Hinkle, a 16-year-old boy, was charged as a juvenile in two different counties for a car theft and police chase. In Milwaukee County, the juvenile court waived him into adult court. So, did the Fond du Lac court have to treat him as an adult too?
Two court of appeals judges conclude that it did, in an opinion recommended for publication. The question here is governed by Wis. Stat. § 938.183(1)(b). That statute provides adult criminal courts with “exclusive original jurisdiction” over a
juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction under s. 48.18, 1993 stats., or s. 938.18 by the court assigned to exercise jurisdiction under this chapter and ch. 48 or if the court assigned to exercise jurisdiction under this chapter and ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal proceedings on that previous violation are still pending.
It’s the second “if” that matters here, since Hinkle had been waived, but not yet convicted, in Milwaukee, but the court’s analysis would seem to apply equally to the first situation.
And that analysis is, “the court assigned to exercise jurisdiction under this chapter and ch. 48” means any juvenile court–not just the court where the current matter is pending. So, the Milwaukee juvenile court having waived Hinkle means he can never again be treated as a juvenile, in any county: “once waived, always waived.”
Hinkle had argued to the contrary–that “the court assigned to exercise jurisdiction under this chapter” means the court of the county where the new charges are to be filed. The court of appeals rejects this reading on primarily linguistic grounds:
The language of WIS. STAT. § 938.183(1)(b) is unambiguous and applies here, giving jurisdiction over Hinkle to the criminal court in Fond du Lac County. The jurisdiction under § 938.183(1) is “exclusive” and “original.” The court referenced in subsec. (1)(b) refers only to the court that previously waived. It cannot also refer to a current circuit court exercising juvenile jurisdiction and contemplating waiver because the jurisdiction over the juvenile is automatic and starts straightaway in the criminal court. When the statutory elements are present, the State files a criminal complaint directly in adult criminal court. A juvenile court typically would not see such a case—a juvenile court is not “assigned to exercise jurisdiction” under § 938.183(1)(b). The only reason that Hinkle’s case was in juvenile court in Fond du Lac County was because the jurisdictional waiver by the juvenile court in Milwaukee County had not yet occurred. Once that waiver occurred and the criminal complaint was filed, the criminal court in Fond du Lac County had original exclusive criminal jurisdiction over Hinkle.
Isn’t this just question-begging? The court “assigned to exercise” juvenile jurisdiction can’t be the court considering the new charges, because the court considering the new charges is the adult court, because the statute says so. Why does the statute say so? Because “assigned to exercise” juvenile jurisdiction doesn’t mean the court considering the new charges, because the court considering the charges is the adult court … ∞.
Judge Reilly dissents. He agrees with Hinkle’s reading of the statute, and argues it’s also better policy:
I agree with Hinkle that if the legislature intended a “once waived, always waived” justice system, it would have used the term “any court.” For example, WIS. STAT. § 938.35(1)(b) provides that “[t]he disposition of a juvenile, and any record of evidence given in a hearing in court, is not admissible as evidence against the juvenile in any case or proceeding in any other court except” “[i]n a proceeding in any court assigned to exercise jurisdiction under this chapter and [WIS. STAT.] ch. 48.” (Emphasis added.) Likewise, WIS. STAT. § 938.396(2g)(gm) also differentiates between “any court assigned to exercise jurisdiction” requesting records and “the court assigned to exercise jurisdiction” opening the records related to a juvenile. (Emphasis added.)
I am not opining on whether Hinkle should or should not have been waived. I dissent solely to the removal of discretion regarding waiver. Each county runs its own juvenile system, whereas the state runs the adult correctional system. Fond du Lac County may place more emphasis on its juvenile justice system and may allocate significantly more resources per child/per capita then Milwaukee County in its juvenile services. The problems at the state-run facilities such as Lincoln Hills School and Copper Lake School are well known. By eliminating a court’s discretion to consider “[t]he adequacy and suitability of facilities, services and procedures available for treatment of the juvenile and protection of the public within the juvenile justice system” as mandated by statute, the majority’s “once waived, always waived” policy eliminates the decision as to what is in the “best interests” of the juvenile and the public. See WIS. STAT. § 938.18(5), (6).
An “adult” court cannot order a county to provide its juvenile services program to a child who has been waived into adult court—the child is under supervision of the Department of Corrections. Unfortunately, the root cause of many delinquent acts by juvenile offenders is found within their own homes: poverty, truancy, lack of education, lack of nourishment, absentee parents, drug abuse, etc. The Department of Corrections is not equipped to focus on the home or provide services within the home. Juvenile courts are where we have the authority to get into a child’s home and make the necessary changes to give the child a chance in life. Lincoln Hills or Copper Lake do not.