Children should not be treated as 'miniature adults' in criminal justice | Casey Hoff

The so-called “Slender Man” cases involve two then 12-year-old girls, prosecuted in adult criminal court and accused of stabbing a classmate in the woods multiple times to please a fictional character named Slender Man. The cases involve serious issues, not only about mental health, but also about whether we should be placing children in the adult criminal justice system or whether children should face accountability in the already established juvenile courts.

As the United States Supreme Court said in 2011, “children cannot be viewed simply as miniature adults.” This is common sense and reflected in many areas of our society. For example, we do not allow children to serve in our military, enter into contractual agreements, drink alcohol, run for office or serve on a jury.

This common sense notion is backed up by medical and scientific research, which recognizes that the brains of children are structurally and cognitively different than the brains of adults. Children are not able to engage in the same level of rational-decision making processes as adults. Children are far more susceptible to engage in risky and impulsive behavior, without appreciating the consequences of their actions. According to neuro-scientific research, a person’s brain is generally not fully developed until the person reaches his or her mid-20s.

Adults often talk about all of the “stupid” or bad decisions they made as children. While those decisions may not have involved criminal behavior, for many children, the behavior was criminal in some form.

In any event, many adults who talk about their past behavior as children would never engage in that same behavior as adults.

Many parents are shocked and horrified when their 17-year-old high school student is arrested, hauled into adult criminal court for having “consensual” sex with his nearly 16-year-old girlfriend and prosecuted for a felony adult sex crime. Doing so is patently absurd because it fails to recognize the reality, as much as we may not want it to be true, that nearly half of all teens have had sex by the age of 17, according to a study by the Guttmacher Institute.

The rather arbitrary line we have drawn for the moment when a person becomes “accountable” as an adult is generally understood to be 18 years old. But that is not the case in the adult criminal justice system. Wisconsin is in the extreme minority of states in this country that prosecutes 17-year-old children as adults. For certain particularly violent offenses, such as those alleged in the Slender Man case, children can be tried as adults before they have even reached their teenage years.

The “second chance” bill, which would have reduced the number of teens charged in adult court for many non-violent offenses, was proposed in 2015 by three Wisconsin Republican state lawmakers. Unfortunately, the “second chance” bill is not law today.

Prosecuting children as adults is not very effective and is, in fact, counterproductive in many cases. According to a report by the conservative MacIver Institute and the Texas Public Policy Foundation, children who are prosecuted in Wisconsin’s adult criminal justice system are three times more likely to return to prison than children who go through the juvenile justice system.

Juvenile courts were designed for children as age-appropriate courts focused on rehabilitation and an individualized assessment of the juvenile’s needs, while still holding them accountable, including through the possibility of detention in juvenile facilities.

The adult criminal justice system is simply not equipped to handle or deal with the needs of juvenile offenders.

To be sure, there are real victims of juvenile offenders and juveniles should be held accountable for their actions. One of the more extreme examples of a person who was victimized was the poor girl who was nearly killed in the Slender Man case. Her pain, and the pain of her family and friends, has to be unimaginable. She deserves our sympathy, compassion and respect.

The question is not whether children should be held accountable for their actions. The question is – do we subject children to the same standards of accountability for behavior as adults when we have an already established juvenile justice system? A child may well know the difference between right and wrong at relatively young ages. That does not mean, however, that the child understands or appreciates the consequences of his or her actions to nearly the same degree as an adult.

Treating children as adults, especially in violent offenses, may be enticing and appealing to some. But we must try to put emotion and anger aside. If we do, we will recognize that treating children as adults is not only unwise and unjust, it is also often counterproductive if the goal is to prevent the juvenile from re-offending in the future.

Casey Hoff is a criminal defense attorney based in Sheboygan.