Corruption in Our Courts: What It Looks Like and Where It Is Hidden
“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
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.
Understanding the Supply of Corruption
In deciding whether to sell a corrupt decision, a judge is likely to face a different decision-making model. The judge does not have to consider the value of the decision, the original probability of winning, or the risk of reversal. Instead, the judge will focus on whether the price of the bribe is greater than
Corruption in our Courts
the expected costs of accepting the bribe. As with the briber, the judge will calculate expected loss by multiplying the probability of being caught (r) by the cost of detection (CDJ). The judge’s costs of detection are not necessarily equivalent to those that the briber faces. On average, judges probably face greater costs of detection in terms of loss of reputation, lost salary, and time in prison. Their detection costs are also relatively higher as judges represent larger prizes for law enforcement who may grant immunity to the briber in exchange for incriminating information about the judge. The judge is expected to face the following net benefit equation: NBJ = B – (r)(CDJ)
He or she will render a corrupt decision when the bribe is greater than these expected costs: B > (r)(CDJ) T herefore, we expect corruption to flourish when there is a bribe (B) such that B > (r)(CDJ) and B < Y – (r)(CDP). In other words, a bribe will be transacted when the judge’s expected losses are less than the briber’s expected net gains, and there is room for mutual gain. Graphically this can be represented as follows, where everything to the left of (BP(max)) represents a bribe the party would be willing to pay, and everything to the right of (BJ(min)) represents a bribe the judge would be willing to take. Smaller bribes on the continuum represent larger net gains to the party, while larger bribes on the continuum represent greater gains to the judge. In Figure 1 below, the overlapping area represents this bargaining space between the judge and the party in which we expect the price of the bribe to fall.
Deal In the scenario depicted in Figure 1, we would expect a bribe to change hands, as there is room for mutual gain. By varying the values of the factors that affect the decision calculus of the judge and litigant or defendant,
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 anti-judicial-corruption institutions. This analysis suggests that our institutions are particularly ineffective at preventing and uncovering judicial bribery in civil disputes and traffic hearings.
Full Article and Source: Yale Law Journal