BILL NUMBER: S6498

SPONSOR: BAILEY
 
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 add a new section 162-a to the Family Court Act
restricting use of restraints on youth under age 21 when they appear in
Family Court.

A rapidly escalating national consensus is emerging to curtail routine
use of hardware restraints upon children when they appear in court.  Two
major national organizations- the National Council of Juvenile and Fami-
ly Court Judges and the American Bar Association adopted resolutions in
2015 calling for states to enact presumptions against use of restraints,
reserving that use only for cases in which the child poses a demon-
strated safety risk to himself or herself, or others. Recognizing the
              

particular vulnerability of children, at least 30 states have imposed
such a presumption either by statute, court rule, or case law; 15 states
have statutes requiring an individualized judicial finding prior to use
of restraints, 1 of which affords youth a right to be heard. Most
recently, presumptions against routine restraints similar to what we
propose have been established in Delaware, Connecticut, Indiana, Nebras-
ka, 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 its amendment to 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 juve-
nile justice system."

The instant measure provides that restraints are prohibited and thus
must presumptively be removed upon entry of a juvenile into the court-
room) 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." Particular restraints permitted must be the
"least restrictive alternative" and, in order to ensure due process, 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 hand-
cuffs 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 Indis-
criminate Juvenile Shackling, the statute and court rule in Pennsylva-
nia, and the statutes in Delaware, New Hampshire, North Carolina, and
South Carolina. It is similar to the court rules in Massachusetts, Wash-
ington, New Mexico, Maryland, Illinois, North Dakota, Utah, and, most
recently, Iowa. It is consistent with the orders that resulted from
challenges to restraints in California, North Dakota, Oregon, and Illi-
nois. It reflects the criticisms articulated in, and recommendations by,
myriad commentators and, most recently, in resolutions by the National
Council of Juvenile and Family Court Judges and the American Bar Associ-
ation 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, Maryland, India-
na, Nebraska, Alaska, Utah, Nevada, Ohio, Tennessee, and the District of
Columbia have prohibited indiscriminate use of restraints.  Significant-
ly, reports of the implications of shackling limitations in Miami-Dade
County, Florida, and Linn County, Oregon, two and five years, respec-
tively, after imposition of the limitations have indicated no adverse
effects on courtroom safety and decorum. Nor has implementation
presented any significant burdens upon the 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 has long been recognized as necessary to a fair trial.
The US Supreme Court, in Deck v. Missouri, in rejecting routine shack-
ling 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
the defendant "and of criminal proceedings generally." Chief Judge Lipp-
man, dissenting from the majority's conclusion that 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 US 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 is use of shack-
les an infringement upon the presumption of innocence at the fact-find-
ing (trial) stage, it also impedes the ability and willingness of youth
to participate in court proceedings, including dispositional and perman-
ency hearings, and to engage in planning for their futures. Juveniles
are critical participants in such hearings.  See Family Court Act §§
341.2(1), 355.5(8), 756-a(d-1). The 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 juveniles in an age-appropriate manner. Significantly,
hardware restraints inhibit counsel's ability to develop an attorney-
client relationship with 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, 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.

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 the provision of a right for the juvenile to be heard upon an oral
application for the use of restraints has been neither lengthy nor
burdensome, and has caused no adverse effects.  Recognition by the US
Supreme Court and New York Court of Appeals of the need to protect adult
criminal defendants from the adverse effects of restraints renders even
more compelling the need to enact a measure protecting children in the
Family Court.

This measure would take effect immediately.

 
2019-20 LEGISLATIVE HISTORY:

OCA 2019-45

(1)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 OF JOHN F.  V. CARRION, -Misc.3d-, N.Y.L.J., Jan. 27, 2010
(S.Ct., N.Y.Co., 2010).