Kids for Cash

by William Ecenbarger

  In February 2004, reporter Mark Guydish, reporter for the Wilkes-Barre Times-Leader, was covering a routine meeting of the Crestwood School Board, when an outraged mother complained vociferously about the treatment of her daughter by school authorities and the Juvenile Court. This girl was Lisa, the girl who had written a prank note about bringing a gun to school and shooting young men in the kneecaps. The mother’s anguish seemed real and her story plausible, so Guydish talked it over with a colleague, Terrie Morgan-Besecker, who covered the courts and knew Ciavarella. They decided to look further. They discovered that a report committing Lisa to the camp found that for the girl to remain in her home “would be contrary to the welfare of the child” and that placement in the camp “is necessary because reasonable efforts were made prior to the placement to prevent or eliminate the need for removal of this child from his/her home.” But the journalists discovered that no one had visited Lisa’s suburban home nor interviewed her mother or grandfather, who also lived in the home. The journalists also learned that no one had talked to her teachers and that Lisa had not met with a guidance counselor or been evaluated during her five days at PA Child Care. These events seemed implausible, but when they went to Ciavarella and asked him about it, the judge not only confirmed it, but was unapologetic. Instead, he asked, “Was it my fault, or the system’s fault, that she passed the note?”

  A story appeared in the Times-Leader on May 16, 2004, under Guydish’s byline. It began:

  Cops knocked on the door while mom was at work. Handcuffs clicked around the slim 15-year-old wrists as a baffled grandfather watched.

  Police questioned her alone as they fingerprinted her. She waited five days in jail before a judge heard her case. When he did, he took only a few minutes to send her to a camp for delinquent kids.

  Until that moment, Lisa had been a model student, a participant in choir, plays, and the Science Olympiad. Suddenly she was a problem child, convicted of making “terroristic threats,” yanked from her family and shipped away to correct her wayward life.

  Five months later, Lisa’s mother, Laurie—she asked that last names be withheld—still talks about her daughter’s ordeal like a shell-shocked victim of friendly fire.

  What rattles Laurie, as she sits in her middle-class living room in a quintessential suburban development, is how kids charged with crimes get treated. It’s a world shrouded with secrecy in the name of confidentiality, and it is not what most adults think.

  Ask what she saw once caught behind the veil, and Laurie paints this picture:

  A school system that cuffs first and asks questions later, that bypasses guidance counselors in favor of police.

  A legal system that questions kids before parents know about the arrest and that jails youngsters for days before they get a hearing.

  A review system that deems a home unfit without visiting the home and that holds hearings at which no one from the family is heard.

  And a sentencing system that unnecessarily rips families apart by sending kids across state and even across country, setting students behind in school work by weeks.

  Lisa’s story became the opening salvo of a Times-Leader series in 2004 that ran over three days, examining the county’s juvenile justice policies and pointing out that Ciavarella’s tough stance had quadrupled the cost of placement and treatment in just five years. Contrary to most expert opinion on the topic, Ciavarella said that probation usually doesn’t work and only detention is an effective deterrent. “If a child believes the consequence will be anything other than placement (detention), they don’t care,” he told the Times-Leader. He said keeping juvenile offenders in the home environment often was counterproductive: “You just don’t understand how little these children have in terms of supervision at home, in terms of guidance, in terms of people that are helping them make the right decisions. By sending them back to that environment, it will be a waste of my time and their time.”

  Given the seriousness of the problem of school violence, Ciavarella said his placement of Lisa was justified, though he did concede he may have been mistaken in some cases: “Are there probably times that kids get placed, that maybe it was not necessary? Yeah, I’m sure there are. But I also believe there are a whole host of times we make the right decisions.” He said even though parents initially oppose his placement of their children, they change their mind: “I get letters all the time from parents who thank me. ‘You turned my daughter’s life around.’ ‘We finally have the son we knew we could have.’”

  But no such letter ever came from Lisa’s mother.

  The series cited other questionable placements by Ciavarella, including three high school girls who got into a fight and were sent away to detention centers at a cost of nearly $50,000 to the taxpayers. “Years ago a case like this would likely have ended with a several-day suspension,” the article pointed out. “But for juveniles who get in legal trouble in Luzerne County today, the days of a ‘slap on the wrist’ are long over.”

  Ciavarella had dismissed concerns over the rising juvenile detention costs in Luzerne County. “I’m not in the business to determine whether placement rates are up or down. I’m in the business of trying to help these kids,” he said. “If it takes sending a child to an institution to help that child deal with his or her problems, that’s what I’m going to do.” But of course he was very much in the business of keeping placement rates up at PA Child Care. In fact, the two judges had received another $490,000 from Powell.

  The Times-Leader series was solid journalism, and it outlined the reality of the injustices in Ciavarella’s court. Only the kickback angle was missing. Morgan-Besecker and her colleagues were proud of their work on the series: “We thought, surely someone’s going to see this story and someone’s going to do something. But nothing happened.”

  There were many reasons for the lack of public outrage, not the least of which was that public knowledge of the kickbacks was some five years in the future. But some of the muted response had to do with flawed public perceptions about juvenile justice in general and juvenile offenders in particular, with stories about youth street gangs and “young predators” dominating the news out of juvenile court. In fact, however, only about 5 percent of juvenile arrests are for murder, rape, and other serious violent crimes. The overwhelming majority of young people’s offenses are property crimes, including vandalism, and drug and alcohol abuse, and these were the sorts of offenses drawing disproportionate sentences from Ciavarella.

  Indeed, Ciavarella’s harsh policies with young defendants caused attorney Ferris Webby to seek to transfer some of his juvenile clients to adult court, where in Luzerne County they stood a good chance of getting a lighter sentence. For one thing, Ciavarella could set indefinite periods of incarceration while adult court judges were required to sentence within specified guidelines. Webby told Morgan-Besecker that he sometimes counseled parents that if their child went to adult court, he could assure them the child would not go to jail—but if they went before Ciavarella, he could make no such guarantee. Webby added that in most cases the trade-off was worth it.

  Not only did Ciavarella routinely ignore the rules of juvenile court procedure, his courtroom manner was indecorous and unprofessional. He would interrupt defense attorneys without reason, waving his hand in dismissal as though swatting a fly. As witnesses testified, he bantered with conspiratorial hilarity with police officers and school officials, cracking wise about football games. He was an avid Penn State fan, and it was courthouse lore that appearing before Mark Ciavarella after Penn State lost a football game the previous weekend would land you in deep trouble. He showed up for court one day wearing a NASCAR cap. Another day he stalked out of his chambers into the courtroom complaining that he had spent the weekend in New York going to baseball games and that the Yankees had lost both games. He once collected money from a probation officer on a sports bet just before sending a child to detention. Many of the juveniles who came before him found him terrifying, peering down at them through tr
ansition lenses with a kind of full-body sneer. Questioning his judgment only made matters worse. It was like trying to put out a fire with kerosene. Extenuating circumstances were dismissed with a mocking snort.

  At the beginning of the twenty-first century, the Justice Policy Institute and the Northwestern University School of Law profiled twenty-five American adults who, as juvenile offenders, had been successfully rehabilitated: “They are prosecutors, politicians, poets, and probation officers; academics, attorneys, athletes, and authors; students, stockbrokers, and salespeople; football players and firefighters. They have worked at the highest levels of governments, as advisors to Presidents, and in the U.S. Senate. They have prosecuted, defended, and judged their fellow men and women. They have achieved unprecedented feats on the field of athletic competition. They have served their country honorably in the military. Yet when they were kids, every one of them was in trouble with the law. But for the protections and rehabilitative focus of the juvenile court—a uniquely American invention that was the brainchild of a group of Chicago women activists a century ago—many of them would simply not be where they are today. And most of them would be the first to admit it.”

  In their seminal 2000 book, Youth on Trial, Thomas Grisso and Robert G. Schwartz likened the juvenile justice system to a pipeline: “Along the pipeline are diversion valves, which are the decision points at which children are either diverted from the pipeline or continue through its various gates and locks—these are the points of arrest, detention, adjudication, disposition, and disposition review. One of the signal characteristics of the juvenile justice system is its many diversion options: at every point of the system ‘valves’ are available to send some children home, some to other systems, and others to noninstitutional care. Another characteristic that distinguishes the juvenile justice system from the adult system is the theoretical importance that the juvenile system places on a swift flow through the pipeline.”

  Juvenile court was supposed to be distinctly different from adult court, where persons convicted of crimes were fined or imprisoned (or both) under sentencing guidelines. Ciavarella’s responsibility as a judge was to resolve each case that came before him as a special one—taking into account community safety and the crime victims while redirecting the child toward stable adulthood. To help him carry out this responsibility, juvenile law gave Ciavarella wide discretion in placement.

  Ciavarella’s approach was anchored firmly in airtight rectitude, antithetical to the whole concept of juvenile justice. Police arrested seventeen-year-old Kurt and charged him with being a lookout for a girlfriend who was shoplifting DVDs from Walmart. He was released, and a few weeks later a letter was sent to him at his father’s house ordering him to appear in court. But Kurt was estranged from his father, and he never learned of the letter. Months later he was summoned to the school probation office, where a policeman was waiting with handcuffs. He was taken in a squad car to PA Child Care, where he spent the weekend. The following Monday he had a ninety-second hearing before Ciavarella, who sent him to Camp Adams for a minimum of ninety days. Ciavarella did not advise him that he had a right to a lawyer. Kurt actually spent four months there. He had not stolen anything, and was guilty only of playing a minor role in a minor offense.

  The school-to-prison pipeline is a relatively recent phenomenon of students being arrested for what used to be considered normal adolescent misbehavior and being dealt with by school authorities without police involvement. The approach has led to absurdities nationwide. A five-year-old Florida girl was arrested by police for having a temper tantrum in her elementary school classroom. A fourteen-year-old Texas boy with Asperger’s syndrome was cited by police for uttering an expletive in school. An eleven-year-old Colorado middle schooler was charged with theft after he took a lollipop from a jar on his teacher’s desk. A Virginia eighth grader was suspended and ordered into a drug rehabilitation program after he borrowed a few ibuprofen tablets to deal with a headache.

  In a 2010 Report, “Test, Punish and Push Out,” a study group called the Advancement Project lashed out at the school-to-prison pipeline: “The absurdity of it is that most adults can recall multiple instances in which they committed these same sorts of acts when they were in school. Most of them subsequently learned their lesson without suffering serious consequences. Yet examples abound of districts that either mandate or endorse extraordinarily harsh punishments for behavior that—while it may need to be addressed—is actually quite typical and age-appropriate. As a result, the vast majority of punitive disciplinary consequences tend to result from relatively minor misbehavior or trivial student actions. The problem in most cases is not the student but rather the adults who react inappropriately to youthful behavior. Indeed, in a great many schools, it is seemingly no longer acceptable for young people to act their age.”

  •••

  During Ciavarella’s reign, a good kid with a clean record could end up in detention for a single, thoughtless act. Sixteen-year-old Ashley was on her high school’s honor roll, a Girl Scout, attended weekly Bible school, and worked on the school newspaper and yearbook staffs. She had no history of discipline problems in school, let alone a criminal record. During a family dispute involving her sister, police were summoned by her sister. Ashley tried to explain the situation to the officer, but he refused to listen and so she left and started walking to her mother’s house. On the way, the policeman drove by and in anger and frustration she gave him the finger. She was taken to the police station, where she was charged with resisting arrest and disorderly conduct—even though her gesture is not a crime and is covered by First Amendment rights. She was kept at police headquarters for several hours until her father came to pick her up.

  Two weeks later she and her father met with a juvenile probation officer, who told them Ashley would have to go to court, but since it was a minor matter, she didn’t need to retain a lawyer and could use a public defender. She estimated that her hearing before Ciavarella lasted two minutes. According to Ashley, the public defender said, “Good morning” to Ciavarella, who returned the greeting and then flipped through a stack of papers about three inches thick. He said that it was her record even though she had no record. Before another word was said, Ciavarella told her to sit down, her hands and feet were shackled, and she was taken to PA Child Care in a van.

  Once she settled in, her first concern was her schoolwork. She asked how she would be graded in her studies at PA Child Care and was told that there were no grades. She said the classes reminded her of her days in the second grade, including working in coloring books. After two months, she had a court-ordered evaluation by Dr. Vita, who concluded she was narcissistic and had anger problems. “They said I needed more structure in my life,” she recalled, and so she was sent to Adelphoi Village, a residential facility for young people with emotional and behavioral problem near Pittsburgh—about 250 miles from her home. She spent the next six months there. Again she found the education inadequate. She finally persuaded her teacher to get her some high school texts, and she studied on her own, even giving herself tests to measure her progress. She did not fit in with the other girls, who had committed actual crimes, some of them violent. During this time, at least one family member managed to make the five-hour trip every weekend to visit her. Ashley was released in early summer 2005, and managed to catch up on her schooling, making it back onto the high school honor roll. She went on to Bloomsburg University, where she majored in criminal justice and made plans to go to law school and become a lawyer specializing in juvenile justice.

  During her incarceration, her father sought legal advice on appealing Ashley’s case, but she said he was counseled not to: “They said it would take too long, and it would cost some crazy amount of money to do it. And my time would run out before I would get anything done with the appeals.” That was probably sound advice. Appeals from convictions and sentences, which are such a routine part of the adult criminal justice system, are rare in juvenile proceedings, even though Ash
ley’s offense, a harmless display of disrespect toward a police officer, coupled with her lack of prior legal difficulties, made Ciavarella’s adjudication and disposition vulnerable to challenge. Few reasonable people, lawyers or non-lawyers, would have agreed with it. Moreover, removing any child from her school and her home is a traumatic event and should be the last resort, not the first. But the appeals process in Pennsylvania and most other states is so cumbersome that Ashley likely would have completed her eight months of out-of-home detention before any relief was obtained. Had Ashley been an adult, she would have had the right to bail while her appeal was heard, and she would have had a very good chance of seeing her conviction overturned. But she was a child—and so she was shackled, denied her freedom, and taken away.

  Ashley was plainly different from a seventeen-year-old gang member who was part of a drug-trafficking operation, but under zero tolerance both were delinquents. Research by the John D. and Catherine T. MacArthur Foundation finds it is impossible to place young people who end up in court under a single classification: “Adolescents who become involved in serious crimes are not a particular ‘type’ but a heterogeneous group, much like their non-offending peers. They differ substantially from one another on a number of relevant dimensions: parenting styles, social development, the timing of psychological development, mental health, attitudes toward the law, and the level of substance abuse. Seldom are these differences among them considered by courts, nor are they usually translated by service providers into different types of intervention.”