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ON THE DEFENSIVE: Children need shields from adult courts

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

In the past decade, there have been a series of U.S. Supreme Court decisions interpreting the Eighth Amendment, which prohibits “cruel and unusual punishment,” as it applies to juvenile defendants.

In each instance, the justices have considered evolving scientific literature and found that the Eighth Amendment requires treating children much differently than adults.

In 2005, the court found the death penalty unconstitutional when applied to juveniles. The justices, in Roper v. Simmons, examined scientific and sociological research and found three primary differences between juveniles and adults: impulsivity; vulnerability, primarily to negative influences; and malleability, meaning children are more apt to change when faced with positive influences.

The court grounded its findings in the Eighth Amendment, finding that evolving standards of decency make the death penalty unconstitutional for juveniles.

In 2010, in Graham v. Florida, the Supreme Court relied on Roper to eliminate the next-most extreme punishment for children: life without parole in nonhomicide cases. Justices noted that ongoing developments in psychology and brain science continue to show fundamental differences between juvenile and adult brains.

Most recently, in 2012, the Supreme Court held in Miller v. Alabama that mandatory sentences of life without parole are unconstitutional for juvenile offenders. That represents a natural extension of the Graham holding.

The trend of interpreting the Eighth Amendment to provide more protection for juvenile offenders probably will continue. As society’s ability to study the human brain improves, scientists will continue to find that children are fundamentally different than adults.

Yet in Wisconsin, like many states, laws still permit children as young as 10, 11 and 12 to be prosecuted in adult court. For some charges, such as homicide or attempted homicide, state law requires it. The law then places the burden of proof on the child before jurisdiction can be transferred to children’s court.

Those statutes will have to be revisited as the science improves. Laws sending 11 year olds to adult court were enacted when legislators lacked the scientific literature on juvenile brain development and the guidance provided by the Supreme Court during the past decade.

Meanwhile, lawyers will need to continue studying the research while reminding judges of the Supreme Court’s prescient admonition: “From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult.”

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