¶ 75. {dissenting). All of the parties, even the State, concede that in this case severance cannot resolve a constitutional challenge under art. I, § 7 of the Wisconsin constitution. Yet, undeterred by such a concession, the majority advances a manipulated focus which allows it to arrive at its constitutional conclusion.
¶ 76. The focus of a Wis. Const, art. I, § 7 inquiry cannot be merely whether three plainly penal provisions of the Juvenile Justice Code (JJC) can be severed. Such a focus on isolating three penal provisions only serves to obfuscate the real inquiry. The proper focus is to view the JJC in its entirety and the real question is whether the JJC by its purpose and effect is so criminal in nature as to invoke art. I, § 7 protections.
¶ 77. After reviewing the JJC under art. I, § 7,1 conclude that in moving the JJC from Chapter 48 (the *899Children's Code) to Chapter 938 (adjoining the criminal code), the legislature intended more than to merely move the statute 890 chapters from the first volume to the last volume of the Wisconsin Statutes. The move instead signaled a change in direction from the unbalanced approach of the Children's Code, which has the paramount purpose of promoting the "best interests of the child" to a balanced approach akin to the criminal code, which balances rehabilitative interests along with protection of the public and accountability of the offender. Because the majority's analysis has no continuing basis in the law or in the facts of juvenile delinquency adjudications today, I dissent from the majority's conclusion that juveniles have no right to a jury trial under art. I, § 7 of the Wisconsin constitution.
I.
¶ 78. The State concedes that aspects of the new JJC track individual aspects of the criminal code. It also concedes that the move puts the "new system [ ] closer to a criminal proceeding than it used to be." In moving the juvenile delinquency provisions and changing the JJC's purposes, dispositions, and long-term consequences to more closely resemble the criminal code, while at the same time eliminating the right to a jury trial, I conclude that the legislature's enactment of the JJC crosses over the constitutional line.
¶ 79. Article I, § 7 of the Wisconsin constitution declares that "[i]n all criminal prosecutions the accused shall enjoy the right. . .to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed. ..." By its terms, the constitutional protections inherent in art. I, § 7 apply only to those proceedings deemed "criminal" in nature. The juveniles claim that the JJC is criminal *900in nature in that it treats juvenile offenders in a manner sufficiently similar to adult criminal offenders as to invoke this constitutional protection. The juveniles accordingly assert that Wis. Stat. § 938.3l(2)'s1 proclamation that juvenile delinquency adjudications shall be "to the court" is unconstitutional.
¶ 80. The question of whether youthful offenders are entitled to jury hearings is one that courts have faced since the creation of a separate juvenile justice system and is one still receiving prominent consideration today. See, e.g., In re C.B., 708 So. 2d 391 (La. 1998); State v. Schaaf, 743 P.2d 240 (Wash. 1987). It is a question that this court under different prior juvenile laws has faced and answered in the negative a number of times. See N.E. v. DHSS, 122 Wis. 2d 198, 361 N.W.2d 693 (1985)("In Interest of N.E."); State v. Scholl, 167 Wis. 504, 167 N.W. 830 (1918); Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N.W. 422 (1899).2
*901¶ 81. The juvenile justice system has historically been focused solely on nurturing and rehabilitating youthful offenders while removing the taint that accompanies a criminal conviction in adult court. See Janet E. Ainsworth, Re-Imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. Rev. 1083, 1096-97 (1991). As this court noted in Scholl:
It is sufficient to say on this point that the proceedings under this law are in no sense criminal proceedings, nor is the result in any case a conviction or punishment for crime. They are simply statutory proceedings by which the state.. .reaches out its arms in a kindly way and provides for the protection of its children....
Scholl, 167 Wis. at 509. This unbalanced and "kindly" focus on the child, often termed "parens patriae,"3 has kept juvenile codes in the past from being labeled "criminal" proceedings. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
¶ 82. However, in 1995 the balance changed markedly. The Wisconsin legislature reacted to the recommendations of the Juvenile Justice Study Committee (the Study Committee) by crafting a comprehensive overhaul of Wisconsin's juvenile justice system, in the form of Wis. Stat. ch. 938. See 1995 Wis. *902Act 77. In taking this action, the legislature not only made "symbolic" alterations to the old Children's Code, Wis. Stat. ch. 48 (1993-94), the legislature also made significant substantive modifications to the manner in which juveniles alleged delinquent are treated. As the Study Committee Report indicated:
The [JJC] will significantly change the way Wisconsin treats young lawbreakers. Personal accountability and community protection will join offender rehabilitation as the primary objectives of Wisconsin's juvenile justice system. Such a balanced approach is the most effective way to respond to juvenile crime.
Juvenile Justice Study Committee, Juvenile Justice: A Wisconsin Blueprint for Change (1995)[hereinafter "Report"].
¶ 83. In making these modifications and adjusting the balance of purposes underlying the juvenile justice system, the legislature once again presents this court with the question of whether the juvenile code has crossed the constitutional line from an acceptable "parens patriae" system of juvenile social rehabilitation to what is effectively a separate system of criminal prosecution of "young lawbreakers." If the JJC is the former, additional procedural protections need not be applied by the court. If the latter, juveniles may legitimately invoke the constitutional protections of art. I, § 7 of the Wisconsin constitution.
II.
¶ 84. As an initial matter, I note that the majority declares four "foundations" for its ultimate constitutional conclusion — our standard of review, the rule of severance, and state and federal case law. As for *903the first foundation, standard of review, I agree with the majority that the appropriate standard of review is de novo, with the juveniles bearing the burden of proving the presumptively constitutional JJC unconstitutional beyond a reasonable doubt. See State v. Hall, 207 Wis. 2d 54, 67, 557 N.W.2d 778 (1997); State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). The majority's lengthy citation and quotation of precedent for this general principle notwithstanding, the basic presumption is simply the starting point of our analysis, not our conclusion. It does not significantly buttress the majority's failure to accurately address the juveniles' arguments.
¶ 85. The majority's second declared foundation, the rule of severability, is even more problematic. It allows the majority to obfuscate the proper analysis under Wis. Const, art. I, § 7 and declare "[a]bsent the provisions in Wis. Stat. §§ 938.538(3)(a)l, 938.538(3)(a)lm and 938.357(4)(d). . .the JJC is not a criminal code." The problem with relying on the rule of severability in a case of this nature, even putting aside the concessions of the parties, is that art. I, § 7 is concerned with proceedings which are criminal in nature, not particular sanctions which are punitive. The mere removal of one potential sanction cannot change the expressed focus and real effect of the JJC. Thus, while severance may be appropriate for a due process analysis, its application in an art. I, § 7 framework is inappropriate.4
*904¶ 86. Finally, I note that as further foundations for its opinion the majority also repeatedly returns for support to this court's decision in N.E. and the 1971 decision of the United States Supreme Court in McKeiver. This reliance is unjustified.
¶ 87. In N.E. this court determined that "a juvenile's right to a jury trial is neither a federal nor a state constitutional right." N.E., 122 Wis. 2d at 201. The court made that statement based on our review of the then-existing parens patriae juvenile code — a juvenile code which no longer exists. The N.E. court did not even consider Wis. Const, art. I, § 7, likely because the emphasis of the old Children's Code was significantly different from the JJC.
¶ 88. Similarly, the high court in McKeiver examined a Pennsylvania juvenile law and concluded that there was no federal due process right to a jury trial. In reaching this conclusion the Court repeatedly cited the failures of the parens patriae system of juvenile justice, but noted that:
[t]he Court, however, has notyei said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile . . .[and] the juvenile court proceeding has not yet been held to be a "criminal prosecution". . .and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label.
*905McKeiver, 403 U.S. at 533, 541 (emphasis added). The Court then concluded that "[i]f the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps the ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it." Id. at 551.
¶ 89. The operative philosophy of the juvenile justice system in Wisconsin has been modified in a substantial and material fashion since N.E. and McK eiver were decided. To blindly rely on those precedents, which go not to whether the JJC is sufficiently criminal to invoke the protections of the art. I, § 7 of the Wisconsin constitution, but rather to fundamental fairness challenges to parens patriae juvenile laws which no longer exist is to ignore the real constitutional challenge before the court. The "day" referred to by McKeiver has arrived. Because McKeiver and N.E. are reliant upon juvenile codes not at issue here, it is incumbent upon this court to examine the JJC from a perspective unjaundiced by prior constitutional conclusions derived from different juvenile codes.
III.
¶ 90. In this case the State uniformly asserts that the JJC, including the Serious Juvenile Offender Program, is a rehabilitation and treatment based system of juvenile oversight not intended by the legislature to be a juvenile criminal code for punishing youthful offenders. The juveniles respond that the JJC demonstrates all of the characteristics of a criminal code, including an intent to punish. In considering these diametrically opposed positions under the state constitution, the dispositive inquiry is not whether the accused is a child or whether the proceedings are before *906a court labeled "juvenile." Rather, the inquiry is whether the proceedings at hand may be fairly characterized in purpose and effect as being "criminal" in nature.
¶ 91. Like the related inquiry used to determine whether a statute is civil or punitive, see, e.g., Kansas v. Hendricks, 117 S. Ct. 2072, 2082 (1997), the Wis. Const, art. I, § 7 inquiry has two prongs. First, the stated intention of the legislature must be examined. Second, a determination must be made as to whether the code's purposes and effects are so criminal in nature as to defeat the legislature's separation of the juvenile code from the protections inherent in the adult criminal code. Upon review of the structure, expressed purposes, and substantive provisions of the JJC, I conclude that not only has the JJC shifted treatment of juvenile offenders in Wisconsin "closer to" the criminal sphere, it has dramatically crossed the constitutional line invoking art. I, § 7 of the Wisconsin constitution.
¶ 92. In adopting a new juvenile code, the Juvenile Justice Code, the legislature intended a substantive reorientation of the law as it affects children who have committed acts which, if they were adults, would subject them to criminal sanction. This intention is readily apparent from the changes in placement and expressed legislative purpose accomplished through the enactment of the JJC. As one commentary notes, "[t]he enactment of Chapter 938 marked a clear change in the way Wisconsin views its children. By situating the new Juvenile Justice Code immediately before the Criminal Code (ch. 939-951), the legislature signaled its intent to treat young offenders. . .more like adult criminals under the Criminal Code." Virginia A. Pomeroy & Gina M. Pruski, Wiscon*907sin Juvenile Law Handbook 1 — 1 (1998).5 Indeed, as the Study Committee indicated, the JJC has been rebalanced to address young "law violators who often are physically and mentally mature and who have demonstrated a willingness to engage in serious and even heinous acts." Report at 9.
¶ 93. The Study Committee further stated that:
Both codes [the JJC and the Criminal Code] deal with the same kinds of behavior, even though there are distinctions in the ages of the perpetrators and the potential dispositions available. Young offenders would be reminded that while society does not yet classify their actions as criminal, they are "almost there."
Report at 11.
¶ 94. In examining the expressed legislative purpose provisions in the new code, I note the contrasts between it and the prior code. The old Children's Code, Wis. Stat. ch. 48 (1993-94), formerly indicated that the legislature's intent with respect to juvenile delinquents was:
*908(c) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior and to substitute therefor a program of supervision, care and rehabilitation.
(d) To divert children from the juvenile justice system to the extent this is consistent with the protection of children and the public safety.
Wis. Stat. § 48.01(l)(c)-(d)(1993-94). These provisions were to be liberally construed to promote the "best interests" of the child while also considering the child's parents and the public at large. See Wis. Stat. § 48.01(2X1993-94).
¶ 95. The legislative purpose indicated above is, however, in marked contrast to the expressed legislative purpose of the new JJC as it was amended and recreated at Wis. Stat. § 938.01. While the expressed legislative purpose of the JJC continues to include some intervention for the benefit of the juvenile, in Wis. Stat. § 938.01 the legislature expressly stated a change in focus to include the illegal act committed by the juvenile, protection of the public from the illegal behavior of the juvenile, and the imposition of personal accountability on the juvenile offender.
¶ 96. The applicable legislative intent and purpose section of the JJC provides in pertinent part that:
(2) It is the intent of the legislature to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system which will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively. To effectuate this intent, the legislature *909declares the following to be equally important purposes of this chapter:
(a) To protect citizens from juvenile crime.
(b) To hold each juvenile offender directly accountable for his or her acts.
(c) To provide an individualized assessment of each alleged and adjudicated delinquent juvenile, in order to prevent further delinquent behavior through the development of competency in the juvenile offender....
(e) To divert juveniles from the juvenile justice system through early intervention as warranted, when consistent with the protection of the public....
(g) To ensure that victims and witnesses of acts committed by juveniles that result in proceedings under this chapter are, consistent with the provisions of this chapter and the Wisconsin constitution, afforded the same rights as victims and witnesses of crimes committed by adults....
Wis. Stat. § 938.01 (emphasis added).6
¶ 97. As these sections illustrate, the JJC was intended not only to assist juvenile offenders in becoming more productive members of society, it was also designed to hold "juvenile offenders" "accountable" for the "crimes" committed against "victims," and thereby ensure the "protection of the public." Wis. Stat. § 938.01.
*910¶ 98. From the provisions quoted above, it is apparent that the legislature intended to focus not primarily on rehabilitation, as in the old Children's Code, but also on punishment of the juvenile offender and protection of the community. Such a balance of purposes is inconsistent with the old parens patriae theory of juvenile justice. The State cannot "reach[ ] out its arms in a kindly way and provide[ ] for the protection of its children," while also attempting to protect the public from and hold the offenders accountable for their law violating behavior. See Scholl, 167 Wis. at 509.
¶ 99. Such a balanced approach is, however, consistent with the approach of the adult criminal system, i.e., protection of the public, accountability for the offense, and the rehabilitative needs of the adult offender. See McCleary v. State, 49 Wis. 2d 263, 271, 182 N.W.2d 512 (1971); State v. McMaster, 198 Wis. 2d 542, 551, 543 N.W.2d 499 (Ct. App. 1995), aff'd 206 Wis. 2d 30, 506 N.W.2d 673 (1996). Thus, while the JJC may retain some effort to rehabilitate the juvenile offender for the juvenile offender's sake, that goal combined with the explicit concentration on accountability for the offense and community protection in order to "attack the juvenile criminal problem" directly parallel the considerations behind the criminal code. See Report at i.
¶ 100. Ironically, the majority opinion concedes that the purposes of the JJC express a more balanced approach to juvenile justice. However, the majority inexplicably fails to acknowledge the import of the provisions quoted above — that they demonstrate a shift from the parens patriae philosophy of former juvenile codes to a focus more in alignment with the criminal code. Instead, the majority focuses primarily upon *911those provisions which promote rehabilitation and fails to discuss the similarity with the criminal code.
¶ 101. The majority also seems to suggest that because Wisconsin was formerly only one of a few states which offered juvenile delinquents the option of a jury trial, the majority's conclusion is inevitable. However, juveniles found delinquent in the other 49 states in the Union and the District of Columbia are not subject to the provisions of the JJC. Thus, other jurisdictions' juvenile laws are irrelevant for purposes of the court's inquiry under art. I, § 7.
¶ 102. Having considered the expressed purposes behind the JJC, I turn then to an examination of the substantive provisions of the new juvenile code. Accordingly, I examine the dispositions and potential long-term consequences of a delinquency adjudication to determine if the JJC "acts" criminal.
¶ 103. Wisconsin Stat. § 938.34 provides juvenile courts with several diverse dispositional options. Based on the court's evaluation of the seriousness of the act for which the juvenile is delinquent, the court may order participation in activities ranging from counseling to community service. See Wis. Stat. § 938.34. In addition, the circuit court may order the juvenile placed in, among others, a foster home, a "secure detention facility or juvenile portion of a county jail," a "secured correctional facility," or the Serious Juvenile Offender Program administered by the Department of Corrections (the Department). See Wis. Stat. § 938.34. Many of these dispositions parallel those available to adult courts in sentencing. See, e.g., Wis. Stat. § 973.03-.20.7
*912¶ 104. Of particular concern is the ability of a juvenile court to place a juvenile in secure confinement. For instance, pursuant to Wis. Stat. § 938.34(4m), a juvenile who commits an act for which an adult may spend six months or more in jail may be confined to a secured correctional facility for a two-year period, thereafter renewable on an annual basis up to age 18, so long as the court determines that the juvenile is a "danger to the public and in need of restrictive custodial treatment." Wis. Stat. §§ 938.34(4m)(b) & 938.355(4)(b).8 Thus, for committing a crime for which an adult may only spend six months incarcerated, a juvenile may actually spend up to eight years in a secured correctional facility. See Wis. Stat. §§ 938.50, 938.355(4)(a), 938.365.
¶ 105. Another of the dispositional alternatives available to a juvenile court is placement of a youthful offender in the SJOP. See Wis. Stat. §§ 938.34(4h), 938.355(4)(b) and 938.538. Under this program, juveniles as young as 14 who commit any of a series of serious crimes9 can be placed with the Department. *913Similarly, those children ages 10 and above who are adjudged delinquent for violating Wis. Stat. §§ 940.01 (First-degree intentional homicide), 940.02 (First-degree reckless homicide), or 940.05 (Second-degree intentional homicide) can also be subject to the SJOP placement options. See Wis. Stat. § 938.34(4h)(a).
¶ 106. Once a dispositional order under Wis. Stat. § 938.34(4h) is applied to a juvenile, the Department is free to enforce a program of "[supervision, care and rehabilitation that is more restrictive than ordinary supervision," and may include utilization of components ranging from electronic monitoring to outpatient treatment to placement in a Type 1 secured correctional facility with transfer to an adult prison. See Wis. Stat. § 938.538(2)(a), (3). In cases of secure confinement, the duration and location of that confinement is dependent upon the age of the juvenile and the seriousness of the crime committed. See Wis. Stat. § 938.538(3)(a)l.-lm.
¶ 107. If the juvenile commits an act which would be a Class A felony, the dispositional order must apply until age 25 and the juvenile must be placed in a Type 1 secured correctional facility (if over 11), a secured child caring facility (if under 12) or an adult *914prison (if over 17). See Wis. Stat. § 938.538(3)(a)l. For adult Class B felonies, the order must last at least five years, but the Department may utilize nonsecure placement at its discretion. See Wis. Stat. § 938.34(4h)(a). As long as the youthful offender is subject to the Department, the Department may cycle juveniles through various restrictive and nonrestrictive placements at will. See Wis. Stat. § 938.538(3)(b).
¶ 108. More importantly, I also note that a subsequent amendment to the JJC now allows the Department to freely transfer juveniles as young as 15 years old to an adult prison facility. The Department can take this action without prior hearing. Wisconsin Stat. § 938.357(4)(d)(1997-98) provides in pertinent part:
The department may transfer a juvenile who is placed in a Type 1 secured correctional facility to the Racine youthful offender correctional ["RYOC"] facility named in s. 302.0110 if the juvenile is 15 years of age or over and the office of juvenile offender review in the department has determined that the conduct of the juvenile in the Type 1 secured correctional facility presents a serious problem to the juvenile or others.11
¶ 109. Consequently, a 10-year-old who commits what would be an adult Class A felony will be subject to the Department until age 25 and may spend at least 10 years of that placement in an adult prison. See Wis. *915Stat. §§ 938.34(4m); 938.50; 938.357(4)(b)l; 938.357(4)(d)(1997-98). Additionally, not only may the most serious juvenile offenders initially placed at Type 1 secured correctional facilities be transferred to the adult prison at Racine, it appears that juveniles committing less serious crimes initially placed at a Type 2 facility pursuant to Wis. Stat. § 938.34(4m) may also be transferred to a Type 1 facility,12 and from there to adult prison under Wis. Stat. § 938.357(4)(d)(1997-98).
¶ 110. Finally, I also find significant the fact that the parallels between the JJC and the criminal code do not end with the placement of the new JJC next to the criminal code, the modified balanced approach of the new JJC, and the potential custodial disposition. The JJC also makes many juvenile offenders subject to several post-adjudication continuing sanctions that are imposed on adults convicted of committing the same acts.
¶ 111. Like adult felons, juveniles found delinquent for acts which would constitute a felony are subject to a lifetime ban on the possession of a firearm. See Wis. Stat. §§ 938.341, 94l.29(l)(bm).13 Like adult *916convicts, who can be impeached at subsequent court proceedings by their prior criminal convictions, juvenile offenders. can be impeached through the introduction of their delinquency adjudications. See Wis. Stat. §§ 938.35(l)(cm), 906.09.14 Like adult convicts, the juvenile delinquency adjudication can be used against the juvenile for sentencing purposes in subsequent criminal proceedings. See Wis. Stat. § 938.35(l)(a).15 Like adult convicts, in the event a juvenile commits a sex-related offense, the juvenile can be required to register as a sexual offender for 15 years. See §§ 301.45, 938.34(l5m).16 Like adult convicts, that *917same juvenile can also be required to provide DNA samples to law enforcement. See Wis. Stat. §§ 938.34(15), 165.77.17 Thus, as it was expressed at oral argument, these continuing sanctions "look[], talk[ ], [and] smell like adult criminal code, criminal consequences."
¶ 112. However, the State disagreed that the parallel nature of these same "very serious consequences" for antisocial behavior adds to the need for a jury trial in delinquency proceedings. The State's justification for this position is that the continuing sanctions do not arise as part of a criminal conviction. As the State indicated, "an individual goes through life having been adjudicated delinquent, but not having been found guilty of a felony." As discussed above, however, that distinction is now a matter more of form than of substance. Thus, while the continuing sanctions listed above may arise in a delinquency adjudication and not a criminal sanction, the effective distinction, from the point of view of the juvenile and of society, is negligible. The juvenile sex offender must inform his community of his prior bad acts just like the adult sex offender.
¶ 113. The majority expends significant energy attempting to justify its result in the face of a juvenile's potential long-term confinement under Wis. Stat. ch. 980, the sexual predator statute. Because ch. 980 is not part of the JJC, I do not believe that the sexual *918predator statute is dispositive in one direction or the other of the art. I, § 7 inquiry.
¶ 114. However, the juveniles in this case also challenge the JJC on equal protection grounds. The majority never adequately addresses their argument. The majority fails to acknowledge that a "sexually violent person" is defined as "a person who has been convicted of a sexually violent offense [with the option of a jury trial], has been adjudicated delinquent for a sexually violent offense [no option of a jury trial], or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity of mental disease, defect or illness [also with an option of a jury trial]." The majority fails to identify a rational basis on which to rest its distinction between adults who become subject to ch. 980 confinement proceedings after a jury trial and juveniles who become subject to ch. 980 without the protections of a jury trial, because there is no such basis. The legislature's search for a way to deal with juvenile crime leaves juveniles subject to a ch. 980 proceeding with potential indefinite commitment and without the right to a predicate jury finding of guilt or innocence to which adults are entitled.
¶ 115. The majority's response, that in order for a child adjudged delinquent to be committed under Wis. Stat. ch. 980 that child must also be dangerous due to a mental disorder, serves only as a smoke and mirrors attempt to avoid the real issue. Adult convicts, those committed under the NGI, and juveniles adjudged delinquent all must be dangerous due to a mental disorder and likely to commit sexual violence. Yet, of these three classes of individuals, it is only the juvenile adjudged delinquent that becomes subject to a ch. 980 petition without the benefit of a jury trial.
*919¶ 116. As demonstrated above, Wisconsin's juvenile code has dramatically shifted its focus. It has moved from providing paternalistic guidance to misguided youths to a broader balance of holding youthful offenders accountable for their criminal actions, protecting the public from juvenile crime, and making the offenders more productive members of society. This change and the tools used to implement that change lead me to conclude that the JJC is a criminal code in purpose and effect and cannot be deemed a civil code designed solely to rehabilitate the juvenile.
¶ 117. I conclude where the Juvenile Justice Study Committee began. The first sentence of the Study Committee's report states: "[t]he accompanying recommendations will significantly change the way Wisconsin treats young lawbreakers." I agree.
¶ 118. The majority of this court requires that juveniles suffer the consequences of criminal convictions but withhold conferring the same protections as given to adults. The "significant change" has resulted in a code that is criminal in nature. We must either restore the juvenile court's primary rehabilitative approach or restore the constitutional right of juveniles to trial by jury. Constitutionally, the court cannot have it both ways.
¶ 119. Because the newly enacted JJC in purpose and effect is criminal in nature, it is subject to art. I, § 7 of the Wisconsin constitution. I would declare the denial of a right to a jury trial in juvenile delinquency adjudications pursuant to Wis. Stat. § 938.31(2) unconstitutional on its face. Accordingly, I dissent.
*920¶ 120. I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Janine P. Geske join this opinion.Unless otherwise noted, all statutory references are to the 1995-96 volumes.
There is a long history of providing juveniles with a jury trial in Wisconsin. At common law illegal acts committed by juveniles were prosecuted as crimes and the accused was entitled to a jury trial. See In re Gault, 387 U.S. 1, 16 (1966). When Wisconsin created its juvenile courts in 1901, felonies were excluded from the new court's jurisdiction so that juveniles facing incarceration continued to receive a jury trial. In 1925, when the juvenile court's reach was extended, the jury trial right was offered by statute to all juveniles, see Wis. Stat. § 48.31(2) (1993 — 94), and lasted until it was eliminated by 1995 Wis. Act 77. While the legislative history does not conclusively indicate the reason for the change, the chairperson of the Juvenile Justice Study Committee (Study Committee) has indicated that the right was eliminated because jury trials "are expensive for cóunties to administer, and their use often has been as a 'bar*901gaining chip' in negotiating plea agreements. . . ." Dennis J. Barry, Juvenile Justice: A Wisconsin Blueprint For Change, Wisconsin Lawyer, Mar. 1995 at 31.
Black's Law Dictionary 1114 (6th ed. 1990) defines "parens patriae" as:
[Laterally "parent of the country," refers traditionally to role of state as sovereign and guardian of persons under legal disability, such as juveniles or the insane....
None of the parties in their briefs or at oral argument considered or argued that severance is available under an art. I, § 7 analysis. Both parties acknowledge that under art. I, § 7, the focus is on the nature or character of the proceedings — not as the majority alone asserts on three penal provisions. Respondent-appellant's supplemental brief at 16, 16-28; Petitioner-*904respondent's brief-in-chief at 10. At oral argument both parties concede that severance is not an available option. In response to a severance question, counsel for the juveniles stated that although severance may be an option under a due process analysis, it is not available in an art. I, § 7 challenge. In response to a similar question, the State also acknowledged it could not be done here.
As the Chairperson and a member of the Study Committee have indicated:
The creation of Chapter 938 for delinquents underscores the differences between child victims of circumstances outside of their control and young people who choose to violate laws. While sometimes there is a relationship between the two categories, Chapter 938 recognizes the illogic in using basically the same philosophical and procedural system to deal with both classifications of young people. Thus, the new legislation creates a separate chapter in the statutes to deal exclusively with young lawbreakers.
Dennis J. Barry & Bonnie Ladwig, Time Ripe for Change, Wisconsin Lawyer, Apr. 1996 at 13.
The majority attempts to avoid recognition of this significant change in language and emphasis between the JJC and old Children's Code. See Majority op. at 873 n.5. Interestingly, the majority references neither the "crime" language indicated above, nor the "personal accountability," i.e., "punishment," provisions of Wis. Stat ch. 938. The majority does not, because it cannot do so and still reach its result.
The majority cites at length to other tools available to the juvenile courts when considering a delinquency petition. These tools have parallels in the adult criminal code as well. Thus, *912their existence does nothing to lessen the conclusion that the JJC is effectively a criminal code for juveniles.
A prima facie showing of public danger is made if the juvenile commits one of 25 listed felonies, or if the juvenile possesses, uses, or threatens others with a firearm. See Wis. Stat. § 938.34(4m). In addition, juveniles can be found to be a public danger if the juvenile presents a threat to the property of another. See B.M. v. State, 101 Wis. 2d 12, 303 N.W.2d 601 (1981)("In re Interest of B.M.").
Fourteen-year-old offenders who violate Wis. Stat. §§ 939.31 (Conspiracy), 939.32(l)(a) (Attempt to commit crime carrying life imprisonment), 940.03 (Felony murder), 940.21 (Mayhem), 940.225(1) (First-degree sexual assault), 940.305 (Taking hostages), 940.31 (Kidnapping), 941.327(2)(b)4 (Tampering with household products and causing death of another), *913943.02 (Arson of buildings; damage of property by explosives), 943.10(2) (Burglary), 943.23(lg),(lm) or (lr) (Armed carjacking; Armed carjacking causing great bodily harm; and Armed carjacking leading to death of another), 943.32(2) (Robbery by use or threat of use of a dangerous weapon), 948.02(1) (First-degree sexual assault of a child), 948.025 (Engaging in repeated acts of sexual assault of the same child), 948.30(2) (Abduction of another's child), 948.35(l)(b) (Solicitation of a child to commit a Class A felony), or 948.36 (Use of a child to commit a Class A felony) are potential candidates for the Serious Juvenile Offender Program.
When Wis. Stat. § 938.357(4)(d)(1997-98) was enacted, Wis. Stat. § 302.01 was amended to include the medium security penitentiary in Racine. See 1997 Wis. Act 27, § 3879m.
Pursuant to Wis. Stat. § 302.01, the Racine Youthful Offender Correctional facility is defined as "[t]he medium security penitentiary at Racine."
Wisconsin Stat. § 938.357(4)(b)l provides:
If a juvenile whom the department has placed in a Type 2 secured correctional facility.. .violates a condition of his or her placement in the Type 2 secured correctional facility, the child welfare agency. . .shall notify the department and the department. . .may place the juvenile in a Type 1 secured correctional facility under the supervision of the department without a hearing____
Accordingly, juveniles who are not serious offenders under the dictates of Wis. Stat. § 938.538 maybe transferred to Type 1 facilities and from there, pursuant to Wis. Stat. § 938.357(4) (b)l, to the adult facility at Racine.
The majority dismisses this concern by noting that the sanction may ultimately be removed. I find this distinction meritless. To have the sanction that was previously imposed *916removed, the juvenile must initiate an action to prove that the juvenile is not likely to act contrary to the public safety in the future. The juvenile must prove this absence of any proclivity to commit a bad act in the future (a difficult proposition for even the most zealous of advocates) by the preponderance of the evidence. Thus, while an escape clause exists, it is one whose existence belies its effective use.
The majority's resort to Wis. Stat. § 901.04 to dismiss this continuing sanction is unpersuasive since § 901.04 also applies to use of prior criminal convictions against adult offenders.
The majority asserts that this sanction deserves no weight since the adjudication can only be used for the purpose of preparing the presentence investigation report. The majority fails, however, to acknowledge the use of that report and its internal references to the juvenile adjudication.
The majority responds to this continuing sanction by emphasizing that courts retain the discretion, upon subsequent petition of a juvenile delinquent, to waive the reportingrequirement in some cases. From this limited waiver provision, which I note expressly applies only where the goal of "public protection" is still vindicated, the majority concludes that "this is not criminal punishment and does not equate the JJC to a criminal code." Majority op. at 881-82. The majority's conclusion does not follow from its premise. The reporting requirement continues to *917apply to all juveniles pending a waiver. Even in the event a particular reporting requirement is waived, as to the group of remaining juveniles, the public safety, deterrence and punishment aspects of the reporting requirement are apparent. Thus, the requirement, even as modified, continues to show the criminal nature of the juvenile code.
The majority fails to mention this continuing sanction.