Proposed Hate Crime Act 1

Michigan Family Protection and Ethnic Intimidation Act

Discussion draft, drafted for introduction under a Jones for Michigan administration. Before formal introduction, it should be reviewed by the Legislature's own bill-drafting counsel (the Legislative Service Bureau) to confirm current statutory citations and conform to standard drafting conventions.

This model bill adds a single, narrowly defined offense to Michigan's existing Ethnic Intimidation Act (MCL 750.147b): the race-motivated removal or termination of a Black parent's parental rights by a state actor, carried out without the due process finding of abuse that Michigan law and the U.S. Constitution already require before a family can be permanently separated.

This bill does not lower Michigan's child-protection standards. Every properly documented finding of abuse under existing law remains fully enforceable, and children in genuine danger are still removed. What this bill targets is the failure, motivated by race, to actually do that finding — the shortcut that has fallen disproportionately on Black families for longer than Michigan has existed as a state.

Section 1. Legislative Findings

The Legislature finds all of the following:

(a) Slavery. From 1790 to 1865, the domestic slave trade forcibly sold more than one million enslaved people away from their families. Roughly half of all people sold were separated from a spouse or a parent, and about one in four of those sold were children. In South Carolina, half of all enslaved sales took place through court proceedings; in Missouri, 30% of the enslaved people sold by courts were younger than 15 years old. (Equal Justice Initiative) Economic analysis of nineteenth-century slave markets found "no evidence that slave owners valued the integrity of the entire slave family," and traders routinely avoided buying enslaved families together because there was no market demand for it. (Wikipedia, Family separation in American slavery) Under the law of Michigan and every other state at that time, an enslaved or formerly enslaved Black parent had no legally recognized parental rights at all.

(b) The Black Codes. After emancipation, several states used "apprenticeship" and orphan-court statutes to bind Black children to white masters, frequently without the consent of the children's parents and over their explicit objection. In 1867, U.S. Chief Justice Salmon P. Chase, ruling on behalf of Elizabeth Turner, a Black child bound out under Maryland's apprenticeship law, found the practice was "merely an extension of the prior enslavement" and struck it down as a violation of the Thirteenth Amendment. Maryland courts had begun apprenticing Black children under this scheme within days of the state abolishing slavery in 1864. Following the ruling, more than 110 similar apprenticeships were invalidated, and by the summer of 1868, over 90% of the Black children held under these arrangements in that jurisdiction had been released. (Wikipedia, In re Turner) Versions of these laws remained in use in parts of the country for years afterward.

(c) The war on drugs. In the 1980s and 1990s, hospitals and prosecutors disproportionately targeted Black mothers, rather than white mothers, for prenatal drug exposure despite comparable rates of drug use across racial lines. At the Medical University of South Carolina, research found that 15.4% of white women and 14.1% of Black women used drugs during pregnancy, yet Black women were ten times more likely to be reported to law enforcement; of the 30 women arrested under the hospital's testing policy, 29 were Black. The U.S. Supreme Court ultimately struck the policy down in Ferguson v. City of Charleston (2001) as an unconstitutional warrantless search. (American Medical Association Journal of Ethics) This same pattern — Black families facing removal proceedings triggered by conduct that went unreported in white families — repeated itself in the child welfare system that followed.

(d) Modern child welfare disparities, nationally. These patterns have not ended. An estimated 1 in 10 Black children in the United States will be separated from their parents through the child welfare system at some point during childhood, and 53% of Black children will be the subject of a child welfare investigation by the time they turn 18; in some major American cities, 60% of Black children have had contact with child welfare authorities. Nationally, only about 17% of children removed from their homes are removed because of an allegation of physical or sexual abuse; most removals are for "neglect," a category that frequently reflects poverty — inadequate housing, lack of childcare, or the inability to afford utilities — rather than danger to the child. (TIME, interview with Prof. Dorothy Roberts)

(e) Michigan. These disparities are present in Michigan's own child welfare system today. Black children in Michigan live in households investigated for abuse or neglect at 1.6 times the rate of white children, and enter Michigan's foster care system at 1.3 times the rate of white children. Black youth in Michigan's foster care system are 2.3 times more likely than white youth to "age out" of the system without ever being reunified with their families. (Joint Center for Political and Economic Studies)

(f) Conclusion. For nearly 400 years, Black parents in what is now the United States have faced the forced separation of their families through mechanisms that changed their legal form — sale, apprenticeship, disparate policing, disparate reporting, disparate removal — while the underlying pattern persisted: the state, or an actor exercising state power, breaking apart a Black family without the individualized, evidentiary finding of danger to a child that due process requires. Michigan law already requires a court finding of abuse, neglect, or an equivalent statutory basis before parental rights may be terminated. See MCL 712A.19b. The people of this state are entitled to know that when a Black parent's family is separated without that finding having actually been made, and race was a motivating factor, that is not merely an administrative or procedural failure. It is a continuation of a specific, documented historical practice, and the Legislature finds that the law should name it as such.

Section 2. Definitions

As used in this act:

(a) "Due process finding of abuse" means a finding, made by a court of competent jurisdiction after notice and an opportunity to be heard, supported by the standard of proof required under MCL 712A.19b or its successor provision, that a parent has abused or neglected a child, or that another statutory ground for termination of parental rights has been established by clear and convincing evidence.

(b) "Parental rights" means the legal rights of a parent to the custody, care, companionship, and control of the parent's child, including the right to make decisions concerning the child's education, medical care, and religious upbringing.

(c) "Removal" means the physical removal of a child from a parent's custody, whether temporary or permanent, including placement in foster care, kinship care, or another out-of-home placement.

(d) "Termination" means the entry of an order permanently severing the legal relationship between a parent and a child, including an order terminating parental rights under MCL 712A.19b or a comparable provision.

(e) "State actor" means an employee, agent, or contractor of the state of Michigan or a political subdivision of the state, acting under color of law, including but not limited to an employee of the Michigan Department of Health and Human Services, a child protective services worker, a court officer, a guardian ad litem, or a law enforcement officer.

(f) "Race-motivated" means that the actor's race, color, or perceived race or color of the parent or child was a substantial motivating factor in the actor's decision to remove a child, or to seek or grant termination of parental rights, as shown by direct evidence, statistical evidence of disparate treatment, a pattern or practice, or other circumstantial evidence.

(g) "Without a due process finding of abuse" means that a removal or termination occurred, or was sought, in the absence of a due process finding of abuse as defined in subdivision (a), including a removal or termination based solely on poverty, housing instability, or a parent's disability, where no separate finding of abuse or neglect endangering the child was made.

Section 3. Offense; Ethnic Intimidation

(1) The Michigan Penal Code, 1931 PA 328, MCL 750.147b et seq., is amended by adding section 147d, to read:

"Sec. 147d. (1) A state actor who, acting under color of law, causes or knowingly participates in causing the removal of a child from a Black parent, or the termination of a Black parent's parental rights, where both of the following apply, is guilty of ethnic intimidation under this act:

(a) The removal or termination was race-motivated, as defined in section 2 of the Michigan Family Protection and Ethnic Intimidation Act.

(b) The removal or termination occurred without a due process finding of abuse, as defined in section 2 of the Michigan Family Protection and Ethnic Intimidation Act.

(2) This section does not apply to a removal made on an emergency basis to prevent imminent harm to a child, provided that a due process finding of abuse is sought within the time period required under MCL 712A.13a or its successor provision, and is in fact obtained. A removal that is not followed by a timely due process finding of abuse is not exempted by this subsection.

(3) This section does not apply to, and does not limit, a removal or termination that is supported by a due process finding of abuse. Nothing in this section restricts the state's authority to remove a child from a home, or to terminate parental rights, where the required finding has actually been made.

(4) A prosecution under this section does not preclude prosecution under any other applicable provision of this act or another law of this state."

(2) Nothing in this section shall be construed to create a defense to, or otherwise limit, a removal or termination proceeding brought in good faith to protect a child from actual, documented abuse or neglect.

Section 4. Penalties

(1) A violation of section 147d(1) is a felony, punishable by imprisonment for not more than 5 years, a fine of not more than \$10,000.00, or both.

(2) A second or subsequent violation of section 147d(1) is a felony, punishable by imprisonment for not more than 10 years, a fine of not more than \$20,000.00, or both.

(3) If the violation is committed by a state actor acting within the scope of the actor's official duties, the court shall, in addition to any sentence imposed under subsection (1) or (2), order the actor removed from the position in which the violation occurred and shall report the conviction to any relevant licensing or certifying body, including the State Court Administrative Office, the Michigan Department of Health and Human Services, and any professional licensing board with jurisdiction over the actor.

(4) A conviction under this section does not limit the liability of the state actor, or the state actor's employer, in a civil action brought under section 5.

Section 5. Civil Cause of Action

(1) A parent whose parental rights were removed or terminated in violation of section 147d(1) may bring a civil action in circuit court against the state actor responsible and, where applicable, the state actor's employing agency.

(2) A parent who prevails in an action under this section may recover:

(a) Compensatory damages, including damages for the loss of companionship of the parent's child.

(b) Where the child has not been adopted by another family, an order directing the appropriate court to reopen and review the underlying removal or termination proceeding.

(c) Reasonable attorney fees and costs.

(d) Any other relief the court considers just and appropriate.

(3) An action under this section must be brought within 6 years of the removal or termination, or within 3 years of the date the parent discovered, or through reasonable diligence should have discovered, the race-motivated nature of the removal or termination, whichever is later.

(4) Governmental immunity under the governmental tort liability act, 1964 PA 170, MCL 691.1401 to 691.1419, does not bar an action under this section.

Section 6. Data Collection and Oversight

(1) The Michigan Department of Health and Human Services shall annually collect and publish, by county, data on the race of every child removed from a parent's custody and every parent whose parental rights are terminated, together with the stated statutory basis for each removal and termination.

(2) The department shall establish an independent Family Separation Review Board, a majority of whose members are not current employees of the department, to review a sample of removals and terminations involving Black families each year for compliance with the due process finding of abuse requirement, and to refer matters showing a likely violation of section 147d(1) to the Attorney General.

(3) The department shall submit an annual report to the Legislature summarizing the data collected under subsection (1), the findings of the review board under subsection (2), and any recommendations for further legislative action.

Section 7. Severability

If any section, subsection, or provision of this act, or its application to any person or circumstance, is held invalid, the invalidity does not affect the remaining sections, subsections, provisions, or applications of this act that can be given effect without the invalid section, subsection, provision, or application, and to this end the provisions of this act are severable.

Section 8. Short Title and Effective Date

(1) This act shall be known and may be cited as the "Michigan Family Protection and Ethnic Intimidation Act."

(2) This act takes effect 90 days after the date it is enacted into law.