‘Cash for Kids’ and the Many Sins of For-Profit Prisons

AP Photo/The Scranton Times-Tribune, Michael J. Mullen / Sandy Fonzo confronts former Luzerne County Judge Mark Ciavarella outside the federal courthouse in Scranton Pennsylvania, on February 18, 2011 after he was convicted of racketeering in a multimillion dollar extortion-and-bribery plot to send youth offenders to for-profit detention centers. Fonzo's son, who was jailed when he was 17 by Ciavarella, committed suicide last year at the age of 23.

‘Cash for Kids’ and the Many Sins of For-Profit Prisons

In a scandal the media dubbed “Cash for Kids,” former Pennsylvania Juvenile Court Judge Mark Ciavarella Jr. has been sentenced to 28 years in federal prison. Cash for Kids is the actualization of the worst fears of the judges (fair disclosure: I am one) who have opposed the whole idea of private, for-profit prisons. Criminal justice is a core public function, but the people who invest in private prison beds expect them to be filled.

Some of the lesser fears had already come to pass. Prisons trolling for prisoners across state lines (where relatives cannot visit), disrespecting constitutional rights because the Constitution generally does not apply to private businesses, and private prison corporations hiring lobbyists to work against proposals to expand community service, probation, and other alternatives to locking people up.

Worse fears are that private prisons will want to exploit prisoners as underpaid or unpaid slave labor or that public officials will fill beds in exchange for campaign contributions. All these fears are short of corrupting the legal system with bribery, which has happened in Pennsylvania. That we know of.

Former Judge Ciavarella was convicted of taking bribes totaling $2.6 million from the developers of Pennsylvania juvenile detention centers. The Pennsylvania Supreme Court has vacated some 4,000 convictions between 2003 and 2008, when the lid came off a legal garbage can where real cases were mixed with convictions bought to make a private investment pay off.

Ciavarella follows former Judge Michael Conahan (17 years), co-owner of the private prison Robert Powell (18 months) and developer Robert Mericle (1 year). As a judge, I find this report painful to write, but I fully understand why the bribers got less prison time than the judges who took bribes. While it’s true (if not commonly known) that the judge is often the lowest paid lawyer in the courtroom, holding the office is still a sacred trust and taking a bribe violates an oath that nobody is forced to take.

It is also not commonly known that judges cannot be sued for damages caused by actions taken under color of judicial office for good structural reasons, just as legislators cannot be sued for statements made in legislative debate. The private prison developers can be sued, but if the beds can’t be filled without bribery, it’s not clear where they would get the money to pay judgments.

Back in August, a federal judge approved settlement of a civil suit against Powell for $4.75 million. The victims and their families have already won millions of dollars against the corporations that built the juvenile facilities and that benefitted from bribes paid by Powell and Mericle. Two class actions are still pending against Conahan and Ciavarella, but those cases will be the heaviest lift.

The victims of Cash for Kids, in addition to the taxpayers of Pennsylvania, were mostly racial minorities and always without sufficient money to have lawyers protecting their rights. The U.S. Supreme Court held in 1967 that juveniles have the same right to counsel as adults when facing incarceration, which means court-appointed lawyers if necessary. The bribed judges routinely bullied the children and their parents into waiving that right. There are approximately 2,500 children in the plaintiff classes of the lawsuits for damages.

The cases against the judges offer the only slim chance to tap public money to compensate the victims unless the Pennsylvania legislature were to decide to compensate the victims as penance for poor judgment in allowing investors to profit from locking people up.

At this writing, ex-Judge Ciavarella has filed a motion in federal court to vacate some of his convictions on the ground that the bribes were paid outside the statute of limitations. He will, of course, be afforded all the legal protections he denied to the children in his court.

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