JUDGING CRIMES

How corrupt is government in America?  If you ask Americans, the answer is: Not so clean.   Transparency International's Corruption Perceptions Index is a sophisticated statistical melding of various surveys intended to measure public perception of corruption in governments around the world.  In the latest edition (click on the "media pack" link), the United States ties for 20th place with Chile and Belgium, just ahead of Spain, Barbados, Estonia and Malta -- the last of which has been the scene of a long-running, fairly spectacular judicial corruption scandal.  (See post 71.)  

We're behind all the Western European nations except Spain and Portugal, and they're nipping on our heels at # 23 and # 26, respectively.  Well, Greece is in 54th place, but that dismal score tends to confirm the geographical point that, while Greece is the source of Western European civilization, it's not really part of Western Europe. 

In their most recent report, which focuses on corruption among judges and their staff, TI tried to tease out perceptions of corruption in the judiciary as opposed to the government as a whole.  After all, we all know that cops and lawyers can be paid off.  "Can judges and court staff take comfort from the hypothesis that respondents often think of lawyers and police when asked about judicial corruption, and not the actual arbiters of justice?  According to this special edition of the Global Corruption Barometer, the answer is 'no.'"  [page 12]

When asked specifically about corruption among judges, Americans rank their judges just slightly more corrupt than those of ... Greece.  (See post 215.)  We're only three places ahead of Romania, a nation that is constantly in the news for its corrupt judiciary.  We're behind Kenya, Colombia, the Philippines, South Africa and Italy.  [page 13]

How is that possible?  Well, methodological flaws provide one obvious explanation, although I would have to think that the semi-science of polling is probably more developed in the United States than anywhere else in the world.  That is, I'd be more inclined to suspect distortions in surveys conducted in, say, Colombia, with its American-sponsored low-intensity civil war, than those conducted in such a thoroughly market-segmented population as ours.   If so, that means the international comparison might be off, but not the percentage of Americans who perceive their judiciary as corrupt.

Another explanation for public perception of judicial corruption seems at first comforting, and that is: Americans have much higher expectations of their judiciary.  For instance, only 2% of citizens of the United States and Canada report paying bribes to judges, which is twice as high as the number of bribes reported in Western Europe (including poor old Greece) but much lower than the numbers in every other geographical region.  [Page 11, table 1]  So when Americans describe their judiciary as corrupt, they're not necessarily talking about corruption in the crude -- and filmable -- sense of cash in an envelope.

TI says the four problems most commonly identified in country studies of judicial corruption are the following:

1.  Judicial appointments  Failure to appoint judges on merit can lead to the selection of pliant, corruptible judges
2.  Terms and conditions  Poor salaries and insecure working conditions, including unfair processes for promotion and transfer, as well as a lack of continuous training to judges, lead to judges and other court personnel being vulnerable to bribery
3.  Accountability and discipline  Unfair or ineffective processes for the discipline and removal of corrupt judges can often lead to the removal of independent judges for reasons of political expediency
4.  Transparency  Opaque court processes prevent the media and civil society from monitoring court activity and exposing judicial corruption.  [Executive summary page 4]

All four of these problems are abundantly present in the American judicial system, though not always in the sense intended by TI.  Many details are much different here than in most Third World or Newly-Independent countries.

As for number 1, TI devotes a special section to the role of campaign contributions in American judicial campaigns [pages 26-31], and no one can seriously doubt that many contributions are the products of lightly-disguised extortion.  Judicial elections encourage gangster judges, allowing those so inclined to use their judicial power to run protection rackets: "Nice business you got here.  You must be proud.  What a shame that you got tangled up in that bet-the-company litigation.  Incidentally, I'm holding a fund-raising event next weekend."

Unfortunately, the only alternative to judicial elections that anyone in America has figured out is back-room political deals, in which wannabes pay for their nominations by contributing large sums of money to prominent politicians or otherwise making themselves politically useful.  (See post 235.)  The late Judge Richard Arnold, for instance, who since his premature death seems to have apotheosized into a reincarnation of Learned Hand ("the greatest judge never to serve on the Supreme Court"), lost two congressional races before taking a water-carrying job with Arkansas Governor Dale Bumpers, who then went to the U.S. Senate, from which post he could boost his aide into a federal judgeship. 

It doesn't make Arnold any less distinguished a judge to acknowledge that he acquired the opportunity to distinguish himself only by first paying considerable political dues.  Nor does it denigrate him or any other federal judge to say that the way we pick our federal judges is nothing fancier or more edifying than Andy Jackson's spoils system.  (See post 85 and post 165.)

As for number 2, whether or not federal judges are underpaid in any realistic sense doesn't matter: they have a Chief Justice of the United States telling them they're so drastically underpaid it's a "constitutional crisis."  New York's judges have apparently been driven insane by their low pay - they're seriously talking about filing suit against the legislature.  It must be said, however, that some of the state's non-lawyer magistrates are paid peanuts.  (See post 172.) 

As for number 3, dealing with judicial discipline – Well, it can be arbitrary and political, even if the politics involved are more refined than a simple question of which party one belongs to.  (See post 286 and post 287.)  Judges at the top of the heap are immune from ethical rules, provided only that they avoid getting convicted for major felonies.  (See post 198.)  Judges control the system for professional discipline of lawyers and use that to their advantage, suspending or even disbarring lawyers who expose judicial bribe-taking.  (See post 12.) 

And then we get to number 4.  The American judicial system is thoroughly opaque.  Every lawyer knows that newspaper accounts of judicial proceedings are generally uninformative to the point of being misleading.  You can read a lengthy article without ever finding out what actually happened.  Partly that's because journalists are ignorant or biased, partly that's because lawyers won't speak candidly about their cases because their job is to spin, but mostly it's because judges want it that way. 

The ever-entertaining New Jersey Supreme Court came right out and said it: "In an ideal world a free press would seek to foster fair trial rights by not circulating inherently prejudicial publicity at least during a time of trial."    That is, in an ideal world, a free press would not exercise its freedom.  Citizens would have no right to know what their government was doing (or failing to do) on their behalf "at least during a time of trial" and maybe the rest of time, too.   After all, what goes on in the courtroom is so extremely important to society that society needs to be kept in the dark about it.  (Think Dick Cheney and you get the idea.  Almost every practice of the Bush Administration that liberal intellectuals describe as trampling on the Constitution has its precedent in the judicial branch.  See post 261.)

But the most pervasive source of corruption in the American judiciary escapes TI's generalizing list, for the simple reason that our judicial system is so much more developed than those of most developing countries.  Judicial dependence in the sense intended by TI -- political bosses telling judges how to rule -- is hardly unknown in America, but I don't think anyone could seriously believe it's nearly as pervasive here as it is in many other countries.

Our judiciary is very independent.  But that, by itself, is neither a good nor a bad thing.  It depends on: Independent from what?  The biggest source of judicial corruption in America is judges' independence from democracy and from the law itself.  When "the law" -- and, in particular, "the Constitution" -- means nothing more than what a judge or group of judges says it means, we have passed from judicial independence to judicial autonomy.  We are returned in time to 1775, to an America ruled by a monarchy resisting the very idea of popular sovereignty.

[A leading businessman]  recounted how a judge presiding over a trial pitting him against a government department walked into his office and said: "I've got the choice between two decisions: one for you, its two million riyals (more than $10,000), one against you, it's free."

The businessman said he chose to pay, as the stakes were too high.

That's an anecdote out of Yemen.  The Agence France reporter makes the point that judicial corruption involves much more than pay-to-play: "Corruption has become so rife in Yemen that it is not just causing widespread popular discontent but also impeding economic development in one of the world's poorest countries, experts say." 

Judicial honesty is pretty much the definition of "the rule of law."  If you don't have a honest judiciary, you don't have the rule of law.

In Ontario, a local company is resisting the enforcement of a judgment rendered by a Singapore court.  I don't have an opinion about the the merits of the dispute - the International Herald-Tribune story gives few details, and what little it says makes the judgment seem pretty routine.  Nonetheless, "the risk for Singapore, regardless of the verdict in Canada, was that foreign companies might become increasingly wary about business transactions in the city-state."

Bulgaria, one of the most beautiful countries in the world, is in danger of seeing its application to the European Union rejected because of its corrupt or at best inefficient judiciary, as London's Telegraph recently reported:

Hundreds of mafia-related murders in Bulgaria remain unsolved, as investigations rarely end up in charges being brought and those that do seldom result in convictions.

Leaders of rival organised crime syndicates are the most common targets but victims have also included high-profile businessmen, such as the country's leading banker, Emil Kyulev, who was shot dead in his car in the capital, Sofia, last year.

[German Judge Sussete] Schuster said: "The statistics on ordered hits taking place on the street in broad daylight are devastating.

"Very few charges are being raised in such cases and even fewer end in convictions. Common thieves end up in custody and in prison, while offenders suspected of links to organised crime are rarely convicted or even investigated."

Here's a somewhat more positive look at Bulgaria's judiciary, which argues (with perhaps-unintended irony) that by many measures the Bulgarian system compares well to those of member EU states.   (You may need to scroll to the right to see the story.)

In Romania, meanwhile,  "Prime Minister Calin Popescu Tariceanu said [the Romanian judiciary] is a 'wretched system,' while Justice Minister Monica Macovei said last month that 70 percent of the magistrates are corrupt."  Maybe so, but the judges are PR-savvy enough to mount the same defense always heard when American judges come in for criticism: that it's judicial integrity rather than its absence that gives rise to complaint.  "Everyone thinks he is right and not the other. If judges do not agree with everyone, then they are labeled corrupt or incapable," said the President of the High Court of Cassation and Justice.  (Now, there's a job title!)

Another Romanian judge hinted darkly: "There is a sharpening of discrimination and disparagement of the magistracy, as if guilt for a possible failure of accession to the European Union is being prepared."

It's difficult to overstate the importance of an honest judiciary to the well-being of society.  A country without an honest judiciary is a nation not ruled by law.  We shouldn't forget that when we look at our own system.  Our wish that it exist in absolute, night-and-day contrast with judiciaries in Third World or ex-Communist countries shouldn't lead us to overlook that, even in the Romanian Justice Minister's scathing estimation, 30% of Romania judges are clean.  Their system isn't all Stygian darkness.  And I don't think ours is all daylight, either, nice as that would be to believe. 

But we can't approach 100% based on hope alone.  Integrity simply isn't a quality inherent in the practice of any profession, no matter how noble.  Scientists fake results, highly-ranked intelligence officers are suspected of deals with contractors, priests have sex with altar boys (and do even more worse things to nuns),  and (if you can believe it) even Steve Garvey lives a life not entirely beyond reproach. 

I once saw a debate on Northern Ireland.  Betty Williams, one of the "Peace Ladies," spoke first.  And then Bernadette Devlin MacAlisky, standing next to the podium because she was too short to see over it, with the light shining on the side of her face, said in a low growly voice: "But it's a real world we're livin' in, Betty."

Indeed.  So it should be a source of some uneasiness that in the United States we have no serious mechanism for policing the judiciary.   State oversight commissions, to break the news gently, are not uniformly effective or responsible.   (See post 104.)  The Constitution intends for the Senate to shoulder responsibility for the federal judiciary, but it doesn't.  (See post 108.)   Basically we just hope our judges will never stray. 

The Australian model, as described here, establishes a commission that reports to Parliament, spreading its information on the public record, which pressures elected politicians to take action when things go wrong.  An arrangement like that could work in the U.S. only if the commission had no discretion to keep any secrets.

(The argument that judicial and attorney disciplinary proceedings must be confidential because the public can't grasp the difference between serious and frivolous complaints needs to be laughed out of court.)

The May 8, 2006 New Yorker quotes "a Qaddafi insider" saying that Libya's leader "is very happy to have corrupt people working for him.  He'd much rather have people who want money than people who want power, and so he looks the other way and no one threatens his total control of the country." 

Qaddafi's insight should be compared with Chief Justice Roberts' year-end report on the judiciary, in which he picked up his predecessor's constant cry that federal judges need more money.  Roberts announced that from 1990 to 2005, a grand total of 21 federal judges quit before reaching retirement age, as did 71 judges aged 65 or more. 

If they all quit for financial reasons, as Roberts asked his readers to assume, it means we got rid of 92 judges who valued money over power.  A judge who values money that highly is the type of judge most likely to send word to a litigant that he faces a choice between two decisions, only one of which is free. 

I think we ought to be disturbed that the number is as low as Roberts reports.

Yesterday Law.com began an article about judicial pay this way: "Trial court judges in 17 states have received pay raises in the past six months, but on average their salaries remain on par with first-year associates at the nation's largest law firms." 

There are two reasons why salaries for first-year associates at the biggest firms are high.  First, as James Stewart showed us two decades ago, the big law firms are economically dependent on a steady inflow of new associates (and a nearly equivalent outflow of senior associates) to bring in revenue without sharing the profits.   The big firms effectively subsidize the law schools that churn out the graduates they want, by giving the graduates the money needed to repay enormous student loans. 

Second, being a junior associate at a large law firm is the worst job in the legal world.   A first-year associate at a big firm is  self-condemned to perform drudgery, much of it literally as well as existentially meaningless, for the financial benefit of an organization in which she is highly unlikely ever to own an equity stake.   Bright, ambitious lawyers won't abase themselves that way for less than top dollar. 

So comparing the salary of judges to that of first-year associates in big firms is pretty meaningless.  It makes more sense to look at the average salary of lawyers as a profession.  According to the Bureau of Labor Statistics, the 2004 average was a bit less than $100,000, assuming a 40-hour week and 50-week year. 

The mean salary for state court trial judges is $117,328, according to the National Center for State Courts.  So the state judge is actually ahead of the game, financially speaking.  But, even so, money is the least attractive part of being a judge.  Judgeships are for lawyers who want power as well as money.  If we assume for purposes of argument that the average state judge could command a premium in private practice, say a million dollars per year, then it follows that the state judge who earns $117,328 values the power of the office at more than $882,672. 

Being a judge is an extremely well-compensated gig.  It's just that some of the richest compensation doesn't come in the form of money.