Back in the 1990s, when fears of coming waves of "super predator" criminals gripped the nation, states -- including Wisconsin -- adopted laws allowing serious juvenile offenders to be tried as adults.
The "super predators" never arrived.
The waiver laws stayed.
Now Wisconsin's waiver law is snagging people like TDM, a 15-year-old boy with a history of status offenses and petty crime who was busted for breaking into a gas station and stealing cigarettes, then giving a false name to a police officer.
Kenosha County Circuit Judge David P. Wilk held a waiver hearing where only a single social worker testified. Wilk waived TDM into adult court. TDM (that is how he is identified in the decision) appealed. The waiver was upheld last month by District 2 Appeals Court Judge Mark Gundrum.
Only a single social worker testified during TDM's waiver hearing, according to Court of Appeals records. TDM now faces a longer sentence, access to fewer social services, an adult criminal record that will cripple his prospects, and, according to research, a greater chance of becoming a repeat offender than if he had been retained in juvenile court.
Is this what the waiver laws were really intended to do? When Gov. Tommy G. Thompson signed the revamped, tougher juvenile code in 1995, he specified the type of crime the state was targeting.
"No more kid-glove treatment," Thompson said, according to the Milwaukee Journal Sentinel. "If you commit a violent crime in Wisconsin, your birthday won't protect you any more." (Emphasis added.)
Newer research shows that incomplete brain development in teens may contribute to delinquency. The research, "indicates the juvenile brain is still maturing in the teen years and reasoning and judgment are developing well into the early to mid 20s. It is often cited as state lawmakers consider scaling back punitive juvenile justice laws passed during the 1990s," ABC News reported.
TDM got the brunt of the law without getting the benefit of the deeper understanding of brain development.
This kid was no saint. He was in trouble before he got busted for the gas station job. He already had been adjudicated delinquent for possession of marijuana and criminal damage to property. He did well in a restricted setting, but messed up when he was released. He was place on house arrest, but earned some limited freedom from that.
He met with the social worker hours before the September 2015 gas station job and was "polite," but "shut down," according to the social worker.
TDM allegedly fathered a child. He was expelled from school for continued behavior problems. He disappeared for three months in 2014. The social worker those three things were more indicative of an adult lifestyle than a juvenile lifestyle.
TDM's lawyer argued that TDM's alleged fathering of a baby was a sign of immaturity and not maturity; the social worker admitted on cross-examination that she did not know if TDM got support or food from his mother when he was on the run. She also testified that he did not have his own apartment or driver's license, never held a job and relied on his mother for "sustenance," according to Gundrum's decision.
The social worker acknowledged "this was more 'childlike' than adult in nature," Gundrum wrote.
The social worker also testified that the Kenosha County Division of Children and Family Services would have more than two years to provide services to TDM if he stayed in children's court and that could be enough time; and that the division hadn't tried treatment foster care, residential treatment or juvenile corrections placement.
Gundrum agreed that allegedly fathering a child pointed to an adult lifestyle and discounted TDM's lawyer's argument that no one knew where TDM stayed or who helped him during his three month disappearance.
"Even if TDM did benefit from some assistance from his mother while he was not residing at home for three months, so do many young adults," Gundrum wrote. "The point is, he had left the nest and was making his home elsewhere than with his mother for that period of time."
TDM did well when he was in a restricted setting, Gundrum wrote, and went on to predict the future. Treatment and opportunities offered thus far were unsuccessful "suggesting a continuation down a similar path would likewise be unlikely to succeed with reforming TDM."
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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