Author:  Attorney Catherine E. White
Phone: 608-257-0945
Email: cwhite@hurleyburish.com

The juvenile justice system is an often-overlooked, yet incredibly important, area of law. States address the issue of crimes committed by children in a variety of ways. Often, the focus is on treatment and rehabilitation, a reasonable focus in light of the fact that most youth naturally age out of delinquent behavior as they mature. In fact, research shows that the average person’s brain is not full developed until their mid-20s, and therefore children and young adults are more capable of change and rehabilitation. See

https://nap.nationalacademies.org/catalog/14685/reforming-juvenile-justice-a-developmental-approach https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/248391.pdf

But some states, including Wisconsin, still use a punishment-oriented approach that allows for a child to be prosecuted as an adult under a relatively broad set of circumstances. In fact, Wisconsin is one of only a handful of states in the nation that automatically prosecute seventeen-year-olds as adults. See https://juvenilecompact.org/age-matrix. And Wisconsin law gives prosecutors a great deal of discretion in determining whether a child below the age of 17 will be sent to juvenile court or charged as an adult in criminal court. Wisconsin’s tendency to prosecute children as adults has continued for several decades despite empirical research showing that children prosecuted as adults are more likely to be rearrested and have higher recidivism rates than youth who remain in the juvenile justice system. See

https://www.ojp.gov/pdffiles1/ojjdp/220595.pdf

Why? Because the legislature hasn’t changed the law. This article offers a brief history of Wisconsin’s juvenile justice system, in particular the mechanisms through which a child can be prosecuted as an adult.
When Wisconsin’s juvenile justice system was born in 1901, juvenile courts were given original jurisdiction over juveniles alleged to have violated a criminal law. A waiver statute, Wis. Stat. § 48.18, allowed the juvenile courts to “waive” their jurisdiction over juveniles accused of certain serious crimes, thereby transferring those cases to adult criminal courts for prosecution.
In 1993, the Wisconsin legislature expanded the circumstances in which adult criminal courts could assume jurisdiction over a juvenile alleged to have violated a criminal law. The legislature accomplished this expansion in two ways: First, it amended the waiver statute to add several additional offenses to the list of crimes for which a juvenile could be waived into criminal court. Second, it created two new provisions, Wis. Stat. §§ 48.183 and 970.032, through which adult criminal courts automatically assume jurisdiction of juveniles charged with certain crimes. Those statutory provisions created a procedure in which the adult criminal court could then choose to waive its jurisdiction, thereby transferring the juvenile to the juvenile court for disposition. This procedure quickly became known as “reverse waiver.” Both waiver and reverse waiver procedures require the court to consider certain criteria when deciding whether to retain or waive jurisdiction, such as the seriousness of the offense and the adequacy of the treatment available in the juvenile or adult system.
In 1995, the Wisconsin Legislature adopted a comprehensive revision of the statutes concerning juvenile justice. As part of the revision, the laws concerning juvenile delinquency were moved from Chapter 48, the Children’s Code, to a new Chapter 938, titled the Juvenile Justice Code. It also lowered the age at which individuals are automatically treated as adults from 18 to 17.
Under Wisconsin’s current law, seventeen-year-old children are charged as adults when they are accused of any crime, no matter how trivial.
Under Wisconsin’s current Juvenile Justice Code, children as young as 10 can be charged with crimes in juvenile court, which has the power to send children to secure juvenile correctional facilities under the control and supervision of the Wisconsin Department of Corrections’ Division of Juvenile Corrections, sometimes for as long as five years or until the child’s 25th birthday, depending on the severity of the offense. Prosecutors can ask the juvenile court to waive jurisdiction and send children as young as 15 to adult criminal court, which has the power to convict children of crimes and sentence them to probation, jail, or even prison, just like an adult. Even fourteen-year-olds can be waived into adult criminal court at the prosecutor’s request if they have been accused of certain serious crimes. And prosecutors can choose to charge a child as young as 10 as an adult by accusing the child of committing with a few specific serious crimes, such as first-degree intentional homicide or first-degree reckless homicide. At that point, the child will remain in adult criminal court unless they can convince the judge at a “reverse waiver” hearing that:
(a) If convicted, the child could not receive adequate treatment in the criminal justice system;
(b) transferring jurisdiction to the juvenile court would not depreciate the seriousness of the offense; and
(c) retaining jurisdiction is not necessary to deter the child or other children from committing the violation of which the child is accused.
Wis. Stat. § 970.032(2). If the judge denies reverse waiver, the child will remain in adult criminal court, where they may be convicted and sentenced to probation, jail, or prison. If sentenced to prison, children are sent to a secure juvenile correctional facility until their eighteenth birthday, at which point they are transferred to the adult prison system to serve the remainder of their sentence. Despite empirical evidence showing that the juvenile justice system results in lower recidivism rates and greater chances of successful rehabilitation, many prosecutors continue to oppose reverse waiver, and many judges remain reluctant to grant reverse waiver.