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COA holds there’s nothing wrong with sending kids to a juvenile prison that, legally speaking, shouldn’t exist

State v. J.A.J., 2022AP2066, 11/14/23, District I (ineligible for publication); case activity

In a noteworthy juvenile appeal, COA rejects a novel argument highlighting the dysfunctional nature of our juvenile justice system as caused by the “closure” of Lincoln Hills.

J.A.J. appeals a dispositional order for the serious juvenile offender program (SJOP) with placement at Lincoln Hills. (¶4). As J.A.J. points out however, this is a problem because in 2018 the Wisconsin legislature passed a bill closing Lincoln Hills with the intention that a new correctional facility be built; this has not happened. (¶14). As a result, J.A.J. challenges this dispositional order.

First, he attacks the circuit court’s order using a complex statutory construction argument. To understand the challenge, a brief primer on the relevant statutes is necessary. The statute permitting the circuit court to place a juvenile in SJOP  requires, as a condition precedent, that the court make a finding “that the only other disposition that is appropriate for the juvenile is placement in a juvenile correctional facility under sub. (4m).” § 938.34(4h)(b).  While the legislation “closing” Lincoln Hills did not modify this statutory language, it actually “eliminated reference to “juvenile correctional facilit[ies]” in § 938.34(4m).” (¶15). Instead, the statute now references placement in a county-administered “secured residential care center for children and youth.” (Id.). As COA points out, however, the juvenile justice code does have an escape clause, permitting placement in a “Type 1 juvenile correctional facility” if, for example, the hypothetical SRCCCY does not have space for the juvenile. (Id.). 

So, what is a juvenile correctional facility? Once again, definitions have changed. While the statute used to refer explicitly to Lincoln Hills and Copper Lake, the new version instead uses a more generic definition–a  “correctional institution operated or contracted for by the department of corrections or operated by the department of health services for holding in secure custody persons adjudged delinquent.” § 938.02(10p). As COA acknowledges, this sweeping legislation was meant to transfer  juveniles out of Lincoln Hills in order to facilitate the closure of that troubled facility…except that, as of today’s date “[n]o SRCCCY or replacement Type 1 juvenile correctional facility has been built.” (¶18).

On appeal, J.A.J. therefore argues

that, because the 2017 Act eliminated the reference to “juvenile correctional facilit[ies]” in WIS. STAT. § 938.34(4m), the only appropriate placement for a juvenile placed in the SJOP is in an SRCCCY. He further contends that, even if placement in a Type 1 juvenile correctional facility was permitted, J.A.J. could not
be placed at Lincoln Hills, in particular, because it is supposed to be closed. J.A.J.
concludes that there is currently no secured facility at which a court can place
juveniles adjudicated delinquent for serious crimes because no SRCCCYs and no
Type 1 juvenile correctional facilities other than Lincoln Hills or Copper Lake


Despite an extremely lengthy prefatory discussion of the statutory language, COA then swiftly dispatches J.A.J.’s statutory construction argument. In COA’s view, the amended language of  § 938.34(4m) is irrelevant. While the SJOP statute does require the court to make a finding that “the only other” appropriate disposition would be a correctional placement, the SJOP statute “does not require a physical placement under sub. (4m) or in an SRCCCY or any physical placement at all.” (¶25). COA therefore reads the statute as requiring a finding “that, if the court does not enter a dispositional order for the SJOP, the only other appropriate option is mandatory secured confinement pursuant to a dispositional order under sub. (4m).” (Id.). Instead of being controlled by sub. (4m) as J.A.J. suggests, COA points out that physical placement options for SJOP are governed by a separate statute, § 938.538. (Id.). Those placement options include…”placement in a Type 1 juvenile correctional facility or in a SRCCCY.” (Id).

We therefore come to the root issue and J.A.J.’s larger argument: That no matter how you slice it, J.A.J. is subject to a statutory scheme where, at present: (1) there are, in fact, no Type 1 juvenile correctional facilities available other than an institution which was “closed” by the legislature and (2) there are also “no SRCCCYs currently in operation.” (¶34).

However, COA is untroubled as, after all, the legislature’s command to close Lincoln Hills is only a “nonstatutory” “legislative enactment” that may or may not (in COA’s view) have the force of law. (¶29). Given that the legislature did nothing to alter the statutory requirement that “the court’s dispositional placement account for and meet the juvenile offender’s and the public’s needs[,]” (¶32), and did not set forth any enforcement mechanism to ensure that the contemplated closure actually occurs, the closure deadlines “were aspirational policies and not intended to prohibit placements at Lincoln Hills or Copper Lake if the deadlines were not met.” (¶33). Because the legislature continues to fund these “closed” institutions–and because the alternative would be to “eviscerate” the ability of the juvenile justice code to protect the public–COA rejects J.A.J.’s challenges to a dispositional order placing him in a facility that, legally speaking, should not exist. (¶¶34-35).

While we know that the statutory discussion is a slog (and our synopsis way too long), the upshot is simple: Despite the legislature’s belated decision to close a crisis-plagued institution where abuse of children was apparently rampant, the legislature’s failure to solve the crisis by replacing that institution (or clarifying our convoluted statutory scheme) means that the juvenile justice system is permitted to carry on with “business as usual,” at least until the empty promises of the closure bill are finally fulfilled via truly meaningful reform. In other words, we need to build, fund, and staff the institutions the legislature directed judges to use rather than forcing problematic workarounds for system actors.

Stepping off the soapbox, there’s two more brief notes on the issue that should be made: (1) This decision does not directly resolve the scenario where children find themselves under a straight corrections placement (as opposed to a SJOP order) under sub. (4m). There, the statute clearly directs system actors to use a resource that has not been constructed and, while COA is correct that workarounds can be found, the employment of such kludges is often inelegant and strained, forcing the parties to use statutory and procedural tools in ways that feel intuitively incorrect. (For example, the statute permitting transfer from a SRCCCY to correctional facility appears to require that the juvenile be in fact placed at such a facility; it goes without saying that a person cannot be placed at a nonexistent facility; likewise, the practice of correctional placement via change of placement motion creates its own internal tensions). (2) If you are wondering why this issue is just now getting litigated in COA, it might make sense to think about the Hobson’s choice currently foisted upon juvenile litigants in serious cases where a corrections placement is on the table: To consent to a potentially unlawful placement at a notoriously abusive institution or, in the alternative, face potential waiver into adult court.

Finally, as a side issue, J.A.J. also challenges the restitution order. (¶40). Although the victim submitted an itemized list of lost property with accompanying valuation, he did not provide documentation as to how he had arrived at that valuation. (Id.). COA rejects J.A.J.’s challenges, holding that a bald assertion of value from a claimant is sufficient under the restitution statute and the deferential standard of review applicable to restitution orders. (¶41).

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