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." 

Kenneth Gray was at a house where he sold cocaine when he took a silver gun from his pocket, pulled the trigger once, and killed a man.

It was Dec. 30, 1995. Gray was 14 years old. 

The victim was an adult drug dealer angry that young Gray was working in a Milwaukee neighborhood the man considered his own.

Gray, still in prison, now is 40. He has been incarcerated for almost twice as many years as he was alive when he committed his crime. His 30-year sentence ends in 2026. He is hoping to be paroled before then.

Here is what then-Assistant District Attorney Carol Kraft said in 1996 at Gray's sentencing for first-degree reckless homicide.  Gray was 15.

He, up until he became involved in the drug trafficking...by all the information that I had, wasn't the type of child who had involved himself in these kind of activities and who would have been expected or – I guess one would have predicted to become involved in the events that occurred that day....

Unlike so many people we see, who at the age he came to the criminal justice system have long rap sheets, have many contacts with the police, Mr. Gray was not one of those people. Mr. Gray also doesn't appear to have come from a family where this would have been expected. And I'm sure that this is probably difficult for his mother who has supported him through this as anyone.

Gray's prison life hasn't been smooth. He's had dozens of disciplinary infractions, some of them serious. He's been transferred back and forth between institutions. But now, he says, he wants to get out and go to college, maybe get his pilot's license. He likes to write, and he wrote about his experiences for WJI. He talks about his mandatory release date in the piece below. That is a presumptive parole date that come two-thirds of the way through a prison sentence. The Department of Corrections, however, can decide to keep a person in its care beyond that date.

***

By Kenneth Gray

Here I sit, 4½ years past my mandatory release date (19 July 2016). This is after I've served 22 years of a 30-year sentence that was given to me at the age of 15 years old.

The judge forecast I'd be released early, before 20-year mark MR set by legislation, based upon overcrowdedness of the prison as well as my age. However, the Wisconsin Parole Commission has had other ideas.

When I was first locked up, after juvie and being waived into adult court, I was sent back to Juvie Hall because I was too young to be shipped to the Big House. There I spent 10 months in segregation because by law I was an "adult," yet couldn't be in the general population with other adults. Once I turned sweet 16, off to prison I went.

I have committed 'violations of trust' against the community, its people, and my family with utter disregard for any consequence.

And for that reason I'm on this bus, with this seeming only one-way ticket to prison. There were four of us all under the age of 21. We all possessed a certain level of trepidation. We were "fresh meat," first-timers like me.  Others had small stints in juvie for a couple months, but this trip  here we all "kissed the baby."

By Gretchen Schuldt

​The cost to counties to incarcerate juveniles at the Lincoln Hills / Copper Lakes youth prison would soar almost 50% by June 2023 and hit an annual cost of $299,300, according to the Department of Corrections budget request submitted this week.

In a document largely of meaningful explanatory text, DOC justifies the requested increase in a single sentence: "Rates reflecting the cost of care in juvenile correctional institutions are set in statute and updated each biennium."

The request comes as an agreement to close the scandal-plagued Lincoln Hills/Copper Lake facilities is teetering. 

Lincoln Hills is for boys; Copper Lake is for girls. As of Friday, there were 68 boys held at Lincoln Hills and four girls at Copper Lake, according to DOC population figures.

The state now charges counties $550 per day to house juvenile offenders at the secure facilities, the state's only juvenile prisons of their type. That amount is scheduled to increase to $615 per day on Jan. 1. The DOC's 2021-23 budget request seeks to increase that to $803 per day on July 1, 2021 and $820 per day on July 1, 2022.

That would increase the annual cost of holding a single juvenile at the facility from $200,750 at the current daily rate to $299,300, an increase of $98,500. 

Overall, the department is seeking a budget hike of 4.5%, or $126.5 million over the biennium, from $2.8 billion to $2.92 billion, according to the budget request. The budget assumes an average daily incarcerated population of about 23,205 adults and 102 juveniles, according to budget documents.

The budget request also includes increases of:

• $6.2 million and 43 positions for GPS tracking of sex offenders. The department anticipates tracking 2,681 clients in 2022 and 2,920 clients in 2023. 
•  $3.8 million for the serious juvenile offender program. Again, there is no real explanation  for the requested increase. DOC says only that the money is need to "provide juvenile institution care, alternate care, and community supervision for Serious Juvenile Offenders."

By Gretchen Schuldt

​A federal judge has given the ACLU and its partners the go-ahead to argue that juveniles sentenced to life without a meaningful chance at parole are denied their constitutional right to a jury trial.

It is a new argument in the national battle over juvenile life sentences and one that, if successful, would lead to "significant extensions of current law," according to U.S. District Judge James D. Peterson, who is presiding over the case.

The ACLU of Wisconsin brought the class-action lawsuit in April on behalf of juvenile lifers. It seeks to reform the state's parole process and provide qualified juvenile lifers a meaningful chance at walking out the prison gates. 

The suit alleges that the state consistently denies "release on parole to juvenile lifers who demonstrate unmistakable maturity, rehabilitation and reform, and a low risk to public safety," violations of the Eighth Amendment's prohibitions against cruel and unusual punishment and of the 14th Amendment's guarantee of due process.

The suit also alleges the state violates the juveniles Sixth Amendment right to a jury trial because juries are not making key findings in juvenile lifer cases.

Peterson previously granted the ACLU's request to pursue the Eighth and Fourteenth Amendment arguments,  but initially delayed his ruling on the jury trial claim.