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  Many of the victims talked about not having received their restitution, and many, many of them were very angry about that. Many victims talked also about their frustration over the loss of not only restitution, but personal and irreplaceable items of sentimental value. They talked of burglaries of family heirlooms, the grandparents’ jewelry, of coin collections that were never recovered. They spoke of personal items saved to pass along to their own children, war medals and work and retirement mementos destroyed in burglaries and in arsons. And for some victims the lack of any recognition or remorse or apology from the juvenile has increased the harm once these cases have been vacated and expunged.

  At the end of Lavery’s testimony, Cleland assured her that the commission was aware of the plight of the original victims: “So I’m glad that we have finally been able to give an opportunity, even indirectly, for them to have a voice and for us to hear the very practical and personal consequences of this juvenile justice tragedy. I don’t believe that there is anything that any of us on this commission can do to make it right. If we knew what to do, we would certainly do it. But I think that we all can say that we’re sorry that it happened to all of these victims, particularly that it happened to them at the hands of a system that we care about so deeply and that affected them so horribly.”

  One of the later witnesses was Juvenile Law Center’s Robert Schwartz, who said the Luzerne County tragedy was ironic because Pennsylvania had one of the nation’s most progressive juvenile justice systems:

  There are many reasons that Pennsylvania has been held in high regard. The state as a whole has had a relatively low rate of incarcerating youth. Our county-based system, tied to highly creative funding incentives, has encouraged local innovation. By giving broad powers to juvenile court judges, Pennsylvania created a system that is, in theory, highly accountable. Juvenile courts can order a delinquent youth to receive any service that is available to abused or neglected youth. Our laws place a premium on using the least restrictive method for achieving their goals, and there are many opportunities to divert youth from the system, or from placement within it.

  The commission spent an unexpectedly large amount of time, including its entire final hearing, trying to unravel the mystery of how the Judicial Conduct Board fumbled the 2006 complaint about criminal and unethical actions by Conahan. Joseph A. Massa, the board’s chief counsel, conceded to the commission that he sat on the complaint for nearly eight months before he informed the board about it in a memorandum that did not include a copy of the complaint. The memo also omitted key information, including Conahan’s relationship with Ciavarella. But the memo did contain detailed allegations of wrongdoing that the board never acted on. There were no interviews, subpoenas, or document reviews. Patrick Judge, the Luzerne County businessman and Conahan business partner who was board chairman in 2006 and 2007, testified that he recused himself when the memo was brought up in June 2007. The rest of the board voted to defer action until October, but the complaint was not on the agenda for that meeting and dropped completely off the radar. Indeed, the board didn’t even turn over the information to federal investigators until they were asked to do so in April 2008. Throughout the testimony of various board staff and members, it became clear that the members—all unpaid, part-time appointees—knew very little about the agency’s activities. In the end, Massa said he had simply allowed the matter to get lost in the bureaucratic shuffle, like an unpaid utility bill. “I hold myself accountable,” Massa testified. “It was on my list. There was nothing nefarious or in terms of a subterfuge at all. I am accountable.”

  The final report concluded that Ciavarella was most responsible for the “tragic events in Luzerne County.” As an example, the report cited Ciavarella’s fines court—the practice of rounding up juvenile defendants and, if they had not paid their fines, ordering them into detention at PA Child Care. It called the practice “Dickensian” and said it amounted to “effectively using the county detention center as a debtor’s prison for children.” But the commission found many other culprits: “The failures of the juvenile justice system do not stop with Ciavarella. The Interbranch Commission on Juvenile Justice found a far more complex and nuanced picture in which many individuals may be seen to have shared the responsibility. Silence, inaction, inexperience, ignorance, fear of retaliation, greed, ambition, carelessness. All these factors played a part in the failure of the system. Prosecutors, defenders and probation officials witnessed and participated in proceedings in Ciavarella’s courtroom.”

  The report leveled direct criticisms at some individuals. It said Lupas and Musto Carroll, the two district attorneys, “incredibly conceded that they had never set foot in a juvenile court throughout their entire careers” and “demonstrated no initiative, interest, or concern with what was occurring in juvenile court.” Russin, the chief public defender, did not properly monitor the activities of his assistants. “Through his silence and the silence of the juvenile defenders on his staff, Russin became complicit in the zero-tolerance policies instituted by Ciavarella and the routine placement of children for minor offenses.”

  The commissioners adopted the forty-three reform recommendations at a meeting that lasted only twenty-three minutes.

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  OUR LOCK-’EM-UP SOCIETY

  For several months after the Interbranch Commission released its recommendations, John Cleland struggled with a nagging question: Was what happened in Luzerne County merely a singular, bizarre departure from judicial normalcy? Or could it happen again elsewhere? The former possibility was widely believed, especially within the legal community. Indeed, addressing ceremonies celebrating the centennial of the Luzerne County Courthouse, Justice Max Baer of the Pennsylvania Supreme Court said the juvenile justice scandal that unfolded there was so far beyond anyone’s experience that no one could have foreseen it. A few months later, Cleland fired back at a statewide judicial symposium: “The hardest, and cruelest, lesson of Luzerne County is this: Given the structural and administrative limitations of our present justice system, to conclude with absolute assurance that what happened in Luzerne County could not happen anywhere else in Pennsylvania is not much more than wishful thinking.”

  In addition to the recommendations of the Cleland commission, Juvenile Law Center came out with a set of remedies for Pennsylvania’s juvenile justice system that sometimes paralleled and sometimes exceeded the Interbranch Commission’s. Some three years after the huge injustices and attendant bribery in Luzerne County came to light, many of the most important recommendations have become law. They were shepherded through the Legislature by state senator Lisa Baker, the freshman Republican from Luzerne County.

  In addition, the Pennsylvania Supreme Court, which had been so indifferent to the scandal before the kickbacks became public, had adopted a series of rules that embody most of the recommended reforms.

  Perhaps the most pressing area of reform was waiver of counsel. Currently, only three states—Texas, Iowa, and Illinois—totally forbid juveniles to decline legal representation. Pennsylvania had given juveniles the right to defense counsel at all phases of proceedings against them, but had also given them a broad right to waive that representation, which was exploited by Ciavarella. Under a new law signed by Governor Tom Corbett in April, 2012, only juveniles older than thirteen are allowed to waive counsel, and only under very limited circumstances. Baker called the measure “the cornerstone of reform and the surest remedy to ward off wrongdoing.”

  The experience in Luzerne County showed clearly that neither kids nor their parents are very dependable arbiters over the question of the need for legal representation. This situation was aggravated when probation officers actually advised children to decline legal representation—even told them that it would “make matters worse.” If parents were brought in, they were subjected to the same coercions plus the “why waste money on an attorney” argument. Additionally, it was sometimes the parents themselves who initiated the legal actions against their children. At othe
r times parents were angry with their children for being arrested. In either case, having parents decide whether to waive counsel presents an inherent conflict of interest.

  The importance of legal representation in protecting the basic rights of children is starkly illustrated by the fact that of all the kids who went before Ciavarella with a lawyer, only 22 percent were incarcerated. Among those who did not have a lawyer, the figure jumped to 60 percent. Juvenile Law Center’s Robert Schwartz adds another reason that lawyers are important: “Children place great value on fairness. There is a growing body of literature on procedural justice, explaining that youth more readily accept what happens to them if they feel they are treated fairly. This is something that parents understand. So should juvenile courts. Fairness includes giving kids and their witnesses a meaningful opportunity to be heard. It includes court orders that are proportionate to the offense. Fairness is at the heart of justice, and fairness begins with the right to counsel.”

  Baker’s reform package also implemented the commission’s recommendation that there should be no income measure for appointing public defenders and that all juveniles should have access to legal counsel in all phases of a proceeding. Many of the Luzerne County child-defendants, like Jessica Van Reeth, requested representation by public defenders but were denied because their parents’ income was too high to qualify them for free counsel. Under the new law, all juveniles will be presumed indigent, regardless of their parents’ income, for the purposes of public representation. Many of Pennsylvania’s sixty-seven counties, including recently Luzerne County, already automatically assign public defenders to juveniles, but this is not a legal requirement.

  The commission also recommended that state funds be made available to help counties finance public defender offices. Currently, Pennsylvania and Utah are the only states that do not provide state funding for juvenile defense. The money also is needed to provide other key elements of quality legal representation, such as investigators, expert witnesses, social workers, and paralegals. This funding change was not implemented.

  In nearly all of the cases where Ciavarella ordered out-of-home placement, he never bothered to explain his reasons for doing so or how it furthered the stated goals of “balanced and restorative justice” in the Pennsylvania juvenile system. Part of the Baker package requires juvenile court judges to make on-the-record statements justifying their sentences. The commission supported the change, saying it would add a level of transparency to juvenile proceedings, without opening them up to the public and media. And it would “serve as a reminder that out-of-home placement should occur only when there is a clear necessity to remove the child from the home.” The Pennsylvania Supreme Court also adopted a rule requiring these explanations of disposition.

  The court also adopted an anti-shackling rule stating that “the use of any restraints, such as handcuffs, chains, shackles, irons, or straitjackets, is highly discouraged” except to protect the accused and maintain courtroom security. The Florida Supreme Court approved a similar rule in 2009, citing a study by the National Juvenile Defender Center that found shackling to be “repugnant, degrading, humiliating, and contrary to the stated primary purposes of the juvenile justice system and to the principles of therapeutic justice.”

  However Baker said the restrictions on shackling should be given the weight of law, and Juvenile Law Center agreed: “Children should only be placed in shackles when there is an essential state interest, such as a flight risk, public safety threat, or a disruption to the courtroom that cannot be managed in other ways. Indeed, countless Pennsylvania courts do not use shackles or cuffs. They find that sheriffs, police, probation officers or court personnel can easily manage risk 99 percent of the time.” The JLC noted that adult criminal defendants are less likely to be shackled than children in Pennsylvania. Baker’s bill was signed into law in May 2012.

  There was considerable national attention on shackling juvenile defendants following a 2007 article in USA Today which showed that juvenile courts in twenty-eight states regularly shackled youths at their hearings. Many states subsequently restricted the use of such restraints, and at least five of them—California, Illinois, New York, North Dakota, and Oregon—give defendants the right to a hearing on whether they should be shackled.

  The Legislature acted quickly on the commission’s recommendation for the establishment of a special fund to compensate the “original victims” of juvenile crimes who were denied restitution because of the mass expungement order. A $500,000 Special Juvenile Victim Compensation Fund was created, and payments began in July 2011.

  However other recommended reforms had not been enacted more than three years after the scandal came to light. None is more controversial than open juvenile court hearings.

  Among the important elements of the “perfect storm” that struck the Luzerne County juvenile justice system was Pennsylvania’s requirement that court hearings be closed to the press and public for all but the most serious offenses. The good intention is to protect the privacy of the youths, but the undesired by-product is that there is no outside monitoring to protect their rights. Juvenile Law Center has recommended that juvenile proceedings be opened, while giving any party the right to close them for good cause. “There’s a reason that the Bill of Rights includes a right to a public trial,” says Schwartz. “Citizens have an interest in how justice is dispensed, and defendants don’t fare well in a star chamber. Juvenile courts have traditionally been closed to the public to protect privacy. Unfortunately, that provision offers little or no outside monitoring to ensure that youths’ rights were not violated.” Juvenile Law Center added that there should be strict safeguards to limit the distribution of sensitive information by the media. In many states, including Florida, Tennessee, Texas, and New York, juvenile courts are open to the public unless good cause is shown as to why the public should be excluded.

  However, the Interbranch Commission said the present restrictions closing most juvenile proceedings should be continued because it would be impossible to adequately protect the privacy of the children brought before an open court, thereby “exposing them to the possibility that the facts surrounding childhood misconduct could be perpetually maintained in news clippings, and now even on the internet.” Instead, the commission said the best protection against abuse of judicial power was to strengthen the appeals process in juvenile cases and toughen the mechanisms for disciplining errant judges.

  Although appeals of convictions and sentences are common in adult courts, currently there are few appeals from juvenile courts decisions in Pennsylvania because many cases involve guilty pleas and because court-appointed attorneys have high caseloads and lack resources.

  The commission recommended a streamlined appeals process under which youths could seek prompt relief from unfair adjudications. It noted that many of the parents of children treated unjustly by Ciavarella went to great expense and effort to free their children from detention—usually to no avail. “Parents should not have to exhaust their resources and search throughout the United States to find ways to protect the constitutional rights of their children. Additional steps should be taken to ensure that juveniles understand their appellate rights and are able to take advantage of the right to appeal.”

  Juvenile Law Center said the case of Hillary Transue was a good example of the need for an effective, fast-track juvenile appeals process. Ciavarella found Transue guilty of harassment for her MySpace parody of the assistant principal and ordered her into juvenile detention for ninety days. It was an imprecise application of the harassment provisions of the Pennsylvania Crimes Code that many lawyers would have refuted, and Hillary would have had an excellent chance of getting her adjudication and placement sentence reversed. But Hillary, who did not have an attorney, admitted to Ciavarella that she did the parody. There was no clear avenue of appeal open to her.

  “If juvenile courts are to be truly accountable, there must be a fast track for appeals, a qualified right to a stay pending appeal, and
a standard of review that provides meaningful oversight of juvenile court dispositions.” Schwartz said. “In addition, of course, there also must be knowledgeable lawyers available to work on appeals.”

  The commission rejected Juvenile Law Center’s proposal that a state ombudsman office be created in the executive branch to monitor juvenile court practice and investigate possible wrongdoing. Currently, no state has such an agency, although there are ombudsman offices in Alaska, Maryland, and New Jersey that monitor courts in some manner. Juvenile Law Center said such an independent watchdog might have analyzed available statistics and detected the unusual number of counsel waivers and out-of-home placements in Ciavarella’s courtroom. But the commission said the new office was an unnecessary addition to the state bureaucracy and that “the resources that would be needed to create and maintain the office of ombudsman could be put to more productive uses.”

  With the help of the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative, Clayton County, Georgia, has developed a model program for blocking the “school-to-prison” pipeline. Juvenile court judge Steven Teske sat down with police and school officials and developed specific guidelines for what types of behaviors would be handled within the schools. Teske said that the changes have resulted in dramatic decreases in school-based court referrals and juvenile felony rates while raising graduation rates by about 20 percent. “Now, instead of automatically arresting youth, school police have a variety of options, including giving students up to two warnings and referring them to a conflict skills class,” according to Teske.

  Because it believed the issue was beyond the scope of its authorized inquiry, the commission did not tackle the difficult issue of private juvenile detention facilities that operate for profit, such as PA Child Care. Pennsylvania, like most other states, maintains a network of state-operated facilities for juveniles who are taken out of their homes by the court and, to use the approved euphemism, “placed.” But most of these young people end up in private facilities, the overwhelming number of which specialize in such problems as learning difficulties, drug and alcohol abuse, and emotional instability. The nonprofit centers, subsidized by government funds and licensed by the state, are the backbone of the detention system.