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Getting the Juvenile-Justice System to
Grow Up
March 24, 2009
By Ken Stier
 If
it's not the biggest scandal in American legal history, many are
calling it at least the darkest day for the country's
troubled juvenile-justice system.
For more than four years earlier this decade, two senior county
juvenile-court judges in northeastern Pennsylvania took kickbacks of
$2.6 million in exchange for packing thousands of kids off to
privately owned detention centers. Many of the kids had committed
minor offenses and didn't have the benefit of a lawyer. A
14-year-old from Wilkes-Barre, for instance, spent a year in a Glen
Mills detention facility for the offense of stealing loose change
from unlocked cars to buy a bag of chips; he was only set free after
public-interest lawyers challenged the constitutionality of the
punishment. (See
pictures of children behind bars.)
The miscarriage of justice goes
beyond the judges, Mark A. Ciavarella Jr. and Michael T. Conahan,
who pleaded guilty on Feb. 12 to federal charges of wire and income
tax fraud and face the prospect of more than seven years in prison.
State and federal authorities are still investigating the case, and
the owners of the detention center, PA Child Care, have not yet been
charged. (The owner, Greg Zappala, says he didn't know anything
improper was going on, while a former co-owner claims he was a
victim of extortion by the judges.) What's more, many prosecutors,
public defenders and other court officials apparently turned a blind
eye to the abuses, shocking parents who had expected a fine or
probation and instead watched their children be dragged off into
custody. When the mother of the 14-year-old arrested for stealing
the loose change asked to hire an attorney, she was told by one
defense counsel it would be a "waste of money" because the judges
would not listen. Now that the scheme has been unearthed, some 5,000
kids have grounds for suing, and many have already joined a class
action against the two judges, the center's owner and other
defendants. In addition, many are attempting to have their records
expunged, though their bad memories of the experience will never be
erased. (See
pictures of a diverse group of American teens.)
As egregious as the case is,
experts say it is all too indicative of a juvenile-justice system
racked with abuses yet subject to far less scrutiny than the adult
system it increasingly mirrors. The entire Texas juvenile-justice
system had to be overhauled two years ago after it was discovered
that kids were arbitrarily held years beyond their original sentence
and that many were sexually abused. Recent studies have shown high
recidivism rates from graduates of the
private boot camps that were in
vogue under then President Bill Clinton after he endorsed the
experience as Governor of Arkansas. (Read "Boot
Camps Take Another Hit.")
Nationwide, the system, which sends
kids to a mix of large public "kiddie" prisons and smaller (but far
more numerous) privately owned ones, handles more than 1.6 million
juvenile cases a year; detentions have increased 44% from 1985 to
2002, the most recent year for which data are available. And that
doesn't include the number of young offenders who bypass the
juvenile system altogether. Every year, some 200,000 youths are
tried, sentenced or incarcerated as adults, and on the first
instance of trouble, often for relatively minor crimes, according to
the Campaign for Youth Justice; those kids are 34% more likely to
get into trouble again by committing new crimes, according to a
government study.
Many advocates and academics argue
that juveniles are not being given enough of a chance to turn their
lives around after committing minor offenses. And officials at both
the state and federal levels seem to be getting the message. Last
summer, after reviewing a large swath of research literature, the
Department of Justice concluded that "to best achieve reduction in
recidivism, the overall number of juvenile offenders transferred to
the criminal-justice system should be minimized." That came three
years after the U.S. stopped executing minors, following a Supreme
Court decision, Roper v. Simmons, that was largely based on new
brain research showing that the full development of the frontal
lobe, where rational judgments are made, does not occur until the
early- to mid-20s. At the state level, Missouri is leading the
country by phasing out its large juvenile-detention institutions in
favor of smaller facilities, closer to kids' homes, that offer more
specialized services, like mental-health and drug counseling and
education. In the process, the state claims to have reduced
recidivism rates for juvenile offenders to 10%, compared with a
national rate of 40% to 50%. "We cannot incarcerate our way out of
this problem of juvenile crime," says Shay Bilchik, director of
Georgetown University's Center for Juvenile Justice Reform, who
served as Clinton's point person on juvenile issues at the Justice
Department.
Occasionally the widespread
problems at juvenile facilities erupt in scandals, as in the
aforementioned Texas, or in Mississippi, where minor offenders were
hog-tied in facilities that sometimes had only dirt floors, run by
guards with barely a high school education. Federal officials
occasionally intervene against egregious facilities where there have
even been some deaths along with thousands of allegations of abuses.
But experts say simply trying to weed out the bad actors is not a
viable solution. At a congressional hearing in October 2007, Jan
Moss, executive director of the National Association of Therapeutic
Schools and Programs, said the industry wanted stronger regulation.
"Among our goals is the complete elimination of the abuses and
neglectful practices we have heard about today," she said. "Clearly,
we have a long way to go."
Her sentiments are echoed by
advocates who are working to clean up the system. "We are closing
Guantánamo, [but] we need an equal amount of attention to the abuses
of restraints and excessive use of isolation in the facilities where
our nation's children are being held," says Mark Soler, executive
director of the Center for Children's Law and Policy, who has spent
30 years litigating against such abuses. Soler argues that only the
most violent juvenile offenders really need to be detained — roughly
5% of the more than 90,000 who are currently institutionalized in
juvenile correctional facilities. (See
pictures of crime in Middle America.)
Surveys have determined that while
as many as 75% of kids sentenced to some kind of facility need
support for mental-health issues or drug counseling, only about a
third are actually getting help. But Georgetown's Bilchik says there
is a national movement to create more "wraparound support programs"
— for mental health, education, drug counseling — to give
prosecutors and judges more options than choosing between
institutionalization and probation, which generally provide few
services the kids need. "When you see additional services being
offered, you see judges opting for them," he says.
As the Pennsylvania scandal showed,
keeping kids out of institutions requires at the very least zealous
legal representation. The Supreme Court extended the right to legal
counsel to juveniles in 1967. But in practice the requirement still
goes largely unfulfilled, in part because in some jurisdictions, it
does not apply to the initial detention hearings at which judges
decide whether the minor can stay at home or must be held by
authorities. In addition, the confidentiality measures in place to
protect the identities of minors can sometimes prevent much needed
transparency.
But a responsive and responsible
system also requires oversight throughout the justice system,
something that appears to have been sorely lacking in Pennsylvania.
No one has accused prosecutors of being part of the scheme, but many
observers argue that they were in a position where they should have
known of the problem but chose not to speak out. Instead, it took
the work of the Philadelphia-based Juvenile Law Center to uncover
the abuses. After discovering that more than 50% of kids in Luzerne
County Juvenile Court had been without legal counsel, the
organization in April 2008 petitioned the Pennsylvania supreme court
to step in. (See
the top 10 crime stories of 2008.)
Even then, there was no action
taken initially; eight months elapsed before the court declined to
act, without explanation, even though the application was supported
by the state's attorney general. But the day after federal charges
were leveled against the two judges — the result of a long-running
probe into links between the court and the youth-detention centers —
the state supreme court reversed itself and appointed someone to
clean up the mess.
That shaky performance may or may
not have been influenced by the fact that Zappala, the owner of the
two private detention centers receiving a guaranteed annual rent
($1.3 million) from Luzerne County, is the son of a former chief of
the same court. Or maybe it was what State Chief Justice Ron Castile
told a local columnist, in a sad commentary on the entire system:
the judges found the state's figures on the unusually high rates of
kids being sentenced to detention and getting no legal
representation simply too hard to believe.
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