Statements of Philosophy
Statements of philosophy may be adopted by the Board of Directors to address a general issue or topic of significance to intake workers statewide. Such a statement should not be in response to a specific legislative proposal but rather a broad philosophical framework, within which legislative positions are formed.
A Statement of Philosophy should not be subject to change without substantial consideration. Adoption of a Statement of Philosophy requires an affirmative vote of no less than two-thirds of all members of the existing Board of Directors. A motion to revise or rescind a Statement of Philosophy shall not be successful unless supported by an affirmative vote of no less than two-thirds of all members of the existing Board of Directors.
AGE OF ADULT COURT JURISDICTION
It is the Position of the Wisconsin Juvenile Court Intake Association that offenders are best served and the interests of the community are best addressed when the presumptive age for circuit court jurisdiction is 18 years. Therefore, we are recommending that the presumptive age be increased from age 17 to age 18. For those juveniles under 18, waiver of jurisdiction to adult court should be considered on an individual basis by the juvenile court judges.
It is imperative that a change in juvenile court jurisdiction be accompanied by an adequate increase in funding so that counties will be able to absorb the financial responsibility for 17-year-olds while at the same time maintaining at least the current level of services to all populations.
Beginning on January 1, 1996, all Wisconsin youth at age 17 became subject to adult court jurisdiction. The legislative act that removed 17-year-olds from the juvenile system was precipitated by a report of the Juvenile Justice Study Committee. The Committee articulated several reasons for this change. The act was designed to promote accountability of 17-year-olds for their criminal conduct, to promote consistency in the age of adult court jurisdiction with the states of Illinois and Michigan, and to redirect resources from 17-year-olds to younger offenders.
The legislature responded to predictions that there would be an increase in the violent behavior of older juveniles. A plague of “super predators” was anticipated. Popular and professional journals predicted chronic and violent offenders becoming commonplace. There were expectations that adult jurisdiction would bring swift and severe consequences to these 17-year-old offenders. There was also a belief that these 17-year-olds would have the capacity to be effectively deterred from crime by the specter of criminal sanctions. In addition, there was a hope that by removing the financial burden of this class, that there would be substantially increased financial resources to serve the younger population.
National statistics show that the “super predators” never materialized as a class of offenders. The predictions that violent crime would continue to increase were inaccurate. More than 80% of the violent offenses are committed by those 20 years and older. Only 4% of the juvenile arrests in 2003 were for violent index crimes. In Wisconsin the violent index crimes have decreased steadily since 1994.
The intended deterrent effect of the legislation has also been questioned. A wealth of recent research in adolescent brain development indicates that most adolescents simply do not act like adults. They lack the capacity to consistently make behavioral choices based on long-term planning and reasoning. Neuropsychological research shows that important aspects of brain maturation remain incomplete until well after age 21.
The belief that the adult court system will provide swift and severe consequences is not supported by statistics. We are not aware of any statistical analysis that supports that adult courts provide either swift or severe consequences. The statutory time limits in the juvenile justice code tend to provide more expedited action.
The public policy goal of providing effective treatment to offenders to reduce the risk of recidivism mitigates toward the provision of services in the juvenile justice system. Most research points to juvenile justice based treatment as being more effective at reducing recidivism. Marsha Levick, Legal Director for the Juvenile Law Center in Philadelphia, claims that there is uncontradicted research that demonstrates that there is a much greater risk of reoffending by anyone who comes through the adult system. She states that there is a significantly lower risk of reoffending for juveniles who are rehabilitated and treated through the juvenile justice system. A study by the Miami Herald showed that there was a 35% greater risk of reoffending for juveniles prosecuted and convicted as adults in Florida.
It is clear that some offenders are more appropriately served in the adult system. Juveniles who commit serious crimes against persons or who are chronic offenders may require a response that allows a long period of incarceration or control. The existing process for waiver of jurisdiction to adult court allows well-informed juvenile court judges to make appropriate jurisdictional decisions. These decisions should be based on an analysis of the factors and criteria already existing in the Statutes.
No discussion of significant public policy can ignore the financial implications. The burden of providing services to delinquents falls largely on the shoulders of county agencies. With the current restrictions on tax levy increases, no department can absorb the cost of services to 17 year-olds without a substantial negative impact on all other groups. Any legislation that would keep 17-year-olds in the juvenile justice system must also create a new revenue stream to the service providers.
AGE OF JUVENILE COURT JURISDICTION
Should Offenders be Tried as Adults? A Developmental Perspective on Changing Legal Policies. Laurence Steinberg. Temple University and John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice.
Rethinking the Juvenile in Juvenile Justice. Wisconsin Council on Children and Families,
Juveniles Facing Criminal Sanctions: Three States that Changed the Rules. Patricia Torbet, Patrick Griffin, Hunter Hurst, Jr., Lynn Ryan MacKenzie, Ph.D. OJJDP, April 2000.
Adolescents, Maturity and the Law. Why Science and Development Matter in Juvenile Justice. Jeffrey Fagan. The American Project, Volume 16, Number 9, September 1, 2005.
The Transfer of Juveniles to Criminal Court: Does It Make a Difference? D. Bishop,
C. Frazier, L. Lanza-Kaduce and H. White. Crime and Delinquency 42:171-191. 1996.
Separating the Men from the Boys: The comparative advantage of juvenile versus criminal court sanctions on Recidivism among adolescent felony offenders. J. Fagan. 1995.
Roper v Simmons, U.S. Supreme Court
THE APPROPRIATE USE OF SECURE DETENTION FOR JUVENILES
The Board of Directors of the Wisconsin Juvenile Court Intake Association supports limiting the statutory authority to place juveniles in secure detention under 938 to the level allowed as of January 1, 1998. The Board of Directors of the Wisconsin Juvenile Court Intake Association supports removal of statutory authority under 48.208 and 48.209 so as to prohibit placement of children in secure detention.
In January of 1998 the Wisconsin State statutes provided the authority to place juveniles in secure detention both pre-adjudication and post-adjudication. The criteria established in 938.208 focuses on juveniles who present a substantial risk of physical harm or a substantial risk of becoming unavailable for court proceedings. The detention of these juveniles in appropriate facilities is clearly in the best interest of both the juvenile and the community. Certain juveniles will meet the statutory criteria for secure detention, but may be able to be served in another manner that will meet the safety needs of the community. The role of the Juvenile Court Intake Worker to assess each referral is critical. The intake worker, guided by training as mandated under Chapter 938 and controlled by locally created policy and guidelines, is best suited to make determinations of the need for secure detention.
Post Adjudication secure detention is permitted under 938.34(3)(f) (Dispositional Placement), 938.355(6)(d) (Sanctions for Violation of Order), 938.355(6d) (Short Term Detention for Violation of Order), 938.355(6m) (Sanctions for Truancy), and 938.357(2) (Change in Placement). The detention of juveniles in type II Child Caring Institutions and in correctional placements is not a part of this discussion.
The Wisconsin Legislative Audit Bureaus study of the use of secure detention (Report 99-13) revealed that trends were towards a decreased use of secure detention prior to a court hearing and an increased use of secure detention as a post-dispositional consequence. The study reported that these post-dispositional placements in secure detention are believed to provide punishment by holding juveniles accountable for their actions, and to increase public safety by removing them from the community. Upon review of the limited amount of data available, this study suggested that the use of secure detention does not reduce recidivism to any significant degree.
The use of detention should be within the context of the legislative intent and purposes stated under 938.01. The legislature intended to create a system that would protect the community, impose accountability and equip juvenile offenders with competencies to live responsibly and productively. The use of secure detention may protect the community during the time period the juvenile is held in detention. It is also possible that a juvenile may view detention as a method of being held accountable for their behavior. However, the use of secure detention without a specific plan for building competence neglects what arguably is the most important component.
In 1996 the Wisconsin Legislature separated Statutes related to delinquent youth and what are now termed juveniles from the Statutes that relate to children. That Act did not remove from Chapter 48 the ability to hold children in secure detention or county jails.
The provisions under 48.208 and 48.209 may have been continued so as to allow for children who were found to be delinquent under 48.12 prior to 1996 to be held in secure custody. There has been a sufficient amount of time since enactment that no one would currently be subject to that provision.
It is clear that secure detention of children under Chapter 48 is inconsistent with the stated legislative purpose of the children’s code.
There are clear and significant financial disincentives should Wisconsin children be held in secure detention absent an alleged or adjudged delinquency.
FACILITIES FOR SECURE DETENTION OF JUVENILES
The Board of Directors of the Wisconsin Juvenile Court Intake Association (WJCIA) supports the use of facilities designed specifically for the secure detention of juveniles and supports limitations on the use of adult jail facilities.
The WJCIA recognizes that circumstances may require that a juvenile be held in secure detention. The legislature has provided us with a juvenile justice system that is designed to protect the community and impose accountability, as well as equip the juvenile offenders with competencies to live responsibly and productively. It is acceptable and sound practice to hold juveniles in secure detention when they present a substantial risk of physical harm to others or when they present a substantial risk of being unavailable for upcoming court proceedings. In some cases, the use of secure detention is an appropriate dispositional option. When a juvenile violates their court order, it may also be advisable to use secure detention as a tool to hold them accountable.
It is the contention of the WJCIA that the goals of confinement and the legislative intent under 938.01 can best be met in facilities that are specifically equipped to deal with juveniles. Adult facilities can be seriously over-crowded and are not designed to provide the level of programming and care that juveniles require. We believe that juveniles have substantially different supervision and programming needs. Staff that are trained to work with juveniles will better understand juvenile issues and will provide better care and treatment.
The removal of Wisconsin juveniles from adult facilities has followed national trends. The Juvenile Justice and Delinquency Prevention Act allows for exceptions to the federal mandate preventing the use of adult jails for juveniles. The current exceptions allow for the use of adult facilities for short periods of time depending on the population density of the jurisdiction. The administrative rules of the Wisconsin Department of Corrections further controls the use of adult facilities. The WJCIA would recommend that juveniles only be held in juvenile facilities. We do believe that the short term detention of juveniles in adult facilities is acceptable provided that the adult facility conforms to the expectations of the Wisconsin Department of Corrections and the Juvenile Justice and Delinquency Prevention Act.
PROVIDING JUVENILE COURT INTAKE SERVICES UNDER WISCONSIN STATUTES 48.067 AND 938.067
It is the position of the Wisconsin Juvenile Court Intake Association that Juvenile Court Intake Services required by Wisconsin Statute 48.067 and 938.067 shall be provided by employees of the court or a county department or Washington County Sheriff’s Department and should not be sub-contracted.
Currently s.48.06(2) and s.938.06(2) require that, in counties with a population under 500,000, intake services required by s.48.067 and s.938.067 be provided by employees of the court or county department and may not be subcontracted. There are only two exceptions to this requirement. The Statutes do allow that intake services can be contracted from the county sheriff’s department provided they were already contracted from the county sheriff’s department prior to April 1, 1980. The Statutes also allow that secure custody determinations can be provided by the county sheriff’s department in any county where the county sheriff’s department also operates a secure detention facility. These decisions can be made only between the hours of 6 p.m. and 6 a.m. and must be reviewed within 24 hours by an intake worker who is employed by the court or county department.
The issue of privatizing governmental services will continue to be contentious on many levels: legislators looking for solutions to community problems, private agencies, public sector employees and unions all have interest in the issue. Those interested in the quality of, and accountability of juvenile justice services are especially concerned.
This position is limited strictly to the issue of juvenile court intake services as defined at s.48.067 and s.938.067 and whether or not those services are properly provided by employees of government agencies.
The role and responsibilities of the juvenile court intake worker are unique. Juvenile court intake is the first step in the court process. The protection of due process rights begins with the onset of either custody intake or the court intake inquiry. Only intake workers and judges have the statutory authority to coercively place children, juveniles and expectant mothers under Chapter 48 and Chapter 938. Intake workers along with a select group of other professionals have statutory authority to place individuals needing emergency services under Chapter 51. These functions alone provide compelling rationale for intake workers to be guided by statutes and judicial guidelines and free from profit motive considerations.
Senator Russell Feingold has stated that “One of the most serious deprivations of a person’s liberty that a state exercises over its citizens is the power to incarcerate. That authority should not be delegated to any private, for profit entity.” While this statement was made in support of a bill in the U.S. Senate aimed at ensuring that correctional services associated with incarcerated individuals not be privatized, the statement is applicable to incarcerating juveniles or involuntarily placing abused or neglected children.
The power of the state to intervene coercively in families by changing custody and/or placement of children is a momentous deprivation of liberty and should be strictly controlled.
Since the inception of the juvenile court intake function in Wisconsin, intake workers have been given the responsibility of balancing the public interest with the interest of children, juveniles and families as well as determining a threshold of legal sufficiency (prima facie jurisdiction). Intake workers are guided by court policy and guidelines as well as statutes. This tends to ensure that intake decisions are made responsibly and that there is accountability.
Decisions to contract with private entities for traditionally governmental functions are often tied to perceived economic savings and increased flexibility and innovation in services. The question of economic benefits has not yet been answered conclusively in any aspect. Initial cost savings based on lower employee costs are often offset by high turnover rates resulting in training costs and inconsistent levels of performance. Several studies of privatization find that conclusions are very difficult to make or that savings are either minimal or non-existent.
It is critical that children and juveniles receive equal protection under the law and that services be delivered with consistency. A fundamental aspect of contracting for services is that it is likely that a number of different service providers will compete for each contract. This is true within local jurisdictions and more so statewide. Under these circumstances the likelihood of inconsistent application of laws and policies is greatly increased.
Some functions are generally agreed upon to be proper government services. The decision to take and hold people in custody is clearly a government function. The application of laws and court policies are essential functions of government agencies. To contract with a non-governmental entity to perform those functions diminishes accountability but in no way relieves the government of either responsibility or accountability for the decisions.