In 1995 the state of Wisconsin transferred responsibility for juvenile delinquents and offenders from the Department of Health and Social Services to the Department of Corrections. This came the same year as the fear of a coming generation of 'super predators' drove policy decisions across the United States. As a result, Wisconsin implemented policy in 1996 that lowered the age of delinquency to age 10 and saw 17-year old's subject to involvement in the adult justice system at local and state level. The age of recidivism had begun.
Wisconsin’s commitment to juvenile justice reform has failed to assuage the disparities in approach, despite deferred prosecution agreements, restorative justice and restitution programs. The fear and rhetoric of the early 90’s continuing to taint the juvenile experience, leaving children vulnerable in a system designed reactive.
Juvenile Reform in Wisconsin
On July 7th, 2005, the Wisconsin Supreme Court adopted a rule requiring police to electronically record all juvenile interrogations. In a decision authored by Justice Ann Walsh Bradley in the interest of Jerrell C.J., 2004 WI App 9, 269 Wis.2d 442, 674 N.W.2d 607. In determining Jerrell’s confession involuntary, the decision took into consideration Jerrell’s personal characteristics including, his age, his IQ, prior experience with law enforcement and citing the psychological pressures employed by police – sound familiar?
Statutes 938.195 and 938.31 (3)(b) were enacted to codify the holding of State v Jerrell CJ with Chief Justice Shirley S Abrahamson writing a separate concurrence in defence of the court exercising its supervisory power to impose the recording rule, stating she would also adopt a per se rule excluding in-custody confessions from any child under 16 who had not consulted with a parent or interested adult. The latter did not find its way into Wisconsin state legislature unfortunately - for 16-year-old Brendan Dassey who only 8 months later would find himself at the mercy of a state where juveniles may not be able to cast a political vote, but can waive their constitutional rights against self-incrimination.
Miranda v Mental Acuity
Known as both America’s Dairyland and the Badger State, this seemingly innocuous state up until 2011 allowed law enforcement to question juveniles in schools without offering any Miranda warning. All this despite Justice Earl Warren when handing down the Miranda decision stating that defendants must “knowingly and intelligently” waive their rights before speaking to police. A state who despite their own their Chief Justice Abrahamson concurring on Jerrell and dissenting in State v Moore, championing the ‘totality of the circumstances’ review, failed a young, suggestible Brendan Dassey whose mental acuity was no match for two seasoned investigators. There were no steps taken to mitigate the irreversibly damaging interrogations that played out over a 48-hour time frame in Manitowoc.
Brendan Dassey had also been failed by a lack of insightful legislature. In JDB v North Carolina, the Justice had written “addressing the specific context of police interrogation we have observed that events that would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” The 1979 US Supreme Court Case Fare v Michael C found that judges should evaluate the “totality” of circumstances into trial – such as age, intelligence and criminal justice experience - again familiar.
There have been previous versions of Brendan to varying degrees dotted on the US and Wisconsin legal vista, yet 938.15 was not enough. The “totality” test subjective from Justice to Justice, the openly interpretative ‘special care’ standard and a 7th Circuit Court Judge dissenting with his concern focused on the posing of new challenges for police officers – without thought for juvenile justice reform and the protection of society’s most vulnerable – its youth.
Juvenile Interrogation Protection Law’
In June of 2016, only two months before federal magistrate Judge William E Duffin’s affirmative Habeas opinion, Barbara Tadych, Brendan Dassey’s mother initiated the ‘Juvenile Interrogation Protection Law’ petitioning the Wisconsin State House, Wisconsin State Senate and Wisconsin’s Governor to enact into law, protections for juveniles while under interrogation.
Taking its lead from Justice Shirley Abrahamson in her concurrence in Jerrell in 2005, it proposes legislation featuring safeguards that an attorney be present (as a non-waivable right) and that all children should be informed prior to interrogation that depending on the information obtained, they may be charged as an adult.
Currently Wisconsin statute 938.19 (2) reads “When a juvenile is taken into physical custody under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, legal custodian, and Indian custodian of the juvenile by the most practical means” This requires granulation – Wisconsin juveniles and juveniles across the country need a ‘Juvenile Interrogation Protection Law’ we ask that you join us in signing and sharing the petition. There cannot be another Brendan Dassey – 938.195 and 938.19 (2) is not enough.
Free Brendan Dassey. Sign here
Please show your support by sending a letter or card to Brendan at: Brendan Dassey DOC# 516985 Columbia Correctional Institution P.O. Box 900 Portage, WI 53901