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.