NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5920
SPONSOR: Gantt 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 Juve-
nile 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 find-
ing 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, applica-
ble 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 court-
room***** 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 Indiscrimi-
nate Juvenile Shackling, the statute and court rule in Pennsylvania, and
the statutes in Delaware, New Hampshire, North Carolina and South Caro-
lina.****** It is similar to the court rules in Massachusetts, Washing-
ton, New Mexico, Maryland and, most recently, Illinois.******* It is
consistent with orders resulting from challenges to restraints in Cali-
fornia, North Dakota, Oregon and Illinois.******** It reflects the crit-
icisms 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. Esti-
mating 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, Dela-
ware, 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 shack-
ling 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 general-
ly." 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 shack-
les 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 crit-
ical 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 inte-
gral 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.adj j.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 appli-
cation, 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 3' 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.ncif cj.org); American Bar Association, Resolution and Report
to the House of Delegates (Adopted by the House of Delegates, February
2015; www.ameri canbar.org).
**Campaign to End Indiscriminate Juvenile Shackling, Shackling Reform
Statewide Court Rules, Policies, Administrative Orders & Statutes
(August 2016); http://n
dc.info/camoaism-against-indiscriminate-
iuvenile- 1...lirt; Juvenile Justice in a Developmental Framework: A
2015 Status Report (MacArthur Fdtn., 2015) at p. 30.
***See Delaware House Bill I-H3 211 (2016); Conn. H.B. 7050 § 3, Gen.
ASS., 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 of Juvenile Procedure § 8.100(b) (2009); Campaign
Against Indiscriminate Juvenile Shackling, 2014 Model Statute/Court
Rules (vvww.kidc.in fk, check ed 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 (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 Mal 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 Tffany A. 11. Superior Court, 150 Cal. App. 4'h 1344
(2007); In Re R.WS., 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 (IIL, 1977).
********** See, e.g., B. Schatz, "A Court Put a Nine-year Old in Shack-
les for Stealing Chewing Gum - an Outrage that Happens Every Single day:
Research Shows that Shackling is Bad for Kids and Unnecessary cs/20
15/02/courtsshackle-juvenile-children-ABA); S. Marsh, "OP-ED: Indis-
criminate Shackling of Children in Juvenile Court Should End," Juvenile
Justice Information Exchange, www.ii ie,ors t, 2015); J. Abdul-Alien,
"Justice Advocates Fight to Limit Shackles, Seclusion for Juveniles,"
(Juvenile Justice Information Exchange, June 18, 2015, wvvw.ij ie,om 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 Juve-
nile Justice Network, Policy Update: Unchain the Children: Policy Oppor-
tunities to End the Shackling of Youth in Court (September2014;
www.nijn.ork checked December 29, 2014); National Juvenile Defender
Center, Issue Brief: Ending the Indiscriminate Shackling of Youth
(2014; w wvv.n idc.info); K. McLaurin, "Children in Chains: Indiscrimi-
nate 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 (February/March 2010); Zeno, "Shackling
Children During Court Appearances: Fairness and Security in JuvenileC-
ourtrooms," 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 juve-
nile 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.
STATE OF NEW YORK
________________________________________________________________________
5920
2017-2018 Regular Sessions
IN ASSEMBLY
February 17, 2017
___________
Introduced by M. of A. GANTT -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the family court act, in relation to use of restraints
on children appearing before the family court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The family court act is amended by adding a new section
2 162-a to read as follows:
3 § 162-a. Use of restraints on children in courtrooms. (a) Use of
4 restraints. Except as otherwise provided in subdivision (b) of this
5 section, restraints on children under the age of twenty-one, including,
6 but not limited to, handcuffs, chains, shackles, irons or straitjackets,
7 are prohibited in the courtroom.
8 (b) Exception. Permissible physical restraint consisting of handcuffs
9 or footcuffs that shall not be joined to each other may be used in the
10 courtroom during a proceeding before the court only if the court deter-
11 mines on the record, after providing the child with an opportunity to be
12 heard, why such restraint is the least restrictive alternative necessary
13 to prevent:
14 (1) physical injury to the child or another person by the child;
15 (2) physically disruptive courtroom behavior by the child, as
16 evidenced by a recent history of behavior that presented a substantial
17 risk of physical harm to the child or another person, where such behav-
18 ior indicates a substantial likelihood of current physically disruptive
19 courtroom behavior by the child; or
20 (3) flight from the courtroom by the child, as evidenced by a recent
21 history of absconding from the court.
22 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06881-01-7
