shackling 16 th annual juvenile defender leadership summit rio grande, puerto rico october 26-28,...

SHACKLING16th Annual Juvenile Defender Leadership SummitRio Grande, Puerto RicoOctober 26-28, 2012

Robert W. Mason

Juvenile Justice Policy Analyst

Fourth 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.

•The focus of the rule is on an individualized determination based on manifest need.

Photo Credit: usatoday.com

• 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.

Visualization: Detention Hearings

Photo Credit: islandguardian.com

985.02 (1)(c)

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)

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Policy

• 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 Governors30-0-0

Governor-electCharlie Crist

Shackling Permitted When…

1. Child is a danger to himself or others

or2. 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 hearing2. Assistance of counsel

Indiscriminate Shackling•No inquiry into the likelihood of misbehavior or escape

•No regard to the youth’s age, size and alleged offense

Photo Credit: earlcarterlaw.com

•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 punitive2. Counter-therapeutic3. 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 jury3. 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• Contrary to the

basic tenants of developmental pediatric practice

• “Contained beast”- identity formation

• Emotional/mental/physical harm

Photocredit: mlive.com

International Law

1. Obligation to treat all persons under detention with humanity and respect for their dignity

2. 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. Procedural

2. Blanket policy unconstitutional

3. 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