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Weekly UpdatesThe Luzerne County judges' scandal has many people around the country asking whether it is happening elsewhere. This is a complicated question.
First, the combination of judges accepting bribes to enrich themselves at the expense of the thousands of children who appeared before them during 2003-2008, in exchange for keeping juvenile placement beds filled is an unprecedented judicial scandal.
Second, the way Luzerne-like problems emerge will vary across the country as juvenile justice systems vary from state to state. Context matters. But some Luzerne problems appear elsewhere. For example, unnecessary detention of youths is happening everyday in every state, and youths have no timely recourse.
Third, when people ask "could it happen elsewhere?" they mean different things by "it." The Luzerne County juvenile court operated behind a corrupt and opaque curtain that concealed a host of problems, many of which occur every day in courts across the country, often by well-meaning people. The Luzerne County issue is about much more than judicial bribe-taking. It is about the trend toward criminalizing trivial misbehavior; denying children such fundamental constitutional rights as their right to counsel, to be free from compelled self-incrimination, and to plead guilty only upon a knowing and voluntary waiver of their right to a trial; juvenile court transparency; the role of for-profit providers; and other issues that emerged as the case unfolded, such as the use of shackles.
Too often referral to a system--such as juvenile justice--is done for convenience. We ask too rarely, what is the purpose of the system?
While the juvenile court has many purposes, it is at the punitive end of the child-serving systems, and it should be used with care. There are serious offenders and repeat offenders for whom the juvenile court is obviously appropriate; but there are many others who might be appropriately diverted into programs that supervise them while giving them a second chance without a record; and many others for whom the court is not the right place at all.
Luzerne County was not unusual in the way it funneled all referrals into the first group, in the way it used deep end resources for so many youth who did so little.
Additionally, there were many adults in the courtroom who observed what happened and felt it was not their responsibility to say or do anything. There was a district attorney in every case, yet it does not appear that any DA expressed concern or did anything to prevent unjust prosecutions or placement. Public defenders, private criminal defense counsel, juvenile probation officers and other professionals were also in the courtroom and likewise felt either powerless to do anything or intentionally looked the other way.
Yet these were the only adults who could have connected the dots. Parents of the youths who were railroaded would have no way of knowing that their children were not alone. Many families were too embarrassed to come forward. It wasn't until after the news broke that parents and children, redefined as victims rather than offenders, could connect to the larger victim community.
The National Juvenile Defender Center has documented deficiencies of representation of youths in juvenile court. While every NJDC state study has also identified excellent practices, no state is without problems. And even when defense counsel promotes fairness and accuracy of decision-making, there will be cases that judges decide incorrectly.
The juvenile justice system in general lacks the self-adjusting or accountability mechanisms that would promote fair, effective, rational and developmentally appropriate interventions. These mechanisms must work from screening and intake to disposition and post-disposition. Luzerne County revealed an absence of administrative or judicial oversight. But even in a well-run system, there will be errors and negative impacts on children and families.
The presence of counsel is essential to preventing future Luzernes. But counsel needs to be able to perform a role that is institutionally difficult in juvenile courts throughout the country, i.e., appeal decisions that are questionable. In no other court are decisions so rarely appealed, rendering decisions by juvenile court judges effectively unreviewable. Unlike other areas of the law, there is almost no body of appellate law to guide juvenile court decision-making.
Lawyers are not the only ones who promote accountability. Most jurisdictions lack a systemic approach to examining whether particular judges or jurisdictions are more placement-prone than others, use detention more than others, keep youths in placement longer than others, use for-profit placements more than others. Data aren't collected, posted or analyzed in real time, and oversight is made more difficult by the division of juvenile justice system responsibility between courts and the executive branch.
Sadly, Luzerne County has obscured the best of Pennsylvania's juvenile justice system, from which the country could learn as much as it has about Luzerne. Five years ago the John D. and Catherine T. MacArthur Foundation selected Pennsylvania to launch its Models for Change juvenile justice initiative. This was after national experts identified Pennsylvania as one of the best juvenile justice states in the country, and one most receptive to MacArthur support that would accelerate the state's efforts to have a fair, effective, rational and developmentally appropriate juvenile justice system.
Robert Schwartz is the executive director of Juvenile Law Center in Philadelphia.
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