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