Wisconsin Lawyer
Vol. 80, No. 6, June
2007
"Raise the Age" -
Return 17-Year-Olds to Juvenile Court
A proposal will be introduced this fall to the Wisconsin
Legislature to return 17-year-olds to juvenile
court jurisdiction, thus allowing these juveniles access to critical
treatment services not available to them
under adult court jurisdiction.
by Eileen Hirsch, Ginger
Murray & Wendy Henderson
What happens when a 17-year-old
girl gets in a tiff with a 15-year-old girl about a 16-year-old boy? In
one author's case, a 17-year-old client was
arrested, handcuffed, strip-searched, booked, incarcerated, and
charged with felony child abuse. How can this happen?
Current Law
Wisconsin currently treats as adults all 17-year-olds charged with
violating laws. The State Bar of Wisconsin has joined a
growing number of statewide organizations in supporting legislation to
return 17-year-olds to the juvenile court system. These
groups understand that adolescents are different, and that those
differences are critical to our legal system.
Today, Wisconsin is one of only 13 states that charge all
17-year-old
offenders in adult court. They typically are not violent offenders. In
2004, only 1.5 percent of arrests of 17-year-olds were for
violent index offenses (the offenses classified by the Bureau of
Justice Statistics as violent index are murder, forcible rape, robbery,
and aggravated assault). The vast majority of arrests of 17-year-olds
are for nonviolent crimes such as disorderly conduct, liquor
law violations, and petty theft. See Figure
1.
Legal History
For decades, Wisconsin and most other states drew the line between
juvenile and adult criminal court jurisdiction at age 18.
Thus, 17-year-olds had access to treatment and education through the
juvenile court system. In 1995, with the creation of the
Juvenile Justice Code, Wis. Stat. chapter 938, 17-year-olds in
Wisconsin were redefined as "adults" for criminal law
purposes. As a result,
they became excluded from the services offered through the juvenile
courts.
Legislation in the Making
The Wisconsin Legislature soon will be presented with a proposal to
return 17-year-olds to juvenile court. The proposal would
not change current law, which requires younger adolescents to be tried
as adults for some of the most serious crimes. For example,
any cases of first-degree intentional homicide must be filed in adult
court for offenders over age 10. Nor would the proposal limit
the discretionary authority of juvenile court judges to waive
17-year-olds to adult court, just as they currently have the authority
to
waive younger adolescents. Currently, any child over age 15 can be
waived into adult court for any crime on motion by the prosecutor
and approval of the court. The proposal simply would change the age of
jurisdiction for juvenile court and thus would allow
17-year-olds to participate in juvenile court and have access to
critical treatment services currently only available to adolescents
under 17.
See Figure
2.
Five Reasons to Support the Proposal
There are five good reasons to support raising the age of adult court
jurisdiction to age 18. As the American Medical
Association wrote recently in a brief to the U.S. Supreme
Court:1
"The adolescent's mind works differently from ours. Parents
know it. This court has said it. Legislatures have presumed it
for decades or more. And now, new scientific evidence sheds light on
the differences."
1) The U.S. Supreme Court has said that adolescents are
different than
adults. In Roper v. Simmons, the U.S. Supreme Court
held that juveniles under age 18 are categorically different from adults
and cannot be subjected to the
death penalty.2 The court cited three
general differences:
"First, lack of maturity and an underdeveloped sense of
responsibility are found in youth more often than in adults and are
more understandable among the young. These qualities often result in
impetuous and ill-considered actions and decisions
.
"Second, juveniles are more vulnerable or susceptible to
negative influences and outside pressures, including peer
pressure
.
"Third, the character of a juvenile is not as well formed as
that of an adult. The personality traits of juveniles are more
transitory, less fixed."3
Roper did not break entirely new ground. In 1979, the U.S.
Supreme Court recognized a constitutional distinction
between children under age 18 and adults, citing "the peculiar
vulnerability of children; their inability to make critical decisions in
an informed, mature manner; and the importance of the parental role in
child
rearing."4 In 1982, the Supreme Court
held that
"youth is more than a chronological fact
minors often lack
the experience, perspective and judgment expected of
adults."5
These decisions, with hundreds of others from state and lower
federal courts, provide a strong legal basis for dividing
juvenile and adult criminal court jurisdiction at age 18.
2) Legislatures have presumed that adolescents are different
than adults for decades or more. The Wisconsin Legislature has
specifically found, regarding children under age 18, that:
"Immature minors often lack the ability to make fully informed
choices that take account of both immediate and
long-range consequences."6
Dozens of other laws recognize that age 18 is the age at which
society considers people old enough to make thoughtful
choices, withstand peer pressure, and consider the long-range
consequences of their actions. "`Minor' means a person who has not
attained the age of 18 years, except that for purposes of
investigating or prosecuting a person who is alleged to have violated a
state
or federal criminal law or any civil law or municipal ordinance,
`minor' does not include a person who has attained the age of 17
years."7 Minors cannot sign
contracts, make wills, or serve on
juries,8 and the law forbids them from
smoking and from drinking
alcohol. Without parental consent, they cannot
marry,9 quit school, get a driver's
license, possess a weapon, get an abortion, or get a
tattoo.10 Conviction of a crime carries
life-altering consequences. As our legislature has recognized in so many
areas, persons under the age
of 18 need society's protection.
3) New scientific evidence sheds light on the
differences. Adolescents do not simply "choose" to
disobey the
law in the same way that adults do. Brain research during the last
decade made possible by new technology shows that normal
adolescent brains are immature - especially the areas of the brain
that "govern control of impulsivity, judgment, planning for the
future, foresight of consequences, and other characteristics that make
people morally
culpable."11 Basic anatomy makes
juveniles
more impetuous.
Also, as a result of this developing brain, most juveniles simply
grow out of their impulsive conduct. More than 75 percent
of people who commit crimes as juveniles will not commit another crime
after they reach age 21. More than 80 percent of
violent crimes are committed by people over age
20.12
Because of juveniles' impulsive brains, the traditional criminal
concept of deterrence should not be applied to adolescents.
As the Supreme Court reiterated in Roper from its holding in
Thompson, "the likelihood that the teenage offender has
made the
kind of cost-benefit analysis that attaches any weight to the
possibility of execution is so remote as to be
nonexistent."13 The Supreme Court
then concluded that deterrence is not an adequate justification for
imposing the death penalty. Under the analysis applied
by the Supreme Court to adolescents' lack of long-term planning and
cost-benefit analysis skills, deterrence also should not be a
valid reason to try 17-year-olds as adults.
4) Returning 17-year-olds to juvenile court promotes public
safety. In the mid-1990s, when Wisconsin
lowered its age of adult criminal court jurisdiction to 17, the public
had come to fear the era of the young "super predator."
Predictions
that juvenile crime would continue to grow and become more violent
never came to fruition. In fact, criminal arrests in Wisconsin
(and in the nation) went down consistently from the mid-1990s to 2005.
Several large-scale studies have compared recidivism rates for
matched pairs of adolescents tried in the juvenile system
versus the adult system. In one study, the teens were matched for
their crimes, the level of violence of the crimes, their
socio-economic status, and a host of other variables that have proven
to be related to recidivism. The matched pairs then were studied for
their recidivism. It was found that adolescents tried in adult court
violate the law again more quickly and with more serious violent
crimes than do their counterparts tried in juvenile
court.14 Almost identical findings were
seen in a second study. According to the
second study's author, "The findings suggest that transfer [to
adult criminal court] made little difference in deterring youths
from reoffending. Adult processing of youths in criminal court
actually increases recidivism rather than [having] any incapacitative
effects on crime control and community
protection."15
5) The public supports returning 17-year-olds to juvenile
court. A recent poll conducted by the National
Council on Crime and Delinquency asked respondents who should make the
decision to try a person under age 18 in the criminal
court system. Nearly 3 out of 4 respondents (72 percent) said the
decision should be made by the juvenile court judge. Only 14
percent said the legislature, and 9 percent said the
prosecutor.
The poll also shows that more than 80 percent of the responding
public believe that rehabilitative services and treatment
can prevent future crime and will save tax dollars in the long run.
The responding public had little faith in the value of adult
correctional facilities, with 70 percent believing that putting minors
in adult correctional facilities makes them more likely to commit
future crimes, and less than 32 percent believing that putting minors
in an adult facility will deter them from committing future crimes.
A multidisciplinary group of statewide organizations currently is
working to create the proposed legislation to raise the age
of juvenile court jurisdiction. These groups include the State Bar of
Wisconsin, the Wisconsin Council on Children and Families,
the Wisconsin Counties Association, the Wisconsin County Human
Services Association, the State Public Defender, the
Wisconsin Juvenile Court Intake Workers' Association, the Wisconsin
Association of Family and Children's Agencies, Wisconsin
Education Association Council One, Wisconsin Chapter of American
Federation of State, County and Municipal Employees,
Wisconsin Chapter of American Federation of Teachers, juvenile court
judges, and various other county leaders.
Your Involvement Matters
Members of the legislature and your community need to hear from you.
Please contact your legislators to share your views on
this very important matter. Contact information for members of the
Wisconsin Legislature is at its comprehensive Web
site.
For more information about the proposal or talking points, contact
Wendy Henderson at (608)
284-0580, ext. 308.
Endnotes
Wisconsin Lawyer