Author Archives: Richard Messick

Ridding the Courts of Corrupt Judges: Ghana Takes the First Step

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Last week Ghanaians awoke to depressing news.  A team of investigative reporters revealed they had 500 plus hours of video tapes showing High Court judges and lower court magistrates accepting payoffs to acquit defendants in cases ranging from robbery and murder to bribery itself.  (Click here, here, and here for news accounts.) For Ghana, this is bad news, very bad news: dangerous criminals remain at large; some innocent individuals may have been jailed because they didn’t pay off a judge; and whatever confidence citizens may have had in the courts has been shattered.

But the initial reports contain some very good news as well.  The government is taking forceful and responsible action to cleanse a critical state institution of corruption. In accordance with article 146 of the Ghanaian Constitution, Chief Justice Georgina Theodora Wood has established a committee to examine the allegations against each judge and advise Ghanaian President Mahama whether he should remove any of them from office per the constitutional test of “stated misbehavior.”  At the same time, the Attorney General has announced his intention to prosecute judges, magistrates, and their accomplices for bribery and related crimes.

The scandal is similar in many ways to the one that engulfed Chicago’s courts in the 1980s, recounted in a Foreign Policy article flagged here last week.  As in Ghana, the Chicago cases arose from secret tape recordings showing judges fixing cases for money.  Like the Chicago judges caught on tape, some of those implicated in the Ghanaian scandal claim the taping violated the sanctity of the judicial chambers and evidence from them should therefore not be heard in any legal proceeding.  And, as in Chicago, many in Ghana are urging that those who bribed their way out of a criminal case be re-tried before an honest judge.

As the Ghanaian scandal unfolds difference between it and the one in Chicago will emerge, but some issues will be the same, and it may help Ghanaian authorities and citizens to know about Chicago’s experience. Probably most useful is the reasoning American courts relied upon to overcome the defense of double jeopardy when prosecutors sought to retry those defendant who had paid a judge to acquit them. Continue reading →

Judges on the Take: How the FBI took on Chicago’s Crooked Courts

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FBI Special Agent Ken Misner was in Chicago on a critical mission: to get arrested for drunk driving. Yet each time the police pulled him over, he escaped with a warning – no matter how erratically he had driven, and no matter how well he had faked his drunkenness. It was 1980, and the Chicago police simply didn’t arrest middle-aged white guys for traffic offenses. When his act failed yet again, he finally decided it was time to resort to desperate measures. He jumped from his car, leaped onto the hood of the police cruiser, and started screaming obscenities. The officer promptly yanked him down and began writing a summons. At last, thought Misner, mission accomplished. But as he read what the cop had written, he saw he had caught another “break.” The charge was disorderly conduct, a minor offense that wouldn’t get him anywhere near traffic court. Misner never succeeded in becoming a traffic court defendant, but fellow FBI agent Woody Enderson did, realizing an important milestone in the federal undercover investigation into corruption in Chicago’s court system known as “Operation Greylord.”

Click here to read the rest of this article from Foreign Policy magazine.  It appears in the series, “Curbing Corruption: Ideas that Work,” DemLab Case Studies exploring successful approaches to fighting corruption.  Democracy Lab is Foreign Policy’s home for coverage of transitions to democracy, published in partnership with the Legatum Institute.

Reducing Court Delays: A Critical Element in the Fight Against Corruption

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One consistent finding from the research on anticorruption policy is that those tempted to commit an act of corruption can be deterred from doing so if they are afraid they will be caught and punished.  That is the good news.  Deterrence works. But as I noted in an earlier post, deterrence requires a court system that can resolve cases within a reasonable time.  If those contemplating whether to take or pay a bribe or participate in some other form of corruption know that, if caught, they can delay the case for years if not decades, the fear of punishment will be lessened if not eliminated altogether. An effective national anticorruption policy thus requires ensuring cases are resolved without inordinate delay.

Court delay is a long-standing problem in many nations, and courts in any number of jurisdictions have implemented programs to reduce delays. Few, however, have succeeded.  In a new policy brief for the U4 Anti-Corruption Resource Centre I argue that one reason why so many delay reduction programs have failed is that they have ignored how the formal and informal rules governing case disposition shape the incentives of judges, lawyers, court staff, and litigants.  I urge that a successful delay reduction strategy must start with such a “political economy” analysis and that reforms be built around what that analysis reveals. Comments welcome.

How to Corrupt an Anticorruption Commission: The Case of Nepal

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Narayan Manandhar, an international consultant on anticorruption, contributes the following guest post:

Nepalese lawmakers recently promulgated a draft constitution that envisages new roles and responsibilities for its anticorruption agency, the Commission for the Investigation of Abuse of Authority.  The proposed changes to the commission’s mandate shows how, if policymakers don’t have the guts to abolish an anticorruption agency, they can defang it by eroding its power and responsibilities.  This recent effort is the latest attempt by Nepal’s elite to ensure the commission cannot do what it is supposed to do: fight corruption.    Continue reading →

Announcement: Fixing the Fight Against Corruption, Panel Discussion September 17

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As part of its ‘Curbing Corruption’ series, the Legatum Institute, together with Democracy Lab, an on-line partnership between the Institute and Foreign Policy magazine, will host a panel September 17 at the Institute’s London office to discuss the major challenges facing the current global anti–corruption effort and what might be done—from a local perspective to wider international solutions.  Panelists are Alina Mungiu-Pippidi, Professor of Democracy Studies, Hertie School of Governance; Nils Taxell, Senior Advisor, U4 Anti-Corruption Resource Centre; and GAB Senior Contributor Richard Messick.  Christian Caryl, Managing Editor, Democracy Lab and Senior Fellow, Legatum Institute will moderate.

The panel will run from 18:00 to 19:15, London time, and will be live streamed.  The Legatum Institute is located at 11 Charles Street, London, W1J 5DW.  Details on attending in person or live streaming are here.

Can the United State Avoid a Hypocritical Anticorruption Policy?

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Last week Matthew wrote how hypocritical Britain appeared when at virtually the same time Prime Minister David Cameron was telling leaders in Southeast Asia to take more vigorous action against corruption, his government was asking U.K. companies if Britain’s anti-bribery law was too harsh.  As Matthew explained, the contradiction was likely more apparent than real, probably the result of poor timing rather than any real difference between the government’s policy towards bribery by British and non-British firms.  Nonetheless, even the possibility of differing standards offered much ammunition to critics of the Cameron government’s aggressive international anticorruption campaign.

Like Prime Minister Cameron, U.S. President Barack Obama has been vocal in urging other governments to tackle corruption, lecturing the African Union during his recent visit on the evils of rampant bribery and telling its members to emulate the American example with its “strong laws” against bribery that “we actually enforce.” And like Britain, sooner or later the United States will face the charge that its international anticorruption rhetoric is hypocritical.  The difference will be that whereas the charges laid against the British government arose from a public relations faux pas, in the American case the charges will stem from a genuine contradiction, that between its human rights policy and its commitment to the U.N. Convention Against Corruption.

How will it happen? Continue reading →

Why is Corruption so Hard to Define?

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Last week Matthew wrote that too much time and energy has been wasted trying to define corruption.  While I agree, I don’t think sufficient attention has been paid to why so many spend so much time arguing about what “corruption” means.  Matthew pointed to the reason in one of the first posts on this blog but stopped just short of the explanation.   Let me take the last, short step in the hopes it will end the interminable, unproductive wrangling over definitions.

In the earlier post Matthew wrote that corruption “implies a deviation from some ideal state” and hence “involves an implicit or explicit selection of a baseline standard of ‘correct’ behavior.”  He went on to explain that in the corruption literature the three most common baselines are the law, public opinion, and public interest.   “Corruption” can then be conduct that deviates from what the law provides, that diverges from what the public thinks is wrongful, or that is at odds with the public interest.  The definition of “corruption” depends upon the baseline; each baseline, as Matthew explained, leads to a different approach to defining “corruption.”

With one slight emendation, Matthew is correct.  But I think making that correction is important for taking the analysis the next step and, I hope, ending, or at least reducing, fruitless debate over definitions. Continue reading →

Rooting Corruption out of the Courts: The Use of Undercover Sting Operations

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No anticorruption policy can succeed if the courts themselves are corrupt.  If those tempted to offer or accept a bribe or otherwise rob the public can buy their way out of trouble, laws against corruption are meaningless.  Ensuring judges decide cases honestly is thus the keystone of any broader effort to control corruption.  The best defense against judicial corruption is, as a recent U4 paper stressed, a rigorous process for selecting judges, one which screens out those willing to sell their integrity for a price.

Character tests are not foolproof, however, and so even with the most thorough screening a few crooked apples can slip through.  When they do, rooting them out is especially difficult, for proving a judge has taken a bribe to fix a case is extremely difficult.  A judge may acquit the defendant for any number of reasons, and even if the reason given seems obviously wrong, that alone is not enough to establish corruption.   Moreover, bribery is a consensual crime.  Neither the judge taking a bribe, nor the defendant paying it, nor a go-between facilitating the transaction will have any reason to reveal the crime and every reason to keep it secret.

Purging the judiciary of corrupt judges will thus almost always require an undercover operation, one where law enforcement personnel or informants pretend to be dishonest to elicit incriminating statements or conduct from the investigation’s target.  Such “stings” are often controversial and are fraught with risks, those targeting judges even more so.  Yet given the great harm judicial corruption causes, the risks will often be worth taking.  When they are, designers of a sting may find it useful to review how U.S. authorities minimize the risks of undercover operations in the judiciary. Continue reading →

Borrowing Integrity in the United States: Federal Prosecution of State and Local Corruption

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In recent posts I described how developing nations bedeviled by endemic corruption have “borrowed” integrity by contracting out the inspection of imports, the management of public finances, and even the investigation of grand corruption cases to private firms or international agencies.  But it is not just poorer countries where corruption is so ingrained that government must turn to outsiders for help.  The leaders of Mississippi, New York, Louisiana, the City of Chicago, and other state, county, and municipal governments have done so as well.  History and politics have created conditions in these jurisdictions where local officials have been unable to effectively control bribery, nepotism, bid rigging, and other corruption crimes.  Either the police won’t investigate or the prosecutors won’t charge or the courts won’t convict.

Beginning in the nineteen seventies, governors, mayors, and other local officials have either sought, or acquiesced in, help from the federal government.  Agents of the Federal Bureau of Investigation examine allegations of corruption by state and local public servants; the United States Attorney for the region, a Presidential appointee, prosecutes the cases developed by the FBI, and the cases are tried in a federal district court presided over by a judge named by a President.  Although the U.S. Attorney and the judge may have ties to the area where the case has arisen, neither they nor the FBI agents, nor the assistant prosecutors that actually handle the cases, are beholden to local interests.  Not only are they free to pursue cases whatever the local political implications, they often win kudos from their superiors in Washington for nailing a corrupt local official.

Federalizing the investigation and prosecution of state and local corruption has not been without its critics, however, though the criticism has died away for a quintessential American reason. Continue reading →

Sharing Responsibility for Managing the Public Fisc: Another Way to Borrow Integrity

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In two recent posts I wrote about innovative ways to “borrow” or “outsource” integrity.  In Guatemala, the government has delegated responsibility for investigating corruption allegations implicating senior political and military leaders to an independent agency accountable to the United Nations Secretary General.  In a number of countries, governments have hired private firms to oversee the assessment of import duties and fees.  Today’s post describes a third variation on the borrowing or outsourcing of integrity: sharing authority over a government’s spending and revenue collection decisions with an international adviser.

This was the core of the Governance and Economic Management Assistance Program, an initiative the international community “persuaded” Liberia’s government to adopt in September 2005.  And the results were immediate and dramatic.  Revenue collection jumped by 75 percent and travel expenses fell by 65 percent in the program’s first year.  Although the program was a response to the rampant corruption plaguing Liberia in the aftermath of a brutal and long-running civil war, it could be easily adopted by any nation committed to dislodging deeply entrenched corruption in a ministry, agency or state-owned enterprise.

The way it worked in Liberia was like this: Continue reading →