JUDGING CRIMES

There's an easy way to estimate the number of judges in your state who take bribes.  It's this: calculate the percentage of your state legislature that does so.  The percentage of judges on the take will be roughly equal.

Bribe-taking is mostly a matter of political culture.  Where bribery is commonplace, it's expected.  And where it's expected, it's commonplace.  That's not tautological: it's self-reinforcing.  Expecting corruption is almost the same as accepting it.

A neat computer simulation, devised by  political scientist Ross Hammond and described by Jonathan Rauch in the April, 2002, Atlantic Monthly, captures this dynamic in visual terms.  For all the cleverness of the computer program, the basic point is pretty basic: it takes two to tango.  Where the risk of punishment is great, neither partner dares to make the first move.  People who are not honest as a matter of character become honest when there's no longer any realistic upside to dishonesty.

It's easy enough to show how this works in real life.  A poll of Filipino lawyers last summer revealed that 49% knew of judges on the take, but only 8% reported the bribery.   The others simply accepted rotten judges as a fact of life.   Because the lawyers accepted bribery, it became safe for judges to demand bribes - and dangerous for lawyers (or their clients) to refuse to play the game.  

In the early 1990s, South Carolina saw 17 members of its legislature convicted.  The South Carolina state legislature has a total of 170 members, meaning that exactly 10% committed offenses blatant enough to meet the beyond-a-reasonable-doubt standard.   South Carolinians should figure that about 10% of their judges are just as blatantly dirty.  And in both the legislature and the judiciary, there's got to be at least the same number who are cautious enough to avoid getting caught on videotape.

Arizona's 1991 AZscam scandal was also pretty productive. "[S]even members of the Arizona state legislature were charged with bribery, money laundering, and filing false election claims as the result of a sting operation. The legislators were videotaped accepting thousands of dollars from a man posing as a gaming consultant in return for agreeing to legalize casino gambling."  And this despite the fact that the sting was exposed prematurely by the Arizona Republic, which was either eager for a scoop or protective of the good ol' boys. Since Arizona's Legislature has just 90 members, even the truncated sting caught 7.7% of the total. 

And South Carolina and Arizona don't even have the reputation of being particularly corrupt states.  For people who live in states with long traditions of tolerating corruption, places where bribery is treated very nearly as a joke - states such as my own New Mexico, or New Jersey, or Louisiana - certain eccentric rulings by the courts might make perfect sense when viewed from the correct perspective.

There's a natural tendency to think:  Surely judges are more honest than legislators ...?  But when you think about it, there's no particular reason why they should be.  Judges are either elected or appointed through a patronage system (see post 85), both of which are political through-and-through. 

Nonetheless, it's possible that honest people are more likely to strive for political preferment in the judicial branch than run for state representative.  That might make corruption in the judiciary less common.  On the other hand, the risk of detection is much lower in the cloistered legal world than in the extrovert-o-rama of the legislature in session.  The secretiveness with which the judiciary conducts its business reduces the risk of discovery to an extremely low level (see post 53), which must surely make corruption more common.

Here's another way to measure the level of corruption in your state's judiciary.  Are all pleadings in a disciplinary proceeding against a judge posted on the web, as in Florida?  If not, are the results of disciplinary proceedings, at least,  published on the web, as in New York?  Or, as in many other states, is judicial discipline conducted in strictest secrecy? 

Whenever the government hides information from the public, it's because the government has something to hide.  If the state agency in charge of judicial discipline in your state doesn't publish anything of substance on the web, you should take it as a given that corruption is common on your state's bench.