​Our treatment of accused 10-year-olds has improved since 1858 pre-civil war slave society … right?

By Roy Rogers
Guest Columnist

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.

​Roy Rogers is a Wisconsin Justice Initiative board member. He is a data solutions processor at Quad Data Solutions and a preentry and reentry liaison and information analyst for the nonprofit organization The Community. He also is a public speaker and advocate with the Wisconsin Alliance for Youth Justice.

Rogers committed himself to juvenile justice issues while serving 28 years as a juvenile lifer in the Wisconsin prison system. Now, after release, he counsels and mentors at-risk youth. He is committed to the philosophy of restorative justice, criminal justice reform, and second-chance opportunities for juveniles waived into adult court and sentenced as adults.

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