Critics fear reforms may boost incarcerations of minority youths in Michigan

A change designed to divert minors from incarceration goes into effect next week, but critics fear it could instead lead to an increase in detention for youths of color.

Nearly 10,000 youths are arrested in Michigan each year, and, in 2022, a statewide task force recommended standardizing a system to determine whether they should be locked up or released to their parents while cases against them are adjudicated.

The hope was to remove some of the subjectivity from the process and steer nonviolent youths to diversion programs or informal probation. But critics fear the tool chosen by the state could have an opposite effect.

The screening tool includes six questions to determine whether youths should be locked up, and three are troublesome to critics: whether the youths have a “negative attitude” toward the justice system, whether they have difficulty controlling anger and if any relatives have been arrested.

That could “inadvertently create a situation where (minors are) low risk, but then their screen has a high risk,” said Rep. Amos O’Neal, a Saginaw Democrat who sponsored the screening legislation but opposes how it’s being implemented.

“It’s not fair, it’s inhumane, it’s discriminatory and it’s not right,” he continued.

Some states that use similar screening tools, including Indiana, have attracted criticism for disproportionately detaining Black boys.

The change is part of statewide bipartisan juvenile justice reform in Michigan that was approved last year. Court officials based the screening tool on one used in Ohio and contend it is an accurate predictor of whether minors across all race groups are likely to commit future crimes.

Calling detention screening a “key recommendation” of the state juvenile justice task force that prompted the reforms, State Court Administrator Tom Boyd said in a statement to Bridge that the state intends to meet the Oct. 1 implementation deadline for putting the chosen tool in place “because children and families cannot wait any longer for reform.”

O’Neal, local court administrators, youth advocates and others who supported reforms are sounding the alarms, however, calling on the State Court Administrative Office to reverse course and consider alternatives.

“In urban communities where Black and brown kids are engaged by justice systems very often, we know, really, the ramifications of using a tool like this statewide,” said Paul Elam, a chief strategy officer at the nonprofit research group Michigan Public Health Institute who has studied disparities in the state’s juvenile justice system for decades.

“I think it would fly against the intent of this reform task force and actually move us in the wrong direction.”

Youth incarceration has declined dramatically in recent years. Juvenile incarceration rates dropped from 108,800 to 27,600 juveniles nationally between 2000 and 2022, a 75% decline, according to an August report from The Sentencing Project, a Washington, D.C.-based advocacy group.

In Michigan, state police data shows 5.3% of total arrests made in 2022 were juveniles, about 9,400 youth.

Racial disparities persist: Among youth referred to juvenile court, Black youth are 60% more likely to be detained and 63% more likely to be committed than white youth, and white youth are 31% more likely to have their cases diverted out of the formal juvenile justice system, The Sentencing Project’s report found.

Last year’s juvenile justice reform received bipartisan support in Michigan.

In addition to eliminating most juvenile court fees, the package required evidence-based risk and needs assessments of a juvenile’s possible risk to the community, along with any mental health needs to be completed prior to any minor’s disposition hearing.

Among those required assessments: a screening at the point of arrest to determine if a minor could cause further harm to themselves or the community in the period between an arrest and any subsequent court hearings.

“It's sort of a snapshot of the kid’s life,” said Jodi Petersen of Petersen Research Consultants, a Grand Rapids-based firm that has worked with local courts on risk assessment programs to decrease recidivism.

“We use that data to then predict who's most likely to reoffend, and then to make sure that we can match up the right programs at the court for the kids that need those kinds of programs.”

Where it gets tricky, Petersen said, is that there “are not a lot of great instruments out there for juveniles that are strong predictors of that kind of short-term community risk.”

Several states have approved risk screening tools at various stages of juvenile justice involvement, and in Michigan, a handful of counties have developed their own systems to screen youth ahead of possible detention.

Berrien County in southwest Michigan developed its own tool in 2002 that takes an average of 15 to 18 minutes to complete, covering the youth’s demographics and legal status, severity level of the offense, whether it involves victims or any aggravating factors like gang activity, the youth’s prior record and whether there’s any risk that the youth would fail to appeal in juvenile court.

“Our focus was on developing a detention screening tool and protocol, so that when law enforcement was calling our juvenile center seeking to lodge youth, that we would have an objective, reliable way to make those decisions,” Berrien County Family Court Administrator Elvin Gonzalez told Bridge.

State court officials chose the Ohio Youth Assessment System, a screening tool built by the University of Cincinnati Corrections Institute designed to assess a juvenile’s likelihood of future delinquency, as the basis for a statewide screening standard in Michigan.

Boyd, in his prepared statement to Bridge, said the model was picked after a “collaborative research and review process” that included local courts and other stakeholders.

To be eligible for certain state funds, local officials will soon need to incorporate the six-question screening into their intake process when a minor gets detained after an arrest. Depending on the responses during an in-person interview, youth will be categorized as low, moderate or high risk of future delinquent behavior.

The tool recommends high-risk juveniles should receive “more intensive services and supervision,” while lower-risk youth could be offered an informal probation, community services or other diversion programs offered locally.

Screening topics would include:

• Any prior offenses
• Any possible criminal charges related to the current arrest
• The youth’s age at the time of their first contact with the juvenile justice system
• Whether any of the youth’s family members have been arrested
• If the youth has “difficulty controlling anger”
• Whether the youth has a “negative attitude” towards the juvenile justice system

Several court administrators and advocates who spoke to Bridge said they had no issues with pre-detention screenings as a concept, but were concerned that a youth’s answers to several of the questions on that list could be skewed if they’re sitting in the back of a police car in the middle of the night.

“Maybe that's not a good time to assess whether they like the justice system,” or whether they have anger issues, said Thom Lattig, Ottawa County’s juvenile court director and an original member of the state’s juvenile justice task force.

“I don't want a kid to be judged on their worst moment,” he said, adding that while the tool is likely a good predictor of recidivism, he’s concerned that “it might actually lead to more detentions than less.”

Jason Smith, executive director of the Michigan Center for Youth Justice, also posed concerns about the weighting of past status offenses, calling it “ridiculous” that a more minor prior offense like breaking curfew or skipping school would be weighted the same under the tool as a serious felony.

Boyd said concerns raised about the potential for increased detention of youth assume the screening tool is used in isolation.

“In fact, while the screening tool can be used to inform initial placement and/or release decisions, the results of the screening should be considered along with other factors” including court rules, professional judgment and the reason behind the request for detainment, Boyd said.

Rhonda Ihm, president of the Michigan Association for Family Court Administration and a court administrator in Genesee County, said court officials around the state are prepared to follow the new rules.

But she fears that the practical result will be local courts frequently overriding the tool and defeating the purpose of having a statewide standard in place.

“In other states where they've done this, they've really spent the time and financial resources to develop a tool and validate it … We really haven't had an opportunity to do that,” she said.

“Courts are going to do their best and use additional information to help make the decisions,” Ihm continued. “And in the end, if they have a child that they don't think needs to be detained…they'll override the tool.”

O’Neal is seeking to postpone implementation of his own law and hasn’t ruled out introducing new legislation to block the tool from being used, arguing that moving ahead without adequately addressing or rectifying concerns raised would be far worse than a delay.

“We have to do more on the front end to reduce the pipeline to prison,” O’Neal said. “If we have a tool that screens in an adverse way, it creates an opportunity for that pipeline to be maintained and even increase. And that's unacceptable.”