Gideon Alert: "Kids for Cash" Commission Report concludes Pennsylvania in the business of dispensing "Justice by Geography"

BY David Carroll on Friday, May 28, 2010 at 12:04 PM

On May 27, 2010, the Pennsylvania Interbranch Commission on Juvenile Justice delivered a scathing indictment of the Luzerne County “kids for cash” scandal, in which judges allegedly made millions of dollars in kick-backs for placing juvenile offenders into private detention centers.  Calling the system a total “collapse of the rule of law,” the Commission rightly found fault with a number of justice stakeholders who allowed the criminal conduct of judges to fester for years:  “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.” Public defenders “whether due to indifference, inexperience, incompetence or intimidation,” the report determines, “clearly abdicated their responsibilities to zealously defend their clients and to protect their due process rights.”

Pennsylvania is one of only two states that provide no state funding for the right to counsel (Utah is the other).  In Luzerne County, indigent defense was provided by a part-time Chief Public Defender (working from 9 a.m. to noon on public cases and spending the rest of the day on private cases) and 22 assistant public defenders, 16 of whom also worked the same part-time schedule as the Chief.  One assistant public defender was dedicated to handle all juvenile delinquency proceedings, or, as the Chief Public Defender testified, “[n]ot even one [attorney], but a portion of one.”  The assistant public defender put in, on average, four hours a week on juvenile delinquency cases.  Most years saw the office represent 200 juveniles on delinquency proceedings, which approximately equates to just one hour per case per child.

As bad as this is, a disproportionate number of kids went unrepresented altogether.  The judges in Luzerne County’s juvenile court never held open colloquies in court to determine whether uncounselled waivers of the right to have a lawyer (forms signed by juveniles before court began through the probation department) were made intelligently and knowingly.  Not surprisingly, as the statewide juvenile waiver rate dropped to 4.8% in 2004, the rate in Luzerne County climbed to 50.2% - or, more than ten times higher than the statewide rate.  In that year, 20% of all juvenile placements in the state of Pennsylvania came from Luzerne County.

The report recounts the testimony of the Chief Public Defender which “painted a picture of an office so heavily booked that even when he received a complaint about [juvenile] court room practices, involving possible procedural rights violations of juvenile defendants, he declined to address it.”  In 2007, a new public defense attorney raised the issue of “a lot of kids not being represented.”  The Chief Public Defender responded “. . ., we’re not going to seek clients.  I’m not going to put up a sign and say, please come here, we’ll represent you.”  The Chief Public Defender’s philosophy was one based on not having the “luxury” of time and money: “we have to do what we what we have to do the best we can.” 

After the scandal broke, more money started trickling the public defenders' way, including funding to allow the Chief to attend training at the National Juvenile Summit. He told the Commission that it “was the first training I ever had in 36 years on juvenile law.  And my eyes were like saucers.”  But the additional funding is far from enough.  Because of new rules adopted, the number of juveniles represented by the public defender’s office has now increased.  Testimony revealed that the amount of effort by the defender office to represent the young has currently quadrupled -- from four hours a week to two full days a week.  Of course, the caseload more than quadrupled so that the office now represents approximately 1,000 juvenile clients per year.  So, in the midst of one of the most shocking juvenile justice scandals in recent memory, Luzerne County managed to “fix” the problem by having defenders now work at 1,250% of national workload standards.  The National Advisory Commission workload standards state that no attorney should handle more than 200 juvenile cases per year, if they are handling nothing else; a mark the American Bar Association's Ten Principles of a Public Defense Delivery System state “should never be exceeded.”  Children facing delinquency proceedings in Luzerne County now receive approximately 1.5 hours worth of attorney time.

Children who come in contact with delinquency courts too often have been neglected by the full range of support structures that normally channel children in appropriate constructive directions.  When they are brought to court and given a public defender who has no resources and a caseload that dictates that he dispose of cases as quickly as possible, the message of neglect and worthlessness continues, and the risk that the juvenile will commit more — and worse — crimes increases.  Juvenile systems, like the one in Luzerne County, can have the perverse effect of actually decreasing public safety and increasing the chance that more young people will fall into a lifetime of crime and imprisonment. 

The Interbranch Commission also did not absolve the district attorneys from blame in the scandal.  All prosecutors “have a unique ethical obligation among lawyers….  one that extends to all citizens and to society as a whole,” the Commission report states, before pointing out that the Code of Professional Responsibility -- the ethical rules governing lawyer conduct in Pennsylvania – requires prosecutors to “see that the defendant is accorded procedural justice” and to make “reasonable efforts to assure that the accused has been advised of the right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel.”

When questioned by the Commission, the District Attorney stated that it was always his “belief that there was an assistant public defender assigned to juvenile delinquency court and present at all proceedings,” and that he “assumed” public defenders would have been representing the vast majority of these juveniles.  The Commission did not buy that excuse, noting that bad assumptions plagued the district attorney’s office.  The District Attorney “kept no records of the kinds of dispositions that occurred in juvenile court.  There was no filing system to enable a prosecutor to review a case in the future and look back at how well or poorly a juvenile had advanced from the point of disposition.”

The report contains sweeping recommendations to fix juvenile justice issues – not only in Luzerne County, but across the state.  Troubled by the fact that few public defenders representing juveniles in delinquency proceedings in Pennsylvania have “adequate computers” (many public defenders operate with hand-me-down computers from prosecutors who have upgraded their technology) and that nearly 30 percent of juvenile defenders lack access to the Internet, the Commission called on the state legislature to stop “justice by geography” and create a state funding stream for indigent juvenile representation and back a proposal to fund a Center for Juvenile Defense Excellence.  The Commission also calls on the state to consider “all juveniles to be indigent for the purposes of appointment of counsel,” so the legal protections afforded juveniles are not lessened by the limited financial resources of their parents or by parents unwilling to expend their resources.  Finally, the Commission also calls for the development of binding quality performance standards for effective juvenile delinquency representation.