Weekly Notes: Big Decision in Luzerne, LWOP cases before Supreme Court, PROMISE Act Moves to Committee

***HUGE Luzerne Update! The Pennsylvania Supreme Court has decided to vacate all adjudications of youths who faced disgraced Luzerne County juvenile judge Mark Ciavarella between 2003 and 2008. Advocates for youths who faced the judge believe the decision will result in about 6,500 vacated adjudications.

Ciavarella originally entered into a plea agreement regarding his role in a scheme that entailed closing down a public detention center and steering Luzerne County’s business toward a private provider. But he and fellow judge Michael Conahan, who together allegedly received undisclosed millions for their efforts, had their pleas tossed and will stand trial.

There was definitely some question as to whether the court would agree completely with Judge Arthur Grim, the judge assigned to investigate the case, and who recommended universally vacating the adjudications. Would the court limit it to just youth who went to one of the private detention centers? Or just youths who appeared sans attorney?

In the end the court made clear that anything Ciavarella did in those years was tainted past the point of a more nuanced solution: “Whether or not a juvenile was represented by counsel, and whether or not a
juvenile was committed to one of the facilities which secretly funneled money to Ciavarella and Conahan, this Court cannot have any confidence that Ciavarella decided any Luzerne County juvenile case fairly and impartially while he labored under the specter of his self-interested dealings with the facilities,” the court said in its opinion handed down on Thursday.

The court also instructed that all of the youths’ records be expunged, but that copies of their records be retained “under seal in accordance with any other order of the court.” That should keep the records available for the class-action lawsuit filed by nonprofit Juvenile Law Center against the county, the judges and a number of other parties.

The Luzerne County District Attorney can choose to seek adjudication for any juvenile whose case is still pending from the Ciavarella era; otherwise the youth’s record will be expunged.

The Supreme Court’s strong vote of no confidence in anything Ciavarella did could have an impact in a civil trial. The defense in the class-action lawsuit, assuming it is not settled out of court, will almost certainly hinge on the argument that any nefarious acts took place around the adjudication of youths, not involving their adjudications; that any money allegedly paid the  judges was for closing the center, not for adjudicating more youths.

The court’s statement that it did not have “have any confidence that Ciavarella decided any Luzerne County juvenile case fairly and impartially” could persuade a jury that, in fact, the uptick in adjudications between 2003 and 2008 was not just because Ciavarella is heavy-handed by nature.

***Meanwhile, the highest court  in the land is set to hear two cases –Sullivan v. Florida and Graham v. Florida ­— in early November. The court could end or limit the practice of sentencing juveniles to life in prison without the possibility of parole (LWOP). Washington Post  reporter Robert Barnes wrote a terrific piece giving background on the cases, which ran yesterday.

The cases carry significantly different implications: Sullivan could prompt the court to end LWOP for really young teens, the Graham case would more likely affect LWOP for non-homicide offenders (see our post on this from May). Despite that, the cases drew an exactly identical field of amicus briefs: 21 total, six in support of Florida law, 14 for the plaintiffs challenging the law, one neutral.

The nonpartisan filing was the brief filed by the American Medical Association and the American Academy of Child and Adolescent Psychiatry, which did not weigh in on whether LWOP violates the Eighth Amendment’s protection against cruel and unusual punishment, which is the constitutional question before the court. The brief instead illuminates the scientific differences between adults and adolescents when it comes to things such as judgment and culpability.

Like the juvenile death penalty decision in 2005, the court’s decisions could have a lot to do with indications of sweeping national and global abandonment of LWOP, at least for some juvenile populations. One argument to keep LWOP available for all juveniles is presented in a brief filed by the National Organization of Victims of Juvenile Lifers, an umbrella group for a number of organizations that serve and represent victims of juvenile offenders (entire brief available here).  

When the court’s decision in Roper v. Simmons abolished the juvenile death penalty, the brief argues, the court reasoned the life without parole:

would sufficiently serve as a deterrent, one of the death penalty’s “two distinct social purposes.” This Court stated “[t]o the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.” Thus, this Court relied on the availability and constitutionality of life without parole for juvenile offenders for its conclusion the death sentence for juveniles violates the Eighth Amendment. To hold contrary now, a mere four years later, would be an egregious bait-and-switch that re-victimizes and retraumatizes innocent victims who deserve consistency and finality of the law.

Our guess is that LWOP does not go away, but is curtailed to some extent. The number of cases where really young or non-homicide offenders are getting these sentences is low, and concentrated in a handful of states.

***The PROMISE Act, which would fund the development of community plans for helping young people avoid paths to violence, has moved out of the House subcommittee on crime, terrorism and homeland security. The march out of subcommittee is generally not a move that warrants mention on this blog, especially when the author of a bill is also the subcommittee chair; in this case, Rep. Bobby Scott (D-Va.).

But JJ Today knows that last year, Scott refused to move the bill out of committee because he did not want to risk the chance of it being melded in conference committee with the prevailing crime prevention bill on the Senate side at the time, Sen. Dianne Feinstein’s (D-Calif.) Gang Abatement Act. The fear there: Feinstein’s bill is heavy on increased penalties for gang activity and funds for law enforcement, and Scott wants none of either in his legislation.

Things have changed since last year. PROMISE Act now has 232 co-sponsors, a sister bill in the Senate submitted by Sen. Bob Casey (D-Pa.), and is supported by 24 members of the House Judiciary Committee, which is the next group to vote on it. Meantime, Feinstein has lost some sponsors, so it looks as though Scott is confident that one of two things will happen: Feinstein’s bill will go away, or he can forge an agreement that includes only Feinstein’s language about community programs.

A Judiciary committee vote could come as soon as two weeks from now.


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