Shackling-Sample-Motion-Final-10-13-15

NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense [SAMPLE MOTION FOR JUVENILE TO APPEAR IN COURT FREE FROM UNLAWFUL RESTRAINTS] [Thank you to Paul Cain (IL), Alec Karakatsanis (D.C.), Chris Provost (AK), and Jeremy Zacker (MD), as well as many others, for providing sample motions that were used in the production of this sample motion.] [COURT NAME] In the Matter of: ) ) A Child Under the Age of Eighteen (18) Years ) ) Date of Birth: ) ) ) ) Case No [ ] MOTION FOR JUVENILE TO APPEAR BEFORE THIS COURT FREE FROM UNLAWFUL RESTRAINTS NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense The minor, _, through counsel, [COUNSEL NAME], [COUNSEL TITLE], moves to permit him to appear before this Court free of restraints in all proceedings This motion is supported by the following memorandum INTRODUCTION All detained juveniles appear in this Court wearing [name mechanical restraints used in your court] This is a blanket policy applied automatically to all detained juveniles brought before the Court, regardless of actual safety or flight risk The degrading practice of bringing children before the Court in chains is unlawful and must cease The use of restraint measures without an individualized showing of necessity is contrary to the purposes of the juvenile justice system The practice violates a juvenile’s right to due process and interferes with the right to counsel and the right to participate in the defense of the case, in violation of the Fourteenth Amendment of the United States Constitution and the [State Constitution, article / and/or state statute] Additionally, the handcuffing and shackling of children can cause serious mental and emotional harm, and undermines the Court’s objectives in preventing delinquency and ensuring rehabilitation The use of restraints must be confined to the rare case in which the court makes an individualized determination that shackles are necessary In this case, such a determination would be unwarranted and [CLIENT] should appear without any form of restraints STATEMENT OF FACTS [CLIENT] is a [age] juvenile who has been in detention at [location] for nearly a year During NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense that time he has appeared at [number of] juvenile court hearings In all of those hearings [CLIENT] has been respectful, appropriate and has not posed a threat to himself or others in the courtroom Nor has he attempted to escape from a courtroom Although he is before the court for alleged crimes of violence towards others, it is the history of his good behavior in court over many hearings in nearly a year that is most important to consider [Using this as a model, describe why your client should be unshackled based on his or her personal history This can either be a lack of evidence that the child is CURRENTLY a risk of flight or a danger; or affirmative evidence to the contrary While this specific example presumes some length of time already in the system, a standard form motion can also be developed for all first appearances, because the length of detention has no legal or developmental correlation to the harms caused by shackling.] The Court’s Uniform Policy of Shackling All Detained Juveniles [Begin by stating whether there is an actual policy of shackling juveniles by relevant agencies If so, provide it If not, say so You may want to ask well in advance of court security personnel if there is such a written policy, and whether you can have a copy.] The uniform practice of the courts and the policy of the [Department of Juvenile Justice] requires that all detained juveniles appear before the court in handcuffs and shackles The Court makes no individualized determination as to whether mechanical restraints are necessary In compliance with this practice, juveniles are brought to court bound hand, waist, and often foot Handcuffs are used to NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense secure each juvenile’s wrists together The juvenile’s wrists are shackled to his or her waist by a belt loop or chain no more than a few inches long The juvenile’s feet are usually both cuffed and chained together, often forcing the juvenile to shuffle through the courtroom [This practice exists in juvenile court, despite that fact that no similar equivalent exists in criminal court within this jurisdiction.] [Here, describe in specific detail the devices used in the courtroom, making the description as visually poignant as possible Include a comparison to how adults appear in court (in terms of restraint use), if such a comparison is favorable.] ARGUMENT I THE COURT’S PRACTICE OF SHACKLING ALL DETAINED JUVENILES VIOLATES THE CONSTITUTIONAL RIGHT TO A FAIR HEARING AND THE ASSISTANCE OF COUNSEL The United States Constitution preserves the ancient right under the common law to “be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” W Blackstone, Commentaries on the Laws of England 317 (1769); see Deck v Missouri, 544 U.S 622 (2005) (shackling in penalty phase of capital trial violates due process) The right to appear before the court unfettered protects a number of underlying principles including the presumption of innocence, the right to secure a meaningful defense, the right to communicate with counsel without interference, the right to participate in one’s own defense and the need to maintain “[t]he courtroom’s formal dignity, which includes the respectful treatment of defendants….” Deck, 544 U.S 630-31; e.g.,U.S Const amends V, VI, XIV; [Cite to State NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense Constitution, if applicable, e.g., IL Const art I, §§ 2, 8, and 10.] A Visible Restraints Threaten the Fairness of the Decision-making Process and the Presumption of Innocence The blanket use of shackles communicates to the court – whether overly or subtly – that the state has not only alleged the juvenile committed a crime, but also that that child is currently violent and dangerous When there is no articulable reason to presume a child is dangerous or a risk of flight, the imagery of shackles does nothing to further justice The appearance of a person in shackles undermines the fairness of the decision-making process and endangers the fundamental principle that an accused is innocent until proven guilty Deck, 544 U.S at 630 (“Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.”) Because visible restraints can have conscious and subconscious effects on the viewer, the use of shackles on a criminal defendant is “inherently prejudicial.” Deck, 544 U.S at 632-33 (quoting Holbrook v Flynn, 475 U.S 560, 568-69 (1986)); see also Deck, 544 U.S at 628 (“[M]aking a defendant appear in prison garb poses such a threat to the fairness of the factfinding process that it must be justified by an essential state policy.”) As the Illinois Supreme Court explained, ensuring the presumption of innocence has great value in itself: “The presumption of innocence is central to our administration of criminal justice…It jeopardizes the presumption’s value and protection and demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense while he is being judged.” In re Staley, 364 N.E 2d 72, 73 (1977) (quoting Estelle v Williams, 425 U.S 501, 503, 505 (1976)) An Illinois Supreme Court Justice further explored this concern: [U]nnecessary shackling threatens the dignity of the court…As a court loses its dignity, it loses credibility with the public…; and I further would argue that it loses credibility with the respondent—to the possible detriment of his defense To his best at trial, the defendant must have confidence that he is making his case to a rational and impartial trier of fact who genuinely presumes he is innocent until the State proves him to be guilty beyond a reasonable doubt Unnecessary and unjustified shackling weakens that confidence; it jeopardizes the presumption’s value and protection…The presumption of innocence is a noble ideal, but this ideal will inspire little hope if hard iron reminds the defendant, every moment of the trial, how things really are between him and the court— for, plainly, he is not stand[ing] trial with the appearance, dignity, and self-respect of a free and innocent man In addition to defending himself against the State’s evidence, a defendant should not have to struggle with a sense of futility, a disheartening suspicion that he is presumed guilty Anyone who can sit in chains with no diminution of courage and confidence has a thicker hide than the common run of humanity State v Doe, 333 P.3d 858, 868-69 (Id Ct App 2014) (internal quotations and citations omitted) The same concerns apply in juvenile proceedings Serious decisions are made at each court appearance throughout the life of a juvenile case These decisions include an initial finding concerning probable cause; a determination concerning whether the child must be detained pending trial; a verdict on whether the child committed the offenses alleged in the petition; and a dispositional decision concerning what consequences a finding of involvement will have on the child’s liberty, often resulting in direct and collateral consequences that last into adulthood Each of these determinations involves the judge—in consultation with lawyers, probation officers, and witnesses—making findings concerning facts that might warrant commitment, the child’s level of guilt on factual allegations, the child’s acceptance of accountability, the child’s potential dangerousness, and, indeed, the very nature of the child’s character NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense The subtle factors and intuitions that underlie these determinations of credibility, guilt, innocence, and dangerousness are often, as in Deck, “unquantifiable and elusive.” 544 U.S at 633 As a result, courts must be particularly sensitive to practices that consciously or subconsciously affect what the Supreme Court called the “perception of the character” of a respondent Id Chaining children with metal cuffs and leg irons in detention hearings, trials, and disposition hearings poses an “unacceptable risk of impermissible factors” influencing those determinations Estelle, 425 U.S at 504-05; see also Holbrook, 475 U.S at 568-69; Deck, 544 U.S at 633 (“[T]hrough control of a defendant’s appearance, the State can exert a powerful influence on the outcome of the trial”) (quoting Riggins v Nevada, 504 U.S 127, 142 (1992) (Kennedy, J., concurring).1 Indeed, an Idaho appeals court has noted that routine juvenile shackling is incompatible “with the distinct characteristics of the juvenile justice system On one hand, our Supreme Court has held that juveniles are not entitled to a jury trial because they are not considered as being ‘tried’ for a criminal offense, but yet, under our current practice, juveniles have lesser protections than adult criminal defendants in regard to the use of shackles merely on the basis that a jury is not present.” State v Doe, 333 P.3d 858, 870 (Id Ct App 2014) This is counterproductive and contrary to the interests of justice in a juvenile court based on rehabilitating youth “The use of shackles in a courtroom absent a case-by-case, individual showing of need creates the very tone Although Deck and its predecessors described the subtle effects that visible restraints “almost inevitably” have on feelings about a defendant’s character in the context of decisions about guilt and punishment, the same intuitions and attitudes are perhaps even more relevant to pretrial determinations that require a lower evidentiary burden (as in a probable cause hearing) or that require an explicit finding about dangerousness (as in a detention hearing) See D.C Code § 16-2310, § 16-2312 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense of criminality juvenile proceedings were intended to avoid.” Tiffany A v Superior Court of Los Angeles County, 150 Cal App 4th 1344, 1362 (2007) “It is only in extreme and exceptional cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand, that restraints should be used.” State v Wright, 283 P.3d 795, 804 (Id Ct App 2012) (emphasis added) (citing Deck, 544 U.S at 626–27) Science Demonstrates that Subconscious Bias and “Priming” Affect Beliefs, Behavior, and Judgments The Supreme Court’s concerns about the prejudicial effects of visible shackling are confirmed by prevailing understandings of human psychology and an overwhelming new body of social science and psychological research Indeed, the growing body of research on unconscious (implicit) bias begins to quantify what has long been “common human experience”—that our attitudes and judgments about people are based, at least in part, on factors outside our conscious control Estelle, 425 U.S at 504 The Supreme Court has urged that courts “do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.” Id The Supreme Court has thus recognized that it is virtually impossible to estimate with any precision the prejudicial effects, both conscious and unconscious, of viewing a criminal defendant subjected to any particular practice See id The danger is amplified by the “continuing influence” that such an “identifiable” condition exerts throughout the many times an observer views an accused in shackles over the course of a court proceeding Estelle,425 U.S at 504-05 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense In general, humans have strong subconscious biases These biases are connected to feelings of like and dislike, apportionments of cause and blame, stereotypes, and fear Most importantly, we now know that these subconscious biases actually influence our beliefs, judgments, and behavior “Priming” research captures the “common human experience” that Kristin A Lane, Jerry Kang, & Mahzarin Banaji, Implicit Social Cognition and Law, ANN REV L & SOC SCI No 427 (2007); Anthony G Greenwald & Linda Hamilton Kreiger, Implicit Bias: Scientific Foundations, 94 CAL L REV 945, 956-57 (2006)) (See, e.g., Anthony G Greenwald & Mahzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 PSYCH REV (1995); Andreas Olson et al., The Role of Social Groups in the Persistence of Learned Fear, 309 SCIENCE 785 (2006); Elizabeth A Phelps et al., Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J COGNITIVE NEUROSCIENCE 729 (2000)) Indeed, the available research suggests that subconscious cognition can actually be a more significant predictor of behavior in some circumstances than explicit attitudes A metaanalysis of 122 studies on behavior and implicit cognition, involving nearly 15,000 people, found that subconscious attitudes can be more robust predictors of real-world behavior than a person’s explicit statements about her beliefs (Greenwald, A G., Poehlman, T A., Uhlmann, E., & Banaji, M R (2009) Understanding and Using the Implicit Association Test: III Meta-analysis of Predictive Validity, J PERS & SOC PSYCH., 97, 17-41 (2009); see also id (Appendix) (documenting the influence of subconscious bias in a variety of areas, including employment decisions, voting behavior, particular policy preferences, choosing of partners, friendliness, and funding decisions for organizations that had applied for money)) In a wide variety of decisionmaking contexts, people’s measured unconscious bias was shown to influence and predict their actual beliefs and behavior, even when the decisions they made were more deliberative and made over a longer period of time See also, e.g., Jennifer L Eberhardt et aI., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 PSYCHOL SCI 383 (2006) (finding that faces rated independently as more stereotypically black are far more likely to receive the death penalty, even when controlling for all other factors); Justin D Levinson, et al., Guilty By Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, OHIO ST J CRIM L 187 (2010) (finding that subconscious bias affects juror decisions about guilt and innocence); Alexander R Green et al., Implicit Bias Among Physicians and its Prediction of Thrombolysis Decisions for Black and White Patients, 22 J GEN INTERNAL MEDICINE, 1231 (2007) (finding that doctors' choice of prescriptions was linked to subconscious attitudes and was completely uncorrelated with the doctor's own stated conscious judgments); Jennifer L Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J PERSONALITY & SOC PSYCHOL 876 (2004) (documenting subconscious bias in police officers when primed with certain images); Allen R McConnell & Jill M Leibold, Relations among the Implicit Association Test, Discriminatory Behavior, and Explicit Measures of Racial Attitudes, 37 J EXPERIMENTAL SOC PSYCHOL 435 (2001) (finding that people behave differently in interviews based on their scores on subconscious bias tests); Arnd Florack et aI., The Impact of Perceived Threat on the Use of Automatic Associations in Person Judgments, 32 ZEITSCHRIFf FUER SOZIALPSYCHOLOGIE 249 (2001); Bertram Gawronski, Implicit Bias in Impression Formation: Associations Influence the Construal of Individuating Information, 33 EUR J Soc PSYCH 573 (2003) (Those with higher implicit bias against a minority group were more likely to find a suspect belonging to that minority guilty of a crime when asked to evaluate a set of facts.); Shankar Vedantam, See No Bias, WASHINGTON POST, Jan 23, 2005 (Magazine) (describing unpublished study of Professor Robert W Livingston in which Milwaukee residents NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense certain visual cues can impact our thoughts and the way that we behave Importantly, visual cues can also change levels of implicit bias temporarily The appearance of children in chains throughout their court appearances creates a striking visual “prime” for the decision-maker Given the new evidence of how subconscious cognition predicts attitudes, beliefs, and behavior, and the evidence of the role of visual cues in activating subconscious biases, there is significant reason to be concerned that indiscriminate shackling of children in Superior Court could affect ultimate decisions about those children, including assessments of their character, dangerousness, and culpability Factfinders Are Not Immune to Subconscious Bias and “Priming” All factfinders, even judges, are human Thus, concerns about the subtle effects of with higher relevant implicit bias scores advocated a higher sentence for a hypothetical Mexican defendant as compared to a white non-Hispanic defendant on the same set of facts) See, e.g., Lemm, K M., Dabady, M., & Banaji, M R (2005) Gender Picture Priming: It Works with Denotative and Connotative Primes SOCIAL COGNITION, 23, 218-241 (finding that priming people with gender-related words or images affects subsequent behavior relating to gender-related judgments); Justin D Levinson, Race, Death, and the Complicitous Mind, 58 DEPAUL L REV 599, 609 (2009) (Priming people with concepts associated with the elderly caused people subconsciously to walk more slowly afterward.) Many studies have shown that people behave differently when primed with images of whites than they when primed with images of blacks See e.g., Gregory M Walton & Geoffrey L Cohen, Stereotype Lift, 39 J EXPERIMENTAL SOc PSYCHOL 456 (2003) (demonstrating effects of priming on performance on a standardized test); Margaret Shih et al., Stereotype Susceptibility: Identity Salience and Shifts in Quantitative Performance, 10 PSYCHOL SCI 80 (1999) (same, for Asian females) A growing body of legal scholarship is beginning to apply some of this research See, e.g., Barbara O'Brien & Daphna Oyserman, It’s Not Just What You Think, But Also How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 MARQ L REV 149, 151 (2008); Justin D Levinson, Suppressing the Expression of Community Values in Juries: How “Legal Priming” Systematically Alters the Way People Think, 73 U ON L REV 1059 (2005) (describing the “priming” effect of the entire jury process on the minds of jurors) In one study, for example, those primed with positive black faces and stories later reduced their implicit bias against blacks by over 50% See Nilanjana Dasgupta & Anthony G Greenwald, On the Malleability of Automatic Attitudes: Combating Automatic Prejudice with Images of Admired and Disliked Individuals, 81 J PERSONALITY & SOC PSYCH 800 (2001) The converse is also true: shackling children in court, many of whom are children of color, can constitute negative “priming” of minorities in court 10 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense restraint upon his physical movement In determining whether a restraint violates due process, courts must balance the individual interest in liberty “against the State’s asserted reasons for restraining individual liberty.” Youngberg, 457 U.S at 321 To avoid offending the due process clause, “this balancing cannot be left to the unguided discretion of a judge…” Id at 321 Noting that “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish,” the Court concluded that due process forbade physical restraint “except when and to the extent professional judgment deems this necessary…” Id at 324 Like the plaintiff in Youngberg, detained juveniles who have not been adjudicated “have a due process interest in freedom from unnecessary bodily restraint which entitles them to closer scrutiny of their conditions of confinement than that accorded convicted criminals.” Santana v Collaza, 714 F.2d 1172, 1179 (1st Cir 1982); see also Youngberg, 457 U.S at 320; Bell v Wolfish, 441 U.S 520, 539 (1979) To the extent the physical restriction serves no therapeutic purpose and is unnecessary to prevent escape or harm, it violates the juvenile’s due process rights to liberty Santana, 714 F.2d at 1181 (use of isolation in facility for unadjudicated juveniles must be scrutinized for: (1) whether it should be time-limited, (2) whether it required close supervision by a qualified expert with periodic review of continuing need for isolation, and (3) “whether minimal additional individual attention might reduce” need by, e.g., “distinguishing between and attempting to address the sources rather than the effects of the residents’ behavior problems.”) A restriction on physical liberty which is damaging to the child and is not reasonably necessary to meet 29 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense legitimate government interests violates the child’s substantive due process rights 10 Before the government can impose such a restraint on a child, it must make an individualized determination, based on the exercise of professional judgment, that the curtailment is necessary to meet a legitimate objective See Santana v Collazo, 714 F.2d at 1180-811; Milonas v Williams, 691 F.2d 931, 942 (10th Cir 1982) Numerous state courts have applied these principles repeatedly and forcefully to reject the practice of indiscriminate juvenile shackling Instead, courts require an individualized determination that shackling a child is necessary to protect against an imminent danger In the Interest of R W.S., 728 N.W.2d 326, 331 (2007) (“In the present case, the juvenile court made no findings that [the child] posed an immediate and serious risk of dangerous or disruptive behavior or of escape or flight Therefore, refusal to remove [the child’s] handcuffs was a violation of his due process rights.”); In re Staley, 364 N.E.2d at 73 (“In the absence of [an individualized] showing, an accused cannot be tried in shackles whether there is to be a bench trial or a trial by jury Physical restraints should not be permitted unless there is a clear necessity for them.”); In re Millican, 906 P.2d at 860 (“Here, the court received no evidence that child posed an immediate and serious risk of dangerous or disruptive behavior and made no findings to that 10 Indeed, to the degree that a physical restraint on an unadjudicated juvenile is unnecessary to meet legitimate goals, a “court may permissibly infer that the purpose of the governmental action is punishment that may not be constitutionally inflicted upon detainees qua detainees.” Bell, 441 U.S at 539 Deprivation of liberty and conditions of confinement of both unadjudicated juveniles and involuntarily confined mentally ill people may be sufficiently analogous to criminal punishment to warrant the protection of the Eighth Amendment’s proscription against cruel and unusual punishments See Ingraham v Wright, 430 U.S 651, 669 n 37 (1977) Where an unadjudicated detainee asserts a constitutional claim concerning the conditions of incarceration, the claim arises under the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment Tittle v Jefferson County Comm’n, 10 F.3d 1535, 1539 n.3 (11 th Cir 1994) (en banc); H.C v Jarrard, 786 F.2d 1080, 1085 (11 th Cir 1986) 30 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense effect Consequently, denial of child’s motion to remove the leg chains was error.”); Tiffany A., 150 Cal App 4th at 1359 (“[W]e conclude that any decision to shackle a minor who appears in the juvenile delinquency court for a court proceeding must be based on the nonconforming conduct and behavior of that individual minor…) “One need not think long to realize the indignities inherent in the use of physical restraints on juveniles during any proceeding.” State v Doe, 333 P.3d 858 (Id Ct App 2014) II THE INDISCRIMINATE SHACKLING OF YOUTH VIOLATES INTERNATIONAL LAW AND NORMS The use of chains on children in court also undermines respect for [State/Jurisdiction] juvenile justice system because the indiscriminate shackling of juveniles is contrary to wellsettled international human rights norms Rule 63 of the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, approved by the United Nations General Assembly in 1990, provides “Recourse to instruments of restraint and to force for any purpose should be prohibited.” Although juvenile courtrooms are not open to the public, children are still forced to appear in chains in front of [courtroom personnel, witnesses, family members, journalists, and lawyers] all of whom are allowed to observe juvenile proceedings in this court UN Rule 63 does establish exceptions UN Rule 64 notes that: “Instruments of restraint and force can only be used in exceptional cases, where all other control methods have been exhausted and failed, and only as explicitly authorized and specified by law and regulation They should not cause humiliation or degradation, and should be used restrictively and only for the shortest possible period of time By order of 31 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense the director of the administration, such instruments might be resorted to in order to prevent the juvenile from inflicting self-injury, injuries to others or serious destruction of property In such instances, the director should at once consult medical and other relevant personnel and report to the higher administrative authority (emphases added).” The Standard Minimum Rules for the Treatment of Prisoners (SMR), adopted over fifty years ago by the United Nations and cited by the Supreme Court in Estelle v Gamble, 429 U.S 97, 103 (1976), as a source of “model” legislation to demonstrate “contemporary standards of decency as manifested in modem legislation,” provides: Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment Furthermore, chains or irons shall not be used as restraints Other instruments of restraint shall not be used except in the following circumstances: (a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority; (b) On medical grounds by direction of the medical officer; (c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority Paragraph 33, First United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1957) (emphasis added) The United States government itself advises its consulates to ensure that all U.S citizens abroad are treated in accordance with these minimum standards See United States Department of State Foreign Affairs Manual, vol 7, 433.1(2), (3) (8-26-2004) Indeed, the Rules of Procedure for the major International Criminal Tribunals dealing with the genocides in Rwanda and Yugoslavia both contain explicit provisions forbidding courtroom shackling: “Instruments of restraint shall be removed when the accused appears before a Chamber or a Judge.” Rule 83, International Tribunal for the Former Yugoslavia, IT/32 Rev 46 (October 20, 2011) The 32 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense Tribunals also provide that restraints should only be utilized in carefully circumscribed “exceptional circumstances.” Id at Rules 48-50 The consensus, therefore, among foreign jurisdictions to consider the issue—as well as American diplomatic missions responsible for protecting citizens’ prosecuted abroad—is that the shackling of children in courtrooms is a degrading option of last resort to be utilized only in the exceptional circumstance when they are shown to be necessary III THE JUVENILE COURT CANNOT DEFER COURTROOM MANAGEMENT TO LAW ENFORCEMENT While a judge is right to listen to the concerns raised by law enforcement regarding a decision to unshackle youth, this Court’s shackling policy cannot be justified by the total deference to the recommendations, policies, or desires of court security personnel It would be erroneous to abdicate judicial discretion to the custodial authority See Jackson v State, 698 So 2d 1299 (Fla Ct App 1997) (stating that “[t]he court may not blindly defer to security measures established by the sheriff or other officials performing security functions”); see also Bello v State, 547 So 2d 914, 918 (Fla 1989) Courts across the country are consistent “The decision whether to require the accused or witnesses to wear physical restraints in the courtroom and while testifying is a matter within the sound discretion of the trial court after giving due consideration to the rights of the accused, those present in the courtroom, and society at large….The trial judge has overall supervision of courtroom security.” Payne v Com., 357 S.E.2d 500, 503-504 (Va 1987) (citations omitted) In making its ruling in Deck v Missouri, the United 33 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense States Supreme Court found that for adults, “[i]t 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.” 544 U.S 622 (2005); United States v Haynes, 729 F.3d 178, 188 (2d Cir 2013) (emphasis added) There is absolutely no reason why a judge would be in charge of making that decision for adults, but not for children Courtroom security personnel cannot overrule a judge’s decision as to how a defendant— adult or juvenile—is to appear in court Indeed, federal courts “may not delegate this discretion to another party, including the Bureau of Prisons or the United States Marshals, because the court must ‘consider all the evidence and ultimately make the decision [for itself].’” Davidson v Riley, 44 F.3d 1118, 1123 (2d Cir 1995) (quoting Lemons v Skidmore, 985 F.2d 354, 358 (7th Cir 1993)); see Hameed v Mann, 57 F.3d 217, 222 (2d Cir 1995) The Second Circuit has maintained that while “[a] judge may receive evidence if there is any factual dispute relevant to trying a defendant in physical restraints…the ultimate decision to impose any physical restraints during trial must be made by the District Court judge alone and must be made on the record.” United States v Haynes, 729 F.3d 178, 189 (2d Cir 2013) (internal citations omitted) As stated earlier, “[w]hen the trial judge delegates a decision, and gives no reason for the decision, that is not an exercise of discretion but an absence of and an abuse of discretion.” Id (internal citations omitted) There is nothing that distinguishes a federal judge’s role in district court from a juvenile court judge’s role in terms of authority to manage the appearance and procedure of his 34 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense or her own courtroom The Ninth Circuit Court of Appeals summarizes that not only must the court pursue less restrictive alternatives before imposing physical restraints,” but that “it is the duty of the trial court, not correctional officers, to make the affirmative determination.” Gonzalez v Pliler, 341 F.3d 897, 900, 902 (9th Cir 2003) IV STATE [STATUTE/RULE/REGULATION] EXPLICITLY PLACES LIMITS ON THE USE OF RESTRAINTS IN OTHER CONTEXTS [Include this section if regulations/statutes/court rules discuss the use of restraints on juveniles outside the courtroom setting-see the Alaska Example] [Relevant Alaska Statutes, Administrative Code, and Delinquency Rule arguably appear consistent with recent reforms in other states, but have not been put to use for this purpose AS 47.14.020 sets out the duties of the department to provide for the welfare, control, care, custody, and placement of juveniles AAC 52.365 Restraints, states that “handcuffs and other physical restraints may be used only when necessary to protect the juvenile, an employee of the facility, or the public, when there is immediate danger of violence, escape, or damage to government or facility property.” Delinquency Rule 13 states: “A court exercising jurisdiction under these rules has a continuing duty to ascertain that appropriate conditions of detention of juveniles are observed concerning visitation, clothing, exercise, private visitation of counsel and confinement A juvenile may not be confined in solitary confinement for punitive purposes.” Yet our Masters and trial judges see juveniles as young as 12 years of age shackled every 35 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense day for offenses like shoplifting, or for probation violations such as violating curfew, failing to attend school, failing to contact the probation officer, minor consuming alcohol, or testing positive for marijuana use Any juvenile defender can cite instances where the parent broke down at the sight of the son or daughter shuffling shackled into the courtroom for the first time and whispering that he or she would not have cooperated in the process had they known their child would be treated in this manner.] [Discuss here similar applicable rules, orders, and statutes that discuss the use of restraints in similar contexts (e.g., juvenile facilities).] V THE INDISCRIMINATE SHACKLING OF YOUTH IN COURT RUNS COUNTER TO THE REHABILITATIVE PURPOSES OF [X STATE’S] JUVENILE COURTS [Refer in this section to your own jurisdiction’s juvenile justice code—almost every state has a statute reflective of the juvenile courts’ purpose Use that to argue against shackling here This example from Maryland is provided to demonstrate one way this might be adapted locally.] [The use of restraints without an individualized showing of necessity is contrary to the Juvenile Causes Act and its stated purposes By revising the law governing juvenile causes in 1969 the General Assembly intended no departure in philosophy from that underlying previous juvenile court enactments in Maryland, as interpreted by the Court of Appeals, viz., that juvenile proceedings are of a special nature designed to meet the problems peculiar to the adolescent; that the proceedings of a juvenile court are not criminal in nature and its dispositions are not punishment for crime; that the juvenile law has as its underlying concept the protection of the juvenile, so that judges, in making dispositions in juvenile cases, think not in terms of guilt, but of the child’s need for protection or rehabilitation; that the juvenile act does not contemplate the punishment of children where they are found to be delinquent, but rather an attempt to correct and rehabilitate them in a “wholesome family environment whenever possible,” although rehabilitation may have to be sought in some instances in an institution In Re Hamil, 10 Md App 586 (1970) 36 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense Maryland’s Juvenile Causes Act, MD CODE ANN., CTS & JUD PROC § 3-8A01 et seq., requires that “children in State care and custody [be provided a] safe, humane and caring environment ….” MD CODE ANN., CTS & JUD PROC § 3-8A-02(a)(7)(i) (2002) It further states as its purpose: “To provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child's best interests and the protection of the public interest.” Id at § 3-8A-02(a)(4) Indiscriminate shackling contradicts the purpose of the Juvenile Causes Act and the purpose of juvenile court proceedings as a whole The inhumane and degrading nature of shackling runs counter to the rehabilitative, deterrent, and conditions-improvement goals of the Juvenile Causes Act The negative psychological effects of shackling have been documented for over a century “As early as 1871 the California Supreme Court recognized placing the criminal defendant in shackles ‘imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense ….’” Tiffany A v Superior Court, 150 Cal App 4th 1344, 1355 (2007) (quoting People v Harrington, 42 Cal 165, 168 (1871)) As set forth above, the shackling of children is incompatible with the key principles of 37 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense Maryland’s Juvenile Causes Act: individualized assessment, respect for the dignity of the child and of the courts, and the goal of rehabilitation Thus, without an individualized assessment, Respondent should have had all restraints removed during adjudication.] VI COURTS AROUND THE COUNTRY ARE MOVING TOWARD A BAN ON SHACKLING JUVENILES WITHOUT AN INDIVIDUALIZED ANALYSIS OF RISK The National Council of Juvenile and Family Court Judges (“NCJFCJ”) recognizes that best practice in juvenile courts is to eliminate indiscriminate shackling of youth In July 2015, NCJFCJ adopted a Resolution Regarding Shackling of Children in Juvenile Court, which “supports a presumptive rule or policy against shackling of children.” NCJFCJ Resolution In February 2015, the American Bar Association passed Resolution 107A, in which it set forth its strong opposition to automatic juvenile shackling The resolution “urges all federal, state, local, territorial and tribal governments to adopt a presumption against the use of restraints on juveniles in court and to permit a court to allow such use only after providing the juvenile with an opportunity to be heard and finding that the restraints are the least restrictive means necessary to prevent flight or harm to the juvenile or others.” ABA Resolution 107A (2015) Other national organizations that support shackling reform include the Association of Prosecuting Attorneys, the Child Welfare League of America, the American Academy of Child and Adolescent Psychiatry, the National Center for Mental Health and Juvenile Justice, Mental Health America, the American Orthopsychiatric Association, the National Juvenile Defender Center, and the National 38 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense Prevention Science Coalition to Improve Lives State courts too are increasingly agreeing that a ban on indiscriminate shackling is not only developmentally appropriate, but is necessary for justice in our juvenile courts Since 2007, Alaska, California, Connecticut, the District of Columbia, Florida, Maryland, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Pennsylvania, South Carolina, Utah, Vermont, and Washington 11no longer indiscriminately shackle juveniles as a result of State Supreme Court decisions, statewide policy or rule changes, or statute Some of these states have created a presumption against shackling absent an individualized determination of need CONCLUSION States that have reformed blanket shackling policies for juveniles have not completely banned courtroom shackling – appellate courts have determined that juvenile courts must consider various factors when making a finding whether an individual juvenile is to be shackled 11 See, e.g ALASKA DELINQ CT R 21.5; Tiffany A v Super Ct., 150 Cal App 4th 1334 (2007); Judicial Branch Policy: Use of Mechanical Restraints in the Juvenile Courtroom (Conn 2015), available at http://www.cga.ct.gov/2015/JUDdata/Tmy/2015HB07050-R000330-Conway,%20Bernadette%20-%20State%20of%20Connecticut%20Judicial %20Branch,%20External%20Affairs %20Division-TMY.pdf; H.B 7050 § 3, Gen Assemb., Jan Sess (Conn 2015) (effective Oct 1, 2015);D.C Super Ct Admin Order 15-07;FLA R JUV P 8.100(b); State v Doe, 333 P.3d 858 (Id Ct App 2014);IN H.B 1304, 119th Gen Assemb., Reg Sess (Ind 2015)/ IND CODE § 3130.5; Trial Ct of the Commonwealth, CT OFFICER POL’Y AND PROCEDURES MANUAL, Ch 4, § VI (2010) L.B 482, 104th Leg., 1st Sess (Neb 2015); Nev Assemb B (2015) (effective Oct 1, 2015); N.H REV STAT § 126-U:13 (2010); N.M CHILD.’S CT R 10-223A; N.Y COMP CODES R & REGS tit 9, § 168.3(a); N.C GEN STAT § 7B-2402.1 (2007); 237 PA CODE § 139 (2011), 42 PA CONS STAT § 6336 (2012); S.C CODE ANN § 63-19-1435 (2014); UTAH CODE ANN § 78A-6-122 (2015) (effective Oct 1, 2015); S.B 167, 2015 Leg., Gen Sess (Utah 2015); VT 33 VT STAT ANN tit 33, § 5123 (2013); WA WASH JUV CT R 1.6 39 NJDC N AT I O N A L J U V E N I L E D E F E N D E R C E N T E R promoting justice for all children by ensuring excellence in juvenile defense in court Indiscriminate shackling is a psychologically and sometimes physically damaging practice that contravenes the ultimate goal in juvenile justice of rehabilitating juveniles For these reasons, and any others that may appear to the court, [CLIENT] moves for such an individualized determined by this Court as to whether it is necessary for him to appear for the proceedings in his matter in shackles Respectfully submitted [DATE] at [LOCATION] [NAME, TITLE, SIGNATURE] 40