In light of the new Court of Appeals decision, State v. Mann-Tate, 2024AP2585-CR, on Feb. 3, 2026, Wisconsin needs a legislative fix to address the current due process concerns related to the reverse waiver statute. As attorneys practicing in the youth justice arena for many years, we believe the fix seems obvious: Wisconsin should eliminate original adult jurisdiction for youth.

The current waiver statute, Wis. Stat. 938.18, allows the court to consider the unique attributes of youth identified by the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 472, 477-478 (2012), which already addresses the exact concerns that led the Wisconsin Court of Appeals to find the reverse waiver statute unconstitutional.

Summary of the Mann-Tate​ Decision

Mann-Tate was 10 years old when he allegedly killed his mother under disputed circumstances. Though Mann-Tate claimed that the gun accidentally discharged, prosecutors charged him with first-degree intentional homicide, which resulted in original adult court jurisdiction under Wis. Stat. section 938.183.

Mann-Tate’s legal team moved to dismiss the adult charges, arguing that Wisconsin’s “reverse waiver” process (in which the youth has the burden of proving his case should be transferred to juvenile court) is unconstitutional. The circuit court denied the motion. Mann-Tate then filed a petition for reverse waiver. Upon conclusion of the reverse waiver hearing, the court expressed its belief that Mann-Tate did not belong in the adult system, but felt it had no choice but to deny the motion for reverse waiver based on the statutory criteria (¶9).

The specific criteria the court must examine in making this determination are found in Wis. Stat. section 970.032(2). The youth has to show that:

• they cannot receive adequate treatment in the criminal justice system;
• transferring jurisdiction to the juvenile court would not depreciate the seriousness of the offense; and
• retaining jurisdiction is not necessary for either specific or general deterrence before transferring jurisdiction to the juvenile court.

On appeal, the Court of Appeals agreed with Mann-Tate that Wisconsin’s reverse waiver statute fails to provide constitutionally required procedural due process to young defendants like him. The appeals court held that the statute “is unconstitutional to the extent it does not require circuit courts to consider the unique attributes of youth identified by the United States Supreme Court” (¶2).

First, the Court of Appeals found that it is undisputed that Mann-Tate has a right to procedural due process as guaranteed by the 14th Amendment. At its core, the constitution requires “fundamentally fair” procedures (¶30).

The case is not about whether Mann-Tate had a substantive right to be treated as a juvenile. Instead, because the legislature has created a statutory mechanism for Mann-Tate to seek transfer of his case to juvenile court, the relevant question is whether that process satisfies this fundamental fairness criterion (¶43).

Second, the Court of Appeals relied on a series of cases from the U.S. Supreme Court (Miller v. Alabama, Graham v. Florida, and Roper v. Simmons) for the proposition that youth have “distinctive attributes” and that “these attributes inform what process is due to juveniles whose cases originate in the adult criminal justice system” (¶29). As discussed in this line of cases, youth are simply different from adult defendants in obvious and commonsense ways: their still-developing brains, susceptibility to negative environmental influences, lack of impulse control, and potential for rehabilitation among other characteristics.

The Court of Appeals is troubled that none of these special considerations are mentioned or even allowed to be considered in reverse waiver proceedings. As a result, section 970.032(2) does not allow consideration of the impacts of the child’s youth before determining whether they should be tried as an adult. Without consideration of these characteristics, children may remain in the adult system, because the criteria ignore information that is fundamental to determining whether they should be treated as a juvenile or an adult, such as their capacity for reform and rehabilitation.

The reverse waiver statute, in its current form, violates due process because it does not provide a meaningful opportunity for a juvenile to prove that he or she is not one of the “rare and unfortunate cases” that warrant treating a juvenile as having the same culpability as an adult. ^[1]

Specifically, the criterion of whether reverse waiver would depreciate the seriousness of the offense fails to consider how the unique characteristics of youth impact the seriousness. The Supreme Court decisions described above require courts to acknowledge that a youth who commits an offense is less culpable than an adult who commits the same offense. The reverse waiver procedure is rendered functionally meaningless if courts are not required to consider that children’s “lack of maturity and … underdeveloped sense of responsibility” leads them to poor decision making. This concept is so fundamental that the Supreme Court described it as something “any parent knows.”^[2]

Because of this, the Court of Appeals reversed and remanded Mann-Tate’s case for a new reverse waiver hearing which will consider those factors identified by the US Supreme Court:

• the juvenile’s chronological age related to immaturity, impetuosity, and failure to appreciate risks and consequences;
• the juvenile’s family and home environment that surrounds him or her;
• the circumstances of the offense, including the extent of participation in the criminal conduct;
• the impact of familiar and peer pressures;
• the effect of the offender’s youth on his or her ability to navigate the criminal justice process; and
• the possibility of rehabilitation” (¶46).^[3]

The Waiver Statute Pursuant to Wis. Stat. Section 938.18(5)

On the other hand, when cases are filed in juvenile court and the State seeks waiver to adult court, the court must base its decision whether to waive jurisdiction on the following criteria:

(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.

(am) 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.

(b) 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.

(c) 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 s.938.538 or the adult intensive sanctions program under s. 301.048.

(d) 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.

The factors identified in the Mann-Tate decision to ensure due process and fundamental fairness are already incorporated in the current waiver statute. If all youth started in juvenile court and were only waived to the adult system after a hearing using this criteria, the questions left by the Mann-Tate decision would be answered, and youth would be guaranteed the proper protection of due process.

Other Benefits

In addition to the due process guarantees, there are other benefits to having all youth cases start in juvenile court.

First, when an attorney has reason to doubt competency of a youth charged as an adult, they are in the terrible position of not being able to move forward with a reverse waiver hearing until after competency is determined. If the youth is found not competent, they may not be able to have a reverse waiver hearing before they turn 17. This creates serious issues regarding fundamental fairness.

Second, youth charged only in juvenile court would not face the possibility of being placed in adult jails. Youth who are facing waiver into adult court can be held in detention while the waiver hearing is pending, but they also can be released under a nonsecure custody order if appropriate and with programs designed for children. These programs may include home detention or GPS monitoring. They also allow children to continue to access community supports and services, such as Comprehensive Community Services (CCS) and Children’s Long-term Support Program (CLTS), and other therapeutic services.

Third, a social worker from the Department of Human Services can be assigned to analyze the waiver criteria and provide guidance to the court regarding the youth and their family.^[4] All Wisconsin counties use the Youth Assessment and Screening Instrument (YASI) risk assessment tool, and the judge will benefit from the results of this evidence-based tool when determining which court is more appropriate for that specific youth.

Fourth, with a social worker already involved, dispositional planning can begin right away. Social workers can start referrals for out-of-home placements and look into community services and supports from the beginning, even with a waiver petition pending. Under the current law, youth who are charged with original adult jurisdiction offenses are not assigned social workers to assess their needs, make recommendations to the court, or provide any guidance regarding risk or amenability to services. This limits the information available to the court and the services available that could address the youth’s particular needs.

A Simple Fix

It goes without saying that Mann-Tate is hugely important and provides an outcome that juvenile justice reform advocates have sought for years. The decision mandates a different standard for juvenile reverse waiver cases moving forward. The legislature can easily fix the problem by eliminating the original adult jurisdiction statute, allowing all cases to start in juvenile court and be subject to waiver proceedings when appropriate.

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.

Endnotes

[1] See Graham v. Florida, 560 U.S. at 109 (Thomas, J. dissenting). ↩

[2] Roper v. Simmons, 543 U.S. at 569 (citation omitted).↩

[3] The State has filed a petition for review to the Wisconsin Supreme Court of the Mann-Tate decision. For Mann-Tate's sake, his defense team requested a quick decision regarding this request, but there is no timeline for when the Wisconsin Supreme Court will decide whether to grant the petition for review. ↩

[4] Wis. Stat. § 938.18(2m). ↩