When the System Breaks Down Completely

There are times when the judicial system completely fails. The appalling, ongoing story of former Luzerne County, Pennsylvania judges Mark Ciavarella and Michael Conahan seems to be one of them.

There are pending federal charges against Ciavarella and Conahan, but the underlying claims don’t seem to be seriously disputed. The feds charge that Conahan, as the presiding juvenile court judge, closed down the only juvenile custodial facility in the county. Juvenile offenders then had to be transported to privately owned and operated facilities in a nearby county. And those privately owned and operated facilities paid kickbacks to Ciavarella and Conahan. The more juveniles were sentenced to the private prison, the more money the judges made. At least $2.6 million, by some accounts.

It reached the point where Ciavarella’s detention sentencing rate was 25% of the juveniles appearing before him. One young girl was sentenced to 90 days in the private prison for posting a MySpace page that spoofed her assistant principal, her first “offense.” Apparently, this went on for some eight years, despite complaints from parents and others. Notably, these “jurists” failed to advise the juveniles – and their parents – of their right to counsel in as many as half of the cases. Not until the Juvenile Law Center out of Philadelphia got involved did the scandal really start to break. The corruption continued and festered through a mix of intimidation by Ciavarella and Conahan, indifference by the agencies that were supposed to monitor them, and the secrecy attendant to juvenile justice cases.

Now, of course, the finger-pointing and investigations are neck-deep and rising. Why didn’t the Judicial Conduct Board, which is charged with investigating and acting on complaints about judges, do something in response to the many complaints it received? Why didn’t the attorneys appearing in front of Ciavarella and Conahan do something? It doesn’t take a constitutional scholar to know juvenile offenders have a right to counsel. How did the scheme continue for eight merciless years?

Ciavarella and Conahan initially plead guilty, but the U.S. District Court Judge refused to approve the plea agreement because Ciavarella, in particular, refused to admit it was a “kids for cash” deal. Now, even through Ciavarella and Conahan were indicted back in early 2009, they still haven’t gone to trial and want the case moved to Delaware because of claimed adverse pretrial publicity.

And there are class action lawsuits, lawsuits over pensions for Ciavarella and Conahan, investigations of the Judicial Conduct Board, and possible investigations of the attorneys who represented the kids. Hundreds of convictions of the juveniles appearing before Ciavarella and Conahan have been overturned or expunged. And there are nasty fights about reimbursement to the parents who had to pay for the privilege of having their kids shipped to a private prison. Much of the clean-up is hampered by the confidentiality of records in children’s proceedings.

There’s an inter-branch commission looking into the whole wretched mess. But it will be years before the mess is finally resolved, and the damages to wrongfully-jailed kids can never be repaired.

There are some clear lessons for Alaska, where WC lives. First, the confidentiality of juvenile proceedings may exist for their protection, but it is also an invitation for abuse. On balance, the rules are worthwhile, but the confidentiality rules impose a higher duty of care and scruple on the attorneys involved and the other players in the system. The situation can too easily become a little closed club. It’s up to the prosecutors – yes, the DAs – and the defense attorneys – usually the Public Defenders – to make sure that doesn’t happen.

Second, it’s clear by now that private prisons are a corrupting, dubious idea. The concept has put a significant number of Alaskans in jail, including one-time power broker Bill Weimar, former state house member Tom Anderson, lobbyist Bill Bobrick and probably others, who haven’t been charged. Ironically, long-time private prison supporter, legislator and con Vic Kohring still supports private prisons, despite his complaints while serving time in one. I take it as an encouraging sign that even Mike Kelly seems to be backing away from the idea.

Any prison is an exercise by the government of its right to exercise force. Prisoners, after all, are held against their wills. The monopoly of force should be limited to the government, not sold the to the lowest bidder, whose interests and motives aren’t the same as the government’s. It’s a bad idea. Let it go.

UPDATE: 24 Aug 2010. According to the local PA newspaper, Conahan has plead to a single felony. Ciavarella is scheduled for trial in February 2011.