In two decisions released Wednesday, a Wisconsin appeals court upheld a decision to try the girls in the "Slender Man" case as adults. The two girls admitted as 12-year-olds in 2014 to having stabbed their friend in order to please "Slender Man," an Internet horror meme. (The victim luckily crawled to safety and survived.) The decision to try two children as adults – two children immature and mentally ill enough to believe in the literal existence of a fictional character – may seem inappropriate, to put it mildly. But legally it's a viable one – thanks to a terrible Wisconsin law with analogues in many other states.
We have juvenile courts because it has long been understood that children are less culpable for their actions than adults; they are immature, products of influences and environments over which they have little control. That commonsense notion has been backed up by research showing juveniles have underdeveloped brains, which impacts decision-making and impulse control.
In this case, the record suggests that, due to mental illness, the girls had significantly less control of their actions than the average preteen. Morgan Geyser, who wielded the knife, has since been diagnosed with early-onset schizophrenia. Most people with schizophrenia are not violent, but an undiagnosed Geyser believed she would get to go live at Slender Man's mansion if she killed her friend, and that he'd harm her family if she didn't go through with it. Experts diagnosed her fellow plotter, Anissa Weier, with a delusional disorder and schizotypy, essentially "a diminished ability to determine what is real and what is not real." After the two stabbed their friend, they set off to find Slender Man in a forest 300 miles away – on foot. Mental health professionals testified that Geyser still believes Slender Man is real.
But irrespective of these girls' mental illnesses, criminally prosecuting 12-year-olds as adults is unjustifiable. The basic justifications for incarcerating criminals – rehabilitation, incapacitation, deterrence, and retribution – apply differently to juveniles. Most juvenile offenders don't need to be incapacitated because they grow out of their offending behaviors rather than becoming ongoing threats to public safety. Deterring someone who isn't in control of his or her actions or doesn’t recognize their consequences isn't really possible. And most importantly, you can't justify retribution against someone you've determined isn't culpable by virtue of their immaturity.
So the law generally envisions juvenile offenses being addressed with social services, mental health care and education, all aimed at rehabilitation. In the Eighties and Nineties, however, amid a rise in crime rates and junk-science-fueled hysteria over irredeemable young "superpredators," legislatures started passing laws aimed at punishing, rather than reforming, youth offenders.
Twenty-nine states have laws that give adult courts jurisdiction over juveniles as young as 13 accused of particular crimes. In 1995, Wisconsin amended its criminal code to become the only state to apply such a law to a child as young as 10, after an 11-year-old committed a gang-related shooting murder in the state. If convicted in criminal court, the girls could be sentenced to up to 65 years. If adjudicated delinquent – that is, sentenced in juvenile court – they would be released when they turned 18.
The Wisconsin code allows kids charged in adult criminal court to seek a "reverse waiver," moving their case to juvenile court, but the standard for getting a reverse waiver is high. The code requires a juvenile to prove three things: (1) that the juvenile couldn't get adequate treatment in the criminal justice system if convicted; (2) that trying the case in juvenile court wouldn't portray the offense as less serious than it is and (3) that it isn't necessary to try the case in criminal court to deter the defendant or other juveniles from committing that offense. If the defendant proves all three, the judge may, at her discretion, transfer the case to juvenile court. But if the defendant fails to prove any prong, the judge must keep the case in criminal court no matter how compelling the evidence is on the others.
This statute is designed to keep cases where the alleged offense is particularly heinous in adult court – which doesn't make much sense. The egregiousness of a crime is not evidence of some maturity or self-control that could justify treating a child like an adult. It's irrational to say children don't really choose to commit bad acts except when those acts are really shocking.
For the Slender Man girls, the court did not embrace the underlying logic of the Wisconsin statute, which is that we should ignore the fact that an accused criminal is a child if what they've done is so horrendous that we want retribution. The decisions instead acknowledge that the girls were impaired, and could still be when they turn 18, emphasizing the possibility that the maximum sentence the girls could receive in juvenile court might be too short.
That may very well be true, but it doesn't make sentencing a mentally ill child to perhaps decades in prison a good solution. The Geyser opinion references a mental health expert's testimony stating that there's no system that would make sure, after she was freed at 18, she would receive the mental health care she clearly needs – but cites no law that would prevent a dangerous person from being civilly committed. Still, it points to a larger system-wide failure to provide appropriate treatment for either juveniles or adults with mental illnesses who commit crimes. People who are a danger to themselves or others must, of course, be incapacitated. But the implication here is that, if a juvenile's mental illness is severe enough, once she's of age we have to do to her what we generally do to mentally ill adults who commit crimes – warehouse them in prisons instead of humanely incapacitating or treating them.
The decision doesn't mean the girls can't raise an insanity defense and it doesn't mean mitigating circumstances can't be taken into account at sentencing if they are convicted. But that doesn't make the legal fiction that a 12-year-old can be as culpable for her actions as an adult any more just.
From horror meme to inspiration for murder, how Slender Man became an Internet legend.
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