Milwaukee judge: 12-year-old to be tried as adult

On Nov. 21, Milwaukee County Juvenile Court Judge Jane V. Carroll upheld Milwaukee County District Attorney’s recommendation to try a now-12-year-old boy in adult court. The youth is charged with first-degree intentional homicide.

The then-10-year-old boy is accused of shooting and killing his mother in November 2022 after a dispute when she refused to make an Amazon purchase and woke the child up early. Court records allege that the boy retrieved his mother’s gun from a lockbox with her key.

Attorneys for the boy have battled for months to get a reverse waiver granted, moving the case from adult court to juvenile court, a process they say is “designed to fail.” They filed a motion arguing that the release waiver statute is unconstitutional, requesting the waiver criteria test (contained within 938.18(5)) be administered instead.

“The waiver criteria provide a much more personalized, fair, meaningful assessment of the youth (including his mental health and development), the charges, treatment amenability, and adequacy of treatment options, and puts the burden on the State rather than the child,” said attorneys Tanner Kilander and Angela Cunningham in a joint statement.

For a reverse waiver to be granted, the juvenile is responsible for providing evidence that
“(1) that the juvenile could not receive adequate treatment in the criminal justice system; (2) that transferring the juvenile would not depreciate the seriousness of the offense; and (3) that it is not necessary to keep the case in adult court in order to deter juveniles from committing a similar violation,” according to Wisconsin statute s. 970.032 (2).

Wisconsin law requires anyone 17 years old and up automatically be referred to adult court, while children as young as ten can be held accountable in adult court depending on the seriousness of the crime, including first-degree intentional homicide. Georgia and Texas also exclude 17-year-olds from juvenile court.

If convicted, the boy faces the potential of life in prison.

The landmark Supreme Court case Miller v. Alabama declared mandatory life sentences without parole for children 17 or younger as unconstitutional. The 2012 ruling was reinforced by the high court in 2016’s Montgomery v. Louisana, retroactively requiring resentencing for those imprisoned and sentenced to life without parole for a crime committed as a juvenile. However, these rulings do not apply to the considered “rare” cases of juveniles for whom rehabilitation is impossible, according to the Equal Justice Initiative.

Wisconsin has yet to impose a ban on life-without-parole sentences for juveniles (JLWOP). Senate Bill 801 was introduced in December 2023 by a group of bipartisan lawmakers to end the possibility of courts sentencing juveniles to life without parole.

According to the Human Rights for Kids 2024 State Rating Report, Wisconsin ranks among the worst in the country for what the report deems human rights framework. Wisconsin is categorized as a Tier Four state, the report defining it as “[having] made little to no effort to protect the human rights of children in the justice system and is likely in violation of international human rights standards.” There are 15 other states with this distinction, including Florida, Georgia, Iowa, and Michigan.

Kilander and Cunningham argue that the District Attorney’s office and Judge Carroll’s decision are “ignoring decades of research on childhood brain development and their
moral obligation to protect children.”

In their joint statement, the attorneys believe the law is a barrier to scientific consideration, and continues the ‘superpredator’ narrative disparaging Black children.

The term ‘superpredator’ was published first in 1995 by American political scientist John J. DiIulio , classifying certain children based on race as more likely to engage in deviant behavior and less deserving of protection.

The 2022 data collection by the Campaign for Fair Sentencing of Youth depicts an uneven implementation of the Miller ruling with 61% of children with JLWOP pre-Miller being Black, and that number increased post-Miller.

“This case lays bare the failures of a justice system rooted in outdated and racist ‘super-predator’ myths. Allowing a ten-year-old to be charged as if he were a 40-year-old adult is not only immoral but unconstitutional,” says Kilander and Cunningham.

The boy is expected back in court on Dec. 5. He remains in custody with a $50,000 bail.