Zero Tolerance for Childhood

A reminder as the school year opens: The juvenile justice system eats kids for breakfast.

Courthouse Kickbacks
Spare the rod, spoil the adult: Former Luzerne County Judge Mark Ciavarella Jr. arrives at U.S. District Court in Scranton, Pennsylvania. He was sentenced on Aug. 11, 2011, to 28 years in federal prison for taking bribes from the builder of a pair of juvenile detention centers.

Mark Moran / AP

Kids can sometimes see their lives destroyed by the merest brush with the criminal justice system. In one of the most outrageous examples, between 2003 and 2008, two Pennsylvania judges—Mark Ciavarella Jr. and Michael Conahan—sentenced thousands of children to juvenile detention centers, sometimes on trivial charges. These juveniles were sent to private, for-profit detention centers, whose operators paid the judges for filling their beds. Last month one of the final class-action settlements in the massive scandal, which came to be known as “kids for cash,” was approved by U.S. District Judge A. Richard Caputo for $4.75 million.

Ciavarella and Conahan pleaded guilty in February 2009 to taking $2.6 million in kickbacks for sending the juveniles to for-profit prisons. They are both serving lengthy sentences now. Thousands of juvenile sentences were vacated after the scandal broke. One of the prison owners, Robert Powell, was recently sentenced to 18 months in prison for his part in the scheme. Developer Robert Mericle pleaded guilty and was sentenced to a year in prison. There are still two outstanding class-action suits that have been filed against the two judges. Slowly, the justice system is attempting to correct for the wrongs, and the class actions have gone at least part of the way to helping victims feel vindicated. Book closed.

But as the school year opens, and our eyes turn again to young people and the justice system, it’s worth revisiting the failings of the systems we have created. “Kids for cash” is emblematic of a larger problem: the tendency to criminalize so much of what young people do, the tendency to hit them with draconian punishments that are out of proportion to the crime itself, and the ways the system itself profits financially from those impulses. To be sure, juvenile judges around the country aren’t generally taking suitcases full of cash in exchange for locking up young people on flimsy pretexts. But we sure aren’t punishing young people fairly and proportionately, either. “Kids for cash” is an outlier, yes. But we have not quite internalized its larger lessons.

Start with the astonishing case that made headlines just last week: the North Carolina 17-year-old who may go to jail for 10 years for sexting—texting naked photos of himself to his girlfriend. The two, both 16 at the time, shared photos seen by nobody but each other. It’s unclear why the police searched their phones in the first place. Both were charged with sexual exploitation. The girlfriend has already pleaded guilty to a lesser charge and is on probation for a year. In addition to his possible 10-year sentence, the boy could be placed on the state sex offenders registry for 10 years. He has already been kicked off his high school football team. All this for purveying pornographic pictures. Of himself. To his girlfriend. Or as some wag observed on my Facebook page last week: If the teen had been caught masturbating, could he have been charged with felony child molestation?

The case is nutty not least of all because, as Robby Soave pointed out last week, in North Carolina—where the age of consent is 16—the teen will be charged as an adult for exploiting a minor. Himself.

Another story from my grab bag of juvenile absurdity: the 11-year-old Virginia boy who was suspended from school for a year last fall and charged in juvenile court with drug possession for bringing a single marijuana leaf to school. Which wasn’t marijuana. (The leaf tested negative three times.) The child had to leave school, his parents sued the school district, and another “zero-tolerance” policy became a national joke, with non-joking consequences for the child at the center of the story.

And as much as these maddening cases look like one-offs, at least part of the dysfunction is the result of the serious problem of for-profit prisons, and especially for-profit juvenile prisons, which have been proved—time and again—to be at odds with the basic purposes of the juvenile justice system.

In a devastating and detailed report for the Huffington Post in 2013, Chris Kirkham detailed systemic problems with the for-profit juvenile facilities that are not all that different from the allegations in the “kids for cash” scandal. Kirkham reports of mega-prison-corporations running facilities rife with beatings, sexual assaults, recidivism, fights, neglect, and malnourishment. Such reports do not result in prisons closing or government contracts being rescinded. Instead, there is simply pressure to jail more youngsters, and fill more beds. New allegations of more abuse are under investigation in Florida.

It’s easy to say it’s a stretch to connect teen sexting or trivial drug possession to the explosion of juvenile jails, but, of course, that’s why the “kids for cash” scandal went undetected for so long. It’s far too simple to go after teenagers for sex and drug “crimes” with the justification that they are somehow both innocent children and also monstrous adults.

As the school year opens, it’s probably a good idea to remind your youngsters what “zero tolerance” really means: that “it was only a naked photo/fake pot leaf” is not a defense, no matter how clearly the facts are on your side, and that kids are adorable innocents only until the law decides they are vicious predators. There’s a for-profit prison machine out there, and sadly, it eats zero tolerance for breakfast. Happy school year.