Lock 'em Up: Jailing Kids is a Proud American Tradition

At first glance, the news from Luzerne County, in northeastern
Pennsylvania, is not good. In what is known locally as the "kids for
cash" scandal, two judges have pleaded guilty to accepting $2.6 million
in kickbacks from a for-profit juvenile correctional facility -- a
privately owned jail for kids, essentially.

And here is what the judges delivered, according to the charges of
the U.S. Attorney overseeing the case: In 2003 one of them, Judge
Michael Conahan, who had authority over such expenses, defunded the
county-owned detention center, channeling kids sentenced to detention
to the private jail -- along with the public's money.

For good measure, the feds charge, Mr. Conahan also agreed to send
the private facility $1.3 million per year in public funds. Over the
succeeding years, the private jail, along with a second
lockup-for-profit that had opened in another part of the state, won
tens of millions of dollars in Luzerne County contracts, allegedly with
the two judges' help.

What has drawn the media's attention, though, is the remarkable
strictness of the judges' judging. Mr. Conahan's alleged partner in the
scheme, Judge Mark Ciavarella Jr., reportedly sent kids to the private
detention centers when probation officers didn't think it was a good
idea; he sent kids there when their crimes were nonviolent; he sent
kids there when their crimes were insignificant. It was as though he
was determined to keep those private prisons filled with children at
all times. According to news stories, offenses as small as swiping a
jar of nutmeg or throwing a piece of steak at an adult were enough to
merit a trip to the hoosegow.

Over the years Mr. Ciavarella racked up a truly awesome score: He
sent kids to detention instead of other options at twice the state
average, according to the New York Times. He tried a prodigious number
of cases in which the accused child had no lawyer -- here, says the
Times, the judge's numbers were fully 10 times the state average. And
he did it fast, sometimes rendering a verdict "in the neighborhood of a
minute-and-a-half to three minutes," according to the judge tasked with
reconsidering Mr. Ciavarella's work.

My question is, what have the Luzerne County judges done that
deviates in the least from our American political traditions? These
jurists have merely taken to heart the unvarying message of 40 years'
worth of election results -- that more people, many more, need to go to
jail -- and have come up with an entrepreneurial solution to the
problem.

We the people say it loud and clear every Election Day, in
high-crime periods as well as peaceful stretches: More of our
population needs to be behind bars. We love retribution so much we make
hits of TV shows in which society's ne'er-do-wells come in for lectures
not only by stern, righteous judges, but by tattooed, mulletted bounty
hunters as well.

And over the years we have embraced all sorts of instruments
ensuring that more people got locked up for longer and longer
stretches: Three strikes laws, mandatory sentencing laws,
zero-tolerance policies. Maybe they aren't "fair," but they've helped
to make the U.S. number one in percentage of population in the clink --
in fact, as Virginia Democratic Sen. Jim Webb pointed out in Parade
magazine on Sunday, America has an amazing 25% of the world's prisoners.

Taking this path has not always been easy. In the 1990s, when we
started to realize that child crooks were "superpredators" who needed
to go to prison along with everyone else, some were unwilling to act.
Others stepped up. "We've got to quit coddling these violent kids like
nothing is going on," said Sen. Orrin Hatch (R., Utah) in 1996.
"Getting some of these do-gooder liberals to do what is right is real
tough. We'd all like to rehabilitate these kids, but by gosh we are in
a different age."

But taking law and order to the next level in this different age
required money, by gosh. Privatizing bits of the prison industry was a
step in the right direction, but what we didn't have -- until recently
-- were proper instruments for incentivizing the judiciary. That's what
the "kids for cash" judges were apparently experimenting with.

Today the do-gooders revile those efforts as "kickbacks," but before
long we will see them as legitimate tools of justice. Our laws
governing lobbying and campaign contributions have struck the right
balance between the wishes of the people and those of private industry,
so why are we so quick to doubt that the same great results can be
achieved by putting the government's justice-dealing branch on the same
market-based course?

The public will get to see their neighbors' kids go to jail, the
judge who sends them there will be able to afford a nice condo in
Florida, and the company that satisfies the public's desire for
punishment will make a handsome profit. It will be a win-win result for
everyone.