There are many opportunities to improve the effectiveness of the criminal justice system. Over the past two decades, legislators have focused on ensuring that the punishment component of sentencing is certain and transparent. Although punishment is one goal, another goal should be the reduction of crime, especially in high-crime neighborhoods. While judges in the 1990s increasingly gave lengthy, mandatory sentences on the assumption they deterred more neighborhood crime, another perspective is that certainty of substantial consequences (greater probability of arrest and greater probability of consequences if convicted or probation revoked) could have more widespread deterrence. To reduce crime, it makes sense to incarcerate certain convicted offenders who are likely to be repeat offenders if not confined. Historically, the frequency of criminal activity tops out when people are in their early 20s.¹ When criminal arrests are categorized by age group, the span of 18-21 would have the highest rate by far. There are many offenders in their late teens and early 20s for whom society does not have sufficient information at the time of sentencing to impose the best combination of punishment, rehabilitation, and reintegration supervision. Confinement may seem a simple and sufficiently retributive disposition, but it is expensive (at least $2,500 per month). If confinement will not have a substantial effect in deterring a particular defendant or other potential criminals, the money might be better shifted to evidence-based programs delivered by law enforcement and reintegration supervision that reduces crime in neighborhoods.

We argue here for a change in sentencing options that primarily targets offenders between the ages of 17 and 24. People in this age range fall into a gap between Wisconsin’s juvenile justice policy, which focuses on accountability and rehabilitation, and Wisconsin’s truth-in-sentencing statute, which refuses any consideration of rehabilitation in enforcing its strict requirements for serving 100 percent of ordered confinement time.

Young people have been doing bad – sometimes awful – things for a long time. Because the most heinous crimes are so rarely committed by young offenders, society is especially shocked by an event when the crime is massive but the offender is young and seemingly does not comprehend the severity of the harm done. Society’s tendency is to be dumbfounded in trying to explain such situations. For much of the 20th century, they so seldom occurred that society continued to shelter the offender in the juvenile system.

Initially, the jurisdiction of the juvenile system did not allow any youth to be transferred to the adult system for crimes in which they were involved that occurred before the offenders turned 18 . As guns became more accessible to juveniles and firearms-related crimes became more frequent toward the end of the 20th century, the severity of the risk and harm posed by youthful offenders also increased. Following the theory of “old enough to do the crime, old enough to do the time,” elected officials made it easier to transfer young offenders to adult systems and then even made doing so presumptive, based on the severity of the offense committed. (Wisconsin has original adult-court jurisdiction for all persons 10 years old and over charged with committing certain offenses.) While society pays special attention to shootings engaged in by younger teens, the increased access to firearms by older teens most likely results in more deaths due to underthinking situations. By underthinking, we refer to the brain mechanism of the combination of external stressors and lack of physical brain maturation whereby risks and future consequences are not factors or are totally overwhelmed by the short-term perceived gains. Underthinking also can cause reckless operation of dangerous items such as cars, motorcycles, and guns and suicide attempts.

Differences Between Juvenile and Adult Systems

There are two major differences between the juvenile and adult systems. The juvenile system assumes that offenders will make fairly rapid developmental improvements with the assistance of appropriate rehabilitation programs. The normal disposition length in juvenile court is one year, with the possibility of annual reviews if the targeted changes have not yet occurred. For the most serious offenses, initial dispositions can be to a multiphase Serious Juvenile Offender Program in which the delinquent can be in secure custody for up to three years (up to the 25th birthday for Class A homicide). But as the Wisconsin Legislature changed the maximum sentences for adults to longer and longer periods, the disparity between the possible confinement times in the juvenile and adult systems grew significantly. This growing disparity led to pressure to make it easier to move even more youth to the adult system.

Another major difference between the juvenile and adult systems is that one system more readily acknowledges that, at the time a judge issues a disposition, it is very difficult to predict how the offender will internalize the changes offered to or imposed on him or her. The juvenile court has many feedback loops and points at which dispositional orders can be terminated ahead of schedule or extended. While there are certainly many teens who go through the juvenile system and almost immediately reappear in the adult system when they reach their late teens, there are many more who seem to sufficiently mature while under juvenile jurisdiction.

For years, people with jobs related to the juvenile system or the adult system have known that the late teens and early 20s are high-risk periods. It is evident to officers assigned to particular neighborhoods and to emergency room staff. It is evident to prosecutors, defense attorneys, judges, and correctional facility employees. Studies of recidivism often find that, of the dozens of possible variables, age ranks very high as the least controllable but strongest predictor of persons who will violate conditions of supervision or be arrested again. For many years, behavioral researchers identified the factors that correlated with persons in this 15-to-24-year-old age group acting in very high-risk ways.

Brain-based Scientific Studies

Beginning in the 1990s, researchers began using magnetic resonance imaging (MRIs) to learn more about brain development and activity with living persons. (Prior research was done by pathologists on dead bodies and thus relatively few younger persons could be studied.) The science of MRIs was able to demonstrate that often, long after a person seems to have made the exterior physical transition from child to adult, the brain is still working hard catching up. For many people in this age group, the brain has not yet formed necessary connections that are critical for assessing risk and making “executive decisions” that stop risky behavior or take into account other people. Even though the brain may already have different components such as memory, problem-solving, and social skills, if the executive-decision part of the brain is not yet formed, these other components are not coordinated. Thus, really smart, really nice kids can do really stupid things – especially If urged on by peers.

For decades, both juvenile court and adult court judges have confronted persons in this age group at disposition or sentencing and asked “What were you thinking?” to which many offenders responded by shrugging their shoulders and looking down. The MRI science confirms that the lack of thinking was not a choice but an unobserved physical deficit. To a large extent, sentences are being imposed without the opportunity later to see if this lack of judgment was permanent (such that incapacitation by incarceration might be the only solution) or temporary. Often (but not necessarily always), offenders did not have adult-level thinking and control capacity at the time of the crime and were accompanied by other young people who also shared the lack of capacity to see problems and only had the capacity to see short-term advantage.

U.S. Supreme Court View

Twenty years ago, 17-year-old Christopher Simmons and two younger friends concocted a plan that led them to burglarizing Shirley Crooks’ Missouri home and murdering her by binding her and throwing her off a bridge. There are really no facts that can mitigate Simmons’ involvement, and he even bragged to other people about planning the crime. His attorney argued that Simmons’ young age and impulsiveness were mitigating factors, but the Missouri trial court imposed the death penalty. The case eventually made it to the U.S. Supreme Court.

In 2005, Justice Anthony Kennedy wrote the Supreme Court’s majority opinion in Simmons’ case, finding that evolving standards of decency required a holding that it is cruel and unusual punishment under the Eighth Amendment to impose the death penalty for crimes committed when the offender was under age 18.² Although Kennedy and the dissent sparred as to whether the state court trends had established a national consensus, most significant here is that the majority opinion approved of the considerable scientific research about developmental immaturity and diminished responsibility. While Simmons’ case involved a person who was a minor at the time of the offense, the science and research presented by the briefs refused to identify a bright-line 18th-birthday cutoff but showed there was a continuum lasting until the early 20s.

While Roper v. Simmons is, perhaps, the most famous recent U.S. Supreme Court statement that “juveniles are different,” our proposal is more connected to the 2010 opinion by Justice Kennedy in Graham v Florida.³ At age 16, after committing an offense, Graham was charged as an adult and entered a plea agreement, and the judge withheld adjudication but imposed jail time and probation. Shortly thereafter, Graham was arrested for his alleged involvement in a shooting in which a person was seriously injured. Graham was 18 when he faced a different judge, who sentenced him for violating his initial probation. That judge admonished Graham for not taking advantage of the opportunity he had been given by the first judge to turn his life around. The sentencing judge determined that Graham’s escalating pattern of crime showed there were no other sentencing options and he then sentenced Graham to life in prison without the possibility of parole.

Kennedy began this opinion, like the one in Roper, by looking to see if there was a national trend or consensus. He noted the Roper holding that “[a]s compared to adults, juveniles have a ‘lack of maturity and an underdeveloped sense of responsibility’”; “they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’”; “and their characters are not as well formed.” “These salient characteristics mean that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’”⁴

Wisconsin Should Have Non-Truth-in-Sentencing Option

Our proposal does not suggest that it would be a violation of the Eighth Amendment to impose lengthy periods of confinement under truth in sentencing (TIS) for teens or young adults who commit very serious crimes. We are not arguing for a totally different sentencing procedure for all younger offenders. Instead, we propose that having a concurrent non-TIS sentencing option would benefit both the public and the court systems by more directly addressing the factors often involved in serious criminal behavior by persons in the 17 to 24 age range.

The proposal would allow a court to impose an indeterminate sentence for persons who were under the age of 24 at the time of the offense. (For indeterminate sentences, judges issue a single total sentence and release is determined by the Parole Commission. The remaining unserved portion is parole time; for serious violations, authorities may revoke the offender’s parole and order the offender returned to prison.)

The court would not need to make any special findings in determining whether to issue a TIS or a non-TIS sentence. There would be no entitlement or presumption for a non-TIS sentence requiring additional hearings. There would be no list of crimes that would preclude a non-TIS sentence. In fact, it may be that the intersection of a very serious crime and the youth of the offender is the combination of circumstances for which it is most difficult to predict the eventual public safety situation, after the offender has served a substantial period in prison.

If sentenced to a non-TIS indeterminate sentence, the offender could earn his or her way out of serving the full sentence not only by demonstrating good behavior (the absence of major conduct reports requiring segregation) but also by promptly completing the education and treatment programs identified at the assessment conducted when the person enters prison.

At the time of sentencing, the court would know that the offender would have to serve at least 25 percent of his or her sentence before becoming eligible for parole. The offender would need to serve at least 365 days in prison. Although jail credit would otherwise be credited to the sentence, the jail-credit days would not be counted toward the 365 days. This would allow the Wisconsin Department of Corrections (DOC) a full year to both assess and place the inmate and provide time for the offender to complete the highest priority program.

If the offender were sentenced to a non-TIS sentence, the Parole Commission would evaluate whether the offender meets the criteria for release. However, because the court has the option of ensuring lengthy punishment time by imposing specific confinement time through a TIS sentence, the Parole Commission would not be authorized to use the current criteria of “not sufficient time for punishment” if the offender met the other three criteria involving public safety, institutional behavior, and parole plan.

The DOC would be responsible for ensuring that the offender entered programs on a timely basis so that he or she would likely have completed the highest priority programs during the first one-third of the sentence. This is in contrast to TIS offenders, who normally wait lengthy periods and finally receive their highest priority programs immediately before their nonchangeable, scheduled release date. The DOC would not be expected to establish separate facilities or to otherwise separate TIS and non-TIS offenders in residence or programming.

Because TIS would continue to be available for all offenders in this age group, judges would not be restricted from using TIS when that type of sentence is most suited to guarantee punishment, incapacitation, or public safety. The indeterminate-sentencing system that preceded TIS, in the late 1990s, did not provide judges with this level of certainty, and therefore confidence in the parole system was undermined when very serious offenders were allowed to game the system. It is absolutely necessary to retain TIS in conjunction with the non-TIS system so that courts have the tools they need in all situations and that sentencing decisions are made locally and individually rather than globally, based on assumptions or stereotypes.

Why Prosecutors Can Support this Proposal

Prosecutors, too, can support this proposal because it gives them more flexibility, in the following ways.

1) Increased sentencing options would likely lead to quicker and more effective resolution of cases. Younger defendants charged with moderate or serious crimes are often not able to comprehend possible confinement time that adds up to more years than they have been alive. If they are not able to do anything to reduce their time in prison once the court announces the sentence, offenders of this age might have a very difficult time coming to grips with reality during discussions with their attorneys about pre-trial plea negotiations.

2) By differentiating between cases in which the state is open to non-TIS and cases in which the state insists on TIS, the prosecutor gains credibility regarding identifying the most serious threats to public safety. Certainly there might be media or social pressure to treat 100 percent of offenses as TIS situations, but, with reduced resources for prosecution units throughout the state, elected district attorneys will increasingly need to focus their limited resources for the fullest effect.

3) This proposal recognizes that the 17th birthday (or whatever age is authorized for waiver from juvenile court) is a convenient but often artificial marker in terms of protecting public safety. While the prosecutor does not have the same type of direct communication with the individual defendant as do the defense attorney or parents, the prosecutor does have the advantage of access to information that comes across the charging desk and, after assessment, he or she can exercise reasonable discretion as to which accused individuals in this age group are still in the midst of brain development.

4) There are increasingly accurate evidence-based risk-assessment programs that can assist in evaluating risk. Certainly a defendant does not have to submit to such an evaluation before adjudication, but if an evaluation is done and provided to the prosecution, the prosecutor can use the results to evaluate the risks and decide whether they are amenable to risk-reduction programs.

5) This proposal presents the defendant/offender with the opportunity to immediately make decisions about the rest of his life. From the very first day, the inmate has the possibility of making a choice between two paths. Bad behavior and “going with the flow” will have consequences when viewed by the Parole Commission. Completion of tough assignments will also have consequences. The prosecutor and the judge would still be punishing the individual and protecting public safety but also would be challenging the inmate to mature, rather than implicitly saying that nothing that the inmate does matters to them.

6) This system more efficiently spends limited public funds. Assume three crimes of exactly the same type. Assume three different 19 year olds are facing three judges and that there are not enough differences in background information to distinguish them for sentencing purposes. If the courts give exactly the same sentences to the three and it turns out that one could have been safely released in half the time and the third needed twice as much, this would be a very inefficient expenditure of public funds.

This option admits that, in many cases for this age group, not enough can be known at the time of sentencing to determine the right length of sentence from a public safety perspective. It defers to the medical, educational, and business models that allow for making adjustments periodically along the way. (Under “just deserts” sentencing theory, everything is, indeed, known at the time of sentencing. While “just deserts” arguably meets the justice criteria, it does not meet the “reduce crime” criteria.)

7) With this system, probation becomes more credible and accountable. DOC agents will be more credible when threatening revocation if they can tell the offender that the actual length of confinement might be short or long depending on the offender’s growth curve.

Involvement by Judges and the Legislature

Our proposal does not make any recommendations regarding whether judges should change their policies regarding imposing and staying sentences and ordering probation.

This proposal would require a legislative change. We do not believe that it is soft on crime; rather, it is more effective and tougher on the offenders who present the greatest threat to public safety. Although it is possible that some offenders may serve less time, it is probable that others would deservedly serve more time. Therefore, we do not believe enough is known at this time to predict cost savings.

Conclusion

This proposal would bridge the canyon between the juvenile and the adult systems. Some observers may argue that there should be a canyon so as to better define and protect the benefits of the juvenile system. Some people may believe that by having a “softer” adult sentence option, prosecutors and courts may tend to increase the number of juveniles waived to the adult system and therefore be deprived of the benefits of strong and effective juvenile programs. That argument can be made, and we do not have a response for those under 17 who might lose as a result. On the other hand, we assert that society should not turn away from the many serious problems experienced by (and caused by) older teens and individuals in their early 20s by going along with the convenience of labeling them full adults and not providing them with any transitional benefits.

Endnotes

¹ According to the September 2011 Bureau of Justice Statistics report, the peak year for nonnegligent homicide, robbery, burglary, theft, and weapons violations is age 18. Nineteen is the peak age for drug arrests. Twenty is the peak age for fraud and forgery. Twenty-one is the peak age for aggravated assaults.

² Roper v. Simmons, 543 U.S. 551 (2005).

³ Graham v. Florida, 130 S. Ct. 2011 (2010).

⁴ Id. at 2026.