WILKES-BARRE – “I have never placed a kid for an improper reason.”
The comment, made by then Luzerne County Judge Mark Ciavarella in a May 2008 interview, was spoken with great passion.
He was defending himself against allegations raised by the Juvenile Law Center, a Philadelphia-based advocacy group that sought to overturn the convictions of hundreds of children who appeared before Ciavarella and who were not represented by an attorney.
Fifteen months later, the now ex-judge continues to insist he always had the best interests of children in mind when he ordered them to be detained in residential treatment facilities.
Yes, he and his co-defendant, Michael Conahan, accepted money from the owner and the developer of the PA and Western PA Child Care juvenile detention centers utilized by the county, both men have admitted in court documents. But there was no “quid pro quo” scheme at work, Ciavarella has repeatedly said in interviews with the media.
The U.S. Attorney’s Office and Juvenile Law Center have uncovered evidence that calls into question that assertion.
Statistics show the number of Luzerne County juveniles who were placed in residential treatment facilities increased significantly in 2002 – the year the PA Child Care center, which was co-owned by the former judges’ one time friend, attorney Robert Powell, was under construction.
In 1997, the first full year Ciavarella assumed the duties of juvenile court, 8.4 percent of juveniles who appeared before him were sent to an out-of-home placement, according to figures compiled by the Juvenile Court Judges’ Commission.
That figure dropped to 5.6 percent the following year, only to jump again to 13.8 percent in 1999. The statewide average in those years ranged from 10.8 to 11 percent.
In 2000 and 2001, the percentage of juveniles Ciavarella placed outside the home was 15.2 and 13.3, respectively, compared to a statewide average of about 10 percent. It was not until 2002, when PA Child Care was under construction, that the number of placements began to skyrocket to more than 20 percent.
The percentage stayed above 20 percent for the next six years, reaching a high of 25.8 percent in 2007, the last year for which data was available. The statewide average remained in the 10 percent to 13 percent range during that time period.
Conahan and his attorney, Philip Gelso, have repeatedly declined to comment on any aspect of the criminal case. Ciavarella has been more vocal, but he and his attorney, Al Flora, declined to comment for this story given recent developments in the criminal case.
The former judges are attempting to restore a plea agreement, rejected last month by Senior U.S. District Judge Edwin Kosik, which called for them to serve 87 months in prison on corruption charges.
In a series of interviews over the past four years, Ciavarella adamantly defended his handling of juvenile court. He readily acknowledged his placement rates were significantly higher than other counties. But he insisted he did so because he was convinced that probation did not work for most youths.
“My experience has been if you bring a child in who broke the law and put him on probation, chances are he’ll be back in the system in a short period of time,” he said in a May 2004 interview. “If a child believes the consequence will be anything other than placement, they don’t care. I have to find consequences that will get their attention.”
He pointed to other statistics that show the number of juveniles who commit new offenses while under juvenile court supervision is significantly lower in Luzerne County. The county’s re-offense rate ranged from 3.5 percent to 7.3 percent from 2004 to 2006, compared to a state average that ranged from 12.6 percent to 13.2 percent, according to the JCJC.
The judge also noted that the bulk of the children he placed in residential facilities were treated at boot-camp style facilities, not secure residential facilities like PA or Western PA Child Care.
Statistics gathered by Luzerne County Children and Youth Services show that boot-camp placements far outpaced all others. From fiscal year 2002-03 to fiscal year 2007-08, 2,554 youths were placed in that type facility. That compares to 697 juveniles who were placed in secure residential facilities.
And so the debate continues to rage:
Were Ciavarella and Conahan engaged in scheme that allowed them to profit at the expense of juveniles’ freedom?
Or are the former jurists being wrongly maligned for making rulings they truly felt were in the best interest of children, only to see those rulings tainted by their decision to accept money from Powell and Robert Mericle, the contractor who built the facilities?
Quid pro quo is a phrase derived from Latin that describes an exchange of an item or service for something of value.
In the former judges’ case, federal prosecutors say that “item” was their power to make judicial rulings that impacted PA and Western PA Child Care. They traded that influence for more than $2.6 million that Powell and Mericle paid them, according to the complaint filed in January by the U.S. Attorneys office.
The complaint contends the former judges took a series of actions that paved the road for PA Child Care, starting with Conahan’s 2002 decision to shut down the county-run juvenile detention center.
After PA Child Care opened in early 2003, prosecutors allege Ciavarella or his underlings then pressured probation officers to recommend detention, even when they believed the child should be sent home. Authorities further alleged Ciavarella also created a specialty court that increased the likelihood a child would be incarcerated.
Other evidence prosecutors have against Conahan and Ciavarella is cited in documents they filed as part of a criminal case against Powell, who pleaded guilty in July to assisting the former judges in hiding the source of the money he and Mericle paid them.
The document, known as a statement of offense conduct, alleges Conahan and Ciavarella pressured Powell into paying them more than $700,000, telling him he was making a lot of money off his juvenile centers and that he had to “pay for the privilege.”
But Ciavarella has called into question the logic of some of the evidence the government has presented.
In an interview in July, Ciavarella flatly denied he extorted Powell, calling him an “outright liar.” He insisted he had no leverage against Powell given that Conahan had signed a contract in 2002 that guaranteed the Pittston Township center an annual rental payment of $1.3 million regardless of the number of juveniles who were detained at the facility.
Comments made by a spokesman for Powell in 2008, when he was at odds with state Department of Public Welfare auditors, who alleged he charged exorbitant rates, also seem to contradict some of Powell’s allegations.
The statement of offense conduct says Powell acquiesced to the judges’ demands in part because he feared they would stop sending juveniles to his facilities.
But in a January 2008 interview, Daniel Fee, a spokesman for Powell, made it clear that Powell’s center would not go out of business if Luzerne County were to stop sending juveniles there. There were more than enough other juveniles from Philadelphia and other counties to fill the beds, Fee said.
“There is ample demand for those services,” Fee said.
Much has also been made of the fact that so many juveniles appeared before Ciavarella without an attorney.
The Juvenile Law Center, the advocacy group that first challenged Ciavarella, uncovered statistics that revealed that 50 percent of the juveniles who appeared before Ciavarella in 2005 and 2006 were not represented by an attorney. The implication is that, had the children been represented, they may have had a better chance of being sent home, instead of to an out-of-home placement.
But several attorneys interviewed by The Times Leader as part of a series of stories examining the juvenile system in 2004 candidly admitted that their presence often made little difference given Ciavarella’s staunch philosophical views on juvenile justice.
For instance, Ciavarella had a zero tolerance policy for crimes committed while in school. With rare exception those children would be sent away to an out-of-home placement, period.
“Basically, if something happens in school, no matter how minor it is, it’s going to result in the child going away,” Virginia Murtha-Cowley, a former public defender for Luzerne County, said in a 2004 interview.
Ciavarella made no apologies for his philosophy in an interview that same year.
“School is a place for kids to go and learn,” he said. “Two percent of kids at school should not ruin it for the other 98 percent. Anyone who gets in the way of that, I don’t have a problem sending them away.”
It’s not known when Kosik might rule on the reconsideration motion. Should he deny it, Conahan and Ciavarella would be left with the option of going to trial or proceeding with the plea before Kosik with no guarantee of the sentence. They could also try to rework a new plea deal, which would again be subject to Kosik’s approval.