You probably know already about this situation, the coverage began sometime back. Two Judges of the Pennsylvania Court of Common Pleas (Mark Ciavarella and Michael Conahan) plead guilty to accusations that they sentenced children (many who appeared without an attorney) to time in detention in exchange for money from private corporations. This story culminated recently, with the two judges pleading guilty to the crimes that they were accused of.
Sample story here.
The plea agreement reached with prosecutors would require up to seven years of prison time for the offending judges. Ciavarella admitted that he had disgraced his judgeship.
The story has outraged many. But how did we get here? How did these judges go from law upholders to law breakers? What is the anatomy of the transmogrification? How did they justify each little infraction, each shift away from lawfulness toward lawlessness? If we can understand this, maybe we can get better at identifying wayward judges who are on their way to harming the public.
And although this story is appalling, the more chilling question is, how many judges are already on a path toward lawlessness?
How many judges are willing to make case decisions to fulfill their own desires, rather than in furtherance of the law? This particular case was heinous because these judges ‘sold’ their authority for money. But this is a serious question for the entire system. A judge need not receive money in order to disgrace his or her judgeship.
Deciding a certain way in a case because it is a favor for a friend, or because your political party wants you to do it, or because you hate the lawyer for one of the parties, all of that disgraces the justice system. It makes a mockery of a system that touts itself as applying the law to the facts of each case.
Which leads me to my next question. How could Judges Ciavarella and Conahan do this for three years (2003-2006) without anyone around them inside the system crying foul? That question is just as poignant.
My April 5, 2012 post about the Tennesse Judge In Trouble includes a quote from the Judge who decided to throw out some of the troubled judge’s prior decisions. It’s reported that Judge Blackwood said,
“Some saw it, but they ignored it,” “Some saw it, but they were powerless to act or deal with it, and some saw it and they either denied it or denied it to themselves.”
How do we get to the place where those who see it do not ignore it? How do we increase the power of those who see it, and are willing to speak out about it, but who have traditionally been trampled when they report?
And how do we break through the denial of judges, those who see the problem, but either deny that it exists (PR over protecting the public), or who deny it to themselves?
It’s a big problem, but we need to start somewhere.
Number 1, we need a safe place for people (court clerks, clients, lawyers, other judges) to report, where they will not be retaliated against. The problem with retaliation is not just the harm is does the reporter. The bigger problem is that for each person who reports judicial misconduct or disability and is retaliated against, hundreds or even thousands might become fearful of ever reporting.
Number 2, we need to study the impact of wayward judges on cases. The Tennesee Judge story featured in my April 5 post suggests the financial cost to the justice system was $10’s of Millions of dollars to have to re-litigate those cases where the Tennessee Judge was not competent. This is likely the tip of the iceberg. When these judges are finally brought to light, we need to study the many ways their misconduct cost the system.
Studying financial loss is a start. The justice system in many jurisdictions bemoans the lack of financial resources to run the courts. I think the courts should have more money, but given the way things are, surely many agree we need to figure out how to more smartly use the money we have.
The courts in many jurisdictions are moving cases through the system faster and faster. A litigant who says, ‘hey wait, I think the judge did something wrong here, you need to re-open this and take another look,’ are often described as misusing court resources.
But if a party has evidence that a judge mishandled the case, why is the party faulted for that? Just like the Tennessee Judge story, when we learn of improper judicial conduct on a case, to restore integrity to itself, the system needs to re-open the case and take another look. Parties who question judicial conduct on a case need to not be made to feel they are the ‘bad guy.’ We need to make it safe for parties, within the justice system (within the case) to question judicial misconduct.
And when it emerges that a judge did wrong, don’t blame the party who asked the questions. Blame the judge who caused the case to have to be re-opened.
But what about the other, less tangible costs? What about the stress on the judge’s staff, caused by experiencing his bad judicial conduct, combined with the powerlessness they feel to be able to do anything about it. What about the lost work, rising cost of medical insurance and other costs attributed to the stress.
It may cost 10’s of Millions to re-litigate the cases in the Tennessee court, but what about the added cost to taxpayers of jail and prison time?
Or what about the fact that while that judge’s cases are being re-litigated, other cases are not able to be? (And the cost of that jail time, etc.)
And let’s not forget the human costs for botched criminal cases, and the financial cost to parties in civil cases, where the judge is incompetent or otherwise exhibiting misbehavior?
These are just ideas, literally off the top of my head. My guess is that a committee-room full of justice system insiders could come up with a lengthy list of how judicial misconduct drains money from the system.
Maybe if the system starts to realize the great financial cost of looking the other way, it will start to see judicial misconduct earlier. We really can’t afford to ignore it.
Number 3, there need to be consequences for judges who do wrong. Unless there are real consequences, they will continue to do it. (More on this in later posts.)
Now that the Pennsylvania judges have plead guilty, we know for a fact that the Pennsylvian children were crunched by the system. Nothing will ever give them back the time they lost. But we can learn from their plight.