Hazel Behling and Hannah Sohn
As a nation created in the image of the Constitution and the Bill of Rights, the United States was founded on the principles of “liberty and justice for all.” While these ideals intend to transcend beyond parchment, the promises are meant to embody the life prospects for all American people. Yet certain public policy decisions, practices aren’t equally distributed to all, and benefits are reaped by a select few. This policy memo aims to address the cruelty and injustice perpetrated within the current juvenile justice system in Wisconsin. This brief will expose the inequities that draw from the systems of prosecuting and incarcerating our youth. Specifically, this memo demonstrates the disproportionate incarceration and mistreatment of offenders among marginalized groups and particularly within the Black, LGBTQ+, and mentally ill communities. This memo recommends that the Wisconsin government reform the current juvenile justice system and shift toward a system that reinforces true justice, with government policies that focus on prevention, education, rehabilitation, and restorative justice practices.
The current Wisconsin juvenile justice system maintains unfair treatment of marginalized groups. The United States currently leads the world in both juvenile and adult incarceration rates. This corresponds with nationwide statistics detailing over 60,000 youth incarcerated across the country and more than 800 youth incarcerated in Wisconsin. Similarly, the United States is the only country in the world that allows for youth, whose brains are still developing, to be sentenced to life without parole despite international law condemning the practice of sentencing children to die in prison.
Wisconsin has two main juvenile justice facilities: The Copper Lake School for Girls and The Lincoln Hill Juvenile Correctional Facility. As these two prison’s demographics reflect the system’s exploitation of marginalized groups, the primary offenders represent underprivileged racial minorities, members of the LGBTQ+ community, and individuals with mental health disorders. Despite the Black population representing only 6.7% of Wisconsin’s population, 72% of the youth supervised by the division of juvenile corrections are Black. Similarly, LGBTQ+ youth make up 9.5% of the general population but 20% of the juvenile justice system. These inequities are exacerbated with their incarcerated rate at 3x the amount of cisgender heterosexual individuals. Additionally, individuals that struggle with mental health are overrepresented on a national and local scale within the juvenile justice system. As seen in 2016, 76% of youth at Lincoln Hills or Copper Lake received mental health services such as dialectical behavior therapy, cognitive-behavioral treatment, and sex offender or substance use disorder treatment.
These facilities face the threat of closure due to widespread abuses and police misconduct. Currently, the Lincoln Hills and Copper Lake facilities have faced reports detailing routinely holding up to 20% of their youth population in solitary confinement for up to 23 hours a day. These practices result in psychological consequences of depression, anxiety, PTSD, and psychosis . Juveniles face threats of increased risk to adverse reactions due to their developmental vulnerability. As indicated within individual reports, one offender was held in solitary confinement for five months. While she admitted her experience resulted in suicidal thoughts, she disclosed these tendencies resulted from her solitary confinement. The reports are widespread as other inmates have contested physical abuse from guards that resulted in fractured bones. Consequently, these injuries were sometimes ignored for weeks despite repeated complaints.
The most recent report released January 25, 2021, concluded that guards in Lincoln Hills and Copper Lake used handcuffs or holds on teens more than double that of the national average. This report found that nearly 80% of staff felt they had no authority over inmates while only 7% of youth felt they were respected by staff.
These facilities were initially supposed to be closed by July 2021 due to permeating extraneous and unjust conditions for inmates and workers. However, the state legislature has been unable to allocate adequate funding for suitable replacement facilities. As Dane, Milwaukee, and Brown County have rescinded their applications to operate community-based facilities, this has left only Racine as a possible location for new facilities. The delay has been exacerbated by Wisconsin state law which deters county building initiatives. Although Wisconsin’s law requires every county in Wisconsin to have an operating juvenile detention facility, it provides alternatives to contract with another county or private facility for juvenile detentions. As insufficient funding endures and counties can’t afford juvenile facilities, individuals from primarily low-income minority counties in Southern Wisconsin are being held in facilities far from home in Northern Wisconsin.
As this law coincides along with prison gerrymandering, the combinations of these unjust systems work perpetuate systemic racism in Wisconsin youth facilities. Prison gerrymandering details the process in which legislators rely on the Census Bureau to draw legislative districts. Ultimately, this gives more representation to districts with prisons and diminishes the representation of individuals in other districts. This process affects election outcomes because of the laws that exclude those with a criminal record from voting. Additionally, this practice allocates more resources to communities with juvenile justice facilities and prisons. Since communities with higher populations tend to be higher recipients of census-guided funds, prison gerrymandering unintentionally diverts resources from primarily communities of color where offenders actually live. This results in a lack of social resources, education, employment, and housing in these areas ultimately lessening deterrence measures and increasing recidivism rates.
The disparities perpetuated by systemic racism, homophobia, and transphobia are apparent within the system. Black youth in Wisconsin are incarcerated at 6x the rate of white youth, LGBTQ+ youth are incarcerated at 2x the rate cisgender, heterosexual youth and, over 70% of incarcerated youth experience mental health issues compared to only 20% of the general population. The disparities in the juvenile justice system based on race, sexuality, gender identity or expression, and mental health are undeniable. These inequalities within the system are simultaneously perpetuated by the blatant systemic injustices in our society.
Despite the evident need to adjust the unjust cycles within the juvenile justice system, the political and monetary implications of policies create difficulty in reform. The conservative leaders within the Wisconsin legislature have attacked the reallocation of money and taxes required for new policies with hesitancy. Specifically voicing objections to Governor Evers plans to invest 9 million dollars of the state budget toward evidence-based treatment services for youth. Evers plan also includes 15 million toward expanding treatment alternatives and diversion programs. The Republican-controlled legislature has plans to significantly cut Governor Ever’s proposed budget including the 24 million dollars that would have been allocated toward restorative justice alternatives. The GOP has consistently argued that 24 million dollars is too much to be spent on Juvenile justice reform. Yet, Wisconsin incarcerates around 760 juveniles every year and each juvenile costs around 615 dollars a day to incarcerate. This means that Wisconsin taxpayers are paying over 170 million dollars each year to incarcerate juveniles. While examining the cost of incarcerating juveniles in layperson’s terms, it’s evident that investing 24 million dollars toward restorative justice alternatives would lead to lower costs in the long run.
In order to mitigate these pervasive inequalities, Wisconsin should reform its juvenile justice system to reflect the values of restorative justice. Punishments of small crimes should mirror practices such as those of The Restorative Justice Community Court in Chicago which offers people charged with misdemeanors another way to address criminal wrong. This is a holistic approach to confronting crime and furnishes agreements between the accused and accuser, along with reparations in the local community, allowing a more favorable tactic in how to deal with the problem and that eliminates criminal charges. This also allows the offender to give reasons as to why they committed certain crimes. What follows are opportunities for repayment of their offense; they take part in activities that caused them to rethink committing the crime in the future. If the problem is due to selling drugs because the individual needs the income, then the court should offer to help the individual find employment. If it’s doing drugs to escape the stress and mental illness, counseling should be provided to promote better habits. This is a response that directly addresses the crimes committed rather than simply promoting punishment which further represses and prevents progress into society. A restorative justice system works to make up for the discrepancies of marginalized communities in the prison population as well as keep the number of returning offenders to a minimum.
In addition to mirroring practices of the Restorative Justice Community Court, the state of Wisconsin must address specific issues that perpetuate injustices in the juvenile justice system and greater society. First, Wisconsin must prohibit solitary confinement of juveniles. According to the American Academy of Child and Adolescent Psychiatry, “The potential psychiatric consequences of prolonged solitary confinement are well recognized and include depression, anxiety, and psychosis. Due to their developmental vulnerability, juvenile offenders are at particular risk of such adverse reactions. Furthermore, the majority of suicides in juvenile correctional facilities occur when the individual is isolated or in solitary confinement. Lincoln Hills juvenile correctional facility routinely held up to 20% of the population in solitary confinement for 23 hours a day.
Wisconsin must eliminate juvenile life without parole sentences and raise the maximum age of juvenile court jurisdiction to 17 (jurisdiction until youth turn 18). In Wisconsin, the cutoff is currently 17 yet Supreme Court cases such as Roper v. Simmons argue that the age should be raised to 18. In Roper V. Simmons Justice Kennedy found that “juveniles lack maturity and have an underdeveloped sense of responsibility, resulting in impetuous and ill-considered actions and decisions, juveniles are more vulnerable and susceptible to negative influences and outside pressures, including peer pressure, and the character of a juvenile is not as well-formed as that of an adult.”
Furthermore, juveniles should be given youth-appropriate Miranda warnings. While juveniles often waive their right to counsel, this reflects their lack of knowledge and understanding of what rights they are choosing to forgo. Alternative youth-appropriate Miranda warnings that could be implemented include “You have the right to remain silent, which means that you don’t have to say anything. It is okay if you do not want to talk to me. If you do want to talk to me, I can tell the juvenile court judge or adult court judge and probation officer what you tell me. You have the right to talk to a free lawyer right now. That free lawyer works for you and is available at any time – even late at night. That lawyer does not tell anyone what you tell them. That free lawyer helps you decide if it is a good idea to answer questions. That free lawyer can be with you if you want to talk to me. If you start to answer my questions, you can change your mind and stop at any time. I won’t ask you any more questions.”
Rules should be established to prevent out-of-home placement and establish standards for humane conditions of all incarcerated youth. Out-of-home placement has proven to be counterproductive to reducing recidivism rates, and may even be dangerous for juveniles. A study from The Council of State Governments Justice Center, showed that juveniles who completed community-based treatment programs or probation had lower recidivism rates than others who had similar criminal histories and demographic characteristics but were released from state facilities. Meanwhile, standards for humane conditions of incarcerated youth would require training for staff on mental health issues, sexual misconduct prevention, and working with LGBTQ+ and BIPOC youth. Similarly, staff to youth ratio requirements, appropriate standards for the physical environment, and lists of prohibited practices such as pepper spray and restraint chairs must be implemented.
Finally, the state of Wisconsin must support youth development with reentry services to transition juveniles out of the system and put them on the path to become healthy adult members of society. Wisconsin should base this policy off of Maine State law which requires advanced arrangements for juveniles that are returning to school. This includes requiring each school district to have a policy on the reintegration of juveniles. The school superintendent would also be required to assemble a “reintegration team” consisting of the school principal, a parent or guardian, teacher, and guidance counselor. This team would be required to meet within 10 days of being notified that a student from a juvenile facility is returning in order to create a comprehensive plan for the student’s re-enrollment and education.
Wisconsin’s juvenile justice system needs to rectify inequalities, however, fixing the justice system will not solve larger patterns of inequality in our state and country. Yet, these structures of inequality are certainly exacerbated by a discriminatory justice system. Wisconsin cannot move towards real equality without a system where justice prevails for all.
America’s Addiction to Juvenile Incarceration: State by State. (2013). Retrieved March 19, 2021, from https://www.aclu.org/issues/juvenile-justice/youth-incarceration/americas-addiction-juvenile-incarceration-state-state.
Bliss, K. (2020, January 9).Wisconsin Pays Another $5 Million for Abuse at Controversial Juvenile Facility. Retrieved from https://www.prisonlegalnews.org/news/2020/jan/9/wisconsin-pays-another-5-million-abuse-controversial-juvenile-facility/.
Closer to Home: An Analysis of the State and Local Impact of the Texas Juvenile Justice Reforms. (2020, January 10). Retrieved from https://csgjusticecenter.org/publications/closer-to-home/.
Griffith, D. (2019, January 22). LGBTQ youth are at greater risk of homelessness and incarceration. Retrieved from https://www.prisonpolicy.org/blog/2019/01/22/lgbtq_youth/.
Hess, C. (2021, February 17). Evers Proposing Sweeping Changes To Juvenile Justice System. Retrieved from https://www.wpr.org/evers-proposing-sweeping-changes-juvenile-justice-system.
Initiative, P. P. (2020). Wisconsin campaign page. Retrieved from https://www.prisonersofthecensus.org/wisconsin.html.
Initiative, P. P. (2020). Prison Policy Initiative. Retrieved March 19, 2021, from https://www.prisonpolicy.org/.
J.J. v. Litscher (U.S. District Court for the Western District of Wisconsin January 23, 2017).
Juvenile Life Without Parole (JLWOP). (2016). Retrieved from https://jlc.org/issues/juvenile-life-without-parole#:~:text=.
Moulton, S., & Long, S. (2020, March 26). The Importance of the 2020 Census, Explained in Dollars and Cents. Retrieved from https://www.pogo.org/analysis/2020/03/the-importance-of-the-2020-census-explained-in-dollars-and-cents/.
Pelletier, E., Durnan, J., & Harvell, S. (2017, June). Data Snapshot of Youth Incarceration in Wisconsin [PDF]. Urban Institute – Justice Policy Center.
E. (2016). Poverty Myths. Retrieved from https://equaljusticeunderlaw.org/poverty-myths.
Rogan, A., & Johnson, E. (2020, November 29). What to call it? Debate on how to refer to planned new juvenile detention facility. Retrieved from https://journaltimes.com/news/local/what-to-call-it-debate-on-how-to-refer-to-planned-new-juvenile-detention-facility/article_a53f268b-d51f-5520-b40d-64e1c5fae308.html.
Also published on Medium.