The recent case of the “Slender Man” stabbing in Waukesha has brought attention to the issue of juvenile offenders being tried in the adult court. Recently proposed changes to Wisconsin’s juvenile justice code would affect a certain segment of those offenders. Seventeen year olds charged with criminal-law violations are, under the current statutory scheme, treated automatically as adults and tried in the adult criminal-justice system.1
Under current proposals, however, that might change. Senate Bill 308 and Assembly Bill 387, which would return most 17-year-old first-time offenders to the juvenile court, failed to pass both houses of the Wisconsin Legislature last session. However, it is likely that efforts will again be underway in the next session to pass such legislation. This article will discuss the implications of such a change in Wisconsin law.
The notion that young offenders should not be treated the same as adult offenders goes back more than 100 years in the United States. Intending to rescue children from the degradations of the adult prison, reformers established a facility for youthful offenders, which they called a “House of Refuge.”2 New York was home to the first House of Refuge, with the purpose being to provide education and employment to youth to such an extent “as in their judgment will be most for the reformation and … future benefit and advantage of such children.”3
In 1854, a nine-year-old boy was sentenced to serve time in the Waupun (Wis.) State Prison for the crime of larceny.4 As a result, a plan to develop a juvenile corrections facility in Waukesha was developed. That juvenile facility, also called a House of Refuge, opened in 1857.5 Later, juvenile justice courts committed to processing the cases of juvenile offenders came into existence. In 1899, Cook County, Illinois established the first juvenile court in the United States.6 Within 30 years, almost all the states had established juvenile courts.7
gov Thomas.walsh wicourts Thomas J. Walsh, Hamline 1992, is a Brown County Circuit Court judge.
When considering the difference between adult court and juvenile court in Wisconsin, it is useful to note that in most Wisconsin counties, separate courts do not actually exist. That is, most counties have the circuit court judge hearing various types of cases, including adult criminal court cases and juvenile court cases. The main difference is that the circuit court judge applies either the juvenile code or the adult criminal code, depending on the age of the accused. Thus, any given judge is no more or less capable of imposing any particular disposition for any particular person, except as limited by state statute.
Wisconsin’s juvenile justice code, governing juveniles who violate the law, was enacted in 1929.8 When enacted, it applied to individuals under age 18.9 It has been amended several times since then, but still exists as Wisconsin Statutes chapter 938.
One significant difference between adult criminal court and juvenile court is that proceedings in juvenile court are civil, not criminal. As a result, until the late 1960s, youthful offenders going through the juvenile court system did not have the right to the constitutional protections guaranteed criminal defendants in adult court. However, that situation changed on a nationwide scale with various constitutional decisions in the federal court system. In In re Gault,10 the U.S. Supreme Court decided that offenders in the juvenile justice system had the following rights:
- The right to receive notice of charges;
- The right to obtain legal counsel;
- The right to confrontation and cross-examination;
- The privilege against self-incrimination;
- The right to receive a transcript of the proceedings; and
- The right to have an appellate court review the lower court’s decision.
At a later date, the Supreme Court took up issues relating to the propriety of imposing serious penalties on juvenile offenders. In Roper v. Simmons,11 the Supreme Court determined that juvenile offenders could not be subjected to the death penalty pursuant to the Eighth Amendment’s prohibition against cruel and unusual punishment and that this prohibition applied to the states under the 14th Amendment.
The court reasoned that “[w]hen a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”12 While noting that the drawing of a line at age 18 could implicate the objections usually raised when drawing such random lines, the court determined that it would do just that. It noted that “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”13
Under the current version of Wisconsin’s juvenile justice code, 17 year olds are charged as adults for all crimes.
In Graham v. Florida,14the court arrived at the same conclusion regarding the imposition of sentences of life in prison without parole on juveniles who did not commit a homicide. The court noted that “[t]he State has denied him [the juvenile] any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.”15
The court went on, similar to its discussion in Roper, to indicate that the United States was virtually alone in the world in such sentencing practices “because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.”16
Under the current version of Wisconsin’s juvenile justice code, 17 year olds are charged as adults for all crimes. This situation has prevailed since 1995, when the age was reduced from 18 to 17. Individuals 16 years old and younger are generally charged as juveniles in juvenile courts. However, for certain serious crimes, such as murder, individuals younger than 16 start out being charged in adult court with trial courts having discretion to waive them back to juvenile court. Finally, those age 16 or younger who started out in juvenile court can also be waived into adult court under certain circumstances.
In addition to the juvenile court process, the adult criminal code has one provision designed specifically for younger offenders, to ameliorate the consequences of a criminal conviction. Adults who commit a certain category of misdemeanor crimes when they are under age 25 have the ability to seek expungement of those crimes from their criminal record if they complete their sentence. This decision is left to the discretion of the trial judge.17 This process, if successful, can help reduce the impact of one of the more serious sanctions associated with adult court: a criminal record. Expungement recognizes the notion that young people sometimes make poor choices and society as a whole wants to give them the opportunity to move forward.
Thus, the view that nonadult offenders need to be treated differently has a lengthy history in the United States as a whole and in Wisconsin in particular. It began in 1857 and continues to develop, under the influence of the federal courts, to the present day.
The Adult System versus the Juvenile System
In addition to the fact that juvenile court proceedings are civil rather than criminal, there are four main areas in which Wisconsin’s adult criminal justice system and its juvenile justice system differ. Those areas are the following: privacy of proceedings, confidentiality of records, the variety of services offered on disposition of any given case, and trials. At least in regards to the first three of these distinctions, they are tailored to meet the particular needs of juvenile offenders. Each will be discussed briefly.
In juvenile court, hearings and other court proceedings are closed to the public.18 Thus, the accused juvenile maintains a certain level of privacy regarding the case as it wends its way through the system. This can be useful to the offender because friends, extended family, neighbors, and the media are kept in the dark and often might not be aware of anything involving the juvenile. The juvenile is saved from the embarrassment and possible discouragement that comes from the public hearing that the offender has violated the law.
In the adult system, the opposite is true. The public does find out about the charges facing the offender and might even attend the court proceedings. That disclosure could bring about embarrassment to the offender as well as family and friends. Embarrassment is thought to be a deterrent to the commission of crimes and, therefore, a valuable part of the adult system.
Along the same lines as privacy in the proceedings, confidentiality is also maintained after the case is resolved. Juvenile-court-case records are not supposed to be accessed absent special circumstances.19 This can be useful because, again, friends, extended family, neighbors, and the media cannot go to the courthouse and simply look at the file. Nor can they access the Wisconsin Circuit Court Access Program (CCAP) to learn about details of the offense. These records are to remain confidential throughout the offender’s adult life.
The benefit of this confidentiality is obvious; it is quite typical for an adult applying for a job to be asked whether he or she has ever been convicted of a crime. The answer to such questions can easily be confirmed in this age of electronic-record verification. In a juvenile case, there would be no way for a potential employer to find out about these cases or the details surrounding them. Thus, for adult criminal offenders it is thought that a deterrent to crime exists as a result of the fact that employment will be more difficult to obtain for those who commit crimes.
The range of dispositional possibilities in juvenile court also differs from that in adult criminal court. As a general rule, both the adult court and the juvenile court can either incarcerate an offender or supervise him or her in the community. However, the juvenile court generally is viewed as having a focus on a more nurturing form of rehabilitation and on keeping young offenders in the community, with efforts made to assist their existing support structure. Parents and guardians of juveniles remaining in the community can be required to participate in therapy with the juvenile and can be actively pursued to get involved with the troubled youth. Evidence-based studies throughout the United States have shown that certain models of community-based juvenile reform, specifically those revolving around existing support systems, can be quite successful for juvenile offenders:
“What these models have in common is that they rely on relationships – with an emphasis on supporting existing relationships, particularly with family – rather than on isolation, and they offer support in the context of young people’s homes and communities. These programs not only produce results far better than does incarceration; they also save vast amounts of money.”20
It should also be noted that any given juvenile charged with an offense might actually receive more intensive treatment than a similarly situated adult offender. For example, an adult criminal charge of disorderly conduct, without a domestic violence enhancer, might bring little more than a fine or, perhaps, a few days in the county jail. Although this seems to be a rather light sentence, the adult system is often unwilling to devote significant resources to such offenses. In juvenile court, in contrast, such charges often entail an extensive counseling regime with family involvement. Clearly, this is a more difficult road to travel for the offender but it is more likely to affect future behavior than would a fine or a few days in jail.
At the same time, more restrictive efforts may be needed for juveniles. The mission of the Wisconsin Division of Juvenile Corrections is “to promote a juvenile justice system that balances protections of the community, youth accountability and competency building for responsible and productive community living.”21 The specific Type I secure detention facilities used for youthful offenders are Lincoln Hills School for Boys and Copper Lake Girls School, both in Lincoln County. The programming offered at these specific facilities is geared toward youth offenders and the ways in which such offenders can cope, once reintegrated into the community, with the issues faced by all young people.
Society in general, and the courts in particular, believe that children should be treated differently for purposes of sentencing.
These services, of course, are different from the adult correctional facilities. Seventeen year olds do not need the same type of correctional and therapeutic regime that a 50 year old needs. They simply have different life experiences and, thus, different needs.
Until approximately 10 years ago, juveniles accused of a crime had a right to a jury trial. That changed in 1996, when the legislature eliminated that procedure for the juvenile court system. This elimination of jury trials for juveniles was approved by the U.S. Supreme Court in McKeiver v. Pennsylvania.22 Jury trials are more costly and time consuming than bench trials for the court system. Community members must set aside their business for a day or more and come to court to resolve the delinquency matter. They must participate in the jury-selection process, the jury-instruction process, and final deliberation, none of which is required in a court trial. Thus, the public cost and additional time for public servants is reduced with the elimination of the jury trial.
At the same time, however, the juvenile loses the right to have his or her case heard by a jury. Whether that dilutes the right to trial or makes it a more stable process is a matter of conjecture. It certainly expedites the process and eliminates the possibility that information about a confidential case might be revealed, via the jury panel that hears the case.
It is against the background of these main differences between the adult and juvenile systems that the decision regarding placement of 17 year olds must be evaluated. Placing 17 year olds in the juvenile court will have a major impact on what that group of offenders experiences and how the system processes their cases.
When looking at the question of the propriety of 17-year-old offenders being tried in adult court, the first question that must be addressed is, what difference does it make? That is, why should the average Wisconsin resident care which process and set of solutions applies to 17 year olds?
The answer to this question lies in the fact that society in general, and the courts in particular, believe that children should be treated differently for purposes of sentencing.23 This policy is well demonstrated by the history of the juvenile system outlined above. The U.S. Supreme Court has recognized this same notion by listing three broad distinctions between juveniles and adults:
“First, children have a “‘lack of maturity and an underdeveloped sense of responsibility,’” leading to recklessness, impulsivity, and heedless risk-taking. Second, children ‘are more vulnerable … to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’”24
These distinctions are supported by the current neuroscience findings regarding brain development and adolescence. One commentator noted that “[t]here is incontrovertible evidence that adolescence is a period of significant changes in brain structure and function.”25 In addition, “[s]tudies of adolescent brain anatomy clearly indicated that regions of the brain that regulate such things as foresight, impulse control, and resistance to peer pressure are still developing at age 17.”26 Thus, the very thing that might assist an adult in resisting the impulse to criminal activity is not well developed in an adolescent. It is on these policies and on current scientific research that the way forward should be based.
The Way Forward. Although it seems well settled that juveniles must be treated differently than adults, selecting a specific age at which that transition should occur is problematic. Even the Supreme Court noted that the drawing of such categorical lines is open to criticism: “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained the level of maturity some adults will never reach.”27
Nevertheless, our society draws such age lines for a number of things: The age of 18 must be attained for an individual to serve in the military without parental consent, age 21 is required for alcohol consumption, a person must reach age 16 to legally obtain a driver’s license, and before voting in an election a person must reach age 18. To a great extent, these lines are simply arbitrary. It is completely unclear if any given person is sufficiently capable of operating an automobile at age 17, but incapable of voting at that age. Similarly, drinking a beer is not legal for a 20 year old, but that same individual could be placed in the middle of a hostile battlefield where the lives of others hang in the balance.
When considered from this perspective, placing someone in the juvenile or adult justice system at a given age might seem random. Yet, the random nature of some of the ages selected by legislatures should not prevent them from making the effort in this situation. It is simply too important an issue.
One commentator has appropriately outlined the issue as follows:
“Framing this as an age range, rather than pinpointing a discrete chronological age, is useful because doing so accommodates the fact that different brain systems mature along different timetables, and different individuals mature at different ages and rates. The lower bound of the age range is probably somewhere around 15, and the upper bound is probably somewhere around 22.”28
Therefore, viewing the transition from juvenile to adult as a process during a range of years, rather than as a bright-line age, seems to comport with scientific research.
Alternative Solutions. While framing the issue of adult court versus juvenile court as one of age ranges seems to be the correct approach, it does not assist in answering the question of the appropriate age at which someone should be placed in adult court. In light of the above, there seem to be four possible solutions to this question.29
The first option is to pick a mid-point of the range between ages 15 and 22. In so doing, the legislature “would place the dividing line somewhere around 18, which, it turns out, is the presumptive age of majority pretty much everywhere around the world.”30 The second option is “to decide on an issue-by-issue basis, what it takes to be ‘mature enough.’”31 This has the attraction of being more flexible regarding each issue, but might require research and data on a case-by-case basis that is simply not reliable at this stage in the development of the justice system.
The third possibility is to shift from the two-tiered approach to a three-tiered approach. That is, there would be one court system for child offenders, one court system for adolescent offenders, and a third for adult offenders. Although this possibility is attractive because it reduces the “cliff effect” of going from juvenile to adult court, it would likely be more costly and it does not eliminate the need for selecting ages at which the transition occurs.
The final alternative, similar to the second, is to avoid treating juveniles as a separate class of offenders. That is, rather than deciding on an issue-by-issue basis as in option one, each individual going through the system would be evaluated to determine each offender’s maturity and thus level of culpability.
All these options seem to have some positive attributes as well as certain drawbacks. There is no specific alternative that brings solutions to all aspects of the problem.
Flexibility as the Solution. Other than the first option, all the alternatives above appear to be characterized by the concept of flexibility: more individualized assessment, case-by-case review, or increasing the number of systems needed to address various age groups. Flexibility seems to be exactly what is required if the issue is framed as one of age ranges rather than one of pinpointing a specific age. Nevertheless, by virtue of Senate Bill 308 and Assembly Bill 387, Wisconsin appears to be leaning toward option one, a specific age of 18, albeit neither version has yet been signed into law.
Yet, given the specific system we have in Wisconsin, this is a sound approach. Under the proposed revisions, the trial courts are offered a more sound starting point than they currently have, that is, offenders age 17 or younger start in juvenile court. In addition, the current proposals maintain some current-law elements that provide the flexibility suggested by the other options above. That is, while most 17 year olds will start in juvenile court, they will be charged in adult courts if they are being charged with committing certain violent offenses, if they previously have been convicted of a crime, or if they previously have been adjudged delinquent.
Other than these specific sets of circumstances, current proposals would have 17 year olds start off in a court system that offers maximum rehabilitation efforts through the use of existing support structures and appropriate services with the least long-term negative impact on offenders. The confidentiality and privacy will be maintained, helping to ensure the greatest chance of moving beyond the offense and securing things such as an advanced education, reasonable housing, and employment. The ability of trial courts to waive offenders into adult court remains and, thus, serious offenders can still be addressed in a forum wherein a jury trial is available. Trial courts will still be able to decide, on a case-by-case basis, whether the circumstances of the case are such that an individual should be tried in adult court.
The answer to the question regarding the appropriate age at which to try a person as an adult is not clear cut. What is very clear is that consensus exists in Wisconsin, and the United States as a whole, that juvenile offenders should be afforded remedial assistance to help correct their course in life rather than simply punishing them.32 The biggest and longest lasting impact on an individual proceeding through the adult criminal justice system is an adult record. That record essentially follows a person for the rest of his or her life and affects everything from employment to housing. It can be discovered by anyone seeking to find it, and it is routinely held against the person who has such a record.
There is, of course, nothing wrong with society attaching a stigma to criminal offenders. It is exactly that stigma that helps deter criminal behavior. But society needs people who can move past their youthful mistakes and become successful and stable members of the community. Without that ability, we will have a growing class of people who probably did not have a great deal of mobility to start with weighed down by the past and having a more difficult time moving forward.
Starting 17-year-old offenders in the juvenile system will assist society in achieving this goal. The neuroscience research suggests there might be less compelling reasons to deny an 18 or 19 year old some of the opportunities offered to similar offenders who are younger, but affording those opportunities to 17 year olds is an appropriate step.
1 Wis. Stat. § 938.02(1).
2 Nell Bernstein, Burning Down the House, The End of Juvenile Prison 39 (New Press 2014).
4 Wis. Dep’t of Corrections, Historical Checkpoints in the DOC, http://doc.wi.gov/about/doc-overview/history.
6 Dep’t of Juv. Servs., History of Juvenile Justice System 1, www.djs.state.md.us/history.asp.
8 Henry Plum & Frank Crisafi, Wisconsin Juvenile Court Practice and Procedure: In Protection of Children 1 (Butterworth 1993).
9 See Wis. Stat. § 48.01(c) (1939). “The words ‘delinquent child’ shall mean any child under the age of eighteen years old who has violated any law of the state or any county, city, town or village ordinance….” Id.
10 387 U.S. 1 (1967).
11 543 U.S. 551 (2005).
12 Id. at 573-74.
13 Id. at 574.
14 560 U.S. 48 (2010).
15 Id. at 79.
16 Id. at 82.
17 Wis. Stat. § 973.015.
18 Wis. Stat. § 938.396(2).
20 Bernstein, supra note 2, at 275.
21 Id. at i.
22 403 U.S. 528 (1971); but see People v. Smith, 110 Cal. App. 4th 1072 (2003).
23 See Miller v. Alabama, 132 S. Ct. 2455, 2463 (2012) (noting that “children are constitutionally different from adults for purposes of sentencing.”).
25 Laurence Steinberg, Should the Science of Adolescent Brain Development Inform Public Policy?, 50 Court Review, J. Am. Judges Ass’n 70 (2014).
26 Id. at 74.
27 Roper v. Simons, 543 U.S. 551, 574 (2005).
29 Steinberg, supra note 25, at 75.
32 Bernstein, supra note 2, at 210.