Juvenile crime, adult time

On March 18, Dylan Yang of Wausau was convicted of stabbing and killing 13-year-old Isaiah Powell, a middle school student who had come to Yang’s house over a conflict that began on social media. Yang was 15 when he committed the crime, but tried in adult court due to a Wisconsin state law that requires juveniles as young as 10 accused of the most serious crimes to be tried as adults.

Now 16, Yang faces up to 60 years in prison. Had he been tried as a juvenile, his maximum sentence would be five years. As the case now stands, Yang is most likely to spend years, if not decades, in a Wisconsin prison with the most violent adult criminals.

At his age, Yang can’t vote, buy cigarettes, or sign up for the military. At 16, he’s considered a juvenile in every way, except when it comes to breaking the law. He has been living alongside adults in the Marathon County Jail, held on a $1 million cash bond, since March 2015. Staff at the jail have gone to great efforts to separate Yang from the adult inmates. That won’t happen in state prison.

Across the United States, thousands of children have been sentenced as adults and are serving time in adult prisons. In Wisconsin alone, there are hundreds of children younger than 18 housed in adult prisons and jails. The vast majority are convicted of non-violent crimes.

The decision to treat children accused of the most serious crimes as adults lies not with police or prosecutors, but with lawmakers and judges. Wisconsin law, upheld repeatedly, requires adult charges in these cases, but minors may seek transfer to juvenile court through a reverse waiver hearing. Judges rarely rule in the child’s favor.

This was recently tried unsuccessfully by Yang, and also by the two 13-year-old Waukesha girls charged with trying to kill a sixth grade classmate—to please Slender Man, a fictional internet character—in a case that attracted international attention. Recent attempts by juveniles who appealed their sentences to the state’s highest court have been similarly fruitless.

Juveniles lose more than their freedom in adult prison, legal experts say. They lose out on the educational and psychological benefits offered by juvenile facilities. They’re far more likely to suffer physical and sexual abuse by other inmates and even prison staff, according to the National Prison Rape Elimination Commission.

During Yang’s sentencing hearing on July 12, Marathon County Circuit Court Judge LaMont Jacobson will decide Yang’s fate. There’s no mandatory minimum sentence for first degree reckless homicide, the crime for which Yang was convicted. His sentence could range from probation to 60 years in prison. Jacobson will consider Yang’s prior history, his family support network, school record, and his likelihood of committing another crime. Regardless of those factors, probation is highly unlikely given the gravity of the crime.

There’s no question that Yang stabbed Powell, twice. Yang testified that he did so in self-defense during a fight that began on social media and quickly escalated. Nia Phillips, the 19-year-old Wausau woman who drove Powell and his friends to confront Yang at his home, is serving a three-year probation sentence for her role in the tragedy. She was convicted of contributing to the delinquency of a child.

At his trial, Yang expressed remorse, and said he stabbed Powell only because he thought his own life was in danger, mistaking Powell’s BB gun for a real pistol. The jury was unmoved, convicting Yang after they deliberated for less than four hours.

A young boy is dead; a family is in mourning. But many people are uncomfortable with Yang’s conviction, in part because the larger question is whether he should have been tried in adult court in the first place.

Major consequences, minor offenders

The controversy surrounding the decision to charge Yang as an adult still swirls, and not just in central Wisconsin. More than 80 letters from people across the nation have poured in to Judge Jacobson’s office asking for leniency when Yang is sentenced in July.

And on May 31, as many as 1,000 people, many from out of state, are expected to gather in a peaceful march to support not only Yang and his family, but also the family of Isaiah Powell.

Jay Kronenwetter, Yang’s former defense attorney, tried to have Yang’s case moved to the juvenile system, where Yang would have been tried behind closed doors and would have faced significantly less stringent penalties. But in July 2015, Circuit Judge Jill Falstad dismissed Kronenwetter’s argument, keeping Yang in jail and in adult court. When he’s sentenced in July, Yang will be represented by his new attorney, Harry Hertel of Eau Claire.

Elsewhere, though, sentencing juveniles to adult prisons is increasingly frowned upon, and the policy of automatically trying minors in adult court is declining.

Certainly age and severity of crime are factors. Most people would consider a heinous, premeditated act by a 17-year-old as different, for example, than an impromptu burglary by a 14-year-old.

But one reason legal experts are taking a new look at juvenile crime is mounting evidence that 15- and 16-year-olds have a high likelihood of rehabilitation in the juvenile system, says Michael Caldwell, a researcher at the Mendota Juvenile Treatment Center in Madison, a secure state mental health clinic for young offenders.

“When you address behavioral issues at a young age, there’s still hope,” Caldwell says. “Children don’t get the treatment they need in the adult system.”

Compounding the problem, Caldwell says: Recent studies show that minors in adult facilities are more likely to commit new and more serious crimes compared to offenders in the juvenile system. “By putting young people in adult prison, you’re defeating the purpose. That’s not rehabilitation,” he says.

The U.S. Supreme Court has found that death sentences in particular represent cruel and unusual punishment for juveniles. And in January, the high court mandated a retroactive ban on life without parole for young offenders. Courts around the country have increasingly ruled against harsh sentences for juveniles. But the Wisconsin Supreme Court has upheld such sentences, even amid evolving standards and new science about adolescent brain development.

“Juveniles are treated so harshly, it doesn’t make sense,” Caldwell says. “Many people around the world consider it a crime against humanity.”

Still, Caldwell concedes, a young boy is dead; a mother has lost her child. A community is in mourning. Someone must be punished. “Of course, we must acknowledge that murder is bad,” Caldwell says. “But to say there is no chance for rehabilitation for a 16-year-old is not compatible with what we know.”

Child super predators?

In the 1980s and early 1990s, a number of states—including Wisconsin—enacted stiffer penalties for juveniles after some high-profile cases sparked widespread fear about “super predator” youth.

Wisconsin’s “tough on crime” shift stemmed largely from a 1983 case in which a 14-year-old Mineral Point boy killed his parents and brother in a horrific crime that shocked the state. At the time, existing law meant the suspect, Peter Zimmer, only could be found delinquent and held until he turned 19, when he was released with a new name and a plane ticket to Florida, according to widespread media reports.

Then, in 1991, an 11-year-old boy in Racine shot and killed a man but couldn’t be charged as an adult under existing law. Then-Racine County Circuit Judge Dennis Barry was outraged; he vowed to revise the juvenile justice code. His efforts, which took several years, resulted in the statutes as we know them today: requiring some 10-year-olds to be charged as adults and moving all 17-year-olds into adult court.

While proponents say the tough approach deters crime, from a neurological standpoint, some evidence calls into question the fairness of treating juveniles as adults. Scientists now widely accept that juveniles, by the very nature of their brains, are more impulsive than adults and fail to understand consequences. The brain of a 15-year-old is much different than that of a 25-year-old, according to research published by the American Bar Association.

There’s also a mental health aspect to consider. A 2007 study by the Campaign for Youth Justice shows juveniles are 19 times more likely to commit suicide in jail than young people in general, and 36 times more likely to kill themselves in an adult jail than in a juvenile facility.

The federal government has taken steps to protect juveniles from being housed with adults through two federal statutes: the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA), and the Prison Rape Elimination Act of 2003 (PREA). Under both guidelines, “youthful inmates” must be housed separately from adult inmates.

Despite this, Wisconsin is one of nine states that continues to house juveniles with adult prisoners, and has chosen to forfeit federal grant dollars rather than comply.

Part of the problem: PREA defines juveniles as “any person under the age of 18 who is under adult court supervision and incarcerated or detained in a prison or jail.” But the JJDPA allows states to set their own definition of “juvenile.” This has resulted in widespread disagreement and, ultimately, slow progress toward compliance with the spirit of the laws.

Recommendations under PREA are designed to ensure juveniles get the educational, psychological, and vocational services that only juvenile-detention centers can provide. They’re also supposed to ensure physical separation between juvenile and adult prisoners when the state houses them in the same facility. But despite the federal rules, adult facilities are rarely equipped with age-appropriate education programs, so offenders are poorly equipped to secure meaningful employment upon their release.

Cost vs. benefit

According to the Campaign for Youth Justice, more than 15 states over the past six years have changed their laws to remove youth from adult jails and prisons and keep them in juvenile court. Yet in Wisconsin, lawmakers have repeatedly failed to pass legislation that would change the current system, even in modest ways.

Currently, a group of lawmakers are circulating a bill that would move 17-year-olds facing a first-time, non-violent offense to juvenile court. The bill, cosponsored by Sen. Jerry Petrowski (R-Marathon), Mary Czaja (R-Irma) and others, aims to reduce crime and recidivism while saving money by taking those offenders out of the more expensive adult system. The bill’s sponsors say Wisconsin’s juvenile justice system is “better equipped to administer punishment and align life transforming accountability” to many 17-year-olds.

“Young people with adult criminal records are less likely to graduate from high school, they have difficulty finding future employment, and face barriers to higher education and military service,” Petrowski says, adding that defendants covered by the bill “deserve a second chance to become responsible adults.”

The proposed legislation has extensive support. In October, the Governor’s Juvenile Justice Commission issued an official recommendation for the bill. And in February, the McIver Institute, a political think tank in Madison, publicly supported the proposal, releasing statistics that show 17-year-olds are three times more likely to return to prison if they go through the adult system instead of being treated as a juvenile.

“Our government is effectively spending millions of dollars a year to cycle individuals through expensive processes that are unlikely to reduce future offending. This policy is not a responsible use of taxpayer dollars, and it does not result in positive outcomes for young offenders or our communities,” the report reads.

Despite its widespread bipartisan support, the bill wasn’t scheduled for a floor vote in the last state legislative session. A revamp could be proposed later this year.

Even if the legislation eventually passes, the so-called “second chance” bill would have no impact on Yang’s fate, and doesn’t address juveniles, like him, who are accused of more serious crimes.

 Critics of shifting juveniles out of adult court say the juvenile system is significantly more expensive. A state fiscal analysis shows that an adult prisoner costs Wisconsin taxpayers $32,395 per year, which breaks down to $89 per day.  The cost in juvenile facilities can soar as high as $78,475 a year, or $215 a day.

Caldwell says that argument takes a short-term view, because adult sentences are typically much longer than the five-year maximum for juveniles convicted in Wisconsin. “Do the math,” Caldwell says. “Moving juveniles out of the adult system has a definite cost benefit.”

Public response

There’s no question that Isaiah Powell’s death is a tragedy, one that could have been avoided. His family is left reeling.

A social media page dedicated to Isaiah has more than 450 members and is filled with posts from friends and family members who continue to mourn his loss.

“I still cry, I still miss him, I’m waiting for the day I see him again,” one poster wrote. “God needed you more than we did,” wrote another.

Yang’s family is suffering, too. His family declined to speak to City Pages about the case, but took to social media to describe a quiet boy who loved music, loved to draw, was a good student and helped his mother in the kitchen.

Yang also was repeatedly bullied both on and off school grounds, according to a post by his mother, Annahli Vue: “If the bullying of my son had been stopped earlier on, would he had felt the need to defend himself and his friends from their bullies? Would Dylan be on trial now for the death of another child?”

The public Facebook page, Stay Strong Dylan Yang, has more than 3,350 members. Another page, Anti-Bullying: I am Dylan Yang, has more than 2,000.

Prosecutors, judges and the general public are calling for changes in the way juveniles are handled in the justice system, says Ashley Nellis, a research analyst at The Sentencing Project. A growing understanding of adolescent development, ethnic inequalities, and the changing views of legal experts have created the moment, Nellis says. Court systems, she believes, will begin to account for age, and will consider children’s unique ability for reform.

But if and when reform does come to Wisconsin’s justice system, it will come far too late for Dylan Yang.

Reach Shereen Siewert at 715-845-5171 or [email protected].