SHACKLING
16th Annual Juvenile Defender
Leadership Summit
Rio Grande, Puerto Rico
October 26-28, 2012
R o b e r t W. M a s o n
Juvenile Justice Policy
Analyst
Four th Judicial Circuit
Chair, Legal Needs of
Children Committee
DECK V. MISSOURI
•
If a convicted double murderer is entitled to a
rebuttable presumption that he will not appear
shackled before the court- shouldn't a child with
a nonviolent offense and no history of
disruptive court room behavior be entitled to the
same protection?
DECK V. MISSOURI
•
The Rule does not
ban or oppose
shackling.
Photo Credit: usatoday.com
•The focus of the rule is
on an individualized
determination based on
manifest need.
VISUALIZATION: DETENTION HEARINGS
• Orange jump suits
• Feet shackled
together (shuffle)
• Hands shackled
together
• Shackled to belly
chain
•The oath:
• The children cannot
even get their right
hand to their head
level.
Photo Credit: islandguardian.com
985.02 (1)(C)
• Legislative intent for the Juvenile
Justice System:
To provide a safe and nurturing
environment which will preserve a
sense of personal dignity and integrity.
JUVENILE JUSTICE KEY PRINCIPLES
• Individualized assessment
• Respect for the dignity of the child
and the court
• Goal=Rehabilitation
• The Juvenile Justice System was
created as a separate, distinct
rehabilitative alternative to the more
punitive, incapacitation-oriented
Criminal Justice System.
-J.M. (Fla. 2002)
• Mechanistic
approach to a
matter that requires
individual care and
attention.
JUVENILE JUSTICE - SPECIAL POPULATION
1. Abused
2. Mentally ill
3. Mentally challenged
4. Other disabilities
All are limited by their childish thinking!
NATIONAL MOVEMENT
•22 states do not have a regular
practice of shackling their youth.
-Center for Children and Families
UF (2008)
•95% of unshackled children are
compliant.
-Alachua
•Miami has not had problems.
Photo Credit: usatoday.com
Close vote committee, but…
Board of Governors
30-0-0
Governor-elect
Charlie Crist
Shackling Permitted When…
1. Child is a danger to himself or
others
or
2. Founded belief that child is a
flight risk
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.
-Cited in Deck (1769)
• The rule establishes a procedural
framework for Juvenile court Judges to
exercise their inherent discretionary
authority over courtroom security and also
provides flexibility for the court to balance
safety and security needs with the
individualized needs and rights of children.
CONSTITUTIONAL RIGHT
1. To a fair hearing
2. Assistance of counsel
INDISCRIMINATE SHACKLING
Photo Credit: earlcarterlaw.com
•No inquiry into the
likelihood of
misbehavior or
escape
•No regard to the
youth’s age, size
and alleged offense
•Ironically, youths we have been direct
filed are less likely to be shackled in the
Criminal Justice System than in the
Juvenile Justice System
Shackling violates a child’s right to:
1.Due process
2.Presumption of
innocence
Photo Credit: juvenilejusticeblog.web.unc.edu
•Shackling interferes with a child’s right to
participate in defense of a case
• Per Deck: Shackling tends to confuse and
embarrass the accused’s mental faculties
Joelgordon.photoshelter.com
Shackling is…
1. Gratuitously punitive
2. Counter-therapeutic
3. Psychologically harmful
DJJ/DCF SPECIFIC RULES
• Restraints can be used:
1. Sparingly
2. When warranted by specific
circumstances
• It is generally accepted by medical
and mental health professionals that
shackling and physical restraints
should only be used on children as a
last resort.
-American Psychiatric Association
3 MAIN SHACKLING JUSTIFICATIONS
1. Courtroom security (and lack of
resources)
2. Lack of prejudice- no jury
3. Deterrent to future criminal conduct
Shackling for Security…
Like killing a bug with a hammer
• You don’t have to change the
courtroom.
• You change the way you deal with
the courtroom
SHACKLING
•
•
No evidence of
deterrent effect
Roper– deterrence
does not work the
same way for
teens and adults
PhotoCredit: joelgordon.photoshelter.com
DECK VS. MISSOURI
(NO SHACKLING PENALTY PHASE)
• Inevitably implies to fact finder that the
accused is dangerous
• Can interfere with an accused’s ability to
communicate with the lawyer
• An affront to the dignity and decorum of
Judicial proceedings
ALLEN (ILL 2006)
•
Even when there is no jury, unnecessary
restraint is impermissible.
1. Hinders the accused’s ability to assist
counsel
2. Runs afoul of the presumption of
innocence
3. Demeans both the accused and the
proceedings
“Our youth must never take a second
position to institutional convenience and
economy.”
–FL Supreme Court (Video Detention Rule)
Photo Credit: streetgangs.com
“Personalized attention and plans are
necessary to properly address the
multiple and complex problems facing
today’s children.”
-FL Supreme Court Video Detention Hearings
THERAPEUTIC JURISPRUDENCE
• Promotes secure positive therapeutic
outcomes and minimizes negative
psychological and behavioral effects of
anti-therapeutic legal rules and practices.
DR. MARTY BEYER
• Being chained may cause the child to feel
dangerous
• Undermines a child’s willingness to trust adults
in positions of authority
• Damages moral identity and development
• Undermines the goal of rehabilitation
DR. GWEN WURM
Photocredit: mlive.com
• Contrary to the basic
tenants of
developmental
pediatric practice
• “Contained beast”identity formation
• Emotional/mental/p
hysical harm
INTERNATIONAL LAW
1.
2.
•
Obligation to treat all persons under detention
with humanity and respect for their dignity
Obligation to provide children who are detained
with all measures of protection required by their
status as juveniles
US is a party to International Covenant on Civil
and Political Rights
UNIV. MIAMI CYLC
1.
2.
3.
Procedural
Blanket policy unconstitutional
Due Process:
• Individualized determination
• No less restrictive alternative required
4. Contrary to rehabilitative alms of juvenile justice
and anti-therapeutic
“Neither the 14th Amendment nor
the Bill of Rights is for adults
alone.”
-Gault