LRB-1757/1
GMM:cjs:md
2009 - 2010 LEGISLATURE
April 6, 2009 - Introduced by Joint Legislative Council. Referred to Committee
on Judiciary, Corrections, Insurance, Campaign Finance Reform, and
Housing.
SB153,1,5
1An Act to repeal 938.18 (5) (d);
to renumber and amend 938.18 (5) (intro.)
2(except 938.18 (5) (title)), 938.18 (5) (a), 938.18 (5) (am), 938.18 (5) (b) and
3938.18 (5) (c);
to amend 938.18 (2); and
to create 938.18 (5) (ar) (intro.) and
4938.18 (5) (bm) (intro.) and 3. of the statutes;
relating to: petitions for waiver
5of juvenile court jurisdiction and the criteria for that waiver.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on High-Risk Juvenile Offenders.
Current law specifies that under certain circumstances the court assigned to
exercise jurisdiction under the Juvenile Justice Code (juvenile court) may waive its
jurisdiction over a juvenile alleged to be delinquent and transfer the case to a court of
criminal jurisdiction (adult court). The waiver proceeding is initiated by a petition for
waiver of that jurisdiction. The petition may be filed by the district attorney or the
juvenile or may be initiated by the juvenile court.
This bill repeals the language permitting a juvenile to file a petition for waiver of
juvenile court jurisdiction.
Under current law, the juvenile court may waive its jurisdiction over a juvenile who
is alleged to have violated one of several serious offenses on or after the juvenile's 14th
birthday and may waive its jurisdiction over a juvenile who is alleged to have violated any
criminal law on or after the juvenile's 15th birthday.
The juvenile court must base its decision whether to waive jurisdiction on the
following criteria:
1. The personality of the juvenile, including all of the following:
a. Whether the juvenile has a mental illness or developmental disability.
b. The juvenile's physical and mental maturity.
c. The juvenile's pattern of living, prior treatment history, and apparent potential
for responding to future treatment.
2. The prior record of the juvenile, including all of the following:
a. Whether the juvenile court has previously waived its jurisdiction over the
juvenile.
b. Whether the juvenile has been previously convicted following a waiver of the
juvenile court's jurisdiction or has been previously found delinquent.
c. Whether any prior conviction or delinquency adjudication involved the infliction
of serious bodily injury.
d. The juvenile's motives and attitudes.
e. The juvenile's prior offenses.
3. The type and seriousness of the offense, including both of the following:
a. Whether it was against persons or property.
b. The extent to which it was committed in a violent, aggressive, premeditated, or
willful manner.
4. The adequacy and suitability of facilities, services, and procedures available for
treatment of the juvenile and protection of the public within the juvenile justice system
and, where applicable, the mental health system, and the suitability of the juvenile for
placement in the Serious Juvenile Offender Program or the Adult Intensive Sanctions
Program.
5. The desirability of trial and disposition of the entire offense in one court if the
juvenile was allegedly associated in the offense with persons who will be charged with a
crime in adult court.
This bill requires the juvenile court to consider certain factors as weighing in favor
of retaining juvenile court jurisdiction and certain factors as weighing in favor of waiving
juvenile court jurisdiction.
Under the bill, the juvenile court must consider the following factors as factors that
favor retaining juvenile court jurisdiction over the juvenile:
• Whether the juvenile has a mental illness or developmental disability that could
be treated more effectively in the juvenile justice system than in the adult criminal justice
system.
• Whether the juvenile's physical or mental maturity make it more likely that the
juvenile will be harmed by placement in an adult facility or placement on probation.
• Whether the juvenile's pattern of living indicates that the juvenile will take
responsibility for his or her actions and maintain positive relationships.
• Whether the juvenile's prior treatment history indicates that the juvenile will
respond to future treatment.
• Whether the facilities, services, and procedures available for treatment of the
juvenile and protection of the public within the juvenile justice system and, where
applicable, the mental health system are adequate and suitable for the juvenile or
placement in the Serious Juvenile Offender Program is suitable for the juvenile.
The bill provides that the juvenile court must consider the following factors as
factors that favor waiving juvenile court jurisdiction over the juvenile:
• Whether the juvenile court has previously waived its jurisdiction over the
juvenile or the juvenile has been previously convicted following a waiver of the juvenile
court's jurisdiction or has been previously found delinquent.
• Whether a prior conviction or delinquency involved the infliction of serious bodily
injury.
• Whether the juvenile's prior treatment history indicates that the juvenile will not
respond to future treatment.
• Whether the juvenile's motives and attitudes demonstrate a lack of responsibility
and remorse for the juvenile's actions.
• Whether the juvenile's prior offenses are serious offenses or have become
progressively more serious.
• Whether the offense was against a person and was committed in a violent,
aggressive, premeditated, or willful manner.
• Finally, the bill eliminates as a waiver criterion the desirability of trial and
disposition of the entire offense in one court if the juvenile was allegedly associated in the
offense with persons who will be charged with a crime in adult court.
SB153, s. 1
1Section
1. 938.18 (2) of the statutes is amended to read:
SB153,3,102
938.18
(2) Petition. The petition for waiver of jurisdiction may be filed by the
3district attorney
or the juvenile or may be initiated by the court and shall contain a
4brief statement of the facts supporting the request for waiver. The petition for waiver
5of jurisdiction shall be accompanied by or filed after the filing of a petition alleging
6delinquency and shall be filed prior to the plea hearing, except that if the juvenile
7denies the facts of the petition and becomes 17 years of age before an adjudication,
8the petition for waiver of jurisdiction may be filed at any time prior to the
9adjudication. If the court initiates the petition for waiver of jurisdiction, the judge
10shall disqualify himself or herself from any future proceedings on the case.
Note: Repeals the language permitting a juvenile to file a petition for waiver to
adult court.
