Shackling the Law

I’ve said it before, but for potential newcomers, I’ll say it again: You don’t have to read this blog very long to know that I hate shackles. I hate shackles on adults, but I particularly hate shackles on minors. It’s safe to say that I believe in treating human beings like human beings.

There are some who disagree.

Apparently, at least one judge Fresno County Juvenile Court is one of those who disagrees. 

According to California statutory and case law,

The purpose of the juvenile court is to protect both the minor under its jurisdiction and the public, and to preserve and strengthen the minor’s family ties whenever possible. Central to the juvenile court’s mission are the care, treatment, guidance, and rehabilitation of the delinquent juvenile. ^[1]In re Walter P., 170 Cal. App. 4th 95, 99, 87 Cal. Rptr. 3d 668 (2009) (internal citations omitted).

Let’s repeat the critical part here:

Central…are the care, treatment, guidance, and rehabilitation of the delinquent juvenile.

One thing that is notably absent from this quotation is the word “shackles.” I suggest that the reason is that numerous studies — and common sense for those of us who do not wear robes to work — clearly show that shackles are inimical to these central goals of the juvenile court.

Experts in adolescent development, childhood trauma, therapeutic jurisprudence and international law, note that the reasons to end “indiscriminate” juvenile shackling are numerous, and include that: The practice of children appearing in court in chains is irrational, inhumane, degrading and an affront to the dignity of both children and juvenile court proceedings; it may cause the child significant physical, mental or emotional health impairment; it is anti-therapeutic for the large number of children in delinquency proceedings who have suffered physical or sexual abuse, have mental illness or retardation, or have other disabilities; it may further traumatize children who have been previously victimized, especially when restraint was a part of the abuse; it may restrict the juvenile’s ability to communicate with counsel; and it may contribute to the perception of the defendant as a criminal. ^[2]University of Florida Levin College of Law Center on Children and Families, “The Shackling of Juvenile Offenders: The Debate in Juvenile Justice Policy,” 3 (date unknown).

“But wait! Wait!,” you say. “Isn’t one purpose of the juvenile court to protect the public? Didn’t the case law you quoted above say so?”

Yes, it did. I wonder what they meant by that. Perhaps another look at case law can give us a hint. The Fifth Appellate District Court — which is the court that controls, among other areas, Fresno County — states that the law…

…now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. In evaluating the court’s exercise of discretion in committing a minor to CYA, we now do so with punishment, public safety, and protection in mind. A juvenile commitment to CYA could be characterized as confinement in a “penal institution” based on the state’s recognition of punishment and public safety as the purpose of the juvenile court law. ^[3]In re Luisa Z., 78 Cal. App. 4th 978, 93 Cal. Rptr. 2d 231 (2000). “CYA” does not stand for “cover your ass.” It is the abbreviation for the California Youth Authority, which today is known as “DJJ,” or the “Division of Juvenile Justice.”

“Yeah, see? It ’emphasizes the protection and safety of the public.'”

And shackling would certainly seem to meet that objective. A shackled minor is an under-control minor. A shackled minor is no threat to anyone. A shackled minor cannot endanger the public. Regardless of the location.

But you interrupted the Court. Let’s let them finish that thought.

The mission of the Authority, on the other hand, is not retribution but to protect society by rehabilitation. ^[4]Id.

Now, I hope there’s not really anyone out there who is going to argue that I’m quoting from cases that discuss the Youth Authority (now DJJ) and incarceration, and that this has no application to the Juvenile Court. I’ll try to refrain from thinking there is something wrong with you if you try to argue that, but I’m also going to point out that if this is what the Appellate and Supreme Courts have said about YA/DJJ, then it applies a fortiori to minors in the juvenile courtroom.

The purpose of juvenile proceedings remains markedly different from that of adult proceedings. The state’s purpose in juvenile proceedings is a rehabilitative one distinguishable from the criminal justice system for adults, which has a purely punitive purpose separate from its rehabilitative goals. The proceedings are intended to secure for the minor such care and guidance as will best serve the interests of the minor and the state and to impose upon the minor a sense of responsibility for his or her actions. The purpose of imprisonment pursuant to criminal law is punishment. While part of the juvenile justice system does include punishment in certain cases, it does not change the primary purpose of juvenile proceedings from that of preserving and promoting the welfare of the child. In juvenile law, “. . . the reference to punishment did not alter the overall rehabilitative aspect of the juvenile justice system.” ^[5]In re Myresheia W., 61 Cal. App. 4th 734, 740-741, 72 Cal. Rptr. 2d 65 (1998) (emphasis added).

Besides, here’s something you may not know — certainly the judge appears to have forgotten it — anyone in custody in the Fresno Juvenile Court is brought in to the courtroom from a holding area next to the courtroom. The holding area is a completely secure area. You can’t get in there. I can’t get in there. And anyone in there cannot get out of there unless the deputies allow them out.

Guess what else?

In Fresno County, the doors to the juvenile courtrooms are locked — from both sides. To get in the courtroom from outside, someone on the inside must open the door. For someone on the inside to open the door, they must have a special magnetic key. Deputies have them. Prosecutors have them. Public Defenders and those conflict attorneys assigned to the juvenile courts have them. Private attorneys, like me — we don’t have them. Unsurprisingly, people in custody don’t have them, either.

So if you’re in custody, shackles are redundant. If you’re in custody, you’re not getting out of the courtroom.

So there’s no reason for shackles in a Fresno juvenile court. They are inimical to the goals and aims of the juvenile court. They’re unnecessary to prevent escape, because escape is impossible.

And as for the minors trying to do harm to someone, or perhaps running around loose in the courtroom?

Did I mention the deputies are armed? To my understanding they have Tasers and pepper spray and firearms. If that’s not enough to bring an out-of-control minor under control, then our deputies need to be replaced.

The judge in question, who is loathe to go against the wishes of the deputies, in trying to counter my comment regarding the initial shackling of my client today, tried to explain that he is a “former minor” and was brought over from the jail this way.

Let’s look again at California state law, because in addition to being inimical to the goals and aims of the juvenile court, and unnecessary to prevent escape from a Fresno juvenile courtroom because escape is impossible, shackling minors or former minors based on policy, is illegal.

In re DeShaun M., 148 Cal. App. 4th 1384, 1387, 56 Cal. Rptr. 3d 627 (2007):

A court must not…have a general policy of shackling all defendants.

People v. Duran, 16 Cal. 3d 282, 293, 127 Cal. Rptr. 618 (1976):

[W]e cannot condone physical restraint of defendants simply because they are prisoners already incarcerated on other charges or convictions.

Duran, again, at page 292:

The court does not have “unlimited discretion to order shackling or other restraints.”

Duran, again, at page 293:

The court cannot adopt a general policy of imposing such restraints upon prison inmates charged with new offenses unless there is a showing of necessity on the record. The court’s summary denial of the motion to release defendant from his shackles was not based upon such a showing of record and implies a general policy of shackling all inmate defendants accused of violent crimes. We therefore conclude that it was an abuse of discretion to shackle defendant.

The judge will say that this is understood, that we are in agreement on this, and that this is why — after trailing the matter for an hour to allow the deputies to see if they could find some non-policy reason why my client was shackled — my client was ordered unshackled.

But as I’ve repeatedly tried to argue — to deaf ears — this procedure, which is meant to mollify the deputies by not immediately sustaining my objection to the shackles, is backwards.

In Tiffany A. v. Superior Court, 150 Cal. App. 4th 1344, 1363, 59 Cal. Rptr. 3d 363 (2007), the Court stated:

Let a writ of prohibition issue directing the respondent court to set aside its prior general policy concerning the use of physical restraints in the courtroom on all minors during juvenile delinquency proceedings; and to henceforth consider any request for the use of physical restrains [sic] upon minors in the courtroom during court proceedings on an individual case-by-case basis in accord with the views expressed herein. Petitioner is entitled to recover her costs in this writ proceeding. ^[6]Emphasis added.

In other words, we don’t shackle juvenile offenders and then task their attorneys to have them unshackled — something most attorneys in Fresno County won’t bother with anyway, because it takes up too much of their time, and they don’t understand the harm shackles do to their clients — we “consider any request for the use of physical restraints.” The court first considers whether restraints are appropriate in the courtroom, and, if the court believes they are, then we shackle them.

This view also finds support in the other cases cited above. A general policy allowing shackles is unacceptable. It doesn’t matter if your general policy is going to say “our policy is to allow shackles, and then if the defense successfully challenges the shackling, we will remove them.”

As the California Supreme Court said, there is no shackling unless there is a showing of necessity on the record. They didn’t say “shackle unless there is a showing of a lack of necessity.”

“But,” the judge said. “Your client is not a minor, anyway. He’s a former minor. He’s an adult. He was brought over from the jail in shackles.”

Tiffany A. v. Superior Court at page 1361 says it doesn’t matter if the individual “is 41 or 14.” And at page 1362, the Court states, citing the DeShaun case quoted earlier in my article, 

[A] juvenile has the same right to an individual determination of need for the use of shackles as enjoyed by an adult criminal defendant.

Or, to state the obverse, which is also true:

An adult criminal defendant has the same right to an individual determination of need for the use of shackles as enjoyed by a juvenile.

We’ve grown accustomed — we being judges, attorneys for both the prosecution and the defense, the public, and, of course, the perpetrators of this crime against humanity and humane-ness, bailiffs — to the idea that a person charged with a crime, or brought to a court, is to be treated like a potentially-dangerous animal. We have sacrificed their humanity and ours — by what the Supreme Court in Duran called “the affront to human dignity, [and] the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints” — by accepting without questioning the shackling of those brought before our courts. 

But nowhere have I had more of a problem with this than in Fresno. By way of contrast, when I recently appeared on a juvenile case in Madera for the first time and challenged the shackles, the judge took a brief recess to read the Tiffany A. case. Upon returning to the courtroom, he asked the prosecutor if he could explain why shackles are necessary. The prosecutor gave a conclusory response about that a crime had been committed, safety of the public, and noted that (contrary to the situation in Fresno!) the courtroom doors were unlocked.

After listening to the prosecutor, the judge simply order the bailiff to remove the shackles.

I guess there are some places where humanity, humaneness, dignity, common sense, and the law matter.