Looking for Lessons
What can we learn from Luzerne County's incarcerate-kids-for-money scandal?
by Daniel Denvir
Published: March 4, 2009
In the wake of a scandal, people often take note of problems that previously went overlooked. Sometimes a crisis offers a chance for reform.
Federal prosecutors recently charged that in Luzerne County, just south of Scranton, former Judge Michael Conahan facilitated the 2002 closing of a county-run juvenile detention facility and the opening of two privately run centers: Pennsylvania Child Care LLC and Western Pennsylvania Child Care LLC. Conahan and Judge Mark Ciavarella then received $2.6 million over seven years in payments from the two centers in return for Ciavarella sending youths there — including youths whose transgressions really didn't seem to merit incarceration.
The judges have pleaded guilty to wire fraud and income tax fraud, and face 87 months in federal prison.
Now, some advocates are arguing that the pay-to-play scandal goes beyond two judges, and reveals deeper problems in Pennsylvania's juvenile system — particularly with its defense attorneys.
Pennsylvania is the only state aside from South Dakota without a state-financed juvenile public defender. The state also allows children to "waive" the right to counsel. Here in Philly, juveniles facing charges have the benefit of well-funded public attorneys, and rarely go to court without a lawyer. But young people in other parts of the state are less fortunate.
Marsha Levick, general counsel to the Philadelphia-based Juvenile Law Center (JLC), puts it this way: "If you live in Philadelphia, you get very good legal services from the public defender office here. If you live in another county that has fewer resources or has simply chosen to allocate fewer resources to their public defender office, they will be less resourced, they will carry larger caseloads, they may have limited access to investigative resources, they may not have social workers to assist in figuring out where kids go once they're adjudicated." These inadequacies, she believes, contributed to what happened in Luzerne.
The JLC became suspicious of Luzerne County before the story of the judicial scandal broke. Last year, the agency got a call from the parents of Hillary Transue, a teenage girl who was sentenced to a wilderness camp for creating a MySpace parody of her assistant principal. The JLC decided to
take a closer look at Luzerne's juvenile courts, and found that 50 percent of juvenile defendants "waived"
their right to counsel, a rate about 10 times higher than the state average.
In April 2008, the JLC asked the Pennsylvania Supreme Court to exercise its "King's Bench" power, which allows the court to intervene in any aspect of the state's judicial system, and to vacate — or void — the sentences of youths convicted without a lawyer in Luzerne. The Supreme Court rejected the application, only to reverse its decision last month after the charges were announced.
Now the JLC is wondering why no defense attorneys in Luzerne sounded the alarm.
Luzerne County public defender Basil Russin denies responsibility for the scandal. "We represent people who come to us for representation.
We don't oversee the court," he says. Russin says his lawyers were kept out of the courtroom if they weren't with a client.
Still, advocates say public defenders from Russin's office should have been aware that a large number of minors were waiving their right to counsel. Levick wonders if defenders, facing the same judges every day, were afraid to rock the boat by speaking out — or simply overwhelmed.
In his conversations with City Paper, Russin said his office was adequately funded — it had a 2008 budget of $1,771,819 — although he also said that his lawyers are overwhelmed, with an average yearly caseload of over 300 per lawyer. The National Legal Aid and Defender Association recommends that public defenders carry no more than 200 cases a year.
Robert Listenbee, president of the Juvenile Defenders Association of Pennsylvania (JDAP) and chief of the Juvenile Unit of the Defender Association of Philadelphia, says it's clear there's a systemic problem.
"If one falls down in a system this big, you ought to have two others who are stepping in. ... everyone was obviously bullied or who knows what else," he says.
Stuart Ditzen, a communications staff person at the Pennsylvania Supreme Court, says the court is acting to take care of the situation in Luzerne, and rejects the JLC's allegations of widespread problems.
"The Pennsylvania juvenile justice system is held in very high regard," he says. He also says the JLC application to vacate sentences lacked merit.
Most Pennsylvania judges are held in high regard, and the state has a low juvenile incarceration rate. But advocates like Levick bemoan the state's failure to adequately fund juvenile defenders, and the lack of strong standards for those defenders.
There's no consensus about what reforms are needed. But many advocates agree that the Supreme Court or legislature should make it impossible for a minor to waive the right to counsel. They'd also like clear standards for defender funding and caseloads.
This is not the first time these issues have come up. In 2003, an assessment by the American Bar Association Juvenile Justice Center and the JLC called for statewide standards. The report also noted the often unequal funding of prosecutors and public defenders.
Sandra Simkins, who co-directs the Children's Justice Clinic at Rutgers University-Camden, says the corruption that occurred in Luzerne wouldn't have gone unreported in New Jersey, which has a statewide defender office and uniform standards. "There's more oversight," she says. "In Pennsylvania there really is justice by geography."
Statewide standards and funding are not silver bullets. Florida and other states with statewide defender systems are rife with abusive detention facilities and underfunded lawyers. But they're a place for Pennsylvania to start. The state Juvenile Defenders Association is currently developing standards that would make it "virtually impossible" for a young person to show up in court without a lawyer, which it hopes the Supreme Court will adopt.
Levick thinks the need is pretty basic. "There's a floor of constitutional representation that we're not even at. We need to at least get there," she says.
Daniel Denvir is a freelance journalist who recently moved from Ecuador to Philadelphia.