The Fraud Examiner
Jordan Underhill, J.D.
Research Specialist, ACFE
In September 2009, a federal grand jury in Harrisburg, Pennsylvania, returned a 48-count indictment against two judges, Mark A. Ciavarella Jr. and Michael T. Conahan. The indictment included conspiracy to defraud the U.S. government, conspiracy to commit tax fraud, honest services fraud, racketeering, bribery, money laundering and extortion. The basis of these charges was an alleged kickback arrangement with private prison operators that netted the Luzerne County judges more than $2.6 million over at least seven years. Conahan colluded with private prison operators to shut down the county-run juvenile detention center in favor of privately run facilities and Ciavarella did much of the sentencing that filled the new detention centers’ beds. The private juvenile detention centers received state funding proportionate to the number of offenders that they housed; thus, they were incentivized to house as many individuals as feasible.
The judges deliberately funneled juvenile offenders (who were often advised by the judges that they did not need legal counsel) into the private juvenile detention centers, regardless of whether the charges merited the punishment. One 16-year-old was arrested for gesturing with her middle finger at a police officer responding to a custody dispute involving her parents and sister. Ciavarella sentenced her to six months in juvenile detention. A 14-year-old was sentenced to three months in juvenile detention for mocking a school principal on Myspace. At least 5,000 juveniles appeared before Ciavarella in the five years preceding the discovery of the scheme, many unrepresented and severely punished for minor infractions.
The FBI and IRS began investigating the judges after another Luzerne County judge, Anne H. Lokuta, accused Conahan of conspiring to remove her from the bench (she was, in fact, removed from the bench in November 2008). Lokuta aided federal investigators in discovering the kickback arrangement. After the full extent of the scheme was discovered, hundreds of juvenile adjudications were ordered overturned.
The so-called “kids-for-cash” scheme is an alarming reminder of the amount of damage that a dishonest judiciary can cause. The scheme not only defrauded taxpayers of millions of dollars, but also violated the constitutional rights and severely disrupted the lives of thousands of children. While the level of fraud committed by Ciavarella and Conahan is generally a rare occurrence, even a small measure of corruption in the judicial system is cause for great concern. The judiciary exercises great influence over individual lives and the notion that a judiciary is untainted by corruption is critical to society’s acceptance of a system of law as legitimate.
Types of Judicial Corruption
The two most common types of judicial corruption are political interference and bribery. Political interference is when politicians or staff from the legislative or executive branch meddle in judicial affairs or collude with judges in fraudulent schemes. Despite efforts in many countries to isolate the judiciary from politics, judges and other court personnel still face significant pressure to rule in favor of powerful political or business entities rather than in accordance with the law. A malleable judiciary can be used by those in power to provide protection for and lend legitimacy to fraudulent acts. Judges might also collude with politicians in a variety of different white-collar crimes, such as extortion, money laundering and embezzlement.
For example, a recently uncovered $1.5 billion fraud and money laundering scheme by the executive branch of the Maldives heavily involved the judiciary. Senior members of the judiciary allegedly received money and luxury apartments as part of the scheme. The judiciary was also allegedly used as a tool by the executive branch to intimidate opponents with politically motivated cases. The former president of the Maldives, Mohamed Nasheed, described the judiciary as “the most corrupt institution in the country.”
The second most common form of judicial corruption is bribery. Judges or other court officials might accept bribes to exercise their influence over a case in a way that benefits the briber. For example, a judge might delay or accelerate cases, accept or deny appeals, or simply rule in a particular way in exchange for kickbacks. In June 2016, New York State Supreme Court Judge John A. Michaelek pleaded guilty to receiving bribes and offering a false instrument for filing in a court case involving a political operative named G. Steven Pigeon (who was also indicted for nine charges including bribery, extortion and grand larceny). Prosecutors alleged that Michaelek reached an understanding with Pigeon that the judge would engage in “official misconduct which advanced Pigeon’s interests.” As part of the arrangement, Pigeon helped relatives of Michaelek find employment and provided Michaelek with tickets to hockey games and a political fundraiser.
Court officials also accept bribes to exercise their influence over cases. In 2011, Munir Patel, a court clerk in the U.K., became the first person to be imprisoned under the U.K.’s Bribery Act. Patel took bribes from motorists charged with traffic violations to help them avoid prosecution by using his privileged access to the court system. He actively solicited bribes by telling individuals that if they appeared in court, magistrates would be racially prejudiced against them.
Detecting and Preventing Judicial Corruption
When evaluating the integrity of a judicial system, there are two key aspects to consider: independence and public accountability. One of the difficulties jurisdictions face in tackling judicial corruption is striking a balance between the necessary independence of the judiciary and some degree of non-political oversight and accountability. This is generally accomplished by arranging the judicial system so that it can effectively police itself and ensuring that it operates in a transparent manner.