BILL NUMBER: S6534

SPONSOR: MONTGOMERY
 
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 Advisory and Rules Committee.

This measure would amend the Family Court Act to bar the use of
restraints on children in Family Court courtrooms except in narrowly
defined circumstances.

A rapidly escalating national consensus is emerging to restrict routine
use of hardware restraints upon children appearing 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 where a child poses a demonstrated
safety risk to himself or herself, or others.  Recognizing the partic-
ular vulnerability of children, at least 30 states have imposed a
presumption against restraints either by statute, court rule or case
              

law; fifteen states have statutes requiring an individualized judicial
finding prior to use of restraints, eleven of which afford youth a right
to be heard. Most recently, presumptions against routine restraints and
processes similar to that proposed by this measure 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, North Dakota, Utah, Iowa and Tennessee by court rule.
As the Florida Supreme Court stated, in promulgating an amendment to the
Florida Rules of Juvenile Procedure in 2009, routine sha ckling of chil-
dren is "repugnant, degrading, humiliating, and contrary to the stated
purpose of the juvenile justice system."1 The instant measure follows
this national trend.

The measure bars restraints upon persons under age 21 unless Family
Court determines and explains on the record why restraints are needed to
prevent a child from injuring himself or herself or another person 2;
from potentially engaging in physically disruptive courtroom behavior
(as may be anticipated from the child's past behavior); or from fleeing
the courtroom, as evidenced by a recent history of absconding from the
court. Where permitted, restraints must be the "least restrictive alter-
native" and, in order to ensure due process, the child must be given an
opportunity to he heard regarding their imposition. 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 and Illinois court rules, as well as the
Model Statute/Court Rule developed by the Campaign Against Indiscrimi-
nate Juvenile Shackling, the statute and court rule in Pennsylvania, and
the statutes in Delaware, New Hampshire, North Carolina and South
Carolina3. It is similar to the court rules in Massachusetts, Washing-
ton, New Mexico, Maryland, Illinois, North Dakota, Utah and, most
recently, Iowa4. It is consistent with the orders that resulted from
challenges to restraints in California, North Dakota, Oregon and
Illinois5. It reflects the criticisms articulated in, and recommenda-
tions by, myriad commentators6 and, most recently, in the resolutions by
the National Council of Juvenile and Family Court Judges and the Ameri-
can 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, Mary-
land, 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 decorums. Nor has implementation
presented any significant burdens upon the courts as requests for
restraints are rare and the hearings, when held, are brief 9.

Restrictions upon the use of mechanical restraints on adult offenders in
criminal trials has 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 Court of Appeals,
in People v. Best, 39 N.Y.3d 739 (2012), criticized a defendant's shack-
ling in a bench 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
defendant "and of criminal proceedings generally." More recently, in
United States v. Haynes, 729 F.3d 178, 188 (2nd 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 use of restraints upon adult offenders are
even more compelling with respect to children. Not only can use of
shackles infringe upon the presumption of innocence at the fact-finding
(trial) stage, but it also can impede a youth's ability and willingness
to participate in court proceedings, including dispositional and perman-
ency hearings, and to engage in planning for their futures. At a mini-
mum, hardware restraints inhibit counsel's ability to develop an attor-
ney-client relationship with child clients, a relationship deemed so
integral in 3 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 use of restraints upon juveniles
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.adjj.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 50.

The instant measure recognizes that there will be circumstances in which
use of restraints may be necessary, and provides accordingly.  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 the 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. Recog-
nition by the United States Supreme Court and New York Court of Appeals
of a need to protect adult criminal defendants from the adverse effects
of restraints renders even more compelling the need to enact a measure
protecting children before Family Court.

This measure, which would have no fiscal impact, would take effect imme-
diately.

 
2017-18 LEGISLATIVE HISTORY:

Senate 4865 (Sen. Bonacic) (committed to Rules)
Assembly 5920 (MA Gantt) (advanced to 3rd Rdg., Cal. 423)

 
2015-16 LEGISLATIVE HISTORY:

Senate 7605 (Sen. Bonacic) (committed to Rules)

Assembly 7879 (MA Gantt) (advanced to 3rd Rdg) 2 1 See In Re Amendment
to Fla. Rules of Juvenile Procedure, 26 So.2d 552, 556 (Fl., 2009).

2 The measure solely addresses courtroom appearances. A similar presump-
tion currently applies to use of restraints during transportation of
juveniles from the State Office of Children and Family Services facili-
ties pursuant to an injunction issued in the class action case of Matter
of John F. v. Carrion,-Misc.3d-, NY.L.J., Jan. 27, 2010 (S.Ct. N.Y.Co.).

3 See Fla. Rules of Juvenile Procedure § 8.100(b) (2009); Campaign
Against Indiscriminate Juvenile Shackling, 2014 Model Statute/Court Rule
(www.njdc.info, checked Dec. 29, 2014); Adoption of the New Rule 139 of
the Rules of Juvenile Court Procedure, Pa. S.Ct., No. 527, 237 Pa. Code
§ 139 (Apr. 26, 2011); 42 Pa. C.S.A. § 6336.2 (2012); Del.  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); N.D. Rules of Juv. Proc. § 20 (2017); Utah Council Code of Judi-
cial Administration § 4-905 (2015); Iowa Rules of Juv. Proc. § 8.41
(2017).

5 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).

6 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 Court-
room Safety. So Why Do Judges Keep Doing It?," Mother Jones (Feb., 2015;
vvww.motherjo nes.com/ poli tics/2015/02/c our tsshackle-ju venile-child
ren-ABA); S. Marsh, "OP-ED: Indiscriminate Shackling of Children in
Juvenile Court Should End, " Juvenile Justice Information Exchange,
www.ij ie.oR g, 2015); J. Abdul-Alim, "Justice Advocates Fight to Limit
Shackles, Seclusion for Juveniles," (Juvenile Justice Information
Exchange, June 18, 2015, www.i jie.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," Washington 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.n ijn.org, checked Dec. 29, 201 4);
National Juvenile Defender Center, Issue Brief Ending the Indiscriminate
Shackling of Youth (2014; www.nj dc.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./M arch, 2010);
Zeno, "Shackling Children During Court Appearances: Fairness and Securi-
ty in Juvenile Courtrooms," 12 J.Gender Race & Just. 257 (2009); Perl-
mutter, "Unchain the Children:  Gault, Therapeutic Jurisprudence and
Shackling" 5 Barry L. Rev.  1(2007).

7 Campaign to End Indiscriminate Juvenile Shackling, supra, note 43; B.
Schatz, supra, note 50 ; G. Gately, supra, note 50.

8 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 50, and ABA, supra,
note 42. And no incidents were reported by Judge Daniel Murphy regarding
ten years of experience in Linn County, Oregon. See Rubin, supra, note
50 at 11.

9 See, e.g., e-mail from Hon. Jay D. Blitzman, First Justice, Massachu-
setts Juvenile Court, Middlesex Division, dated Nov. 26, 2014.