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Home / Commentary / ON THE DEFENSIVE: She was just 17… and shouldn’t be tried as an adult

ON THE DEFENSIVE: She was just 17… and shouldn’t be tried as an adult

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

Under Wisconsin law, a 17-year-old is considered an “adult” for the purpose of criminal prosecution.

When convicted as an adult, the same 17-year-old is subject to sentencing under the criminal code, which could lead to jail or imprisonment in Wisconsin state prisons. Even if not sentenced to prison or jail, he will have an adult criminal record for the rest of his life. The consequences of a criminal conviction, especially before someone has gone to college or entered the workforce, are life-altering.

Recognizing the flaws in this way of doing things, state legislators have introduced a bill that would raise from 17 to 18 the age when a person who is alleged to have violated the law is subject to the procedures specified in the adult criminal code. But before we go on to discuss the merits of this proposal, let it be noted that the proposed legislation — contained in Assembly Bill 378 and Senate Bill 280 — would allow for exceptions.

For example, those who are charged with certain violent offenses would still find their cases being steered into adult court. And those with a prior adult or juvenile offense would not receive the benefit of placement in juvenile court.

This legislation is sensible for a number of reasons. First, very few people now seriously consider a 17-year-old to be an “adult” in any meaningful sense of the word. Most 17-year-olds are still in high school and live at home; none can vote.

Second, research shows that most young offenders’ impulsivity is related directly to their developing brains. Third, the juvenile-justice system offers an array of treatment options that do not exist in the adult-court system. Confinement, for instance, is much less common in the juvenile-court system. Kept out of adult courts, a 17-year-old would be more likely to be assigned a social worker who could devise a treatment and monitoring plan suited to the teenager’s needs.

This bill would also help resolve a bizarre provision in Wisconsin law. Currently, if two 17-year-olds have sexual intercourse with each other, both could face criminal prosecution in adult court.

minorThis means that there are literally thousands of 17-year-olds who are violating the adult criminal code every day. If we think people of this age are too young to consent to sex, we ought to agree that they are also too young to be prosecuted in adult court.

This bill makes sense and offers young offenders a second chance. Time has shown that we can ratchet up penalties, criminalize more offenses and send more people to adult court all we want and still do nothing to reduce recidivism. Putting a 17-year-old in an adult jail is never a good idea, save in the most extreme case.

This legislation is necessary for at least one other reason: Namely, that it will afford prosecutors more means of helping, rather than punishing, juvenile offenders.

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