Wisconsin Supreme Court opens term with hot bench and famous attorney on issue of child charged in adult court

Entrance to the Wisconsin Supreme Court hearing room at the State Capitol in Madison. Photograph by Margo Kirchner.

By Alexandria Staubach 

Renowned attorney, author, and human rights advocate Bryan Stevenson argued in the Wisconsin Supreme Court last week on behalf of a child charged in adult criminal court.

He and the state’s attorney faced frequent questions from the justices (making what lawyers call a “hot bench”).

Stevenson represents Noah Mann-Tate, who was 10 years old when charged in adult court with intentional first-degree homicide for shooting and killing his mother in November 2022.

“There are only 14 states where it is theoretically possible to try a 10-year-old child as an adult, and in none of those states has it happened that a 10-year-old child was prosecuted as an adult,” said Stevenson.

While 10-year-olds have been charged as adults, no party could point to an instance of another 10-year-old enduring prosecution in adult criminal court.

After being charged in adult trial, Mann-Tate sought “reverse waiver,” a procedure by which children charged in adult court can apply for transfer to juvenile court.

The circuit court judge found Mann-Tate ineligible to waive into juvenile court based on the statutory criteria for reverse waiver. 

District 1 of the Wisconsin Court of Appeals then ruled that the statute was “unconstitutionally incomplete” for its failure to consider the unique attributes of youth.  

At last week’s oral argument, Justice Brian Hagedorn called that decision “breathtaking” in its failure to apply a complete constitutional analysis. 

Arguments focused on whether the reverse waiver statute permits a trial court to consider age and, if not, constitutional questions about fundamental fairness and due process. 

Implicit in the arguments was whether the factors included in Wisconsin’s waiver statute (found in the juvenile code) by which children are waived from juvenile court to adult court should have been read into the reverse waiver statute (found in the criminal code) even though not set forth in the reverse waiver statute. 

Under statutory procedures for waiver from juvenile court to adult court, a trial court considers the unique attributes of youth when making its determination. 

According to the waiver statute, “(t)he personality of the juvenile, including whether the juvenile has a mental illness or developmental disability, the juvenile’s physical and mental maturity, and the juvenile’s pattern of living, prior treatment history, and apparent potential for responding to future treatment,” are all factors on which the trial court “shall” base its decision when deciding whether to waive a child into adult criminal court.

The reverse waiver statute does not include those attributes of youth. It explicitly requires only that a court consider the seriousness of the offense, the effect waiver might have on deterrence, and the adequacy of treatment provided by adult court and facilities to a juvenile offender. 

There seemed to be some consensus among the justices that if the waiver statute’s youthfulness factors should apply to the reverse waiver analysis, they could simply remand the case back to circuit court with an instruction that the judge consider all relevant evidence, including age. 

However, if a judge is precluded from explicitly considering age under the reverse waiver statute, “that would be unconstitutional,” argued Stevens. 

The hot bench went back and forth with the state’s attorney, Assistant Attorney General Lisa Kumfer, about whether Milwaukee County Circuit Judge Jane Carroll in fact considered Mann-Tate’s age.

In denying reverse waiver, Carroll wrote that “the most compelling reason to keep Mann-Tate in the juvenile system was his age.” She said she felt "10-year-olds do not belong in the adult system” but that it was a legislative decision. 

“The Legislature has clearly indicated that 10-year olds who are charged with first-degree intentional homicide do belong in the adult system, unless those statutory factors are all proven by a preponderance of the evidence with the burden being on the defendant,” wrote Carroll. She found that Mann-Tate could not meet the burden.

Whether she felt precluded from considering Mann-Tate’s age was a significant point of discussion during oral arguments at the Supreme Court.

The state argued that Carroll must have considered age, as Mann-Tate’s age is implied by the nature of the reverse waiver hearing itself.

But the absence in Carroll’s decision of express consideration of maturity, inability to appreciate or comprehend the permanence of his actions, and impulsivity was repeatedly referenced by Justices Chris Taylor and Susan Crawford. 

And the state’s attorney and justices disagreed about whether the trial prosecutor told Carroll she was precluded from considering the youthfulness factors found in waiver statute.

“In our society, the culpability of a child is not considered the same as the culpability of adults,” said Taylor. “For (Carroll) to say look, the most important factor, I can’t even consider it … we’re just supposed to ignore that?” she asked Kumfer. 

“I think that statement is being taken out of context,” Kumfer responded. 

“Do we think explicit consideration of age would have gotten to the opposite outcome?” Stevenson asked the justices. “If we considered the age of the child, you would not be able to use the word 'planning,' as if that’s the same as when applied to an adult,” he said regarding an assertion by the state that Mann-Tate engaged in a premediated crime. 

Kumfer dodged questions from Crawford and Taylor regarding whether the waiver statute should be read into the reverse waiver statute but did not expressly oppose the idea that Mann-Tate’s case could be remanded with an instruction to consider the unique attributes of youth. 

Whether the statute’s failure to explicitly include consideration of the unique attributes of age, and whether that failure was a violation of Mann-Tate’s due process rights, elicited stronger opinions from the state.
 
“Maybe it’s not fair that a 10-year-old can be prosecuted as an adult, but that is a policy choice for the Legislature,” said Kumfer.

Kumfer argued that the law as written is constitutional. “It might be unwise, it might be unfair—as, like, a justice principle—we definitely know things about maturation of juvenile brains now that we didn’t know in 1993, but that means that this needs to go to the Legislature to change it. It does not mean that in every single circumstance a 10-year-old cannot be subject to adult court jurisdiction,” she said.

No justice asked the state what circumstance would warrant the prosecution of a 10-year-old in adult criminal court. 

“I don’t think we need to categorize the constitutional violation in the maze-like way that the state has done,” Stevenson argued. “We fundamentally disagree that the courts cannot create constitutional protections,” he said. 

“They do that all time,” he said, pointing to cases involving parole or the death penalty.