In 1995, the Wisconsin Legislature undertook a significant change and developed the Juvenile Justice Code under Wis. Stat. chapter 938. In doing so, it determined that there should still be a mechanism – a reverse waiver proceeding – to return youth to the juvenile justice system, including for the most serious of offenses.
Wis. Stat. section 938.183 provides for five separate categories in which a child is to be treated automatically as an adult. These include children accused of certain offenses within secure detention or a juvenile correctional setting, as well as children who were already waived into adult court.
Alaina Fahley, Marquette 2013, is a staff attorney with the Wisconsin State Public Defender in Appleton, where she practices in youth and family defense.
However, one of the most noteworthy categories is for children who are accused of serious crimes. Wis. Stat. section 938.183(1)(ar) provides for adult court jurisdiction for youth aged 10 to 161 who are accused of attempting or completing first degree intentional homicide, second degree intentional homicide, or first degree reckless homicide.
A two-step reverse waiver proceeding occurs in at the beginning of a case, when a criminal complaint is filed in adult court charging a child, aged 10 to 16, with an original adult court jurisdiction offense.
Step 1: Finding of Probable Cause
The first step of the waiver process requires a finding of probable cause that the youth committed the adult court jurisdiction offense.2 This determination is made at a preliminary examination in front of a circuit court judge.
No provision requires the State to provide complete discovery at this preliminary examination. Therefore, the youth, his or her counsel, and – most significantly – the court, may be making one of the most significant decisions possible without complete information regarding the alleged crime. In addition, hearsay is admissible at such hearings. The burden under State v. Kleser3 is placed on the youth to present any mitigating or supplementing information about the alleged offense during this preliminary examination.
Even though a court in deciding a reverse waiver is determining whether a child could be facing the possibility of life in prison, the child is prohibited under the current case law from presenting contradicting evidence once probable cause is established.
Step 2: Waiver Criteria: Proving Three Negatives
After a finding of probable cause, the burden then shifts to the child and his or her counsel to prove three negatives by a preponderance of the evidence. The current reverse waiver criteria require the child-defendant to prove that:
if convicted, he or she could not receive adequate treatment in the criminal justice system;
transferring jurisdiction would not depreciate the seriousness of the offense; and
retaining jurisdiction is not necessary to deter the child or other children from committing the alleged violation.4
These are distinguished from broader and more child-specific criteria when the State is seeking to waive a child into adult court under Wis. Stat. section 938.18. In a waiver proceeding, a court makes the determination based on both the offense alleged and the child who is accused as to whether adult court jurisdiction is appropriate.
In practice, these reverse waiver criteria can be difficult for parties and courts to interpret. Even though the Legislature tells courts that the child-defendants needs to prove each of these negatives by a preponderance of the evidence, how this is actually interpreted can be confusing.
Reverse waiver criteria have little to do with the characteristics or risk specific to the child, but instead seek to address the possibility of treatment in the adult system, the seriousness of allegations that have not been proven beyond a finding of probable cause, and nebulous determinations of deterrence specific to the child and those in a similar position.5
Issues When a Child Is Charged Initially as an Adult
While these criteria provide a great deal of discretion to judges in making reverse waiver decisions, the preponderance of the evidence burden of three negatives seems to be much heavier in practice. In addition, there are collateral consequences that arise from these cases being charged originally in adult court.
Unlike the waiver criteria that requires deliberation before a child is treated as an adult and the loss of certain protections, children subject to original adult court jurisdiction begin their cases without confidentiality. Often, these alleged crimes are considered newsworthy, and a child’s name and identifying information is disclosed. Even if a case is later transferred back to the juvenile court, the child’s name and allegations can be the subject of intense media attention.
In addition, children who are subject to reverse waiver are often incompetent to proceed. Competency must be determined before a child’s reverse waiver proceeding, which can result in children needing to be restored to competency in adult facilities and without developmentally appropriate supports.
This also places defense counsel in an ethically difficult situation when a child is close to turning 17 – defense counsel is required to raise the issue if there is reason to doubt a client’s competency to proceed, but this could result in a reverse waiver no longer being possible if the child turns 17 during this process.
A Way Around these Issues: Start in Juvenile Court
Even children accused of the most serious offenses ought to be seen as the children they are. The Legislature should eliminate original adult jurisdiction over children, and the existing procedures for waiver of juvenile court jurisdiction should be utilized whenever the State believes criminal jurisdiction is appropriate. This would remove the concerns related to confidentiality and competency and provide judicial oversight before a child is determined to be worthy of adult court jurisdiction.
The current waiver criteria under section 938.18(5) include a review of:
(a) The personality of the juvenile, including whether the juvenile has a mental illness or developmental disability, the juvenile's physical and mental maturity, and the juvenile's pattern of living, prior treatment history, and apparent potential for responding to future treatment
(b) The prior record of the juvenile, including whether the court has previously waived its jurisdiction over the juvenile, whether the juvenile has been previously convicted following a waiver of the court's jurisdiction or has been previously found delinquent, whether such conviction or delinquency involved the infliction of serious bodily injury, the juvenile's motives and attitudes, and the juvenile's prior offenses.
(c) The type and seriousness of the offense, including whether it was against persons or property and the extent to which it was committed in a violent, aggressive, premeditated, or willful manner.
(d) The adequacy and suitability of facilities, services and procedures available for treatment of the juvenile and protection of the public within the juvenile justice system, and, where applicable, the mental health system and the suitability of the juvenile for placement in the serious juvenile offender program under section 938.538 or the adult intensive sanctions program under section 301.048.
(e) The desirability of trial and disposition of the entire offense in one court if the juvenile was allegedly associated in the offense with persons who will be charged with a crime in the court of criminal jurisdiction.
Conclusion: A Deliberate and Individual Decision Is Needed in Each Case
Wisconsin should eliminate original adult jurisdiction over children. The decision to put a child in adult criminal court should require a deliberate decision by a judge that takes into consideration factors related to the personality, mental health, developmental capacity, prior record of the child, and the suitability of facilities, services, and procedures available for the child. The existing procedures for waiver of juvenile court jurisdiction should be utilized whenever the State believes criminal jurisdiction is appropriate.
This proposed change in the law allows for a more child-centric decision, and would still allow for public protection and accountability. It would also incorporate the established research that tells us that children are more likely to be amenable to change.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.
1 Wisconsin is one of only three states that remain that treat all 17-year-olds as adults. A youth who is treated as a child in other areas of the law but who has reached the age of 17 is not eligible for reverse waiver.
2 Wis. Stat. § 970.032(2); State v. Toliver, 2014 WI 85.
3 State v. Kleser, 2010 WI 88,
4 Wis. Stat. § 970.032(2).
5 National research as to transfer laws finds that the rates of recidivism actually increase for juveniles subject to the adult criminal courts.