I wish I didn’t have to pick up the proverbial pen and write this as I am forced to revisit prior tragedies and traumas of our society. However, for context and clarity of current events it is necessary. It starts with a headline: “10-year-old Wisconsin boy charged as an adult in fatal shooting of mother over Amazon order of VR headset.” Yes, a tragedy of immense pain for a family, a community, a nation. There’s hurt, pain, anger, frustration, confusion, questions, and emotional fatigue as the community and the courts react and respond to the reality that in Wisconsin a 10-year-old is under the original jurisdiction of the adult criminal court if charged with a homicide offense. See Wis. Stat. § 938.183(1)(am).
 
I am sorry if this starts off and comes off as an emotional appeal, but 10 years old is 10 years old! Our great and progressive State of Wisconsin should not be charging 10-year-olds in adult criminal courts, subjecting them to the state’s harshest penalties. A 10-year-old facing up to 60? In our state? The community was shocked at a 10-year-old being charged as an adult — but not the courts. In fact, our lawmakers in their wisdom thought this to be a good idea when they codified this sentiment in 1995. See 1995 Wisconsin Act 77. This has been the law in Wisconsin for more than 26 years. It is time for us to revisit and rethink this immediately!
 
But how did we get to where we are today, where we are charging 10-year-olds as adults? We have to revisit another tragic event. In 1991, an 11-year-old Racine boy stood on the roof of a community center and shot a man dead as he left the building. The boy had been put up to this by some older teens. However, under the then-existing law, the 11-year-old could not be charged as an adult and was sent to a treatment center. At that time, Racine County Circuit Court Judge Dennis Barry (now deceased) was outraged that the 11-year-old could not be charged as an adult. So he vowed to revise the juvenile justice code to make this a new reality, partnering with Bonnie Ladwig, a Republican representative (also now deceased) who served on a committee tasked to revise the code.
 
The reason this law needs to be revisited is that it was born out of frustration and reaction to a tragic event that provided no simple solutions. What do you do with an 11-year-old who was used by two teen gang members to commit an egregious act? Our lawmakers were under the spell of the now-debunked popular myth of the '90s about the rise of “juvenile super predators.” In addition, the lawmakers did not have at their disposal the solid research we have from the neuroscience community concerning adolescent brain development. In simple terms, the research empirically demonstrates that children are different than adults and should be treated differently than adults because of the “diminished culpability” of the juvenile.
 
In the last decade, the United States Supreme Court has relied on and accepted the research as the basis of numerous policy-changing decisions. The courts have established that children are categorically less deserving of the harshest forms of punishment. See Roper v. Simmons, 543 U.S. 551 (2005); Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the court reiterated that children are fundamentally different from adults and the sentencer must take into accounts a juvenile’s “lessened culpability” and “greater capacity to change.” Miller, 567 U.S. at 465. The changes that made it possible to charge 10-year-olds as adults in Wisconsin are a product of good intentions fueled by bad science, bad policy, and the politics of race.
 
Believe it or not, there was a time when the “children’s court” did not exist. Children and adults accused of crime were lumped together in their treatment. This began to change in 1899 in Illinois with the establishment of the first juvenile court. Wisconsin followed suit with its juvenile court in 1901. Recognizing the need for two systems in the 1900s, we have somehow lost our way and gone backwards in the 21st century, as our laws deem it appropriate to treat 10-year-olds with adult charges and adult sanctions. With what we know now in law, public policy, and science, how can we be all right with a 10-year-old treated as an adult to punish him, when it is quite obvious he has serious emotional and behavioral issues that need to be treated — not in a punitive environment but in a patient and parental setting. This 10-year-old may have some messed up things going on, but he is not a monster. He needs help on so many levels, as he will eventually deal with the grief of not having a mom.
 
If this child is kept in the adult court, he will be exposed to an extreme sentence for his age and will not receive the treatment needed. This child will potentially go untreated until he can he learn how to read and write properly and get his GED, which are prerequisites before any treatment in the adult system. In the meantime, how do we cancel out puberty for this child in an adult setting? And let us not be ignorant of the fact that hundreds of 14- to 16-year-olds have lived in maximum security prisons in Wisconsin for decades. With his charges, the reality of this child staying in a juvenile home until he is 17 or 18 is not realistic. To keep him in the adult system is cruel and unusual and is the equivalent of executing a child, creating a pseudo adult — because there is no such thing as a 10-year-old adult.
 
Let me wrap this up with a story — a true and tragic story. In 1858 in Mobile, Alabama, an enslaved 10-year-old black boy named Godfrey was accused of murdering another child. Godfrey was charged, tried, found guilty, and, after his judgment was upheld, subjected to the harshest penalty of the day. Godfrey was hanged at the age of 10. I have to believe that we are a better society than the pre-Civil War 1858 slave society that felt it was okay to hang a 10-year-old as if he was deserving of the state’s worst form of punishment. Godfrey v. State, 31 Ala. 323 (1858).
 
I have to believe we are better. In the name of Godfrey, we have to be better.

​By Gretchen Schuldt

The Wisconsin Justice Initiative on Tuesday called for Milwaukee officials to develop and adopt enforcement guidelines and accountability measures for the recently announced stepped-up use of the city's curfew ordinance against juveniles and their parents.

"We have seen in the past valid concerns raised about police practices by the ACLU’s stop-and-frisk lawsuit," WJI President Craig Johnson said in a letter to Mayor Cavalier Johnson, Police Chief Jeffrey B. Norman and the Common Council. "Any policy that increases the number of police-citizen encounters and places too much reliance on police discretion raises concerns that these practices will again prove problematic to certain groups."

The ACLU suit resulted in the Milwaukee Police Department and the city agreeing to reforms in pedestrian and vehicle stop and search procedures. The ACLU presented strong evidence of racial disparities in who was stopped and searched. 

Mayor Johnson and Chief Norman announced the increased curfew enforcement last week, in the wake of the mass shooting near the Deer District after a Bucks' game. No juveniles have been arrested in connection with the shooting, and Norman said the stronger curfew enforcement was meant to protect them.

WJI's Johnson said the move could worsen police-community relations unless "the city adopts and publishes accountability measures and enforcement guidelines."

"Curfew enforcement guidelines should make clear how police will enforce the curfew and who is at risk of receiving citations," Craig Johnson wrote. "Is a 16-year-old making their way home from a Brewers’ game going to get a ticket? How about a youth waiting at a bus stop after work?" 
  
The city's primary curfew ordinance makes it illegal for anyone 16 or under to "congregate, loiter, wander, stroll, stand or play in or upon the public streets, highways, roads, alleys, parks, public buildings, places of amusement and entertainment, places of employment, vacant lots or any public places in the city either on foot or in or upon any conveyance being driven or parked thereon." Violations can bring forfeitures of $100-$200.

Parents and guardians can be cited if they "suffer or permit or by inefficient control to allow" violations by minors.

On April 13, 2022, Dane County Circuit Judge Everett Mitchell discussed the pipeline from child welfare to adult prison and his efforts to turn that pipeline off, how to address trauma among the youth he sees in juvenile court, shortcomings in the justice system when it comes to dealing with kids, and the role of a judge.

By Gretchen Schuldt

​The Wisconsin Supreme Court is accepting comments until Jan. 3 on a petition to prohibit routine shackling of juveniles in court.

A public hearing on the matter is scheduled for Feb. 15.

Currently, many counties in the state routinely shackle children during their court appearances. Read WJI's previous petition coverage here. Watch the WJI Virtual Salon with Eileen Hirsch and Diane Rondini, the two lawyers who filed the petition with five circuit judges, here.

The judges who joined in the request were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. 
​
The petition pending before the court would require that restraints or shackles be removed from children before they are brought into a courtroom unless a judge makes all of the findings listed below.

1. The use of restraints is necessary due to any of the following factors:
   a. Restraints are necessary to prevent physical harm to the child or another person.
   b. The child has a history of disruptive courtroom behavior that has placed others in                           potentially harmful situations, or the child presents a substantial risk of inflicting physical             harm on himself or herself or others as evidenced by recent behavior.
   c. There is a founded belief that the child presents a substantial risk of flight from the
       courtroom.

2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm
to the child or another person, including the presence of court personnel, law enforcement
officers, or bailiffs.

The petition also would require a judge to allow the child’s lawyer to be heard before the court
orders the use of restraints. 

The full petition and a supporting memo is posted on the State Supreme Court website here.

Send any comments on the petition to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.

If possible, email a Microsoft Word version of your response to clerk@wicourts.gov. See comment guidelines at the court's website here.

By Gretchen Schuldt

A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday.

The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. 

District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"?

Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion.

Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it:

Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern.

Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser.

He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400.

Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later.

Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped.

He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. 

Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. 

(Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.)

Brandon's lawyer requested the ankle bracelet be removed.

"During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool."

Gill did not address how electronic monitoring would prevent Brandon from hurting himself. 

Brandon's mother expressed concerns about his behavior and the juvenile justice worker said  Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission.

The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother."

The worker also said he "considered electronic monitoring a great management tool," Gill wrote.

"Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote.

Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.)

"All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately."

When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” 

Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments.

"We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote.

When oral and written pronouncements conflict, he said, the oral pronouncement rules.

Attorneys Eileen Hirsch and Diane Rondini headlined the Oct. 13 WJI Virtual Salon to discuss their request to the Wisconsin Supreme Court to restrict juvenile shackling in court.

Five circuit court judges from around the state also signed on to the Supreme Court petition.

Under the proposed new Supreme Court rule, children could not be restrained during a court proceeding unless a judge found one of the following:

• Restraints were necessary to prevent physical harm to the child or another person
• The child had a history of disruptive courtroom behavior that placed others in potentially harmful situations, or the child presented a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior
• There was a founded belief that the child presented a substantial risk of flight from the courtroom

WJI published an earlier blog post on the petition here. The petition and supporting documents are here.

Video of the Salon is below. There were some Zoom problems, so there are a few cuts of unintelligible audio.

By Gretchen Schuldt

​Five judges from around the state are asking the Wisconsin Supreme Court to adopt a new rule restricting the use of shackles on juveniles in court.

"Every weekday, children ages 10 to 17 are brought into Wisconsin juvenile courtrooms in shackles," a supporting memo filed with the petition says. "A few are shackled because a judge or court commissioner has found them likely to flee, or likely to be disruptive in the courtroom. But most are shackled simply because it is routine – sometimes based on a sheriff's policy, sometimes because it is the way it has always been done."

Under the proposed new Supreme Court rule, children could not be restrained during a court proceeding unless a judge found one of the following:

• Restraints were necessary to prevent physical harm to the child or another person
• The child had a history of disruptive courtroom behavior that placed others in potentially harmful situations, or the child presented a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior
• There was a founded belief that the child presented a substantial risk of flight from the courtroom

Restraints use also would be limited to situations where there were no less restrictive alternatives "that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs," according to the petition.

The rule would prohibit use of restraints "that are fixed to a wall, floor, or furniture," the petition says.

Submitting the petition were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. Attorneys Diane R. Rondini and Eileen A. Hirsch also signed. 

"Some Wisconsin counties, including La Crosse, Eau Claire, Marathon, Milwaukee and Dane, have successfully implemented county-level juvenile court shackling rules that, like the proposed rule, establish a presumption against shackling, which can be overridden by a court finding, on the record, that the child is likely to flee, or to cause harm to self or others," Hirsch wrote in the supporting memo. "Approximately 20 additional counties rarely shackle children in court. However, at least 25 counties practice indiscriminate shackling of children in juvenile court."

Thirty-three states and Washington, D.C. have implemented statewide presumptions against shackling children in court, though judges can order shackles when necessary, Hirsch wrote. 

The shame and humiliation that results from shackling "is especially damaging to adolescents, who are in the developmental process of forming their own identities and who are intensely concerned with how others perceive them," she said.

Those emotions can lead to defensiveness, avoidance, and aggression, she said. 

Shackling can also hurt a child's ability to communicate with counsel. 

One assistant state public defender "described her shackled clients as being 'distracted and embarrassed...They crouch down. Sometimes they have to sign papers, but it's hard for them to sign with cuffs chained to their waists,' " Hirsch wrote.

Another assistant public defender said "she has had 'numerous clients who are physically harmed by the use of shackles. I have seen red marks and indentations on my client's wrists and legs.' " 

Children with mental illness or a history of trauma suffer more harm from shackling, Hirsch said. Shackling can lead to worsening of symptoms and make daily functioning more difficult.

Hirsch cited court decisions from around the country that limit juvenile shackling.

"In each of these cases, the court concluded that a presumption against shackling during juvenile court proceedings is consistent with the rehabilitative purposes of the juvenile justice system," she said.

The state Supreme Court has not yet set a public hearing date on the petition.

By Gretchen Schuldt

​A bipartisan group of lawmakers is asking its colleagues to co-sponsor legislation to fully fund a new $42 million juvenile prison in Milwaukee County to replace the scandal-plagued Lincoln Hills and Copper Lake facilities in Irma.

​The Legislature voted in 2018 to close Lincoln Hills and Copper Lake by July 1 of this year and transfer its residents either to a new Type 1 facility to house serious juvenile offenders, or to secure residential care centers that would be built in different areas of the state.

"That date has come and gone, and we have yet to break ground on the first state Type 1 building," the legislators said in the co-sponsorship memo they are circulating to their colleagues. It was authored by State Reps. ​Michael Schraa (R-Oshkosh), Calvin Callahan (R-Tomahawk), and Evan Goyke (D-Milwaukee), and Senators Van Wanggaard (R-Racine), Mary Felzkowski (R-Irma), and Lena Taylor (D-Milwaukee).

​A court-appointed monitor reported last month that youth at the facilities were growing more frustrated and the staff seemed defeated.

The new state budget includes $4 million for planning, design, and site selection for a new Type 1 facility, but does not include money to build it.

"In the four years since the passage of 2017 Act 185, the environment at Lincoln Hills and Copper Lake has remained unstable," the legislators wrote. "The pandemic only exacerbated the difficulties there, with programming pauses and staff turnover contributing to an explosion of violent activity in 2020."

A petition of no confidence against facility administrators by union employees showed that staff injuries were up 4,700% in the first six months of the year from the last six months of 2020. In addition, youth/staff battery was up 117%, sexual misconduct was up 75%, and use-of-force incidences were up 58%, the memo said.

"It is far past time for this facility to close," the memo said. "The Legislature must do its part and approve the funding for the new Type 1 correctional facility, for the sake of the employees who work there, and the youth that have been placed in the care of the state. It is our duty."