Senate Bill S4865

                                 BILL NUMBER:  S4865

 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.* Recognizing the particular vulnerability of children, at
least 25 states have imposed such a presumption either by statute,
court rule or case law; 15 states have statutes requiring an
individualized judicial finding prior to use of restraints, 11 of
which afford youth a right to be heard.** Most recently, presumptions
against routine restraints have been established in Delaware,
Connecticut, Indiana, Nebraska and Nevada by statute, in Washington,
D.C. by Administrative Order of the Superior Court and in Illinois,
Ohio and Tennessee by court rule.*** As the Florida Supreme Court
stated, in amending 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.**** Following this trend, this measure would
amend the Family Court Act to create a new section 162-a, applicable
to youth under 21 when they appear in all categories of Family Court
proceedings, to provide that restraints are prohibited and thus must
presumptively be removed upon entry of such youth into the
courtroom***** unless the Court determines and explains on the record
why restraints are "necessary to prevent: (1) physical injury by the
youth to himself or herself or another person; (2) physically
disruptive courtroom behavior, as evidenced by a recent history of
behavior presenting a substantial risk of physical harm to the youth
or another person where the behavior indicates a substantial
likelihood of current physically disruptive courtroom behavior by the
youth; or (3) the youth's flight from the courtroom, as evidenced by a
recent history of absconding from the Court." The particular
restraints permitted must be the "least restrictive alternative" and,
in order to ensure due process, the youth must be given an opportunity
to be heard regarding a request to impose restraints. The measure
further provides that in cases where restraints are ordered, 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 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.