Juvenile Justice Over Time: The Implementation of Wisconsin’s Statutory Exclusion for Certain Juvenile-Aged Offenders

Since the founding of our country, the treatment of juveniles in the criminal justice system has remained a prominent, everchanging, and often controversial issue.[1] During the 18^th century, “children older than fourteen were determined to be able to understand the difference between right and wrong”[2] and “were treated as adults in the justice system.”[3] The courts regarded “infants” as children “below the age of reason” – typically under the age of seven – where such children “were considered incapable of understanding their actions”[4] and “could not be found guilty of a felony.”[5] Thus, the courts held that such infants “were presumed to be incapable of criminal intent and were, therefore exempt from prosecution and punishment.”[6] Where “children between the ages of seven and [fourteen]…were presumed to not be able to understand their actions,…they were assessed by the court on a case-by-case basis.”[7] Thus, “children as young as seven [years old]…could stand trial in criminal court” for felony charges and, if convicted, “could be sentenced to prison or even to death.”[8]

In 1899, the United States began major reconstruction of these practices, relying first on the British doctrine of parens patriae – “the State as parent.”[9] Under the Juvenile Court Act of 1899, Illinois “established the nation’s first juvenile court”[10] which sought to parent – rather than punish – juveniles by allowing the State to exercise “power and responsibility [in] provid[ing] protection for children whose natural parents were not providing appropriate care or supervision.”[11] This change occurred, in part, based on a novel societal understanding that “juveniles were not mature enough to take responsibility for their actions”[12] and “were still developing intellectually and emotionally.”[13]

Following this change, the juvenile justice system governed those below the age of eighteen, holding that prisons could no longer incarcerate children under twelve years old.[14] A juvenile court could waive the juvenile’s right to be tried as such and thus transfer a juvenile offender to the criminal court system, but only after an evaluation of the “best interests of the child and public[.]”[15]

During the first half of the 20^th century, the juvenile court system acted informally and subject to judges’ discretionary decisions regarding transfer and treatment of individual juveniles.[16] However, as public panic spread across the nation based on misleading reports of spiking juvenile crime rates, many states – including Wisconsin – enacted more punitive statutes beginning in the 1980s.[17] States today provide statutory language explaining when and how a specific juvenile offender will be statutorily excluded from the juvenile court system, and/or waived automatically or presumptively from the state’s juvenile court to its criminal court, and/or evaluated subject to the court’s discretion to determine whether the offender will be transferred.[18] These statutes typically include minimum ages at which such a juvenile may be transferred, which vary depending on the type of offense, the type of transfer, and so forth.[19]

Wisconsin courts employ a statutory exclusion for certain juvenile-aged offenders, such that once a child attains the age of ten, the law treats the child as a “juvenile delinquent” if he or she commits first degree intentional homicide, attempted first degree intentional homicide, first degree reckless homicide, or second degree intentional homicide.[20] In such instances, the cases solely exist within the criminal court system, such that the offenders never step foot within the juvenile justice system.[21]

In 2014, the world watched as news of the Slender Man stabbing spread like wildfire. There, twelve-year-old Wisconsinites Morgan Geyser and Anissa Weier faced felony charges in criminal court after attempting to stab their friend to death based on later-discovered psychotic delusions and media-based fantasies.[22]

Similarly, Wisconsin’s criminal court system recently employed its statutory exclusion in the case of Kyle Rittenhouse – the seventeen-year-old charged in Wisconsin with murdering two men and attempting to murder another with an illegally possessed AR-15 at a protest on August 25, 2020 in Kenosha, Wisconsin.[23] Above the age of ten and charged with first degree intentional murder and first degree intentional homicide, Rittenhouse met Wisconsin’s requirements for enforcing the juvenile court statutory exclusion – mandating that he be charged solely in criminal court, rather than in juvenile court with the potential to be transferred to criminal court.[24]

Many studies have evaluated psychological development through adolescence and into adulthood and have discovered the differences in mental experience and cognitive functioning throughout these developmental years.[25]“Researchers recognize that it is not possible to determine when a juvenile actually ‘attain[s] adult-like psychological capacities’[26] which would establish the juvenile’s ability to develop the level of culpability necessary to be charged as an adult.”[27] Still, research demonstrates that “youths under age fourteen differ significantly from adolescents sixteen to eighteen years of age in their level of psychological development.”[28] “Youths between the ages of fourteen and sixteen share developmental characteristics with both their younger and older cohorts.”[29] Further, “in a recently released study, the United Nations recommended that, considering research in the field of adolescent cognitive development, ‘[s]tates should establish a minimum age of criminal responsibility, which shall not be below [fourteen] years of age.’”[30]

While Wisconsin’s statutory exclusion as applied to Kyle Rittenhouse aligns with these findings, where the seventeen-year-old exceeds the suggested minimum age of fourteen, it violates the recommendations as applied to the Slender Man case’s twelve-year-old offenders.[31] Further, even applying the parens patriae doctrine as enforced in the first half of the 20^th century pursuant to Illinois’ creation of the first juvenile court, the statutory charging of Rittenhouse in the adult system follows traditional understandings of juvenile mental development whereas the automatic charging of Weier and Geyser in criminal court disregards those traditional standards.[32] Under early 20^th century norms, courts evaluated juveniles between the ages of seven and fourteen who committed certain felonies and used discretion in determining whether each juvenile should be transferred to the adult system.[33] Thus, while psychological researchers, the United Nation’s meta-analysis, and traditional standards all imply that Weier’s and Geyser’s ages should have prevented them from being transferred to the criminal court system – at least not before a discretionary hearing – all of these sources demonstrate that at the age of seventeen, Rittenhouse’s statutory exclusion from the juvenile system can be justified.[34]

Since the beginning of our country, juvenile transfer has been at issue. We’ve seen many changes over time – from allowing seven-year-olds to be sentenced to death, to informal hearings with the State acting as parent, to formal hearings with individual statutory transfer laws and exclusions with varying age minimums.[35] With juveniles continuing to commit violent crimes – including Kyle Rittenhouse’s recent murderous escapade – and further research surfacing about juvenile development, deterrence and rehabilitative solutions, and so on, some laws may need to be updated to ensure they better address these issues, while other statutory minimums may already properly and effectively define when and how juveniles can and will be tried as adults.[36] This topic is everchanging and ever present in the criminal justice system, and as such, prosecutors, defense attorneys, judges, psychologists, and society as a whole should be aware of the pertinent research and statutes and urge their proper implementation.

[1] See Duchess Harris & Carla Mooney, The Juvenile Justice System, 16 (2019); See Howard N. Snyder & Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report 1, 94 (2006).

[2] Harris & Mooney, supra note 1, at 16.

[3] Id.

[4] Id.

[5] Id.

[6] Snyder & Sickmund, supra note 1, at 94.

[7] Harris & Mooney, supra note 1, at 17.

[8] Howard N. Snyder & Melissa Sickmund, Juvenile Offenders and Victims: 1999 National Report 1, 86 (1999).

[9] Harris & Mooney, supra note 1, at 17; Snyder & Sickmund, supra note 1, at 94.

[10] Snyder & Sickmund, supra note 1, at 94.

[11] Id.

[12] Harris & Mooney, supra note 1, at 17-18.

[13] Id. at 18.

[14] Id.

[15] Snyder & Sickmund, supra note 7, at 86 (emphasis added).

[16] Harris & Mooney, supra note 1, at 18; Snyder & Sickmund, supra note 1, at 94, 96.

[17] Snyder & Sickmund, supra note 1, at 96.

[18] Benjamin Steiner, et al., Legislative Waiver Reconsidered: General Deterrent Effects of Statutory Exclusion Laws Enacted Post-1979, 23 Justice Quarterly 34, 35 (2007).

[19] See Robert Hahn, et al., Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services, 56 Morbidity & Mortality Weekly Report 2 (2007), available at www.cdc.gov/mmwr/pdf/rr/rr5609.pdf, at 3 (stating, “With lowered age of adult court jurisdiction, states set the age at which a person is considered responsible for criminal actions, and no longer eligible for juvenile court, to an age younger than the traditional age of 18 years”).

[20] Wis. Stat. Ann. § 938.183(1)(am) (Lexis Advance through Act 18 of the 2019-2020 Legislative Session).

[21] § 938.12(1) (Lexis).

[22] State v. Geyser, 2016 WI App 67; State v. Weier, 2016 WI App 67; See The Slender Man, Fandom Wikia, creepypasta.wikia.com/wiki/The_Slender_Man (October 8, 2019).

[23] Bill Hutchinson & James Hill, Teen suspect Kyle Rittenhouse to stand trial on charges of shooting 3 men at Kenosha protest, ABC News (Dec. 3, 2020), www.abcnews.go.com/US/teen-suspect-kyle-rittenhouse-stand-trial-charges-shooting/story?id=74518909; Minyvonne Burke, Kyle Rittenhouse, charged with killing 2 Kenosha protesters, has bond set at $2M, NBC News (Nov. 3, 2020), www.nbcnews.com/news/us-news/kyle-rittenhouse-charged-killing-2-kenosha-protesters-has-bond-set-n1245953; Stacey Baca, Rob Elgas & Alexis McAdams, Antioch teen Kyle Rittenhouse appears in court on murder charges for Kenosha protest shooting, lawyers say he acted in self-defense, ABC 7 Eyewitness News (Aug. 28, 2020), www.abc7chicago.com/kenosha-shooting-protest-kyle-rittenhouse-video/6393073/.

[24] Hutchinson & Hill, supra note 20; § 938.12(1) (Lexis); § 938.183(1)(am) (Lexis).

[25] Janet C. Hoeffel, The Jurisprudence of Death and Youth: Now the Twain Should Meet, 46 Tex. Tech L. Rev. 29, 40 (2013); Elizabeth S. Scott & Thomas Grisso, Developmental Incompetence, Due Process, and Juvenile Justice Policy, 83 N.C. L. Rev. 793, 813 (2005); See Rachel A. Martin, Waiving Goodbye to Juvenile Offenders: A Multi-State Analysis of Juvenile Transfer Laws, 54.2 UIC John Marshall L. Rev. (forthcoming May 2021).

[26] Scott & Grisso, supra note 25, at 811.

[27] Martin, supra note 25 (referencing Scott & Grisso, supra note 25, at 811).

[28] Scott & Grisso, supra note 25, at 811, 814 (emphasis added).

[29] Martin, supra note 25.

[30] Id. (quoting in part Manfred Nowak, Report of the Independent Expert Leading the United Nations Global Study on Children Deprived of Liberty, United Nations General Assembly 1, 20 (July 11, 2019)).

[31] Geyser, 2016 WI App 67; Hutchinson & Hill, supra note 20; Weier, 2016 WI App 67; § 938.183(1)(am) (Lexis).

[32] Harris & Mooney, supra note 1, at 17-18; Martin, supra note 25; Snyder & Sickmund, supra note 1, at 94

[33] Harris & Mooney, supra note 1, at 17-18.

[34] Id.; Hoeffel, supra note 24, at 40; Martin, supra note 25; Nowak, supra note 29, at 40; Scott & Grisso, supra note 25, at 811.

[35] Hahn, et al., supra note 19, at 3; Harris & Mooney, supra note 1, at 18; Snyder & Sickmund, supra note 8, at 86; Snyder & Sickmund, supranote 1, at 94, 96.

[36] Martin, supra note 25.