As I discussed in my last post, effective anticorruption enforcement requires a judicial system with the capacity and will to hold powerful defendants criminally liable for their malfeasance. Understandably, then, judicial institutions, especially in developing countries, are often written off as weak or corrupt if they are unable to convict and sentence high-profile corruption defendants. Acquittals can seem synonymous with impunity, regardless of the justifications put forth by the court. On this measure, many domestic judiciaries charged with high-profile cases fail. For example, almost all of the central figures ousted in the 2011 Arab Spring uprisings in Egypt were ultimately acquitted of all corruption-related charges. Additional examples of high-profile corruption acquittals or dismissals abound around the world (see here, here, here, here, and here).
To be sure, the inability of many judiciaries to hold high-profile corruption defendants criminally accountable is often indicative of underlying problems in the court system, and these problems must be addressed. At the same time, though, I worry that domestic and international constituencies sometimes put too much emphasis on individual verdicts, or overall conviction rates, as the measure of judicial effectiveness. While these indicators can provide important information, overemphasizing guilty verdicts in particular corruption cases, or overall conviction rates, could actually be counterproductive to anticorruption progress, for at least three reasons:
- Misrepresenting the problem: The problem of corrupt defendants going free and the problem of judicial weakness in corruption cases are not one and the same. A high conviction rate does not necessarily mean that the judiciary is functioning properly; indeed, high conviction rates can be just as problematic as high acquittal rates. For example, in Japan, conviction rates are over 99 percent, but far from demonstrating perfect judicial health, this fact is generally considered indicative of colossal structural problems within the judicial sector that lead to false confessions and imprisonments.
- Misdirection of reform efforts based on false perceptions of judicial success: Overemphasis on verdicts can be especially counterproductive for domestic judiciaries when combined with international pressure. For many developing and post-conflict nations, international development assistance or other sorts of favorable treatment increasingly depend on whether a country is perceived as taking effective action to fight corruption and impunity. While this can sometimes be desirable, international pressure regarding anticorruption reforms can also come at the expense of due process rights for defendants, as Liz noted in the case of Romania’s ascension to the EU. Therefore, when the international community closely watches the results of high-profile corruption trials, for which there is a presumed “correct” result, there are two related risks. One is that the target countries might overemphasize policies and resource allocations that are likely to translate into guilty verdicts, rather than through more meaningful substantive reforms. More worrisome is the possibility that a domestic court might decide to convict due to political pressure from the domestic public or the international community—and in this case, the judiciary is no more independent than if it had ceded to pressure to acquit from the nation’s power-wielding elite.
- Obscuring the appropriate role of procedure: Acquittal on procedural grounds can sometimes be fig leaf for impunity (see here and here). At the same time, however, rule of law generally does require respect for judicial procedure; indeed, the rule of law ideal generally holds that compliance with the correct legal procedures as more important than getting the “right” answer in a particular case. And even in the best court systems, some defendants who are in fact guilty will go free due to procedural violations in handling their cases. While undesirable in particular instances, such a result could be desirable overall. Of course, if most or all (presumably guilty) defendants are going free or that most or all (presumably innocent) defendants are getting convicted, there is a problem. But bypassing judicial procedure to get the “correct” verdicts will not solve this problem. Of course, procedures themselves can be problematic, and sometimes an overhaul of procedures can be necessary to achieve justice. In such cases, undervaluing procedure can be essential for creating institutional change. At the same time, though, a developing judiciary cannot attain institutional strength if continually under pressure to reach the “correct” result at any procedural cost.
In some sense, the judiciary can’t win. If it fails to convict a defendant in a high-profile corruption case, the perception is that justice has not been served. If the court does convict, it may have done so too readily, as a result of international pressure, or in disregard of judicial procedure. To escape this conundrum, it is important not to overemphasize verdicts—either individual verdicts, or the overall conviction rate—in the fight against corruption. “Don’t overemphasize” does not mean “ignore”—individual verdicts and overall conviction rates can sometimes be informative. But there are alternative indicators for judicial performance that may be more useful measures of the judiciary’s capacity to hold corrupt officials accountable. These alternative indicators would include judicial bribery rates (actual and perceived), the strength and sufficiency of conflict-of-interest regulation for judges, prosecutors, and other lawyers, and measures of access to justice across different sectors of the population. Overall, the focus ought to be on creating systems that can produce just outcomes, rather than on securing particular outcomes themselves.
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Interesting material to read. In Nepal, I see three problems related to corruption verdicts.
1. Too late – an average time for a high profile case to be settled in the court is 10 years.
2. Too little – the penalty is too little, so far no high profile convicts have served more than 18 months.
3. Insult to the injury – A convict can have 20% rebate on penalty if he or she accepts the court verdict within 60 days from the date of such verdict.
You make an important point about the dangers of putting too much weight on the conviction rate. I agree and will write shortly about the problems this has created in a program in Tanzania.
But the problem of putting too much stress on a single indicator of performance is of course much broader than just conviction rates and anticorruption. Recall the teachers in Atlanta, Georgia, convicted for falsifying student test scores and otherwise trying to “game” the results of test scores because so much, in terms of funding and their own careers, depended on the outcome. And then there are the reports from several U.S. cities of police either not reporting crimes or downgrading them in their reports (classifying an attempt to kill someone an “assault”) to make the crime stats look better.
I think there is an iron rule of performance measurement at work: The more riding on the indicator, the more vulnerable it is to manipulation.
Indeed, the problem you identify is familiar enough that social scientists have a name for it: Campbell’s Law (https://en.m.wikipedia.org/wiki/Campbell%27s_law). Unfortunately, giving the problem a name is a lot easier than figuring out what to do about it…
Thanks for the cite. Depressing to learn Campbell coined the term in 1976 and the implications of his “law” have yet to sink in. And it remains on the statute books.
This is a really interesting piece. I think your point extends to other aspects of anti-corruption efforts before actual trials. In Brazil, the prosecutors and judges involved in the Operation Car Wash investigations have been criticized for excessive use of pre-trial detention, and approving too many arrests (See this previous post on the blog: https://globalanticorruptionblog.com/2016/03/10/guest-post-brazil-must-fight-corruption-but-preserve-the-rule-of-law/).
The public desire for swift and meaningful actions and outcomes may be detracting from a commitment to due process, to the potential detrimental effect of undermining the legitimacy of the entire system.
Yes, as others above me said, this post is a worthwhile reminder/corrective to a lot of discourse around anticorruption court cases. You make a nuanced point, and that’s something the blog world can always use more of. The sheer ease of conviction rate (or conviction/nonconviction in a particular case) makes it a dangerously easy proxy for judicial independence and effectiveness. The desire for data-driven accountability in many of today’s donors is understandable (if sometimes raising its own problems), but that makes it all the more important that the metrics one uses actually captures an accurate picture of the program or institution which one is examining.
I write to echo Katie’s point and commend your nuance here. Convictions can be an important measure, but they need to be understood within the context of the judicial system. I also think the same sentiments you voice apply well to when you consider the use of conviction rates as a measure to judge prosecutors. High conviction rates seem like a good thing: it suggests prosecutors are doing their jobs well and being thoughtful about which cases they bring in the first place. But if we are concerned about false confessions and running roughshod over procedure, suddenly that number reflects a problem rather than indicates having reached a solution.
I think the prosecutor point is an important one. We would certainly pick a measure other than conviction rate if we saw prosecutorial merit as primarily based on prudent use of discretion, for example. But, as Rick, Matthew, and Daniel point out, almost any signal metric is vulnerable to the tensions I am describing.
Aside Campbell’s law, in many developing countries like India (am speaking about the system and experience we have here in India) public keenly watch the conduct of the judges. If the public perception of the judge (based on the previous judgement) is good, it is presumed that the judge always follows the due process in awarding punishment.
You point to an important consideration: public perception. I think public pressure (in Romania, it has been called a “frenzy”) can be a significant driver of high conviction rates. I’d be curious to know whether, in India, positive public perception of a prior judgment is based on the equities of the case or the conviction of the defendant. If the former, then maybe the public is taking fairness and due process into account. If the latter, then I think Rathna’s concern is directly at issue and the presumption of due process may well be unwarranted.
I agree that we ought to qualitatively – and not just quantitatively – evaluate convictions. But the focus on quality justice could actually have collateral consequences for the assessment of a country’s anticorruption performance. If a high conviction rate means a low level of perceived corruption and a lower conviction rate means a higher level of perceived corruption, a country could improve its rule of law but decline on TI’s CPI scale. Although the CPI is just one indicator, it is an important one on which people place a lot of value – perhaps too much value! (for the aforementioned reason and many others detailed on this blog). I wonder how judicial reforms and efforts to hold people properly accountable can be effectively communicated to the public in order to keep the fight moving ahead on all fronts.
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Fascinating post! I wonder what obligation other domestic institutions have to prevent the focus on convictions from becoming too great. In particular, there might be a role for prosecutors who have lost cases on procedural grounds to avoid too greatly harming public perception of the judiciary. Prosecutors should rightly be disappointed to lose cases on procedural grounds in a particular instance, but on the whole prosecutors have a great stake in maintaining both a positive public perception of the judiciary, and the rule of law generally. In general, I think it is partly up to the repeat players in the judicial system to avoid undermining the judiciary even when a particular case comes out against them.
Prosecutors should certainly prioritize the long term interest as you have described. I would hope that other domestic actors, such as political candidates and the media, would also refrain from emphasizing conviction rates as low-hanging rule-of-law fruit.