Michigan’s Youth Justice Reform: A Potholed but Sure Road to Change
By
By
Kimberly Thomas[1]* & Jason Smith[2]**
This Essay explores and documents the significant youth justice reforms taking place in Michigan, which include elimination of court fines and costs, a move to evidence-based decisions around diversion and disposition, a re-focus on community treatment of youth, and the establishment of a statewide floor for youth justice. We hope that by examining one state’s process, stakeholders in other states can take away their own strategies and learn lessons from our reform.
Every state has its own customs and histories that inform reform; Michigan is no different. Yet, Michigan is typical in ways that count. The state has a court system that has been historically decentralized and focused more on county control and operation.[3] This is similar to numerous other states, including Pennsylvania and Texas.[4] Michigan is neither squarely “red” nor “blue” politically,[5] which means that change typically requires people to work together across political parties. Michigan has sporadically made legal changes based on evidence-based research, but has, by no means been a leader. A 2017 Pew-MacArthur report that examined the use of evidence-based policymaking slotted Michigan as one of seven states that were “trailing” in the implementation of best practices; the worst rating of the four categories available.[6]
Michigan’s reforms follow a similar path and address many of the same problems in youth justice seen in states around the country. These efforts around the country have, in the main, been bipartisan changes, based in developmental and best practices research, typically with the involvement of stakeholders across branches of government, as well as technical support and research assistance.[7] These evidence-based reform trends are seen in an array of areas, such as behavioral health and child welfare.[8]
Michigan’s changes also fit squarely within these continuing efforts by states over the past decade or two, and ongoing, to examine the juvenile court system from a developmental perspective, that aims implement research on what works, and what does not work, in youth justice.[9] More broadly, the process and results, which focus on evidence-based practices, are part of a larger trend in states toward using research and data to inform effective policy.[10]
In Part II, this Essay, gives an understanding of the groundwork that gave rise to the current reforms in Michigan, including changes on discrete issues and high-profile failures. Part III examines the Michigan Task Force on Juvenile Justice, which took a comprehensive look at Michigan’s current juvenile system, and the changes in law, rule and policy that resulted from the task force. Part IV reflects on the upcoming implementation challenges and (some of) the work left to be done in Michigan. The Essay concludes with a look at how Michigan’s reforms fit within the national juvenile context.
There have been set backs, but Michigan’s reforms in youth justice are something to be proud of. This Essay describes Michigan’s experience with juvenile justice reform to lay out one state’s experience and so that stakeholders in other jurisdictions can see their own path to making the changes needed to best serve young people in their states. We hope that by contributing to the small literature that gives a birds’ eye view of the process or result of broad scale reform;[11] instead focusing on one or two important issues,[12] we can demystify a complex and sometimes daunting process.
The wave of national youth justice reform in the early 2000s largely bypassed Michigan.[13]
Many states and localities looked to the Annie E. Casey Foundation’s Juvenile Detention Alternative Initiative (JDAI), which began over thirty years ago and focuses on decreasing youth who are unnecessarily detained.[14] For example, in 2005, Missouri received funding from Annie E. Casey for a JDAI pilot.[15] As a result, Missouri has been a leader in custody placements that are small-scale and supportive, instead of those that mimic adult correctional facilities.[16] Missouri initially undertook four pilots in the circuits with the largest detention center population to reduce the youth in custody and the time youth spent in detention and to reinvest in school-focused programs, therapy and other alternatives.[17] Then, Missouri moved to implement evidence-based tools statewide, including detention assessments.[18]
As another example, in 2009, Hawaii was designated a JDAI model site and used the resulting collaboration to move to eliminate the “valid court order” exception for status offenses and moved to a more data-driven approach.[19] Four years later, Hawaii partnered with the Pew Charitable Foundation,[20] through the Juvenile Justice Reinvestment Initiative, and initiated a twenty-member task force.[21] Like in Michigan, Hawaii’s working group made a series of recommendations,[22] which moved to the legislature. Hawaii’s legislative reform limits what youth can be committed to the Hawaii Youth Correctional Facility, standardized the use of a single assessment and screening instrument, inform decision-making at disposition, during probation and upon release from custody.[23]
Another major initiative in the 2000s was the Models for Change program, which the MacArthur Foundation launched in the early 2000s and which initially worked with four states on comprehensive reform based on adolescent development.[24] For example, Illinois focused on raising the age of juvenile court jurisdiction to include seventeen-year-olds, expanding community-based placement, reducing secure confinement, improving data collection and analysis, and reducing disproportionate minority contact with the juvenile system.[25]
While pieces of this work echoed in Michigan,[26] Michigan had not taken a holistic look at its juvenile system in a long time, and that neglect meant that Michigan had work to do.[27] For example, as stated in the executive order establishing our reform body, “Michigan . . . detains youth at one of the highest rates in the nation and is nearly unparalleled in our practice of detaining youth for non-criminal behavior.”[28]
The next sections describe discrete steps in Michigan that set the stage for more holistic reform.
The “Raise the Age” legislation in Michigan, which aimed to have the cases of seventeen-year-olds originate in the juvenile courts represented a major shift in the state’s approach to juvenile justice.[29] Before this change, Michigan was among the last states in the U.S. to automatically treat seventeen-year-olds as adults, regardless of the offense.[30] This statutory limit on the juvenile court’s jurisdiction meant that these older teenagers were automatically convicted and sentenced within the adult system, which was ill-suited for their age and developmental status. This misalignment led to poorer outcomes, a heightened risk of harm in adult jails and prisons, and increased recidivism.[31] The process of changing this policy spanned three legislative sessions, gradually building momentum as other states across the country passed similar measures.[32] This milestone policy reform was achieved in October 2019 through the combined efforts of a diverse, bipartisan coalition, including advocacy groups, policymakers, juvenile justice professionals, and community stakeholders, including business groups and faith-based organizations, highlighting the importance of collaboration in effecting significant legislative changes.[33] When Raise the Age went into effect in October 2021, it was estimated that 4,000 cases involving seventeen-year-olds would be handled by the juvenile court.[34]
The Raise the Age advocacy campaign not only addressed the age of juvenile court jurisdiction but also brought to light other significant areas within the juvenile justice system that required systemic reform. In doing so, the campaign emphasized the need for a comprehensive approach to better serve the youth of Michigan and sparked an interest in the state legislature in continuing to work on legislation that impacts young people under juvenile court jurisdiction, as well as those at risk of becoming system-involved.
At the same time, an assessment of the Michigan indigent youth defense system by the Gault Center also highlighted the uneven and sometimes subpar provision of counsel for young people.[35] The youth indigent defense assessment followed over a decade of litigation, study, legislation, funding, and capacity building that reformed Michigan’s adult indigent defense system.[36] The Gault Center began this assessment in 2018 with stakeholder meetings and a review of Michigan’s youth defense legal structures.[37] To take a deep dive at understanding youth defense practice in a range of Michigan jurisdictions, the assessment team visited ten heterogeneous counties, and conducted in-depth interviews, file reviews, and courtroom observations.[38] The key findings were that Michigan lacks a system of state oversight and funding of the youth indigent defense system that could ensure a constitutional floor of counsel across the state and adequate training of attorneys.[39] For example, the assessment team heard about a lawyer who “pleads kids to whatever is charged;” meanwhile, other lawyers, who are not paid to visit clients in detention, do not go to see them.[40] The report also highlighted that families were charged overwhelming and burdensome costs for young people’s court cases, including the cost of a court-appointed lawyer.[41] For example, the “assessment team found that Michigan’s practice of requiring parents and youth to reimburse attorney fees may work to discourage the appointment of counsel, terminate representation prematurely, and create conflicts of interest for attorneys.”[42] The Gault Center recommended that Michigan create a system of state oversight of the youth defense delivery system, establish state standards for trial-level systems of counsel, grant the system independence from the court, expand the state appellate public defender to provide for appeals of juvenile delinquency matters,[43] ensure adequate funding, and eliminate court fines and fees imposed on young people and their families.[44]
Parallel to the examination of the youth indigent defense system, which raised the assessment of fines and fees as an area of concern, a number of system actors were drawing explicit attention to the collection of fines and costs from young people and their families who were involved with the juvenile court.
“The “Debt-Free Justice Campaign,” coordinated by the Michigan Center for Youth Justice (MCYJ), which is directed by one of the co-authors, played a pivotal role in advancing policy reforms to eliminate or reduce juvenile court fines and fees. The campaign raised awareness among policymakers, community members, and the media about the harms caused by juvenile court debt to youth and families and how it hinders the effective engagement of these groups in treatment and services ordered by local juvenile courts.[45] In response to concerns related to lost county revenues if the reform became state law, MCYJ partnered with Macomb County’s juvenile court to examine the actual costs and inefficiencies of fee collection.[46] This partnership led to the elimination of the local courts’ assessment and collection of discretionary fines, thus setting a precedent for statewide reform.[47]
The National Center for Youth Law, from 2018–2019, through Freedom of Information Act (FOIA) requests and stakeholder interviews, explored the significant assessments made in juvenile court and the inconsistent application of these costs, even on indigent youth and families.[48] The information gleaned on fees for the cost of care for a child were particularly startling. “Multiple families in one county reported an extremely high cost for detention and other facility stays, ranging from $10,000 to hundreds of thousands of dollars in fees.”[49] Courts in some counties exercised their discretion to waive fees, while others did not; the difference was based in geography as opposed to ability to pay.[50] Further, some of the financial assessment processes were opaque and done through sometimes aggressive “extrajudicial” collections proceedings.[51] The impact of unpaid fees on youth, which disproportionately impacted Black and low-income youth, was prolonged court involvement and financial stress on the entire family.[52]
The inattention that had been given to Michigan’s youth justice system came to state and national focus in 2020 through two high-profile cases: the homicide of Cornelius Frederick, a young person killed by staff during a restraint at a juvenile placement; and the case of “Grace,” a girl who was locked in detention by a juvenile court judge for failing to do her homework for virtual school during the height of Covid-19 in spring of 2020.
On April 29, 2020, Frederick’s threw a sandwich in the lunchroom at a placement called Lakeside Academy that served youth in delinquency cases and neglect and abuse cases.[53] At least six staff members held him down in a prone restraint for twelve minutes,[54] and he died soon after of cardiac arrest.[55] His death was ruled a homicide. The facility closed soon after, and two of the employees involved pled no contest to involuntary manslaughter and were sentenced to eighteen months of probation.[56] A June 2020 report by the Michigan Department of Health and Human Services established numerous policy violations by the facility, including around the use of restraints.[57]
First reported by a ProPublica reporter, Jodi S. Cohen, Grace was detained by a Michigan juvenile court judge for failing to do her homework for online school during Covid.[58] She spent seventy-eight days in juvenile detention before the Michigan Court of Appeals ordered her release.[59] Cohen’s reporting led to national and international attention of the case.[60]
While momentum for change had been slowly building, these two highly publicized incidents and the report on Michigan’s indigent defense system in 2020 made clear the need for reform.[61]
Two additional reforms, not solely related to juvenile court, were also key to setting the stage for youth justice reform: the state task force on jails and pretrial incarceration and Michigan’s “clean slate” laws.
In 2019, Michigan launched the Joint Task Force on Jail and Pretrial Incarceration,[62] to examine the state’s jail population with an eye to safely reducing jail admissions, length of stay and cost, expanding alternatives to jail, and support consistent, evidence-based pretrial decision-making, among other goals.[63] The task force dug into ten years of arrest and court data, three years of jail data, spoke with stakeholders, and took testimony from hundreds of people around the state.[64] The task force learned that even as crime and violent crime rates fell, the incarceration rate in jail rose; that people were in jail for low-level offenses that posed little public safety threat; and that Black Michiganders were disproportionately sent to jail.[65] The task force issued a series of recommendations in January 2020 that were aimed at reclassifying most traffic offenses as civil infractions, expanding officer discretion to issue appearance tickets and reduce the use of warrants, strengthening the presumption of release on personal recognizance and providing timely detention hearings, presumptively imposing non-jail sentences for non-serious misdemeanors and “intermediate sanction” felonies, and shortening maximum probation terms, among other reforms.[66] In January 2021, the state legislature passed twenty jail reform bills that sought to implement the recommendations. The pretrial task force, and its ability to create bipartisan consensus leading to reform, serve as a model of how criminal system reform could occur.[67]
In 2020, Michigan also passed an innovative package of bills, known as “Clean Slate,” that made it easier and, in some cases, automatic for people to have their prior conviction records cleared.[68] Michigan’s bill was the first in the country to establish a system of automatic expungements for many felonies,[69] which, when it went into effect in 2023, was estimated to have affected the records of over one million Michiganders.[70] A related package, “Clean Slate for Kids,” created automatic expungement options for certain juvenile offenses two years after the end of court supervision or the person turns eighteen years old (whichever is later), shortened the waiting period for applications for set asides,[71] and made juvenile court records closed to the general public,[72] thus putting Michigan in line with 20 other states’ treatment of juvenile court matters.[73]
Another example of how the benign neglect in Michigan’s juvenile justice system negatively impacted young people was the persistence of policies that permitted indiscriminate shackling of juveniles. Nationally, over the course of the 2010s, many states moved to only allow shackling of youth with a specific court finding regarding established risk of harm or flight.[74] By 2021, when the Michigan Supreme Court adopted a court rule on shackling, thirty-one states and the District of Columbia barred indiscriminate courtroom shackling. In Michigan, this practice involved using handcuffs, shackles, and other restraints on young people both charged and adjudicated in court, regardless of their risk level or behavior. Justice Megan Cavanagh, supporting the new court rule, highlighted that shackling causes unnecessary stress and humiliation, undermines juveniles’ rights, and contradicts the rehabilitative ideals of juvenile court.[75] The new rule prohibits indiscriminate restraint, allowing it only in cases of severe disruptive behavior, potential flight risk, or a clear threat of physical harm.[76] Moreover, judges are now required to provide a documented justification for each instance of shackling.[77]
The adoption of this Michigan Supreme Court ruling marked another step, alongside raising the age of juvenile court jurisdiction and increasing confidentiality protections for juvenile records, toward shedding the state’s reputation for harsh juvenile justice practices and embracing a more rehabilitative approach.
In 2021, Michigan Governor Whitmer created and appointed a state task force on juvenile justice, composed of stakeholders from around the state and from the executive, legislative, and judicial branches, as well as advocates and people impacted by the youth justice system.[78] The task force was given the “goal of developing ambitious, innovative, and thorough analysis of Michigan’s juvenile justice system, complete with recommendations for changes in state law, policy, and appropriations to improve youth outcomes,” and “conduct[ing] a comprehensive and data-driven needs assessment of Michigan’s juvenile justice system.”[79]
The task force and its subcommittees met for a year and had nine meetings of the entire task force.[80] Meetings, as well as the information presented at the meetings, were made available to the public.[81] The juvenile task force, as had the pretrial task force, partnered with a bipartisan non-profit, in this case, the Council of State Governments,[82] to help “conduct the assessment and facilitate the recommendation development process.”[83] The committee had eight working groups, made up of task force members and other stakeholders, to review data and examine other state’s best practices in more narrowly defined areas, including diversion, indigent defense, and out-of-home placement.[84] Advisory boards of tribal communities in Michigan, impacted parents, the State Court Administrative Office (SCAO), and advocates also provided feedback to the task force.[85]
One of the first things that the task force learned was that Michigan, as a state, did not know much about our juvenile system. Michigan lacked statewide data to answer basic questions like “How many Michigan children are in juvenile detention or placements right now?”[86] To get a better sense of how the juvenile system was actually operating, the Council of State Governments (CSG) obtained case data on juvenile court cases from a four-year period, 2016–2020, from thirty-two county courts – data which represented fifty-five percent of the state’s juvenile population age ten to sixteen years old.[87] The Michigan Department of Health and Human Services provided data on statewide juvenile and dual status cases under state supervision from 2015 to 2020.[88] To help fill in additional gaps, CSG and task force members conducted over 100 focus groups and interviews with a broad range of stakeholders, including those with lived experience in the youth system, health care professionals, law enforcement, court personnel, school personnel, and state health and human services staff.[89]
One area of investigation was diversion away from formal court proceeding and adjudication. Diverting youth away from the formal justice system has shown notable benefits. Studies have consistently found that diverted youth exhibit significantly lower rates of re-offending when compared to those entering the formal justice system.[90] Additionally, diversion programs are cost-effective, requiring fewer resources than formal court processing, which not only benefits the justice system but also the broader community.[91] Like in other states, in Michigan, juvenile court diversion can and sometimes does play a crucial role in addressing the needs of youth who engage in risky and unlawful behavior.[92]
Michigan law has a number of provisions that could achieve diversionary aims,[93] but these laws were used inconsistently across the state and were not being robustly used to make sure that low-risk youth were diverted out of the juvenile system.[94] One hurdle was funding incentives. While the Juvenile Diversion Act,[95] the state law governing diversion policy in Michigan, allows law enforcement agencies to divert youth, the primary funding source, the Child Care Fund, has historically restricted diversion programs to post-petition filing.[96] This restriction created a financial barrier for youth-serving institutions to implement pre-arrest or pre-petition programs, leading to delays in addressing the underlying issues that bring young people into contact with the legal system. In many counties, despite some broader statutory allowance for diversion, diversion was generally only considered and offered to youth with a first-time, low-level offense.[97] Screenings and assessments for diversion were either hit-or-miss or non-existent across some Michigan counties, leading to inconsistent diversion services despite youth having similar needs.[98] Diversion requirements also differed widely; including services offered, duration of participation, and requirements for successfully completing a diversion program.[99] Additionally, many diversion programs are managed by juvenile courts and do not always incorporate restorative practices that help repair harm caused to victims.[100]
Best practice for detention is that only young people who pose a high-risk and a danger to public safety should be detained pretrial, given the negative effects of pretrial detention. One study of youth in Michigan between 2007–2020, found that, among similar youth, youth placed in pretrial detention were less likely to graduate from high school and more likely to be arrested as an adult.[101] It also found that even when these youth were given school support services, those services did not overcome the educational disruption of detention.[102] In response to research such as this, many states are moving to prohibit detention of youth for low-level offenses, a trend which aims to enhance outcomes for young people and minimize their unnecessary engagement with the deepest end of justice system.[103]
Contrary to these trends and findings, the available data on Michigan’s practices around detention showed that the detention was not limited to high-risk youth who posed a public safety risk. The task force learned that Michigan lacked statewide policies or assessment tools, and many local jurisdictions similarly used no data or risk-screening to make detention decisions.[104] The result was that, in eight counties studied from 2016 to 2020, more than half of those detained had a misdemeanor as their most serious charge. Almost nine percent of those detained had a status offense as their most serious offense,[105] despite federal constraints on placing youth in custody for status offenses.[106] This is contrary to the national trend to ban the detention of youth who have not committed a criminal offense.[107] From 2016 to 2019, one in three youth spent more than thirty days in detention; at the time of the task force, many youth were housed for months in “temporary” detention facilities awaiting placement.[108]
At the trial court level, decisions about level of supervision, probation terms, and services were not consistently evidence-based practices rooted in risk to community or need of the child.[109] The funding structure for the Child Care Fund, the main mechanism by which county justice systems were reimbursed for youth services, in fact incentivized greater services and court involvement through greater reimbursement of these more intensive programs.[110] Counties lacked investment in reentry programs, especially for older youth. Few funding mechanisms existed for local jurisdictions to develop community-based alternatives to detention and incarceration.[111]
Similarly, post-adjudication youth were inconsistently placed outside of their homes in juvenile facilities, without relation to the youth person’s level of risk.[112] While limited data existed on the risk of youth because of the lack of consistent assessments, available information indicated that about 2/3 of the youth placed in state-supervised placements in child caring institutions were either at low or moderate risk; 73% of those ordered to Michigan Department of Health and Human Services (MDHHS) facilities were low or moderate risk.[113] At the time of the task force, Michigan’s placements were facing the fallout from facility closure, as well as staffing shortages, due in part to Covid.[114] County or court detention facilities looked to the lack of state investment as one of the sources of insufficient treatment and training.[115] As the courts were sending youth at all levels of risk to placements in child care institutions, the waiting period for these placements had extended from weeks to months.[116]
The benign neglect seen in many aspects of the youth justice system was perhaps most pronounced in the ability of sufficient and effective residential youth services.[117] While the availability of community-based services varies in Michigan’s decentralized juvenile justice system, many local jurisdictions often lacked a robust array of community-based services due to inadequate funding, lack of prioritization, or a scarcity of providers offering in-home treatment and support.[118] This shortfall led courts to routinely place youth of varying risk levels into residential facilities without thorough assessment of their needs, creating bottlenecks, extending waiting times, and causing children to languish in short-term detention centers not designed for long-term care.[119] Even in situations where the local juvenile court deems a youth safe for discharge from short-term detention or a residential facility, barriers such as a parent/guardian refusing to pick the child up or family housing instability can prevent their return home.[120] This issue is compounded by a lack of alternative community placements, such as specialized foster care homes or emergency youth shelters, leaving young people in a precarious position with limited options for safe and stable environments.[121]
This overreliance on out-of-home placements – rather than tailored, community-based interventions – reflected a punitive approach at odds with best practices in juvenile justice.[122] The recent transition emphasizes individualized care and growth, moving away from a system primarily focused on confinement to one that prioritizes effective, community-centered solutions.
Similar to the information gleaned from the Gault Center report on indigent defense, the task force found that there were “no centralized structure and minimal standards, supports, or resources for juvenile public defense statewide.”[123]
The task force also learned that “Black youth are disproportionately represented in all parts of the juvenile justice continuum, and few statewide structures exist to address disparities.”[124] Based on the available data, Black youth are petitioned for court at two times the rate of white youth, are more than 1.5 times likely to be adjudicated as white youth, and are detained at six times the rate of white youth.[125] Black youth stayed longer in detention than white youth – on average seven days longer.[126] And Black youth were placed as state wards at three times the rate of white youth.[127]
In sum, after a year of study, the task force learned some about our current system, which included highlights of innovative and evidence-based programs happening around the state.[128] In addition to revealing a dearth of statewide data, the task force discovered that young people’s experience with the juvenile court could best be described as “justice by geography;” formal court systems were heavily used for low-risk youth as well as non-person misdemeanor and status offense cases; pretrial detention was used for many reasons other than public safety or flight risk; and our youth justice system was characterized by tremendous racial disparity, among other things.
In July 2022, the task force made thirty-two recommendations for change.[129] These recommendations were almost all unanimous. These recommendations covered (broadly) the structure of the juvenile court system, diversion, court process, out of home placement, provision of indigent defense, data, and equity.[130] The recommendations had exceptions to ensure respect and compliance with tribal sovereignty.
A number of the recommendations sought to remedy the lack of statewide guidance or technical support for local jurisdictions.[131] These recommendations proposed changing certain funding incentives, enhancing the state-funded service reimbursement, setting up a new Juvenile Justices Services Division within the SCAO, and expanding the Michigan Indigent Defense Commission to include oversight and compliance of youth defense standards.[132] The SCAO should, among other things and in partnership with local communities, set up statewide, evidence-based probation standards and guidelines specific to juvenile court.[133]
The recommendations sought to align pre-court division and consent calendar with research and developmental science by using risk-screening tools and expanding the diversion act to cover all but the most serious enumerated offenses.[134] Youth charged with status offense would be referred, pre-petition, for a validated risk screening and, if low risk, diverted to community programs or services.[135] Validated risk and needs assessment should also be done prior to disposition and used by parties to determine appropriate dispositions.[136] Similarly, a validated tool should be used prior to detention decisions and detention should be used for public safety reasons[137] and not, for example, for need-based reasons such as behavioral health treatment. The task force recommended that the factors for traditional waiver[138] and designation[139] account for youth developmental maturity and the rehabilitation available in the juvenile court.[140]
The task force recommended eliminating court fines and fees, except for restitution or a fee related to the Crime Victims Fund,[141] and restricting the ability of the court to extend community supervision for restitution collection.[142]
Out of home placements in Michigan were, at the time of the task force review, particularly under pressure. The task force recommendations sought to update the licensing and service standards for placements based on contemporary research and trauma-informed practices,[143] and they sought to set a baseline, statewide, case management standard to guide post disposition placement.[144] The task force sought to establish a cross-system case review team for youth in detention waiting for placement or in placement for longer stretches, to work to identify community options and optimal usage of limited facility space.[145] Two other recommendations would set up an administrative process and staff to make sure that youth leaving detention or long-term facilities have timely Medicaid reinstatement[146] and would give MDHHS authority to adjust per diem rates and other aspects of service agreements.[147]
The task force also recommended funding and developing programmatic alternatives to detention.[148]
The only recommendation that was not unanimous was the recommendation to set thirteen as the minimum age for juvenile court jurisdiction.[149] In Michigan, under current law, there is no jurisdictional minimum age and the age of presumed competence to proceed in the juvenile court is ten years old.[150] Recognizing that there was a need to address competency, but also not unanimous agreement about the appropriate age, the task force recommended that the age of presumed competence align with the minimum age of jurisdiction.
A few of the recommendations addressed the systematic, statewide gaps across youth justice-related systems, including a recommendation regarding standardized data collection and sharing;[151] setting statewide definitions and protocols to capture information about race, ethnicity, and tribal affiliation of justice; the creation of a public equity dashboard to track progress;[152] and quality assurance and training regarding data quality.[153]
The recommendations recognized that some of the challenges required more sustained attention and long-term analysis. For example, a statewide residential advisory committee was proposed, as well as cross-systems and cross-government youth services committees to improve access to and availability of services for at-risk young people.[154] As another example, with respect to charging and convicting children as adults, the task force recommended a statewide committee on juvenile waivers, to review data on the use of waivers and national best practices and make further recommendations.[155] Finally, the task force recommended a youth and family advisory group to inform policy change and resource allocation.[156]
A package of bills encapsulating the more structural aspects of the task force recommendations, as well as many of the key provisions, was introduced into the state house in May 2023[157] and the state senate in June 2023.[158] The bills drew bipartisan support and had both Republican and Democratic sponsors.[159] The resulting legislation passed both chambers of the state legislature in November 2023 and was signed on December 12, 2023, by Lt. Governor Garlin Gilchrist II.[160] The bills set to accomplish many of the statewide structural changes recommended by the task force and also needed to provide a framework for other reforms.
The new laws include changing the juvenile funding stream to incentivize community placement and the use of evidence-based risk assessment tools at significant decision points, the elimination of all non-restitution juvenile court fines and fees, the expansion of diversion to all but a limited set of offenses and limits on the time spent in diversion, and the expansion of our state appellate public defender to cover state youth appeals.
One key provision would shift financial incentives to provide greater support for community-based programming for youth, so that counties are reimbursed 75% for community-based services, up from the existing 50/50 split between state and counties for all services.[161] Other keystone new laws require adoption of validated risk and needs assessment tools to guide diversion and consent calendar, decisions on detention-screening, development of research-based juvenile probation standards, informed use of the assessment tool before disposition, and court consideration of the results of the assessment when imposing disposition.[162]
An additional set of new laws would expand the Juvenile Diversion Act so that most offenses are eligible for pre-court diversion, base diversionary decisions on the use of a risk screening tool and other factors.[163] A diversion agreement must not exceed three months, unless a longer period is needed for a specific treatment program.[164]
Another series of bills would eliminate nearly all fines and costs for juvenile court,[165] including the cost of court-appointed counsel[166] and cost of out of home placement,[167] and would explicitly bar previously-imposed assessments for diversionary programs, community service, DNA assessments,[168] “minimum state costs,” and other commonly imposed juvenile court fees.[169] One of these bills still provides for restitution and orders that 100% of money collected from a child or family first goes to victim payments.[170] Reforming the state juvenile justice funding structure increased reimbursements to local jurisdictions, alleviating concerns about reduced county revenues from eliminating fines and fees.
While the task force did not propose in-depth changes to waiver and transfer, the one change that was implemented was a requirement that, in assessing the factors for whether a child should be designated to be tried as an adult or waived to adult court, the court “shall consider” the youth’s “developmental maturity, emotional health and mental health,” the juvenile’s amenability to treatment and programming available in the youth justice system, and tribal membership.[171] The bill also eliminated a criticized “catch all” provision that allowed the court to consider under prior delinquency, “including, but not limited to, any record of detention, any police report, any school record, or any other evidence indicating prior delinquent behavior” and replaced it with “record of delinquency that would be a crime if committed by an adult.”[172]
The new laws would also establish a process for handling, investigating, and reporting issues in juvenile facilitates through a newly named Office of the Child Advocate,[173] an independent agency tasked to review actions of the DHHS; create residential facilities providing juvenile justice services; and ensure compliance with relevant law and procedure.[174]
A bill that allowed existing adult appellate indigent defense services to represent youth appealing from their delinquency matters also passed.[175] However, the one proposed reform that was introduced but that did not pass the legislature was the expansion of the adult indigent trial defense system to provide statewide standards and training for youth indigent defense.[176]
While the passage of a groundbreaking set of statutory changes was one finish line, now the hard work begins with implementation. After the new bills, Michigan is looking at (1) structural support, which did not previously exist, for implementing the changes; (2) the next wave of proposed changes in areas where solutions are longer-term and not yet fully developed; and (3) re-examining areas that were recommended but left out of the first package of bills.
To achieve effective implementation, a key task is putting support structures in place for statewide reform. For example, an advisory committee, overseen by staff of the MDHSS, will play a crucial role in supporting the implementation of reforms in Michigan’s juvenile justice system. Tasked with enhancing the Child Care Fund, the primary state funding source for juvenile justice, this Child Care Fund Advisory Committee will help set up a statewide framework of best practices which includes creating the policies and practices to support increasing the reimbursement rate for in-home and community-based services. The committee’s responsibilities encompass revising administrative rules, streamlining the annual budgeting process, overhauling onsite review procedures, and evaluating programs for Child Care Fund eligibility.[177] These efforts are integral to ensuring that funding and support mechanisms are aligned with the broader goals of juvenile justice reform, focusing on rehabilitation and community-based services.
A group to ensure cross-system collaboration and communication for the implementation of the Juvenile Justice Reform Task Force recommendations was also set up. The Michigan Juvenile Justice Partnership Committee, formed through a collaboration between the Michigan Supreme Court and the Department of Health and Human Services, brings together a diverse group of stakeholders, including jurists, court administration, prosecuting and defense attorneys, education professionals, families with lived experience, private agencies, and law enforcement, focused on joint planning and coordination of efforts to fully implement the Task Force’s recommendations and will coordinate with the other existing workgroups and committees focused on implementation.[178]
As mentioned earlier, some of the recommendations were self-consciously aware that the state does not yet have all the information needed given the complexity of the problem. In Michigan, the myriad issues around residential placement are certainly an example of this. The problem is multifaceted. The state should consistently narrow the door to out of home placement, instead of filling our placements with low-risk young people who have committed status offenses and misdemeanors and/or who have behavioral health needs but are not a public safety risk.[179] The state should also create safe placements that provide education, therapy and rehabilitation for our young people, and have adequate trained staff for these residential facilities.[180] And, whereas right now, young people languish in detention centers for months or more waiting for a placement, the state needs a coordinated plan for timely placement of young people.
A few months after the task force recommendations were issued, the governor appointed the Juvenile Residential Facilities Advisory Committee, a two-year group, which, like the task force, contained an array of stakeholders.[181] The committee was tasked with reviewing licensing standards, training and length of stay guidelines, and case management standards, and recommending baseline standards as well as criteria to measure progress.[182]
While this committee was working, Michigan had a series of incidents that re-highlighted the need for change in detention and placement in the detention center in Wayne County, which is Michigan’s largest county. A series of complaints about conditions led to a move to a different facility, but complaints persisted and, in early 2023, a twelve-year-old youth was sexually assaulted and another youth “beaten so badly that he was hospitalized after he blacked out.”[183] The county executive declared a public health emergency at the facility, which was at over two times its capacity. The state took control of the facility in March 2023, ended supervision when the county reduced youth and increased staff, then re-resumed monitoring.[184] State investigators also found that children were denied meals, lacked clean clothes and underwear, and endured feces on air vents for a housing pod for over three months.[185] A few months later, another sexual assault occurred.[186] In October, the facility lost its license and was placed on a provisional license.
This need for continued study and collaboration going forward is to be expected. In some states, the federal Office of Juvenile Justice and Delinquency Prevention funded technical assistance to help implement reforms.[187] As an example, Hawai’i also engaged in continued training, including on mental health, and on its risk assessment tool.[188]
Two recommendations of the task force are, as of yet, not implemented, and are worth further discussion, as they highlight the challenges that remain to systemic reform.
The first is youth indigent defense reform. The task force recommended expanding Michigan’s adult indigent defense commission to “include development, oversight and compliance with youth defense standards in local county defense systems.”[189] Michigan’s indigent defense system for both youth and adults is county-based, but the adult system has a statewide body that promulgates minimum standards, monitors compliance, and provides training and technical assistance.[190] The recommendation would have brought the youth system into that same structure, with attention to developmental and other special considerations for youth. This recommendation was included in the series of bills introduced to the legislature.[191] Although this recommendation passed the state house it did not, unlike the other bills, pass the state senate. Following the legislative session, a number of organizations have advocated for its passage next session.[192]
In contrast with the indigent defense reform, which was widely expected to occur, the state is unlikely to tackle reform around minimum age. Michigan, like about half of the states, currently has no minimum age of juvenile court jurisdiction.[193] While international standards, such as those adopted by the United Nations, put the minimum age at fourteen,[194] U.S. organizations have recommended minimum ages that range from twelve to fourteen years old.[195] In Michigan, the minimum age of juvenile court jurisdiction was recommended to be set at thirteen years old, with exceptions for youth committing the most serious enumerated offenses.[196] A “consensus” recommendation, no bills or other reform actions have yet addressed the lower end of juvenile court jurisdiction.
Both substantively and procedurally, Michigan’s process is representative of those in which significant reforms occur. Procedurally, states have required an intentional reform structure, involving the coordination and expertise of bipartisan think tanks. The technical and research expertise of CSG, or similar organizations, is invaluable. Of course, their knowledge will need to be contextualized for any particular jurisdiction, and each state and local system has its unique challenges. Yet, this non-profit support is essential; states and their relevant departments do not have the capacity to keep up with social science and criminal justice research, expertise in data collection and analysis, or ability as an outsider to work collaboratively with the broad range of stakeholders. Some reforms are outside the capacity of the states to change.[197]
One laudable aspect of Michigan’s recent process that was not strong in many prior reform efforts has been the emphasis on including the voices of people who have been impacted by the juvenile system; people who went through the system as juveniles and parents of youth who were court both involved. The task force included both an “individual who has lived experience as a justice-involved youth in Michigan” and a person with “lived experience as a parent or guardian” of such a youth.[198] The residential advisory committee that followed also included the possibility of a person with lived-experience being appointed.[199] Of the stakeholder interviews and listening sessions held by the task force, four listening sessions were dedicated to hearing the perspectives of court-involved youth and families.[200]
Substantively, many of the reforms in Michigan align with prior reforms in other states,[201] especially the emphasis on evidence-based risk and needs assessments to inform decision-making. Others such as the elimination of fines and fees are ahead of the curve and look toward the future of juvenile justice. And the state still lags behind in other areas. Michigan made strides in the treatment of status offenses, but unlike some states which have eliminated juvenile court involvement for non-criminal acts,[202] Michigan retained status offenses and, while it narrowed the ability to detain or place kids for non-criminal acts, Michigan did not eliminate it. Despite indigent defense being one of the limitations studied prior to our task force, our youth defense system is still currently characterized by a county-based system without any state standards and which provides its staff with lower paid and less training than the adult indigent defense system.
Michigan’s journey through juvenile justice system reform illustrates a steadfast commitment to reshaping a system that is more developmental, equitable, and effective. Through comprehensive analyses and the collaborative efforts of diverse stakeholders, Michigan has laid the groundwork for transformative changes that promise to serve its young people better. It is evident that while challenges remain, the path forward is marked by innovative approaches informed by evidence and community engagement. Michigan’s experience not only sheds light on the complexities of systemic reform but also offers valuable insights for other jurisdictions aiming to undertake similar efforts. Embracing these changes is essential for building a juvenile justice system that upholds the principles of fairness, rehabilitation, and the potential for positive youth development. Michigan’s reform story, though punctuated with trials, stands as an example of progress and a testament to the power of collective action and reformative justice.