There’s so much to say about the judges’ scandal in Luzerne, Pa.
Our front-page story in April focused on the most telling aspect of the case for youth work professionals: Before he ever took a corrupt dollar, Judge Mark Ciavarella was committing an absurdly punitive brand of juvenile justice. Had the corruption never happened, the evidence shows that Ciavarella would still be orchestrating an abuse of power over youths who appear before him.
That is hardly the only storyline, though. Here are two others that are particularly germane to the juvenile justice field:
1. Judicial authority
Ned Loughran, executive director of the Council of Juvenile Correctional Administrators, cites three basic models:
Executive model – a state or county agency makes decisions on adjudication.
Judicial model – judges make the decisions.
Legislative model – legislature passes a sentencing grid, which basically dictates what everyone does with juveniles. (Washington state does this.)
Pennsylvania follows the judicial model, which means the juvenile judges in each of the state’s 67 counties have the power to make decisions on every aspect of case disposition – including probation and out-of-home placement – based entirely on their judicial philosophy. The power to make out-of-home placements was the key to Ciavarella’s role in the corruption. Because once a youth is deemed “bad” enough for placement, he or she is almost never allowed to go home and wait for a spot at a correctional or residential facility to open up. So he or she must wait it out in secure detention.
“Many states give judges that authority to dispose, place and dictate placement,” said Barry Krisberg, president of the National Council on Crime and Delinquency.
Usually, such powers are not so fully given to one person, says former juvenile judge Frank Orlando, who 36 years ago founded the Associated Marine Institute, which operates day and residential programs for juvenile offenders. In Florida, where Orlando served as a juvenile judge in Ft. Lauderdale, a placement coordinator makes the assessment to place a youth and decides what level of security (two, four, six or eight) is needed.
A judge can often use his influence to place in a youth in a lower-security facility, Orlando said, or even to change his path to a non-residential program. But a judge cannot push placement coordinators to go to higher security.
However, Orlando said Florida is considering legislation to enhance the power of juvenile judges in placement matters.
Which system is better?
One huge difference between having judges dictate post-adjudication destinations, versus having agencies do it, is that the latter process provides more of a check on power. If the director of a juvenile justice agency had tried to place the same kind of youths that Ciavarella did – many of whom were low-level, first-time offenders – he would have had a boss to answer to if there was public outcry: a mayor, county commissioners, governor, or someone.
Who could have stopped Ciavarella’s outlandish behavior? There is certainly a list of people in Luzerne who could have pushed harder against it: youth work leaders, lawyers on both sides, probation officers. But holding judges accountable is not in any of their job descriptions.
The man who leads the Juvenile Law Center (JLC), the nonprofit seeking to right many of Ciavarella’s wrongs, is okay with Pennsylvania’s judge-centric model.
“In general, I like [Pennsylvania’s] system,” says JLC Executive Director Bob Schwartz. “There’s more accountability, the lawyers have more say in discharge planning. I don’t know anywhere that kids’ lawyers are involved the way they are in Pennsylvania.”
Loughran respectfully disagrees. “I have always been opposed to it,” he said. “Sixty-seven counties with 67 decision-makers, and no single guideline.”
Loughran espouses the executive branch model, which is no surprise since he helped develop that system when he ran the Massachusetts Division of Youth Services for 13 years. “In that model, there is one person to hold accountable,” he said.
But if Pennsylvania and others insist on a judicial model, he believes the states should have legislation that at least places juvenile offenses into a classification system. That gives judges leeway to select from a range of options within a class, but not to go over the top and sentence a youth who smoked pot to a sentence that’s been deemed appropriate for the most serious class of offenders.
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2. The role of private facilities
People who think this case connects to some budding reliance on private facilities in Pennsylvania are kidding themselves, said Melissa Sickmund, the chief of systems research at the Pittsburgh-based National Center for Juvenile Justice.
“I keep hearing about the new privatization movement,” said Sickmund. “It’s like, since the dawn of time. … Hello?”
That is hardly just a Pennsylvania thing, although Pennsylvania is one of the states most known for private contracting. (Florida and Massachusetts also stand out). The Juvenile Residential Facility Census for 2004 (sadly, the most recent year available) showed that 57 percent of the 2,609 juvenile facilities in the United States were privately operated.
Sickmund, who knows as much as anyone about the trends in facility management, believes Pennsylvania’s network of private providers does a good job. Schwartz, the head of Juvenile Law Center, agrees. “Pre-trial, they provide alternatives to secure detention,” he said. “At disposition, they also provide non-secure alternatives to state training schools.
“While Luzerne is a counter-example, in general they are held accountable through state licensing, county contracts, and judicial review.”
Neither Sickmund nor Schwartz believes the private sector has much of a place in the secure detention business. “Because detention is not about treatment,” Sickmund said, and treatment is what private facilities do better than public ones.
The data indicate that most jurisdictions agree. While 57 percent of all juvenile facilities are private, as noted above, only 16 percent of the nation’s 757 juvenile detention centers are privately operated, according to the 2004 census.
The treatment-oriented private facilities have their critics as well. “Private, for-profit vendors tend to get very cozy with probation,” Krisberg said. “If there is a lesson to be learned in this case, it’s that there needs to be very strict enforcement of ethics when it comes to probation or judges and private vendors.”
The issue of facilities wooing decision-makers is one we hear all over the place: sending probation officers and judges tickets to sporting events, paying for rounds of golf, buying meals – the kinds of things that lobbyists can no longer do for congressmen.
Loughran said Massachusetts got around that problem, at least with secure beds, by paying a flat rate annual rate for those beds rather than per diem rates. That eliminated the need for those providers to lobby judges and legislators to fill their facilities, because they got paid whether or not a juvenile was in a bed.
Massachusetts did not use that system for residential treatment beds. Could requiring flat payments to private residential facilities eliminate the lure of sending youths to those facilities unnecessarily?
Luzerne exposes another issue with private facilities: When youths are being sent to a residential treatment center but do not really need treatment, shouldn’t a reputable facility say something about that to somebody?
One juvenile justice professional in the state laughed heartily at the suggestion. “The reality is, residential facilities thrive on easy kids,” he said. Otherwise, “there’s no way of controlling the bad ones. They become role models and pad [the program’s] outcomes.”
