Judges plead guilty to extreme corruption and child abuse in Pennsylvania: a really horrible NYT story. With actual legal analysis at the end for once!

I’ve been scolding private prisons in print for at least three years, and I’ve been involved in Larry Lessig’s anticorruption crusade since it started, so you can imagine that I’m more than a little horrified but also slightly vindicated to see the following story of just utter twisted evil:

At worst, Hillary Transue thought she might get a stern lecture when she appeared before a judge for building a spoof MySpace page mocking the assistant principal at her high school in Wilkes-Barre, Pa. She was a stellar student who had never been in trouble, and the page stated clearly at the bottom that it was just a joke.

Instead, the judge sentenced her to three months at a juvenile detention center on a charge of harassment.

She was handcuffed and taken away as her stunned parents stood by.

“I felt like I had been thrown into some surreal sort of nightmare,” said Hillary, 17, who was sentenced in 2007. “All I wanted to know was how this could be fair and why the judge would do such a thing.”

The answers became a bit clearer on Thursday as the judge, Mark A. Ciavarella Jr., and a colleague, Michael T. Conahan, appeared in federal court in Scranton, Pa., to plead guilty to wire fraud and income tax fraud for taking more than $2.6 million in kickbacks to send teenagers to two privately run youth detention centers run by PA Child Care and a sister company, Western PA Child Care.

While prosecutors say that Judge Conahan, 56, secured contracts for the two centers to house juvenile offenders, Judge Ciavarella, 58, was the one who carried out the sentencing to keep the centers filled.

This is the most twisted example of institutional child abuse I’ve ever seen. What’s worse is that these judges, per the plea agreement, are only doing 87 months each. A lousy seven years in prison is not nearly enough for this kind of scum. According to the story, the arrangement has been going on since 2002. Think of how many children had their lives ruined because of these utter shitheads. Hundreds. They shut down the county juvie center so as to be able to funnel more victims to the people who were bribing them. And they only got an embarrassing 2.6 million for the whole scheme.

Here’s a pair of questions for the legal section of my readership:
1) Can those sentences be overturned now for those kids who are still in detention? (Perhaps via a habeas petition?) It’s a little odd — presumably, those sentences (or most of them) were within the range of legally permissible, just really extreme uses of the judge’s discretion. But if they represent patent injustices like the story told at the beginning of the article, perhaps there might be a lever devised? If nothing else, the governor of Pennsylvania ought to pardon all the poor kids en masse. This is exactly the sort of situation the pardon power was meant for.

2) How about private litigation? Usually, judges are basically completely immune from tort claims resulting from discretionary acts on the bench, but when a judge is actually convicted of taking bribes for exercising that discretion? Some sort of false imprisonment tort might be in the offing, as well as perhaps §1983 claims based on the idea that it’s a fairly obvious violation of procedural due process to take bribes to imprison people rather than giving them a fair hearing? There must be caselaw on this: surely someone has tried to sue a judge for taking a bribe for his sentencing.

(One problem might be causation: picking out which sentences were a result of the bribe and which were sentences where the judge actually concluded in the normal fashion that the kid ought to be sentenced accordingly. This might be a problem for the pardons too. One possibility is that a condition of the plea agreement be that the judges reveal who they gave extra sentences to because of this bribe — something that could only work [that is, keep the judges from lying] if they were immune from civil litigation, but that would facilitate freeing the unjustly sentenced as quickly as possible. Worth considering?)

Also, were I a lawyer in Pennsylvania, I’d be breaking out the §1983 claims for some of the individual convictions too. It’s hard to see how the conviction noted in the article, for example, is even plausibly constitutionally permissible (Tinker anyone?). I mean, myspace pages count as first amendment speech too, though I suppose we can imagine a particularly egregious page that would be criminally punishable. Again, this is the sort of claim that disgruntled convicts try all the time and get dismissed as frivolous based on judicial immunity. But, again, most disgruntled convicts don’t bring them after their judge was convicted of taking bribes to put them in the slammer.

2.a) Also, what about litigation against the private prison companies? It’s hard to think of what kind of cause of action an individual victim might have against a rather indirect tortfeasor like those companies, but there ought to be something. They doubtless have rather deeper pockets than the judge. Perhaps an actual false imprisonment claim for holding them, while knowing that their purported legal justification for holding them (a court order) is something like totally invalid? The claim seems dubious, yet eminently worth bringing. It’s the sort of thing I’d bring in a heartbeat if I were still practicing law.

Perhaps a civil RICO claim against all of these people based on the wire fraud conviction? 18 U.S.C. § 1964(c) establishes a cause of action for “[a]ny person injured in his business or property” by a criminal enterprise under RICO, which this little conspiracy unquestionably is… I wonder if there is any caselaw on how strictly this “business or property” requirement is interpreted.

(Yes, when I was practicing law, I was very aggressive at finding claims to smite people who pissed me off by victimizing my clients. I’m pretty sure I’ve filed complaints where the section listing the various causes of action was substantially longer than the section listing the facts. And I’m absolutely certain that I’ve filed complaints for obscure state-law statutory causes of action where there was zero caselaw for the simple reason that probably nobody had ever tried bringing such a claim before.)


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