One of the tragic circumstances of our criminal justice system is the prevalence of crimes being perpetrated by children, otherwise known in legal terminology as juveniles. While it may come as a surprise given their age and natural proclivity to following instruction, juveniles make up a substantial portion of criminal offenders in the United States.

That dynamic is present in Wisconsin as well, with 26,910 juveniles arrested by county, tribal, and state agencies within the state during the calendar year of 2022.¹ In that same calendar year, there was an average arrest rate of 368 juveniles per county. These arrests range from the more common drug and property related offenses to violent crimes such as sexual assault.

While not all arrests lead to criminal charges being issued, a substantial number end up with juveniles going through the court process. During this process juveniles are placed under the supervision of the courts before going to disposition.

While courts have statutory authority to place juveniles, the limited availability of such placements can be undeniably detrimental to both the juvenile and the wider community.

Arraignment in Juvenile Court

It is important to note that the juvenile justice system differs broadly from the typical adult criminal jurisdiction. Cash bonds, potential bail jumping charges for failing to adhere to release conditions, and the threat of mandatory jail time are not present in the juvenile system. For the most part, the legislature recognizes the age and maturity of juvenile defendants and accordingly have crafted less restrictive statutory measures governing them.

There are two primary ways a juvenile’s delinquency matter can come before the court. The first way is commonly referred to as a referral. In a referral a juvenile’s criminal conduct is referred into a district attorney’s office for a decision on charging. Once a matter is charged a juvenile makes an appearance in court, and the district attorney’s office proceeds with the case to either trial or disposition without any court-imposed restrictions on the juvenile’s movement or activities.

The second way a juvenile delinquency matter comes before the court is through a temporary physical custody (TPC) order. Under this method, a law enforcement agency contacts a county’s human services department upon the arrest of a juvenile. A decision on whether to issue a TPC order is based on several factors, such as whether there is probable cause to believe that the juvenile has gone armed with a firearm or a belief that the juvenile has committed a felony.²

Once the TPC order is issued, the juvenile can be placed in a detention facility before the initial appearance. Following the initial appearance, the court can order various conditions as a result of the TPC order. Any violations of said conditions can result in a juvenile being brought back before the court so the violations can be addressed.

Effects of Outside Placement

In Wis. Stat. chapter 938, the juvenile justice code, there is an explicit instruction to exhaust all avenues before taking a juvenile out of the home of their parents.³ Even in cases with a TPC order, a court will likely attempt to release the juvenile to family members as soon as risks to both the juvenile and the community have been addressed. Despite this, there is a sizable portion of delinquency cases where the court is forced to remove a juvenile from the home.

Studies have shown some issues with juvenile removal from the home. In one of the earliest studies on the topic, research showed that juveniles taken from the custody of their families had worse long term outcomes in areas such as teenage birth rates and recidivism than juveniles who were kept in their homes.⁴

In tandem with this, studies have shown that juvenile delinquency rates are higher when a juvenile comes from a home without two parents present.⁵ These studies stress that a juvenile is best suited within the home under the care of active parents, and absent this leads to outcomes that are worse for not only the juvenile but the wider community.

Juveniles placed in a detention setting often fare even worse. Incarceration at a young age can have a severe impact on a juvenile’s mental health and can lead to depression, post-traumatic stress disorder (PTSD), and suicidal thoughts.⁶ Further consequences of placing juveniles in detention include a decreased likelihood of academic success, as juveniles placed in lockup have lower high school and college graduation rates.⁷

These kinds of consequences can have a profound impact on not only a juvenile’s life but on their families’ efforts to reintegrate the juvenile within the family setting as well.

It should be noted however that oftentimes removal cannot be avoided. As previously mentioned, juveniles that have reportedly committed violent acts or acts involving firearms are considered a high risk to the community.

This is particularly true in regard to the issue of firearms. Largely due to age and maturity, juveniles in possession of firearms are more likely to make deadly decisions. This has been grimly illustrated in Milwaukee, where in 2023 the percentage of victims of homicides and non-fatal shootings under 17 was roughly 14%.⁸

In order to combat this, sometimes courts need to make the difficult decisions to place juveniles in a secure facility to ensure they are not in a position to cause serious harm that would naturally result from reckless firearm usage or other dangerous behavior.

Lack of Suitable Placements

Even with the court’s preference for keeping a juvenile within the home, all too often that is not a possibility.

In cases where a juvenile has committed a significant offense, or engaged in repeated criminal activity, the courts will likely rule that placement in the home is against the best interests of the child and the parent or guardian is unable to provide adequate supervision.

In cases where the parent is the victim, the court may also take steps to remove the juvenile from the home. In many of these cases, a court will rule that a detention facility is the best placement for the juvenile. For cases where less security is warranted, a court will try to pursue placements within the extended family if that option is available.

A difficult question that ends up facing the courts as a result is where to place a juvenile who poses limited risks but does not have parents or extended family who can adequately care for their needs.

For placement options outside of detention facilities when there is no parent or family member available, courts will often look to group homes. For juveniles without available guardians and/or require supervision due to high-risk behavior, group homes can provide an excellent place to provide a juvenile with comfortable accommodations and supervision by trained staff. Multiple issues nevertheless persevere with this type of placement. Juveniles who persist in unruly or runaway behavior can oftentimes lose their spot within the group home, leaving the courts back at square one in finding a viable placement. A lack of available group homes is another roadblock, as courts will discover there are not enough beds available for juveniles in need.

With a decline in residential care facilities such as group homes, juveniles are increasingly being sent to out-of-state facilities far from their communities.⁹ Sending juveniles far from their families to receive care can be detrimental to a juvenile’s already fragile state of mind. The removal of juveniles from their families can also make it harder for the court system to address some of the issues that led to the juvenile’s delinquent behavior.

Other less restrictive options such as foster homes can also prove difficult. While there are many citizens across the state willing to step up and care for at-need children, they are facing difficult circumstances. From recent data compiled by the Wisconsin Department of Children and Families as of Dec. 31, 2021, roughly 7,000 juveniles have been placed in out-of-home care.¹⁰

In addition to trying to bring down the number of juveniles that need homes, foster parents also have to deal with the emotional trauma that many of these juveniles carry. This emotional trauma results from the experience of a juvenile being removed from their biological parents, along with the added possibility of experiencing neglect or abuse in the juvenile’s original home.¹¹

Thus, even with experience in proper childcare, the adults who are willing to foster the juveniles can easily be inundated with the difficulties of raising a juvenile coming from a rough environment.

Conclusion: Where to Start

It’s clear that the juvenile justice system is complicated and carries problems that are not easily addressed. The fact that juvenile cases are confidential and therefore unbeknownst to the public only further complicate matters as it makes it difficult for any concentrated public effort to address the issues.

An important place to start is ensuring viable placement options for juveniles removed from the home. With the juvenile in an important developmental period, it is vital that the juvenile be provided with as stable and nurturing of an environment as possible.

Failing to properly address a juvenile’s underlying issues and maintain stability in their placement can have disastrous consequences and plague both the juvenile and their broader community with further problems down the line.

The views expressed in this article are the author’s own and do not reflect the views of the State Bar of Wisconsin or the Racine County District Attorney’s Office.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ UCR Arrest Data, Wisconsin Department of Justice.

² Wis. Stat. § 938.208(1)

³ Wis. Stat. § 938.20(2)(ag)

⁴ Joseph J. Doyle, Jr., “Child Protection and Child Outcomes: Measuring the Effects of Foster Care,” 97 Am. Econ. Rev. 1583 (2007).

⁵ Michael Torres, “Where Are the Parents?,” City Journal, July 19, 2022.

⁶ Richard Mendel, “Why Youth Incarceration Fails: An Updated Review of the Evidence,” The Sentencing Project, March 1, 2023.

⁷ Id.

⁸ Evan Casey, “‘No child should be carrying a firearm:’ Milwaukee leaders call for end to youth violence,” Wisconsin Public Radio, Aug. 3, 2023.

⁹  Will Cushman, “Why is Wisconsin Sending Hundreds of Children Out of State for Mental Health Care?,” WisContext, 2023.

¹⁰ Natalie Eilbert, “Wisconsin foster children often need mental health care to thrive. Why is it hard to help them?,” Green Bay Press-Gazette, June 23, 2023.

¹¹ Id.