April 4, 2012 – In the rush of the final 2011-12 floor session, both the Assembly and Senate passed SB 173, which changes the parameters for accessing juvenile records for law enforcement, district attorneys, and litigants in juvenile proceedings.
The bill, co-authored by Sen. Alberta Darling (R-River Hills) and Rep. Robin Vos (R-Rochester), will now proceed to Gov. Scott Walker's desk for his signature. Rep. Jon Richards (D-Milwaukee) also assisted with drafting an amendment to the bill.
Juvenile crime sparks legislation
Lawmakers drafted SB 173 following media attention to Milwaukee incidents involving criminal conduct by juveniles, and the lack of information afforded law enforcement in investigating those juveniles. Media sources specifically researched the history of one juvenile, Markus Evans, whose delinquent behavior began when he attacked a teacher in kindergarten.
After a history of violent acts, an 18-year-old Evans was convicted in January of killing a 17-year old girl who was walking home from school. Despite his escalating violent behaviors, reports indicate that the police returned the juvenile to his home following a confrontation with a safety aid at school because they had no idea he was on probation or had a juvenile history.
More than 1,000 juveniles are on Milwaukee County probation and more than 100 are on state probation (following a sentence to juvenile prison) at any one time. Many of the juveniles on state probation have been adjudicated for violent offenses.
Law enforcement proponents of the measure insist that access is necessary for the safety of law enforcement when interacting with juveniles, as well as to appropriately confront delinquent behavior. Without access to juvenile court records, they argue, law enforcement cannot see patterns of behavior that may indicate of escalating danger or know when juveniles are violating conditions of probation or parole on previous adjudications.
District attorneys have also expressed frustration that the law requires the district attorney to disclose previous criminal convictions and juvenile adjudications of witnesses, despite the fact that the law does not allow them access to those records without court approval. Seeking court orders to obtain these legally mandated records is an inefficient use of time and resources.
What SB 173 does
In summary, SB 173:
- Allows criminal courts and district attorney's access to juvenile court records. Under current law, this access requires a court order from the juvenile court. The court records must be used for official duties of the requester.
- Allows law enforcement agencies to access delinquency records to investigate alleged criminal activity or activity that may result in a court exercising delinquency jurisdiction over the juvenile.
- Expands access to electronic court records on juvenile cases to district attorneys, child welfare agencies, other courts, and law enforcement regardless of whether the entity is a party to the case in question.
- The guardian ad litem and defense attorneys assigned to the case are granted access to juvenile records. Currently, there is no provision allowing this type of access. This provision includes a broad preclusion to releasing health and mental health information through electronic records.
- The Director of State Courts is allowed to use the Consolidated Court Automation Program (CCAP) to transfer juvenile records those granted access.
- The Wisconsin Department of Children and Families may release the information only for the purpose of providing services to families in child welfare or delinquency cases.
- The bill requires that those who receive information via the statute keep the information confidential, and includes forfeitures for a failure to do so.
Children and the Law Section support
The current bill was supported in its final version by the State Bar of Wisconsin’s Children and the Law Section, following a variety of changes made by the authors at the section’s request.
Those changes include allowing access to juvenile records by attorneys for the litigants in the action. The section also supported the limits on access to mental health and medical information as well as the limits on re-release of the information contained in the files. The section has also encouraged Gov. Walker to sign the bill in its current form.
Access to juvenile records has a history of legislative consideration and gubernatorial rejection, but the same result is not expected this year. In Wisconsin’s 2007-08 legislative session, a bill passed both houses and was rejected by Gov. Doyle following criticism by the Children and the Law Section, the Office of the State Public Defender, and others that the bill was too broad and allowed too much access to juvenile records.
The Children and the Law Section opposed that proposal, citing the expansive access to confidential information it would allow, in addition to concerns regarding lack of access provided to case participants like guardians ad litem and defense attorneys.
Those concerns were eliminated in SB 173 in its current form. Gov. Walker has until April 12 to sign or veto the bill, or it automatically becomes law.
About the author
Mary M. Sowinski, U.W. 1998, has been an assistant district attorney in Milwaukee County since 1999, and has prosecuted foster care cases since 2000. She is currently a board member of the State Bar’s Children and the Law Section.