Minor offenders, major consequences

Introduction

Two days after Christmas 2005, Kirk Gunderson hanged himself with a sheet looped around a smoke detector in his solitary confinement cell in the La Crosse County Jail.

He was 17.

He formed letters out of moistened, rolled up toilet paper to spell the message: “I’m sorry 143 family.” The number is slang for “I love you” — one letter in I, four letters in love, and three letters in you.

Gunderson was in adult jail for stabbing his father and brother. Although he faced attempted murder charges, his family says what he really needed was mental health services — which he could have received in the juvenile justice system — to deal with the effects of head injuries from sports and Oxycontin abuse.

Gunderson’s death transformed his parents into activists. Their goal: Abolish a 1996 Wisconsin law that requires all 17-year-old offenders be treated as adults.

“We live with this every single day, that our son died alone, in hell,” says Vicky Gunderson, Kirk’s mother. “It just doesn’t go away.”

Wisconsin is one of 13 states that automatically place 17-year-olds in the adult criminal justice system. In the past few years, nearly one-third of states have passed laws to keep more young offenders in the juvenile justice system. But not Wisconsin.

In three previous legislative sessions, state Rep. Fred Kessler, D-Milwaukee, has introduced a bill that would place 17-year-olds back in juvenile court. He plans to offer it again. Kessler, a former Milwaukee juvenile court judge, says the existing law is too harsh for most young offenders.

“I just feel the adult consequences were devastating to them,” says Kessler, whose bill would still allow juveniles in serious cases to be tried in adult court.

State Rep. Fred Kessler, D-Milwaukee, is introducing legislation that would put 17-year-olds back in the juvenile justice system.

About 250,000 17-year-olds have been arrested since Wisconsin’s 1996 law was put in place, according to an October study by the nonprofit Wisconsin Council on Children and Families. About 75,000 of them spent some time in adult jail, the study found.

Some defend Wisconsin’s law, saying the threat of an adult sentence deters young people from breaking the law, and treating them sternly may dissuade them from re-offending.

“I don’t think we are good at making people understand there are consequences to their crimes,” says Rep. Robin Vos, R-Burlington, an outspoken supporter of keeping 17-year-olds in the adult system. “If you commit a crime, you deserve the consequences.”

Vos says the law has been working well for the past 15 years. Ultimately, any age set for automatic consideration as an adult for criminal prosecution will be arbitrary, he says, and 17 is a good place to draw that line.

State Rep. Robin Vos, R-Burlington, says the state law that treats 17-year-olds as adults in the criminal justice system deters crime.

“What concerns me is making sure the victim gets justice,” Vos says. “We coddled (17-year-olds) in the past, and that didn’t work. If we treat them like an adult, hopefully they won’t offend.”

Many researchers disagree, citing a growing body of neurological and statistical evidence suggesting Wisconsin’s policy is counterproductive. But they and other advocates are finding themselves stymied, in part because of concerns over cost.

The juvenile system offers more rehabilitative services than the adult system, which makes it more costly. The Wisconsin County Human Service Association, the group representing local human services departments, estimates putting 17-year-olds back in the juvenile system would collectively cost the state’s 72 counties an additional $75 million a year.

John Reinemann, legislative director for the Wisconsin Counties Association, says if the law changes, the state would need to provide the counties more funding.

“We support the restoration of 17-year-olds to the juvenile system, but our increase in cost has to be met,” says Reinemann, whose group represents the interests of Wisconsin counties. “The only other way we could get funds would be to economize other programs. … I just don’t think there is a lot of fat left to cut.”

A blunt tool

Under Wisconsin law, 17-year-olds cannot vote, buy cigarettes or drink alcohol. They are considered juveniles in almost every way — except when they commit a crime.

The juvenile and adult systems are very different: The former is geared more toward changing future behavior through treatment and programming; the latter focuses on punishment along with rehabilitation.

Jim Moeser is a former Dane County juvenile court administrator who now is deputy director of the Wisconsin Council on Children and Families, which backs changes in the law. Moeser says juvenile court provides more services to help young people change and opportunities for family involvement. Sentences are shorter and more individualized.

Some call the policy of treating all 17-year-olds as adults a blunt tool, noting Wisconsin law already allows anyone 10 and older — one of the lowest age limits in the nation — to be tried in adult court if they commit certain crimes, such as first-degree homicide.

The law also means that 17-year-olds, like Gunderson, can be held in adult jails before they are convicted, potentially putting young people in with hardened adult criminals. Critics say these young offenders should be held in juvenile institutions.

Racine County District Attorney Mike Nieskes supports the state law that treats 17-year-olds as adults in the criminal justice system. Courtesy of Pete Selkowe

But Racine County District Attorney Michael Nieskes argues Wisconsin’s juvenile system is designed for younger teenagers and children, not 17-year-olds. He sees age 17 as a “tipping point” between being an adult and being a child.

Nonetheless, the policy of automatically trying minors in adult court is declining across the United States as new evidence emerges challenging these “tough on crime” approaches.

Recent studies show that minors in adult facilities have higher rates of recidivism — and re-offend in more serious ways — than comparable offenders in the juvenile system. While proponents argue the tough policy deters young people from committing crimes, deterrence is hard to prove, and research is inconclusive.

And recent neurological evidence suggests young people simply don’t have the same capacity to appreciate the consequences of their actions, casting further doubt on the fairness of treating youthful offenders the same as adults.

During the past five years, 15 states have altered their statutes to raise the age of juvenile court jurisdiction, to remove young offenders from adult jails and prisons and to change transfer laws to keep more minors in juvenile court, according to the Campaign for Youth Justice, a group that favors keeping young people in the juvenile justice system.

In the Midwest, Illinois and Indiana have changed laws to keep more juveniles out of adult court, and several more states are contemplating changes, the group says.

Super predators?

Throughout most of American history, juvenile offenders have been treated differently than adults, with increasing emphasis on rehabilitation. But a jump in juvenile crime, beginning in the late 1980s and peaking in 1994, sparked nationwide fears about a generation of uniquely violent “super predator” youth.

The Central Park jogger case of 1989 highlighted the prevailing fears: Five young men, ages 14 to 16, were charged with beating and raping a 28-year-old woman. In 2002, their convictions were overturned after it was discovered they had falsely confessed to the crime and real perpetrator was identified. But by then, many states had toughened their juvenile codes to make it easier to try juveniles as adults.

Wisconsin’s tough-on-juveniles approach was sparked in 1991 when an 11-year-old boy shot and killed a 21-year-old man in Racine. He couldn’t be charged in adult court because of his age. The incident spurred Racine County Circuit Judge Dennis Barry, now deceased, to help revise the juvenile justice code, which he and others felt didn’t adequately protect victims and the public.

A law moving jurisdiction of 17-year-olds to adult court was passed by the state Legislature and took effect in 1996.

Since then, there has been a steady decrease in juvenile crime across the United States and in Wisconsin. The worries about a generation of “super predators” never came to fruition.

Immature brains

Questions about the fairness of treating youthful offenders as adults have been driven in large part by growing knowledge about how the brain develops.

It is now widely accepted that most young adults are still developing their judgment, planning and decision-making capabilities even into their early 20s.

The brain of a 17-year-old is developmentally much different from that of a 25-year-old, says Michael Caldwell, a researcher at the Mendota Juvenile Treatment Center in Madison, a secured state mental health clinic for young male offenders.

This means young people are more impulsive than adults, Caldwell says. Their reckless behavior tends to diminish as their brains mature, he says.

The crimes Wisconsin juveniles commit are typically nonviolent, such as curfew or liquor violations. Only 2 percent of juvenile arrests in 2010 were for violent crimes, according to a recent study by the state Office of Justice Assistance.

In the 2005 Roper v. Simmons decision, the U.S. Supreme Court acknowledged the new science showing a fundamental difference between juvenile and adult brains. The 5-4 ruling held that imposing the death penalty on offenders who were under 18 when they committed their crime is unconstitutional.

But defenders of Wisconsin’s law argue that 17-year-olds can still tell right from wrong and should be held accountable in the same way as older adults.

“I’ve read all those brain development studies, but they say a brain doesn’t mature until 25,” says prosecutor Nieskes. “We need to choose an age, and I think 17 works well. … 17 is old enough for them to pay the full consequences of their actions.”

Is adult prison right for kids?

Studies also show that young people are at a much greater risk of victimization and death in adult jails and prisons than in juvenile facilities.

While awaiting trial on charges of attempted homicide, Kirk Gunderson was jailed with older inmates. His parents say their son sought their help after an adult offender exposed himself to the boy, saying, “I’m going to have you.” They say jail authorities, when told of this threat, responded by limiting Gunderson’s movements. He couldn’t go to church anymore.

At 17, Kirk Gunderson drew these two self-portraits in jail. He made the one on the left during the summer of 2005, when he was first incarcerated, and the one on the right about a week before he took his own life that December. Courtesy of Vicky Gunderson

Vicky Gunderson says her son was taking Prozac, an antidepressant, but needed further mental health help. Her son agreed to plead to much lesser charges, and was probably on track to be released soon. But days later, he got caught with materials to give himself a tattoo. His punishment — being placed in solitary — was more than he could handle, Gunderson says.

Juveniles are 19 times more likely to commit suicide in jail than young people in the general population, and 36 times more likely to kill themselves in an adult jail than in a juvenile detention facility, according to a 2007 study from the Campaign for Youth Justice, the Washington, D.C.-based nonprofit.

There’s also a significant racial dynamic. A Wisconsin Council on Children and Families study that tracked 1,000 Wisconsin 17-year-olds charged over six years found young blacks were much more likely to be incarcerated than whites. Eighty percent were sent to jail or prison compared to 46 percent of young whites.

Pam Oliver, a sociology professor at University of Wisconsin-Madison who studies incarceration, says Wisconsin has one of the worst racial disparities in the nation, both at adult and juvenile levels. Young black people also typically enter prison at a younger age, magnifying the impact on this group, she says.

In 2008, Oliver served on then-Gov. Jim Doyle’s Commission on Reducing Racial Disparities in the Wisconsin Justice System. It recommended returning 17-year-olds to juvenile court, concluding that the current policy was exacerbating the “school to prison pipeline” for blacks.

But nothing changed — for reasons that Oliver believes has less to do with a sober assessment of public policy than a concern about costs.

“You’d like the system to try to rehabilitate young people and not throw them away,” she says. “Many people don’t think it’s a good idea to treat 17-year-olds as adults. Honestly, it saves the state a lot of money. The money is what’s really going on.”

Obstacles to change

The juvenile system is significantly more expensive than the corrections system for adults. While it costs about $50 per day to house a jail inmate and about $87 per day to house a state prison inmate, the daily cost in juvenile facilities ranges from $140 to $215, a fiscal analysis from the Department of Corrections shows.

Dane County Juvenile Court Administrator John Bauman says returning 17-year-olds to juvenile court would add a financial burden to the juvenile system. Bauman believes Wisconsin should raise the age to 18, but he says cost has been the main deterrent.

“It really boils down to how are we going to do this without seriously jeopardizing the rest of the system,” Bauman says.

Proponents counter that the move would eventually pay for itself — less recidivism means lower societal and prison costs.

“Long range, you save money — there’s no question,” says Sister Esther Heffernan, a sociology professor at Edgewood College in Madison who researches corrections policies.

Heffernan notes Wisconsin’s juvenile facilities used to be overcrowded. But since 2000, the rate of juvenile arrests is down 37 percent, according to a 2011 Wisconsin Council on Children and Families study. In fact, three state juvenile correctional institutions were consolidated into one site in July.

Kessler says bipartisan support for his bill is growing. However, given the dominant mood of the Legislature to be tough on crime and to reign in spending, “I think this is going to be a tough sell in this climate right now,” Kessler admits.

Vicky and Kermit Gunderson of Onalaska, Wis., with their son Jay at their second annual awareness run in October 2011. The family organized the hometown event in memory of Kirk. Courtesy of Vicky Gunderson

Vicky Gunderson vows to keep fighting. After her son Kirk died, she and her husband Kermit visited his solitary cell. They lobbied to remove the smoke detectors the boy had used to hang himself.

In fall 2006, the detectors were removed.

The Gundersons say they will continue to push for Wisconsin to change its law that automatically treats 17-year-olds as adult criminals. They’ve spoken to Congress, given interviews, written letters to the editor and recently held the second annual run to raise awareness of the issue in their son’s name.

“He’s still my son,” she says. ”You just don’t give up on your kids, no matter what.”

Julie Strupp can be reached at jstrupp@wisconsinwatch.org.

The nonprofit and nonpartisan Center (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.