Zero Tolerance Breeds Zero Justice

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Wilkes-Barre, Pa.—A poem on the wall of PA Child Care, a privately owned juvenile detention facility on the outskirts of town here in Luzerne County, begins like this:

Did you hear our cry
When Cuffs clicked on our wrists
Took us away from our families
Like they didn’t exist?
But that was on our behalf
Because of all the bad things we have done
We used to think being locked up was not that bad
We thought it was fun

That’s a fairly dead-on reflection of the approach that County Judge Mark Ciavarella took in his juvenile court. For a decade, Ciavarella imposed harsh sentences on first-time and low-level offenders, many of whom appeared before him with no lawyers.

Now Ciavarella has been taken away for the bad he has done: receiving kickbacks from the operators of two secure juvenile facilities in exchange for shutting down the county’s public detention center, then sentencing youths to the private facilities.

Based only on recent news accounts, it looks like greed drove Ciavarella and a co-conspirator, Judge Michael Conahan, to incarcerate youths needlessly, using kids as pawns in a scheme to defraud taxpayers of millions of dollars.

But a close look shows that what was going on might be even more depressing to juvenile justice reformers: Even before getting any kickbacks, Ciavarella had been locking up youths for small offenses that in other places are almost always handled by probation or outside the court system.

From the moment he took over the juvenile bench here in 1997, Ciavarella had a dramatic impact: Placements of juvenile offenders jumped nearly 50 percent his first year, and by another 118 percent by the end of 1999.

Local youth workers tried persuading him to back off, the local news media questioned his tactics, and a youth advocacy litigator challenged him in court. None of it mattered.

Ciavarella: When it comes to sending kids away, “I’m a man of my word.”

Photo: Times Leader

For the national youth work community, that may be a more frightening story than the kickbacks and corruption. Had Ciavarella not added financial corruption to his repertoire, he would still be practicing his brand of juvenile justice.

A Fair Judge Gets Booted

Luzerne County sits in the heart of the coal region, a group of northeastern Pennsylvania counties that used to depend on the anthracite coal-mining industry that thrived until the mid-20th century.

From 1981 until 1997, Judge Chester Muroski handled the county’s delinquency and dependency cases. Local youth workers recall him as fair. His philosophy when it came to first-time offenders, he says, was that confinement should be used only in matters of serious violence.

“He was doing a hell of a job,” said one former high-ranking Luzerne law enforcement official who is now a youth worker in a nearby county.

But in the mid-90s, the zero-tolerance approach began taking hold in Luzerne area high schools, just as it was in many parts of the country. Minor infractions that had long been handled by schools were being referred to Muroski’s court.

The judge, however, saw zero-tolerance policies as wrong-headed. “I wasn’t going to take cases that were more properly handled in school,” he said last month as he sat in his chambers, having recently become the new president judge in Luzerne.

Evans: “We started to see [the number of] kids going to Camp Adams skyrocket.”

Muroski’s approach prompted complaints from school districts. “There was a perception that I was too lenient,” he said.

That did not sit well with the president judge at the time, Patrick Toole, who moved Muroski off the juvenile docket. Into his place stepped Mark Ciavarella, who was elected as a judge in 1995 on a campaign pledge that it was “time for people who break the law to realize they’ll be punished,” according to local paper, The Citizens’ Voice.

Two years later, the Columbine High School massacre took place in Colorado; zero tolerance took an even firmer hold in schools and courts around the country.

The Crackdown

Under Muroski, a relatively small number of youths had been detained at the Luzerne County Juvenile Detention Center. A directory of detention centers published by the American Correctional Association reported that three juveniles were at the detention center on June 30, 1991. Muroski sent 65 youth to out-of-home placements in 1995 and 60 in 1996.

When Ciavarella took over, youth workers immediately noticed changes.

“We started to see [the number of] kids going to Camp Adams skyrocket,” recalled Ron Evans, who was working with the local Big Brothers Big Sisters at the time, referring to a military-style camp for juveniles.

Ciavarella sentenced 88 youths to placements in 1997, and 83 in 1998. The number jumped to 192 in 1999, and never again dipped below 135 during his tenure.

The change was evident at the Luzerne County Juvenile Detention Center, which could hold 22 youths while they awaited court appearances and out-of-home placements. Under Muroski, the center’s average daily census was 12 in 1995 and 14 in 1996. Under Ciavarella, that average never fell below 18 from 1997 through 2001.

The next year, Conahan and Ciavarella announced they would no longer send juveniles to the center because of deplorable conditions, even though the Department of Public Welfare deemed it safe. The county started leasing beds from a new, private facility, PA Child Care. From 2002 to 2006, Luzerne never averaged fewer than 19 youths per day at that facility.

What kind of offenses were getting youths sent away? Just ask some locals.

Ask Kim, a 27-year-old bartender at Big Ugly’s Sports Bar & Grill. As a teen, she said, a friend of hers was sent to Camp Adams for three months after a fight at her high school. A friend of Kim’s sister was locked up for several months for making a prank phone call to 911.

Ask Evans, now associate director of Catholic Social Services of the Diocese of Scranton. He recalled an honors student and Big Sister volunteer who was pushed into an altercation at her school. “They put her away,” Evans said. “There were a lot of kids removed from home for minor crimes: fights in school, smoking in school.”

Or ask Stephanie Grubert, owner and publisher of the Mountaintop Eagle and a former school board member for Crestwood School District. Both the paper and the school district serve Mountain Top, the well-to-do town where Ciavarella lived next door to Conahan (the other judge implicated in the scandal).

“Everyone knew Ciavarella’s tendency to lock kids up,” Grubert said. “The girl who does my nails, her daughter witnessed a fight. They all got charged.”

“It all starts with zero tolerance,” Grubert said. “Everyone just thought, ‘these are the rules now.’ ”

Ciavarella’s actions didn’t draw much attention outside the county; he was relatively unknown to the larger juvenile justice community. He was never a member of the Pennsylvania Juvenile Court Judges Commission, said its executive director, James Anderson. The National Council of Juvenile and Family Court Judges said Ciavarella was never a member of the council, and spokeswoman Jackie Ruffin could find no record of his attendance at any of its trainings. The council has declined to speak about the case.

Who Was Watching?

If so many youths and people who work with them saw what was going on, what about the people in the local legal system? Attempts to discuss Ciavarella with juvenile lawyers and probation officers indicate tolerance or indifference toward his judicial philosophy.

District Attorney Jackie Carroll Musto said she’s “never been a fan” of zero tolerance. She knew Ciavarella “was a known stickler and tougher sentencer” than many other judges, and that every year he visited every school in the district to “tell them we have a zero tolerance policy” in this county.

Musto, however, was not the one in juvenile court each day; her assistant district attorneys (ADAs) were. In 2005, half of the juveniles they prosecuted waived their rights to an attorney – 10 times the state average, according to figures collected by the Pennsylvania Juvenile Court Judges Commission.

And in every case since 2005, the ADAs watched as Ciavarella issued a finding without making the state-mandated colloquy about the youths’ right to counsel. (Ciavarella admitted last year that he never did it.)

Musto said that if her colleagues noticed anything out of line in Ciavarella’s court, “it was not brought to my attention.”

The public defender, Basil Russin, did not acknowledge requests for interviews from Youth Today. “We did not have the cooperation of the defender; I’m happy to say that on the record,” said Marsha Levick, an attorney for the Juvenile Law Center, which has spent years looking into cases of juveniles who faced Ciavarella. That office “was unwilling to help us.”

If any office should have known how far off Ciavarella was from the norm in terms of confining juveniles, it was the probation office.

For starters, Ciavarella frequently overruled recommendations of probation, instead placing youths in secure facilities, according to a class-action suit that the law center brought on behalf of youths who faced Ciavarella between 2003 and 2008.

Also, Pennsylvania has an advancement program designed to help juvenile probation officers (JPOs) network and learn best practices. The state will pay for officers with two years of service to obtain a master’s degree of science in administration of justice from Shippensburg University. Since the offer became available in 1982, some 550 officers statewide have received degrees. Six current Luzerne County JPOs received a degree through the program.

At the juvenile probation department, an office manager told Youth Today, “We have no comment,” even before she was told the purpose of the desired discussion with the chief juvenile probation officer, John Johnson.

Johnson’s predecessor, licensed social worker Sandra Brulo, is up to her neck in the corruption case. She pleaded guilty last month to obstruction of justice for attempting to cover up at least one instance in which she recommended probation for a youth who appeared before Ciavarella. Prosecutors allege she took the action to lessen her own culpability in the law center’s class-action suit. Brulo resigned in February and has agreed to cooperate with federal investigators.

Chris Shaak, vice president of Harrisburg, Pa.-based Youth Advocate Programs, got his start in youth work as a juvenile probation officer in Lebanon County. Recalling his days as a young JPO, he said it would be tough to complain internally about a judge without fear of repercussions. “The FBI would probably be the only route to go,” he said.

Sounding Alarms

Actually, some of those who were aware of the judge’s overbearing treatment of low-level offenders did challenge his actions – and their challenges all failed.

In 1999, the law center helped free a 13-year-old boy with behavioral health issues whom Ciavarella had placed in the county detention center after a two-minute hearing, during which the boy did not have a lawyer.

Ciavarella indicated after that case that he had learned his lesson about legal representation for juveniles. “Even if they come in and tell me that they don’t want a lawyer, they’re going to have one,” Ciavarella told the Wilkes-Barre Times Leader in 2001.

Evans, who left Big Brothers to become associate director of the local Catholic Social Services (CSS) branch in Wilkes-Barre, said he and others from the human services field met with Ciavarella to discuss the issue. CSS operates several services for juveniles, including a juvenile mentoring program.

“The human services people knew” what was happening in juvenile court, Evans said. “I’d talk at our board meeting about it, tell anyone who would listen.”

Evans and company pointed out Ciavarella’s statistics to him. The response from Ciavarella, according to Evans: “ ‘Our recidivism rate is low.’ Of course it’s going to be low if you send that many kids away!”

A study by the Center for Rural Pennsylvania of juvenile recidivism rates in Pennsylvania from 1997 to 2005 reported Luzerne’s rate at 30 percent, fifth-highest in the state.

Local newspapers noticed the trends as well. In 2004, after Ciavarella sent away a high schooler named Lisa for writing a threatening note to another girl, the Times Leader ran a slate of stories and opinion pieces on that case and three other examples of harsh sentences by Ciavarella. It also reported that skyrocketing juvenile detention admissions were going to cause a $3 million budget deficit for the county.

Only at YouthToday.org

For more on what the Luzerne scandal could mean for other parts of the country - including discussions of judicial authority and the role of private facilities in juvenile justice - visit JJ Today.

For more on the judicial scandal in Luzerne County, including links to court documents, visit the Juvenile Law Center.

Uncovered

In 2007, Hillary Transue, a 15-year-old Crestwood High School student, made a MySpace page mocking the assistant principal of her school. Transue was arrested for harassment.

Transue pleaded guilty on April 17, thinking she’d get a lecture and possibly probation. Ciavarella sentenced her to three months at a wilderness camp called FACT (Female Adventure Challenge Therapy). Ciavarella concluded the hearing by reminding her he had visited Crestwood High to warn students about his zero tolerance policy. This is from the official court transcript:

Ciavarella: “I didn’t walk into that school and I didn’t speak to that student body just to scare you, just to blow smoke, just to make you think that I would when I wouldn’t. I’m a man of my word. You’re gone. Send her up to FACT. Let her stay there until she figures it out. Thank you.”

Mother of Juvenile: “No, that’s not fair. That’s not what the officer said. That’s not what he said.”

Ciavarella: “Thank you.”

Transue’s family contacted the Juvenile Law Center, where attorney Levick remembered her last tangle with Ciavarella, when the center helped free the 13-year-old boy. “When we got a call from the MySpace [girl’s] mom” and realized it was the same judge the center had dealt with in 1999, “the lights went on.”

The center helped the family appeal Transue’s sentence. Less than a month later, Ciavarella vacated his delinquency finding and ordered Transue’s immediate release.

Using that case and a handful of others involving youths confined by Ciavarella, the center petitioned the Pennsylvania Supreme Court in April 2008 to review all of the cases that came before Ciavarella from 2005 to 2008. Among the statistics cited in the exhibits:

• The waiver rate for juveniles overall in Pennsylvania from 2003-07 hovered around 4 percent. In Luzerne, it never dropped below 50 percent. “Few kids waive counsel, generally,” Levick said. “Most judges don’t even invite kids to waive counsel.”

• Of youths who appeared before Ciavarella without counsel and were adjudicated delinquent in 2005 and 2006, 60 percent were sentenced to an out-of-home placement.

In January, the Pennsylvania Supreme Court rejected the petition.

Two weeks later, on Jan. 26, the U.S. attorney for the Middle District of Pennsylvania, in Scranton, charged Conahan and Ciavarella with wire fraud and conspiracy. The charges suggest a quid pro quo in which the judges received $2.6 million in kickbacks in exchange for assistance to the controllers of a company called Mid-Atlantic Youth Services (MAYS).

MAYS built and operates two secure detention facilities: PA Child Care (in Luzerne County) and Western PA Child Care (in Butler County). Conahan, as president judge, had ordered the closure of the public facility and made agreements to place youths at the MAYS facilities.

Ciavarella helped connect MAYS to contractors who helped build PA Child Care, but his main role in the scheme was simpler: He continued to fill beds in those facilities with juveniles.

The center refiled its petition to the Supreme Court three days after Ciavarella was charged. In February, following news that the judges had agreed to plead guilty, the court granted the petition. It appointed Judge Arthur Grim, president of the Pennsylvania Juvenile Court Judges’ Commission, to review all of the cases that came before Ciavarella from 2003 until 2008.

Last month the Supreme Court ordered the vacating of adjudications and expunging of records for many people who faced Ciavarella as youths. The order covers those who were not represented by counsel; had no prior or subsequent dealings with the juvenile court; and faced Ciavarella for third-degree misdemeanors, summary offenses, or certain drug or theft charges. The order could affect up to 1,200 youths and adults.

Any closure produced by the sentencing and other actions might obfuscate what the Supreme Court laid plain in its two opposite decisions. With corruption, Ciavarella’s harsh treatment of youths was deplorable enough to warrant a judge reviewing thousands of his cases. Without the corruption? Evidence of the same treatment was not enough.

“I wish I had done more, spoke out more publicly and directly to the judge and Sandy” Brulo, the former chief probation officer, said Evans of Catholic Social Services. “But who can stop a judge from doing this? Look what had to happen before it stopped.”

Correction: This article originally that the waiver rate for juveniles in Luzerne from 2003-2007 was 18 percent; it actually never dropped below 50 percent during that time period.

  • Larry Gardner

    One has to wonder, why did it take so long for these judicial abuses to be discovered. Where was the advocacy for children in Luzerene County. Yes, it is clear the judge is criminal in his actions. The lack of advocacy on the behalf of so many children should not go unoticed.