A Lawyer’s Guide to Luzerne County’s Kids for Cash Scandal

Wilkes-Barre, Pennsylvania is a coal-mining town along the Susquehanna River, in the Wyoming Valley. A town of about 40,000 people, it is the county seat for Luzerne, in the northeast part of the state.

It is also the epicenter of one of the most scandalous stories about the justice system in the country, involving allegations of bribery and kickbacks to judges from the operation of private juvenile detention facilities. Its implications for juvenile justice will likely set the tone for reforms for the next several years.

Mark A. Ciavarella, Jr. was a juvenile court judge who had been presiding over the juvenile court for the county since 1995. He had a colleague, and friend, in Judge Michael T. Conahan, a common pleas court judge for the county. In June, 2000 the two embarked on a plan which would eventually close the publicly operated sites for juvenile offenders
sentenced in Judge Ciavarella’s court, to send them to facilities which were privately owned and operated by Robert J. Powell, a wealthy attorney who was a friend of Judge Conahan.[1]

Judge Ciavarella was stern in his sentencing, and his nickname was Mr. Zero Tolerance. He first came to the
attention of Juvenile Law Center, a national legal advocacy organization for youth in Philadelphia, Pennsylvania, for his habit of not advising children in his court of their right to counsel, and just as habitually allowing them to proceed without attorneys.[2]

It was therefore not quite surprising when Hillary Transue’s angry mother called Juvenile Law Center in Philadelphia about how Hillary was treated in Judge Ciavarella’s court. Hillary, as a prank, had created a MySpace© page with a parody of the vice principal at her school, and her reputation for being a disciplinarian. She added a clear disclaimer on the site, saying it was all in jest. She was prosecuted for “harassment” and sentenced to three months in detention, without counsel, in Judge Ciavarella’s court in January, 2007.[3]

Juvenile Law Center attorneys began investigating the pattern of waiver of counsel in Judge Ciavarella’s jurisdiction. Aided by quantitative data about juvenile proceedings statewide available starting in 2005, the Center was able to examine rates of uncounseled convictions in Judge Ciavarella’s court.[4]

They found that half or more of the youngsters appearing in his court had no counsel, ten times the state average. Sixty per cent of those dispositions resulted in those children being placed out of home, in confinement or non-secure settings. The Center brought that to the attention of the Pennsylvania Supreme Court in petitions for extraordinary relief filed April 28, 2008.[5]

Seeking to invoke the original jurisdiction of the Supreme Court in its “King’s Bench” authority to supervise its lower courts, Juvenile Law Center brought Judge Ciavarella’s practices to the attention of the Court. The Center attached the transcript of Hillary’s plea. In what must be one of the shortest plea colloquies in modern jurisprudence, even in a juvenile court, Judge Ciavarella presided as follows:

The court: “You’ve been charged with harassment. How do you wish to plead?”

The respondent: “Guilty.”

The court: “Based on her admission, I’ll adjudicate her delinquent.”[6]

Judge Ciavarella then proceeded to disposition, had Hillary shackled and sent her off in custody, all without the benefit of counsel. The transcript consumes not quite the entirety of three pages, 25 lines each, double-spaced.

Juvenile Law Center asked the Pennsylvania Supreme Court to issue an order directing the Luzerne County juvenile court to identify each and every uncounseled conviction in its court since October 1, 2005, vacate the adjudications and dispositions of all such children still under its jurisdiction, and expunge the records of those no longer under juvenile court jurisdiction. The Center also sought fees and costs.

The Pennsylvania Supreme Court denied relief in an order entered January 8, 2009.[7]

The Court was forced to reconsider its ruling when, on January 26, 2009, the United States Attorney’s Office announced that it had charged Judge Ciavarella and his mentor, Judge Michael T. Conahan in an information. The U.S. Attorney charged them with participation in fraudulent practices and a conspiracy to conceal at least $2.6 million in kickbacks from private juvenile services provider PA Childcare, and Western PA Childcare, owned by their colleague Robert Powell. They had already executed plea agreements.[8] In a press release, the U.S. Attorney’s Office described their alleged criminal acts as follows:

• Taking action to remove funding for the Luzerne County juvenile detention facility, effectively closing that facility;
• Ordering juveniles to be sent to the facilities in which they had a financial interest even when juvenile probation officers did not recommend detention;
• Entering a “Placement Guarantee Agreement” to house children in a facility in which the judges had an interest, guaranteeing payment of an annual “Rental Installment” of $1,314,000, without disclosing their interest;
• Adopting procedures for a “specialty court” with the potential for an increased number of juveniles to be sent to the juvenile detention facilities in which they had a financial interest; and,
• Summarily granting motions to seal records and grant an injunction in a civil case relating to a juvenile detention facility in which they had a financial interest.

In the wake of these revelations, and in response to Juvenile Law Center’s petition for reconsideration, the Pennsylvania Supreme Court granted the Center’s petition for extraordinary relief on February 11, 2009 and appointed a special master to review all the cases in which Judge Ciavarella committed children to PA Child Care and all cases in which juvenile offenders had waived their right to counsel. Based on that review, the master was to report his findings and recommendations to the court within 120 days.[9]

After entering two interim recommendations to the Pennsylvania Supreme Court, and after a thorough review of the records and numerous transcripts of proceedings before Judge Ciavarella dating to 2003, the master recommended that all adjudications and dispositions of juveniles in that court be vacated.[10] The master cited a “thorough and almost Herculean review” of records in that court by its probation department to conclude that, on average, about 350 children appeared in his court without counsel per year between 2003 and 2007.[11] Routinely, and almost without exception, there was no mention of a right to counsel which might even require a knowing waiver in proceedings before Judge Ciavarella.

The master further reviewed the misconduct of Judge Ciavarella and his co-conspirator, Judge Conahan, in receiving what amounted to a fee for each youngster sent to PA Child Care’s facilities, an obvious incentive. The master characterized the atmosphere in Judge Ciavarella’s court as casting such a “pall” over the functioning of that court, its integrity was subverted, and recommended that each and every adjudication of a child in that court be vacated.[12] The recommendation included every child, whether having the benefit of counsel or not, and every child, whether or not sent to PA Child Care, or anywhere for that matter. Finding it would serve no public purpose, the master recommended that none be re-tried.[13]

That meant 4,500 cases of children appearing in that court from 2003 to 2008.[14]

On October 29, 2009, the Pennsylvania Supreme Court agreed. Over the objections of the state’s district attorney, and noting the master’s observation of the “pall” overcastting Judge Ciavarella’s court, “this Court simply cannot have confidence that any juvenile matter adjudicated by Ciavarella during this period was tried in a fair and impartial manner.”[15] Except for a very few juvenile prosecutions that remained open, all adjudications and dispositions were ordered vacated and expunged.[16]

Juvenile Law Center did not stop there. On February 26, 2009 the Center filed a class-action suit under 42 U.S.C. 1983 against Ciavarella, Conahan, their wives and their confederates in the scheme, by this time coming to be known as the “kids for cash” conspiracy. The introductory paragraph in H.T. v. Ciavarella[17] pulls no punches:

With utter disdain for the rule of law, defendants Mark A. Ciavarella, Jr. and Michael T. Conahan, in combination and conspiracy with other defendants named herein, have collectively perpetrated, through their acts and omissions, what
ranks as one of the largest and most serious violations of children’s rights in the history of the American legal system. Both in its duration, spanning approximately five years between 2003 and 2008 – and its magnitude, inflicting damage on the lives of thousands of children and their families – the scope of defendants’ unlawful scheme is profoundly shocking. In choosing to treat children as commodities that could be traded for cash, the defendants have placed an indelible stain on the Luzerne County juvenile justice system.

Predictably, however, the judges invoked the doctrine of judicial immunity in an attempt to shield them from liability for any deprivation of the rights of the youths in Judge Ciavarella’s court, and their capture for profit. Citing Stump v. Sparkman[18] and Dennis v. Sparks,[19] among other cases, the U.S. District Court dismissed the plaintiffs’ claims on grounds the judges were immune from suit, for their actions in court, even if their misconduct was contemptible and corrupt.[20] Their activities outside the courtroom, however, such as engaging in conspiracies to defraud and indulge in kickbacks were another matter, and not immune to suit.[21] Therefore, that litigation continues.[22]

A defining element of the scandal was the rate at which youngsters waived any right to have counsel defend them, whether to explore the adequacy of charges in the first place, and avoid the prospect of confinement in the second place.[23] As the Pennsylvania Supreme Court observed in its order vacating the convictions in Judge Ciavarella’s court:

. . . this Court’s review of [the transcripts] reveals a systematic failure to explain to the juveniles the consequences of foregoing trial, and the failure to ensure that the juveniles were informed of the factual bases for what amounted to peremptory guilty pleas. The transcripts reveal a disturbing lack of fundamental process, inimical to any system of justice, and made even more grievous since these matters involved juveniles.[24]

The frequency with which children appear in juvenile court without counsel has long been the subject of scrutiny by the American Bar Association. Together with the Youth Law Center and Juvenile Law Center, in 1995 the ABA Juvenile Justice Center published A Call for Justice: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings, a landmark report on the state of the juvenile defense function in the United States. Among its other findings, the report analyzed the incidence of waiver or the failure to appoint counsel for an accused in juvenile court around the country. “One of the most disturbing findings of the survey is that large numbers of youth across the country appear in juvenile court without lawyers.”[25]

The ABA Juvenile Justice Center (now the National Juvenile Defender Center), has conducted assessments of various jurisdictions around the country and the waiver of counsel by juvenile defendants is a recurrent theme.[26]

The American Bar Association has long recommended as a matter of policy that youth in the juvenile court not be allowed to waive counsel. The IJA/ABA Juvenile Justice Standards relating to Adjudication, at Standard 1.2 urges that the juvenile court should not proceed without counsel for the child, who is present in court. More explicitly, the IJA/ABA
Juvenile Justice Standards relating to Pretrial Court Proceedings maintains that “a juvenile’s right to counsel may not be waived,” at Standard 6.1.

On May 1, 2008 the Florida Supreme Court modified Rule 8.165(a) of that state’s rules of juvenile procedure to allow waiver of counsel only after the youngster consults an attorney:

Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel. This waiver shall be in writing.[27]

This is emblematic of the trend in delinquency proceedings, favoring waiver only after consultation with counsel, rather than prohibition outright. For example, N.J. 2A: 4A-39, prohibits waiver unless the child has first consulted counsel, and waiver is in writing, on the record, after inquiry by the court as to whether the child’s waiver is knowing and voluntary.[28]

The Luzerne county scandal also highlights a growing concern about the effective assistance of counsel in the nation’s juvenile courts.

The National Juvenile Defender Center has long been a leader in improving the competency and caliber of attorneys representing young people in the nation’s juvenile and criminal courts. Working with the National Council of Chief Defenders, an arm of the National Legal Aid and Defender Association, the Center developed Ten Core Principles for Providing Quality Delinquency Representation Through Public Defense Delivery Systems, adopted by the NLADA in December, 2004 and updated in June, 2008.[29] As can be seen, those principles are informed by ABA policy and standards throughout. In turn the Principles have
influenced policy about the delivery of juvenile defense services around the country.

The Center has recently published The Role of Juvenile Defense Counsel, National Juvenile Defender Center, Washington D.C. (Spring, 2009).[30] As the title suggests, this concise publication relies on the American Bar Association juvenile justice standards and the Center’s own wealth of experience in detailing the role and performance of counsel representing an accused in the juvenile court. The ABA Center on Children and the Law has just published Representing Juvenile Status Offenders, a guide for attorneys representing children charged with offenses peculiar to the status of children, such as running away, being ungovernable or “unruly,” or truant from school. This helpful handbook addresses a particularly vexatious area of juvenile law for practitioners.[31]

A number of states have adopted guidelines or standards of performance for attorneys representing children in the juvenile court, with the Nevada Supreme Court among the most recent, utilizing its rule-making authority to do so.[32] See Cohen, Laura, “New Hope Found in Practice Standards,” ABA Criminal Justice Magazine, Winter (2009). The esteemed MacArthur Foundation as a part of its “Models for Change” initiatives in juvenile justice has created a Juvenile Indigent Defense Action Network which will likely prompt additional state and local jurisdictions to improve juvenile defense with the adoption of standards for counsel. Id. Many of these jurisdictions will likely on the work of the ABA and the National Juvenile Defender Center in formulating these standards, as they have in the past.[33]

Given the repeated instances of judicial misconduct for years in the Luzerne juvenile court, in full view of attorneys and others present, the scandal begs the question: to what degree is there a collective responsibility for that travesty of justice?

As one reporter put it, “Ciavarella did all that in a courtroom that was closed to the public and the media, but open to prosecutors, public defenders, police and probation officials. Why didn’t anyone speak up?”[34]

In response to the scandal and the myriad issues it raised for Pennsylvania’s justice system, the state’s General Assembly created the Interbranch Commission on Juvenile Justice, with the support of the governor and the Pennsylvania Supreme Court. Its chair, Judge John M. Cleland, a Pennsylvania Superior Court judge, convened its proceedings with this at the outset:

Our concern. . . is not only the actions of two Luzerne County judges. Our concern is also the inaction of others. Inaction by judges, prosecutors, public defenders, the defense bar, public officials and private citizens, those who knew but failed to speak, those who saw but failed to act.[35]

As the director of Juvenile Law Center pointed out in his testimony before the Interbranch Commission, the Rules of Professional Conduct require of prosecutors that they take care to protect a defendant’s right to counsel, as well as other important procedural rights.[36] The ABA Model Rules of Professional Conduct, Rule 3.8 Special Responsibilities of a Prosecutor require that the prosecution:

2. make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
3. not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

Despite this responsibility, the state’s attorneys assigned to the juvenile court in Luzerne did not take note of Judge Ciavarella’s practice of allowing as many as half of children before him to proceed without lawyers.

Judge Ciavarella apparently relied on the juvenile probation department to advise the youngsters accused, and their parents, of a right to counsel, and secure a waiver, reduced to a rudimentary writing.[37] The children, typically through their parents, often signed the waiver.[38] The IJA/ABA Standards on Juvenile Justice would not abide this practice.[39]

None of this is to suggest that anyone had a notion that payola played a role in the court’s decisions on disposition, or even that there was a financial incentive to indulge in three minute hearings without children having the benefit of counsel.

There is the notion, however, that the atmosphere of a court can have a corrosive effect on the actors in the process – prosecutors, defense attorneys, probation and court staff – and it is not new or even peculiar to the juvenile court. As one commentator has observed, “corruption” in a courtroom need not involve money:[40]

“Organizational goals and discipline impose a set of demands and conditions of practice on the respective professions in the criminal court to which they respond by abandoning their ideological and professional commitments to the accused clients, in the service of these higher claims of the court organization. . . The client, then, is a secondary figure in the court system as in certain other bureaucratic settings. . . ”[41]

The juvenile court is as susceptible to these influences as any court, and perhaps more so due to its being shielded from public view, and the presumption the court is doing what is “best” for children. The culture of the juvenile court contributing to oppressive practices in full view of the professional participants has been noted by the various assessments of juvenile defense conducted around the country.

In Pennsylvania, the assessment in that state observed that the independence of defense attorneys was compromised by a lack of uniform procedures for appointment of counsel throughout the state and the unfettered discretion of juvenile court judges in selecting counsel.[42] In Florida, investigators conducting their assessment of the performance of defense counsel in that state were distressed at the practice of shackling children brought before the juvenile court and culturally accepted by the participants in the process, including counsel.[43] In its most recent assessment, conducted in Nebraska, investigators there maintained that the culture of the courts there reflected “fast-tracking” juvenile adjudications and waiver of counsel by juvenile accused.[44]

The Luzerne scandal thus points up the need for systemic self-scrutiny and accountability of all the professional actors for truly attending to what “process is due” to children accused of crimes and facing punishment in the juvenile court. There is no substitute, however, for the importance of counsel with a conscience. One lesson of the Luzerne scandal must be that the independence of the lawyer must not be compromised out of obedience to a court where the climate is noxious.

Imagine if judges were openly selling stolen goods in the courtroom—you can bet that professionals in the room would have blown the whistle in a second. But summarily moving shackled kids from the courtroom to the cell room didn’t
bother anyone.”[45]

The Luzerne scandal also raises the question about the extent to which schools were complicit in the utilization of the juvenile court as a conduit to commitment of children out of their homes. As the chief defender for the county observed, Judge Ciavarella’s reliance on “zero tolerance” as a dispositional tool seemingly went unquestioned:

“Because everybody loved it. Everybody loved it. The schools absolutely loved it. They got rid of every bad kid in their school.”[46]

The phenomenon of “zero tolerance” and other exclusionary policies of schools resulting in the incarceration or criminalization of children has by now been well-documented.[47]

The ABA House of Delegates recently adopted policies urging the implementation of policies to reduce the criminalization of truancy, disability-related behavior and other school related conduct, and limit exclusion from regular education programs as a response to disciplinary problems.[48] The resolutions also recommend state and local bar associations make legal counsel available in administrative and judicial proceedings to enforce entitlements to education. The policies are the result of efforts by the ABA Youth at Risk Commission, which continues to focus attention on improving opportunities for education for children in danger of becoming disenfranchised.

These new policies were preceded by the ABA’s declaration of opposition to the utilization of mandatory “zero tolerance” policies as a method of imposing discipline in schools, on the recommendation of the Criminal Justice Section.[49]

Some jurisdictions, led by the juvenile court, have begun to innovate programs and protocols to reduce schools’ reliance on the juvenile justice system by implementing internal disciplinary systems which reduce formal referrals to the juvenile court.[50] These initiatives include an emphasis on the role of school policing and guidelines for exercising discretion in arrest and referral to the juvenile court.[51]

This was also the year when the United States Supreme Court recognized that strip searching children at school should be utilized only as a last resort by school disciplinarians.

Savana Redding was a thirteen year old discipline-free honor student who was accused of having prescription-strength ibuprofen at her school. Based on suspicions she had drugs on her, the vice-principal sent her to be searched by two women, including the school nurse. She was made to take off her clothes, leaving her in a bra and underpants. The two staff instructed her to shift the bra to her side and shake it, exposing her breasts. She was then told to stretch out her underpants, at the crotch, for the two to observe for the presence of drugs.[52] Despite their intrusive efforts, no drugs were found.

Savana brought suit under 42 U.S.C. 1983. Ultimately her suit found its way to the Supreme Court, as to whether the search was unreasonably invasive, and if so, whether school officials were nonetheless immune because Fourth Amendment law on that point was as yet undeclared. The court’s previous decision regarding the Fourth Amendment rights of students in school required only that school officials have a “reasonable suspicion” of criminal wrongdoing to conduct a search, in New Jersey v. T.L.O.[53]

In Safford Unified School District v. Redding,[54] decided June 29, 2009, the court found that while the school officials might have had a reasonable suspicion about whether young Savana had drugs, there was insufficient evidence of any danger posed by her justifying such an invasive search. The search was therefore unreasonable under the Fourth Amendment. The court did, however, find that the individual staff enjoyed a qualified immunity from suit because the law was as yet undeveloped.[55]

Almost contemporaneous with the decision in Safford, the National Juvenile Defender Center has issued a guide for counsel seeking to challenge the interrogation or search of students in the school setting.[56]

Life Without Parole for Juvenile Offenders

The demise of the imposition of the death penalty on children brought on by the U.S. Supreme Court’s decision in Roper v. Simmons, now impels the examination of life sentences without parole for juvenile offenders. The court may address that issue, at least in a narrow sense, this term.

There are currently about 109 prisoners in the U.S. serving a sentence of life without parole who committed offenses not involving a homicide.[57] The Supreme Court heard arguments on two such cases on November 9, 2009. Both arise from Florida, not surprising since 70% of those youth are in that state.[58] The cases are Graham v. Florida, No. 08-7412, and Southerland v. Florida, No. 08-7621.[59]

Terrance Jamar Graham was sixteen when he attempted a robbery with two others, injuring their victim with a steel bar. He was convicted of this and an unrelated burglary and placed on probation. When he was seventeen, he committed more robberies, and his probation was revoked, with the sentencing court imposing life without parole at his age 19, commenting that “. . .we can’t help you any further.”[60]

Joe Harris Sullivan was thirteen when he was accused with two other boys of burglarizing an elderly victim’s home then returning with one of them to sexually assault the woman. The two co-defendants’ placed the blame on Sullivan, who was found guilty at trial, despite a paucity of corroborating evidence.[61] He was sentenced to life without parole.

The range of cases affected is a narrow one, and the Court may reach a narrow result if oral arguments are any indication. The Court may decide rather than a categorical prohibition of such a sentence imposed on offenders under the age of 18, that a sentencing court merely take the youthful age of the offender into account – a proportionality approach.[62]

Shackling

The Florida Supreme Court acted on December 17, 2009 to rein in the indiscriminate use of shackling for juvenile accused by amending its Florida Rules of Juvenile Procedure. The court amended Rule 8.100 governing hearings in the juvenile court to prohibit the use of restraints unless a court found a threat of physical harm or disruption, or risk of
flight, and there was no less restrictive alternative available.[63]

The court’s implementation of the rule comes after national attention focused on the practices of shackling in that state’s juvenile courts, among others.[64] In issuing its decision to adopt the rule, the court cited the assessment of the state’s juvenile justice system conducted by the National Juvenile Defender Center and found the practice to be

“repugnant, degrading, humiliating, and contrary to the stated primary purposes of the juvenile justice system and to the principles of therapeutic justice. . . ”[65]

Juvenile Justice and Delinquency Prevention Act

The venerable Juvenile Justice and Delinquency Prevention Act is up for reauthorization this year. S. 678 was referred out of the Senate Judiciary Committee on December 17, 2009, and updates the four core requirements of the act: (1) removal of children from adult jails; (2) deinstitutionalization of status offenders; (3) reduction of racially disparate treatment of children in the justice system, commonly known as disproportionate minority contact; and (4) sight and sound separation of children from adults in facilities.

The legislation would require states to end the practice using of contempt orders, commonly known as “valid court orders” to sanction misconduct by status offenders within three years of passage as a condition of receiving funds under the act. In addition, the legislation would fund the expansion of access to legal counsel for children in the juvenile court, and programming to improve the competency or performance of counsel. This latter provision is the result of the work of several groups, including among others, the ABA, the Coalition for Juvenile Justice and the Federal Advisory Committee on Juvenile Justice.[66]

Youth PROMISE

The Youth PROMISE Act, or Youth Prison Reduction through Opportunities, Mentoring, Intervention, Support and Education Act, is pending in both the House and Senate, and supports a community-based approach to develop local plans for the reduction of gang activities, juvenile and adult crime. The act would fund innovative programs to reach and serve youth as an antidote to crime, rather than incarceration, and reinvest any resulting cost savings in those programs. The act also provides for an aggressive system of evaluation of the effectiveness of those programs. H.R. 1064 was reported out of the judiciary committee December 2, 2009 and S. 435 has been referred to the Senate Judiciary Committee.

National Criminal Justice Commission Act

Another significant piece of legislation likely to influence juvenile justice law and policy in the nation is S. 714, the National Criminal Justice Commission Act. The act would create a commission to comprehensively examine the over-reliance by the U.S. on incarceration as a method of crime control and drug abuse prevention, the efficacy of such practices, and alternatives. Sponsored by Senator Jim Webb (D-VA), it is perhaps the first major assessment of the nation’s criminal justice system in forty years. While the focus of the legislation is on the criminal justice system generally, the commission is also to compare juvenile as well as adult incarceration policies with those of other countries with a similar legal system, specifically Western Europe and Japan. The legislation passed out of Senate Judiciary Committee on January 21, 2010.

ABA Activities

The ABA juvenile justice standards project developing standards for the relationship between the juvenile court and other institutions – particularly child welfare, education and mental health agencies – continues. The project will analyze the functions of the juvenile court, including (1) referral, intake and diversion; (2) adjudication and disposition; (3) reentry of youth upon release from commitment, and (4) related issues such as confidentiality and information sharing. The goal of the initiative is to promulgate standards for the court and its relationship to other agencies not adequately addressed by the IJA/ABA Juvenile Justice Standards approved by the ABA House of Delegates in 1979. The project will likely have its report and recommendations for the Criminal Justice Section council in late 2010.

The ABA Criminal Justice Section Juvenile Justice Committee continues its project on the assessment and cataloguing the collateral consequences of adjudications for youth in the juvenile court throughout the country. Alarmed at the diminishing distinctions between the treatment of adult and juvenile offenders, the committee began the project in 2008, and obtained funding for a more comprehensive effort through an ABA Enterprise grant this past year. The committee anticipates that the comprehensive collection and review of collateral consequences for juvenile offenders will result in development of policies that include considerations of rehabilitation as well as public safety. Moreover, thanks to the efforts of the committee and criminal justice section leadership, the House of Delegates recently adopted policy which recommends against the use of juvenile arrests and adjudications to deprive youth of employment and educational opportunities and ameliorating the consequences of juvenile conduct for consideration by schools or employers.[67]

Prompted by the Luzerne scandal, the juvenile justice committee will also focus on the issue of the “privatization of punishment,” and whether for profit detention and other out-of-home placement services have a legitimate role in providing services for juvenile offenders. The committee will also examine the practice of exacting fees from parents for such services, including electronic monitoring through ankle bracelets and the like, and non-competitive bidding
for such services.

The lessons of Luzerne should go beyond the injustice attributed to allegations of fraud or financial corruption. The United States Supreme Court long ago warned of the prevailing atmosphere in the juvenile courts of the country in the Gault decision.[68] Hence the Court stressed the importance of the role of counsel, and the effectiveness of counsel, in protecting the rights children in the courtroom, or elsewhere for that matter. The American Bar Association must redouble its efforts to demand that children in the courts be provided competent, effective counsel to ward against injustice, whether the result of money, or influences less sinister and more subtle.

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[1] The relationship of the principals and the genesis of the facilities and the arrangements behind them are described in Ian Urbina, Despite Red Flags About Judges, A Kickback Scheme Flourished, N.Y. Times, March 28, 2009.

[2] See In Re A.M., 766 A.2d 1263 (Pa.Super.2001). In response to the decision of the appellate court’s reversal of the uncounseled conviction and sentence imposed in Judge Ciavarella’s court, he vowed, “I’ll never do it again,” in January, 2001. In Re Jessica Van Reeth; H.T., a Minor, through her Mother, L.T; on Behalf of Themselves and other Similarly Situated Youth, In the Supreme Court for the Commonwealth of Pennsylvania, Middle District, No. 81 M.M. 2008, Brief of Juvenile Law Center to Vacate Conviction, 4.

[3] “Humour is not in abundance, it seems, in Luzerne county…,” Pilkington, The Guardian, London, March 7, 2009, available at http://www.guardian.co.uk

[4] In the argot of the juvenile court, a conviction is considered “adjudication” and “disposition” is the equivalent of sentencing. These terms are used to avoid the stigma of the adult criminal court, but these euphemisms do not do justice to what happened in Luzerne County. Hence they are used interchangeably here.

[5] The litigation history is amply documented at Juvenile Law Center website, available at http://www.JLC.org; link to “See all Luzerne County Scandal information.”

[6] Transcript, Exhibit C, Application, In Re J.V.R. and H.T.

[7] Order, Pennsylvania Supreme Court, No. 81 M.M. 2008, filed January 8, 2009.

[8] But see Note 20, infra. The United States Attorney’s Office also has a website dedicated to the scandal documenting the progress of its prosecution,
available at http://www.justice.gov/usao/pam; link to “Information on the Luzerne County Corruption Prosecutions.

[9] Order, Pennsylvania Supreme Court, No. 81 M.M. 2008, filed February 11, 2009.

[10] Third Interim Report and Recommendation of the Special Master, In Re: J.R. and H.T., No. 81 M.M. 2008, August 12, 2009. That recommendation included the period from January 1, 2003, until May 31, 2008, when Judge Ciarella left the bench.

[11] Id. at 11-12.

[12] Id. at 29-30.

[13] Id. at 27-28.

[14] Juvenile Law Center.

[15] Order, Pennsylvania Supreme Court, No. 81 M.M. 2008 at 7 (filed October 29, 2009).

[16] For its role in bringing the scandal to light, Juvenile Law Center was named “The Best of the Commonwealth in 2009” by the Harrisburg PA Patriot-News. The editorial board of the Philadelphia Inquirer selected Marsha Levick and Lourdes Rosado as its 2009 Citizens of the Year for their role as the Center’s attorneys “. . . in exposing this miscarriage of justice.” Philadelphia Inquirer, January 3, 2010.

[17] No. 3:09 cv 0357.

[18] 435 U.S. 349 (1978).

[19] 449 U.S. 24 (1980).

[20] Order, Wallace v. Powell, No. 3:09 cv 286, consolidated with H.T. v. Ciavarella, No. 3:09 cv 0357, U.S. District Court, M.D. Pennsylvania, November
20, 2009.

[21] Id.

[22] In the criminal proceedings involving the judges, the U.S. District Court rejected their plea agreements on July 31, 2009, perceiving that the two were so unrepentant that they had not accepted responsibility adequately enough to justify either their plea or a stipulated guideline sentence of 87 months. See, Order, United States v. Conahan and Ciavarella, No. 3:09 cr 28, entered July 31,
2009. On January 12, 2010 the U.S. District Court hearing the civil claims against the judges denied their request for a stay of those proceedings pending resolution of the criminal charges against them. Order, Wallace v. Powell, entered January 12, 2010, supra, note 20.

[23] Indeed, it is extremely doubtful that Hillary Transue’s conduct met the elements of Pennsylvania’s criminal harassment statute. See Pa. Cons. Stat. Section 2709, proscribing conduct far more threatening than her benign posting. “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” In Re Gault, 387 U.S. 1, 36 (1967).

[24] Supra note 15, at 4.

[25] A Call for Justice 44, American Bar Association Center for Juvenile Justice, Washington D.C. (1995).

[26] The Children Left Behind: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings in Louisiana 59-62 (June 2001); Georgia: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings 19-22 (July 2001); Virginia: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings 23-24 (September 2002); Washington: An Assessment of Access to Counsel and Quality of Representation in Juvenile Offender Matters 26-28 (October 2003); Indiana: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings 30-34 (April 2006); Florida: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings 27-29 (Fall
2006); Nebraska: Juvenile Legal Defense-A Report on Access to Counsel and Quality of Representation for Children in Nebraska 21-27 (Fall 2009). Available at http://www.NJDC.info at
“Assessments.”

[27] Florida Supreme Court, No. SC07-1162, May 1, 2008. The Florida Supreme Court has now extended the rule to detention hearings, allowing waiver only after consultation with an
attorney. See Note 63, infra.

[28] See also, Washington State Court Rule JuCR 7:15, effective September 1, 2008, to the same effect. But see, La. Statute Ch.C., Art. 810, prohibiting waiver of counsel by a child charged with a felony grade delinquent act, placement in a mental health or substance abuse facility, or in probation and parole revocation proceedings.

[29] Available at http://www.NJDC.info, at “Publications.”

[30] Ibid.

[31] ABA Center on Children and the Law, Washington DC (2010), available at no cost at http://www.abanet.org/child; go to “Publications.” It is currently a featured publication on the Center’s website.

[32] See also, Georgia Performance Standards for Juvenile Defense Representation in Indigent Delinquency and Unruly Cases, Georgia Public Defender Standards Council, Adopted December 10, 2004, Enacted by the Georgia General Assembly, effective May 5, 2006. Attorney Practice Standards for Representing Juveniles Charged with Delinquency or as Persons in Need of Supervision, District of Columbia Superior Court, Administrative Order 04-13, adopted June, 2004; Ohio Standards of Representation of Clients in Juvenile Delinquency Cases, Ohio Public Defender Commission, adopted February, 2007. For a particularly detailed array of guidelines for juvenile defense see Performance Guidelines Governing the Representation of Indigent Juveniles in Criminal Cases, Committee for Public Counsel Services, (Boston MA) at http://www.publiccounsel.net; link to “practice areas,” then to “juvenile delinquency/youthful offender.”

[33] Ibid.

[34] Janoski, Scranton PA Times-Tribune, February 22, 2009.

[35] Hearing before the Interbranch Commission on Juvenile Justice, October 14, 2009, Transcript at 4.

[36] Remarks of Robert Schwartz before the Interbranch Commission on Juvenile Justice, Harrisburg, Pennsylvania, January 21, 2010.

[37] See Exhibit D, supra, note 6.

[38] Indeed, the director of the Juvenile Law Center characterized Luzerne as the “poster child” for why parents should not be allowed to waive defense counsel for their children.

[39] Standard 2.13, Standards Relating to the Juvenile Probation Function: Intake and Predisposition Investigative Services, expressly address a juvenile’s right to assistance of counsel at intake, including an unwaivable right at questioning or any discussion of dispositions, including a non-judicial disposition.

[40] See, Ball, Authoritarian Organizations and the Corruption of Justice in Kittrie and Susman, Legality, Morality and Ethics in Criminal Justice 220-240 (Praeger, New York 1979).

[41] Id., citing Blumberg, The Practice of Law as a Confidence Game, 1 Law and Society Review 15, 17 (1967).

[42] Pennsylvania: An Assessment of Access to Counsel and Quality of Representation in Juvenile Proceedings 41, ABA Juvenile Justice Center, Washington DC (October 2003).

[43] Florida: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings 57, National Juvenile Defender Center, Washington DC (Fall 2006).

[44] Nebraska Assessment, supra note 23, at 56-57. See also Virginia Assessment, at 31-32; Selling Justice Short; Juvenile Indigent Defense in Texas 15-16 (October, 2000) (noting the cultural atmosphere of the juvenile courts peculiar to those jurisdictions).

[45] Testimony of Robert G. Schwartz, supra, note 35.

[46] Testimony of Basil D. Russin 170, Interbranch Commission (Nov. 10, 2009).

[47] Test, Punish and Push Out: How “Zero Tolerance” and High Stakes Testing Funnel Youth into the School to Prison Pipeline 4, The Advancement Project, Washington D.C. (January 2010) (noting that in Pennsylvania, school-based arrests tripled in a seven year period); Dismantling the School to Prison Pipeline; NAACP Legal Defense and Education Fund, New York (2007); Wald and Losen, Deconstructing the School-to-Prison Pipeline: New Directions for Youth
Development (Jossey-Bass, Indianapolis, November 2003).

[48] Resolution 118 approved by the ABA House of Delegates at the August, 2009 annual meeting contained three subsets of recommendations, addressing the need to secure for all children a quality education, improvements in law to advance the right to such and education, protect the right to remain in school, as well as the right to return to school for children who may have left school.

[49] Resolution 103B, Zero Tolerance, ABA House of Delegates Midwinter Meeting, February 2001.

[50] Teske, Steven, School Safety and Graduation Enhancement Protocol (2004), Clayton County Juvenile Court, available at http://www.stopschoolstojails.org/clayton-county-georgia.html.

[51] See, e.g. Kim and Geronimo, Policing in Schools: Developing a Governance Document for School Resource Officers in K-12 Schools, ACLU White Paper, American Civil Liberties Union, New York (August 2009).

[52] Affidavit of Savana Redding 3, paragraph 20, at Redding vs. Safford Unified School District, et al. No. CIV 04-265-TUC-NFF (D.C. Ariz.).

[53] 469 U.S. 325 (1985).

[54] 557 U.S. __, 129 S.Ct. 2633.

[55] Left open by the decision, however, is whether the school district itself was amenable to suit, based on Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), which the Ninth Circuit did not address in its decision. The court remanded on that issue.

[56] Defending Clients who have been Searched and Interrogated at School: A Guide for Juvenile Defenders, National Juvenile Defender Center, Washington DC (2009), available at http://www.njdc.info, at “Publications.”

[57] Annino, et al., Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation 2, Florida State University, Tallahassee, (September, 2009).

[58] Ibid.

[59] The American Bar Association has filed briefs in support of Graham and Southerland, citing its “special interest in the improvement of the juvenile justice system,” and its juvenile justice policies. Brief Amicus Curiae of the American Bar Association in support of the Petitioners, 2-3 (filed July 23, 2009).

[60] Brief of Petitioner at 22.

[61] Reply Brief of Petitioner at 21-23.

[62] There is a distinct question as to whether the court will entertain Mr. Sullivan’s petition at all. His petition may be procedurally barred. He is now 31 years old and confined to a wheel chair with multiple sclerosis.

[63] Florida Supreme Court, No. SC 09-141, December 17, 2009.

[64] Should Kids Go to Court in Chains?, USA Today, June 17, 2007

[65] Supra, note 63, at 9.

[66] The Federal Advisory Committee on Juvenile Justice calls upon the U.S. Congress and the Office of Juvenile Justice and Delinquency Prevention to improve access to counsel, training and the effective assistance of counsel in the nation’s juvenile courts. Federal Advisory Committee on Juvenile Justice, Annual Report 2009 13-14 (Washington D.C.).

[67] Resolution 102A, Collateral Consequences of Arrest, Conviction or Sentencing of Juveniles, House of Delegates Midwinter meeting, February 2010.

[68] “Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: ‘The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts. . . .’” 387 U.S. 1, 18 (citation omitted).

This article was written by John D. “Jay” Elliott and is reproduced here with his permission.

John has been representing children for over thirty years. He is a recipient of the American Bar Association’s Pro Bono Publico award and its John Minor Wisdom award for his contributions to improvement of the justice system.

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