In May 2019, the Children & the Law Section sent a request to the State Bar of Wisconsin Board of Governors (BOG) Policy Committee requesting a BOG position against the presumption of juvenile shackling.

This section highlighted that indiscriminate shackling of youth unnecessarily humiliates, stigmatizes, and traumatizes them. The section noted that data from all over the country shows that shackling is not necessary to maintain courtroom safety, and thus, the constitutional and psychological implications of shackling tip the scales in favor of ending the practice of indiscriminate shackling of children in court.

For these reasons, it seemed clear that a presumption that children will not be shackled during court proceedings aligned with the goals and values of the State Bar.

The Board of Governors Meeting

In September 2019, Children & the Law Section board members Rebecca Kiefer and Alaina Fahley presented on the issue at the BOG meeting.

They explained that, with a presumption that children not be shackled, the judges would retain the ultimate authority on shackling. They identified evaluative factors that a court could utilize to determine whether restraints are necessary, and they made clear that shackling is unnecessary and harmful unless the child presents a substantial, present risk of harm or flight.

After their presentation, the Board of Governors unanimously voted on a position against the indiscriminate chackling of juveniles in court. Here is the language of the policy position as adopted by the Board of Governors:

The State Bar of Wisconsin supports a presumption that juveniles not be shackled during court proceedings. Judges would retain authority to order shackling in cases deemed necessary. The State Bar believes the practice impedes the attorney-client relationship, chills juveniles’ constitutional right to due process, runs counter to the presumption of innocence, and draws into question the rehabilitative ideals of the juvenile court.¹

The Need for the Policy

This policy recognizes the impact of shackling on the attorney-client relationship. Handcuffs, chains, and irons physically impede the juvenile from communicating with their attorney and assisting in their own defense. They prevent the juvenile from writing and using gestures to communicate. Shackles are distracting, making it difficult for the juvenile to listen to his or her attorney and the judge and to understand and remember the court proceeding. Shackling may cause a youth to dissociate entirely from the proceeding.

This policy acknowledges that shackling has negative effects on due process. Adults are shackled in preliminary proceedings, although usually not during trial, while juveniles in most counties are restrained in all appearances unless a request to remove restraints has been made.

Adult guilt or innocence is determined by a jury. However, in juvenile proceedings, the judge who sees the youth in shackles is also the impartial trier of fact. This raises the issue of implicit bias. Shackling gives the impression that a juvenile is guilty, violent, or not trustworthy. Even if the judge remains truly impartial, the perception to parents, spectators in the courtroom, or even the juvenile may be otherwise.

This policy appreciates the presumption of innocence. Youth not yet adjudicated delinquent are presumed innocent. Youth and parents are expected to understand this basic principle. However, the routine shackling of youth in preliminary proceedings gives the impression that youth are not considered innocent or trustworthy, which runs counter to this principle. The clear implication of the practice of indiscriminate shackling is that the child is being punished through the use of shackles and other restraints prior to an adjudication of guilt.

This policy values rehabilitation as a primary goal for juvenile offenders, a mission that relies heavily on youth’s ability to regulate their own behavior. Developmental psychology research indicates that the adolescent brain is still in development. The prefrontal cortex, which governs reasoning, advanced thought and impulse control is the final area of the brain to mature.

Shackling runs counter to the scientific research and the rehabilitative goal of the system. Shackling prevents youth from controlling their own behavior. When youth are physically restrained, they lose control over their behavior at the most basic level. Juvenile court hearings are the only occasions that juveniles can, in person, demonstrate to the court their rehabilitation and understanding of their own responsibility for their actions. Automatically restraining a juvenile in the courtroom deprives that young person of the opportunity to show the court they are capable of self-control.

Milwaukee County’s Policy

The Children & the Law Section hopes that this policy position can be a tool in fighting the indiscriminate shackling of juveniles across Wisconsin.

In the last several years, there has been movement around the state to curb the practice of indiscriminate shackling of children, but more work needs to be done.

The Children & the Law Section is hoping a recent change in policy in Milwaukee County will build momentum.

In January 2020, Milwaukee County adopted a policy against indiscriminate shackling of juveniles that can serve as a model for other counties around the state. The policy states:

• The Milwaukee County Sheriff’s Office (MCSO) is responsible for all escorts of youth from the detention center to the courts at the VRP Youth and Family Justice Center. It is the policy of the Milwaukee County Circuit Court, Children’s Division that all juveniles in secure detention appear in court free from all restraints except when there are specific documented reasons to justify restraints;

• The use of restraints may only be used when ordered by the court to maintain order, decorum, and safety in the courtroom;

• The least restrictive means available will be utilized to ensure courtroom safety.

For more information about Milwaukee’s policy and for more tools for fighting the indiscriminate shackling of juveniles in your counties, please contact me.

For an in-depth discussion of the issue, see Joe Forward's article, "Shackling Kids: Counties Shifting on Policy, but Wisconsin in the Minority," in the Dec. 6, 2017, issue of WisBar's InsideTrack.

Save the date for the upcoming Children and the Law CLE seminar, Trending Topics in Juvenile Justice Reform and Practice. This seminar is June 3 at the State Bar Center in Madison, and is discounted for section members. Stay tuned for full details.

Endnote

¹ To see all State Bar policy positions, see the policy positions document on WisBar.org.