Wisconsin Lawyer
Vol. 80, No. 6, June 2007

"Raise the Age" - Return 17-Year-Olds to Juvenile Court

• A Typical Juvenile Crime
• State Bar Supports Raising the Age at Which a Person is Subject to Circuit or Municipal 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