Limit Shackling in Family Court

The measure closely mirrors the presumption, exception factors and right to be heard in the Florida and Illinois court rules, as well as the Model Statute/Court Rule developed by the Campaign Against Indiscriminate Juvenile Shackling, the statute and court rule in Pennsylvania, and the statutes in Delaware, New Hampshire, North Carolina and South Carolina.****** It is similar to the court rules in Massachusetts, Washington, New Mexico, Maryland and, most recently, Illinois.******* It is consistent with orders resulting from challenges to restraints in California, North Dakota, Oregon and Illinois.******** It reflects the criticisms and recommendations of myriad commentators********* and, most recently, in the resolutions of the National Council of Juvenile and Family Court Judges and the American Bar Association noted above. Estimating that over 100,000 children have been routinely shackled in court nationally, the National Campaign to End Indiscriminate Shackling of Youth has reported that, since its campaign began in August 2014, Delaware, Illinois, Connecticut, Maryland, Indiana, Nebraska, Alaska, Utah, Nevada, Ohio, Tennessee and the District of Columbia have prohibited indiscriminate use of restraints.********** Significantly, reports of the implications of shackling limitations in Miami-Dade County, Florida, and Linn County, Oregon, two and five years, respectively, after the imposition of the limitations have indicated no adverse effects on courtroom safety and decorum.*********** Nor has implementation imposed any significant burdens upon courts as requests for restraints are rare and hearings, when held, are brief.************

Restrictions upon use of mechanical restraints on adult offenders in criminal trials have long been recognized as necessary to a fair trial. The United States Supreme Court, in Deck v. Missouri, in rejecting routine shackling as a violation of due process, noted its origins in common law:

Blackstone's 1769 Commentaries on the Laws of England noted that "it is laid down in our ancient books" that a defendant "must be brought to the bar without irons, or in any manner of shackled or bonds, unless there be evident dangers of an escape."

544 U.S. 622, 626 (2005). Following Deck, the New York State Court of Appeals, in People v. Best, 19 N.Y.3d 739 (2012), criticized the shackling of a defendant in a judge trial in the absence of a showing of necessity on the record, noting that "judges are human, and the sight of a defendant in restraints may unconsciously influence even a judicial factfinder," in addition to harming the defendant and the public's perception of both the defendant "and of criminal proceedings generally." Chief Judge Lippman, dissenting from the majority's conclusion that the use of restraints constituted harmless error, observed that " t he unwarranted shackling of defendants strikes at the very heart of the right to be presumed innocent. Visible shackles give the impression to any trier of fact that a person is violent, a miscreant, and cannot be trusted." Id. More recently, in United States v. Haynes, 729 F.3d 178, 188 (2' Cir., 2013), the United States Court of Appeals, Second Circuit, held that:

It is beyond dispute that a defendant may not be tried in shackles unless the trial judge finds on the record that it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as preserving the safety of persons in the courtroom.

Arguments for restricting the use of restraints upon adult offenders are even more compelling with respect to youth. Not only does use of shackles threaten the presumption of innocence at the fact-finding (trial) stage, but it also impedes the ability and willingness of youth to participate in court proceedings, including dispositional and permanency hearings, and to engage in planning for their futures. Youth are critical participants in such hearings, pursuant to Family Court Act §§ 341.2(1), 355.5(8), 756- a(d-1). The recently enacted Federal Preventing Sex Trafficking and Strengthening Families Act (Public Law 113-183) requires placement agencies to involve youth 14 years of age and older in development of their plans, expanding upon the earlier Federal mandate for courts to consult with youth in an age-appropriate manner. Significantly, hardware restraints inhibit counsel's ability to develop an attorney-client relationship with their child clients deemed so integral to the Family Court Act (see, e.g., Family Court Act § 241) and to the United States Supreme Court decision in Matter of Gault, 387 U.S. 1 (1967).

The need for a presumption against the use of restraints upon youth appearing in Family Court is further underscored by the wealth of recent research on adolescent brain development, particularly by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. See www.ad jj.org. Children's characters are not fully formed until well into adulthood and their sense of self-esteem is especially vulnerable to the harm caused by indiscriminate use of shackles. As Patricia Puritz, former Executive Director of the National Juvenile Defender Center, noted, it is well-documented that "young people are less likely to re-offend when they perceive that the juvenile justice system has treated them fairly":

Shackling is simply incompatible with the rehabilitative mission of the juvenile court. Children report feeling like a slave, an animal or a criminal when shackled. This experience does not frighten them into compliance. On the contrary, child psychiatrists say that shackling is so damaging to a child's developing sense of self that it may well push him or her into further criminality.

Puritz, supra, note 9.

This measure recognizes the rare circumstances in which use of restraints may be necessary and provides a simple means of addressing those circumstances. In states in which restrictions upon restraints are in effect, the culture has shifted; invocation of the exceptions is rare and provision of a right for a juvenile to be heard upon an oral application, often by a court officer or placement agency official, for restraints to be used has been neither lengthy nor burdensome and has caused no adverse effects. The recognition by the United States Supreme Court and New York State Court of Appeals of a need to protect adult criminal defendants from the adverse effects of restraints renders ever more compelling the need to enact a measure protecting children before Family Court.

This measure, which would have no fiscal impact upon the State, would take effect immediately.

2015-16 LEGISLATIVE HISTORY :

Senate 7605 (Sen. Bonacic) (committed to Rules) Assembly 7879 (M. of A. Gantt) (advanced to 31d Rdg., Cal. 421)

* See National Council of Juvenile and Family Court Judges, Resolution Regarding Shackling of Children in Juvenile Court (Adopted July 15, 2015; www. ncifcj.org); American Bar Association, Resolution and Report to the House of Delegates (Adopted by the House of Delegates, February 2015; www .ame ricanbar.org). **Campaign to End Indiscriminate Juvenile Shackling, Shackling Reform Statewide Court Rules, Policies, Administrative Orders & Statutes (August 2016); http://n idc. inf o/campaig n-aga inst-indis crimi nate-iuvenile- shackling; Juvenile Justice in a Developmental Framework: A 2015 Status Report (MacArthur Fdtn., 2015) at p. 30. *** See Delaware House Bill HB 211 (2016); Conn. H.B. 7050 § 3, Gen. AS's., Jan. Sess. (2015); Indiana Code Ann. § 31-30.5 (2015); Nebraska L.B. 482 (2015); Nevada A.B. 8 (2015); Superior Court of the District of Columbia Administrative Order 16-09 (2016); Illinois Supreme Court Rule 943 (2016); Ohio R. Juv. Proc. 5.01 (2016); Tenn. R. Juv. Proc. 204 (2016). **** See In Re Amendment to Fla. Rules of Juvenile Procedure, 26 S.2d 552, 556 (Fl., 2009). ***** The measure solely addresses courtroom appearances. A similar presumption currently applies to use of restraints during transportation of juveniles from New York State Office of Children and Family Services facilities pursuant to an injunction issued in the class action case of Matter ofJohn F. V Carrion, - Misc.3d N.Y.L.J., Jan. 27, 2010 (S.Ct., N.Y. Co., 2010). ****** See Fla. Rules ofJuvenile Procedure § 8.100(b) (2009); Campaign Against Indiscriminate Juvenile Shackling, 2014 Model Statute/Court Rules (www.njdc.info, checked Dec. 29, 2014); Adoption of the New Rule 139 of the Rules ofJuvenile Court Procedure Pa. S.Ct., No. 527, 237 Pa. Code § 139 (April 26, 2011); 42 Pa. C.S.A. § 6336.2 (2012); Delaware House Bill HB 211 (2016); N.H. R.S.A. § 126-U:13 (2010); N.C. Gen. Stat. § 7B-2402 (2013); S.C. Code Ann. § 63-19-1435 (2014). ******* See Illinois Supreme Court Rule 943; Amendment to Trial Court of the Commonwealth (of Mass.) Court Officer Policy and Procedures Manual, ch. 4 Courtroom Procedures, Section VI, Juvenile Court Sessions (2010); N.M. Children's Ct. R. § 10-223A (2013); Wash. Ct. Rule (effective Sept. 1, 2014); Resolution Regarding Shackling of Children in Juvenile Court (Adopted by Md. Judiciary and Chief Judge of Court of Appeals, Sept. 21, 2015). ******** See Tiffany A. v. Superior Court, 150 Cal. App. 4th 1344 (2007); In Re R. W.S., 728 N.W.2d 326 (N.D. 2007); In Re Millican, 906 P.2d 857 (Or. Ct.App., 1995); In Re Staley, 364 N.E.2d 72 (Ill., 1977). *********See, e.g., B. Schatz, "A Court Put a Nine-year Old in Shackles for Stealing Chewing Gum - an Outrage that Happens Every Single day: Research Shows that Shackling is Bad for Kids and Unnecessary for Courtroom Safety. So Why Do Judges Keep Doing It?." Mother Jones (February 2015; www.motherj ones.com/politi cs/2015/02/c ourtsshackle-juv enile-chi ldren-ABA); S. Marsh, "OP-ED: Indiscriminate Shackling of Children in Juvenile Court Should End," Juvenile Justice Information Exchange, www.ii ie.org, 2015); J. Abdul-Alim, "Justice Advocates Fight to Limit Shackles, Seclusion for Juveniles," (Juvenile Justice Information Exchange, June 18, 2015, wwvv .iiie.org:, G. Gately, "Why DO We Still Shackle Kids?," The Crime Report (June 15, 2015); R. May, "Why Do We Still Put Kids In Shackles When They Go To Trial? Murder Suspects Come to Court in Suits. Kids Who Steal Gum Arrives in Belly Irons and Belly Chains," Washington Post, (OpEd, May 8, 2015); P. Puritz, "Shackling Juvenile Offenders can to permanent damage to our kids." Washington Post (OpEd., November 13, 2014); National Juvenile Justice Network, Policy Update: Unchain the Children: Policy Opportunities to End the Shackling of Youth in Court (September2014; www.nun .org, checked December 29, 2014); National Juvenile Defender Center, Issue Brief Ending the Indiscriminate Shackling of Youth (2014; w ww.nidc.info); K. McLaurin, "Children in Chains: Indiscriminate Shackling of Juveniles," 38 Wash. U. J.L.&Policy 213 (2012); H. Ted Rubin, "Shackling Juveniles for Court Hearings: Only if Necessary," 16 Juvenile Justice Update #1: / (February/March 2010); Zeno, "Shackling Children During Court Appearances: Fairness and Security in JuvenileCourtrooms," 12 J. Gender Race & Just. 257 (2009); Perlmutter, "Unchain the Children: Gault, Therapeutic Jurisprudence and Shackling," 5 Barry L. Rev. 1 (2007). ********** Campaign to End Indiscriminate Juvenile Shackling, supra, note 2; B. Schatz, supra, note 9; G. Gately, supra, note 9. *********** A study of 20,000 youth appearing in Miami-Dade County juvenile court from 2006, when the county limited shackling, through 2011 indicated no incidents of flight or harm. See Puritz, supra, note 8, and ABA, supra, note 1. And no incidents were reported by Judge Daniel Murphy regarding ten years of experience in Linn County, Oregon. See Rubin, supra, note 30 at 11. ************ See, e.g., e-mail from Hon. Jay D. Blitzman, First Justice, Massachusetts Juvenile Court, Middlesex Division, dated Nov. 26, 2014.