Why judges are locking up kids who haven't even committed crimes
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In Michigan, judges have sent children to locked detention centers for refusing to take medication or failing to attend online class. For testing positive for using marijuana. For repeatedly disobeying their parents.
Even as other states move toward reforms focused on keeping nonviolent juvenile offenders in the community, Michigan continues to lock up children for minor transgressions that aren't actually crimes: technical violations of probation or status offenses like truancy or staying out after curfew.
A dramatic example of this occurred last summer, when the case of Grace* provoked national outrage. A 15-year-old from suburban Detroit, Grace was sent to detention for violating her probation on earlier charges of theft and assault by failing to do her online schoolwork. Her situation was unusual. She was incarcerated for breaking a single rule of her probation during a pandemic, even as her school district said it wouldn't penalize students and the governor had ordered that residential placement be restricted to children who posed a safety risk. Less than three weeks after ProPublica published the first story about her case, the Michigan Court of Appeals ordered her immediate release.
But while Grace's case may have been extreme, it reflects a practice that is common and emblematic of Michigan's archaic and fragmented juvenile justice system, a ProPublica investigation has found.
Michigan keeps such poor data that the state can't even say how many juveniles it has in custody at any given time or what crimes they committed. But a ProPublica analysis of the federal government's most recent estimate, which used data collected on a single day in 2017, shows that about 30% of the youth confined to detention and residential facilities in Michigan were there for noncriminal offenses, compared with 17% for the country overall.
It can be hard to compare different states with precision because facilities self-report figures and the data varies by state, though experts agree the federal census is the best available measure. The analysis found that Michigan ranked fourth in the nation, trailing only the much more populous states of California, Texas and Florida in the number of minors held for technical violations, and that Michigan's rate was more than twice the national rate.
Michigan also locked up more children for status offenses than all but three states. Children of color, like Grace, were disproportionately involved at nearly every point in the juvenile justice system.
“Michigan is completely out of line with the rest of the country," said Joshua Rovner, a senior advocacy associate at The Sentencing Project, a nonprofit focused on criminal justice reform around the country. “That is a policy choice."
“The whole point of Grace's story is not that this just happened to Grace," he said. “There are hundreds of kids every year who are put in these facilities."
To examine Michigan's juvenile justice system, ProPublica talked with more than 80 lawyers, government and court officials, experts and young people involved in the system. Reporters reviewed court documents and state records, watched live court hearings broadcast on YouTube and analyzed available state and national data.
The investigation revealed a juvenile justice system lacking statewide coordination or authority. A decentralized structure allows counties to act with little oversight, and the state gathers almost no data from those jurisdictions, so it doesn't know what happens to the juveniles in them. The state's program, tucked inside the massive Department of Health and Human Services, struggles to manage and fund efforts among courts and governments across 83 counties. Because each local authority largely takes its own approach to juvenile justice, children's treatment varies widely depending upon where they live.
The state Supreme Court, which has the power to require county courts to standardize and report data, has not done so. And lawmakers, focused on problems in the state's child welfare and adult criminal justice systems, have failed to prioritize juvenile justice measures.
Michigan Supreme Court Justice Elizabeth Clement said leaders from the executive, legislative and judicial branches must work together to set new policies and pass legislation to reform the juvenile justice system.
“If it's not a priority from the top down, you're going to have the status quo. It'll be easy for everyone involved to say, 'Well, no one is going to hold anybody accountable,'" Clement said.
Michigan appears to be taking the first halting steps toward reform, recently becoming the 47th state to ban automatically charging 17-year-olds as adults. But experts and advocates say there is still much to do.
“Much of the world has moved on, but much of our system remains stuck in the mentality that has really gone by the wayside, that no academic, that no policymaker really still believes in," said Frank Vandervort, a professor who teaches and supervises at the University of Michigan Law School's Juvenile Justice Clinic. “We have too many kids in placement. We do not have enough community-based resources. In many ways, we are two or three decades behind what is thought of in contemporary times as best practice in juvenile justice."
During one virtual court hearing this month, the 16-year-old on the video screen sat in his kitchen, arms crossed, facing Judge Kathleen Feeney for a probation progress hearing. He hadn't been arrested on any new crimes since his original charge of assault, but he was skipping online school, smoking marijuana and disobeying his mother, his probation officer told the judge.
Feeney told the teen he could remain at home, but only if he followed all of her orders, including taking a new medication for mental health issues. He agreed, but when Feeney ordered him to swallow the pill during the hearing, he threw it on the floor.
“You can't order me to take something I don't need," he told the judge.
“Yeah, I can, otherwise you are going to get picked up. And you do need it," she said.
When he repeatedly refused to take the pill, Feeney found him in contempt of court. She said the teen posed a risk to himself if he didn't take the medication and instructed that he be detained. She later said detention was the quickest way to get him a substance abuse assessment.
Feeney, a Kent County Circuit Court family division judge, said she tailors her probation orders to what she thinks individual children need: Go to school, don't use drugs, take prescribed medication, go to bed at 9 p.m., read a book a week and write an essay about it. She tells them to post the probation orders on their refrigerators so they don't forget what's required of them.
“I tell them if you can't follow these orders, they will be telling me they can't be successful in their mom's home and I will find them a place to live. And I will," Feeney said in an interview. “They need to be watched. They have already proven they make bad choices. Probation is all about helping kids make better choices."
Feeney said if she didn't care about the teenagers who appeared before her, she wouldn't set limitations to help them get on a better path. She said she revokes probation on a case-by-case basis and only when a teenager's behavior and circumstances warrant it.
“I don't know what the alternative approach is," Feeney said. “I am always open to learning new things and figuring out how we can do things better. The things we are asking them to do in the probation orders are the rules of kidhood. ... To me, these are just trying to put down in writing the rules of kidhood that every kid should follow."
About 4,500 Michigan youth ages 10 to 16 were placed on probation in fiscal year 2018, according to the latest state figures. That data doesn't include individual offenses, but charges can include assault, robbery and weapons offenses. On probation, juvenile offenders typically live at home as long as they follow the rules a judge sets for them.
Those rules, though, can create unreasonable expectations for behavior by teenagers, some experts say. If they weren't in the juvenile justice system, their misdeeds could lead to a grounding or loss of privileges, not time in detention.
“Instead of helping kids do right, it is catching them do wrong," said Nate Balis, director of the Juvenile Justice Strategy Group at the nonprofit Annie E. Casey Foundation. “No young person is going to follow the rules all the time."
Driven by legislative and policy reforms, many states across the country have moved away from detaining young people for probation violations, data shows. In 2017, the National Council of Juvenile and Family Court Judges called for judges to ensure that teenagers who violate probation are not incarcerated. The group urged courts to use incentives and individualized case plans to manage juvenile offenders rather than issuing a litany of rules.
Recent legislation in Colorado limits the use of detention for juveniles, requiring an assessment of a youth's risks and needs before deciding whether a placement outside the home is necessary.
Kansas, Georgia, Hawaii, Kentucky, South Dakota, Utah and West Virginia have all adopted policies or enacted laws in recent years to reduce out-of-home placement for juvenile offenders, particularly those with minor offenses, according to the Pew Charitable Trusts, which has funded many of the initiatives.
But Michigan moved in the opposite direction. The one-day census, conducted by the federal Office of Juvenile Justice and Delinquency Prevention in October 2017, found 210 juveniles were confined for technical violations, compared with 144 during the first count in 1997. Illinois, by contrast, had reduced that population from 396 to 9 in the same time period.
Jason Smith, of the nonprofit Michigan Center for Youth Justice and a leading voice for reform, said the state should have a better understanding of the youth in its system. But even the limited data shows that Michigan confines too many young people for noncriminal offenses, he said. Doing so, “increasingly disconnects them from their families, schools and communities, and places them at risk of physical harm simply by being in a confined setting," Smith said.
As in most of Michigan's juvenile justice system, children of color are disproportionately affected. About 25% of the state's youth placed on probation in fiscal year 2018 were Black, even though they make up 17% of the state's population under 17, according to state data.
In Saginaw County, an area northwest of Flint near Lake Huron, children of color make up less than 40% of the county's juvenile population but accounted for more than 60% of those involved with the juvenile justice system.
Patrick Greenfelder, an attorney who defends juveniles in Saginaw County, said nearly all his probation violation cases end up with the young person in detention. Last Tuesday, three of Greenfelder's clients had hearings for probation violations. All were Black, and all risked incarceration for the same reason: not logging on to online classes. They faced more than a month in detention.
One teenager had missed a month of classes and several counseling sessions. A second didn't have a working laptop, and his mother said they didn't have WiFi for a few weeks because she had to pay for food and rent.
The third, a 16-year-old named Michael, was released from detention in October following charges for possession of a stolen vehicle, reckless discharge of a firearm and trying to escape from the courthouse.
He had been following the rules of his probation, but when Michael's school switched to remote learning, he began “spiraling downward," wrote his probation officer, John Meyette. Michael wasn't logging on regularly. When he did, it was only for short periods of time.
“I know he is not understanding the material and that is why he is not working," one of his teachers wrote in an academic report included in court records.
The probation officer's decision to recommend detention baffled his mother, Nicole. Michael had struggled with ADHD and anger issues since he was a child, she said, but until the pandemic, had managed with the help of medication and one-on-one support in his special education classes.
“Knowing his school history, knowing he needs extra help, you're still going to lock up my son?" she said in an interview. “He never committed another crime. I just don't think that's fair."
After about four months in detention, Michael himself said he didn't want to go back. “It ain't no place for me," he said in an interview.
Meyette, who declined comment for this story, argued for detention, in part because teenagers can't skip classes while locked up. But last Tuesday, Saginaw County Judge Barbara Meter made a decision that surprised the defense attorney. She said she didn't want to house young people in detention during a pandemic for missing school. She dismissed all three cases.
The probation officer seemed to anticipate the outcome by the time the third case came up. He told the prosecutor, “If it doesn't go the way we want it to, then at least we're making them sweat."
The 2017 federal data showed that in Michigan, one offense had sent children to institutions more often than robbery or theft or drug charges: “incorrigibility."
The term generally refers to a child who repeatedly defies a parent or guardian. That can include leaving home without permission, using abusive language or spending time with “undesirable people." Incorrigibility, like truancy or running away, is a status offense, deemed a violation of the law only because it is committed by a minor.
According to the 2017 federal data, Michigan held more young people for status offenses than 46 other states. Nearly half of those juveniles were Black and the majority were female.
“That is how girls come into the justice system in Michigan," said Terri Gilbert, a former supervisor for juvenile justice programming in Michigan and advocate for reform. “We would be much better off seeking services in community-based behavioral health or family support programs than criminalizing this behavior. It is not OK to treat kids like criminals when they do things like this."
Federal law prohibits detaining juveniles for status offenses unless they violate a direct order from a judge, such as a requirement to go to school regularly or obey their parents. The measure is intended to protect children from being easily detained for minor infractions. But Michigan judges issue so many court orders that the federal law is almost meaningless.
About half of the states did not use court orders to lock up juveniles for status offenses in fiscal year 2016, the most recent year for which data was available. Michigan used court orders to do so 630 times, more than all but two states that year, according to data reported to the federal government. The state that had most frequently used court orders, Washington, has since outlawed the practice.
The Michigan Legislature last week passed legislation that would limit to seven days the length of time youth can be detained for a status offense, which would bring the state into compliance with federal requirements enacted in 2018.
Sen. Sylvia Santana, who sponsored the legislation, said she hopes it's the beginning of efforts to reform the state's juvenile justice system.
“We have a lot of things to fix," she said. “I hope we are on the right path."
In 1996, when Michigan Gov. John Engler pushed to build a “punk prison" for teenage criminals and boasted that the state had one of the country's toughest juvenile justice systems, his line of thinking was common. Fear of a purported wave of remorseless juvenile delinquents known as “superpredators" was sweeping the country, prompting lawmakers to pass stiffer penalties for young offenders.
Under Engler's administration, Michigan lowered the age at which children could be tried as adults to 14, although some could be younger, and instituted more punitive juvenile sentencing provisions, among other measures.
“We made kids the boogeyman," said Charley Clapp, an attorney in Grand Rapids who has tried juvenile court cases for more than 30 years. “We treated kids harsher. Rather than looking at them as human beings, we just wanted to be tough on kids. I don't think we ever recovered."
Ingham County Prosecutor Carol Siemon said that when she was an assistant prosecutor in the 1980s and 1990s, she did not usually oppose probation officers' recommendations to detain minors for noncriminal offenses. Her own outlook has changed, but many prosecutors and judges in Michigan continue to view juvenile justice in a punitive way, she said.
“If it is your local culture, you don't always think to question it," said Siemon, now considered one of the state's progressive prosecutors. “That still lingers in the system."
While most other states ultimately moved toward a more reform-centered model, Michigan has been slow to reevaluate its approach. Two primary barriers stand in the way: the decentralized system that allows counties to act with little oversight and the lack of data to drive decision-making or reform.
Individual county court systems keep files and some data on their own cases. ProPublica requested data related to the incarceration of juveniles for noncriminal offenses from more than a dozen counties; none provided the information and some said they would have to search paper case files to gather it.
The Michigan Supreme Court could require county court systems to track the information and provide it to the state, but doesn't.
“Could we do a better job? Absolutely," said John Nevin, the court's spokesman, who added that the Legislature would need to allocate funding as it has done for other data efforts.
Officials from the Michigan Department of Health and Human Services, which administers the juvenile justice system, also acknowledged the state's deficiencies in data collection and analysis. Without a standalone juvenile justice department, the state's responsibilities are limited and scattered across the agency. It inspects child welfare facilities, including residential treatment and detention centers, for compliance with licensing rules and laws. Its Child Care Fund Unit reimburses counties half the cost of eligible placements and services for those involved with juvenile court. The state directly oversees only a small percentage of delinquency cases; the majority fall within the jurisdiction of the courts.
“The juvenile justice work happens locally in each court, and they have their individual data they collect but it is not shared statewide," said Wendy Campau, who oversees juvenile justice programs at the agency. “It doesn't allow us to make informed decisions in terms of strategies that could improve the experience of youth and families."
Michigan has pledged for years to improve its collection of juvenile justice data but hasn't. State officials and court administrators gathered at a “Datapalooza" conference eight years ago to discuss the urgent need. Two years later, they detailed exactly what data should be collected, but have made little progress since.
Atasi Uppal, a senior policy attorney at the California-based nonprofit National Center for Youth Law who has worked in juvenile justice systems across the country, said the shortcomings in Michigan's data are among the worst she has encountered.
“In Michigan, people are quick to blame decentralization but slow to take charge of coming up with a solution," Uppal said.
A number of states not only gather the information but make it available to the public. Florida publishes an interactive tool that provides data on juveniles in the system while other states, including Maryland, publish annual data reports. In Indiana, which is decentralized like Michigan, a juvenile justice reform task force appointed this year aims to collect and assess data from across the state.
Michigan last published an annual report on juvenile justice in 2015, and it focused only on juvenile arrests through 2013.
The state of juvenile justice data in Michigan has some experts questioning whether it is by design.
“You cannot be this far behind in the data without an intent to do that," Vandervort, the Michigan law professor, said. “It's not an inadvertent error. This is intentional. I don't think they want to understand how bad it is."
Because there is little state oversight, young people may have very different experiences of the juvenile justice system depending upon where they live. Advocates have dubbed it “justice by geography."
Grace, in Oakland County, was sent to detention just two weeks after being placed on probation, for her first violation. Probation officers and judges in other counties — and even other courtrooms — may offer teenagers multiple chances before ordering detention, or not use detention at all for some offenses.
Mental health treatment and other services also vary widely by region; some judges say they have to send young people to detention because that's the quickest way they can get a psychiatric evaluation. Attorneys say their clients would be better treated for their mental health issues in the community but get locked up because there's nowhere for them to go.
In other states with decentralized justice systems, state lawmakers have stepped in to mandate consistent policies, such as standardized assessments to match youth with the most appropriate level of supervision, said Josh Weber, who directs the Council of State Governments' juvenile justice program. Michigan has no such assessment tool.
In states like Illinois, which has revamped its juvenile justice department over the last decade, data has been key, but so has jurisdiction, oversight and advocacy. The Illinois Department of Juvenile Justice sets state standards for detention and receives reports on all youth in detention, even those not directly in state care.
For decades, juvenile justice fell under the Illinois Department of Corrections, but breaking off as a standalone agency in 2006 helped usher in a new era, said Heidi Mueller, director of the state's Department of Juvenile Justice.
“In Illinois, without a doubt, removing DJJ out from under adult corrections was critical to the department being able to change policies and practices and move toward a lot of reform," she said. “I do think if we had remained under Department of Corrections, the process would be much, much more slow-going, and we would be handcuffed."
Michigan has an Office of Children's Ombudsman, which handles complaints related to child welfare and juvenile justice, but it does not have oversight over most delinquency cases because they are supervised by the courts.
Of the 1,169 complaints the office received in fiscal year 2019, none was related to juvenile justice, records show. During this most recent fiscal year, which ended in September, only four were.
Michigan's ombudsman stands in stark contrast to Illinois, which in 2014 created the Office of the Independent Juvenile Ombudsman. In fiscal year 2018, the office received 1,203 calls from youth and their families and logged 1,000 in-person contacts with youth in custody, state records show. Juveniles locked up at any of Illinois' five state-run facilities can call the ombudsman's office at any hour of the day by dialing a four-digit code. The calls are free and confidential.
Kathleen Bankhead, who was appointed Illinois' first juvenile ombudsman and still serves in that role, said she didn't realize the importance of the office until she began touring the facilities and speaking to the youth.
“It is the bigger systemic things, but it's also the micro things," Bankhead said. “The individual youth that would get lost in the shuffle. Even though it's not perfect, having somebody who knows the kids and knows them by their names, someone that they will trust and reach out to, makes such a difference."
Michigan Gov. Gretchen Whitmer, who took office in January 2019, has made criminal justice reform a priority. But she has so far largely focused on the adult system. A task force studying incarceration found about half of all jail admissions in that system resulted from probation or parole violations, information that helped spur a package of criminal justice reform bills that would, among other changes, limit when jail can be used for adult probation violations. Whitmer's office did not respond to requests for comment.
The largest statewide juvenile justice reform came last year. Michigan became one of the last states to pass legislation to ban automatically charging 17-year-olds as adults, a practice that began more than 100 years ago. The change, which goes into effect in October 2021, took years to accomplish in part because the state didn't have the data to understand how many youth would be affected. Last week, state lawmakers approved a measure that would automatically expunge certain offenses from a juvenile's record, a move they already had approved for adults.
The Michigan Supreme Court took one step toward understanding concerns in the juvenile court system when it commissioned a review of juvenile defense in 2018. The National Juvenile Defender Center report, released this year, found that without state funding or oversight of juvenile defense in Michigan, young people too often have inadequate counsel by court-appointed attorneys. Among other suggestions, the group recommended state monitoring, better training of lawyers, and expanding the State Appellate Defender Office to also take juvenile cases.
Following concern that Grace had been shackled during a court hearing, the state Supreme Court proposed a rule last month that would ban the use of restraints on juveniles during court proceedings unless there is a safety risk.
More than 30 states have limited or prohibited shackling juveniles, according to the nonprofit National Juvenile Defender Center. Most young people are in court on nonviolent offenses, the group and others found, and shackling them often is unnecessary and can exacerbate trauma.
Some counties have attempted to make reforms on their own. Wayne County, the home of Detroit, in 1999 essentially created its own juvenile justice system. One stated goal was to keep more children in their communities and out of facilities. The number of juveniles confined in secure, short-term detention went from an average of 500 a day in 1999 to around 82 in 2019, according to Wayne County officials.
Attorney Jessica Martin has represented young people in Detroit for 13 years. She said juveniles are rarely taken into custody for status offenses and often are given several opportunities before they are placed outside the home for a probation violation — though that still sometimes happens.
Probation officers there go beyond drug screens and attendance checks, she said, and help enroll families in Medicaid, drop off food baskets on Thanksgiving and work with schools to develop specialized education plans for students.
More recently, in Washtenaw County, which includes Ann Arbor, incoming county prosecutor Eli Savit has pledged to rely less on detention. Savit said in an interview that his office won't file cases against juveniles for minor school-based behaviors, marijuana crimes or status offenses.
“You sink your hooks in that kid and any slip up, something not criminal, can warrant really severe consequences," he said.
Since he entered the juvenile court system in June 2018 on a felony weapons charge for bringing a concealed gun to school, Cartez, a Black 17-year-old from Inkster, outside Detroit, hasn't been charged with any more crimes. But he is regularly in trouble with the Wayne County court.
Cartez said probation at first helped him stay out of trouble, and records show he was “progressing on probation appropriately." But he said he soon became overwhelmed with the requirements: to repeatedly check in with his caseworker, get weekly drug screens and charge the electronic monitoring device he wore on his ankle. He was irritated he couldn't leave the house.
Probation, he said in an interview, began to feel like a “set up." He said he felt like he was under constant surveillance.
“They want me to be perfect and nobody is perfect," Cartez said.
Court officials determined he violated probation rules several times last year when he failed to do his virtual schoolwork, left home without permission and admitted to eating marijuana edibles, records show. Authorities didn't see him using marijuana, which would have been illegal.
Even in Wayne County, considered a model of reform, those probation violations landed Cartez in detention and then in a residential facility near Grand Rapids, where he ended up staying for a year. He turned 16 while there.
“No matter what you do, it can be the smallest thing, walking down the street or going to the store at night and the police see you and find out you are on probation, you are going to get locked up," he said. “The system is waiting for you."
His mother, Sharise, said she wished there had been an alternative to detention, particularly because Cartez didn't commit new crimes. “I am all for discipline and I feel like if kids do wrong, they have to pay for their mistakes," she said. “But not so intense."
Home since August, Cartez initially followed the requirements of his probation, his court records show. But on Dec. 3, he appeared for a hearing after his probation officer filed a complaint that said he was not charging the electronic monitoring device and had tested positive for marijuana. The court found Cartez had again violated probation.
His next hearing is set for the first week of January, when the court will decide if the teen should be sent back to detention.
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