Are Judges Really Immune when Taking Kickbacks?

Earlier in the year I posted a story about a particularly revolting episode of judicial corruption in Eastern Pennsylvania. I wrote:

Eastern Pennsylvania has a terrible reputation for judicial corruption and venality — the stories one hears from practitioners and others around Philadelphia are truly awful, with bags full of money and all the rest. But a story in the NY Times today breaks new, and more nauseating, ground. Two judges in the Wilkes-Barre area have pleaded guilty to taking kickbacks — $2.6 million worth — from local juvenile detention centers for sentencing young offenders to time in the facility (the facilities were reimbursed by the state on a per-prisoner basis, so the more kids they had, the more money they earned). So dozens and dozens of kids who would ordinarily have expected to get a slap on the wrist — for writing nasty things about their high school principals on Facebook, for starting fights in the playground, that sort of thing — received sentences of several months in the detention facility instead, all, it turns out, to line the pockets of the judges.

Maybe it’s just because I am a parent with two kids of my own, or maybe I’m just a soft-hearted romantic, but to do this to young people for the sake of a few bucks (or 2.6 million bucks, or 260 million bucks) is — well, you pick your own adjective. One has to assume that lives were ruined because of this — 3 months in juvy for a high school kid who doesn’t belong there is a terrible, terrible thing – and I hope these two (for the record, and for the benefit of Internet readers in the 22nd century, and to insure that their names do not disappear from the List of the Wicked, the judges in question were Judge Mark A. Ciavarella Jr., and Judge Michael T. Conahan) get the punishment they so truly deserve. 2009, I hope, won’t give us anything more shameful than this.

Now comes news that the judges are immune from suit arising from any and all of their “judicial acts” in connection with the sentencing of these juveniles. [Stories are here and here; the opinion in the case conferring absolute immunity on the defendant judges (Middle District of PA, Judge Caputo) is here). Judge Caputo’s opinion conferring the immunity is thoughtful and well-reasoned; as he puts it:

“Egregious conduct is immune to assure that honest mistakes will be immune. Subjecting judges to a determination of the existence of good faith on a case by case basis is not desirable. It would create chaos and undermine judicial independence. It would eliminate the finality of judgments and destroy public confidence in the judiciary. Every decision by every judge would be subject to attack (in court) on the basis that it was not an honest mistake. Even though almost all erroneous decisions – and history proves this – are honest mistakes, subjecting each decision to judicial scrutiny as to whether it was motivated by good faith, would render the justice system unstable, ineffective and would destroy public confidence in the judiciary. It would turn the justice system upside-down. Imagine the continuum of litigation over decisions to determine whether they were rendered in good faith. Even the decisions that determined they had been rendered in good faith would be subject to attack themselves, and so on. The notion of the stability provided by the finality of judgments would perish. Moreover, it is not as though judicial decisions are not scrutinized. Mistakes are dealt with on appeal, and egregious behavior by judges is subject to prosecution under the criminal law and removal from office. It is readily apparent that the doctrine of judicial immunity, as it has developed and exists today, creates an environment which permits judges to be independent of the other branches of government, the will of the majority, and designing persons; it provides stability through finality; and, it has the confidence of the public. THE FEDERALIST No. 78 (Alexander Hamilton).

Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit.”

[The opinion goes on to reject immunity for the second judge involved in the action, because his liability is premised on “non-judicial acts” — “taking official actions to remove funding from the Luzerne County budget
from the Luzerne County facility, and [exerting] influence to facilitate the construction, expansion, and lease of the [facility from which he was receiving kickbacks.”]

I’m no expert on the law of immunity, but it’s surely a troubling result, and I’d be a little surprised if it survives on appeal. It is very difficult for me to believe that a judge who agrees, say, to sentence a defendant to incarceration without parole because he’s sleeping with the defendant’s girlfriend, or who takes a bag full of money to dismiss criminal charges against a defendant, is free from all liability (though that is the gist of Judge Caputo’s opinion). But as I said, I could be wrong about that — very troubling, indeed.

[Thanks to Jeffrey Davidson for the links]