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)(gm),(h)(2020), 48.23(4)(2020). 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. The public defender’s office provides legal representation to the indigent throughout the state in all of Wisconsin’s 72 counties.
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. Some have juvenile court specific court rules within their local rules.
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 young person 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); 48.23(1m)(a)(2020). If a young person is alleged to be in need of protection or services (a status offender) the youth may be represented by counsel at the discretion of the court. Wis. Stat. § 938.23(1m)(b)(2020). Additionally, 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)(2020).
In Wisconsin, youth have an explicit the right to counsel in:
- Detention hearing. Stat. § 938.21(2)(c)(2020).
- Hearing to impose sanctions for violating a previous court order. Stat. § 938.355(6)(c)(2020).
- Hearing on change in placement to juvenile correctional facility or secure residential care center. Stat. § 938.357(3)(a)(2020).
- Hearings on revocation of community supervision or aftercare supervision. Stat. § 938.357(5)(c)(2020).
- Wis. Stat. § 809.30(2)(a)(2020).
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 § 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)(2020). The youth’s parent may be ordered to reimburse the public defender, dependent on ability to pay. Wis. Admin. Code Public Defender § 6.05; Wis. Stat. § 938.275(2)(a)(2020).
Waiver of Counsel
A young person in Wisconsin may waive their right to counsel if they are 15 years of age or older, “if the court is satisfied that the waiver is knowing and voluntary” and the court accepts the waiver. Wis. Stat. §§ 938.23(1m)(a)(2020); 48.23(1m)(a)(2020). If the court accepts the child’s waiver, the court may not place the child in a secure facility, transfer supervision of the child to the serious juvenile offender program, or transfer the child to adult court jurisdiction. Wis. Stat. § 938.23(1m)(a)(2020).
Wisconsin neither authorizes nor prohibits the use of bail in juvenile court by statute or court rule.
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 hold the juvenile was made. . .” excluding weekends and legal holidays. Wis. Stat. § 938.21(1)(a)(2020). Provisions for the detention of juveniles are found in Wis. Stat. §§ 938.19, 938.20, 938.205, 938.208, 938.209, 938.21, 938.217, and 938.23(2020).
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 include three post-disposition proceedings at which youth have an explicit right to counsel:
- Hearings on change in placement to juvenile correctional facility or a secured residential care center. Stat. § 938.357(3)(a)(2020);
- Hearings on revocation of community supervision or aftercare supervision. Stat. § 938.357(5)(c)(2020); and
- Wis. Stat. § 809.30(2)(a)(2020).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a youth who comes within the jurisdiction of the state’s juvenile courts is defined by state law.
- “The court has exclusive jurisdiction, except as provided in 938.17, 938.18, and 938.183,over any juvenile 10 years of age or older who is alleged to be delinquent.” Wis. Stat. § 938.12(1)(2020);
- A young person who is alleged to have committed a delinquent act while prior to the age of ten may be proceeded against as a “juvenile alleged to be in need of protection or services.” Stat. §938.13(12)(2020); and
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 17th birthday; for offenses that occur after age 17, the youth is charged in adult court. Stat. §§ 48.02(2); Wis. Stat. 938.12(2)(2020).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Wisconsin may seek to prosecute a youth as an adults:
- If a youth who is age14 and older is charged with specific offenses, as outlined in the statute. Stat. § 938.18(1)(a)(2020).
- If the youth is age 15 and older and allegedly violated any state criminal law. Stat. § 938.18(1)(c)(2020).
- If the youth had already been adjudicated of an offense and is alleged to have committed battery on peace officers or employees, visitors, or another inmate while incarcerated. Stat. § 938.183(1)(a)(2020).
- If a youth is 10 years of age or older and alleged to have committed certain categories of homicide. Stat. § 938.183(1)(am)(2020).
- If a child has previously been convicted in adult court, they will be prosecuted in adult court for any future felony offenses. Stat. § 938.183(1)(b), (c) (2020).
If the youth has already been waived to criminal court jurisdiction under any of these circumstances, any joined offenses also heard in adult court. Wis. Stat. §938.183(1)(ar)(2020).
Involvement with the delinquency system can affect a youth’s employment, housing, and educational opportunities, leaving the young person with tremendous hurdles as they transition to adulthood. The NJDC Collateral Consequences Page provides more information about collateral consequences of juvenile court involvement.
In a variety of states, NJDC has worked with local partners to create youth and family-friendly guides that provide general information about the collateral consequences of juvenile court involvement, how to overcome these hurdles, and resources to assist in reducing the harm of having a juvenile record. NJDC has not yet created a guide for Wisconsin. We hope to do so in the near future.
State Race Statistics
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) provides juvenile justice profiles for all fifty states and the District of Columbia. Specifically, the data compares the Black, non-Hispanic proportion of the youth population of each state, with the national average, as well as the Hispanic proportion of the youth population of each state with the national average. The data also provides the ratio of youth of color to white youth in residential placement in each state and compares it with the national average.
OJJDP Juvenile Justice State Profiles can be accessed here.
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.