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In Wisconsin, we can send people to prison for things they did when they were 5

State v. Shaun M. Sanders, 2018 WI 51, 5/18/18, affirming a published court of appeals decision, 2017 WI App 22, case activity (including briefs)

The state can criminally punish a person for something he or she did as a small child.

Sanders was tried on four counts relating to sexual acts with his sister, two years his junior, over a period of about 10 years, beginning when he was 8 or 9 and she was 6 or 7. The jury acquitted him of the only charge arising from his conduct when he was under 10 years old (the age at which one can be subject to juvenile delinquency proceedings, ¶7), but he argues his counsel was ineffective for not trying to get that count dismissed before trial, because its inclusion allowed the introduction of evidence that hurt him on the other counts of which he was convicted.

A five-justice majority holds that the fact that Sanders was charged when he was 19 is the only fact that matters. And that is really the only takeaway here for the practitioner. It’s a very simple rule. Once you turn 17, you are an adult (though don’t try to vote–for that purpose you’re a child, and voting as a child is a felony, for which you’d be charged as an adult) and whatever you did as a child is now an adult crime. So Sanders’s lawyer wasn’t ineffective for not saying an 8-, or 7-, or 6-, or 5-year-old child can’t commit a felony carrying lifetime imprisonment, because in fact that child can.

The reason for this is that the statutes don’t explicitly say otherwise. Or, in the court’s words, the “long-standing principle” “based upon sound legal reasoning and longstanding principles of statutory competency” that the statutes don’t explicitly say otherwise. Besides, the court says, forbidding criminal punishment of the acts of a single-digit aged kid would conflict with the statute of limitations: that is, sexual activity from say, 10 years ago would not be punishable, despite the fact that the statute of limitations says such crimes can be charged until the victim turns 45.

A statute of limitations sets a time limit for the prosecution of crimes. It has nothing to do with defining what is, or is not, a crime.

Lest this holding trouble anyone, the court points to three limitations on prosecuting the acts of grade schoolers: the general six-year statute of limitations on felonies (so kids can only be charged with the most serious crimes); the fact that most (but not all) require intent a jury might not ascribe to a child; and the constitutional prohibition on the government intentionally delaying charges to make juvenile acts criminal. (¶53).

The concurrence says Sanders’s lawyer wasn’t ineffective because it’s not settled that a kindergartner can’t commit felonies, but asks the legislature to fix it.

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