Grace Should Have Been Shown Grace, Not Scorn
By: Jill Creech Bauer
Tags: Justice, Criminal Justice Reform, Equality, BlackLivesMatter, Criminal Justice

An attorney’s reaction to locking up a teen who didn’t do her homework

Photo by Bryan Minear “Sillouette of Statue of Liberty”

I have never been an observer in Judge Mary Ellen Brennan’s courtroom, but media reports of her remarks during a recent hearing in Oakland County, Michigan involving a girl named Grace (a pseudonym) sounded all too familiar. I served as a parent defense attorney in Michigan for nine years. My child welfare cases (involving allegations of parental abuse or neglect) were scheduled on the same day as the juvenile criminal cases. Though I didn’t often represent juveniles, I observed the court experiences of many.

There are common destructive threads in court attitudes toward members of indigent families who appear in court in many states — be they juvenile defendants or accused parents. I will save a detailed assessment of the treatment of accused parents for another article and focus on juveniles in this one. The routine response to juveniles like Grace that pervades court systems like Michigan’s must be eliminated — improving juvenile court policies is a critical component of criminal justice reform if we hope to eradicate systemic racism and classism.

If you have not heard Grace’s story, she is fifteen years old, Black and indigent. Judge Brennan ordered that Grace be placed in a youth detention center in May because she was not completing her online school assignments while on probation. Grace has an IEP — an individualized education plan — to address her special educational needs. Grace’s school closed in response to Covid-19 at the same time that Grace started her probation. The school had not even fully figured out how virtual school would work. Grace had trouble adjusting to online learning. According to her teacher, Grace’s under-performance was no different from that of her classmates.

Grace’s criminal charges stem from an argument where she pulled her mother’s hair and bit her finger. A week later, Grace was caught stealing a classmate’s cellphone. These incidents happened in early November of 2019. The court did not address them until April 21, 2020. The judge treated Grace as though her behavior was fresh, even though Grace has not caused any trouble in the five months since the incidents occurred. Furthermore, Grace had been faithfully attending counseling with her mother twice a week.

On April 21, the first time Judge Brennan saw Grace, Brennan took a threatening stance toward the youth, apparently ready to place her in detention immediately. I would guess that the only reason Grace was not initially detained is because the governor of Michigan had issued a Covid-19 directive that only the most dangerous of juveniles be detained. Grace should have been given a fresh start on that day since it was the first time that she was under court order to accomplish her probation goals, but the judge threatened that her probation would be “zero-tolerance.” The hostility in the judge’s stance was inappropriate given that Grace is a teenager who had shown continued improvement as she waited for the untimely processing of her criminal case. She had given the judge no reason to believe that she would not comply with probation.

Grace was deemed to be in violation of her probation a mere two weeks later. Grace’s mother, wrongly assuming that the probation officer was there to help Grace, mentioned to the officer that Grace was not keeping up with her homework. Grace said that she was feeling overwhelmed. The officer told Grace’s mother that “a child is not going to be perfect and that teenagers aren’t always easy to work with but you have to give them the opportunity to change.”

Five days later, the same officer violated Grace’s probation. The officer never spoke to Grace’s teacher before requesting a court hearing. She would have discovered that Grace had not been given firm deadlines to complete assignments, so the assertion that Grace was not completing her work as assigned was not accurate.

Violating a juvenile after two weeks of probation for such a minor issue is absurd, especially when the consequence is juvenile jail — and more than that, juvenile jail in the midst of a pandemic. The fact that Grace had not engaged in any combative behavior in six months was much more relevant, but not to Judge Mary Ellen Brennan. Grace was taken from the courtroom in chains and sent to juvenile detention after a hearing where the sole problem was a failure to complete homework while Grace’s teacher did not testify; Grace’s release would not be reviewed until early September, after the school year had begun.

At the May probation violation hearing, the judge cited Grace’s failure to get up and do her homework as the basis for locking her up. She called Grace a threat to the community on the basis of the six-month-prior assault and theft charges — circumstances that were known to the judge on April 21 and that remained unchanged. Grace had not engaged in any further threatening behavior when she was taken from the courtroom in shackles. Judge Brennan exhibited a casual willingness to shame this child: “Police. Most people go through their entire youth without having the cops have to come to their house because they can’t get themselves together.”

This statement might be true in affluent Oakland County, but not, as the judge suggests, because of anything inherently wrong with Grace. Grace’s police contact and treatment are tightly tied to her race and socioeconomic position. The children of people in Judge Brennan’s privileged social circles would never face the scrutiny that Grace faced because those children’s problems would have been handled in a different way.

Grace attends a posh predominantly white Birmingham high school. Her single mother works for a non-profit. I feel confident in saying that if Grace had been one of her affluent white classmates, she would have never been brought to court for what amounts to acting out, especially considering Grace’s special needs. It is unlikely that the mother of the student whose phone was taken would have insisted on pressing charges, especially since the phone was immediately returned in good condition. The school would have handled the theft without police involvement. If Grace’s white counterpart had somehow found herself going to court, it is unlikely that the judge would have violated her probation under these conditions.

Rai LaNier of Michigan Liberation notes that there are resources in Oakland County for children with learning disabilities, but they do not go to Black children. “A lot of Black children get their introduction to the criminal legal system through school, through [juvenile] detention, through the police getting involved because they have no other place to go. Parents of Black students are starting to ask themselves, ‘How do I make sure my children get the support they need so that it doesn’t end in my child starting to have a criminal record?’”

Once Propublica reported Grace’s story, her incarceration caused a national outcry and the judge herself was subject to scrutiny. Judge Brennan scheduled another hearing on July 20, but the purpose of that hearing was to substantiate how correct the judge believed herself to be. She would not allow testimony by Grace’s teacher. She insisted that Grace was not detained for failing to do her homework but because of her threatening behavior toward her mother. Courts run on evidence. Where was the evidence that any threat had emerged between April 21 and the May probation violation hearing?

The real reason for the July 20 hearing was that Judge Brennan needed to fix her remarks so that her rationale for locking Grace up was consistent with the governor’s order that juveniles who violate probation should only be detained if they pose a “substantial and immediate safety risk to others.” She failed to remedy this problem.

When Judge Brennan chose to continue Grace in detention on July 20, in spite of a glowing report from the facility, she said, “You are exactly where you need to be.” What I read into this, based on my experience with the cynical, paternalistic family court judges that I frequently encountered, is that detention is exactly where Black youth should be warehoused, regardless of the merit or timeliness of the court’s decision.

Grace mentioned that the court told her that her removal from the courtroom in shackles and subsequent incarceration was not punishment, but Grace said that it felt like punishment. At the facility, she sleeps on a thin mattress on a concrete slab. She is locked in her room twelve hours a day. These are prison-like conditions that are completely acceptable to Judge Brennan, at the same time that she insists that she is not punishing Grace. This is a key example of the gaslighting that Michigan judges engage in with the people in front of them and with themselves. It is clear from the few comments the judge made that she is in fact punishing this girl.

Michigan juvenile detention centers are demoralizing places. Occasionally, when I represented mothers whose children were in foster care, if the state couldn’t find a foster family for a child who was removed from a parent’s home, that child would be placed at the very detention center where Grace is being held. These foster children would arrive at court IN SHACKLES. Foster kids — who have not in any way caused themselves to be placed in a juvenile detention center — were brought into the courtroom IN SHACKLES. When one child’s attorney came undone as she watched the fourteen-year-old foster child whom she represented arrive in chains, the guards defended their use of restraints as making their job easier because then they didn’t have to worry about losing the child. By the way, in case you were wondering, that child was Black too.

Another Michigan child made the news in July of this year for being killed in detention. Video of the incident shows that sixteen-year-old Cornelious Frederick was swarmed by seven adults and restrained to the point of death. A nurse was in attendance as he screamed “I can’t breathe” for eight minutes. What did Cornelius do to deserve this attack? He threw a sandwich. The footage of this incident revealed to me that the treatment of this young man was business as usual for facility staff. There was no hesitation in taking this child down to the floor for a minor violation. What is surprising is that these kinds of deaths don’t happen more often. What is not surprising is the obvious fact that the people who killed Cornelius did not see him as a child, or even a fellow human being.

Aside from the punitive atmosphere of Grace’s jail, she has not received any professional instruction to complete her HOMEWORK. She is falling further and further behind academically. She is receiving counseling twice a month. She and her mother were attending counseling twice a week before Grace was locked up. Michigan judges send kids to “programs,” like the one that Grace was sent to, knowing that they are junk, but not caring that they are junk, because the purpose for the detention is to punish, not help, the child.

Juvenile detention, in and of itself, harms children and increases the likelihood that the kids will commit future crimes. It solidifies their view of themselves as criminals and functions like a finishing school for becoming better at committing crimes. Studies show that punitive court action against juveniles does more harm than good. Why? Because the human brain does not fully form until the age of 25. Negative pathways can be reinforced before the brain finishes developing. Brain research has revolutionized expert views of juvenile offenders, but the news has not reached states like Michigan.

There are better models than Michigan’s. On July 1, 2018, Utah revolutionized its juvenile court system. Juvenile offenders cannot be locked up unless their crime fits a limited range of offenses — murder, rape, armed robbery or violent crimes involving weapons. Juveniles who displease a judge during the pendency of a case can only be locked up for 72 hours if found in contempt of court. In Utah, Grace would have had to commit her crimes four times and failed to comply with probation before she ever saw a judge. Her case would have been handled outside of a courtroom by a supportive probation officer. Utah has a court rule that juveniles can only be shackled — and it is rare — if they pose a threat of physical injury or are a flight risk.

Instead of harsh punishment, juvenile offenders in Utah receive intensive probation services that have a positive focus. Youth participate in cognitive behavioral therapy. The goal is to meet the youngster’s needs and replace poor decision-making skills with positive intellectual tools. Instead of receiving a night in lock-up, probationers might receive the eyeglasses or shoes or coat that they need as a result of court involvement. All fines and costs are based on family income. It is too soon to compile statistics to prove the validity of this radical overhaul, but the Utah system is aligned with research and best practices. It is likely to produce better outcomes for youth like Grace than Judge Brennan’s plan of action.

I don’t live in Michigan anymore. Moving away allowed me to see another court system in action. Observing a well-functioning court revealed to me how broken Michigan courts are, especially when it comes to entrenched systemic racism and the absence of a quality judiciary that implements “best practices” based on research. Michigan is a state where many judges get appointed based on political connections rather than merit; they retain their seats through popular elections because of an incumbency designation. This does not result in Michigan’s best legal minds sitting in judgment of the citizens who filter through their courtrooms.

I currently live in Utah, a place that is broadly considered to have one of the best state court systems in the country. The structure and practices of the Utah courts should be more universally adopted. In Utah, becoming a judge is a highly competitive, merit-based process. Judges are not popularly elected. They are selected by panels made up of lawyers and community leaders. They must prove that they have superior qualifications in order to get their jobs.

Utah judges are carefully monitored. Every two years, the Judicial Performance Evaluation Commission (JPEC) sends out anonymous surveys to the public and court personnel. The responses are taken seriously. A judge’s record of quality decisions is considered, but their review goes beyond that. Mistreatment of people is unacceptable, including the treatment of juveniles like Grace. Additionally, Utah judges undergo retention elections every six years. Reports of bad behavior made to the Judicial Tenure Commission are not brushed aside. Utah judges know that they exist to serve the community. In contrast, it is nearly impossible to remove an incompetent judge from office in Michigan.

The quality of Utah’s judiciary provides a stark contrast to what I observed in Michigan. Judicial vacancies in in Michigan courts are routinely filled by the most politically-connected candidate. Judges are regularly appointed to divisions of the court where they have never served as an attorney. They come into office lacking a fundamental understanding of the cases they will judge. Such a thing would never happen in Utah.

Another component of the Utah system that should be replicated is the existence of a designated Juvenile Court. In Michigan, juvenile criminal and child welfare cases are the “ugly step-children” of family courts. Judges who hear these cases spend most of their time hearing divorce and custody cases, which are exceedingly adversarial. Juvenile criminal and child welfare cases are supposed to be adjudicated more collaboratively. Michigan judges are not able to smoothly transition between the two modes.

Juvenile judges in Utah have all come up through the juvenile trial system. They have either served as prosecutors, guardian ad litem or parent attorneys. Someone without the experience of practicing law in juvenile court would never be appointed as a juvenile judge in Utah. Once they are seated, judges are required to take thirty hours a year in relevant training so that their knowledge of research remains up-to-date. Their entire docket deals with children who are either the subject of child welfare investigations or who have been accused of breaking the law. Their approach to their cases is derived from research-based best practices. They are experts in their work.

Since Michigan’s governor ordered that juvenile detention rates be decreased, Oakland County sent 24 juveniles to detention. More than half of them were Black youth, though Black youth only make up 15% of the youth population in Oakland County. A recent statewide report found that Black youth in Michigan are incarcerated four times as frequently as their white peers.

Brennan posed this question at the July 20 hearing. “How many times does [Grace] get to jump her mom before you think that she’s a threat of harm to her mom?” I am happy to answer the judge’s question — at least one more time. As long as Grace was substantially following the rules, she should have remained at home. In Utah, the court would have kept her home and provided her with more resources so that she would be able to complete her homework.

When Brennan responded to the report the facility had prepared about Grace on July 20, she said, “When I read this report, this is as good as it gets. … This is excellent. She is on point, she is doing well, she is engaged,” but Brennan did not reward Grace in any way. Brennan ended cynically. “The worst thing I can do is say you are doing great, now let’s get you home and watch the whole thing blow up.”

Judge Brennan showed she is unfit to properly assist the youth in her court. She should be removed from office. She would be removed in Utah. But there are clones of her all over the state of Michigan, and all over the country, in places where judges are politically appointed and popularly elected. State court systems nationwide need to be rebuilt from the ground up, replacing political appointments of judges with merit-based systems and rewriting juvenile justice laws to conform with research. This will ensure that kids like Grace are treated with grace, not scorn.