NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7879
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 her Family
Court Advisory and Rules Committee.
A growing national consensus is emerging to restrict the routine use of
hardware restraints upon children when they appear in court. Recogniz-
ing the particular vulnerability of children, at least 12 states have
imposed a presumption against restraints either by statute, court rule
or case law. As the Florida Supreme Court stated, in promulgating its
amendment to section 8.100 of the Florida Rules of Juvenile Procedure in
2009, routine shackling of children is "repugnant, degrading, humiliat-
ing, and contrary to the stated purpose of the juvenile justice
system."{1} Following this trend, this measure would amend the Family
Court Act to create a new section 162-a, applicable to youth under the
age of 21 when they appear in all categories of Family Court
proceedings.
This measure establishes a presumption prohibiting use of restraints in
the courtroom"{2} unless Family Court determines and explains on the
record why restraints are "necessary to prevent: (1) physical injury by
the child to himself or herself or another person; (2) physically
disruptive courtroom behavior, as evidenced by a recent history of
behavior that presented a substantial risk of physical harm to the child
or another person where the behavior indicates a substantial likelihood
of current physically disruptive courtroom behavior by the child; or (3)
the child'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 proc-
ess, the child must be given an opportunity to he heard regarding a
request to impose restraints. 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 court rule, as well as the Model
Statute/Court Rule developed by the Campaign Against Indiscriminate
Juvenile Shackling, the statute and court rule in Pennsylvania, and
statutes in New Hampshire, North Carolina and South Carolina.{3} It is
similar to court rules in Massachusetts, Washington and New Mexico,{4}
as well as orders that resulted from challenges to restraints in Cali-
fornia, North Dakota, Oregon and Illinois.{5} It reflects the criticisms
articulated in, and recommendations by, myriad commentators{6} and, most
recently, in a Report and Resolution, sponsored by the American Bar
Association Criminal Justice Section and approved at its midyear meeting
in February, 2015.{7} 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.{8} 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 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 Lipp-
man, 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 (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.
The arguments for restricting use of restraints upon adult offenders are
even more compelling with respect to children. Not only is the use of
shackles an infringement upon 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.
Juveniles are critical participants in such hearings, pursuant to Family
Court Act §§ 341.2(1), 355.5(8), 756-a(d-1). The recently enacted Feder-
al 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 juveniles in an age-appropri-
ate 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 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, 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 11.
The instant 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 the 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. Recognition by the United States Supreme
Court and New York Court of Appeals of the need to protect adult crimi-
nal 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.
LEGISLATIVE HISTORY:
None. New proposal.
{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
presumption currently applies to use of restraints during transportation
of juveniles from 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-, N.Y.L.J., Jan. 27, 2010 (S.Ct.,
N.Y.Co., 2010).
{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); N.H. R.S.A. §
126-U:13 (2010); N.C. Gen. Stat, § 7B-2402 (2013); S.C. Code Ann. §
63-19-1435 (2014).
{4} See 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).
{5} See Tiffany A. v. Superior Court, 150 Cal. App. 4th 1334 (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., P. Puritz, "Shackling Juvenile Offenders can do permanent
damage to our kids," Wash. Post (OpEd., Nov. 13, 2014); National Juve-
nile Justice Network, Policy Update: Unchain the Children: Policy Oppor-
tunities to End the Shackling of Youth in Court (Sept., 2014;
www.hlin.org, checked Dec. 29, 2014); National Juvenile Defender Center,
Issue Brief Ending the Indiscriminate Shackling of Youth
(2014; www.njdc.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,"
Juvenile 16 Justice Up-date 1:1 (Feb./March, 2010); Zeno, "Shackling
Children During Court Appearances: Fairness and Security in Juvenile
Courtrooms," 12 J.Gender Race & Just. 257 (2009); Perlmutter, "Unchain
the Children: Gault, Therapeutic Jurisprudence and Shackling, " 5 Barry
L. Rev, 1(2007).
{7} American Bar Association, Resolution and Report 107A1.
{8} A study of 20,000 youth appearing in Miami-Dade County juvenile
court from 2006, when the county limited shackling, through 2011 indi-
cated no incidents of flight or harm. See Puritz, supra, note 11, and
ABA, supra, note 12. And no incidents were reported by Judge Daniel
Murphy regarding ten years of experience in Linn County, Oregon. See
Rubin, supra, note 11 at 11.
{9} See, e.g., e-mail from Hon. Jay D. Blitzduan, First Justice, Massa-
chusetts Juvenile Court, Middlesex Division, dated Nov. 26, 2014.
