By Lexi Wung
Associate Editor, Vol. 26
I joined the Juvenile Justice Clinic as a student attorney during my fourth semester of law school. Immediately I dove into the intricacies of the juvenile justice system in Michigan, my client’s individual cases, and the realities of converting law school doctrinal classes into usable skills.
Many aspects of the clinic experience took me aback in my first few weeks. The influx of cases, the duration of matters, the overwhelming number of clients of color. In lieu of class a month into the semester, we attended a symposium titled “Juvenile Justice in Michigan: What’s Next?” Keynote speakers discussed the background and outcomes of an assessment regarding access to and quality of juvenile defense counsel in Michigan. The presentation was a necessary reminder of the barriers in the juvenile justice system and opportunities for change.
Michigan’s Juvenile Justice System Statistics
In Michigan it can be easy to get caught up in the physical numbers of juvenile arrests and charges by race. In 2019 there were 7,286 juvenile arrests, where juvenile is defined as individuals aged 10-16. There were 11,829 juveniles referred to juvenile court (capturing juveniles who were not arrested but faced potential charges). There were 6,685 referrals of white youth to juvenile court and 4,193 referrals of black youth to juvenile court. By sheer volume alone it would seem as though police and other referring bodies are not implicitly biased as to who they arrest and refer for juvenile crimes. But the numbers alone are not compelling when viewed in context of juvenile populations in Michigan as a whole. White juveniles make up 69% of the total juvenile population, yet only 58% of juvenile arrests and 57% of total referrals to court. Black juveniles make up only 17% of the total juvenile population yet make up 39% of juvenile arrests and 35% of total juvenile referrals to court. It is clear based on this data that the juvenile justice system in Michigan is racially biased.
After a juvenile is arrested or referred to the court, the prosecuting attorney reviews the evidence and decides whether or not to submit a petition to the court. A petition is filed on the formal calendar (docket) if the court determines that the interests of the public or the juvenile require that further action be taken. The judge then reviews the petition and determines whether to proceed with the filing of formal charges, whether to dismiss the petition altogether, or whether to divert the case through informal proceedings like a consent calendar that result in no formal adjudication. It is important to note that the filing of a petition is left to prosecutorial discretion. In Michigan in 2019, 53% of total cases petitioned were for white juveniles, and 38% were for black juveniles, meaning that prosecutors sought a petition in only 58% of the total white juvenile court referrals, but 68% of the total black juvenile court referrals. The formal filing of a petition by a prosecutor (and resulting approval by a judge) means that a record is created for a juvenile that cannot be removed, even with a later expungement or set-aside. Thus, the prosecutorial discretion in these filings can have a large impact on the juvenile’s life, regardless of how the case ends.
I thought back to my cases in the clinic and my interactions in court up to that point. Often, I was left wondering why my clients were in the positions they were in with the charges levied against them. My clinic partner and I spent hours meticulously drafting what we might say to the judge, our responses to questions and inquiries. But at the root our cases were built not around the judge’s future decisions (although important), but around the charges that the prosecuting attorney had filed. I questioned how the juvenile justice system could target not only the outcomes in court for clients, but the prosecutorial decisions that lead to formal court adjudications in the first place.
Addressing Implicit Bias
Three days after the juvenile justice symposium I began my readings for another course I am taking this semester: Emerging Issues in Poverty Law. We were given an article titled “Working Toward Equal Justice: Addressing the Challenges of Implicit Bias, Racial Anxiety, and Stereotype Threat for Legal Aid Lawyers.” The article detailed how implicit biases can impact all aspects of the justice system and how lawyers can measure implicit biases. Separate research on implicit bias shows that individuals can seek to be fair and just, but their decisions and behaviors can still be biased by their unconscious beliefs and processes. Relevant to the criminal justice system, a study of the Manhattan District Attorney’s Office found that “in the exercise of discretion at every level from case screening, bail recommendations, charging, and sentences in pleas, black defendants were subject to more severe outcomes compared to similarly situated whites.”  It is clear that implicit biases impact every element of the criminal justice system – but what can be done to confront them?
What caught my attention most was a section identifying possible interventions for implicit bias in the legal profession. The author suggests that attorneys “must expand the set of positive pro-social interactions in order to begin a process of bias reduction.” I agree. It is not enough to identify bias (although a necessary starting point) – the legal system must address the biases. The article outlines research by Kirsten Henning discussing how individuals can overcome implicit bias when they are made aware of the stereotypes and biases they have and utilize mechanisms to correct their biases. Further research expands on necessary interventions for bias reduction and bias override. Experts suggest the most effective bias reduction strategies require a series of steps to “break the prejudice habit.”
One method of self-correction that stood out in the article was as simple as checklists. When prompted by “thoughtful reflection, scrutiny, and reasoning efforts regarding the rationale for decision-making,” individuals can self-correct for bias. In order to be effective, this process should be “routine, systematized, and intentional.” Research conducted by the Brennan Center for Justice found that judicial bench cards (a formal name for the checklists mentioned above), can reduce implicit bias through this reflective process. An example judicial bench card can be found here. But bench cards for judges alone are not enough, and I propose the inclusion of prosecutorial bias checklists for every juvenile court petition. An example prosecutorial checklist can be found on page 4 of this article.
By questioning prosecutors with the inclusion of implicit bias questions like “imagine how one would evaluate the defendant if he or she belonged to a different, non-stigmatized group,” the prosecutor is confronted with the possibility of bias and an objective check in the reasoning process. Other example boxes on the checklist relate to whether alternatives to a formal petition may be a better option, whether and when the defendant needs to have an attorney present, and questions relating to the general process for specific hearings.
Although a small step (and to be done in combination with implicit bias training), prosecutorial bias checklists could help to confront implicit bias through a simple, routine, systematized, and intentional process. The statistics are clear, more needs to be done to confront racial disparities in the juvenile justice system.
 Juvenile Justice in Michigan: What’s Next?, SATO (Feb. 11, 2021), https://us02web.zoom.us/rec/play/EAWhKcEVxT2DNwh-BUIlfbXvbt6oyc83S7fX5EeJNM8QjfcSpX-tB-6hnxhXivitO6twcMMWEOnJli-w.Jd1OdaHUXJ60aiNX?continueMode=true&_x_zm_rtaid=FupqlxWZSSOImo2K4k5O4w.1615137408828.c969311cb6571085412a202055ab2aea&_x_zm_rhtaid=48.
See Michigan Racial and Ethnic Disparities Data, Michigan Committee on Juv. Just. (2019), https://michigancommitteeonjuvenilejustice.com/michigan-data/socio-demographic-data.html.
 See Lars Trautman, How a Checklist Could Improve Prosecution, R Street (July 2020),
 Kim Tandy et al, Overdue For Justice: An Assessment of Access to and Quality of Juvenile Defense Counsel in Michigan, Nat’l Juv. Defender Center (2020), https://njdc.info/wp-content/uploads/Michigan-Assessment-Web.pdf.
 Navigating the Juvenile Justice System, Ass’n for Child. Mental Health, http://www.acmh-mi.org/get-help/navigating/the-juvenile-justice-system/ (last visited Feb. 7, 2021).
 See Trautman, supra note 4.
 See Michigan Racial and Ethnic Disparities Data, supra note 2.
 See Juvenile Records Fact Sheet, Juv. Law Center (2014), https://juvenilerecords.jlc.org/juvenilerecords/documents/publications/factsheet-MI.pdf.
 Rachel D. Godsil & Dushaw Hockett, Working Toward Equal Justice: Addressing the Challenges of Implicit Bias, Racial Anxiety, and Stereotype Threat for Legal Aid Lawyers, Mgmt. Info. J. (Spring 2018), https://mielegalaid.org/system/files/dl/ImplicitBiasLALawyersGodsilHockett.pdf.
 See id.
 See Rachel D. Godsil & Hao Yang (Carl) Jiang, Prosecuting Fairly: Addressing the Challenges of Implicit Bias, Racial Anxiety, and Stereotype Threat, CDAA Prosecutor’s Brief (Winter 2018),
 Id. at 146.
 Godsil & Hockett, supra note 10, at 29.
 Godsil & Jiang, supra note 12, at 149.
 Godsil & Hockett, supra note 10, at 29.
 See Juvenile Justice Bench Cards, The Supreme Court of Ohio, https://www.supremecourt.ohio.gov/JCS/CFC/resources/juvenileBenchCards/juvenilebenchcards.pdf (last visited Feb. 7, 2021).
 Trautman, supra note 4, at 4.
 Godsil & Hockett, supra note 10, at 29.