BILL NUMBER:  S7605

 TITLE OF BILL :

An act to amend the family court act, in relation to use of restraints
on children appearing before the family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court and Rules Advisory Committee.

A rapidly escalating national consensus is emerging to restrict the
routine use of hardware restraints upon children when they appear in
court. Two major national organizations- the National Council of
Juvenile and Family Court Judges and the American Bar Association
adopted resolutions in 2015 calling for states to enact presumptions
against the use of restraints. reserving their use only for cases in
which the child poses a demonstrated safety risk to himself or herself
or others.{1} Recognizing the particular vulnerability of children, at
least 21 states have imposed a presumption against restraints either
by statute, court rule or case law; fourteen states have statutes
requiring an individualized judicial finding prior to use of
restraints and ten of these afford youth a right to be heard.{2} As
the Florida Supreme Court stated in promulgating its amendment to
section 8.100 of the Florida Rules of Juvenile Procedure in 2009,
routine shackling of children is "repugnant. degrading, humiliating,
              

and contrary to the stated purpose of the juvenile justice system."{3}
Following this trend, we now propose amendment of the Family Court Act
to create a new section 162-a, applicable to youth under the age of 21
when they appear in all categories of Family Court proceedings.

This measure provides that restraints are prohibited and thus must
presumptively be removed upon entry of the juvenile into the
courtroom{4} unless the Family Court determines and explains on the
record why restraints are "necessary to prevent: (1) physical injury
to the child or another person by the child; (2) physically disruptive
courtroom behavior by the child, as evidenced by a recent history of
behavior that presented a substantial risk of physical harm to the
child or another person, where such behavior indicates a substantial
likelihood of current physically disruptive courtroom behavior by the
child; or (3) flight from the courtroom by the child, as evidenced by
a recent history of absconding from the court." The particular
restraints permitted must be the "least restrictive available
alternative" and, in order to ensure due process, the child must be
given an opportunity to be heard regarding a request to impose
restraints. The measure further provides that in cases where the
exception is invoked, only handcuffs or footcuffs may be used and
handcuffs may not be joined to footcuffs.

The measure closely mirrors the presumption, exception factors and
right to be heard in the Florida court rule, 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 New Hampshire, North Carolina and South Carolina.{5}
It is similar to the court rules in Massachusetts, Washington, New
Mexico and, most recently, Maryland.{6} It is consistent with the
orders that resulted from challenges to restraints in California,
North Dakota, Oregon and Illinois.{7) It reflects the criticisms
articulated in, and recommendations by, myriad commentators{8} and,
most recently, in the resolutions by the National Council of Juvenile
and Family Court Judges and the American Bar Association noted above.
Estimating that over 100,000 children are shackled in court, the
National Campaign to End Indiscriminate Shackling of Youth noted that
since its campaign began in August, 2014, Indiana, Nebraska, Alaska,
Utah, Nevada and the District of Columbia have prohibited
indiscriminate use of restraints.{9}
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.{10} Nor
has implementation presented any significant burdens upon the courts
as requests for restraints are rare and the hearings, when held, are
brief.{11}

Restrictions upon the use of mechanical restraints upon adult
offenders in criminal trials has long been recognized as necessary to
a fair trial. The United States Supreme

{1} See National Council of juvenile and Family Court Judges,
Resolution Regarding Shackling of Children in Juvenile Court (Adopted
July 15. 2015; www.ncjfcj.org,); American Bar Association, Resolution
and Report to the House Delegates (Adopted by the House of Delegates,
February, 2015); www.americanbar.org).

{2} Campaign to End Indiscriminate Juvenile Shackling, Shackling
Reform Statewide Court Rules. Policies, Administrative Orders &
Statutes (June. 2015;
http:/njde:info/campaign-against-indiscriminate-juvenile-shacklin;
Juvenile Justice in a Developmental Framework: A 2015 Status Report
(MacArthur Fdtn., 2015) at p. 30.

{3} See In Re Amendment to Fla. Rules of juvenile Procedure, 26 So.2d
552, 556 (FL., 2009).

{4} 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 of John F. v. Carridn, -Misc.3d-,
N.Y.L.J., Jan. 27, 2010 (S.Ct., N.Y.Co., 2010).

{5} See Fla. Rules of Juvenile Procedure § 8.100(b) (2009); Campaign
Against Indiscriminate Juvenile Shackling, 2014 Model Statute/Court
Rule (www.njde.info. checked Dec. 29, 2014): Adoption of the New Rule
139 of the Rules 139 Juvenile Court Procedure, Pa. S.Ct. No. 527, 237
Pa.  Code § 139 (Apr. 26, 2011); 42 Pa. C.S.A. § 6336.2 (2012);
N.H.R.S.A.  §126-U:13 (2010); N.C. GEN. Stat.  § 7B-2402 (2013); S.C.
Code Ann. § 63-19-1435 (2014).

{6} See Amendment to Trial Court of the Commonwealth (of Mass.) Court
Officer Policy and Procedures Manual, ch. 4 Courtroom Procedure's,
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 (Adapted by Md.
Judiciary and Chief Judge of Court of Appeals, Sept. 21, 2015).

{7} See Tiffany A. v. Superior Court. 150 Cal. App. 4th 1344 (2007);
in Re R.W.S., 728 N.W.2d 326 (ND. 2007); In Re Millican, 906 P.2d 857
(Or. Ct. App., 1995); In Re Staley, 364 N.E.2d 72 1977).

{8} 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
(Feb., 2015; www.motherjones.com/politics/2015/02/
court-shackle-juvenile-children-ABA); S. Marsh, "OP-ED:
Indiscriminate Shackling of Children in Juvenile Court Should End,"
Juvenile Justice Information Exchange, www.jjie.ore. 2015): J.
Abdul-Alim, "Justice Advocates Fight to Limit Shackles, Seclusion for
Juveniles," (Juvenile Justice Information Exchange, June 18, 2015,
www.jjie.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 Arrive in Belly Irons and Belly Chains," Washington
Post, (OpEd, May 8, 2015); P. Puritz, "Shackling Juvenile Offenders
can do permanent damage to our kids," Wash. Post (OpEd., Nov. 13,
2014); National Juvenile Justice Network, Policy Update:  Unchain the
Children. Policy Opportunities to End the Shackling of Youth in Court
(Sept., 2014; www.njjn.org. checked Dec. 29, 2014); National Juvenile
Defender Center, Issue Brief Ending the Indiscriminate Shackling of
Youth (2014; www,njdc.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
1:1 (Feb./March, 2010); Zeno, "Shackling Children During Court
Appearances: Fairness and Security in Juvenile Courtrooms," 12
J.Gender Race & Just. 257 (2009); Perlmutter, "Unchain the Children;
Gault, Therapeutic Jurisprudence and Shackling," 5 Barry L. Rev.
1(2007).

{9} Schatz, supra, note 8; 0. Gately, supra, note 8.

{10} A study of 20,000 youth appearing in Miami-Dade County juvenile
court from 2006, when the county limited shackline, 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. Sec
Rubin, supra, note 8 at 11,

{11} See, e.g., e-mail from Hon. Jay D. Blitzman, First Justice,
Massachusetts Juvenile Court, Middlesex Division, dated Nov. 26, 2014.