Wisconsin's Transfer Laws

Wisconsin

Lower Age:

Upper Age:

Discretionary Waiver

Wis. Statutes Sec. 938.18

On motion of any party, the juvenile court may, after a hearing, waive jurisdiction over a case meeting statutory age/offense criteria if it finds that (1) the case has prosecutive merit and (2) it has been "established by clear and convincing evidence that it would be contrary to the best interests of the juvenile or of the public to hear the case." (A judge may also initiate a waiver petition on his or her own, but may not then preside over the waiver hearing, or otherwise participate further in the case.) The law specifies a number of detailed "criteria" upon which a decision to waive jurisdiction must be based. Prior to the waiver hearing, the court may designate an agency "to submit a report analyzing the criteria," and may "rely on the facts stated in the report in making its findings" regarding those criteria. Parties are entitled to copies of the report at least 3 days before the hearing.

The child must be represented by counsel at the waiver hearing. However, if the child flees before the hearing, the hearing may proceed in the child's absence, and a waiver may be granted subject to the child's right to make a subsequent showing of good cause for failure to appear.

If a petition for waiver is uncontested, the court need not hear testimony at the waiver hearing, so long as it is satisfied that the child's decision not to contest was knowingly, intelligently, and voluntarily made; however, the court must still base its waiver decision on the criteria specified by statute.

Once a waiver has been granted, the court of criminal jurisdiction has exclusive jurisdiction over the case, with no restrictions on the court's authority to convict the child of any offense.

Offense Category

Minimum Age

Offense Detail

Any Criminal

Any violation of State criminal law.

Certain Felonies

Any felony committed at the request or for the benefit of a criminal gang.

Murder

Felony murder, second degree reckless homicide.

Person

First or second degree sexual assault, hostage taking, kidnapping, armed robbery.

Property

Burglary in which the burglar is armed, uses explosives, or commits battery while inside the enclosure.

Drug

Manufacture, distribution, or delivery of a controlled substance or controlled substance analog.

Statutory Exclusion

Wis. Statutes Sec. 938.183

Courts of criminal jurisdiction have exclusive original jurisdiction over a number of specified age/offense categories.

Offense Category

Minimum Age

Offense Detail

Murder

First degree intentional homicide, attempted first degree intentional homicide, first degree reckless homicide, second degree intentional homicide.

Person

None specified

Assault or battery committed by an adjudicated delinquent against an employee, officer, inmate or visitor while confined in a secured facility; battery committed by an adjudicated delinquent against a probation, parole, or aftercare agent.

Reverse Waiver

Wis. Statutes Sec. 970.03

Generally, if a preliminary examination is held in the case of a child accused of an offense subject to original adult court jurisdiction (with certain exceptions for homicide cases, as noted below), the court must initially determine whether there is probable cause to believe the child committed the offense under circumstances satisfying the jurisdictional statute. If not, it must discharge the child, but further proceedings may be brought under the Juvenile Justice Code. If so, it must decide whether to transfer the case to juvenile court or retain jurisdiction. The court must retain jurisdiction unless the child proves by a preponderance of the evidence that (1) if convicted, the child "could not receive adequate treatment in the criminal justice system"; (2) transferring jurisdiction to the juvenile court "would not depreciate the seriousness of the offense"; and (3) "retaining jurisdiction is not necessary to deter the child or other children" from committing the offense of which the child is accused. However, this reverse waiver procedure is not available in the case of a child of at least 15 accused of first degree intentional homicide, attempted first degree intentional homicide, first degree reckless homicide, or second degree intentional homicide.

Once an Adult, Always

Wis. Statutes Sec. 938.183

Adult courts have original criminal jurisdiction over a child accused of any offense who (1) has already been waived to criminal court and convicted of a previous violation; (2) has been waived to criminal court and still has a case pending there; (3) has been convicted of an offense over which adult courts have original jurisdiction; or (4) has a case pending in adult court involving an offense over which adult courts have original jurisdiction.