By Regina Austin
Before I went to see the documentary “Kids for Cash” I thought I knew the basic outline of the story: Between 2003 and 2008, two Luzerne County, Pa., judges, Mark A. Ciavarella, Jr. and Michael T. Conahan, accepted $2.6 million from the builder and an owner of two privately-run, for-profit juvenile facilities in exchange for sentencing hundreds of young defendants to confinement there. Judge Ciavarella was sentenced to 28 years for his involvement in the scheme. The more contrite Judge Conahan, who pled guilty, got 17 1/2 years. The corruption and greed exhibited by the two judges seemed so extraordinary that I hardly imagined that it reflected a generalized failure of the juvenile justice system.
“Kids for Cash” the documentary did not exactly jive with my expectations. I was dismayed to see Ciavarella in an interview asserting that he never took money for placing kids in the juvenile facilities from whose construction and operations he profited. Furthermore, he was not alone in separating the monetary payments from the adjudications of delinquency that resulted in the kids’ confinement. I needed to get a better understanding of the scandal so I read the book Kids for Cash: Two Judges, Thousands of Children, and a $2.8 Million Kickback Scheme by William Ecenbarger and the special report by the Interbranch Commission on Juvenile Justice. (Read the Report.) I also went to see the documentary again. (Watch the film’s trailer.)
In documentarian Robert May’s telling, the “Kids for Cash” scandal involved two parallel travesties, and the extent to which they were intertwined remains unclear. Yes, there were large cash payments (bribes?) to the judges, some of which went to purchase a luxury condo in Florida, as well as racketeering, money laundering, and tax evasion by the judges. Yes, many kids were deprived of their constitutional right to counsel and wound up in the facilities for minor or nonexistence crimes; they suffered lasting negative consequences in terms of their emotional wellbeing and educations. Yet, people who were otherwise sympathetic to the children nevertheless maintained that the denial of the children’s rights and their placement in the juvenile facilities might have occurred even if no financial incentives had been involved. The reason given was the widespread popularity of “zero tolerance,” of which Ciavarella was an ardent proponent.
“Kids for Cash” provides a perfect illustration of how zero tolerance policies, especially in public schools, fuel the “school-to-prison pipeline.” “Zero tolerance” involves the application of mandatory, predetermined discipline — often severe, punitive, and swift — that is imposed without regard to the gravity of the behavior or the particular circumstances. As applied in Luzerne County, zero tolerance criminalized even minor infractions that might have been handled in the principal’s office, like poking fun at an assistant principal on a Myspace page. Outsourcing discipline to the police and the courts was an easy way for school authorities to push troublemaking, low-performing students out of school. It likewise appealed to misguided parents who thought that their offspring could be “scared straight” by involvement in the juvenile court system. Zero tolerance, however, produced marked changes in the life chances of many of the children who appeared before Ciavarella.
Zero tolerance harms children by depositing them at the entry way to the so-called “school-to-prison pipeline.” In the following clip, excerpted from an unreleased Penn Law VLA production, Jessica Feierman, a supervising attorney with the Juvenile Law Center, with the help of animation by JJ Rok, explains how the pipeline works.
Ciavarella and Conahan were not alone in using zero tolerance as a cover for perpetrating constitutional and ethical violations with regard to the children who appeared in juvenile court. Juvenile probation officers, the District Attorney and his assistants, the Chief Public Defendant and his assistants, and the other judges of the Court of Commons Pleas were likewise derelict in their obligations of vigilance. (The exception was Judge Chester Muroski who tried to blow the whistle on Ciavarella, whose high rate of placements was robbing children victimized by abuse and neglect or stuck in foster care of the resources they needed). The acceptability of zero tolerance allowed these court functionaries to ignore the import of the judges’ behavior. For example, in his appearance before the Interbranch Commission, the Chief Public Defender at the time said that Ciavarella’s hard line policy was not seen as “irregular” or “improper” in part because the judge often read statements from parents, teachers, and young people thanking him for his tough rulings. Zero tolerance was popular in the community. The Defender told his assistants that they had no choice but to live with it.
Furthermore, it was the allegations of kids for cash, not the abuses of zero tolerance, which brought down Ciavarella and Conahan and interrupted the flow of the school-to-prison pipeline. The former Luzerne County DA said that the written waivers of the right to an attorney (which his assistants should have known violated the Rules of the Supreme Court) did not surface as a problem for him until the “Kids for Cash” scandal broke.
Zero tolerance likely was viewed as a complicating factor by the assistant U.S. attorneys who prosecuted Ciavarella tried to avoid. They decided not to present in greater detail the stories of the children who were marched out of the courthouse in shackles without their family members having the opportunity to hug them goodbye. Without that evidence and the testimony of Conahan who was not put on the stand, the jury declined to convict Ciavarella on the bribery and extortion charges that were at the heart of the kids for cash claim. The prosecution’s strategy and the acquittals left the children and their families feeling forgotten.
Director May has said that he set out to make a film about the scandal that was more than one-dimensional and that told the whole story. He felt that he needed to interview the two former judges in order to do that. The result is a documentary that is not totally satisfying. It does not wrap the scandal into a neat package and leaves the audience unsure of where it stands. Perhaps that is just fine.
Toward the end of his book about the scandal, William Ecenbarger asks two very important questions:
Were it not for the millions of dollars in bribes, how much of a public outcry would there have been against the actions of these two judges? What voices would have been raised if the only wrongdoing was Ciavarella’s everyday denial of the basic rights of children? It is unsettling to speculate.
Along the same lines, I wonder how many members of the audiences I saw the documentary with would have been in the theater if it had been entitled “The Abuses of Zero Tolerance and the School-to-Prison Pipeline,” rather than “Kids for Cash”.