bribery were the lowest in North America and Europe, at 1 percent and 2 percent, respectively.
Although judicial corruption can occur for a variety of reasons, Transparency International has identified seven national-level factors that are likely to lead to systemic judicial corruption. First, large-scale corruption is likely when the other branches of government violate the separation of powers and interfere with the workings of the judiciary. Second, judicial corruption is likely when political and economic corruption is normalized and is tolerated by society. Third, judges who fear demotion or even physical harm are likely to engage in corrupt behavior, distorting court proceedings in favor of powerful interests. Fourth, low salaries for judges and court workers may also foster corruption, as judges become more susceptible to bribery. Fifth, judicial corruption is more likely in countries where there is no reward for ethical behavior; here, judges who act against entrenched political interests may actually be punished, receiving heavier caseloads or reduced court funds. Sixth, collision among judges can trigger corruption, with judges at different courts working together to ensure a predetermined outcome. Finally, the absence of external monitoring of court proceedings can lead to widespread corruption. In countries where court administration is complex and opaque, it becomes easier for judges and other court officers to hide misbehavior.
Addressing this level of judicial corruption poses a challenge for governments, necessitating a fundamental reform of the judicial system aimed at addressing the root causes of corruption. Mexico and China are two countries that have recently pursued comprehensive judicial reform, in response to international pressure.
In Mexico, drug production and trafficking is prevalent, and this underground economic activity has corrupted the judicial process at both the national and local level. In the 2000s, Mexican officials investigated several judges who regularly dismissed changes against high-ranking members of drug cartels, despite overwhelming evidence of criminal activity.
Eradicating the systemic corruption in the Mexican judiciary has become a key focus for the United States as part of its antidrug Merida initiative. By the mid-2000s, U.S. officials recognized that Mexico’s corrupted judiciary was allowing drug cartels to operate with impunity. In accordance with this, in 2008, the United States proposed a set of constitutional reforms called the New Criminal Justice System. Overall, these reforms were designed to increase transparency in court proceedings, abolishing Mexico’s closed-door trials and written testimony and replacing them with a U.S. style adversarial system featuring oral arguments and an open court. So far, the reforms have been implemented in several Mexican states, with full implementation planned by 2016.
China is another county that has pursued rapid reform of the judiciary; its reform efforts have largely paralleled its economic growth and integration into the global economy. The modern Chinese court system was established in the aftermath of the Communist revolution. These “people’s courts” were modeled on the Soviet court system and were not afforded independence; instead the judiciary was considered a part of the ruling Communist Party.
Since the 1990s, however, Chinese officials have made a sustained effort to reform the judiciary in an effort to comport with international legal standards, and to make the country attractive to foreign investors. In accordance with this, in 1999, the Supreme People’s Court, China’s highest court, adopted a five-year reform plan designed to increase the professionalism and efficiency of the judiciary. A second five-year plan was introduced in 2005, containing 60 more proposed reforms. Although these reforms represent an important step toward reducing judicial corruption, China’s corruption problems are unlikely to be resolved so long as the judiciary lacks full independence.
A key component of China’s recent judicial reforms is a renewed commitment to identifying and prosecuting corrupt judges. In accordance with this, in 2003, the government outlined a set of rules that prescribed lengthy prison sentences for judges caught accepting bribes. At the same time these rules were being implemented, the government was investigating a massive case of judicial corruption in Wuhan, in Hubei Province. The investigation resulted in charges being filed against 91 judges who had accepted more than $500,000 in bribes. Eventually, 12 judges were sentenced to jail time, while dozens more were disciplined or reassigned.
International Action Against Judicial Corruption
In the last decade, promoting the independence and impartiality of judiciaries in the developing world has become a focus of the United Nations (UN). A 2000 report summarizing the Workshop of the Judicial Group on Strengthening Judicial Integrity declared that judicial corruption was development issue, noting that the protection of all human rights depends upon the existence of an independent and impartial judiciary.
Subsequently, in 2002, the UN Office of Drug Control and Crime Prevention promulgated the Bangalore Principles of Judicial Conduct. The principles, which were based on the recommendations of a panel of judges from Africa and Asia, were designed as a global code of judicial conduct, which can serve as a model for national codes. The Bangalore Principles detail six core values that should guide judges, namely, independence, impartiality, integrity, equality, propriety, and competence and diligence.
In 2006, the UN Economic and Social Council passed a resolution formally endorsing the Bangalore Principles and calling on the UN Office on Drugs and Crime (UNODC) to develop a formal guide for judicial conduct. In 2011, the UN released the resulting report, “Resource Guide on Strengthening Judicial Integrity and Capacity.” The guide outlined a set of best practices designed to promote integrity and efficiency in national judiciaries; it addressed issues such as the training and recruitment of judges, and disciplinary procedures for judges, and also provided suggestions for rebuilding public faith in the court systems.
Conclusion
Judicial corruption takes many forms, ranging from cases where a single judge accepts a bribe, to instances where the entire judiciary is operated as an arm of the ruling party. Regardless of the scope and frequency of corruption, its occurrence undercuts the rule of law and compromises an individual’s right to a fair trial. Officials at the local, national, and international level have used various methods to address judicial corruption. In the United States, although there have been multiple cases of unethical behavior by judges, the independence of the judiciary and the transparency of court proceedings help keep levels of corruption low. In cases where it does occur, there is an established process for investigating and potentially impeaching federal judges accused of misconduct. In countries suffering from endemic judicial corruption, however, more far-reaching reforms are necessary; this includes measures such as professionalizing the judiciary and abolishing patronage, altering the constitution to require open court proceedings, and implementing harsher punishments for judges caught abusing their authority.
Bibliography:
- Federal Judicial Center. “Impeachments of Federal Judges.” http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html (Accessed August 2013)
- Ferejohn, John. “Independent Judges, Dependent Judiciary: Explaining Judicial Independence.” Southern California Law Review, v.72 (1998–1999).
- Transparency International. Global Corruption Report 2007. Cambridge: Cambridge University Press, 2007.
- Volcansek, Mary L. Judicial Misconduct: A Cross-National Comparison. Gainesville: University Press of Florida, 1996.
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