Tag Archives: judicial corruption

Judicial Elections Will Worsen, Not Alleviate, Mexico’s Judicial Corruption Problem

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Mexico recently passed sweeping judicial reforms. These reforms, which are to be phased in between 2025 and 2027, include various elements including a relaxation of the required qualifications for judicial service, shorter tenures, reduced salaries, and new oversight bodies. But by far the most consequential change is the introduction of judicial elections, which will make Mexico the first country to directly elect almost all its judges. (The elections will not be fully open, however, as the slate of candidates for each judicial position will be determined by evaluation committees, subject to veto of particular candidates by the executive, the legislature, and the judiciary.) Although proponents advanced many arguments in favor of this “high-stakes experiment,” anticorruption featured prominently. Indeed, the introduction of judicial elections was championed by former President López Obrador and his Morena party as a way to rid the Mexican judiciary of corruption by making judges responsive to the people, rather than big business or organized crime.

Judicial corruption is indeed a serious problem in Mexico. Bribery is commonplace in local and state courts, and also occurs, though not as frequently, in federal courts. Reportedly, large tax cases “get decided with a phone call or bag of money,” while the outcomes of criminal cases are often manipulated through “a combination of both fear and bribery.” But introducing judicial elections is unlikely to ”cleanse the judicial system of corruption”, and may actually make the corruption problem worse: Continue reading →

Personnel is Policy: Why Argentina’s Latest Supreme Court Nominee Threatens Anticorruption Efforts

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Last November, Javier Milei, a former economics professor and political outsider, won the presidency of Argentina, riding a wave of popular outrage against the political elite. The roots of that outrage are not hard to understand: Argentina is in the midst of a historic economic crisis, with out-of-control inflation and skyrocketing poverty. And many believe, with some justification, that Argentina’s deep-rooted political corruption is partly to blame. Argentina has been rocked by a series of corruption scandals, several of which have been documented on this blog (see here, here, and here). In campaigning on a platform of radical economic reform, Milei promised to take on the “parasites” and “thieves” who comprise the corrupt elite. After Milei’s victory, he immediately faced a problem in advancing his policy agenda: his newly-created party won just 44 out of 329 seats in Congress. That left Milei with two options: He could either take the traditional route of trying to form alliances with other parties to get some form of compromise reform package through Congress, or he could push the constitutional envelope by trying to enact aggressive reforms through executive fiat. Milei has chosen the latter path. This is not surprising: He was always going to face an uphill battle getting Congress onboard with his aggressive reforms, as there are simply too many entrenched interests, and Milei himself is an exceptionally polarizing figure. But pushing through radical reforms without congressional consent will require approval of the Supreme Court, an institution deeply embedded in the political caste.

In seeking to secure Supreme Court approval of his attempt to radically restructure the economy by executive fiat, Milei appears poised to make Argentina’s corruption problem even worse. Many observers believe that one of Argentina’s current Justices—a savvy political power player named Ricardo Lorenzetti—offered Milei a deal: If Milei would appoint Lorenzetti’s allies to fill the two vacant seats on the Court—which would give Lorenzetti’s faction a majority—Lorenzetti would use his influence to ensure favorable judicial treatment of Milei’s aggressive reforms in the justice system. One of the two nominees that Milei has put forward, a Lorenzetti ally named Ariel Lijo, is one of the Argentine judiciary’s most notoriously corrupt figures. One can see why Milei was tempted to stack the Court with Justices who would reliably side with him, but this is a Faustian bargain that poses a grave and long-term danger to anticorruption efforts in Argentina.

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Judicial Integrity and Judicial Independence: A Clash of Values?

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This past spring, the investigative journalism site ProPublica broke a major story about ethically questionable—and previously undisclosed—relationships between ultra-wealthy (and politically active) individuals and Supreme Court justices. The reports focused in particular on Justice Thomas and Justice Alito, two of the Court’s most conservative members. According to ProPublica’s reports, in 2008 Justice Alito accepted a luxury fishing trip—which involved flights on a private jet and a stay at a lodge that charges more than $1,000 a day—from billionaire Paul Singer, whose hedge fund often had cases before the Court, including a 2014 case in which Justice Alito did not recuse himself and voted in the hedge fund’s favor. With respect to Justice Thomas, ProPublica revealed that for years—starting shortly after he joined the Court—Justice Thomas has received substantial benefits from billionaire “friends,” including private plane flights, luxury vacations, VIP passes to sporting events, and private school tuition for his nephew (whom Justice Thomas has raised like a son). Most of these gifts came from right-wing billionaire Harlan Crow, who also purchased from Justice Thomas (in a previously undisclosed deal) the house where Justice Thomas’s mother and other members of his family lived, but Justice Thomas received substantial benefits from other billionaires as well.

Many critics denounced these gifts and other transactions as evidence of blatant corruption (see here, here, here, and here). Some even drew a connection  between the Court’s jurisprudence in corruption cases—which has embraced an ever-more-restrictive definition of corruption, often limiting it to quid pro quo deals—and the Justices’ own proclivity for accepting gifts, perks, and other benefits from people with a strong ideological (and sometimes personal) stake in the Court’s decisions (see here and here). Justice Thomas and Justice Alito vigorously defended their conduct (see here and here), though they did ultimately update their financial disclosure forms for 2022 (though not earlier years) to show additional benefits they had received, and to proffer some explanations. And the Justices’ supporters have accused the accusers of using these alleged ethical issues as a pretext for attacking Supreme Court Justices whom they dislike on ideological grounds (and overlooking similar ethical lapses by Justices whose ideology they prefer).

I have my own fairly strong views about this specific controversy, but I don’t want to go into that right now. I’m not sure I have anything to add—and I’m acutely aware that, whether or not one buys the charges of pretext and selective outrage—it is very difficult to talk about this issue without being influenced by (or perceived as influenced by) one’s views on Justice Thomas’s and Justice Alito’s jurisprudence and ideology. But even putting the specifics mostly to one side, I do think the fallout from ProPublica’s reporting implicates a more general issue—one that is very difficult, and that is relevant not only in the United States but in many other countries as well: To what extent can or should the other branches of government (the executive, the legislature, or—in the countries where such entities exist—an independent anticorruption commission) impose and enforce ethical rules on the highest court (the Supreme and/or Constitutional Court)? Continue reading →

Explaining (the Lack of) Corruption in the US Federal Judiciary

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The United States judiciary has a history with corruption. Corruption pervaded every aspect of pre-revolution America, from the customs enforcers up to the colonial judges. Corruption in the United States only worsened a century after the Revolution, with politicians during the late 19th century taking “spectacularly handsome bribes from corporations and demand[ing] kickbacks as the helping hand they extended often came with an open palm.” Early twentieth century America, in many ways, had systemic corruption similar to that seen in modern developing countries. Even as recently as the early 2000s, state judges have come under fire for not only individual corruption, but pervasive, systemic corruption rings. Outright bribery is only one problem: state judges have also been known to engage in misappropriation of public resources, nepotism in appointing counsel, and “skimming off the top.”

Yet in spite of the environment around them, the federal judiciary—more or less since day one—has been mostly corruption-free. As Professor Mathew Stephenson observed, even during the quite corrupt nineteenth century, “at least at the federal level, the institutions of justice—courts and prosecutors—seemed relatively clean and basically functional.” If anything, the federal judiciary, and federal prosecutors, have served as a check on corruption at the state and local level, “particularly in the latter half of the twentieth century.” This pattern continues into the present day: Although the federal judiciary comprises 5% of all judges in the United States, they only account for 0.2% of known cases of judicial bribery.

This raises a question: How did the federal judiciary remain relatively free from corruption, especially during the first century of the country’s existence, when corruption pervaded so many aspects of American society, including state and local courts? There are two broad categories of explanation: historical and structural. These are not mutually exclusive alternatives; rather, the historical and structural explanations complement one another.

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Reforming the Indian Judiciary from the Bottom Up

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“Corruption is as old as society. Corruption has become a way of life, [an] acceptable way of life. And judges don’t drop from heaven.” 

This was former Chief Justice Ranjan Gogoi’s reply when a journalist asked him about corruption in India’s courts. Such a statement may seem extraordinary coming from a former Chief Justice, but he is not alone in holding this belief. Two other former Chief Justices have acknowledged the pervasive corruption problem facing India’s judiciary, particularly in the lower courts where most Indians interact with the judicial system. And this perception is backed up by quantitative evidence: according to Transparency International, 32% of Indians who used the courts in 2020 had paid a bribe that year, while 38% resorted to personal connections to navigate the system. 

Much of the public outrage over India’s judicial corruption has understandably been directed toward individual corrupt judges (see here, here, and here), but the problem reflects deeper systemic issues—perhaps most importantly, the massive case backlog. There are currently forty million pending court cases in the country’s District Courts and Subordinate Courts, and every year that number grows by millions more. By some estimates, it would take 400 years for the judiciary to clear the backlog at its current rate (and that’s assuming no new cases are filed in the meantime). It takes an average of 35 months to resolve a legal issue in India, the longest in the world according to one report. And many cases take much longer: over half a million cases have been pending for over twenty years.

This case backlog, and the glacial pace of Indian justice, is not only a crisis for the administration of justice but also a breeding ground for corruption. Given the extraordinary delays, those litigants who can afford to do so have strong incentives to pay bribes or use connections to get a faster verdict. (Most bribes are paid to court officials or middlemen, including lawyers, rather than directly to judges.) And, without excusing those judges who violate their oaths of office, it’s not that surprising that overworked, underpaid judges dealing with crushing caseloads would be tempted to accept these under-the-table payments. In essence, then, the extreme case backlog in the lower courts has created something of a two-track system, one for those that can pay the price to skip the line, and one for everyone else.

As the number of pending cases continues to balloon, this problem is only going to get worse. While punishing those judges (and their staff) who are caught requesting or receiving bribes—and those litigants and facilitators who offer those bribes—may be morally and legally justified, cracking down on individual wrongdoers is not enough to address the structural roots of India’s judicial corruption problem. 

What can be done? Though there are no easy solutions, India needs to adopt reforms to increase both the quantity and the quality of its lower court judges:

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Tackling Corruption While Preserving Judicial Independence: Lessons from India’s Supreme Court 

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In India, Justices of the Supreme Court and judges of India’s 25 regional High Courts are appointed through a process known as the Collegium System. Although the Constitution vests the appointment power in the President of India, the President may only appoint a Supreme Court or High Court nominee recommended by a body called the Collegium, which consists of the Chief Justice, the four other senior-most Supreme Court Justices, and, in the case of High Court nominees, the senior-most judge on the High Court of the prospective appointee.

This system, which developed over the 1980s and 1990s as part of a decades-long tug-of-war between the branches of government, is controversial. Some critics have argued that the Collegium, which operates largely as a black box, leads to the selection of judges based on cronyism and quid pro quos, regardless of a nominee’s merit or scruples. Notably, critics contend, the Collegium System allows for the appointment of corrupt judges because the secrecy of the Collegium’s deliberations prevents accusations of impropriety against those nominees from becoming public. In buttressing this claim, critics point to instances of High Court judges who have been credibly accused of corruption, including one who was formally charged at the end of last year for taking a bribe in exchange for a favorable verdict. Critics also contend that the Collegium System exacerbates judicial corruption through another, more indirect channel: The Collegium’s slow pace has left hundreds of High Court seats vacant, which exacerbates the Indian court system’s extreme case backlog. That backlog, in turn, encourages petty bribery, as many frustrated litigants would prefer to bribe a judge or court official to jump the line or get a case dismissed rather than wait years for a final resolution. Even former Chief Justice V.N. Khare acknowledged that bribes for bail are rampant in the lower courts given the delays litigants may face down the line.

In response to these concerns, the Indian Parliament, led by Prime Minister Narendra Modi, voted overwhelmingly in 2014 to amend the Indian Constitution to replace the Collegium with a National Judicial Appointments Commission (NJAC) composed of representatives from all three branches. But before the law could go into effect, the Supreme Court ruled it an unconstitutional threat to judicial independence. While calls for reform temporarily abated, just last December a member of Modi’s cabinet expressed support for reintroducing the NJAC amendment to replace the Collegium System.

Any such attempt, however, would be misguided. Anti-Collegium reforms like the NJAC would undermine India’s hard-won judicial independence, and the corruption problem these reforms would purport to solve has been greatly exaggerated.

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The Weaponization of Anticorruption Law: Why Italy’s Legge Severino Must Be Reformed

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Back in 2012, the Italian legislature passed an anticorruption statute known as the Legge Severino. This law institutes a six year prohibition on holding elected office for politicians with felony convictions carrying sentences over two years. If convicted on an “abuse of power” charge, the prohibition on officeholding is extended to eight years. The law, which was enacted in part to effectuate Article Six of the United Nation’s Convention Against Corruption, was hailed at the time as a positive step on the road to a less corrupt Italy. (Famously, this provision initially barred Silvio Berlusconi from office after he was sentenced to four years in prison for tax evasion.) The logic behind passing laws of this sort (which also exist elsewhere) is fairly clear, especially in a country like Italy which has struggled with endemic political corruption: intuitively, those who have abused the public trust by committing serious criminal offenses should not be allowed to hold elected office.

But a recent case in Calabria, involving Domenico “Mimmo” Lucano, the former mayor of the town of Riace, highlights problems with the law—in particular, how the law can be weaponized to take down politicians who are fighting corruption and organized crime. Continue reading →

Guest Post: Adverse Selection – Civil Society Support for Honest Judges and Prosecutors in Guatemala, Honduras, and El Salvador

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Corruption in Guatemala, Honduras, and El Salvador continues unabated. Proof can be found at the U.S.-Mexican border. Guatemalans, Hondurans, and Salvadorians remain willing to risk the treacherous journey to the border and the uncertainties of a U.S. asylum application to escape corruption’s daily hardships.

Critical to taming that corruption, and the flow of refugees it produces, are honest, courageous prosecutors and judges willing to pursue corruption cases no matter who is implicated. In all three countries, a new generation of professionals is coming forward to take on this challenge, but corrupt elites are at work blocking their appointment.  Fortunately, civil society organizations across the region are engaged in countering these efforts, pushing their governments and citizens to see that honourable men and women take the bench or join the public prosecutor’s office and that those who aren’t don’t.

In this guest post, Kristen Sample reviews what civil society in the three nations has accomplished, what more it can do, and how the international community can help.  Now Governance Director at the National Democratic Institute, Kristen has worked on political integrity and civil society strengthening programs in Guatemala, Peru, and Bolivia for more than 15 years. The research behind the post was conducted for Open Society Foundations and the Washington Office on Latin America with support from the National Democratic Institute and the Due Process of Law Foundation.

On January 26, Mynor Moto was elected by the Guatemalan Congress to fill a vacancy on the Constitutional Court despite being under investigation by an elite unit in the public prosecutor’s office.  Civil society was emphatic in its criticism of Moto and the selection process. The new U.S. Administration weighed in as well, asserting that Moto’s presence on the court “threatens the rule of law…and debilitates the integrity of the court.” 

Moto’s swearing in was blocked and is now on hold indefinitely thanks to a February 1 arrest warrant prosecutors issued. He has chosen to flee rather than contest the charges.

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New Podcast, Featuring Olesea Stamate

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A new episode of KickBack: The Global Anticorruption Podcast is now available. This episode is something of a milestone for us, as it is the fiftieth episode we have put out since the podcast premiered over two years ago. I’d therefore like to take this opportunity to thank my collaborators at the Interdisciplinary Corruption Research Network (ICRN), all of the wonderful guests who have taken time out of their busy schedules to appear on the podcast, and, perhaps most of all, you all of our listeners. I hope that the podcast has been helpful in providing helpful, stimulating, and sometimes provocative content concerning the fight against corruption around the world, and we look forward to the next fifty episodes. For this milestone episode, I’m delighted to feature my recent interview with Olesea Stamate, who is an advisor to President Maia Sandu of Moldova, and who previously served as Moldova’s Minister of Justice when Ms. Sandu was Prime Minister of the country in 2019. Ms. Stamate discusses her background in civil society and how it has informed her work in government service, and we then turn to discuss the current political situation in Moldova and the challenges of corruption and state capture facing the country. Ms. Stamate emphasizes the pervasive corruption in the institutions of justice–particularly the courts and prosecution service–and argues that these institutions cannot be expected to reform from within. Rather, she advocates an external review and vetting process to weed out corrupt actors and create a more honest and capable justice sector. Ms. Stamate also discusses reforms to Moldova’s key anticorruption agencies, the constructive role that the international community can play in supporting anticorruption reforms, and what other sorts of reforms are necessary to address the challenges facing the country. You can also find both this episode and an archive of prior episodes at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

New Podcast Episode, Featuring Claudia Escobar

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A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview Claudia Escobar, a former Magistrate Judge on the Court of Appeals in Guatemala. Judge Escobar resigned her position in 2014 after exposing corruption in the judicial selection process. Judge Escobar secretly recorded a meeting with representatives of the then-ruling party, who indicated that she would be promoted if she ruled in favor of the government in an important upcoming case. Judge Escobar subsequently released the recordings, and fled Guatemala for fear of reprisals. Since then, she has been working in the United States as a researcher, consultant, and advocate, with a focus on fighting judicial corruption in Guatemala and elsewhere in the Americas.

Our interview begins with a discussion of how Guatemala’s history, including more than 36 years of civil war, has created a culture of impunity and insecurity, and how the challenges this legacy poses to the creation of a genuinely impartial and honest judicial system. Judge Escobar describes many of the problems with Guatemala’s current judicial appointment system, and the associated corruption risks. Our conversation then turned to the impact and legacy of the UN-backed anti-impunity commission, known by its Spanish acronym CICIG. Judge Escobar offers her perspective on the fight against corruption under former President Jimmy Morales and new President Alejandro Giammattei, as well as a more general discussion of the politics of anticorruption in Guatemala and the prospects for future progress on this issue.

You can find this episode here. You can also find both this episode and an archive of prior episodes at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.