A Collaboration with the University of Pittsburgh

Judges Sentencing Children for Kickbacks: A Special Kind of Infamy

JURIST Guest Columnist David Harris of the University of Pittsburgh School of Law says that in light of the damage done to the justice system, our collective belief in the rule of law, and to the persons and families involved, seven years imprisonment is not nearly enough punishment for two Pennsylvania judges who took kickbacks from a private company running detention facilities in return for giving children long sentences....

Last week, a story emerged from Luzerne County, in northwest Pennsylvania: Mark Ciavarella and Michael Conahan, two powerful local judges, pled guilty in federal court to corruption charges. They had taken $2.6 million in kickbacks from a private company running detention facilities. In return for the money, the judges kept the company's facilities brimming with inmates, and the local government paid the company a generous amount per incarcerated person. Everyone involved got rich, and the taxpayers got robbed.

But the worst part was not the obvious dishonesty and greed that motivated these judges to sell their robes, or even that they profited by incarcerating people who did not belong there. The worst part was that these were detention centers for juveniles. Ciavarella and Conahan filled these prisons with children. They made money by taking kids guilty of minor crimes — setting up an online satire of an assistant principal, stealing a $4 bottle of nutmeg, getting into a fight with another kid —and putting them into these juvenile prisons. The evidence so far indicates that Judge Ciavarella was two and a half times more likely to incarcerate kids than other judges in Pennsylvania were. And he and Judge Conahan made money — lots of money — doing this.

I am not naïve about public officials. Growing up in Chicago, I saw my share of corruption. It often seemed to me that our politicians, with their diamond pinky rings, should have two sets of clothes: one to dress in for city council meetings, and the other to wear to prison. The legendary Chicago newspaper columnist Mike Royko often said that the city's Latin motto, Urbus in Horto ("City in a Garden") should actually be translated, "Where's Mine?" This way of navigating the political world recently gave us Gov. Rod Blagojevich, the now-removed Illinois governor alleged to have tried to sell President Obama's vacated Senate seat. (The governor who preceded Blagojevich is now in federal prison for an entirely different corruption scheme.)

But these two judges are not just run of the mill corrupt politicians. For any public official to sell his or her integrity constitutes a betrayal of the public, but judicial corruption is worse. The courts are there to set things straight — to see that those who are injured by the carelessness of others get the compensation they deserve, and that the criminals who prey on the rest of us get what they have coming. They must do all of this with fairness and equal justice. Judges sit as the very embodiment of the rule of law — the idea that no man or woman is above the rules, and that they apply equally to everyone. We know that our system isn't perfect — not every case comes out right, nor does every judge make every decision fairly. But these cases are the exception: Americans can justifiably see our allegiance to the rule of law as one of the crown jewels of our democracy. And the judiciary has largely lived up to its role as the keepers of this vital part of our constitutional government, year in and year out.

The idea of a judge selling his or her office does direct and damaging violence to this idea. A judge who can be bought might seem no better than the lowest corrupt politician, but the judge with his hand out is worse. The judge stands for fairness and justice, and is charged not with serving constituents (let alone himself) but with making sure the law functions as it should for all. Corruption in this sphere is a cancer on the law itself, and when people see that a judge doesn't obey the law, this generates enormous disrespect for the legal system generally. And that is a problem for the whole country.

Americans sometimes see the problem of judicial corruption as a concern for other countries. We see reports of corrupt or weak judiciaries in Russia, Zimbabwe, Kenya or other nations, and we often say to ourselves: thank God that doesn't happen in the U.S. Politicians may be corruptible everywhere, but at least here judges give us a straight call. And for the most part, this is correct. But we Americans should not be smug: judges are people, and people anywhere may succumb to the temptations of money, power, or political influence. Just like our politicians, some of our judges have taken their turn at the trough. In Chicago in the 1980s, Operation Greylord, a federal sting operations, took down 17 judges, 48 lawyers, and numerous deputy sheriffs, police officers, and court functionaries, for soliciting, taking, or receiving bribes, and for participating in other ways in a thoroughly corrupt system.

Taking money to influence their judicial duties, alone, would make the actions of Ciavarella and Conahan deeply disturbing, even in our jaded, Gov. Blagojevich-on-The-Today-Show era. As a person who has devoted his entire professional life to learning, practicing, teaching, and trying to improve the law, I can only feel disgust for them. But like most people, my life is multifaceted. I am a lawyer and a law professor, but I am something else too: I am a father to two teenagers, and an uncle to many other kids. And when I think of what Ciavarella and Conahan did to these kids — selling their freedom for a few dollars, doing untold damage to them and their families — I feel deeply angry.

I've read that both Ciavarella and Conahan have entered into plea agreements that specify they will each receive 87 month sentences — a bit more than seven years in prison. I generally feel that our system is too punitive, especially compared to other democracies around the world. But in this instance, I don't think seven years is nearly enough for the harm they did to the system of justice, to our collective belief in the rule of law, to these children, and to their families. I'm going to write to Judge Edwin Kosik of Federal District Court in Scranton, PA, who will decide their sentence. I've never done anything like that before, but it seems to me this case calls for it. I simply cannot be silent.

David A. Harris is Professor of Law at the University of Pittsburgh, where he teaches criminal law and procedure, evidence, and homeland security.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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