Juvenile Indigent Defense Delivery System
Wisconsin provides counsel to indigent youth through a statewide public defender office that provides trial and appellate representation in juvenile delinquency cases. Wis. Stat. §§ 977.05-4(am), 48.23(4). Public defenders handle about 60% of cases; overflow and conflict cases are handled by private attorneys who are certified by the State Public Defender. Certification requirements depend on the complexity and specialized knowledge needed for a case.
Though Wisconsin does not have statutorily required training requirements or standards for attorneys representing youth in delinquency proceedings, the Wisconsin State Public Defender developed Principles of Juvenile Defense Practice that outline best practices for juvenile defense attorneys.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. Wisconsin does not have specific juvenile court rules at the statewide level, but local court rules may apply to juvenile proceedings in that jurisdiction.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In Wisconsin, a juvenile alleged to be delinquent or who is held in a juvenile detention facility has the right to counsel at all stages of the proceedings. Wis. Stat. § 938.23(1m)(a). If a juvenile is alleged to be in need of protection or services (a status offender) the juvenile may be represented by counsel at the discretion of the court. Wis. Stat. § 938.23(1m)(b). In addition, if not explicitly prohibited in the right to counsel statute, “at any time, upon request or on its own motion, the court may appoint counsel for the juvenile or any party, unless the juvenile or the party has or wishes to retain counsel of his or her own choosing.” Wis. Stat. § 938.23(3).
A child is specifically entitled to counsel at the following stages:
- The detention hearing, Wis. Stat. § 938.21(2).
- Hearing to impose a sanction for violating a previous court order, Wis. Stat. § 938.355(6)(c).
- Hearing on change in placement to juvenile correctional facility, Wis. Stat. § 938.357(3).
- Hearings on aftercare revocation, Wis. Stat. § 938.357(5).
- Appeal (unless allowed to withdraw by court), Wis. Stat. § 809.30(2).
Determination of Indigence
Wisconsin presumes all youth before the juvenile court are indigent. “If a juvenile has a right to be represented by counsel or is provided counsel at the discretion of the court under [Wis. Stat. § 938.23] and counsel is not knowingly and voluntarily waived, the court shall refer the child to the state public defender and counsel shall be appointed by the state public defender … without a determination of indigency.” Wis. Stat. § 938.23(4). The juvenile’s parent may be ordered to reimburse the public defender, dependent on ability to pay. Wis. Admin. Code PD 6.05.
Waiver of Counsel
A juvenile in Wisconsin may waive his or her right to counsel if he or she is age 15 or older, and the court accepts the waiver after being satisfied that the waiver is knowing and voluntary. Wis. Stat. § 938.23(1m)(a). If the court accepts the child’s waiver, the court may not place the juvenile in a secure facility, transfer supervision of the juvenile to the serious juvenile offender program, or transfer the juvenile to adult court jurisdiction. Wis. Stat. § 938.23(1m)(a). A youth under the age of 15 may not waive the right to counsel. Wis. Stat. § 938.23.
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Wisconsin, a detention hearing must occur within 24 hours after the end of the day on which the decision to detain the child was made, excluding weekends and legal holidays. Wis. Stat. § 938.21(1)(a). Provisions for the detention of juveniles are found in Wis. Stat. §§ 938.19, 938.20, 938.205, 938.208, 938.209, 938.21, and 938.23.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Wisconsin statutes list three post-disposition proceedings at which youth have a right to counsel.
In Wisconsin, youth have a right to counsel in the following post-disposition proceedings:
- Hearing on change in placement to juvenile correctional facility, Wis. Stat. § 938.357(3);
- Hearings on aftercare revocation, Wis. Stat. § 938.357(5);
- Appeal (unless allowed to withdraw by court), Wis. Stat. § 809.30(2).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Wisconsin:
- The youngest age at which a juvenile can be adjudicated delinquent is ten, Wis. Stat. sec. 938.12(1);
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 17th birthday; after age 17, the youth is charged in adult court, Wis. Stat. § 48.02(2);
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 17. Wis. Stat. § 48.366(1)(2);
- Juvenile court retains jurisdiction over youth until age 25 if the youth is adjudicated delinquent of first-degree homicide. Wis. Stat. § 48.366(1)(2).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Wisconsin has three ways that juveniles can be prosecuted as adults:
- Discretionary Waiver for youth 14 and older who meet the statutorily-delineated offense criteria. Wis. Stat. § 938.18(1).
- Statutory Exclusion required for homicide and for offenses related to assault on peace officers while incarcerated or after having been adjudicated delinquent, Wis. Stat. § 938.183(1).
- Once an Adult, Always an Adult, Wis. Stat. § 938.183(1)(b).
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in Wisconsin. If you would like to collaborate with NJDC to fund-raise for, plan, or engage in an assessment in this state, please contact us.