Judges, Not Youth, Needed a Lesson in Due Process

The NY Times this morning features the horrific page-one story of two Pennsylvania judges who have pled guilty to accepting money from the operators of private juvenile detention facilities, in exchange for sentencing more teenagers to detention. To be clear, these judges were locking up juveniles for minor offenses because the more kids they locked up, the more money they made:

…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….

With Judge Conahan serving as president judge in control of the budget and Judge Ciavarella overseeing the juvenile courts, they set the kickback scheme in motion in December 2002, the authorities said.

They shut down the county-run juvenile detention center, arguing that it was in poor condition, the authorities said, and maintained that the county had no choice but to send detained juveniles to the newly built private detention centers.

Though this failure of judicial impartiality is certainly more outrageous than the one at issue in Caperton v. A.T. Massey Coal – it involves payments directly to the judge, as well as and the lives and freedom of children – this case illustrates what the drafters of the Fourteenth Amendment had in mind when they sought to incorporate the principles of due process and equal protection against state infringement and gave Congress authority to enforce these mandates.

As we explain in our Caperton brief (and here), the history of the Due Process Clause reveals that its drafters were particularly concerned with ensuring unbiased decision-making in judicial processes. They were acting against a backdrop of widespread maladministration of justice in the South, where neither freed slaves nor white Unionists were guaranteed due process in the courts. Moreover, the drafters were keenly aware of similar injustices in the North, in particular, those wrought by the Fugitive Slave Act of 1850. Under this Act, a commissioner who decided the person before him was a fugitive slave received $10 for returning the purported slave, but only $5 for declaring him free. The more slaves the judge returned, the more money the judge made. Just so with Judges Ciavarella and Conahan: the more kids they locked up, the more kickbacks they received.

Most will celebrate and few will quarrel with the fact that Judges Ciavarella and Conahan are being prosecuted under federal law. Throw the book at ‘em, all will surely agree. But we note the tension between this prosecution and the federalism argument made in briefs supporting Massey Coal in Caperton , which paint all federal intrusions in state judicial systems as constitutionally suspect. As we explain in more detail here, the simple fact is that that the Fourteenth Amendment provided a federal constitutional backstop to the administration of justice in the states. It is that backstop that the Supreme Court should enforce under the extraordinary facts of the Caperton case.