Skip navigation

Interbranch Commission on Juvenile Justice Final Report Luzurene County Investigation 2010 Partb

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Samuel M. Sanguedolce became an assistant district
attorney in 2002, a year after he graduated from law school,
and was assigned to juvenile court in his first month as a
prosecutor. As with Killino, he "shadowed" a more
experienced prosecutor to learn procedures and then took
over the juvenile court assignment when the senior attorney
was reassigned to other duties.

cited the fact that the delinquency recidivism rate went
down during the period when he sat in Luzerne County
juvenile court.
Jacqueline Musto Carroll, now the district attorney of
Luzerne County, was first assistant when David Lupas
headed the prosecutor's office.
Looking back at Ciavarella's tenure in juvenile court,
Carroll echoed her former boss. She testified that she was
unaware that 50 percent of juvenile defendants were
tmrepresented by counsel. She did not know that Ciavarella
failed to conduct on-the-record colloquies with juveniles
who asked to waive counsel. She said no such information
was reported to her. Nor did assistant district attorneys
assigned to juvenile court raise other concerns.

Sanguedolce went to work in juvenile court with no
perspective on how the juvenile justice system operated in
other jurisdictions. While it was Ciavarella's rule that
students arrested for fighting in school would be
automatically ordered into out-of-home placements,
Sangudolce was surprised, for example, to learn that was
not the automatic rule in Philadelphia. Sanguedolce said he
did not support zero-tolerance because in his view a blanket
policy of that type eliminated the judge's function of
deciding each case individually and deCiding appropriate
pUnishment on a case-by-case basis.

"You and everyone here has the benefit of hindsight to now
know that the man was a criminal," Carroll told the
commission. "Did we know then? No. Were these issues
talked about then? Absolutely not. They weren't. Ihey
were not."

"I feel that had I seen all these other courtrooms, that [the
automatic placement for fighting in school] probably would
have been very alarming to me," Sanguedolce testified. "I
can also say that when I first got to juvenile court I was
surprised, not knowing anything about the law really, in
how many juveniles had been taken away."

Carroll said that the judicial scandal has created
h-emendous impetus for reform, and much has changed.
She said the District Attorney's Office now assigns two
assistant prosecutors to juvenile court and requires a third,
more experienced prosecutor to supervise them. In a
departure from the past, she said, prosecutors aSSigned to
juvenile court now keep their own case files rather than
relying on the clerk of courts as the sale record keeper. With
their own files, prosecutors are better able to keep abreast of
cases. Carroll said she has instructed her assistants to "speak
up" and "do something" when they see something wrong or
improper occurring in a courtroom.

Sanguedolce suggested a possible reason why Ciavarella's
hard line policy - coupled with due process abuses - may
not have been recognized as irregular or improper at
the time:
"I spent a long time thinking about that, and I tried to take
myself back there ... What we would see very frequently
were people coming to the courtroom where Judge
Ciavarella was reciting a letter that he got from another
juvenile. The parents and teachers would come to the
courtroom and thank him and say things like, you know, I
was addicted to pain killers, and I was traveling down the
wrong road, and you saved me.

The Role of the Public Defender
Basil G. Russin was the chief public defender of Luzerne
County for 30 years, [rom 1980 until the spring of 2010. He
was an assistant public defender for four years before that.
His position was part time, requiring him to work 1,000
hours a year, and allowing him to maintain a private law
practice. He served by appointment of the county
commissioners.

"So when you see -- I should say when all you see is the
benefits of how the system is working -- you know, we
didn't have the juveniles' parents come to juvenile court
later to say, my child is ruined. The only thing we saw
was the Sllccess. So that is the reason I think it didn't
alarm anyone."

Under the public defender's supervision there are 22
assistant public defenders, 16 of whom work part time, six
of whom work full time.

Sanguedolce said he discussed Ciavarella's zero-tolerance
poliCY with other prosecutors, but found it to be generally
accepted among them.
It should be noted that Ciavarella often claimed that his
hard line tactics with kids produced good results, not just
in individual cases, but in the big picture. As evidence he

Russin told the Interbranch Commission on Juvenile Justice
that he normally began his day at the Public Defender's
Office in the morning and typically worked there until
noon, handling administrative duties and "putting the fires
out." He then proceeded to his private law practice for the
33

"I know juvenile probation is saying they had signed
colloquies. I don't know what it says in there. If it says you
have a right to a lawyer, I don't know that. .. but in running a
public defender office unfortunately we don't have the
luxury of time or money. And we have to do what we have
to do the best we can. And we were representing the people
who asked for our services, and we tried to do the best we
can for them. We did not have the luxury or the time or the
resources to look for business."

remainder of the day. He said he remained on call for public
defender malters at all times.
During the time that rvIark Ciavarella was the judge of
juvenile court, the Public Defender's Office handled a
remarkably small number of deljnquency cases in
Ciavarella's court.
In testjmony before the commission, Russin estimated that
his office handled only IOta 20 percent of the juvenile cases
in which juvenile defendants were represented by lawyers
between 2003 and 2008.

A number ofwitnesses who testified before the commission
noted that Pennsylvania is one of only two states where
public defenders' offices are funded solely with county or
local revenues. Elsewhere, state governments provide
funding to support these offices.

Not everyone was entitled to representation by the Public
Defender's Office. -file office provides legal services to
clients at no cost, but only to those whose income falls at or
below the u.s. Poverty Guidelines. A family whose income
exceeded the guidelines would be required to hire a private
lawyer. Russin, however, said he used a "relaxed standard"
for juvenile defendants and generally accepted any juvenile
who applied for representahon. "lbe court also could
appoint the defender's office to represent a defendant.

Even with a lack of funds, Russin said he would not have
ignored a plea for help from a juvenile or the parent of a
juvenile who came to his office. But he said no one during
Ciavarella's years in juvenile court came to his office in
distress seeking legal help after a juvenile court hearing.
"My office is at Penn Place, which is a three-story building
in the middle of Wilkes-Barre. My Public Defender's Office
is on the second floor. The juvenile court and the Juvenile
Probation Office is on the third floor. Not once did a parent
or a juvenile get on that elevator at 3 and press 2 and come
in and say, my son was taken away improperly. I want
to appeal this. I want a reconsiderahon of this -reconsideration of this. Not once did a person press 2 and
got off and came to our office, which is right there."

Of his staff of 22 defenders, Russin said he assigned one
defender to juvenile court, or as he put it, "Not even one, a
portion of one."
"I do nol have the resources to give that person full-time
juvenile court. iVhen Judge Ciavarella was the judge it took
approximately no more than four hours per week of that
person's time. Now it's taking about two days per week of
the person's time who's assigned."

Nor, Russin said, did anyone approach his assistant in court
with such a request.

In speaking of the overall caseload of his office, Russin
painted a picture of an office so heavily booked that even
when he received a complaint about Ciavarella's courtroom
practices, involving possible procedural rights violations of
juvenile defendants, he declined to address it.

Russin said that when Ciavarella first began to preside in
juvenile court in 1996, the assistant public defender
assigned to the juvenile court reported to him that the judge
was sending juveniles into placement at a high rate.

"I'll tell you at the end of Ciavarella's term I did get a
complaint from the defender assigned there," Russin
testified. "He said, you know, there's a lot of kids not being
represented and the proper waivers. And I said, first of all, I
said, we're not going to seek clients. I'm not going to put up
a sign and say, please come in here, and we'll represent you.

Russin was stoic in his response. "You know," he testified,
"having practiced quite a while, I practiced before judges
who were almost zero-tolerance, and I've practiced before
judges who are very liberal. And I sat down and said, we're
stuck with a guy who has zero tolerance. And it's within his
illscretion, apparently what he's doing, and we have to wait
until something -- until he retires, resigns, gets a different
assignment or whatever. But this is what we have to deal
with, and that's what we dealt with...We knew that's what
we had. That's the hand we were dealt."

"We have to assume there's a proper waiver going on. We
have to assume the judge has a waiver. We have to assume
the District Attorney knows the rules and the waiver and
the juvenile probation office is doing the waiver. And we
don't have the time or the manpower to intervene. And we
didn't, and we don't."

Russin said the zero-tolerance policy was popular in
the community.

Russjn said he did not know what Ciavarella's attorney
waiver form looked like, or what it said.
34

"Everybody loved it. The schools absolutely loved it. They
got rid of every bad kid in their school. When I was in
school if you threw a spitball, maybe you went to the
principal's office and sat for a couple periods. Last couple
years if you threw a spitball, they got the police, and you
ended up in juvenile court and get sent away.

couple weeks ago for the National Juvenile Summit it was
the first training I ever had in 36 years on juvenile law. And
my eyes were like saucers."
Jonathan Ursiak was the assistant defender who
complained to Russin about improper procedures involving
the waiver of counsel in Ciavarella's court.

"Schools got rid of all their problems. Parents, parents who
had problems with the kid at home, they called the police.
Police said, you want us to take him away? Sure. I can't
control the kid anymore. Away the kid would go.

Ursiak began work in the Public Defender's Office in
January 2007 and was given the juvenile court assignment,
replacing Virginia Cowley; who left the defender's office
after handling juvenile court matters for many years.

"Parents loved it. Police loved it. They knew every arrest
they made the kid would get sent away. And ... the DA loved
it because they were getting convictions."

Ursiak observed youths appearing for review hearings,
making admissions to crimes, and being adjudicated - all
without an attorney representing them or without any
discussion with the judge about waiving their right to
any attorney.

Ihere w'ere few trials. Appeals from trial decisions were
rare. In most cases, juvenile defendants admitted to the
charges against them.

"I do not recall any time through my experience seeing an
on-the-record colloquy when the judge was -- at the time
was dealing with a juvenile that was unrepresented," Ursiak
testified. 11ti5 was in the spring 0[2007, approximately 1 112
years after the Pennsylvania Supreme Court had adopted
Rule ofJuvenile Court Procedure 152 providing that
juveniles could not waive the right to counsel unless "the
waiver is knowingly, intelligently, and voluntarily made"
and a judge "conducts a colloquy with the juvenile on
the record."

"TI1ey come out and tell everything," Russin said. speaking
of juvenile defendants. "Almost every juvenile case that
appears in Luzerne County has a statement. 'Ihe parents are
there. The statement was taken properly, and it's an
admission to the crime... It seems like kids, when
confronted, especially by a policeman, spill their guts."
If the statement was properly taken by police, Russin said,
"Vye have no defense."

Ursiak was troubled. He spoke with Russin. When Russin
told him the defender's ofllce could not take on more
clients, Ursiak said he provided assistance to the Juvenile
Law Center of Philadelphia which was gathering evidence
to challenge suspected illegal practices in Luzerne County's
juvenile court.

Typically, a juvenile who admitted guilt was adjudicated
immediately. The judge had in hand a disposition
recommendation from the Juvenile Probation Department.
Russin said those recommendations were - for a time made known to defense lawyers. A notation on the daily
case list indicated "probation" beside a juvenile's name, or
"boot camp," or a detention facility. But that practice was
discontinued after which defense Ja'wyers were kept in the
dark as to sentencing recommendations.

Ursiak said he saw much that concerned him in Ciavarella's
court, but he felt unable to effectively do anything about it.
Proceedings were abbreviated. When psychological
evaluations were ordered for juvenile defendants, the
juveniles were placed in detention. Evaluation reports were
not provided to him in advance of court hearings. 'When he
did see evaluations - particularly those done by Frank Vita they frequently recommended placement. At review
hearings for his clients, Ursiak did not feel that he was
given an adequate opportunity to advocate for his clients.
He did not think he or his clients 'Nere given fair hearings
in matters where Ciavarella's zero-tolerance policy came
into play. Ursiak thought disposition hearings were often
unfair. He felt "handcuffed" in his ability to do his job as a
defense lawyer.

"We didn't know what we were fighting against," Russin
testifIed...... ,\Te had no opportunity to see what was against
us on the other side."
TI1at practice has changed, Russin said. The Puhlic
Defender's Office now receives sentencing
recommendations and evaluation reports on juvenile
defendants. But Russin said the defender's office remains at
a disadvantage in that it has a limited perspective on various
placement options for juvenile offenders.
"We need training, No.1," Russin testified. "We need
funding for resources to do Lhis. And, you know, quiLe
frankly we had no training. \!\Then I went to Denver a

"I always felt that the cards were stacked against both myself
and ultimately the clienl," he testified.
5

The Role of the Disciplinary Board
Approximately 60,500 lawyers are licensed to practice law in
Pennsylvania. The Supreme Court issues their licenses and
establishes rules and standards governing all aspects of
legal practice.
1ne Rules of Professional Conduct outline ethical standards
lawyers must follow. These rules are enforced by the
Disciplinary Board of the Supreme Court and a related
court agency, the Office of Disciplinary Counsel.
La"vyers accused of violating the Rules of Professional
Conduct are investigated and prosecuted by the Office of
DiSCiplinary Counsel. If the Disciplinary Board concludes
that an ethical violation has occurred, it can issue an
"informal admonition" or a "private reprimand" to the
ofFending lawyer, or recommend to the Supreme Court that
the lawyer be more severely punished. The more serious
sanctions can be public censure, suspension or disbarment.
Only the Supreme Court can administer those sanctions.

to comply with Rule 3.8 or Rule 8.3 of the Rules of
Professional Conduct in connection with proceedings in
Mark Ciavarella's courtroom.
The inability to obtain that information raises troubling
questions. There are more than 700 lawyers practicing law
in Luzerne County. At any point during Ciavarella's tenure
as juvenile court judge, did any member of the bar see what
he or she believed to be ethical failings on the part of
professional colleagues in the courtroom and file a
complaint with the Disciplinary Board?
Leaders of the Luzerne County bar declined to testify before
the Interbranch Commission on Juvenile Justice.
Carl D. Buchholz, III, chair of the Disciplinary Board, was
asked during testimony before the commission if any lawyer
had been publicly disciplined for violation of Rule 3.8 or
Rule 8.3.
Buchholz responded in a letter to Commission Chairman
John M. Cleland that a review of the Disciplinary Board's
records dating to 1988, when the Rwes of Professional
Conduct were adopted by the Supreme Court, failed to
disclose any case in which a lawyer had been publicIy
disciplined for a violation of either of those rules.

In 2008, the Disciplinary Board received 4,878 complaints
against Pennsylvania lawyers. As with the Judicial Conduct
Board, the dismissal rate of the Disciplinary Board is high.
In 2008, the board declined 4,344 complaints - a 91 percent
dismissal rate. The explanation given to the comrnission by
the board for most dismissals was "prosecutorial discretion"
or "policy dismissal."
Und-er the Rules of Professional Conduct, if a lawyer knows
that another lawyer has engaged in unethical conduct, the
lawyer possessing that knowledge must report it to the
"appropriate profeSSional authority."
In the same vein, Rule 8.3 (b) of the ethical code states: "A
lawyer who knows that a judge has committed a violation of
applicable rwes of judicial conduct that raises a substantial
question as to the judge's fitness [or office shall inform the
appropriate authority."
As noted earlier in this report, Rule 3.8 deals with the
special duties of prosecutors and the responsibility of
prosecutors to make reasonable efforts to assure that
defendants are advised of the right to counsel.

Clifford E. Haines, president of the Pennsylvania Bar
Association, was asked why, in his view, members of the bar
in Luzerne County did not file misconduct complaints
against Ciavarella with the Judicial Conduct Board. His
answer may explain not only why lawyers failed in that
regard, but why they may have failed to comply with the
Rules of Professional Conduct in their responsibilities to
participate in the policing of their own colleagues within
the profession.
"I think that there is a -- an element of acculturation that
apparently occurred in Luzerne County," Haines testified.
"And by that I mean it -- it's kind of like the dog that gets
beaten. It's only when you stop that it recognizes something
was wrong.
"You know, behavior starts to be the norm to everybody,
and nobody thinks things are that far off the mark; or they
do, but they are uncertain and unsure about what they
can do."

The Disciplinary Board operates under confidentiality rules
in its investigations and proceedings. Only ,·."hen it seeks
public discipline against an attorney in the fonn of censure,
suspension or disbarment is the veil of confidentiality lifted.

The Role of the Juvenile Probation Department
During the period when Mark Ciavarella presided in
juvenile court, the Juvenile Probation Department played
an unusually dominant role in the adjudicatory process.
Despite a Supreme Court rule requiring an oral on-therecord waiver of counsel by a juvenile defendant, probation
department intake officers obtained those waivers from

Because of the board's confidentiality rules, there was no
way for the commission to learn if any lav"1'er in Luzerne
County filed a complaint against another lawyer for failure
36

Answer: "From my recollection, yes."

youth defendants prior to court proceedings using a one
or two-page written waiver form. 1110ugh a violation
of court rules, this was the self-styled method that
Ciavarella adopted.

Details about fine court were provided by Theresa Kline, a
juvenile probation officer who was present in Ciavarella's
courtroom during many of the proceedings.

'Ibe probation department worked up social histories of
juvenile defendants and made disposition
recommendations to Ciavarella that defense lawyers and
even assistant district attomeys handling cases in juvenile
court did not see until the day of court - if at all. These
documents - including the probation department's
recommendations for disposition - were given to Ciavarella
in advance of court hearings.

Kline testified that fine court sessions were held from 1999
until 2004. There was no established schedule for this
"court." Sometimes sessions occurred once a month,
sometimes at more widely-spaced intervals.
Kline identified a document from probation department
files that listed 82 youths scheduled for a fine court session
on September 13, 2001. She said not all sessions involved
that many cases.

'lbe chief probation officer, Sandra Brulo, was a
controversial figure seen by many as the enforcer of
Ciavarella's policies, though Brulo told the commission she
saw herself as a victim who worked in an atmosphere of
"oppression" and intimidation. Brulo has pleaded guilty to a
federal charge of obstruction ofjustice for altering a record
in which she had recommended detention for a juvenile
defendant. She altered the record to make it appear she had
recommended probation for the juvenile.

Youths were summoned to court for failure to pay fines or
restitution. Kline testified that if, upon appearing in court, a
juvenile or his or her parents paid the required money, "they
would be taken off the list."
Question: "What generally would happen if the juvenile did
not pay?"
Answer: "In some cases the judge would ask jf the child had
the ability -- had the money. And if not, he would remand
him to detention."

Probation officials attended parties and sometimes went on
overn ight outings as the guests of juvenile placement
facilities and providers. ll1ere was no policy against
receiving gifts. Ciavarella and Juvenile Probation
Department personnel sometimes attended graduation
ceremonies at juvenile residential facilities. 1he
accommodations on these trips, including food and drinks,
were provided by the institutions.

Question: "And the age group of these youth that were
appearing before the judge for this process was
approximately what?"
Answer: "1 would say 10 to 18, 19."

In one of the most Dickensian of Ciavarella's judicial
practices, the probation department arranged an occasional
proceeding known as "fine court" in which juveniles who
had not paid court-ordered fines or restitution were
summoned to appear before the judge. Those unable to pay
were ordered into detention. In this way, the county
detention center - and for a time, PA Child Care - became a
debtor's prison for children.

'With regard to legal representation, Kline was asked:
"And upon their appearance in court can you give a general
idea how many would be represented by counse!?"
Answer: "I would say very few, if any."
Question: "Was it generally -- was the prosecutor present
at am"

In testimony before the commission, John Johnson, deputy
chief of the Juvenile Probation Department, was asked:

Answer: "Not all the time that I recall."
"If a kid didn't make payment of his money that was owed,
what was the sanction for that?"

Question: "What was the nature of the proceeding? Can you
describe what happened?"

Answer: "The sanction at that time was detention until the
money was paid."

Answer: "To my best knowledge it would run pretty much
like any other court that we ran. We would have the kids
outside and their parents, and we would call them in one at
a time. And they would go in front of the judge."

Question: "So a child was placed in detention until the
money was paid?"

37

Question: "So this was largely a -- a collection method to -focused on the children, but indirectly the parents needed
to pay?"

Here are excerpts from a transcript of a 2004 proceeding in
"fine court" in a case involving an II-year-old boy.
The Court: "[Name of party], how old are you?

Answer: "Yes, to my knowledge."
The Juvenile: "Eleven."
Question: "In order to secure the release from detention?"
'The Court: "You and your brother, it seems you like to do
the same thing, harass. There was a fine imposed. You didn't
pay it. Disorderly conduct, engaged in another fight. So you
didn't pay that one. Do you have $488.50?"
The Juvenile: Indicated in the negative.
The Court: "Very good. He's remanded. He can stay there
until he pays the fines."
Juvenile's Mother: "It's actually more than that."
The Court: "Well, I got something in the mail. I received one
in the mail that he owed $850 for something 1 think it was
due by the 15th oOanuary, I believe."
Sandra Brulo, ChiefJuvenile Probation Officer: "We didn't
get that yet."

Answer: "To my knowledge, yes."
Paul McGarry, director of Human Resources for Luzerne
County Courts, is the fonner fiscal officer of the county
Juvenile Probation Department. McGarry testified that he
was instrumental in terminating "fine court." He said he
objected to the practice of incarcerating juveniles for
nonpayment of fines on fiscal grounds.

"When I found out that they were doing this I approached
Ms. Brulo and Judge Ciavarella and strongly objected to this
procedure as a way of collecting money," McGarry told the
commission. "It just didn't make -- as a business operation it
didn't make any sense for us to be trying to collect $400 by
placing somebody in a facility at $200 a day."
Tom Lavan, a placement officer in the Juvenile Probation
Department, testified that when PA Child Care opened in
2003, he was told that the institution was to be kept full.

Ihe Court: "We'll get that. By the time he gets out he'll be
able to go back for the next one. You're having a great day.
Put the cuffs on him and get him out of there."

Question: "And who advised you of that?"
Theresa Kline was asked if this was typical of fine court
proceedings.

Lavan: "Sandy Brulo."
Question: "Okay. Did she confer with anyone at that time in
regard to advising you of that, or you think she made that
on her own?"

Answer: "I would say in some cases, yes."
Question: "Was Ms. Brulo the -- the PO that was largely
responsible for this form of process?"

Answer: "I don't know if she conferred with somebody or
not, sir."

Answer: "Yes sir."
Question: "And did she ever express any concern from -from her social work background that this was a fair process
that should be undertaken with youth that were 10, 11 years
of age?"

Question: "Okay. Did she just make that indication to you
on one occasion, or did it depend on, I guess, the
occupancy of PA Child Care?"

Answer: "No."

Answer: "It -- that was originally stated to me \vhen PA
Child Care was first opened ... Once the residential facility
came online."

(Brulo, the former chief probation officer, testified that she
holds masters degrees in social work and public
admi nistration.)

Question: "Okay. And what was your response to that?"
Answer: "My response was I asked who? And she said, just
fill the beds. I tried to distance myself personally. I tried to
bring children who were in the other end of the state in a
secured facility and bring them back closer to home."

Kline said the only way for a youth to gain release from
detention when placed there from fine court, as far as she
knew, was to pay the fine. This was done, as a rule, by
the parents.

John Johnson, deputy chief of the probation department,

38

testified that reforms have been instituted in the aftermath
of the "kids for cash" scandal. Among them: The
department no longer administers waivers of counsel for
juvenile defendants. Instead, it attempts to ensure that
juveniles are represented. Psychological evaluations and
sentencing recommendations are no longer withheld from
prosecutors and deJense attorneys. Alternatives to ollt-ofhome placement such as a day treatment facility and a
diversion program to proVide a community service
alternative for youths who cannot afford to pay fines, are
being deVeloped. Probation officials now consult with the
District Attorney's Office to determine appropriate charges
in juvenile cases.

small, highly regarded executive branch agency that
provides adviSOry support and training for juvenile judges
and tracks juvenile court statistics in Pennsylvania's 60
judicial districts. It is partly through the work of the
Juvenile Court Judges' Commission that Pennsylvania's
juvenile justice system has won national recognition for
high standards.
James E. Anderson, executive director of the Juvenile
Court Judges' Commission. told the commission in
testimony that "many of Pennsylvania's finest judges regard
their work in juvenile court as the most meaningful and
rewarding work they do because they know they can make a
difference in the lives of the children and families who come
before them."

"Moving forward as a Probation Department we are
working together as a team to do what's right for the
juveniles of Luzerne County and move forward in a positive
nature," Johnson told the commission. "I know that there
are some -- there has been a blight on the County, but we
have stuck -- stuck it out, and we are going to focus on
proper procedure and hopefully never again will this
situation ever occur."

By contrast, Anderson testified, the conduct of former Judge
Mark Ciavarella as juvenile judge in Luzerne County was an
"unimaginable abuse of power" that brought harm to
thousands of children and families.
A statistical profile provided by the Juvenile Court Judges'
Commission covering an II-year period from 1997 to 2008
showed that Ciavarella's placement rate was consistently
higher than statewide averages beginning in 1999. The
waiver of counsel rate in Ciavarella's courtroom was vastly
higher than the statewide average. This pattern of high
placements began well before the opening ofPA Child Care
in 2003 retlecting the fact that Ciavarella was routinely
sending large numbers of juveniles into placement prior to
any alleged "kids for cash" motive to pack PA Child Care
with residents. The data of the Juvenile Court Judges'
Commission also shows that Ciavarella placed juveniles in a
wide range of facilities after PA Child Care and Western PA
Child Care opened. He did not limit placements to those
two institutions.

The Juvenile Court Judges' Commission
The goal of juvenile courts in Pennsylvania is distinctly
different from that of adult criminal courts. While there has
been a trend in recent years toward "problem solVing" adulL
courts geared to rehabilitation of nonviolent offenders with
alcohol, drug or mental health problems, the criminal
justice system generally is pW1itive in outlook. For most
adults convicted of crimes there is only one outcome:
Punishment. A fine. A jail sentence. Or both.
"The juvenile justice system is entirely different. Its
orientation is toward rehabilitation, not punishment. It
aspires to "balanced and restorative justice" in which the
focus is on accountability, competency development of
children and community protection. Even the \-\lord "guilLy"
is not part of the vocabulary of the juvenile justice system.
Rather, juvenile defendants are "adjudicated." They are not
"sentenced;" they are "placed."

111c statistical picture is striking. In 2003, CiavareJla ordered
330 juveniles from Luzerne County into placement. That
was twice the statewide average. More significant, in a
county that represented less than 3 percent of
Pennsylvania's population, this single judge was responsible
for 22 percent of the juvenile placements throughout all of
Pennsylvania. Over tl1e next severa] years, there was a
downward trend in juvenile placements across the state.
Ciavarella followed the downward trend to some degree, but
his placement rate still remained far higher than the norm.
In 2007, he sent 219 youths into placement. In context, that
number was 2 1/2 times the statewide average. Of 1,066
juveniles placed statewide in 2007, CiavareJla accounted for
20 percent of them with placements from Luzerne County.
Judge David Lupas, now presiding in Luzerne County
juvenile court, testified that the number of placements as of
October 2009 vias 65 - down 70 percent from 2007 when
Ciavarella was presiding.

Whether a juvenile is adjudicated based on an admission or
a finding at trial, the juvenile court judge has a
responsibility to detennine how the juvenile can best be
rehabilitated. The young person's welfare carries great
weight, balanced with the protection of the community. "lhe
ultimate goal is to redirect the youth toward responsible
adulthood and citizenship. lhe judge also must attempt to
resolve each case in a manner that is least restrictive for
the juvenile. l1ms, out-of-home placement should be a
last resort.
The Pennsylvania Juvenile Court Judges' Commission is a
39

Commission and, thus, the exceptionally high waiver rates
in Ciavarella's courtroom were not publicly known.
Information on waiver of counsel data was developed at the
request of the Juvenile Law Center as the law center
prepared its King's Bench petition for the Supreme Court
in 2008.

The statistics of the Juvenile Court Judges' Commission on
waiver of counsel are even more stark. In 2002, juvenile
defendants throughout Pennsylvania waived the right to
counsel in 7.4 percent of all delinquency proceedings. In
Luzerne County, the attorney waiver rate in Ciavarella's
court was 54.8 percent - more than seven times higher than
the statewide rate. 1he following year, 2003, the state waiver
rate was 7.9 percent; the rate in Ciavarella's courtroom was
50.2 percent. The next year, 2004, the statewide rate
dropped to 4.8; it was more than 10 times higher, 50.2
percent in Ciavarella's courtroom. The pattern - and the
vast gap between statewide courtroom practice and
Ciavarella courtroom practice - continued year after year.

Anderson said the waiver of counsel information could
have been produced and published previously, but, to be
meaningful, the data would have required careful analysis
including examination of individual cases.
Asked what would have been needed to set off alarms,
Anderson made clear that statistics, standing alone, would
not have been enough.

Judge Lupas testified that no juvenile is now unrepresented
in Luzerne County juvenile court.

"lhe kind of information that I think you 'would have to
have would be very case specific information around the
types of cases that were coming into court, the types of
diversion opportunities that were being considered, the
prior record of the -- of the kids," he testified.

Ihe Interbranch Commission on Juvenile Justice sought to
learn why the statistics did not raise concerns at the time,
given the aberrant nature of the patterns. Why didn't the
numbers coming from Luzerne County raise red flags?
Anderson testified the statistics on Ciavarella's placement
rates - examined in isolation - were not indicative of
deeper problems:

"I mean, it is -- it is very complicated. The kind of resources
we would have needed if we were -- assuming that that was
our role, to -- to make judgments about the, you know, the
decision making of judges, we certainly would need staff
working in a different way than we have nov\'."

"They did have high placement rates, but there were
certainly other counties that had high placement rates as
well," Anderson testified. "So I would say that our data did
not cause alarms to go off with respect to Luzerne
County... Their placement rates were higher, but we weren't
looking at that from the standpoint of an alarm going off."
Anderson said a state legislator from Luzerne County, Rep.
Phyllis Mundy, contacted him in 2005 to inquire aboLlt high
juvenile placement rates and placement costs in Luzerne
County. Mundy requested a comparison with other
cOlmties. After compiling data on placements and providing
it to Mundy, Anderson said, he telephoned Ciavarella in
March 2005 and outlined the information to him.
Anderson said that Ciavarella responded by telling him
"that the youth that were placed in his court needed to be
placed, and he only placed children who needed to be
placed. And that, you know, he cared a great deal about -about those decisions that he was making."
1 he Juvenile Court Judges' Commission has no authority to
compel judges to change their ways or to correct judges if
they are engaged in misguided practices. The role of the
commission is advisory.
The statistics reflecting waiver of counsel rates were not
included in the annual reports of the Juvenile Court Judges'

tlO

IV.

RECOMMENDATIONS

TIle Interbranch Commission on Juvenile Justice has received many recommendations from a variety of witnesses
representing a range of interests and concerns. Ihe commission has carefully considered all materials and testimony. Some
suggestions presented worthwhile topics for further consideration in an environment offering more extensive resources.
'lbe commission is mindful, however, of the realities of Pennsylvania's difficult fiscal situation and the imperative of
focusing reform on practical recommendations. As a result, the commission has not adopted some recommendations that
have received considerable support.
Space limitations do not permit an explanation of why some suggestions have not been adopted. However, the commission
feels compelled to explain why it has not chosen to adopt two suggestions that have been widely endorsed.
The first is a suggestion that juvenile courts be made presumptively open to the public.
The Juvenile Act currently provides that the public "shall not be excluded fronl' hearings involving children 14 years of age
or older who have been charged with a felony, and children 12 years of age or older charged with designated serious
offenses such as murder, robbery or certain sexual offenses. In addition, under defined circumstances, court records and
files are also available for public review.
Those in favor of opening all proceedings to the public argue that public scrutiny will serve as a check on abuses of judicial
power. 1he commission agrees that there must be checks on abuse of judicial power. The commission believes, however,
that on balance any abuse can be more appropriately addressed by enhancements to appellate review and to the system of
judicial discipline rather than by exposing children to the possibility that the facts surrounding childhood misconduct
could be perpetually maintained in news clippings, and now even on the internet. Ihe notion that the hearings can be
made accessible to the public, but that information presented in those hearings can be kept private and not subject to
distribution, the commission determines to be impractical.
The commission acknowledges that some juvenile court judges as an aid to enhancing public understanding of the juvenile
courts, and with the consent of the parties, have opened their courtrooms to the press and public. The commission does
not discourage this practice in appropriate cases. However, it concludes that the Juvenile Act as currently written provides
the correct balance of public access and child protection.
Second, the commission did not recommend the creation of an office of Ombudsman.
Although the otnce of Ombudsman can be configured in many 'ways, as defined in one suggestion submitted to the
commission it was defined as follows: "... an independent watchdog and public advocate ,"vho investigates grievances
regarding governmental abuses of power, illegal and inappropriate behavior by those in positions of authority, and
violations of individual's rights."
If the recommendations the commission has suggesled do not prove to be adequate to address the problems in the juvenile
justice system that the commission has identified, it is possible that creation of such an office could be considered in the
future. However, it is the jud.gment of the commission lhal the slatewide juvenile justice system as currently constituted can
be improved without additional bureaucratic structures, and that the resources that would be needed to create and
maintain the office of Ombudsman could be put to more productive uses.
Here then, in sum, are the full recommendations of the Interbranch Commission on Juvenile Justice.

A. RECOMMENDATIONS REGARDING CRIME VICTIMS
'lhe Juvenile Act and the Crime Victims Act provide the legislative foundation for Pennsylvania's balanced and restorative
juvenile justice system.
In 1995, the Juvenile Act was amended to require that upon finding a child delinquent, the court must enter an order of
disposition consistent with the protection of the public interest and best suited to the child's treatment, supervision,
41

rehabilitation and welfare. Moreover. the Juvenile Act requires that in fashioning a disposition, a juvenile court judge must
give balanced attention to protecting the community, imposing accountability for the offenses committed, and assisting
the juvenile to develop the competencies that will be needed to become a responsible and productive member of
the community.
Subsequently, the Pennsylvania Commission on Crime and Delinquency's Juvenile Justice and Delinquency Prevention
Committee developed a juvenile justice system mission statement that has guided the Pennsylvania juvenile justice system
for over a decade. That statement provides that the juvenile justice system should be gUided by the values of community
protection, victim restoration and youth redemption.
Community Protection refers to the right of all citizens to be and feel safe from crime. Victim Restoration emphasizes
that a juvenile who commits a crime harms the victim of the crime and the community, and thereby incurs an obligation
to repair that harm to the greatest extent possible. Youth Redemption embodies the belief that juvenile offenders have
strengths, are capable of change, can earn redemption, and can become responsible and productive members of
their communities.
The Interbranch Commission on Juvenile Justice concludes that Pennsylvania must give additional attention to victim
restoration. Significant attention has been afforded the aspects of balanced and restorative justice relating to community
protection and youth redemption. However, funding has been substantially reduced for the Victims ofJuvenile Offender
(VOJO) program and there is no statewide advocate for victims of juvenile crime. Moreover. some of the original victims
of the juvenile crime in Luzerne County have been denied the right to receive restitution because the juvenile adjudications
have been vacated.
rLherefore, the commission recommends:
1. The creation of a statewide office ofJuvenile Justice Victim Advocate. 'Ihis position would be affiliated with the

Office of the Victim Advocate. 1he goals of victim restoration when juvenile crime is involved present complex
dynamics as society attempts to balance the unique developmental needs of children against the real harm suffered
by victims. This requires a specialized expertise. The Juvenile Justice Victim Advocate, therefore, would work
collaboratively with the Pennsylvania Commission on Crime and Delinquency, statewide victim services agencies
and juvenile justice stakeholders to develop appropriate policies, guidelines, protocols, and data collection and
analysis pertaining to victims of juvenile crime.
2. 1be restoration of funding for the Victims oOuvenile Offenders (VOJO) program to 2005 levels. Since 2005,
funding for VOJO has dropped to $1,221,000 from $3,455,000 and further cuts are anticipated. These cuts have
forced counties to reduce the number of advocates serving victims of juvenile crime and enhanced the difficulties
associated with providing services to juvenile crime victims.
3. 1he creation of a Luzerne County Victims of Juvenile Crime Restitution Fund. Because the Supreme Court vacated
juvenile adjudications in Luzerne County, many victims of juvenile crime have been deprived of the benefit of
restitution awards to which they would otherwise have been entitled. 111e commission recommends that a fund be
created and made available to Luzerne County residents who have been denied restitution payments because their
awards have been vacated as a consequence of the Supreme Court's decision. Because the amount of some restitution
awards has been questioned, the commission is unable to determine the amount of money that should be allocated
to the fund once it is created. However, the commission members believe the amount to be less than $500,000. The
commission further recommends that the Supreme Court appoint a l\'faster to develop a method to properly
determine the amount of restitution owed to any particular victim and to distribute the funds allocated accordingly.

B.

RECOMMENDATIONS REGARDING JUDICIAL ETHICS

1he 1973 Pennsylvania Code of Judicial Conduct became a focal point of the testimony before the Interbranch
Commission on Juvenile Justice. It was glaringly apparent not only from the testimony, but also from the recorded
background information, that the aspirational goals and mandatory prohibitions contained in the code were not a
deterrent to the conduct ofTudge Ciavarella in his supervision over the juvenile courl. The pervasive treading upon the
constitutional rights of accused juveniles, coupled "vith the apparent conflict of interest due to the relationship with the
dispositional placement resources, which former Judge Ciavarella has acknowledged in judicial forums, cries out that the
goals and prohibitions of the code did not prevent misconduct in this unique instance in Luzerne County.
42

The commission learned that the Juvenile Court Judges' Commission OC]C), on behalf of its judicial members, sought
guidance from the Ethics Committee of the State Conference of Trial Judges, concerning issues such as gifts, offers of
transportation and lodging, board activity, and other instances which had been commonplace marketing tools by private
providers to the juvenile courts. Additional guidance was also sought regarding supervision of juvenile court staff. The
Ethics Committee responded to the JCJC, stating that due to the overall complexity of the issues and the potential impact
on other specialized courts such as drug courts, mental health courts, Orphans' Courts, and proceedings involving the
elderly, a comprehensive input from a broader cross section of the judiciary was required. lbe Ethics Committee concluded
that there needs to be a collaborative opportunity to further define the common interests and issues shared by the
respective specialty courts and to obtain guidance from the Pennsylvania Supreme Court in order to properly articulate
meaningful guidelines and directives.
The commission heard testimony from Robert Kuhlman, Ethics Counsel to the American Bar Association. Kuhlman
advised the commission that the Revised 2007 Model Code of Judicial Conduct provides in pertinent part more expansive
ethical guidance to judges whose roles include restorative justice principles and engagement with the community.
Kuhlman also recommended that the Supreme Court revisit the use of the aspirationallanguage of "should" found within
the code to a more definitive "shall" when addressing concerns of known or suspected judicial misconduct.
Given the concerns expressed by the Ethics Committee of the State Trial Conference and the testimony of Kuhlman, the
commission recommends:
1.

'Ihat the Supreme Court re-examine the current Code of]udicial Conduct in order to address the ethical provisions
which impact confidence in our courts such as ex parte communications, impartiality, and community engagement.

2. That the Supreme Court examine whether or not the code should provide clearer language for judges to recognize

when they are obligated to report either misconduct or their belief of misconduct.

c.

RECOMMENDATIONS REGARDING JUDICIAL DISCIPLINE

The Interbranch Commission on Juvenile Justice recognizes the inherent difficulties associated with any proposed changes
to the judicial disciplinary system. It cannot be forgotten that the Judicial Conduct Board is a relatively new creation with
its own genesis arising out of a prior scandal involving Pennsylvania's judicial disciplinary system. The 1988 Report of the
Governor's Judicial Reform Commission (also known as the "Beck Commission") carefully studied and considered the
complex issues surrounding judicial discipline and compiled a detailed report of its findings and conclusions. As a result of
the Beck Commission's work and study, the Pennsylvania Constitution ,·vas amended to create the Judicial Conduct Board
in 1993.
"TIle Interbranch Commission on Juvenile Justice was not created to overhaul the judicial discipline system, though one of
the commission's statutory duties required that this system be considered. 1his commission spent a significant amount of
time reviewing the specific failings of the Judicial Conduct Board in relation to its actions towards then Judges Conahan
and Ciavarella. Despite the amount of time spent on the issue, that effort cannot compare to the careful analysis and
targeted consideration provided by the Beck Commission report to the issue of judicial discipline. It was clear from
Judge Beck's testimony that the judicial discipline system as implemented was not comporting entirely with the
recommendations of the Beck Commission. There can be no better starting point for consideration of the judicial
discipline system than the Beck Commission report and Judge Beck herself in assessing the proper steps for continued
improvement.
Given the constitutional nature of the Judicial Conduct Board, any substantive adjustments of the existing system requires
amendment of the constitution, a process which obviously cannot be immediately implemented.
On the other hand, the Judicial Conduct Board has to its credit attempted to address its own failures by the creation of new
Internal Operating Procedures through which, as one witness stated, the Judicial Conduct Board was taking back its
constitutional authority. The commission commends the Judicial Conduct Board for its proactive efforts. and certainly
encourages the Judicial Conduct Board to continue its own critical review with an eye toward improving judicial discipline
in Pennsylvania. However, the commission found the new Internal Operating Procedures deficient and believes that in
their current form they will not serve to correct all of the internal deficiencies that contributed to the board's failure to
address the judicial discipline issues that cried out for attention in Luzerne County.
43

The ability of the commission to review the Judicial Conduct Board's conduct was substantially hindered by the provisions
relating to confidentiality contained within the constitution itself. After months of fighting, arguing and cajoling, the
Judicial Conduct Board eventually provided the commission, under seal, a substantial amount of material that was critical
to the assessment process. The commission commends the Judicial Conduct Board for its final cooperation, but the
material provided also raised more questions about the board's operations and reinforced the commission's opinion that
changes are necessary.
The commission has developed two sets of recommendations, one set of short term recommendations that can be
implemented without the need for a constitutional amendment, and a second set that will require the more arduous, but
necessary process of amending the constitution.
1. Short term recommendations:
a. The Judicial Conduct Board needs assistance in reviewing its internal operating procedures to assure that the
shortcomings evident in the Luzerne County corruption scandal are eradicated. To assist in this important
undertaking, the commission recommends the creation of a small but committed and experienced task force
comprised of experts in the fields of judicial discipline, ethics and investigations with the specific purpose of (1)
reviewing the internal operating procedures of the Judicial Conduct Board as well as the policies dealing with the
interaction between the Conduct Board's stall and its voluntary board; and (2) to make suggestions for
improvement. It is recommended that this task force include representatives of the state bar association. The
commission remains hopeful that the Judicial Conduct Board will cooperate with the task force to implement
meaningful reform to its internal policies and procedures. The commission also recommends that the Judicial
Conduct Board include a section in its next annual report addressing its work with this task force, w'hat changes
were implemented, and how its procedures were improved.
b. In particular, the record demonstrates, both through documentary evidence and board member testimony, that
chief counsel had acquired and exercised far too much autonomy, authority and absolute discretion over how
complaints were investigated, deferred, referred, or resolved. The record further shows that chief counsel would
unilaterally act without the consultation, knowledge or approval of the Judicial Conduct Board. V\Thether the
evolution of chief counsel's power and autonomy developed with or without the board's approval, the record sadly
compels the conclusion that too much power was vested in chief counsel. The commission strongly recommends
that the Judicial Conduct Board and the task force weigh the obvious need for a strong chief counsel against the
constitutional obligations of the Judicial Conduct Board. The internal operating procedures must provide for clear
descriptions of the duties and responsibilities of the critical staff, create a mechanism for performance review and
accountability, and implement procedures for meaningful overSight of the staff.
c. The Judicial Conduct Board is required under the constitution to provide an annual report of its activities. 'The
commission recommends that the annual report provide some details as to how the Judicial Conduct Board is
operating, in particular as to how many complaints have been deferred pending criminal investigation. While the
commission recognizes the confidentiality that attached to the work of the Judicial Conduct Board, it is also
painfully apparent that the Luzerne County corruption complaints somehow were allowed to languish without
appropriate attention or consideration. It is recommended that the Judicial Conduct Board include 'within its
annual report an index of all pending case filings, identified only by case number, with an indication as to the
current status of that particular case. If a complaint has not been resolved, then it ~would appear in each annual
report under its original case number. By providing this generic indexing practice, it will proVide a means to
identify any complaints that have been pending without resolution for a substantial period of time.

d. The commission also recommends that the Judicial Conduct Board undertake to revise and update its Web site. It
should provide clear, simple directions to allow the public to file complaints over the internet. In addition, it
should include the reminders to the public and to professionals of their options and ethical responsibilities in
reporting judicial misconduct as more specificaUy explained in the next recommendation.
e. During the course of testimony, it was clear that far too many professionals, let alone lay persons, were wholly
unaware that reporting judicial misconduct to the Judicial Conduct Board was not only an option, but an ethical
responsibility. The commission recommends that the Judicial Conduct Board partner with the Pennsylvania Bar
44

Association and its educational arm, the Pennsylvania Bar Institute, to create and implement an educational
program and materials to assure that practicing attorneys and judges are aware of U1e mandatory ethical obligation
to report judicial misconduct to the Judicial Conduct Board. Moreover, the commission also recommends that ilie
Judicial Conduct Board and the Pennsylvania Bar Association/Pennsylvania Bar Institute work together to create
educational material for the general public that can be made available at professional offices for purposes of
recognizing judicial misconduct and explaining how to report such misconduct to the Judicial Conduct Board.

f. While the Judicial Conduct Board contends iliat it lacks sufficient resources to fulfill its constitutional obligations,
the commission lacks sufficient evidence to conclude that the board is not adequately funded. This is plainly a
budgetary issue better addressed between the Judicial Conduct Board and the Legislature.
2. Long term recommendations:
With regard to the long term recommendations, the commission has come to two inescapable conclusions: (1) the
Judicial Conduct Board lacks sufficient oversight to assure that it is fulfilling its constitutional duties and obligations;
and (2) the existing confidentiality provisions relating to the work of the Judicial Conduct Board prohibit any
meaningful oversight and accountability.
In order to effectuate the needed reforms to the Judicial Conduct Board, the commission recommends the creation
of a group, perhaps similar to the composition of the Beck Commission, to conduct a constitutional review and
study to determine what changes are necessary to assure oversight and accountability of the Judicial Conduct Board.
In particular, the commission emphasizes the following areas for review:
a. The appointment process for board members and the general board composition;
b. Ihe powers and duties of the board;
c. Determination if the general rules governing the conduct of its members are adequate to discharge the
members' constitutional mandate and if they are being adequately implemented;
d. The creation of an appellate mechanism to the Court of Judicial Discipline for review of the Judicial Conduct
Board's decision to dismiss a complaint;
e. A careful review and revision of Article V, Section 18(a)(8) as it relates to confidentiality and accountability of
tJ1e Judicial Conduct Board in fulfilling its constitutional obligations;
f. The creation of an outside administrator and record keeper. Such an administrator would be bound by the
confidentiality standards mandated for the board and would, therefore, have access to details about complaints
and their handling. The administrator would then be in a position to audit the board's specific performance.
When warranted, the administrator could promptly question the failure to address complaints, or why
investigations were allowed to languish.

D. RECOMMENDATIONS REGARDING ATTORNEY DISCIPLINE
The Interbranch Commission on Juvenile Justice heard testimony that raised questions about whether conduct occurred
during juvenile delinquency hearings that may have violated the Code ofJudicial Conduct or the Rules of Professional
Conduct. The commission is concerned at the possibility, if not the probability, that no lawyer practicing in Judge
Ciavarella's courtroom ever filed a complaint to the Disciplinary Board against a fellow lavryer alleging a violation of the
Rules of Professional Conduct. In addi tion, while attorneys witnessing unethical behavior by judges are bound to report
tJ1e judge's behavior to the Judicial Conduct Board, the Judicial Conduct Board reported that no such complaints were filed
by any attorneys present at the juvenile proceedings \vruch have been the subject of the commission's investigation.
1be commission recomlnemis:
1. Ihat the Disciplinary Board create appropriate educational materials for the general public and for attorneys. This

will assure that both the bar and the community at large understand what constitutes a violation of the Rules of
Professional Conduct and how to file a complaint.
45

2. That the Web site of the Disciplinary Board be redesigned so that it offers a clear and simple mechanism to file
complaints electronically.
3. That the Pennsylvania Continuing Legal Education Board Regulations be amended to provide that of the 12
continuing legal education credit hours a Pennsylvania attorney is required to earn each year, the minimum number
of ethics credits should be increased from one hour to two hours per year; and an attorney should be required to
attend at least one hour of continuing legal education every five years on the topic of the duty to report misconduct
by judges and other attorneys.
4. That courses which are offered to satisfy the ethics continuing legal education requirement provide meaningful and
inspirational programming.

E.

RECOMMENDATIONS REGARDING CONTINUING EDUCATION

'lbe need for judges, prosecutors, defense counsel, hearing officers and masters to be properly educated about the Juvenile
Act, child development, and problems unique to the relationship between children and their families is readily apparent.
However, there are currently no standards that provide any guidance to the primary participants in the juvenile justice
system regarding the duty of continuing education. Therefore, the Interbranch Commission on Juvenile Justice endorses
the training standards adopted by the Pennsylvania District Attorney's Association and the Juvenile Defenders Association
of Pennsylvania.
111e recently adopted Standards for Pennsylvania Prosecutors in Juvenile Court recognize that "the effective representation
of the Commonwealth's interests requires that the juvenile court prosecutor be well versed in the relevant statutory and
procedural mandates, the Juvenile Act and the Rules of Juvenile Court Procedure. Juvenile court prosecutors, therefore,
need to be trained in the statutes and the rules before handling juvenile matters. Furthermore, all juvenile court
prosecutors should be trained in tl1ese Standards':
The recently adopted Performance Guidelines for Quality and Effective Juvenile Delinquency Representation recognizes
and incorporates Pennsylvania's Rules of Professional Conduct, Rules of Juvenile Court Procedure and the Juvenile Act.
They also reflect national standards established by the American Bar Association, the National Legal Aid and Defender
Association and its Council of Chief Defenders and the National Juvenile Defender Center.1he guidelines will serve as a
training and development tool for new juvenile public defenders, contract and assigned counsel who receive assignments
in juvenile court and affirm for experienced attorneys the considerations necessary to deliver quality legal representation.
Therefore, the commission recommends all juvenile defense attorneys should be trained in these guidelines before
handling juvenile cases.
The commission recommends thal both organizations develop and consistently present continuing legal education courses
to train prosecutors and defense attorneys in their respective standards.
Further, the commission recommends that every judge of the court of common pleas who is aSSigned to handle matters
involving allegations of delinquency brought under the Juvenile Act be required by the Supreme Court of Pennsylvania to
attend 12 hours of continuing education within 90 days of such assignment. The commission also recommends that
periodic updates in mandalory continuing education be considered by the Supreme Court for all such Judges. The
commission further recommends that at least some part of the continuing education be conducted on a regional basis so
judges have the opportunity to discuss and analyze legal issues that may be uniquely regional, and to become familiar with
placement and community-based resource options that may have a common regional connection.
In addition, the commission recommends that the Supreme Court develop mandatory continuing education standards for
juvenile masters and hearing officers.
Finally, while training provides an appropriate foundation, there must be vigilance by all concerned regarding the
importance of the mission of the juvenile justice system. AU too often during the commission's hearings, there were
references to "kiddie court" and the juvenile court in Luzerne County being considered a training ground for prosecutors
and defenders. Officials at the stale and county levels must emphaSize the imporlance of balanced and restorative justice,
46

and must see to it that the individuals who fiIl the roles in juvenile justice possess the integrity, the desire and the
commitment to the goals and values of the system. Attitude reflects leadership, and the system will not function properly if
it is simply a training ground, or an unwanted stepchild of the entire justice system.

F. RECOMMENDATIONS REGARDING JUVENILE PROSECUTORS
A prosecutor has a special ethical obligation to be a minister of justice, and this solemn responsibility is enhanced in the
context of juvenile delinquency proceedings under the principles of balanced and restorative justice. ·While prosecutors
must assure the safety of the community and protect the rights of victims, prosecutors must go further in juvenile cases. A
prosecutor must also weigh the needs of the juvenile offender - not "....ith an eye toward punishment - but toward
rehabilitation through the least restrictive means necessary.
·When this responsibility is considered in light of what occurred in Luzerne County, the prosecutors clearly abdicated their
roles as ministers of justice and simply became passive observers to the tragic injustices that were perpetrated against
juvenile offenders. It is not an understatement to conclude that there was a systematic failure within the Luzerne County
District Attorney's Office that allowed for the corruption to continue unabated for too long.
First, the record plainly demonstrates that juvenile prosecutors were not properly supervised by the district attorney;
rather, both former District Attorney David Lupas and then-First Assistant (and now current) District Attorney Jacqueline
Musto CarroIl incredibly conceded that they had never set foot in a juvenile court throughout their entire careers as
prosecutors. District Attorneys Lupas and Carroll demonstrated no initiative, interest, or concern with what was occurring
in juvenile court. In addition to providing no real supervision of their juvenile prosecutors, it was also apparent that young
prosecutors were left on their own in juvenile court without any substantive training or guidance. As a result, a pattern of
ineffective juvenile prosecutors with no concern for the needs of the juvenile offenders emerged in Luzerne County - and
sadly repeated itself as inexperienced prosecutors rotated in and out of former Judge Ciavarella's courtroom.
Second, both district attorneys and their juvenile prosecutors blindly accepted the zero-tolerance philosophy advocated by
Ciavarella as a simple unavoidable circumstance over which they had no control. The juvenile prosecutors never advocated
for a change in Ciavarella's draconian placement practices; rather, the juvenile prosecutors simply sat silent while large
numbers of juvenile offenders were ordered into out-or-home placements without adequate grounds or justification.
Rather than seeking justice based upon the circumstance of each juvenile case, the prosecutors became complicit in the
countless acts of injustice by their silence and lack of advocacy.
The inherent unfairness of Ciavarella's practices was apparent even to the young, untrained, and inexperienced prosecutors.
As one prosecutor noted, he was disturbed. by the placement of some juvenile offenders for minor offenses, but he did not
know what to do or to whom he should go for guidance. This statement is a striking indictment to the deficiencies in the
performance, training, education and supervision of juvenile prosecutors in Luzerne County.
After this scandal erupted, District Attorney Carroll took the affirmative step to reclaim her prosecutorial authority and
fullill the special ethical obligation to do justice in each juvenile case. She has elected to sign every juvenile petition prior to
its filing, thereby ensuring that juvenile prosecutors are involved in each juvenile case from its inception. TIlls election
represents a significant reform and hopefully marks the beginning of a new prosecutorial philosophy relating to juvenile
justice in Luzerne County.
Further, as noted above, the Pennsylvania District Attorney's Association (PDAA) has taken the affirmative step of
adopting Standards for Pennsylvania Prosecutors in Juvenile Court. "Ihese new standards clearly enunciate the special
duties of a juvenile prosecutor. 'lhe PDAA has undertaken the commitment to ensure that this Commomvealth
never experiences the wholesale abdication of prosecntorial duties and responsibilities like those that occurred in
Luzerne County.
Under the Rules of Professional Conduct, a prosecutor has the obligation to make certai n that a juvenile offender
understands the proceedings, comprehends a waiver of any specific rights, and knows the implications of any admissions
or pleas. As these responsibilities are considered in light of the Luzerne Connty scandaL the record shows that prosecutors
sat through proceedings where juveniles were not represented by counsel, where the court never advised the juvenile of the
1\7

right to counsel, and where the court never provided any meaningful explanation to the unrepresented juvenile as to what
was occurring or the implications that arose from any admission to specific conduct.
The PDAA's new standards make these obligations clear, and emphasize that juvenile prosecutors not only seek a successful
adjudication, but also must take affirmative steps to ensure that juvenile rights are protected. Moreover, while the Juvenile
Act and rules do not require that a prosecutor be present at any juvenile proceeding, the PDAA has taken the approach that
prosecutors must be present at each and every juvenile proceeding, not only to protect the Commonwealth's interests and
the rights of . .i ctims, but also to fulfill the prosecutor's special obligation to protect the rights of juveniles and pursue just
results in each case.
The Interbranch Commission on Juvenile Justice commends the PDAA's prompt creation and adoption of standards for
Pennsylvania's juvenile court prosecutors. The commission views this as an important step toward ensuring that
prosecutors throughout the Commonwealth understand their far-reaching role in juvenile court. The commission,
therefore, supports the precepts articulated in these standards and recommends that the PDAA take any reasonable steps
necessary to train juvenile prosecutors to effectuate the implementation of these standards throughout Pennsylvania.
Finally, the commission recognizes that additional funding will be required for prosecutors to implement these
recommendations. The commission supports increasing prosecutors funding to sufficient levels.

G.

RECOMMENDATIONS REGARDING JUVENILE DEFENSE LAWYERS

At present, Pennsylvania and Utah are the only states in the nation that do not provide any state funding for indigent
juvenile defense. County budgets must cover all expenses for juvenile defense attorneys in Pennsylvania including essential
support services such as investigators, social workers, paralegals and expert witnesses. Relying solely on counties to
determine how to fund indigent juvenile defense has led to significant differences in the quality of representation from one
county to the next across the Commonwealth. In addition, by not pro.. .i ding funding for indigent juvenile defense, the state
does not have a way to ensure that basic caseload and performance standards are met by attorneys representing children in
delinquency proceedings.
The Interbranch Commission on Juvenile Justice heard testimony that juvenile defender case loads in Pennsylvania were
far too high. Few offices had adequate computers, with some offices using outdated computers donated by their colleagues
in the district attorney's offices. Fifteen percent of the public defenders did not have adequate telephone service; and 30
percent did not have access to the internet. As a result of varying levels of access to resources, the quality of juvenile
defense services varied dramatically from county to county resulting in "justice by geography".
According to the former Luzerne County Chief Public Defender Basil Russin, a shortage of resources played a role in his
decisions about how the Luzerne County juvenile praclice was developed. Russin testified lhat when former Judge
Ciavarella was presiding in juvenile court, his office handled between two and four cases per week for a total of 100 to 200
cases per year out of a total of 800 to 1,000 delinquency cases per year. Under the supervision of the new juvenile court
judge, David Lupas, it now takes two full days per week for the assigned attorney to handle between 800 and 1,000 cases
per year. This caseload is well in excess of the standard of 200 felony and misdemeanor cases per year for a juvenile defense
attorney recommended by the American Council of Chief Defenders. During an era of tight budgets, Russin explained that
the county commissioners were made aware of increases in caseloads but did not respond favorably. According to Russin,
"Last year with my case count up ten percent I got cut a lawyer and got cut a clerical person:'
Pennsylvania's obligation to enforce a child's constitutionally guaranteed right to counsel in delinquency proceedings arises
from the SLxth Amendment right to counsel and Fourteenth Amendment right to due process for children that was
established in 1967 in the landmark u.s. Supreme Court case In re Gault, 387 U.S. 1 (1967). Pennsylvania incorporated
these constitutional requirements of due process and the right to counsel for juveniles in § 6337 of its Juvenile Act in 1972.
See 42 Pa. C.S. § 6337.
'TIle 1968 Public Defender Act speCifically obligates public defender offices in Pennsylvania to include representation of a
person charged with juvenile delinquency who lacks sufficient funds to otherwise retain counsel. See 16 P.S. § 9960.6(a) (L).
'The Pennsylvania Rules of Juvenile Court Procedure provide [or the appointment of counsel if a juvenile is without
48

financial resources or is otherwise unable to employ counsel. See Pa.R.J.C.P. 151(A):Ibe rules also provide for the
assignment oflegal counsel separate from the appointment of a guardian ad litem, for a child in a dependency matter who
has been charged with committing a delinquent act. Pa.R.J.C.P. 151(B) (c).
Unfortlmately, whether due to indifference, inexperience, incompetence or intimidation, many, though not all of the
defense attorneys in Luzerne County that appeared before Ciavarella, clearly abdicated their responsibilities to zealously
defend their clients and to protect their due process rights.
According to the record, over 54 % of the children who appeared in Ciavarella's courtroom from 2003 to 2008 appeared
without counsel. Public defenders, contract counsel and privately-retained attorneys were present in those courtrooms and
observed the routine violation of the constitutional rights of children and in some cases the violations of the judicial
cannons of ethics. They had an ethical obligation to speak up, At the bare minimum, they should have contacted their
supervisors in the Public Defenders Office and the local bar associations or notified the appropriate judicial or attorney
disciplinary organizations.
Ivlany of the juvenile defendants whose rights were violated were represented by counsel. These attorneys appeared in court
without protest, while large numbers of juvenile offenders were placed in out-of-home facilities without adequate legal
justification. Inexplicably, very few motions for reconsideration or appeals were filed. The Juvenile Law Center was one of
the few organizations that challenged the violation of the rights of these juveniles.
TIle record plainly indicates that the juvenile defenders were not properly supervised by former Chief Defender Russin.
According to his testimony, there was no real supervision in the courtroom, no juvenile-specific training and no
performance reviews.
There was at least one complaint brought to Russin's attention by one of the young assistant public defenders assigned to
juvenile COllrt. That attorney reported that there were lots of youths going unrepresented in Ciavarella's courtroom and
there were improper waivers. No action was taken by Russin in response to this complaint.
Through his silence and the silence of the juvenile defenders on his staft: Russin became complicit in the zero-tolerance
policies instituted by Ciavarella and the routine placement of children for minor oftenses and without careful consideration
of their individual circumstances as required by a balanced approach to restorative justice.
As the scandal gained wide attention throughout the state and across the nation, Russin reached out for assistance. In
September 2009, he aSSigned a skilled and experienced defender to become the juvenile defender and he agreed to accept
appointments by the court to all the juvenile cases where there were no conflicts.
Based on the above, the commission makes a series of recommendations bearing on juvenile defense:
I. A state-based funding stream for indigent juvenile defense.
'lhe General Assembly should establish a dedicated funding stream for indigent juvenile defense that supports the
traditional efforts of the counties to provide financial resources for this constitutionally mandated right to counsel.
2, A Center for Juvenile Defense Excellence.
In order to ensure that children in Pennsylvania's juvenile courts are represented by competent attorneys, technical
assistance required to provide quality representation should be readily available to juvenile defense attorneys
throughout the state. A Pennsylvania Center for Juvenile Defense Excellence 'would provide support to defense
counsel representing indigent juveniles in delinquency proceedings and would provide a resource for attorneys
representing children in smaller counties to obtain advice and referrals in areas such as special education,
immigration, sex oft'ender registration and civil commitment issues. See Recommendations to the Interbranch
Commission on Juvenile Justice by the Juvenile Indigent Defense Reform Initiative, ~larch 15,2010.
It is recommended that the center provide an annual report to the governor, the legislature and the Supreme Court.

'Ihe commission further recommends that this issue be referred to the Joint State Government Commission where it
can be considered in conjunction with other issues related to indigent defense, such as Senate Resolution 42 of2007,
by an advisory group composed of stakeholders from throughout the criminal justice system.

49

3. Ensuring Access to Defense Counsel
Defense counsel plays an important role in ensuring fairness and equity in the juvenile justice system in
Pennsylvania and in protecting children against abuses of judicial power. Defense lawyers occupy the unique
position of giving children a voice in the process by representing the child's expressed interest. They protect the due
process rights and liberty of children they represent with pretrial motions, habeas corpus petitions, challenges to
evidence in adjudicatory hearings, motions for reconsideration and appeals. Defense counsel protect their clients'
rights, and are in a position to report judicial and prosecutorial abuses to disciplinary boards. For these reasons the
commission recommends:
A. Ibat all juveniles should be deemed indigent for the purposes of appointment of counsel.
In many counties in Pennsylvania, the courts and public defender offices have relied upon the income of
parents and guardians of juveniles to determine financial eligibility for the appointment of counsel. In
Luzerne County, former Chief Public Defender Basil Russin testified that he used Poverty Guidelines to
determine eligibility for public defender services.
In such situations, there is an inherent risk that the legal protections afforded juveniles could be eroded by the
limited financial resources of their parents, particularly those parents whose income is just above the
guidelines, or by the unwillingness of parents to expend their resources. There is also the risk that the
attorneys hired by parents might rely upon the parents for decision making in a case rather than rely upon the
juvenile as the law requires. Accordingly. the Interbranch Commission for Juvenile Justice recommends that
the Pennsylvania Supreme Court amend the Rule ofJuvenile Court Procedure 151 to instruct courts that
juveniles are to be deemed indigent for the purpose of appointment of counsel.
B. Restrict the right of a juvenile to waive the right to counsel and require stand-by counsel if the

juvenile waives counsel.
As noted above, over half of the children 'who appeared before former Judge Ciavarella waived the right to
counsel. In spite of the protections afforded children since October 2005 by Pennsylvania Rule of Juvenile
Court Procedure 152, the right to counsel was routinely wajved.
'111e commission was asked by experts in the fIeld to recommend an unwaivable right to counsel. Instead,
however, the commission has chosen to recommend ne,v safeguards and protections for the right to counsel
by strengthening the protections of the waiver rule, increasing access to the counsel through the appointment
process, increasing the protections and speed of the appellate process and strengthening the role of defense
counsel. It is with these considerations in mind that the commission recommends that the Pennsylvania
Supreme Court modify Pennsylvania Rule ofJuvenile Court 152 (relating to waiver of counsel) to:
1. Require a juvenile to consult with an attorney prior to waiving counsel at any of the following proceedings:

Detention hearings;
Pretrial hearings;
Hearing to consider transfer to criminal proceedings;
Adjudicatory hearing;
Dispositional hearing;
Dispositional hearing/commitment review hearing;
Probation review hearings; and
2. Retain Section C of Rule 152 which limits the ,vaiver of counsel to the proceeding where the waiver
occurs and authorizes the juvenile to revoke the waiver at any time. It also requires that the juvenile be

informed of the right to counsel at any subsequent proceeding;
3. Require the appointment of stand-by counsel if a juvenile waives counsel at any of the aforementioned
proceedings;
4. Replace the guidance regarding the specifics of the colloquy that is currently contained in the Comment
to Rule 152, with provisions in the rule that would detail the specific information that the colloquy is
to elicit.

50

C. Implement an appointment system for counsel that avoids the appearance of impropriety.
\Vhere judges appoint counsel that appear before them on specific cases there is an inherent potential conflict
between the financial interests of the attorney in obtaining future appointments and the zealous
representation of the juvenile. The independence of the defense counsel is critical for making client-centered
case decisions. Some counties have chosen wheels or other neutral procedures to accomplish this task. This is
a critical addition to the system of checks and balances needed to ensure the right to counsel. "Iberefore, it is
recommended that the Pennsylvania Supreme Court should work with the Juvenile Defenders Association of
Pennsylvania to establish an independent procedure in each cmmty or regional district to reduce
appointments by judges oflav'lyers who appear before them.

D. Performance Guidelines for Quality and Effective Juvenile Delinquency Representation
Guidelines serve as a training and development tool for new attorneys who receive delinquency
representation assignments. They also affirm for experienced counsel the considerations necessary to deliver
quality legal representation.
The Juvenile Defenders Association of Pennsylvania (JDAP) has taken the necessary steps to develop and
adopt performance standards for indigent juvenile defense attorneys. The guidelines have also been adopted
by the Public Defenders Association of Pennsylvania (PDA of PA). 1hese new standards explain the duties
and responsibilities of juvenile defenders at every stage of the juvenile court process. JDAP and PDA of PA
have committed themselves to taking all necessary measures to ensure access to counsel and quality
representation for Pennsylvania's children.
The commission commends the Pennsylvania Commission on Crime and Delinquency (PCCD), the
NlacArthur foundation and JDAP for their prompt support in the creation of a comprehensive juvenile
practice training program for defense counsel in Luzerne County. The Commission also commends JDAP
and the PDA of PA for their adoption of the guidelines. The commission supports the principles articulated in
these standards and recommends that the JDAP work in conjunction with the PDA of PA and the
Permsylvania Association of Criminal Defense Lawyers to train juvenile defense attorneys to effectuate the
implementation of these standards throughout Pennsylvania.

H.

RECOMMENDATIONS REGARDING ETHICS FOR JUVENILE PROBATION OFFICERS

Juvenile Probation Officers are officers of the court by definition, and bound by the provisions of the Juvenile Act.
Generally speaking, the officers are called upon to:
Make investigations, reports, and recommendations to the court;
Receive and examine complaints and charges of delinquency or dependency of a child for the purpose of considering the
commencement of proceedings;
Supervise and assist a child placed on probation or in his or her protective supervision or care by order of the court or
other authority oflaw;
Make appropriate referrals to other private or public agencies of the community if their assistance appears to be needed
or desirable;
Take custody and detain a child who is under his or her supervision or care as a delinquent or dependent child if the
probation officer has reasonable cause to believe that the health or safety of the child is in imminent danger, or that he or
she may abscond or be removed from the jurisdiction of the court, or when ordered by the court, or if the child has
violated the conditions of his or her probation, as well as such other duties imposed by the court.
As officers of the court, juvenile probation officers must conduct themselves in a manner which avoids the appearance of
impropriety. In all instances while interfacing \vith the juvenile, family, victims, community-based providers, and private
providers, their recommendations must always be mission-driven, performance-based, and outcome-focused.

51

'lhe testimony before the Interbranch Commission on Juvenile Justice reflected the potentiality of decisions of juvenile
probation being influenced by extraneous factors which were not evidence-based surrounding youth appearing in juvenile
court, but rather the derivative of aggressive marketing practices or a by-product of potential conflict of interest.
'lhe Interbranch Commission on Juvenile Justice applauds the efforts of the Chief Juvenile Probation Officers Association
of the Commonwealth in its initiative to develop statewide standards for ethical practices of probation officers.The
commission recommends that the chief's association, as well as each county probation department, adopt comparable
standards which address the following:
1. The rejection of all gifts, souvenirs, and tokens from all private providers who provide services to
juveniles and their families as a result of recommendations by the Juvenile Probation Department.
2. The incorporation by counties entering into contractual agreements with the private providers on behalf
of the probation department limiting providers to merchandizing based on outcomes and services
rather than enticements.
3. Standards barring part-time employment and board of directors' engagement of probation officers by
private providers unless approved by the chief probation officer and. the juvenile court.
4. Standards surrounding confidentiality of cases.
5. Standards surrounding subsequent employment of probation officers by private providers.
6. Standards surrounding partisan political activity.
Ihe commission recognizes that these recommendations are not all-inclusive and that the chief's association does not have
authority over individual departments of probation in each judicial district. However, the adoption of uniform standards
by the individual districts and the application of those standards would benefit the judicial system.

I.

RECOMMENDATION REGARDING COURT HIRING PRACTICES

Former judges Conahan and Ciavarella hired family members and friends to work in the courts. The Interbranch
Commission on Juvenile Justice determined that this was all extremely detrimental practice. It contributed to a breakdown
in professionalism and to a breakdown in public confidence. Ultimately, as some witnesses before the commission testified,
the environment for corruption became more fertile. COllrt employees were less likely to speak out against judicial
misconduct if they had personal ties to the judges engaging in misconduct.
'Ihe commission is concerned that the employment offamily members, close personal friends or political associates creates
the perception that hiring decisions are not based on merit and competence and, thereby, undermines public confidence in
the courts.
It is therefore recommended that the Court Administrator of Pennsylvania undertake a national study to determine the
highest standards and best practices for court hiring policies and present the findings o[ that study to the Supreme Court
for review.

J.

RECOMMENDATION REGARDING CONTINUING SUPREME COURT OVERSIGHT

Since the juvenile justice scandal became public knowledge in Luzerne County in early 2009 there has been a dramatic
public reaction leading to significant reform in the ways the juvenile court system operates.
Based on a report provided to the Interbranch Commission on Juvenile Justice by the Luzerne County Juvenile Justice
Victim Response Task Force, the commission is aware of changes ill the practices and procedures of the juvenile court
under the leadership ofJucige David W. Lupas, initiatives to improve the operations of the juvenile probation department,
procedural modifications in the Office of the District Attorney Jacqueline Musto Carroll, enhanced services provided by
the Public Defender's Office, and programs to respond to the needs of both the original victims and juvenile victims of the
juvenile justice scandal.
52

It is clear that significant efforts have been made, improvements have occurred, and additional changes and improvements
are under consideration. The commission believes credit is due to those who have worked diligently to repair the harm that
has been done and who share a vision of creating a model juvenile justice system.
At the same time, the commission is concerned that the local culture of practice and procedure is so ingrained that there
can be no reasonable assurance the commitment demonstrated to date can be sustained without the ongoing support and
encouragement of the Supreme Court.
The commission, therefore, recommends that the Supreme Court develop a mechanism to provide continuing oversight of
the Luzerne county court system through the office of the Court Administrator of Pennsylvania and to receive regular
reports from the President Judge of Luzerne County to assure that the programs and procedures are institutionalized and
the juvenile system functions in accordance with the Juvenile Act and the Rules ofJuvenile Procedure.

K.

RECOMMENDATIONS REGARDING THE USE OF DATA AND STATISTICS

'Ihe Juvenile Court Judges' Commission (JCJC), the Administrative Office of Pennsylvania Courts, the Department of
Public Welfare and perhaps other state agencies collect an extensive amount of data about the juvenile justice system. In
addition, the JCJC annually provides a statistical overview of juvenile court dispositions based on data collected as cases
are closed in all 67 collnties. While the data is available, there is no meaningful process for converting the data into useful
information that can be used to gUide the development of juvenile justice policy and decision-making statewide, or to
identify localized problems in the juvenile justice system.
The Interbranch Commission on Juvenile Justice recommends, therefore, that the JCJC be afforded adequate resources:
1. To study how data can be usefully applied to identify and to solve problems in the juvenile justice
system;

2. To identify what data should be collected and by what agency; and
3. To determine how data should be analyzed and disseminated.
'Ihe commission further recommends that all state agencies and entities with relevant information, including the
Administrative Office of Pennsylvania Courts and the Department of Public \'\Telfare, should collaborate with the JCJC in
that effort.

1. RECOMMENDATIONS REGARDING STATING DISPOSITIONAL REASONING ON THE RECORD
The Interbranch Commission on Juvenile Justice heard testimony from Luzerne County children and parents that they
entered juvenile court expecting to receive treatment that was fair and evenhanded. Instead, many were subjected to
disproportionately harsh dispositions for minor offenses with no justification. A requirement that juvenile court judges
state the reasons for dispositional orders on the record would add a layer of transparency Lo juvenile court proceedings that
would help children and families understand the purpose of juvenile court dispositions.
Requiring juvenile court judges to consider the treatment, rehabilitation and supervision needs of each child as well as the
principles of balanced and restorative justice prior to stating the reasons for the disposition would help to ensure Lhat the
principles which should guide every juvenile court disposition would be followed. Additional emphasis on the court's
justification for orders requiring out-of-home placement would serve both as a reminder that out-of-home placement
should occur only when there is a "clear necessity" to remove the child from the home, but also would assure children and
families that juvenile court judges clid not take this step lightly. In cases where a dispositional order was challenged,
appellate courts would have a clear record to review. Accordingly, the commission recommends:
1. 'Ille General Assembly amend the Juvenile Act to require juvenile court judges to state on the record
how the disposition ordered furthers the goals of the Juvenile Act and the principles of balanced and
restorative justice; if the disposition is an out-of-home placement, why there is a "clear necessity" to
remove the child from home.
53

2. 1he Pennsylvania Supreme Court promulgate changes to Rules of Appellate Procedure and Rules of
Juvenile Court Procedure (Rule 512, relating to dispositional hearings) to require Juvenile Court judges
to state on the record how the disposition order furthers the goals of the Juvenile Act and the principles
of balanced and restorative justice; and if the disposition is an out-of-home placement, why there is a
"clear necessity" to separate the child from the home.
3. The Pennsylvania Supreme Court modify the Comment to Pa. R. J.c.P. 512 to clarify that, prior to
stating the reasons for its disposition, the court should give consideration to the following factors: the
protection of the community; the treatment needs of the juvenile; the educational, health care, and
disability needs of the juvenile; the supervision needs for the juvenile; the development of competencies
to enable the juvenile to become a responsible and productive member of the community;
accountability for the offense(s) committed; and any other factors that the court deems appropriate.

M.

RECOMMENDATION TO REDUCE OR ELIMINATE THE PRACTICE OF SHACKLING

The Interbranch Commission on Juvenile Justice heard testimony that after disposition, children in Luzerne County were
at times taken from the courtroom in leg shackles and handcuffs attached to thick leather belts. 'The use of shackles on
children can be a demeaning and dehumanizing practice that is contrary to the philosophy of balanced and restorative
justice and undermines the goals of providing treatment, rehabilitation and supervision for children. However, there are
certain circumstances where children need to be restrained to protect themselves and others and to maintain security in
the courtroom. Given the complexity of these issues, the commission recommends that the Juvenile Justice Delinquency
Prevention Committee of the Pennsylvania Commission on Crime and Delinquency undertake a study and develop
recommendations on how to effectively address this issue. The goal of the study should be to reduce and if possible
eliminate shackling in Pennsylvania's juvenile courtrooms.

N.

RECOMMENDATION REGARDING JUVENILE PLACEMENT DECISIONS

'Witnesses before the Interbranch Commission on Juvenile Justice and accompanying exhibits confirmed that during the
years 2003-2008 placement decisions for secure detention in Luzerne County were often: a) directly driven by police
recommendations at the time of arrest without independent evaluation by the probation department; b) prompted by a
request for a diagnostic evaluation; or c) precipitated by the juvenile court judge as a punitive measure such as for
nonpayment of fines. It is clear that the narrowly-defined mandates of the Juvenile Act and the existing Juvenile Court
Judges' Commission detention standards were disregarded by these practices.
1he general detention standards developed by JCJC in response to Coleman v. Stanziani are valid and remain overarching
principles of detention decision-making. Nonetheless, probation officers, police, prosecutors, victims, family members and
other community stakeholders would greatly benefit by the implementation of the Juvenile Detention Alternatives
Initiative (JDAI) model as a detention assessment instrument in order to avoid reckless and thoughtless secure placement
decisions and enhance the objectivity surrounding placement decisions affecting juveniles.
The commission endorses the modification of the JCJC Standards Governing the Use of Secure Detention to incorporate
the use of a detention assessment instrument based on the JDAI model as supported by the Annie E. Casey Foundation.

o. RECOMMENDATION REGARDING YOUTH LEVEL OF SERVICES INITIATIVE
Under the Juvenile Act, a juvenile court's disposition must be best suited to the child's treatment, supenrision, rehabilitation
and welfare. 1he juvenile court is required to impose the minimum amount of confinement consistent with the protection
of the public and the rehabilitative needs of the child. Balanced attention must be given to all of these factors while
focusing on the development of competencies for the child. Clearly, the testimony offered before the Interbranch
Commission on Juvenile Justice displayed an abdication by the Luzerne County juvenile court dming 2003-2008 of its
responsibilities under the Juvenile Act in crafting appropriate dispositions.
Given the individuality of each adjudicated youth appearing before the court, it is warranted that validated screening tools
and risk assessment to reoffend be included by probation as part of the case assessment so that the most complete
information is made available to the court for its decision based upon objective criteria. T]le Juvenile Court Judges'
Commission, Pennsylvania Commission on Crime and Delinguency (PCCD), and the Chief Probation Officers
54

Association have asked the commission to recommend the Youth Level of Services (YLS) initiative in order to implement
this identified tool as an aide to the decision making of juvenile court judges.
One of the most important aspects of the YLS initiative is that the results from the assessment are being used to develop a
more comprehensive case planning process for juveniles that is focused on reducing identified risk factors. The desired
outcome is that this validated risk/needs assessment will be used in determining appropriate levels of supervision,
establishing measurable case-specific goals, and in allocating the necessary resources to achieve better outcomes for
juveniles and their families, and consequently for our communities. The implementation of the YLS assessment tool will
not restrict judicial dispositional authority. On the contrary, juvenile judges will begin seeing more comprehensive
proposed supervision plans that are directly related to the risks, needs and strengths of each child.
The implementation of the YLS initiative and instrument is being considered for use in 25 additional probation
departments within the Commonwealth as an expansion of the current pilot program of 10 probation departments.
Generally speaking, the utilization of risk assessment and case planning tools by probation departments can promote
greater objectivity in the disposition recommendation to juvenile courts. All risk assessment and planning tools employed
by probation departments for these purposes should be verified as evidence or researched based thereby assuring that they
are valid and reliable measures of the risks and strong predictors of desired outcomes.
Accordingly, the commission recommends the expansion as a pilot program of the use of the Youth Level of Service / Case
Management Inventory (YLS/CMI) risks/needs instrument and the employment by probation departments throughout the
Commonwealth of valid research and other evidence-based risk assessment instruments that have been determined to be
both valid and reliable measures of the predictors of youth crime and recidivism.

P.

RECO~lENDATIONS REGARDING ApPELLATE RIGHTS

TIle Interbranch Commission on Juvenile Justice heard testimony from parents of children who appeared in former Judge
Ciavarella's courtroom, who asserted they contacted a variety of governmental agencies and private organizations in an
effort to free their children from unjust detention and placement. These efforts were often made at great expense to the
parents, but they rarely achieved success. After seemingly exhausting all options in the county and the state, parents
reported seeking assistance from advocacy groups in New Jersey, and as far away as Texas.
The frustration, anguish and pain experienced by children and tl1eir parents and conveyed eloquently during their
testimony helped the commission, the citizens of Luzerne County and all concerned parties understand the true
dimensions of this unprecedented tragedy. Parents should not have to exhaust their resources and search throughout the
United States to find ways to protect the constitutional rights of their children. Additional steps should be taken to ensure
that juveniles understand their appellate rights and are able to take advantage of the right to appeal.
With these considerations in mind the commission recommends the following:
1. The Pennsylvania Supreme Court should promulgate a Rule ofJuvenile Court Procedure to include a

form entitled "Notice of Right to Seek Appeal and Other Post-Dispositional Relief:' similar to Wisconsin's
Form JD- 1757, "Notice of Right to Seek Post- Judgment Relief." The form should refer children to the
statewide appellate office. There should be a requirement that every child adjudicated delinquent in the
juvenile courts of the Commonwealth be given a copy of the form.
2. The Pennsylvania Supreme Court working ill conjunction with the Juvenile Court Judges' Commission
should develop internet-based resources that will be referenced on the form explaining how the postdispositional process works and providing the names of individuals and organizations that can assist
children and their parents.

Q.

RECOMMENDATION REGARDING ApPELLATE REVIEW
1. Timely Appellate Review
Appellate review by the Superior Court of Pennsylvania is essential to the proper functioning of the juvenile
55

justice system because it provides an aggrieved party an opportunity to seek review of the juvenile court
judge's decision, and provides a mechanism to correct legal and procedural errors that may have been made
by the judge. To be meaningful, however, appellate review must be completed before the child's placement, or
other disposition, has been completed.
Because many dispositions are completed in 120 days or less, the Interbranch Commission on Juvenile Justice
recommends that an appellate process be developed which assures that any appeal will be finalized, and a
decision rendered by the Superior Court, in 90 days or less from the date the appeal is filed.
The commission understands the implementation of this recommendation will present a serious challenge for
the Superior Court given the court's already significant workload and the complexity of the appeals process as
defined in the Rules of Appellate Procedure.
The commission, therefore, further recommends that the Supreme Court's Appellate Court Procedural Rules
Committee and Juvenile Court Procedural Rules Committee collaborate to develop an expedited appeals
process or, in the alternative, collaborate to develop a process that affords an aggrieved party an option to elect
a mechanism that affords some measure of review of a juvenile court judge's decision short of a formal
appellate review in the following proceedings: transfer of a case to a criminal proceeding or the denial of a
request to do so; transfer of a case from criminal proceedings or a denial of a request to do so, or an order of
disposition following an adjudication of delinquency that removes a child from his or her home.
2. Meaningful Appellate Review

The Pennsylvania Constitution gives juveniles the right to appeal and the Rules ofJuvenile Court Procedure
require that at the dispositional hearing the judge state on the record that the juvenile has been informed of
the right to file a post-dispositional motion, the right to appeal, the right to counsel on appeal and the time
available to fiJe the appeal. (Pa. Const. Art. 5. Section 9. In re Thomas, 625 A.2d 150, 153 (Pa. 1990); Pa.
R.l-CP 512(C»
Pennsylvania's Juvenile Act guarantees juveniles a right to counsel at all stages of the proceedings. 42 Pa. c.s.
by developing an office for attorneys
who are specially trained and adequately compensated to undertake this critical responsibility. Illinois,
Indiana and Wisconsin have developed statewide appellate offices for juveniles that could serve as models.
§ 6337. At the appellate level, the promise of counsel could be achieved

The commission has recommended training of juvenile defense attorneys. A training division could be set up
within an appellate oflice so that appellate attorneys could provide guidance to the indigent juvenile defense
bar relative to the filing of appeals in juvenile matters.
The training of attorneys through statewide and regional sessions could be undertaken throughout the year in
a coordinated fashion, ensuring that an appropriate range of subjects related to substantive, procedural and
ethical issues would be available to meet the requirements set forth by the Supreme Court.
It is recommended that courses be interesting, informative and of high quality, drawing on the best practices

in the field and on local, state and national experts in the areas of juvenile defense, prosecution and judicial
practices. The courses could also address practices related to juvenile probation and providers.
An appellate oftice could \",ark in conjunction with the Juvenile Defenders Association of Pennsylvania, the
Public Defenders Association of Pennsylvania, the Pennsylvania Association of Criminal Defense Lavryers
and other interested parties to develop the training programs.
Accordingly, the commission recommends that the General Assembly consider the creation of a statewide
juvenile appellate office. The office would represent children throughout the Commonwealth when necessary
and provide training for juvenile defense attorneys on issues related to appellate practice and new
developments in the law.

56

R. RECOMMENDATIONS REGARDING NUNC PRO TUNC RELIEF
The Pennsylvania juvenile justice system, unlike the adult system, has no procedure to correct errors that may have
occurred in juvenile court proceedings except by way of direct appeal. If the time limit for filing a direct appeal has expired,
then the juvenile has no formal opportunity to seek relief.
In the adult system, the use of the Post Conviction Relief Act permits those who have been convicted of crime, and for
whom the time for filing a direct appeal has expired, to bring their cases to the attention of the court under certain
limited circumstances.
Whether a similar formal statutory mechanism should be developed in Pennsylvania is beyond the scope of this report.
However, the Interbranch Commission on Juvenile Justice notes the difficulty faced by those wrongly adjudicated in
Luzerne County in obtaining review of their cases once the alleged criminal scheme in the juvenile court came to light.
For many, the time limit for filing a direct appeal had long since expired and their only avenue of relief was to file a King's
Bench Petition with the Supreme Court.
The commission therefore recommends:
1. That consideration be given to creating a mechanism which will afford a juvenile adjudicated delinquent

an avenue to present a petition for relief from a wrongful adjudication even though the period for direct
appeal has expired.
2. That until a Jormal mechanism is developed tor presenting a petition for relief after the period for direct
appeal has expired, the Superior Court and Supreme Court should liberally allow the filing of appeals
from juvenile adjudications nunc pro tunc (now for then).

S.

RECOMMENDATIONS REGARDING COUNTY COMIVflSSIONERS

From the testimony presented at the hearings of the Interbranch Commission on Juvenile Justice, it was apparent there had
been confusion and misunderstanding in Luzerne County abollt the respective powers and responsibilities of the county
commissioners and the Court of Common Pleas.
In Pennsylvania, county commissioners have well-defined authority over specified operational aspects of county
government. Under the Pennsylvania Constitution, the Court of Common Pleas is a separate and co-equal branch of
government. As a branch of government separate from the commissioners, the judiciary has its own independent set of
constitutional and statutory responsibilities. Admittedly, this complicated system of county governance - of checks and
balances - creates tensions and presents diilicult issues when there are attempts to precisely draw the boundaries between
each branch's prerogatives and responsibilities to check and balance the other.
Based on the testimony, however, the commission has concluded that the Luzerne County Commissioners, during the
period from 2002 to 2008, abdicated certain responsibilities by failing to exercise appropriate oversight regarding budget
issues, managing the county-owned juvenile detention facility, and supervising county staff. 'lbe commission also
concludes that the president judges during that period failed to promote or preserve the comity which should be expected
between co-equal branches of government.
The commission's hearings, of course, have focused on issues that arose out of the relationship between the Board of
Commissioners and the Court of Common Pleas in Luzerne County. 'The commission members are aware that similar
issues may exist in other counties in Pennsylvania. The commission concludes that positive steps can be taken both in
Luzerne County and elsewhere to minimize the opportunity for mislmderstanding and conflict between commissioners
and courts of common pleas.
111eretore, the commission recommends:
1. That county commissioners be encouraged to complete the Academy tor Excellence in County Government

offered by the County Commissioners Association of Pennsylvania.

57

2. That the Pennsylvania Association of Court Management collaborate with the COllilty Commissioners
Association of Pennsylvania to convene educational meetings and seminars to encourage conversation and
mutual understanding among county commissioners and president judges and court administrators of the
courts of common pleas regarding their respective duties and statutory obligations.

T.

RECOMMENDATIONS REGARDING THE DEPARTMENT OF EDUCATION

The manner in which school officials in Luzerne County handled offenses, especially minor infactions, during school hours
or on school property, came under scrutiny as part of the wide-ranging probe of the Interbranch Commission on Juvenile
Justice. Several witnesses who appeared before the commission spoke of how school officials praised then Judge Ciavarella
for his "get tough" policy that resulted in significantly higher placement rates. Two of those witnesses, senior Berks County
Judge Arthur Grilli, who was appointed by the State Supreme Court to review Ciavarella's cases and Basil Russin, Luzerne
County's Chief Public Defender, questioned whether school districts had done enough to resolve cases outside of court.
Judge Grim said he felt school officials supported Ciavarella's policy without giving thought to "what it really meant" for
juveniles - many of whom ended up in out-of-home placement for minor offenses based on Ciavarella's zero-tolerance for
offenses committed at school. "They would immediately pick up the phone and call police because they knew ... if they got
in front of a get tough Judge, the troublemaker would be out of their hair," Judge Grim informed the commission. Russin
added that "instead of handling it as an interdisciplinary matter, such as in-school suspension, they'd call police and it
would go to Juvenile Court." Notably, Russin also commented that he believed many of the schools have since changed
their philosophies, and he believed that the number of referrals from schools has decreased.
The Commonwealth's Secretary of Education said that Pennsylvania has three broad goals for education: (a) high student
performance; (b) high quality teaching and administration; and (c) a safe, secure and supportive environment for each
school and every child.
To achieve these goals, the Department of Education has provided the public schools with information and tool kits that
emphasize prevention, mitigation, preparedness, response and recovery. These protocols were made available to ensure
that when an incident happens, schools and their campuses can quickly and adequately restore the school climate to
optimal learning conditions.
'lhe juvenile justice system serves as an important public safety role. lbere is a general consensus within Pennsylvania that
there are many dedicated juvenile justice professionals who have devoted their lives to helping youth turn around their
lives. However, too often, schools use the justice system as the school disciplinarian and juvenile courts are too willing to
serve in this role. Although not listed as one of the Department of Education's protocols, schools in Luzerne County too
quickly turned to the juvenile justice system as a vehicle to address school climate and learning condition. As a result, too
many youths unnecessarily entered the juvenile justice system.
Although the Department of Education developed and, arguably, had available alternative methods of improving students'
behavior, programs that are similar to those that have been developed by schools across the country, schools in Luzerne
County chose to have their students arrested. 'nle commission agrees with experts in the field of education that, for most
students, there are alternatives that are much better and effective in ensuring a safe, secme and supportive environment for
each child who attends school in Pennsylvania. Despite their respective stated and/or aspirational goals, the commission
believes that both the Pennsylvania Department of Education, specifically the local schools in Luzerne County, as well as
local juvenile justice system, specifically the District Attorney's Office and law enforcement, failed to comport with their
duties and obligations in achieving an educationally stimulating but sate environment for every child who attended a
public school in Pennsylvania. To address the respective organizations' shortcomings and in an effort to ensure the abovementioned goals are achieved, the commission recommends the following:
1he Pennsylvania Department of Education, the Pennsylvania District Attorney's Association, law enforcement, the
Juvenile Court Judges' Commission and other key individuals and groups associated with the juvenile justice system in
Pennsylvania collaborate to determine what improvements would be necessary to assure the implementation and oversight
of the Commonwealth of Pennsylvania's goal of providing a safe, secure and supportive environment for each school and
every child in Pennsylvania. In particular, the commission emphasizes the following areas for consideration:

58

1. In Luzerne County, school referrals made under zero-tolerance policies were integral to the overall scheme as

they provided an eas), removal of children from their homes and schools and a constant stream of children to
be placed into detention. The commission believes that zero-tolerance and allowing schools to use the justice
system as its school disciplinarian has no place in the educational process or in the juvenile court system. To
that end, it is recommended the entities identified above develop and expand programs that would support atrisk students and expand affordable and available diversionary programs, while at the same time reduce
unnecessary and inappropriate school referrals;
2. During the course of the testimony, it was clear that the Department of Education and the schools were not
thoroughly familiar with how the juvenile justice system operates. Nor did the department seem to
understand that juvenile justice and traditional educational programs cannot be viewed as separate "silos".
Even when youth are appropriately referred to the juvenile justice system, their connection to traditional
schools is never severed. Probationers attend school and youth who are placed often eventually return to their
neighborhood schools. Similarly, law enforcement, the District Attorney's Office, and other key groups
associated with the juvenile justice system, should be better informed of how schools appropriately deal with
discipline issues when they arise on school campuses. TI1erefore, the commission recommends these groups
collaborate to create an educational program necessary to assure that all stakeholders are fully aware of how
each of these organizations operate. Additionally, resources must be available to achieve the stated and
aspirational goals of both the Department of Education and the juvenile justice system. It is suggested that the
Department of Education consider partnering with the Pennsylvania Bar Association to assist in the creation
and implementation of these programs, especially since the PBA has a focus on law-related education and has
experience developing programs that protect, motivate and educate Pennsylvania's children;
3. It is further recommended that the above-stated groups work together to foster a relationship of cooperation,
mutual support and the sharing of information and resources between their various organizations as they
work together to maintain physical security and safety of schools in their districts as well as achieving the
goals of the Pennsylvania juvenile justice system - holding youth accountable to victims, providing
competency development for youth and ensuring community safety;
4. In addition, the commission heard testimony about Luzerne County students who were on probation being
drug tested in school and having their juvenile justice status revealed to the rest of the student body. These
students were embarrassed and even ostracized by their classmates and teachers. The commission
recommends that school districts develop protocols to keep the juvenile justice status of students confidential;
5. Finally, the commission heard testimony from a student who described the educational efforts in the facility
where she was sent as wholly ineffective, and performed by unlicensed teachers. This is unacceptable. The
commission recommends that the Department of Education cooperate with the Department of Public Wdfare
to review curricula at all licensed placement facilities to ensure properly accredited teachers are in place, and a
complete and beneficial education plan is in effect.

59

v. CONCLUSION
The Luzerne County juvenile ,iustice scandal cannot be understood as simply the isolated acts of former judges Conahan
and Ciavarella. While this scandal is known as "kids for cash" and news reports and commentaries frequently add that the
two have been criminally engaged in sending children to placement in return for $2.8 million in kickbacks, the Interbranch
Commission on Juvenile Justice concluded that the breakdown of the juvenile justice system in Luzerne County was more
pervasive and insidious.
While Conahan has agreed to plead guilty, the criminality of Ciavarella's actions and of his motives have yet to be proven.
Ciavarella's trial in federal court is still pending as this report is filed. However, it is now 'Nell-demonstrated that Conahan
and Ciavarella created an atmosphere in which children's constitutional rights were routinely trampled from the time
Ciavarella became the juvenile court judge in 1996.
Although the Juvenile Law Center brought attention to the problem in the spring of2008 by filing a King's Bench Petition
with the Supreme Court, not until the United States Attorney filed criminal charges in January 2009 alleging that
Ciavarella's motivation was criminal did the Luzerne County community and the juvenile justice system statewide take
significant notice of Ciavarella's courtroom practices.
His practices have been explained as taking "cash for kids;' an allegation yet to be proved, but those practices are far more
troubling because at their core is not only the alleged criminality but undisputed incompetence which, coupled with an
abuse of power condoned by the community, led essentially to a collapse of the rule of law.
'While the federal indictment brought widespread attention to Ciavarella's courtroom practices, his conduct had been
ongoing for over a decade. His penchant for confinement arguably created the opportunity for profit, but it is clear that the
opportunity for profit did not create the penchant for confinement.
His practices were no secret. They were well-known by the offices of the district attorney and public defender. defense
counsel, police, probation officers, and school officials. Many child victims or their parents testified they were well aware of
Ciavarella's reputation for "sending kids away" and his abrupt courtroom demeanor. Indeed, Ciavarella himself virtually
advertised his approach to hard line juvenile justice in his annual trips to Luzerne County schools where he told students
what would happen to them if they came to his court. When children arrived in his courtroom, he frequently reminded
them of what he had said during his school visits. In 2004, the Times Leader, a Wilkes-Barre newspaper, published a series
of articles over two days detailing Ciavarella's views and practices. The following year, he won retention with over 59% of
the vote, some ten percentage points more than Supreme Court Justices Russell Nigro and Sandra Newman, who were also
up for retention, received in Luzerne County,
Ciavarella's courtroom practices, coupled with the administrative practices he and Conahan implemented as president
judges, created an atmosphere in which coercive power trumped law and procedure. Whether because of intimidation,
incompetence, inexperience, indifference or corruption, every source of check and balance on this abuse of power failed
to one degree or another, some more than others: the Board of Judges, prosecutors and defense attorneys, probation
officers, police, school officials, the Judicial Conduct Board, the Disciplinary Board, community leadership, the electoral
process, court administration, county government, the procedural protections afforded by statute and rules of court, and
appellate review.
All three branches of government have historically shared the constitutional responsibility to assure that our justice system
functions properly. 'lhe origins of the Luzerne County juvenile justice scandal sprang from a breakdown by all three
branches of government, at both the county and state level, in meeting their shared and independent responsibilities.
Looking to the future, however, the commission believes the primary responsibility for the quality of our justice system
must logically rest with the Supreme Court of Pennsylvania, Based on the evidence presented in its hearings, the
commission does not know whether the breakdown of the Luzerne County juvenile justice system can be traced to a lack of
funding or other resources.
Nevertheless, it is clear that before the Supreme Court can fulfill its responsibility, and before it can be held accountable for
any failure to meet its responsibility, it must have the appropriate financial resources and staff required to perform the
60

necessary tasks of adjudication, education, oversight and, where justified, sanction. Assuring that appropriate resources are
provided to permit the justice system to function properly is, of course, the responsibility of the General Assembly, the
governor, and county government.
As the Supreme Court, the General Assembly and the governor consider how to meet their respective responsibilities to
the children of Pennsylvania, the commission believes it is important that they keep in mind, and explain to the public, the
unique role that the juvenile court plays in our system of law.
From the testimony the commission heard, it appears the public does not always understand how the juvenile justice
system works and has conflicting ideas about what it is expected to accomplish.
Some erroneously believe the system should be punitive in nature and emphasize punishment; others believe the system
should be protective and emphasize education and socialization. Understandably, these potentially conflicting approaches
can lead the public, lawmakers, judges, and attorneys to a muddled conclusion about what exactly the juvenile system does
and should do.
On the one hand, society expects juvenile courts to be places where children learn the consequences of engaging in
unlawful conduct and to be places where punishment is a reality. As a result, an adjudication of delinquency can carry
the possibility of very significant and lifelong effects, including out-of-home placement, disqualification from military
service, Megan's Law registration, and enhanced sentencing for adult crimes. Given these possible consequences, children
mllst be afforded constitutionally required due process protections with all the formality and associated procedural rigidity
they entaiL
On the other hand, society thinks of juvenile courts as "problem-solving courts." As problem-solving courts, they should
have the flexibility and creativity needed to address the unique problems of childhood behavior and to be places of shelter
and protection.
Compounding the misunderstanding that arises from these potentially conflicting approaches is the fact that there exists
an inaccurate perception about the children who come into the juvenile courts. 'While news accounts often evoke images of
"juvenile predators" or "gang leaders:' in fact such cases are a relative rarity. The reality is that in our juvenile justice system
it is only a very small percentage of cases - and frequently the ones which garner large headlines - that constitute serious
criminal offenses.
Instead our juvenile courts routinely deal with a less serious range of conduct - cases arising exactly out of the kinds of
behaviors one might expect of children not yet mature in body or mind. More often, the juvenile court is dealing with
children who frequently are troubled by mental illness, or who are themselves being abused or neglected, or who are
simply immature. These are the children who will benefit from the supervision of the juvenile court and who are unlikely
to return to court, as either juveniles or adults.
Nevertheless, those competing, sometimes conflicting, visions create Significant systemic tensions and demand unique
skills from all who participate in the system. It takes a special understanding by judges, prosecutors and defense attorneys
to handle these cases. It is an understanding that is borne of education, experience and profeSSional commitment to this
impOi tant, and undervalued, work.
\JVhile the commission has heard speculation that what occurred in Luzerne County could occur elsewhere in
Pennsylvania, the investigation uncovered no evidence of pervasive or systemic breakdown in the juvenile justice system
any\"Ihere else on the scale that occurred in Luzerne County. Therefore, the commission does not perceive a need for a
pervasive or systemic overhaul of the juvenile justice system as it is currently established. It is a system that is
fundamentally sound and, except for those recommendations in this report, more rules, procedural processes or statutory
requirements will simply add administrative burdens and operational costs that will not materially benefit children, deter
judicial abuse, or protect our communities.
Clearly, a juvenile justice system in a state as diverse as Pennsylvania and that addresses the conduct of children from age
] 0 and continuing to, in some cases, 21, must provide a wide range of options if we are to address the three prongs of
61

balanced and restorative justice - accountability, competency development of children, and community protection. The
strength and effectiveness of that system must depend on properly educated judges, prosecutors, defense attorneys, victim
services representatives, and probation officers who are afforded the maximum flexibility possible to address the
constellation of problems that bring children before our juvenile courts.
There is, after all, no more basic and fundamental principle of civil society than an acknowledgment of the mutual
obligation that all citizens share a solemn responsibility for the safety, well-being and welfare of all other citizens. That is all
the more true when those citizens are children, the most vulnerable of all our citizens.
1ne collapse of the juvenile justice system in Luzerne County carries with it sad lessons. Most important, the experience
demonstrates what happens when judicial power is divorced from the constraints oflaw, when slogans such as "zerotolerance" masquerade as thoughtful philosophy, and when judicial courage and compassion are replaced with a
self-serving cunning.
Preservation of democracy depends on the preservation of the rule oflaw, and if we cannot have confidence in the fairness
and honesty of those who make, apply and enforce our laws, then democracy itself is at risk.
As a commission, we recognize that whether what happened in the Luzerne County juvenile justice system was the result
of malignant criminality or benign incompetence is not a question for us to answer. And it makes no difference, after all, to
the children who were unlawfully adjudicated and their parents, or to the original victims of crime who have been denied
their day in court. Either way the harm has been done. The commission's responsibility has been to develop
recommendations to guard against it happening again.
We understand that our recommendations offer little protection against determined greed, avarice and criminality. But
based on the testimony presented at our hearings, we also understand that many otherwise good and responsible people
Simply lost their way and chose accommodation over principle, and passivity over vigilance. To the extent that the
commission's work will lead others to reaffirm their commitment to the cause of justice, and to encourage others to take
action necessary to improve and reform our legal system, then as a Commonwealth we will have redeemed ourselves in
some small way for the myriad failings that undermined the rule oflaw.

62

VI.

COMMISSION BIOGRAPHIES

Judge John M. Cleland is Chairman of the Interbranch Commission on Juvenile Justice. He served as President Judge of
McKean County from 1984 until his appointment to the Superior Court in 2008. He currently serves as a Senior Judge on
that court.
Tod C. Allen ,vas a police officer from 1975-2000, spending 15 of the years with Penn State Erie as a Police Services Officer.
In 2000, Tad took over the Director of Court Advocacy position at the Crime Victim Center, a position he holds today.
Tod is a current Board member of the Coalition of Pennsylvania Crime Victim Organizations (COPCVO). He has both a
Bachelor of Arts and a Master of Science degree from Mercyhurst College. Tod has been married to his wife Barbara since
1974 and has three adult children, Emily, Molly and Tod as well as two grandchildren, Nora and Michael.
Valerie Bender, a victim advocate and balanced and restorative justice specialist, with over 21 years experience in direct
services, program development and group facilitation. Ms. Bender is a gubernatorial appointee to the Juvenile Justice and
Delinquency Prevention Committee as well as the Victim Services Advisory Committee. Ms. Bender chairs the
Pennsylvania Joint Policy Subcommittee and the Pennsylvania Female Services Subcommittee. Among other publications,
Ms. Bender co-authored the White Paper, Advancing Accountability: Moving Toward Victim Restoration; and the
curriculum, Victim/Community Alvareness: An Orientation for Juveniles and Best Practice Guidelines for Victim Inclusion in
Community Justice Panels. A graduate of LaRoche College, Ms. Bender is currently a consultant on victim and juvenile
justice issues.
District Judge James A. Gibbons is a 1982 graduate of the Seton Hall University School of Law. He served as a law clerk to
Judge Richard P Conaboy of the U.S. District Court for the Middle District of Pennsylvania from 1982-1984 and as an
Assistant United States Attorney for the Middle District of Pennsylvania from 1987-1993. He was elected rvIagisterial
District Judge in Lackawanna County in 2005. He was appointed to the Interbranch Commission on Juvenile Justice in
2009. Judge Gibbons resides in Newton Township, Lackawanna County with his wife Kelly and their five children. He is a
native of Avoca, Luzerne County.
Kenneth J. Horoho, Jr., Esquire, is a partner with the Pittsburgh law firm of Gentile, Horoho & Avalli, P.c. He was
president of the Pennsylvania Bar Association in 2006-2007 and has been a member of the PBA House of Delegates for the
past 20 years. He served six years on the Executive Counsel of the PBA's Family Law Section, served as Vice Chair of its
Childrens' Righls Committee and was PBA Governor to Allegheny County. Mr. Horoho is a graduate of Saint Francis
University and Duquesne University School of Law and is an adjunct professor at the University of Pittsburgh School of
Law. In 2006, he was named to the 25th Anniversary Edition of The Best Lawyers in America.
Jason A. Legg, Esquire is in his 81h year \'larking as a prosecutor for Susquehanna County. He has personally been
involved in approximately 3,000 adult criminal cases, and hundreds of juvenile cases. Mr. Legg has also successfully
litigated numerous proceedings to certify pedophiles as sexually violent predators under Megan's Law, a classification that
requires a lifetime of registration with the state. Finally, M1'. Legg handles the bulk of the appellate work and federal habeas
corpus proceedings for the District Attorney's Office. In connection with the creation of this local law enforcement task
force, M1'. Legg also created, with the cooperation and support of the County Commissioners, a DUI Task Force dedicated
to finding and arresting drunk drivers. By early 2007, Susquehanna County added 10 part-time county detectives to its
roster, and these officers will serve as members of the Susquehanna County Law Enforcement Task Force. Mr. Legg was
able to accomplish these goals without the use of county tax dollars by utilizing state grant monies, along with a major
contribution from the Susquehanna County Drug & Alcohol Commission, as well as monies paid by criminal defendants
far costs and fees.
Robert 1. Listenbee, Jr., Esquire, has been a trial lawyer at the Defender Association of Philadelphia since 1986, and Chief
ofthe Juvenile Unit since 1997. He serves on the Governor's Advisory Committee on Juvenile Justice, the DMC
Subcommittee and as the President of the Juvenile Defenders Association of Pennsylvania. He also serves on the Advisory
Board of the National Juvenile Defender Center and he is actively involved in the MacArthur foundation's Models for
Change Initiative in Pennsylvania. Mr. Listenbee received his B.A. from Harvard University and his J.D. from the Boall Hall
School of Law at the University of California, Berkeley.

63

George Mosee, Esquire, has been the Deputy District Attorney in charge of the Juvenile Division of the Philadelphia
District Attorney's Office since October 2002. Deputy Mosee joined the Office in 1988 and has served in various capacities
including Special Assistant United States Attorney, Asset Forfeiture Chief and Dangerous Drug Offender Unit Chief. From
1995 to 2002, Mosee was the Deputy District Attorney in charge of the Narcotics Division. Mr. Mosee serves on many
boards and committees including the Pennsylvania Juvenile Prosecutors Network as Chair and the Supreme Court of
Pennsylvania's Juvenile Court Procedural Rules Committee as Vice-Chair.
Judge John C. Uhler, elected Judge York County, Novemberl989; served as a Juvenile Court Judge for 20+ years, and
elected President Judge York County (November 1995- January 2001). He served as Chairman of the President Judges,
President of the Juvenile Court Section, was a member of the Judicial Ethics Committee for the State Conference of Trial
Judges, and was a consultant for the Juvenile Bench Book. He initiated the Commonwealth's first Juvenile Mental Health
Court, and leads York County's Truancy Response Initiative. Uhler was also a senior law clerk in the Federal Court,
Assistant U.S. Attorney, and the elected District Attorney of York County [rom 1978-1982.
Ronald P. Williams is an energetic and goal focused individual experienced in working in fast-paced environments,
demanding strong organizational, technical and interpersonal skills. Recognized for excellent problem solving skills and
responding to the needs of others. Recognized for working with emergency services during crisis situations and children
with special needs. Also recognized by Northern Tier Regional Planning and Development for work with Business and
Industry. Mr. Williams exhibits excellent problem solVing and analytical skills. Learns and applies new skills quickly and
takes advantage of tools and resources that are available. Demonstrates team leadership, promotes positive management
style and has keen understanding the government exists for all the people. In May 2007, completed 15-00275, Rule of the
emergency Operations Center in Community Preparedness, Response and Recovery. In October of the same year,
completed DHS/PDA MGT-332 Agriculture and Food Vulnerability issued by FElvIA and the University of Tennessee.
Judge Dwayne Woodruff obtained his Juris Doctor from Duquesne University, subsequently becoming a founding
member of the law firm Woodruft~ Flaherty & Fardo, LLC out of Shadyside. Woodruff was elected in 2005 to be a Judge in
the Court of Common Pleas in Allegheny County, Pennsylvania. Judge Woodruff is a former profeSSional American
football player who played cornerback for twelve seasons for the Pittsburgh Steelers. As a rookie, he won a Super Bowl ring
with the Steelers in Super Bowl XlV.
COMMISSION COUNSEL

Darren M. Breslin, Esquire has served in various capacities at the Administrative Office of Pennsylvania Courts since
1995. From 1999 until 2003, he served as a staff attorney in the litigation department. In 2001, he served as staff counsel to
the Intergovernmental Task Force to Study the District Justice System. Currently he serves as the AOPC Special Projects
Advisor and as counsel to the Pennsylvania Commission on Judicial Independence. Darren has been a lecturer in the areas
of judicial independence, public health lar\' and emergency preparedness. Since August 2009, Darren has served as counsel
to the Interbranch Commission on Juvenile Justice.

64

VII.

GLOSSARY

Act 32 of 2009 - Interbranch Commission on Juvenile Justice Act of 2009.2009, Aug. 7, P.L. 143, No. 32. Codified at 71
P.S. §§ 1190.35a - e.
Administrative Office of Pennsylvania Courts (AOPC) - The office of the Court Administrator of Pennsylvania who,
under the direction of the Supreme Court of Pennsylvania, is responsible for "the prompt and proper disposition of the
business of all courts." Pa.Const. Art. V, § lOeb), 42 Pa.C.S. §§ 1901-1906, Pennsylvania Rules ofJudicial Administration
(Pa. R.J.A.) 501-509.
Code of Judicial Conduct (CJC) - Ethical rules, or "Canons," adopted by the Supreme Court of Pennsylvania establishing
the "high standards of conduct so that the integrity and independence of the judiciary may be preserved." 207 Pa. Code §
33.
Crime Victims Act - Statutory provisions intended to ensure that victims of crimes are treated with dignity, respect,
courtesy and sensitivity. 18 P.S. §§ 11.1 01 - 11.5102.
Disciplinary Board - Board appointed by the Supreme Court of Pennsylvania responsible for investigating and
prosecuting alleged misconduct by attorneys and for malGng recommendations to the court regarding disciplinary matters.
Disciplinary Board Rules § 93.21 - 93.23.
Juvenile Act - Statutory provisions governing juvenile matters. 42 Pa.C.S. §§ 6301 - 6375.
Juvenile Court Judges' Commission (JCJC) - Commission consisting of nine Pennsylvania judges serving in the juvenile
courts charged with, among other things, advising juvenile court judges, examining administrative methods and judicial
procedures used in juvenile courts, and collecting and publishing statistical reports and other data "as may be needed to
accomplish reasonable and efficient administration of the juvenile courts system." 42 Pa.C.S. §§ 6371 - 6375.
Juvenile Defenders Association of Pennsylvania (JDAP) - Organization of attorneys who provide information and
training on juvenile defense, supported by the Pennsylvania Commission on Crime and Delinquency. For more
information on JDAP, see http://www.pajuvdefenders.org/.
Juvenile Detention Alternatives Initiative (fDAI) - DeSigned to support the Casey Foundation's vision that all youth
involved in the juvenile justice system have opportunities to develop into healthy, productive adults. For more information
on JDAI, see http://wvvw. aecf.orglIvlajorInitiatives/JuvenileDetentionAlternativeslnitiative.aspx.
Juvenile Law Center OLC) - A Philadelphia based public interest law firm. JiC promotes juvenile justice and child welfare
reform in Pennsylvania and nationwide through policy initiatives and public education forums. For more information on
JiC, see www.jlc.org.
King's Bench / Power of Extraordinary Jurisdiction - for the statutory basis of the "extraordinary jurisdiction" of the
Supreme Court of Pennsylvania see 42 Pa.C.S. § 726. For an explanation of the court's "Icing's bench powers," see In re
Avellino, 547 Pa. 385,690 A.2d 1138 (1997).
Office of Disciplinary Counsel - Office that investigates and prosecutes matters of attorney misconduct under the
Pennsylvania Disciplinary Board. DiSCiplinary Board Rules §§ 93.61 - 93.63.
Office of the Victim Advocate - Office established with the Pennsylvania Board of Probation and Parole to represent the
interests of crime victims before the board or the Department of Corrections. 18 P.S. § 11.30 I.
Pennsylvania Commission on Crime and Delinquency (PCCD) - 71 PS. §§ 1190.21 - 1190.33. Commission seeks to
enhance the quality of criminal and juvenile justice systems, facilitate the delivery of services to victims of crime and assist
communities to develop and implement strategies to reduce crime and victimization. For more information on PCCD, see
http://www.portal.state.pa.us/portal!server.pt/community/pccdJlOme/5226.
65

Pennsylvania District Attorneys Association (PDAA) - Organization formed in 1912 for the purpose of providing uniformity
and efficiency in the discharge of duties and functions of Pennsylvania's 67 district attorneys and their assistants. For more
information on PDAA, see http://wvvw.pdaa.org/.
Pennsylvania Judicial Conduct Board (JCB) - An independent board within the jUdicial branch responsible for receiving,
investigating, and, where warranted, prosecuting complaints alleging judicial misconduct. Established pursuant to Pa. Const.
Art. V, § 18. See also 42 Pa.C.S. §§ 2101-2106.
Pennsylvania Rules of Juvenile Court Procedure (Pa.R.J.c.p.) - Rules of court governing delinquency and dependency
proceedings.
Rules of Professional Conduct - Ethical rules adopted by the Supreme Court of Pennsylvania governing attorney conduct.
Victims of]uvenile Offender Program (VOJO) - Program providing for rights and services to victims in the juvenile justice
system, through the VOJO state general appropriation.
Reports and other submissions made to the Interbranch Commission on Juvenile Justice may be accessed through the
commission's Web site at http://v.'WW.aopc.org/Links/Public/lnterbranchCommissionJuvenileJustice.htm.
State constitutional provisions and statutes (such as 'The Juvenile Act, 42 Pa.C.S. § 6301) identified in this report may be
accessed through the Pennsylvania General Assembly's Web site at http://www.legis.state.pa.us/.
State court rules identified in this report may be accessed through the Pennsylvania Code online at
http://www.pacade.com/secure/brows e. asp.
Many state court cases identified in this report may be found through the Unified Judicial System \Veb site at
http://www.pacourts.us/Opinions/Default.htm.
United States Supreme Court opinions cited in this report may be found at http://www.law.comeIl.edu/supct/.

66

 

 

Disciplinary Self-Help Litigation Manual Side
Advertise Here 4th Ad
Prison Profiteers - Side