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We Should Not Hope for the Imprisonment of a Child

March 28, 2022

Hannah Stommel L’23

Born and raised in San Francisco, Hannah received a B.A. in Political Science from the University of California, Berkeley. At Penn, Hannah serves on the boards of the Youth Advocacy Project and If/When/How: Lawyering for Reproductive Justice. She is also an Associate Editor for the Journal of Law and Social Change.

We Should Not Hope for the Imprisonment of a Child

On November 19, 2021, a jury in Kenosha County, Wisconsin, delivered the following verdict:

Count 1: First-degree intentional homicide—NOT GUILTY.
Count 2: First-degree reckless homicide—NOT GUILTY.
Count 3: First-degree attempted intentional homicide—NOT GUILTY.
Count 4: First-degree reckless endangerment—NOT GUILTY.
Count 5: First-degree reckless endangerment—NOT GUILTY.

More than a year earlier on August 25, 2020, the defendant, Kyle Rittenhouse, a white adolescent, fatally shot two people and wounded a third with an AR-15-style semiautomatic rifle. Rittenhouse had traveled to Kenosha from his nearby home in Illinois in response to protests over the shooting of Jacob Blake, a twenty-nine-year-old Black man, by a white police officer. Ultimately, the jury found that the state had not met its burden of disproving, beyond a reasonable doubt, at least one legal element of Rittenhouse’s self-defense claim, thereby acquitting him on all counts.[i]

Across social media, television programs, and news websites, there was no dearth of commentary on the verdict. Some people celebrated the outcome as a victory for the Second Amendment and a gratifying opportunity to attack the media and condemn demonstrations against police brutality and racial injustice.[ii] Other people took a more apolitical view, analyzing the acquittal as the inevitable result of applying Wisconsin’s self-defense laws.[iii] Still others critiqued the verdict as the inevitable outcome of a system that protects white vigilantes but brutalizes Black and Brown people.[iv]

Largely absent from the conversation, however, was any discussion of Rittenhouse’s age.[v] In August 2020, Rittenhouse was seventeen years old, legally a child, but under Wisconsin law, he was automatically tried as an adult.[vi]

Over the last 123 years, state legislatures, courts, and communities have rearticulated the aims of the juvenile justice system and the policies and practices that define it. What began as an informal system designed to care for and rehabilitate delinquent children—and to stand distinctly apart from the adult criminal legal system—developed into a more formalized and arguably more punitive system. In many ways, the formalization of the juvenile justice system has meant greater procedural safeguards for children, including the extension of most of the same due process rights that adults receive. However, laws that allow young children to be prosecuted as adults operate in tandem with these protections.

In the late nineteenth century, Illinois launched what would become an enduring legal experiment: a court designed to treat children differently from adults.[vii] With the Illinois Juvenile Court Act of 1899, Illinois became the first state to establish a juvenile court.[viii]

The Act was unapologetically paternalistic towards children and stated that “the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by its parents.”[ix] The goal was not to punish children before the court, but rather, to rehabilitate and nurture them. Specifically, the Act only applied to children under sixteen, and prohibited children under the age of twelve from being held in jails or police stations.[x] Children were not to be confined alongside adults, though they could be held in the same institutions.[xi] Notably, children did not have right to counsel (though the court could appoint a probation officer to represent the interests of the child), and time limits on confinement were indeterminate.[xii]

Illinois’ bold idea quickly caught the attention of other states such that by 1925, most states had established their own juvenile courts.[xiii] As with the first juvenile court in Chicago, the courts that emerged across the country sought to protect, not punish, children for their actions.[xiv] However, the courts’ informality denied children procedural safeguards[xv] until the 1960s, when the United States Supreme Court held in a series of decisions that children are entitled to most of the same due process rights as adults.[xvi]

During the last three decades of the twentieth century, as the Court handed down decisions narrowing due process rights in juvenile court[xvii] and the “super predator” myth engrossed the nation,[xviii] the juvenile system embraced a more punitive purpose. Many states lowered the age of judicial waiver, permitting juvenile court judges to transfer cases involving younger children from juvenile to adult court.[xix] Some states broadened the range of transferrable offenses.[xx] And across the country, states enacted automatic transfer statutes, requiring that children charged with specific crimes or children charged with a criminal offense who had reached a certain age automatically be prosecuted as adults.[xxi]

Today, every state has mechanisms for treating children as adults.[xxii] Many states grant adult court jurisdiction over cases in which a youth is charged with a particular offense—the most common being murder or other serious violent felonies—or is over the age of juvenile court jurisdiction.[xxiii] Most states permit juvenile court judges to waive jurisdiction over a young person, thereby transferring the case to adult court.[xxiv] And a few states enable prosecutors to choose to file a case directly in criminal court even where both juvenile and adult criminal court would have jurisdiction over the case.[xxv]

Three states—Wisconsin, Georgia, and Texas—mandate that any child over the age of seventeen be prosecuted as an adult regardless of the alleged criminal offense.[xxvi] In those states, a seventeen-year-old child, whether charged with petty theft or homicide, will be treated as an adult and barred from adjudication in juvenile court.

Several years ago, Kristen Henning, Director of the Juvenile Justice Clinic and Initiative at Georgetown Law, described this disheartening reality: “Today, children as young as thirteen and fourteen are tried as adults, hundreds of youth have been sent to prison without the possibility of parole, and even children who remain in juvenile court are subject to zero-tolerance policies, pretrial detention, and lengthy punitive sentences in youth correction facilities.”[xxvii]

For those who cheered Rittenhouse’s acquittal, the verdict was not a victory because it spared a child from a decades-long sentence. Rather, it was a victory for gun rights, and an opportunity to attack the media and vilify those demanding racial justice.

But for those who condemned the verdict as an unjust embodiment of the criminal legal system’s embrace of white supremacy, there was little to no discussion of what a conviction could have meant for other children in Wisconsin, and across the country, who are prosecuted and tried as adults.

To be clear, Rittenhouse killed Anthony Huber and Gaige Grosskreutz and wounded Joseph Rosenbaum with a military-style assault rifle. He took the lives of two people and put countless others at risk. He committed a horrendous act. He crossed state lines and brought an assault rifle to a protest renouncing both the police shooting of Jacob Blake and the routine brutalizing of Black and Brown people by police. Indeed, Rittenhouse was fortunate enough to stand trial because he survived.

Shortly after the verdict was announced, journalist Keith Boykin tweeted, “Kyle Rittenhouse is proof that white people can still break the law, carry illegal weapons, shoot and kill people, and get away with it in America by shedding tears and claiming self-defense.”[xxviii]

But: should we direct our hatred at Rittenhouse, or at the larger system that permitted him to openly carry a military-style assault rifle through the streets of Kenosha and survive? Should we hope for the imprisonment of any seventeen-year-old?

The system that tried Rittenhouse as an adult harms children across the country each day—especially children of color. Nationally, cases involving Black youth are more likely to be judicially waived than cases involving white youth.[xxix] In 2019, of the person cases waived from juvenile to criminal court, 54.2% involved Black youth compared to 28.7% which involved white youth.[xxx] This discrepancy is particularly alarming because a greater percentage of white youth (41.3%) are charged with person offenses, such as assault, robbery, and rape, than Black youth (38.1%).[xxxi] Nationally, Black youth are also 4.61 times more likely than their white peers to be incarcerated.[xxxii] In Wisconsin, that figure jumps to 12.43.[xxxiii] If Rittenhouse had been sixteen-years-old at the time of the offense, his case may have remained in juvenile court in Wisconsin, whereas that of a Black youth may have been transferred to adult court.

The case of Kyle Rittenhouse is not a sympathetic one. But if we believe that children should be treated as children and kept out of the adult criminal legal system, then the injustice in the Rittenhouse verdict is not that he was acquitted, but that his case did not proceed through the juvenile justice system.

Both the juvenile and criminal justice systems are rooted in and perpetuate racial and economic injustice. If the jury had returned a guilty verdict on at least one count last November, Rittenhouse’s conviction could have signaled that a person, even a white male, cannot walk through the streets armed with an AR-15-style semiautomatic rifle, kill people, and get away with it. Instead, his acquittal on all counts reaffirmed the opposite. On the other hand, Rittenhouse’s conviction could have further entrenched the practice of prosecuting children as adults. While we may have hoped for the jury to emerge from their deliberations with a guilty verdict based on the evidence pointing towards Rittenhouse’s guilt, we should not have hoped for his conviction because he was a child at the time of the offense.

Convicting Rittenhouse would not have uprooted the systemic inequities that define our criminal legal system, altered the ceaseless transfer of children across the country into adult court, or reversed racial disparities in transfer and juvenile court dispositions. If Rittenhouse’s case had gone through the juvenile system and resulted in no more than probation, then it could have been used to further critique racial disparities in juvenile court dispositions and demand urgent reforms. Instead, the focus remains on the infamous verdict and how Rittenhouse got away with murder, and not on the system that forced the prosecution of his case in criminal court—and the national practice of trying children as adults.

Endnotes

[i] See Kenosha County Case Number 2020CF000983 State of Wisconsin vs. Kyle H. Rittenhouse, Wisconsin Circuit Court Access, https://wcca.wicourts.gov/caseDetail.html?caseNo=2020CF000983&countyNo=30&index=0&mode=details; and State of Wisconsin vs. Kyle H. Rittenhouse Instructions to the Jury (available at https://int.nyt.com/data/documenttools/rittenhouse-trial-jury-instructions/0b78a521e19f369d/full.pdf [https://perma.cc/J48K-JCYN].

[ii] See, e.g., NRA (@NRA), Twitter (Nov. 19, 2021, 1:22 PM), https://twitter.com/NRA/status/1461761804070182915?s=20&t=Tj0fNC3bn6ML-ubwkb_UZw [https://perma.cc/R6QT-VUHB]; Bill Ruthhart, Reaction to Kyle Rittenhouse Acquittal Reflects Nation’s Polarized Politics: Republicans Claim 2nd Amendment Victory, Progressives Call It a Miscarriage of Justice, Chicago Trib. (Nov. 19, 2021, 6:27 PM), https://www.chicagotribune.com/politics/ct-kyle-rittenhouse-verdict-political-reaction-20211119-3qsgdtnf7na5xklkmzeukceq74-story.html [https://perma.cc/AM6H-WD36]; Michael Levenson, After the Verdict, Social Media Reflects a Deep and Bitter Gulf, New York Times (Nov. 19, 2021, 5:30 PM), https://www.nytimes.com/live/2021/11/19/us/kyle-rittenhouse-trial/after-the-verdict-social-media-reflects-a-deep-and-bitter-gulf [https://perma.cc/GXB4-TQSF]; Jennifer Medina and Reid J. Epstein, Republican Celebrations and Democratic Anger Reveal a Widening Political divide, New York Times (Nov. 19, 2021, 3:26 PM), https://www.nytimes.com/live/2021/11/19/us/kyle-rittenhouse-trial/rittenhouse-verdict-conservatives-liberals [https://perma.cc/GXB4-TQSF].

[iii] See, e.g., John Pfaff, Rittenhouse Didn’t Have to Prove He Acted in Self-defense, Washington Post (Nov. 19, 2021, 5:35 PM), https://www.washingtonpost.com/outlook/2021/11/16/rittenhouse-trial-self-defense/ [https://perma.cc/UV3K-46BD]; Adam Serwer, Of Course Kyle Rittenhouse Was Acquitted, The Atlantic (Nov. 19, 2021), https://www.theatlantic.com/ideas/archive/2021/11/unsurprising-outcome-rittenhouse-trial/620742/ [https://perma.cc/4TVQ-7XEW].

[iv] See, e.g., Cori Bush (@CoriBush), Twitter (Nov. 19, 2021, 2:19 PM), https://twitter.com/CoriBush/status/1461776152255774722?s=20&t=pPorrFTEoIFvc1daiKU69A [https://perma.cc/X5EV-G7KB]; NAACP (@NAACP), Twitter (Nov. 19, 2021, 1:26 PM), https://twitter.com/NAACP/status/1461762753975181314?s=20&t=UWqn5iqraCb15UHBSCWuhA [https://perma.cc/4KYL-9WH9]; Pilar Melendez and Dan Simmons, Kyle Rittenhouse Acquitted in Bombshell End to Vigilante Murder Trial, Daily Beast (Nov. 19, 2021, 6:19 PM), https://www.thedailybeast.com/kyle-rittenhouse-acquitted-in-bombshell-end-to-vigilante-murder-trial [https://perma.cc/J2S5-TZNZ].

[v] But see Stephanie Mencimer, Kyle Rittenhouse Was a Minor. Prosecuting Him as One May Have Been Better, Mother Jones (Nov. 19, 2021), https://www.motherjones.com/politics/2021/11/kyle-rittenhouse-was-a-minor-prosecuting-him-as-one-may-have-been-better/ [https://perma.cc/239S-WQ5T]; Elder G. Yusef Qualls, Kyle Rittenhouse Deserves the Kind of Mercy My Son Did Not Receive, The Atlantic (Oct. 20, 2020), https://www.theatlantic.com/ideas/archive/2020/10/kind-mercy-my-son-never-received/616769/ [https://perma.cc/75MY-6752]; Marcy Mistrett, No Child Should Be Tried As An Adult. Even Him., The Imprint (Sept. 3, 2020, 10:45 PM), https://imprintnews.org/justice/no-child-should-be-tried-as-an-adult-even-kyle-rittenhouse/47078 [https://perma.cc/YVL7-P88W].

[vi] Wis. Stat. § 938.02(1).

[vii] Katharine F. Lenroot, The Evolution of the Juvenile Court, 105 Annals Am. Acad. Pol. & Soc. Sci. 213, 214 (1923).

[viii] Id; see also Illinois Juvenile Court Act (1899).

[ix] Illinois Juvenile Court Act § 21 (1899).

[x] Id. at §§ 1, 11.

[xi] Id. at § 11.

[xii] Id. at § 6; Elizabeth S. Scott & Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, 18 Future Child. 15, 17 (2008).

[xiii] National Research Council & Institute of Medicine, Juvenile Crime, Juvenile Justice 157 (Joan McCord et al. eds., Nat’l Acad. Press 2001).

[xiv] Legislative Technical Assistance in Juvenile Justice Report No. 1: Bail for Juveniles in the 50 States, Ctr. for Legis. Improvement 1 (Mar. 1980) (the “trend in juvenile justice had been to divest court proceedings of all practices and vestiges of a criminal trial”).

[xv] National Research Council & Institute of Medicine, supra note 13, at 158.

[xvi] See Kent v. United States, 383 U.S. 541, 561 (1966) (holding that juvenile defendant was entitled to a hearing as a condition of judicial waiver); In re Gault, 387 U.S. 1, 33-34, 41, 55, 57 (1967) (holding that juvenile defendant seeking a writ of habeas corpus was entitled to adequate notice, counsel, privilege against self-incrimination, and confrontation and cross-examination of witnesses); and In re Winship, 397 U.S. 358, 368 (1970) (holding that the reasonable doubt standard of criminal law is a constitutional requirement that applies to juvenile adjudications).

[xvii] See McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971) (holding that trial by jury is not constitutionally required at the adjudicative stage of state juvenile court delinquency proceedings); Fare v. Michael C., 442 U.S. 707, 727-28 (1979) (finding that a juvenile’s request for probation officer is not a per se invocation of Fifth Amendment Miranda rights), petition for rehearing denied, 444 U.S. 887 (1979); Schall v. Martin, 467 U.S. 253, 256-57 (1984) (finding no violation of the Due Process clause in pretrial detention of juvenile).

[xviii] See, e.g., Scott & Steinberg, supra note 12, at 17, end note 5.

[xix] Scott & Steinberg, supra note 12, at 17.

[xx] Id.

[xxi] Id. at 17-18.

[xxii] Id.; see also Jeree Michele Thomas & Mel Wilson, The Color of Juvenile Transfer: Policy & Practice Recommendations, Nat’l Ass’n of Soc. Workers 3-4 (2017), https://www.socialworkers.org/LinkClick.aspx?fileticket=30n7g-nwam8%3D&portalid=0 [https://perma.cc/9RBJ-6HQ5].

[xxiii] Anne Teigen, Juvenile Age of Jurisdiction and Transfer to Adult Court Laws, Nat’l Conf. of State Legislatures (Apr. 8, 2021), https://www.ncsl.org/research/civil-and-criminal-justice/juvenile-age-of-jurisdiction-and-transfer-to-adult-court-laws.aspx [https://perma.cc/EU3A-2NLL].

[xxiv] Id.

[xxv] Id.

[xxvi] Jurisdictional Boundaries, Juv. Just. Geography, Pol’y, Prac. & Stat. (last visited Mar. 26, 2022), http://www.jjgps.org/jurisdictional-boundaries [https://perma.cc/FF7U-KA4K]; Teigen, supra note 22.

[xxvii] Kristin Henning, The Challenge of Race and Crime in a Free Society: The Racial Divide in Fifty Years of Juvenile Justice Reform, 86 Geo. Wash. L. Rev. 1604, 1622 (2018). See Roper v. Simmons, 543 U.S. 551, 575 (2005) (holding that the death penalty cannot be imposed on juvenile offenders); Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that life in prison without parole cannot be imposed on a juvenile offender for a nonhomicide crime); Miller v. Alabama, 567 U.S. 460, 465 (2012) (holding that mandatory life in prison without parole for juvenile offenders violates the Eighth Amendment); Montgomery v. Louisiana, 577 U.S. 190, 212 (2016) (holding that Miller v. Alabama was retroactive to juvenile offenders whose convictions were final when Miller was decided); Jones v. Mississippi, 141 S.Ct. 1307, 1311 (2021) (upholding a discretionary sentence of life without parole for a juvenile homicide offender).

[xxviii] Keith Boykin (@keithboykin), Twitter (Nov. 19, 2021, 1:16 PM), https://twitter.com/keithboykin/status/1461760283869909010?s=20 [https://perma.cc/XV92-KGMF].

[xxix] Sarah Hockenberry & Charles Puzzanchera, Juvenile Court Statistics 2019, Nat’l Ctr. for Juv. Just. 40 (June 2021), https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2019.pdf [https://perma.cc/T623-K3EE].

[xxx] Easy Access to Juvenile Court Statistics: 1985-2019, Off. of Juv. Just. and Delinq. Prevention (2021), https://www.ojjdp.gov/ojstatbb/ezajcs/asp/demo.asp [https://perma.cc/C9T6-FP94] (select Offenses: person, Disposition: waived, and Display Data As: percents).

[xxxi] Id. (Select Offenses: person, and Display Data As: percents.)

[xxxii] Josh Rovner, Racial Disparities in Youth Incarceration Persist, The Sentencing Project 7 (2021), https://www.sentencingproject.org/wp-content/uploads/2021/02/Racial-Disparities-in-Youth-Incarceration-Persist.pdf [https://perma.cc/98T2-BUN5].

[xxxiii] Id.