In Wisconsin, there are two primary ways that a juvenile can be charged as an adult in state criminal court. The first is known as the “discretionary waiver.” For certain offenses, either party (the juvenile or the State) can file a petition or the juvenile court can initiate a proceeding to “waive” jurisdiction so that the child may be tried as an adult. The second is under a statutory exclusion. Wisconsin’s Juvenile Justice Code includes a number of specific exclusions under which children as young as 10 can automatically be tried as adults.
“Juvenile” Status Ends at Age 17
Before we get into our discussion of discretionary waivers and statutory exclusions, it is important to note that “juvenile” status ends at age 17 in Wisconsin. While 18 is the age of majority for most purposes, for purposes of criminal prosecution and punishment, children are automatically treated as adults upon reaching their 17th birthday.
Discretionary Waiver of Juvenile Jurisdiction
Under Section 938.18(1) of the Wisconsin Juvenile Justice Code, there are three circumstances under which the juvenile, the district attorney, or the juvenile court can seek a waiver of juvenile jurisdiction. If the waiver is granted, the juvenile will be tried in criminal court; and, if the juvenile is in custody, he or she “shall be transferred to an appropriate officer or adult facility and shall be eligible for bail.” Juvenile cases that are eligible for a discretionary waiver include:
- Any state criminal charges against a juvenile 15 years of age or older;
- Felony murder, second-degree reckless homicide, first or second-degree sexual assault or kidnapping, distribution of controlled substances, and certain other qualifying offenses committed by a juvenile 14 years of age or older; and,
- Qualifying felony offenses committed at the request or for the benefit of a criminal gang by a juvenile at least 14 years of age.
When considering a petition for a discretionary waiver, the juvenile court must assess five factors:
- The juvenile’s personality
- The juvenile’s prior record
- The type and seriousness of the offense
- The adequacy and suitability of juvenile facilities
- Whether any co-defendants are being tried in criminal court
Statutory Exclusions to Juvenile Jurisdiction
There are a number of limited circumstances in which a child will automatically be tried as an adult in Wisconsin. For example, under Section 938.183(1)(am) of the Wisconsin Juvenile Justice Code, children age 10 and older are subject to the jurisdiction of Wisconsin’s criminal courts for charges of first and second-degree intentional homicide, attempted first-degree intentional homicide, and first-degree reckless homicide. Juveniles who are in detention or on probation or parole will also be tried as adults for any assault or battery offenses committed against inmates, visitors, detention officers, probation officers, or aftercare agents.
Disclaimer: This Article Is Not Legal Advice.
Never rely on an article for legal advice as the law frequently changes, information may not be accurate, there may be exceptions to a rule, and reliance may be detrimental. Always consult one of our experienced attorneys for competent, current, and accurate legal advice.
Speak with a Wausau, WI Defense Attorney at Crooks, Low & Connell, S.C.
If you or your child is facing juvenile or criminal charges in Wisconsin, it is important that you promptly seek advice from an experienced defense attorney. To schedule a consultation at Crooks, Low & Connell, S.C., please call (715) 842-2291 or submit our consultation request form now.