A program to give young offenders a second chance is sending many to prison

Warning: This report contains explicit language and graphic accounts of alleged sexual assaults in Michigan prisons. The language and descriptions are included because they are central to understanding the allegations in a lawsuit against the Michigan Department of Corrections.

Judges are increasingly using a program to give young offenders a second chance to instead send them to prison.

John was 15 years old when he was placed in a program that would, after three years, wipe his criminal record clean. David was 16 when he was placed in the same program, known by the statute enacted to give young offenders a second chance, the Holmes Youthful Trainee Act, or HYTA.

Both say they thought that meant they would be on supervised probation.

Instead, the two teens, neither of whom had officially been convicted of a crime, spent three years in a Michigan prison where they say teenage offenders were raped by older prisoners, while corrections officers, trained on the vulnerability of young inmates, made jokes about it.

“It happened all the time,” John, from Macomb County and now out of prison, said of the attacks. “I can still hear the screams at night. It keeps me awake.”

John and David, whose real names are being withheld at their request, are among a virtual explosion of teens incarcerated in adult Michigan prisons for nonviolent offenses in recent years, despite being part of a program primarily used to keep young, first-time offenders on probation as they try to turn around their lives.

Some are among the 11 John Does who are now part of a lawsuit alleging that Michigan prison officials turned a blind eye to the sexual assaults of young offenders, despite department training that acknowledged they are five times more likely to be victims of sex crimes behind bars. Additional HYTA participants who were imprisoned are among about 200 young inmates who have joined the class-action lawsuit.

HYTA “is supposed to give you a second chance,” said David, of Wayne County, who also is no longer in prison. “Second chance? They took all my chances.”

Young prisoner population explodes

The class-action lawsuit, filed in 2013, includes among its claims that prison officials did not do enough to protect young offenders from prison rape and sexual harassment.

Similar accounts in teen prison rape suit pose challenge to state’s defense.

The MDOC denies the lawsuit allegations. While not commenting on the specifics of the case, attorneys from the Michigan Attorney General’s office contend there is no proof that the inmates were assaulted and asserted in court that the juveniles sent to adult prison are not choirboys.

Many of the plaintiffs in the lawsuit committed crimes at age 17 that under state law required them to be prosecuted and sentenced as adults. But the suit also includes teens like David and John in the HYTA program, intended to help young offenders avoid the stigma of a criminal conviction. In the vast majority of HYTA cases, young offenders plead guilty, are put on probation and, if they avoid more trouble, any record of their criminal conduct is expunged. But increasingly, judges are sentencing some HYTA offenders to prison, even for nonviolent offenses.

Consider: There are 74 inmates in Michigan prisons prosecuted as adults who are currently 17 years old, with most convicted of violent crimes, according to the MDOC. But that list is dwarfed by the 359 juveniles and young adults who entered the HYTA program for mostly nonviolent (if still serious) offenses, only to end up in prison. That’s a 10-fold increase from 2003.

HYTA is meant to give the “young and dumb” a second chance, said Ingham Circuit Judge Rosemarie Aquilina, who routinely places young offenders in HYTA and has sentenced some to prison. The designation is available for offenders ages 17-20 (For reasons that remain unclear, John and David, arrested for burglarizing homes, were allowed in even though they were younger than 17.)

The vast majority of HYTA offenders who end up being placed in prison are from just four Michigan counties – Wayne, Macomb and Oakland counties in metro Detroit, and Ingham County, which includes Lansing. They account for 91 percent of the HYTA prison population, according to data provided to state legislative staff by the MDOC.

Prison placements, while allowed under the act, are still a minority. Judges in Wayne County placed about 12 percent of HYTA participants in prison, by far the most likely to do so. The practice in other counties is so rare that the prison data puzzles even veteran defense attorneys.

“I’ve been handling criminal defense work for 30 years, and I can’t think of a time when a client of mine has been given youthful trainee status and was sentenced to prison,” said Doug Mullkoff, a defense attorney in Washtenaw County. “I’m very surprised to learn that’s done.”

HYTA is meant to “take into account the fact that young people whose brains are not fully developed will make mistakes that should not mar their lives,” Mullkoff said. “To put them away in their formative years where they are exposed to individuals who committed a whole array of criminal acts, doesn’t make sense. Incarceration is a drastic bludgeon to use on a person like that.”

Practically speaking, John said, there is no difference between the prison experience of HYTA offenders and other young offenders who are sentenced to prison as adults for what generally are more violent crimes.

“It’s the same cells, the same food, the same numbers on our backs,” John said.

The same targets, too.

‘You’re going to get f---ed’

Teen prisoners “are prettier” in the eyes of adult predator inmates, said T.J. Parcell, who was sexually assaulted as a teen in a Michigan prison, and now is a nationally known advocate for prison rape prevention. “Their skin is soft. They look more androgynous. They’re using them as surrogates for women.”

According to the claims of several HYTA participants in the current Michigan lawsuit, prison rape was a joking matter to some corrections officers.

“When they did a strip search when I got there, (the corrections officers) said, ‘Better keep those ass cheeks tight – you’re going to get f---ed,’” John recalled of his time at the Thumb Correctional Facility. “I was 15, I didn’t know what they were talking about.”

John and David both say they saw teens getting sexually assaulted. “They’ll look at you for help but what are you going to do?” David said. “Are you going to get raped, too?”

Michigan is one of only nine states where 17-year-olds are automatically prosecuted as adults.

Aquilina, the Ingham County judge, said she knows the dangers of putting teens in adult prisons. “We don’t know what to do with juveniles in prison,” Aquilina said. “Sentencing them to prison is putting a mouse in a snake cage.

“I don’t believe in throwaway people,” Aquilina said. “And I especially don’t believe in throwaway juveniles. They’re already in prison. Why are they being treated badly every day? We’re supposed to be a civilized society.”

Besides the moral argument for stopping the sexual assault of young prisoners, there is an economic case for greater enforcement. In 2009, Michigan agreed to a $100 million settlement in a similar class-action lawsuit brought on behalf of women prisoners who claim to have been sexually assaulted by male prison guards.

Rape allegations by young inmates, whether sentenced as adults or through HYTA, “create such vulnerability to taxpayers,” said Parcell, the rape-prevention advocate, “because it shows deliberate indifference” to the teens’ safety, the tough standard plaintiffs must meet to prevail in the lawsuit.

Conditions improving

Aquilina said she believes the Michigan Department of Corrections has made great strides in protecting teens in prison in recent years. To meet the guidelines of the federal Prison Rape Elimination Act, young inmates are now separated by “sight and sound” from adult prisoners in the Thumb Correctional Facility, where all male HYTA participants are now housed.

Aquilina said she has sentenced some HYTA youthful trainees to prison in recent years, and has received thank you letters from them saying how much they appreciated they HYTA status. She visited the Thumb’s HYTA unit about a year ago and said she was impressed.

Former HYTA participant John said that conditions improved at the Thumb Correctional Facility between the time he entered the prison in 2009 and the time he left in 2012. PREA guidelines segregating teens from older inmates were fully implemented by October 2013.

A package of bills recently passed by the House and now awaiting a hearing in the state Senate might decrease the number of HYTA participants in Michigan prisons. Among the provisions in the bills: the maximum prison sentence for HYTA participants would be lowered from three years to two. The package would also further limit the criminal charges for which HYTA participants could be sentenced to prison, and create an option that combined prison or jail time with probation.

“The goal is to reduce the number of incarcerated youths,” said bill sponsor Marcia Hovey-Wright, D-Muskegon. “The longer offenders can stay in their own community, I think the better.”

An early draft of the bill eliminated HYTA prison sentences altogether, Hovey-Wright said. But that bill met objections from county officials, she said, because counties would have to pick up part of the tab for keeping youthful trainee inmates in county jails or on probation (HYTA participants in state prisons are the financial responsibility of the state).

Former Rep. Joe Haveman, R-Holland, was Lansing’s leading prison and sentencing reform advocate before leaving the legislature in December because of term limits. He said he believes that prison does more harm than good for most young offenders.

“Some of this problem would go away if we just incarcerated fewer, especially fewer juveniles,” Haveman said. “We need to fix kids earlier, and fix them on the outside rather than the inside, in better, less expensive ways with less liability for the state.”

Broken trust, broken lives

Those potential reforms come too late for John and David, who say they have been unable to hold a job since their release because of the trauma they experienced in prison.

John can’t stand being in crowds. David is uncomfortable even being around some of his family.

Both said they push their beds as close to windows as possible at night so they feel they have a way to escape. John said he drinks alcohol a lot to calm his nerves. David smokes pot daily.

What will they be doing in 10 years?

“I honestly think I’ll be a bum,” John said. “I’ll be struggling just like my parents. I’ll never be able to get a job that pays more than minimum wage.

David thinks a lot about what he will tell his children about his teen years, when instead of “studying math and going to gym class, I was worrying about how to avoid getting raped.

“It was my fault, I chose the actions I did,” David said of the crime that landed him in the criminal justice system. “But why did they have to put me in there?”

“They could have put us someplace else,” John chimed in. “What the f--- does that (wiping his criminal record clean) matter now? You (expletive) took my goddamn life.

“I don’t know what happened to me,” John said, staring at the conference table in his lawyer’s office. “I just hope it doesn’t happen to anyone else.”