Hearing seeks move to juvenile court
Boy with mental health concerns was 10 when he allegedly shot his mother
A three-day hearing to decide whether a 12-year-old boy charged with firstdegree intentional homicide should be prosecuted in juvenile or adult court began in Milwaukee County this week.
And given the charge the boy faces — conviction would mean a minimum 20 years of incarceration and a lifetime of correctional supervision — the stakes are high, according to child advocates.
Those knowledgeable about the adult and juvenile justice systems say the latter offers considerable flexibility in treatment access and facility placement. They say turning the boy to the juvenile system could greatly improve his chances of rehabilitation.
Leaving him in the adult system would be “Draconian” or like sending him off to a war, two attorneys who have represented young children in adult court said.
“Kids are not little adults,” said Paul Rifelj, a public defender for 20 years who has focused on juvenile cases. “They are young children. Their minds are not close to being fully developed and the level of criminal accountability they have is not anything close to (adults).”
State law requires that children as young as 10 who are charged with serious crimes such as homicide are required to at least begin proceedings in adult court.
That makes Wisconsin an outlier, as other states have limited children’s involvement in the adult criminal system in recent years. Just three states in the nation, including Wisconsin, process 17year-olds in the adult system, for example.
Such laws have been heavily criticized for their creation in reaction to the superpredator scare in the 1990s — a “racist, in my opinion, public information campaign about how juvenile predators require treatment as adults,” according to attorney Craig Mastantuono.
Critics of such laws argue they contribute to the disproportionate incarceration of people of color and increase the chances of rearrest later in life.
But successfully arguing for a reverse waiver — the transfer of a child from adult to juvenile court — is a rarity.
Here’s what to know about that process, the biggest difference between the adult and juvenile systems and the 12year-old boy’s case:
Boy is accused of shooting mother
The boy was 10 years old in November 2022 when he was charged with
homicide in connection with the shooting death of his 44-year-old mother in Milwaukee.
The Journal Sentinel is not naming him or his mother because of the boy’s age and the circumstances of the case.
Prosecutors initially charged the boy with first-degree reckless homicide but upgraded it to firstdegree intentional homicide in early 2023.
According to court records, the boy told police he was upset at his mother for not buying him something on Amazon and for waking him up early one morning. Prosecutors allege he retrieved his mother’s gun from a lockbox using his mother’s key and shot her.
The boy has a history of mental health concerns and disturbing behavior. Monday, defense attorney Tanner Kilander tied much of those issues to a concussion he suffered in late 2021 when he fell off a swing set.
Kilander said the boy suffered migraines, nose bleeds and issues with sleep, anger and confusion for months afterwards. Despite his mother seeking treatment for her son, Kilander said the boy’s condition only worsened. Simple tasks for him became difficult.
He also has a history of hallucinations and talking to imaginary friends, but multiple doctors who have testified in pretrial hearings over the last year have said they don’t appear to be severe issues.
Vast differences in resources available in adult prison system, advocates say
The biggest difference between a child who’s convicted and processed through the juvenile vs. adult justice systems in Wisconsin is the flexibility in treatment options, according to a former judge and two attorneys who have worked in both systems.
In juvenile cases, after a conviction, a delinquent can be placed in a relatively wide range of facilities and services: group homes, placement with relatives, in- or out-ofstate residential treatment centers or treatment foster homes, according to Paul Rifelj.
In those settings, delinquents can access help for issues with mental health, substance abuse and other concerns. Family and schools play a larger role in the system. The nuance is helpful for children, whose brains are still developing.
“That’s starkly different from adult court, where it’s very much a binary system: prison or probation,” Rifelj said. “The inadequacy (for children) comes in the rigid structure of the limited choices judges have in adult court.”
In 2011, the U.S. Centers for Disease Control and Prevention and the Office of Juvenile Justice and Delinquency Prevention found that children who are transferred from juvenile to adult court are 34% more likely to be rearrested later in life.
And the laws that put juveniles in the adult system have disproportionately affected Black children, advocates argue. Of the nearly 200 people age 19 and younger currently in that system, almost 72% are Black.
Federal law prohibits juveniles from being housed with adults, however. A child serving a life sentence in Wisconsin’s adult system would likely end up at facility such as Lincoln Hills and Copper Lake Schools — secure correctional facilities for youth, until they’re 18. Then they move to an adult prison.
But even that route is not adequate, according to Mastantuono, who once defended a 10-year-old charged as an adult in the Charlie Young beating case in the 2000s.
He noted that Lincoln Hills and Copper Lake facilities have been under intense scrutiny for abuse allegations for years. And when an 18-year-old is moved to adult prison, treatment options vanish.
Based on what he hears from clients who are incarcerated, it’s difficult for prisoners to receive treatment for any conditions until the last several years of their sentence. And that was before staffing issues in multiple Wisconsin prisons in recent years have resulted in chronic lockdowns and service interruptions.
“The first part of your sentencing is warehousing — is punishment,” he said. “There’s not a lot of good rehabilitation in our prisons these days.”
The 12-year-old boy is being housed at the Vel R. Phillips Juvenile Justice Center, where his court hearings have also taken place. He receives schooling there and is allowed visitation.
Monday, defense attorneys called to the witness stand Lynn Bade, a human service worker for Milwaukee County who helps supervise children, assess their needs and arrange professional services for them.
She said those services aren’t bring provided for the 12-year-old boy because he’s in adult court.
“He is at an inherent disadvantage,” Rifelj said.
Laws afford judges ‘all the opportunity to do the wrong thing’
To move a case from adult to juvenile court, a juvenile must prove three things:
● They cannot get adequate treatment in the adult system
● Moving the case to juvenile court would not “depreciate the seriousness of the offense”
● And staying in adult court is not necessary to deter other children from similar offenses
For child advocates, those conditions can seem silly. Rifelj wondered what 10-year-old would be “checking the newspaper to run the actuarial tables” on the prison sentence they’d receive if they committed a certain crime.
But it appears to be rare that a judge will agree to move a child from juvenile to adult court. Rifelj said a simplified counterargument, which can be hard for defense attorneys to overcome, is that children in the adult system still spend the rest of their childhood years in a facility meant for youth before entering an adult facility.
“It’s very difficult because you’re placed against a high-profile, awful allegation,” Mastantuono said. “You have to reverse the flow of the river. It takes a judge with guts, in a high-profile case, that the media is going to be reporting on, to really wade through everything and make a tough decision.
“All of those laws are still in place and the afford the judge all the opportunity to do the wrong thing than the right thing.”