Caging Kids for Cash: Two Pennsylvania Judges Guilty of Selling Out Juvenile Justice System

by Matt Clarke

Judges are supposed to be the protectors of our constitutional rights. They are expected to be fair and impartial, and to safeguard vulnerable members of society who are unable to protect themselves. Admitting to a shocking breach of this sacred trust, in January 2009 two Luzerne County, Pennsylvania judges entered guilty pleas to federal charges related to their acceptance of $2.6 million in kickbacks.

The payments were for their help in arranging the construction of private juvenile facilities, eliminating a county-owned and operated juvenile prison, obtaining a favorable contract for the private facilities, and incarcerating juvenile offenders accused of minor crimes in the private, for-profit prisons.

On January 21, 2009, Luzerne County President Judge Mark A. Ciavarella, Jr., 58, and Senior Judge Michael T. Conahan, 56, entered conditional guilty pleas to the charges contained in a 22-page criminal information. The plea agreement requires them to resign from their positions, pay an undisclosed amount of restitution, and serve 87 months in prison. Both remain free on $1,000,000 unsecured bonds pending formal guilty pleas and sentencing. See: United States v. Ciavarella and Conahan, U.S.D.C. (MD Penn.), Case No. 3:09-cr-00028.

The offenses charged in the criminal information sound fairly innocuous: wire fraud and tax evasion. However, the details tell a chilling story of egregious judicial misconduct and exploitation of juvenile offenders for profit.

According to court filings, in around June 2000, Ciavarella met with an unnamed attorney who was interested in building a private juvenile facility in Luzerne County. Ciavarella introduced the lawyer to a construction company owner, who then built the facility for a firm called PA Child Care, LLC. Local media identified the attorney as Robert J. Powell, who was a co-owner, along with Gregory Zappala, of PA Child Care.

Zappala is a Pittsburgh-area investment banker whose father, Stephen Zappala, is a former Pennsylvania Supreme Court Justice. In June 2008, amid news reports of a joint FBI/IRS investigation into judicial corruption in Luzerne County, Zappala bought out Powell and became sole owner of PA Child Care. He also owned Mid-Atlantic Youth Services, a company that provided employees to staff the private juvenile facility.

The construction company owner was identified as Robert S. Mericle, president of Mericle Construction, Inc. He was a long-standing friend of Ciavarella.

On January 29, 2002, Conahan, who was President Judge of Luzerne County at the time, signed an agreement that gave PA Child Care guaranteed annual payments of $1,314,000 to hold juvenile offenders in the company’s private facility. To create demand for the for-profit prison, Conahan, in his official capacity, removed funding from the county-owned Luzerne County Juvenile Detention Facility in December 2002, resulting in its closure.

For their roles in making possible the construction of the PA Child Care prison, the judges received a payment of $997,600. But that was just the start; now they needed to fill the facility. Ciavarella thus began incarcerating juveniles for minor offenses.

Kurt Kruger, 17, was sent to a boot camp program for five months for being a lookout for a friend who tried to steal DVDs from Wal-Mart. It was his first offense. Thirteen-year-old DayQuawn Johnson was incarcerated for several days in 2006 after he failed to appear at a hearing as a witness to a fight he was not involved in. Jamie Quinn, 14, served nine months for slapping a friend whom she claimed had slapped her first. Shane Bly, 13, was accused of trespassing in a vacant building; he was sent to a boot camp for two weekends.

“I couldn’t believe what was happening,” one unidentified parent stated. “They told us the hearing was not a big deal, a minor offense. ‘Just sign here and we’ll get this over with,’ they said. Next thing I knew, they were handcuffing my daughter and taking her to a juvenile residential treatment center. I fainted right there in the courtroom.”

Fourteen-year-old Hillary Transue had created a fake MySpace page that poked fun at the vice-principal of her school. She was charged with harassment, found delinquent by Judge Ciavarella, and sentenced to three months in a juvenile facility. It was that case that led to a complaint filed by Hillary’s mother, a child services worker, which eventually resulted in the federal investigation.

When a cigarette and pipe were found in a backpack that Jessica Van Reeth, 16, was holding for a friend at school, she was sentenced to three months. According to her father, Jack Van Reeth, upon hearing of the judges’ guilty pleas Jessica was “extremely happy. She said this is better than Christmas.”

“We feel that it’s a great day for the young people and the youth of this area to see the system really does work; the system really isn’t rigged against them,” he added. “It’s just wonderful to see that the scheme of jailing for dollars has come to an end.”

Then again, until Ciavarella and Conahan were caught, the system was in fact rigged against juvenile defendants. An estimated 5,000 cases may have been tainted due to their corruption. Further, the end was a long time coming. From 2002 through 2007, the judges tore apart families and traumatized children in pursuit of profit. Ciavarella even adopted special procedures, turning his courtroom into a “specialty court” that “created the potential for an increased number of juvenile offenders to be sent to juvenile detention centers.”

In 2004, the two judges used their influence to persuade Luzerne County commissioners to lease the PA Child Care facility for 20 years at a cost of $58 million. The lease came under criticism from state auditors, and the commissioners were eventually able to renegotiate a month-to-month lease.

The for-profit prison scam was so successful that Mericle built another juvenile facility for Powell and Zappala’s spinoff company, Western PA Child Care, LLC. Upon completion of the second prison in July 2005, Ciavarella and Conahan received a payment of $1 million. Even this capacity wasn’t enough, though, so an expansion of the first facility was undertaken. The judges were paid $150,000 upon completion of the expansion in February 2006.

In addition to those payments and the earlier kickback following construction of the PA Child Care prison, Ciavarella and Conahan received hundreds of thousands of dollars during the incarceration-for-profit scam. From January 2003 through April 2007, the two judges raked in approximately $2.6 million. They bought a Florida condo in 2004 and claimed their illicit kickback income as rent payments. Powell kept a 56-foot yacht docked at the condo. It was named “Reel Justice.”

The criminal information filed in federal court detailed how Powell, Mericle, Ciavarella and Conahan falsified tax and business documents and transferred money between various accounts – including business accounts under the control of Mericle and the judges, and attorney trust accounts controlled by Powell.

The juvenile jailing scheme in Luzerne County really took off following the October 1, 2005 adoption of new state Rules of Juvenile Court Procedure, which included rules governing waivers for children who did not have legal representation. Judges were the ones who approved such waivers, of course.

From 2003 through the end of 2007, Ciavarella incarcerated up to 26% of the children who appeared before him – more than double the statewide average of 10%. Up to half of the juvenile defendants in Luzerne County Juvenile Court did not have legal representation, compared with 4% statewide. Ciavarella even influenced juvenile probation officers to change their recommendations from community supervision to incarceration, and overruled those who didn’t. Hearings lasted an average of two minutes.
Why wasn’t all of this brought to the attention of state officials? It was. In April 2008, the Juvenile Law Center (JLC), a national public interest law firm and advocacy group, filed a petition with the Pennsylvania Supreme Court seeking review of more than 250 questionable cases involving the incarceration of children in Luzerne County.

The Supreme Court’s reaction was to deny the petition in a one-line order dated January 8, 2009, which contained no explanation for the denial. The Luzerne County District Attorney’s office had opposed JLC’s petition, saying it “was not a matter of immediate public importance.”

After Ciavarella and Conahan pleaded guilty and the scandal generated public outrage, the Supreme Court, on a motion for reconsideration, issued another one-line order on February 2, 2009 that vacated its previous order pending further action by the court.

“We see this as a very positive sign that the court is going to take a fresh look at our application for relief,” said JLC Executive Director Robert Schwartz. “Beyond that, it’s hard to read into this. It’s pretty clear that they want to go deeper. There’s no reason to do this if they’re not going to grant relief down the line or at least figure out a way to provide relief to the kids of Luzerne County.”

The state Supreme Court did want to go deeper. Much deeper. On February 11, 2009 the court issued an order granting JLC’s petition, and exercised plenary jurisdiction over the case. The court appointed Senior Judge Arthur E. Grim as a Special Master to review all cases in which Ciavarella had sent juvenile offenders to the PA Child Care or Western PA Child Care facilities, and all cases where juveniles who appeared in his court were denied their right to counsel.

The Court of Common Pleas of Luzerne County was directed to give the Special Master “unlimited access and cooperation”; the Supreme Court stated its goal was “to determine whether the alleged travesty of juvenile justice in Luzerne County occurred, and if it did, to identify the affected juveniles and rectify the situation as fairly and swiftly as possible.” See: In re: J.V.R., Supreme Court of Pennsylvania, Middle District, Case No. 81 MM 2008.

On February 26, 2009, JLC and the law firm of Hangley, Aronchick, Segal and Pudlin filed a federal class-action civil rights and RICO suit against Ciavarella, Conahan and other defendants. The lawsuit alleges that the judges conspired with others in a corrupt scheme to accept kickbacks for their assistance in the construction of private juvenile prisons, then wrongly sent juvenile offenders to those prisons. See: H.T. v. Ciavarella, U.S.D.C. (MD Penn.), Case No. 3:09-cv-00357.

“Judge Ciavarella’s placement of so many children in juvenile facilities without regard for their underlying charges suggests a procrustean scheme that violated one of the core principles of the juvenile justice system – the right to individualized treatment and rehabilitation,” remarked JLC Associate Director Lourdes Rosado. “He shredded the constitutional rights and statutory rights of these children; and now, he has been properly stripped of any right to serve as a judge or practice law ever again. Through this lawsuit, we also seek to hold him civilly liable for money damages.”

Although Ciavarella pleaded guilty to the federal criminal charges, and admitted in a letter that “My actions have destroyed everything I worked to accomplish and I have only myself to blame,” he strongly denied that he had incarcerated children in exchange for kickbacks. “Cash for kids? It never happened,” he said.

In March 2009, Ciavarella filed a motion to dismiss that included a defense of judicial immunity, which provides wide-ranging protection to judges for judicial acts performed in their official capacities. Still, the lawsuit is probably the only chance the exploited children and their families have for getting any real justice. Asked about the improper incarcerations that occurred in Ciavarella’s court, Luzerne County District Attorney Jackie Musto Carroll was unenthusiastic.

“Those who have already gone through the system, who are no longer in the system and who are no longer in placement, obviously we can’t give them back the time they spent there. And many of them probably should have been in placement,” she said.
Many? Less then half of the juvenile offenders Ciavarella sent to prison deserved to be there, based upon a comparison between the 26% incarceration rate in Luzerne County and the 10% average statewide rate.

On March 12, 2009, the Special Master appointed by the Pennsylvania Supreme Court issued his First Interim Report and Recommendations. Grim found “that a very substantial number of juveniles who appeared without counsel before Judge Ciavarella for delinquency or related proceedings did not knowingly and intelligently waive their right to counsel. My investigation has also uncovered evidence that there was routine deprivation of children’s constitutional rights to appear before an impartial tribunal and to have an opportunity to be heard.”

He therefore recommended that convictions of low-level offenses for certain juvenile offenders “be declared void ab initio, and/or vacated, and/or expunged.” The Special Master noted that this action would “be at least one step towards righting the wrongs which were visited upon these juveniles and will help restore confidence in the justice system.”

The Supreme Court agreed. In a March 26, 2009 order the court largely approved and adopted Grim’s recommendations, while acknowledging that the Special Master’s review of other juvenile offender cases in Luzerne County would be forthcoming. Hundreds of convictions will be expunged as a result of the court’s order.

“I’ve never encountered, and I don’t think that we will in our lifetimes, a case where literally thousands of kids’ lives were just tossed aside in order for a couple of judges to make some money,” said JLC attorney Marsha Levick.

The joint FBI/IRS investigation into judicial malfeasance in Luzerne County started almost two years ago. Besides Ciavarella and Conahan, other county officials were implicated. Luzerne County Court Administrator William T. Sharkey, 57, was named in a two-count indictment for embezzling over $70,000 in forfeited gambling proceeds; he pleaded guilty on February 1, 2009. Sharkey is Conahan’s first cousin.

On February 20, 2009, Jill Moran, Luzerne County’s Prothonotary (chief court clerk), agreed to resign and cooperate with federal investigators as part of a civil consent judgment. She had unknowingly assisted in fraudulent acts.

Further, Luzerne County Deputy Director of Forensic Programs Sandra M. Brulo, 56, pleaded guilty to one charge of obstruction of justice on March 26, 2009. Brulo was accused of altering a juvenile court file by changing and backdating her original recommendation of incarceration to one for probation, after she was named in a federal civil suit.

Neither Powell nor Mericle have been charged, though the investigation is still ongoing. “Bob Powell never solicited a nickel from these judges and really was a victim of their demands,” his attorney stated. “These judges made it very plain to Mr. Powell that he was going to be required to pay certain monies.” Apparently he never thought to inform the authorities of this alleged extortion, which went on for years.

Luzerne County officials are now considering seizing the PA Child Care facility through civil forfeiture, in an effort to recover losses incurred through the judges’ kickback scheme.

Arthur Piccone, former president of the Pennsylvania Bar Association, said that prior to the scandal local attorneys had respected Ciavarella and Conahan as good trial judges. “It’s really unfortunate that this happened,” he said.

It’s not just unfortunate, it’s abominable. This was not merely a regrettable case of public malfeasance, although it was that too. It was not just a tragedy for hundreds of children and their families. Rather, this scandal illustrates the quintessential reason why prisons, juvenile or otherwise, should not be privatized.

The convergence of moneyed interests with the construction and operation of for-profit prisons creates a fundamental conflict between the private prison industry and what best serves the public interest. Private prisons have a financial incentive to incarcerate as many prisoners as possible, deserved or not. They operate on the same principle as hotels: More filled beds means more profit.

Conversely, it is in the public interest to redeem and reform prisoners so they stay out of prison. When incarceration results in profit and public officials control the rate of imprisonment, corruption is inevitable. There has never been a case where the warden of a public prison has bribed a judge to incarcerate more prisoners. Why should we, as a society, tolerate the operation of private prison companies that have such an inherent and pernicious profit motive?

Meanwhile, the PA Child Care and Western PA Child Care facilities are still in business – albeit now, hopefully, without the collusion of corrupt judges.

Sources: www.law.com, Associated Press, www.republicherald.com, New York Times, www.citizensvoice.com, Philadelphia Inquirer, www.timesleader.com, www.guardian.co.uk, www.cnn.com

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