Sunday, March 8, 2009

The American System of JustUS: A Judges "Cash for Kids" Scandal / Kickbacks from Detention Facility

Jailed for a MySpace parody, the student who exposed America's cash for kids scandal

Judges deny kickbacks for imprisoning youths

Ed Pilkington in Wilkes-Barre, Pennsylvania
The Guardian, Saturday 7 March 2009

Hillary Transue was 14 when she carried out her prank. She built a hoax MySpace page in which she posed as the vice-principal of her school, poking fun at her strictness. At the bottom of the page she added a disclaimer just to make sure everyone knew it was a joke. "When you find this I hope you have a sense of humour," she wrote.
Humour is not in abundance, it seems, in Luzerne County, northern Pennsylvania. In January 2007 Transue was charged with harassment. She was called before the juvenile court in Wilkes-Barre, an old coal town about 20 miles from her home.
Less than a minute into the hearing the gavel came down. "Adjudicated delinquent!" the judge proclaimed, and sentenced her to three months in a juvenile detention centre. Hillary, who hadn't even presented her side of the story, was handcuffed and led away. But her mother, Laurene, protested to the local law centre, setting in train a process that would uncover one of the most egregious violations of children's rights in US legal history.
Last month the judge involved, Mark Ciavarella, and the presiding judge of the juvenile court, Michael Conahan, pleaded guilty to having accepted $2.6m (£1.8m) from the co-owner and builder of a private detention centre where children aged from 10 to 17 were locked up.
The cases of up to 2,000 children put into custody by Ciavarella over the past seven years - including that of Transue - are now being reviewed in a billowing scandal dubbed "kids for cash". The alleged racket has raised questions about the cosy ties between the courts and private contractors, and about the harsh treatment meted out to adolescents.
Alerted by Laurene Transue, the Juvenile Law Centre in Wilkes-Barre began to uncover scores of cases in which teenagers had been summarily sent to custody by Ciavarella, dating as far back as 1999. One child was detained for stealing a $4 jar of nutmeg, another for throwing a sandal at her mother, a third aged 14 was held for six months for slapping a friend at school.
Half of all the children who came before Ciavarella had no legal representation, despite it being a right under state law. The Juvenile Law Centre has issued a class action against the two judges and other implicated parties in which it seeks compensation for more than 80 children who it claims were victims of injustice.
The prosecution charge sheet alleges that from about June 2000 to January 2007 Ciavarella entered into an "understanding" with Conahan to concoct a scheme to enrich themselves. The two judges conspired to strip the local state detention centre of funding, diverting the money to a private company called PA Child Care which it helped to build a new facility in the area.
In January 2002, prosecutors allege, Conahan signed a "placement guarantee agreement" with the firm to send teenagers into their custody. Enough children would be detained to ensure the firm received more than $1m a year in public money. In late 2004 a long-term deal was secured with PACC worth about $58m.
In return, the prosecutors allege, the judges received at least $2.6m in kickbacks. They bought a condominium in Florida with the proceeds. PACC's then owner, Bob Powell, who has not been charged, used to moor his yacht at a nearby marina. He called the boat "Reel Justice".
For a man who has agreed to serve more than seven years in jail as part of a plea bargain, Ciavarella comes across as remarkably unflustered. He invited the Guardian into his Wilkes-Barre home where he remains free on bail pending sentencing.
Though he pleaded guilty to conflict of interest and evasion of taxes, he insists that he took the money in all innocence, assuming it to be a legitimate "finder's fee" from the private company for help in building the detention centre. He denies sending children to custody in return for kickbacks. "Cash for kids? It never happened. People have jumped to conclusions - I didn't do any of these things."
He says that he regarded his court as a place of treatment for troubled adolescents, not of punishment. "I wanted these children to avoid becoming statistics in an adult world. That's all it was, trying to help these kids straighten out their lives."
As evidence, Ciavarella claims the percentage of children he sentenced to custodial placements remained steady from 1996, when he was appointed to the court, until he stood down from it in 2008. Yet the facts suggest otherwise.
For the first two years of his term his rate of custodial sentencing was static at 4.5% of cases. In 1999 - shortly before he allegedly began the racket with Conahan, according to prosecutors - it suddenly shot up to 13.7%. By 2004 it had risen to up to 26% of all teenagers entering his court.
Ciavarella hopes that with good behaviour he may spend only six years in jail.
Hillary Transue, meanwhile, is now 17 and in high school. She spent a month in detention for the parody. For many months afterwards she was ostracised by friends and neighbours, labelled a delinquent.
"It's nice to see him on the other side of the bench," she says of Ciavarella. "I'm sure he understands now how it feels."

UPDATE: March 29, 2009

Pa. youth court corruption creates legal headache
By MICHAEL RUBINKAM and MARK SCOLFORO Associated Press Writers
The decision this week to overturn hundreds of juvenile convictions was a significant and dramatic first step toward untangling the legal mess left behind by a judicial corruption case in northeastern Pennsylvania.

It may also have been the easy part.

The judge handling the matter for the state Supreme Court now faces the more daunting task of figuring out how to restore the legal rights of children convicted of serious offenses without endangering the public's safety or creating new problems of restitution or sentencing.

"It's going to be an extraordinarily difficult matter to conclude," Berks County Senior Judge Arthur E. Grim, appointed to review thousands of cases handled by a disgraced Luzerne County judge dating to 2003, said Friday. "At this point, I'm not prepared to tell you what the answer will be, because I don't know."

The former judge, Mark A. Ciavarella Jr., could get more than seven years in federal prison after pleading guilty to fraud and tax charges last month in a scheme with another judge to pocket $2.6 million by stocking private detention centers with young offenders.

Many of the offenders were given very brief hearings without lawyers, then shipped off to camps or detention centers for minor offenses, such as lampooning a teacher or simple assault.

Other youngsters, though, were convicted of more serious offenses, such as car theft, drug dealing and assault — but still may not have been given the benefit of due process and must be addressed. Some victims are wary of how those cases will be handled.

After Mike Gunshannon caught a youth trying to break into his car in 2003, police discovered the young burglar in possession of a thick stack of stolen credit cards. The offender went before Ciavarella.

Gunshannon, 53, of Kingston, said many of the kids who landed in the judge's courtroom ultimately deserved what they got — and he fears the victims are being forgotten in the furor over the misconduct.

"If the judge was making his decisions based on personal gain, then he should be locked up for longer than they're giving him. But I don't see these kids necessarily as innocent victims," Gunshannon said. "We've taught children you can violate the rules, and if you (complain) long enough, you can get away with it."

Still, countless questions remain.

Will defendants with voided convictions be allowed to recoup fines, restitution or other payments they have already made? What will happen to adults whose juvenile convictions have affected their subsequent sentencing in adult court?

Should the state simply release seriously troubled children who need substance abuse services or other counseling? How should the rights of crime victims like Gunshannon fit into the picture? Should some defendants get a new trial?

"It's pretty clear that every one of these kids has a right to a retrial," said Robert Schwartz, executive director of the nonprofit Juvenile Law Center in Philadelphia. "But it's also fairly obvious that it's not in the public interest to retry thousands of cases."

The Juvenile Law Center's complaints about injustice in Luzerne County's juvenile court system helped bring the scandal to light. The center has also filed one of the three lawsuits against Ciavarella, retired Luzerne County Judge Michael T. Conahan and others tied to the scandal. Conahan, Ciavarella's co-defendant, also pleaded guilty and awaits federal sentencing.

Grim first must determine which defendants are covered by the state Supreme Court's expungement order, issued Thursday. In the next phase, he will consider cases that involve more serious offenses.

"We think the bulk of the kids up there are entitled to have the records erased and get a fresh start in life," Schwartz said. "But there are going to be some — we don't know how many — where the public safety issues will emerge in a different way and the victim issues will emerge in a different way."

"There are kids who, even though the process may have been tainted, may ultimately have needed the kind of treatment that comes with the juvenile justice system," he said. "It may be they had serious drug and alcohol problems and they're getting treatment for the first time in their lives because they were adjudicated and placed."

Restitution plays an important role in Pennsylvania's juvenile courts and will factor into how the court disposes of the Ciavarella cases, said Jim Anderson, executive director of the state Juvenile Court Judges' Commission.

Also, a juvenile offense can raise the minimum sentence that an adult defendant gets in Pennsylvania, so any conclusions about expungement could, in some cases, result in early release of state prison inmates.

"Juvenile adjudication may prevent someone from being hired for certain kinds of jobs, may prevent someone from owning a firearm, all kinds of things," Anderson said.

Grim, who is chairman of the Juvenile Court Judges' Commission, said Friday that in some cases, a new trial might be the best solution. But that raises another problem — Pennsylvania law prevents retrial of anyone who is at least 22 years old as a juvenile.

"That certainly has implications for what will happen," Anderson said. "Does that mean in a very serious case the individual now would be subject to (an adult) criminal proceeding? I think that would be unlikely."


Mark Scolforo reported from Harrisburg, Pa.

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