Life Sentence Possible For Disgraced Kids-For-Cash Judge

Sentence of life for Ciavarella possible
The Times Leader by Terrie Morgan  -  August 9, 2011

Probation department finds life in prison within guidelines for offense level, transcript says.

Former Luzerne County Judge Mark Ciavarella faces a possible life sentence based on sentencing guideline calculations that were prepared by the federal probation department, according to a transcript of a pre-sentence hearing.  Speaking after Ciavarella’s conviction in February, federal prosecutors estimated Ciavarella faced 151 to 188 months in prison based on sentencing guidelines. A pre-sentence investigation prepared by probation department officials differs significantly from what prosecutors originally estimated, however.  Ciavarella, 61, is scheduled to be sentenced on Thursday for his conviction on 12 of the 39 counts filed against him relating to his acceptance of nearly $1 million from Robert Mericle, the builder of two juvenile detention centers utilized by the county.  Federal sentencing guidelines are based on a defendant’s offense level, a numeric figure that is calculated based on various factors, including the seriousness of the crime and whether a defendant has a prior criminal record.

In Ciavarella’s case, prosecutors initially estimated that his offense level was 34, which corresponds to the 151- to 188-month prison sentence. But Assistant U.S. Attorney William Houser said probation department officials determined the offense level was 44, which translates to a guideline range of life in prison, according to a transcript of a July 20 pre-sentence hearing before U.S. District Judge Edwin Kosik.  Anthony Harvilla, chief of the federal probation department, said he could not comment on what factors were involved in Ciavarella’s guideline calculation because such information is confidential.  Speaking generally, Harvilla said estimates prepared by prosecutors and defense attorneys often differ from the final figure calculated by the probation department. Attorneys will provide the department a “guesstimate” of what they believe the guideline range should be, he said, but they sometimes miss some of factors that serve to increase a defendant’s sentence, known as “enhancements.”  “Once sentencing enhancements are applied, that adds to the offense level,” he said. Federal judges utilize the guideline range to help determine an appropriate sentence. The guidelines are advisory, however. A judge is free to issue a shorter or longer sentence. depart above or below them.  Ciavarella’s attorneys, William Ruzzo and Al Flora, have challenged the probation department’s guideline calculation, including its decision to classify roughly 5,000 juveniles who appeared before Ciavarella between 2003 and 2008 as “victims” of his crimes.

Prosecutors originally alleged Ciavarella incarcerated juveniles as part of a scheme to boost profits at the PA Child Care and Western PA Child Care juvenile detention facilities, then extorted money from the co-owner, Robert Powell. Ciavarella was acquitted of all charges relating to the alleged extortion of Powell. None of the juveniles who appeared before Ciavarella in the specified time frame was called to testify at his trial.  At the pre-sentence hearing, Flora objected to the number of victims, noting that the vast majority of youths in question were taken to PA and Western PA Child Care by police, and not placed there by Ciavarella. “The problem is, we use this number of 5,000 kids. That’s not even close to being accurate,” Flora said, according to the transcript of the hearing.  Prosecutors contend the juveniles can be considered “victims” because Ciavarella failed to disclose he had a conflict of interest in presiding over their cases based on his acceptance of money from Mericle.  Kosik is expected to rule on their objections at Thursday’s sentencing hearing.  Contacted Monday, Ruzzo declined to speculate on how Kosik might rule. Peter Vaira, a former federal prosecutor who specializes in federal law, said he doubts Kosik, even if he agrees with the probation department’s calculation, will sentence Ciavarella to life.  “That’s not a real, realistic possibility,” Vaira said. “Judges are very reluctant to give a life sentence.”  Still, Ciavarella is likely facing significant prison time, Vaira said. Given his age, any sentence Kosik imposes could essentially amount to a life term, he said.  Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179   -  Beseckertmorgan@timesleader.com


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