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BJ: What have been the most significant changes in juvenile court during the 30 years you were on the bench? MK: Let me give you a little background so you know where I'm coming from. I was the first juvenile defender in Dane County back in 1970. In 1976 and '77 I worked at the Council on Children and was the primary draftsperson of the change to the juvenile code enacted in 1978. I took the bench in '77, but it took that long to get to the legislature and get adopted. So that was my background. I obviously wouldn't have worked on it if I didn't believe in the concept, and the primary concepts were to put some due process into the Children's Code, and to make the "least restrictive means" the standard for dealing with juveniles. Then in '96, the code was completely revised; they took out the least restrictive means as the primary purpose, divided it into a Children's Code and a Juvenile Code and allowed kids who were 10 years old to be brought in as delinquents. It provided for original adult criminal court jurisdiction for certain offenses at certain ages, and put 17-year-olds in adult court automatically. It represented a sea change in the way juvenile court was viewed, and that's the major change that has occurred during my lifetime as a judge.
One of the biggest problems I have is charging a 10-year-old with a delinquency offense. Every decent defense attorney challenges competency, and I can't give you percentages, but the psychologists are usually coming back and saying, "this child is not competent to assist in his or her own defense, or to understand the legal process." So then it switches over to child protective services. The kid is automatically under court jurisdiction, but not as a delinquent. We wait for these kids to become competent, but I haven't seen too many of these kids ever come back as finally competent, because we don't have a program to educate them to competency. So I don't think it's done what the authors intended, at least here in Dane County, in that we have not been processing 10- and 11-year-olds as regular delinquents. What, if any, changes in state law do you think would improve the processes you've been describing, and thereby improve outcomes for kids coming through either the juvenile or adult justice system? Well, there's some very exciting research that is finally getting widespread attention showing the developmental level of children. The research that's coming out says that kids just don't have the mental capacity to make rational decisions and understand the consequences of what they're doing until later on in adolescence, or even adulthood. I'd love to see that research incorporated legislatively. And I really wish they'd go back and rethink putting 17-year-olds in adult court. But also other things, and a lot of it may be symbolic, but for example we've taken away the right to a jury trial while we've made things much tougher in delinquency. I don't understand why that was done; it was not exercised that often. I take the position that I don't want to enter any dispositional order unless the child has the sense that he or she has gotten fair play in the system, and I think the lack of a jury trial works against that. You've mentioned the recent breakthroughs in research about adolescent brain development. Do judges really think about that sort of thing and pay attention to the reports that come across their desks? I can't speak for all judges, but in this county I know that we are aware of it. So many of these decisions are discretionary, and if this research is taken into consideration it can be very valuable. The problem is that even now we don't have good data on what dispositions work and which don't work. We've recently gotten information that putting certain kids in residential treatment can make the child more delinquent, more antisocial, but it's not a very exact science, and you want to keep the individual justice in juvenile court because the stakes are so high. What role do you think poverty and issues with the child welfare system play in the behavior of the kids you've seen come through your court? How long does your tape run? That's one of the reasons I'm against the division between delinquency and CHIPS (Child in Need of Protective Services). You could see little baby delinquents budding in a lot of the CHIPS cases. Poverty is one of the consistencies running through these cases. I'm not saying poverty causes delinquency. A lot of poor kids are not delinquent, obviously. But that combined with certain values, for example, if a parent is working so hard just to support her family then there sometimes isn't a great deal of emphasis placed on education, or a lot of time available to supervise, so it all gets interrelated. I saw multiple generations of families...I saw the child back, then the child of the child.... That gets very depressing, and leads you to ask what's going on here, why is this family constantly ending up in court, and poverty is the major factor, especially when it's a single parent struggling to get by. But there are usually other factors involved. It's a very complex issue. Some families present with so many problems you don't know where to begin. Do you start with the substance abuse problem, or the mental health problem, or do you deal with the educational issues? It's a constellation of challenges, and sometimes we don't have very good answers. | ||||||
