Saturday, November 10, 2012

Wisconsin’s costly paternalism

Tyler H., a thirteen-year-old Wisconsin kid, was having a really bad day.  First, his brother didn’t like the way Tyler was chewing his food, so he “hit Tyler in the back.”  Then, when the inevitable wrestling match ensued, the boys’ mother got into the act and hit Tyler in “his mouth.”  After getting struck by his mother, Tyler did not react physically; instead, he swore at his mother and smartly “left the house.”  But then Tyler’s mother decided to exacerbate her disastrous parenting by calling the police—that’s right: the police.  And once these government agents were invited into what should have been a family matter, things got even worse for young Tyler.

Instead of focusing on the brother for starting the physical fight, or on the mother for striking thirteen-year-old Tyler in the face, the police referred Tyler to the prosecutor’s office for the crime of “disorderly conduct” for saying “fucking whore” after his mother struck him in the mouth.  The prosecutor charged Tyler in juvenile court where the judge adjudicated him delinquent (the equivalent of a conviction in adult criminal court) and Tyler appealed.  On appeal, the appellate court also sided with the prosecutor and upheld the trial judge.

This type of government paternalism highlights several serious problems with our state.

Ø      First, Tyler’s case is not an anomaly; unfortunately, it is incredibly common.  Disorderly conduct is by far the most common crime of conviction for young people in Wisconsin.  In fact, as I’ve demonstrated at length here, Tyler’s case and others like it are clogging up our criminal justice system.  More accurately, Tyler’s case and others like it are our criminal justice system. 

Ø   Second, when the government machinery steps in to play the role of parent, this type of paternalism doesn’t come cheap.  We have to pay for the police, trial judges, court personnel, attorneys, appellate courts, and the Department of Corrections—or, as I’ve heard one judge call it, the Department of Corruptions—to name just a few of the obvious expenses.  At worst, we’re taking these government agents away from doing more important things, like protecting us from actual crime.  At best, we have to pay for more of these government agents to try keep pace with the prosecutor’s overzealous charging preferences and their insatiable appetite for convictions.    

Ø   Third, our legislature defines crime way too broadly.  In this case, Tyler was convicted for disorderly conduct, i.e., conduct that “tends to cause or provoke a disturbance.”  But wait!  Tyler didn’t cause or provoke anything.  He was struck twice and then reacted to the disturbance by swearing and walking away—precisely the thing we would want someone to do in that situation.  Unfortunately, “It is well-established that a defendant’s conduct does not need to cause an actual disturbance” for him to be guilty.  Instead, the prosecutor wins a conviction merely by showing that the conduct—here, swearing after being hit in the mouth—tends to cause a disturbance, even though it didn’t in this particular case.  That’s right: while Colorado and Washington will be raising hundreds of millions of dollars in tax revenue after legalizing marijuana, Wisconsin is spending taxpayer money to win convictions for disorderly conduct when there was no actual disturbance!  Congratulations, government bureaucrats.  By convicting people for hypothetical and imaginary crimes, you’ve brought new meaning to the words “government waste.”

Ø      Fourth, there is no rhyme or reason to Wisconsin’s criminal justice system.  On the one hand, I have defended parents who were charged with felony child abuse merely for spanking their children on the butt, over the clothing, and leaving no marks of any kind.  But in Tyler’s case, his mother struck him in the face after his brother started a physical fight with him, and she was not prosecuted.  The trial judge—a man who reportedly has “a lot of common sense”—even went so far as to state: “we have an adult, a mother, that attempts to do what mothers are supposed to do . . . and then we have Tyler’s outbursts.”  So much for that “common sense.”

But the biggest problem might lie with us, the citizens: Tyler’s case shows just how over-reliant we have become on government.  Gone are the days of limited government; today, we expect government to do nearly everything for us.  (And based on our $16 trillion national debt and our $46 billion Wisconsin state debt, it’s obvious that we want to enjoy our government benefits now, while sticking future generations with the tab.)  But when we expect the government to play parent because our children swear at us after we hit them, we’re taking government paternalism to new heights. 

What we need to remember is that when we demand more of government, the bureaucrats will be quick to comply—for a price.  But there’s more than just the financial price: this whole experience has probably made thirteen-year-old Tyler bitter, resentful, angry, and frustrated.  I can only imagine how those feelings will manifest themselves in years to come. 

So the big lesson here?  Don’t expect government to do everything for you.  And raise your own damn kids. 


  1. You wrote,"So the big lesson here? Don’t expect government to do everything for you. And raise your own damn kids". Couldn't have said it better myself.

  2. You are sure there is no ulterior motive in sending juveniles to "Corrective Facilities?" I seem to recall a case of judges - in Pennsylvania I believe - sending juveniles to privately run "Corrective Facilities" that the State contracted with to provide that service. A number of those public officials involved in getting juveniles into those facilities had financial interests in the companies running the facilities.

    Anything like that going on in Wisconsin?


    1. LFF:

      I like the way you think. Yes, I recall that Pennsylvania case: "kids for cash," they called it. If memory serves, two judges were ultimately convicted. As far as Wisconsin, I don't do post-conviction work so I don't know for sure, but I think that our state and juvie correctional facilities are actually government owned, rather than privately owned. So I am not aware of any ulterior profit motives that could be at play here in Wisconsin.