When a girl was stabbed 19 times in a Waukesha park last May, the suspects were 12 years old, so under state law, they head directly to adult court. The judge will decide whether they belong there or in juvenile court.
The girls told police they stabbed a classmate to please a fictitious character named Slender Man. The victim survived.
Wisconsin changed its juvenile code in the 1990s, lowering the age at which a defendant goes to adult court, from 18 to 17. Former Wisconsin Supreme Court Justice Janine Geske says attitudes had changed.
"The history of children’s court was one of taking care of juveniles and the state serving in the role of parent and trying to work toward rehabilitation of kids who committed crimes,” Geske says.
But, Geske says several states, including Wisconsin, were reeling from vicious crimes children had committed. So the state lowered its age regarding criminal adulthood and changed its rules regarding waivers. Before the 1990s, Wisconsin could waive 16-year-olds into adult court – and children as young as age 14, for homicide. Geske says the new policy flipped the process.
"What switched at that point is this creation of what we call reverse waiver. That is, if you commit certain crimes, you will start in adult court, and then the adult court can look backwards and say, because of the nature of the crime, because of the nature of this juvenile, it’s not going to depreciate the seriousness of this offense, I’m going to take this juvenile who now is in adult court and send them to children’s court,” Geske says.
Geske says a few years later, Wisconsin decided that children as young as age 10 should start out in adult court, if the crime is egregious.
When it comes to deciding which jurisdiction is appropriate – juvenile or adult, Geske says the judge must consider three factors.
“One, and I think this is real relevant in the Slender Man case, is whether or not there is adequate treatment in the juvenile court. Is the juvenile going to be subject for long enough for the kinds of treatment that are necessary, or is this something that can be treated, is sometimes the question.
"The second element is whether, by transferring the case, you would be depreciate the seriousness of the offense, and the third factor is, is it going to impact either deterring that juvenile or others from committing the violation,” Geske says.
Geske says judges must also consider constitutional issues regarding juvenile offenders. For instance, the U.S. Supreme Court has ruled that courts cannot sentence young criminals to death or to life without parole.
The former justice says it can be tough for judges to balance what’s appropriate for the child versus what’s best for public safety.