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Opinion: Teenager jailed over probation violation should enrage conservatives

This July, Judge Mary Ellen Brennan of Oakland County came under fire for deciding to detain a 15-year-old, referred to as Grace in early reporting, for not completing her schoolwork and thus violating a condition of probation. The public frustration is just: The case presents a prime example of how probation so often promotes government overreach and leads to incarceration. Conservatives should be outraged and quick to rethink probation policy.

At face value, detaining a teenager for missing schoolwork, pandemic or not, is nonsensical. Detention interrupts school enrollment and classwork, and the quality of the educational system behind bars is often lacking, to say the least. In the first few weeks of Grace’s detention, she was provided school coursework but no teaching — remote or in-person. It’s far from surprising that research suggests juvenile incarceration significantly reduces high school completion rates.

Yet, the problematic nature of detaining Grace only grows when taking the pandemic into consideration. To begin with, Grace’s struggle to initially adjust to online learning at home is hardly exceptional. Her own teacher noted that her actions were “not out of alignment” with the rest of her class. Not to mention, Grace, who has ADHD and a mood disorder, was not receiving the typical services offered as part of her Individualized Education Plan (IEP) due to the switch, according to her mother.

Her adjustment should have been handled with empathy and connections to services, not quick judgment. Indeed, youth probation officers in other states have been quick to proactively work with families to more productively respond to problematic behavior in ways that don’t rely on incarceration.

Unfortunately, Grace is very likely not the only Michigan youth locked up without any true public safety rationale. In 2017, 22% of young people held in juvenile residential placements in Michigan were there for a technical violation — actions which do not connote crimes in and of themselves, and can range from anything from missing a check-in with a probation officer to skipping curfew.  

Incarceration is the ultimate restriction of liberty and, during COVID, a direct threat to both individual and public health. To use incarceration other than in cases in which there is an imminent threat to public safety is government overreach, plain and simple. For this reason, the courts like Ottawa County in Michigan have been actively working to release youth held for technical violations during COVID. And Gov. Gretchen Whitmer issued an executive order temporarily halting the incarceration of young people for probation violations in absence of a court order.

According to Judge Brennan, Grace’s original charges of assaulting her mother and stealing a classmate’s cell phone made her a public safety threat and warranted detention when she violated probation. Yet this notion contradicts the reality that Grace had committed no new criminal acts since the original charges, or had any serious altercations with her mother. Rather, mother and daughter had been in therapy, and Grace had complied with her other probation requirements. She had even been more diligent with her schoolwork since the violation was filed.

Moreover, research lends support to the idea that incarcerating young people for technical violations can actively damage rather than help public safety. Recent studies suggest juvenile detention can actually increase the likelihood that young people commit crime and are reincarcerated as an adult, and, can significantly increase the likelihood of short-term felony and misdemeanor recidivism.

For all these reasons, conservatives should work to eliminate or, at a minimum, greatly restrict the use of incarceration in response to technical violations of probation. While the preliminary movement away from this trend during COVID is beneficial, without permanent legislative policy change cases like Grace’s will continue to exist.

Young people will continue to filter into detention spaces for age-appropriate, non-criminal behavior, potentially exacerbating their risk for dropping out of high school and committing crime in the future. The principle of limited, effective government will be breached, and basic human dignity and the realities of adolescent development will be devalued. 

Incarceration should be used sparingly for cases in which real public safety rationales exist, not for treatment services, for cases of missed homework or because of a judge’s “zero tolerance” mindset.

Emily Mooney (@emilymmooney) is a resident criminal justice policy fellow at the R Street Institute.

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