Dec. 6, 2017 – A majority of states, 29, now have statewide court rules, decisions, or statutes that limit automatic shackling of children in juvenile court. In Wisconsin, circuit courts have authority to make those decisions, meaning there is no statewide rule or law.
For instance, earlier this year, the North Dakota Supreme Court imposed a rule that restraints cannot be used on children “unless a party or the detention, transport or juvenile court office staff request a finding by the court that the child poses an immediate and serious risk of dangerous or disruptive behavior or of escape or flight.”2
The party requesting restraints must provide facts to rebut the no-restraint presumption. In Wisconsin, the decision to restrain children who enter the juvenile courtroom occurs at the county level.
Some Wisconsin counties, such as Dane and La Crosse counties, have moved in that direction by implementing no-shackling presumptions for children in juvenile court, which has jurisdiction over children under the age of 17.
“We should all be removing those shackles from kids when they are inside our courtrooms,” said La Crosse County Circuit Court Judge Ramona Gonzalez.
In other counties, such as Milwaukee County, shackling is currently the presumption, although Milwaukee County Circuit Court Judge Joe Donald is working to reverse that in favor of a presumption against shackling without good cause.
Donald said there are good reasons for unshackling kids in the courtroom – to address trauma, keep them engaged, and improve outcomes – separate and apart from the constitutional questions that arise when a presumptively innocent person is shackled.
“We should be looking at this as a uniform policy,” Judge Donald said. “It should only be used in rare cases when a party can articulate why the restraints are necessary.”
Unshackling Initiatives
“We should all be removing those shackles from kids when they are inside our courtrooms,” says La Crosse County Circuit Court Judge Ramona Gonzalez.
Shackling includes “handcuffs, waist chains, ankle restraints, zip ties, or other restraints that are designed to impede movement or control behavior.”3 Judge Gonzalez and others say routine shackling is not healthy for children, based on research in the area of social and developmental psychology, and defeats the purposes of juvenile court.
Experts, such as child psychiatrists, say restraining children restricts their ability to self-regulate, and self-regulation and control are crucial elements in child development. The use of shackles can also trigger retraumatization, leading to problem behaviors.
Gonzalez, elected to the bench in 1995, has long advocated for limited juvenile shackling and worked with the county sheriff in La Crosse to implement a presumption that kids will enter juvenile court without restraints unless a safety concern is raised.
“There are genuinely good reasons why this is an important thing to do,” said Judge Gonzalez. “Once you look at the success that other jurisdictions have with bringing down the incidents of trouble with teens in custody, the thing begins to sell itself. You have to get yourself out of the mindset that these little people are adult criminals.”
In 2015, the National Council of Juvenile and Family Court Judges passed a resolution in support of presumptive rules against shackling children without good cause.
The resolution noted that routine shackling, without specific justification, can infringe on a juvenile’s rights, including a presumption of innocence. But the resolution also noted that shackling “is contrary to the goals of juvenile justice” and can be traumatizing.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The ABA, in 2015, also adopted a resolution, urging “a presumption against the use of restraints on juveniles in court” unless the court finds that restraints are the least restrictive means necessary to prevent flight or harm to the juvenile or others.
These types of resolutions are not falling on deaf ears. In 2016 and 2017, four states banned indiscriminate shackling statewide, including three by court rule.4
Eleven states have legislatively implemented no-shackling presumptions, while 12 states (and Washington, D.C.) did so by authority of the state’s highest court. Six states have implemented bans through opinions, regulations, or administrative orders.
Kids and Trauma
“Judges retain discretion to decide, but we should be looking at this as a uniform policy,” says Milwaukee County Circuit Court Judge Joe Donald.
Judge Gonzalez says juvenile shackling is contrary to initiatives, including Wisconsin’s Fostering Futures Initiative, which recognizes the importance of trauma-based care and decision-making. Children who come through the juvenile court system have often experienced traumatic events, and shackling them in court can exacerbate trauma.
“There is an element of shame and hopelessness,” said Gonzalez, active with the National Council of Juvenile and Family Court Judges. “Those things can be detrimental to what the court is trying to do, which is to teach the child to be a law-abiding adult.”
“If you treat young people as though they are dangerous and criminal, we reinforce in them that they are dangerous and criminal, and they will behave in that fashion.”
Importantly for Judge Gonzalez, shackles can prevent her from having meaningful interactions with children in juvenile court, because it creates a distraction. “They are paying attention to everything else but what I’m saying or what anybody else is saying.”
Attorney Eileen Fredericks, who works on juvenile cases for the State Public Defender’s Office, says shackles can make it difficult to communicate with her child clients.
“They are distracted and embarrassed,” said Fredericks, especially if parents are present. “They crouch down. Sometimes they have to sign papers, but it’s hard for them to sign with cuffs chained to their waists. They don’t feel a presumption of innocence.”
“They have not been found guilty of anything but we are shackling them in court and they know the judge is looking at them with these shackles on,” Fredericks said. “And the judge is the trier of fact. There are no jury trials in juvenile court.”
The State Public Defenders Office supports a change to a no-shackling presumption in all Wisconsin counties, as does the State Bar of Wisconsin’s Children and the Law Section, which has previously sought the introduction of legislation on this issue.
Before the policy changed about a year ago in Dane County Circuit Court, through the efforts of Judge Everett Mitchell, Fredericks said she would try to warn parents that their children would be entering the courtroom in shackles, but some would still start crying.
“You don’t know how you are going to feel until you see it,” Fredericks said. “Another thing is that these can be long hearings. They can be sitting there in shackles for three to four hours, and they keep them on in transport to and from the detention center.”
When Judge Mitchell took the bench in 2016, routine shackling was the policy for Dane County Circuit Court. Attorneys could request that shackles be removed, but the process for making such requests, with a 48-hour notice rule, was impractical.
Now, children are not shackled unless the deputy sheriff raises a concern. Judge Mitchell said no concerns have been raised, and no incidents have occurred.
“With all the research around traumatized children, shackling just doesn’t seem to fit the trauma-informed paradigm,” Judge Mitchell said.
“I don’t want to make things worse for them. I want them to see a court process in which they are respected and heard. And we have to remember: they are just kids.”
Safety and Security Concerns?
The county sheriff’s office is charged with the transportation and custody of juveniles when they are transported from detention centers to juvenile court.
With no statewide rule or statute that says juveniles cannot be shackled in court without good cause, it may be law enforcement protocol to shackle all juveniles in all cases. And judges may not want to impede on this important law enforcement function.
The Wisconsin Sheriffs and Deputy Sheriffs Association and the Badger State Sheriff’s Association declined a request for comment on the juvenile shackling issue.
But if the general concern with allowing the removal of shackles in juvenile court is the impact on court safety, Judge Gonzalez has seen no cause for concern in La Crosse.
“For those who say, ‘better safe than sorry.’ I don’t accept that,” said Judge Gonzalez, noting the La Crosse County Circuit Court has experienced no incidents since implementing the no-shackling policy, first informally in 2015 and formally in 2016.
“One in 1,000 kids may be a problem, but we should not make the other 999 suffer from the trauma of shackling.”
The La Crosse County Circuit Court implemented its no-shackling policy by authority of its Security and Facilities Committee, which each circuit court is required to maintain under Wisconsin Supreme Court Rule (SCR), Chapter 68.
Security and facility committees include numerous stakeholders, including a circuit court judge, the county sheriff, the district attorney, the state public defender, a court commissioner, and a representative of a victim-witness support organization.
Judge Gonzalez said the no-shackling policy became part of the committee’s written security plan, after discussion among all participants. She also noted that La Crosse County does not shackle children 14-and-under while in transport without cause.
Currently, security and facility committees provide a mechanism for circuit courts to make these types of security decisions, recognizing that each county is different. The rules note an intent to establish a “flexible framework” on security issues.
Thus, although more states are trending towards a statewide no-shackling policy, Wisconsin’s framework puts that decision in the hands of local circuit courts.
What the Children Said About Shackling
In 2016, the Wisconsin Department of Children & Families established the Secretary’s Advisory Council on Youth Justice. As part of information gathering, the council asked a series of questions to Wisconsin youth who have been in contact with the justice system. One question was: what was shackling like for you? They answered:
I feel like it’s not presentable to show up in court in your blues and shackles. It’s especially bad when your co-defendants are coming from the street and you’re the only one in shackles.
When the handcuffs get put on around your waist and your feet, it has you feeling like a real criminal. Like you’re a serious danger to society.
It was awful because I could barely walk, and also it made me feel like a serious criminal that I’m not – so it actually made me sad and disappointed.
It seems like it’s overused. I was being transported from one place to another through an underground tunnel with no obvious places to exit, but I was still shackled. I could barely walk.
It makes you feel like ____. You feel like you’ve hit rock bottom.
It is embarrassing. It is degrading to have to sit in front of groups of people – especially well-dressed people in court – in shackles. Staff watch you struggle.
You look like a criminal, and you feel like you’re being treated like one, too. You have to walk from the parking lot to the courthouse in front of everyone.
“In Wisconsin, it is the responsibility of judges, court staff, and sheriffs to work together to ensure that courtrooms are safe places, not only where defendants’ rights are upheld, but also where disputes are settled peacefully, according to the law,” said Tom Sheehan, spokesperson for the Wisconsin Court System.
“These officials are best positioned to evaluate safety and security needs for their courtrooms on any given day and in any given situation.”
Sheehan noted that the Office of Judicial Education has provided training opportunities for Wisconsin judges on the topic of shackling juveniles in court, including a session at the 2016 Juvenile Law Seminar with a presentation by an attorney from the National Juvenile Defender Center in Washington, D.C.
Shackling Case at the U.S. Supreme Court
Currently, there is no proposal for a statewide, no-shackling presumption in Wisconsin courts, via legislation or Wisconsin Supreme Court rule. However, a case currently pending before the U.S. Supreme Court may have some constitutional implications.
In U.S. v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017), the en banc court struck down (6-5) a district-wide policy to routinely shackle pretrial detainees in the courtroom. The district court had deferred to the U.S. Marshalls Service to make that determination.
The majority held that shackling a presumptively innocent defendant is unconstitutional, as a matter of due process, unless the court makes an “individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom.”
“This right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty,” wrote Judge Alex Kozinski for the majority. “The principle isn't limited to juries or trial proceedings.”
Five judges disagreed with that conclusion. The federal government has petitioned the U.S. Supreme Court to review the case, but the Court has made no decision yet.
Endnotes
1 Juvenile Justice, Geography, Policy Practice & Statistics: Juvenile Court.
2 N.D.R. Juv.P. Rule 20 (Use of Restraints in Courtrooms)
3 Resolution Regarding Shackling of Children in Juvenile Court, National Council of Juvenile and Family Court Judges, (July 15, 2015).
4 Where are the Statewide Bans on Automatic Juvenile Shackling?, Campaign Against Indiscriminate Juvenile Shackling (Sept. 26, 2017).
