Shackling-Sample-Motion-Final-10-13-15

[ ] MOTION FOR JUVENILE TO APPEAR BEFORE THIS COURT FREE FROM UNLAWFUL RESTRAINTS In the Matter of: A Child Under the Age of Eighteen 18 Years... moves to permit him to appear before thi

UNLAWFUL RESTRAINTS]

[Thank you to Paul Cain (IL), Alec Karakatsanis (D.C.), Chris Provost (AK), and Jeremy Zacker(MD), as well as many others, for providing sample motions that were used in the production ofthis sample motion.]

[COURT NAME]

))))))

)

) Case No [ ]

MOTION FOR JUVENILE TO APPEAR BEFORE THIS COURT FREE FROM

UNLAWFUL RESTRAINTS

In the Matter of:

A Child Under the Age

of Eighteen (18) Years

Date of Birth:

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moves to permit him to appear before this Court free of restraints in all proceedings This motion

is supported by the following memorandum

INTRODUCTION

All detained juveniles appear in this Court wearing [name mechanical restraints used in your court] This is a blanket policy applied automatically to all detained juveniles brought

before the Court, regardless of actual safety or flight risk The degrading practice of bringing

children before the Court in chains is unlawful and must cease The use of restraint measures without an individualized showing of necessity is contrary to the purposes of the juvenile justice system The practice violates a juvenile’s right to due process and interferes with the right to counsel and the right to participate in the defense of the case, in violation of the Fourteenth

Amendment of the United States Constitution and the [State Constitution, article / and/or state statute] Additionally, the handcuffing and shackling of children can cause serious mental and emotional harm, and undermines the Court’s objectives in preventing delinquency and ensuring rehabilitation The use of restraints must be confined to the rare case in which the court makes anindividualized determination that shackles are necessary In this case, such a determination

would be unwarranted and [CLIENT] should appear without any form of restraints

STATEMENT OF FACTS

[CLIENT] is a [age] juvenile who has been in detention at [location] for nearly a year During

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[CLIENT] has been respectful, appropriate and has not posed a threat to himself or others in the courtroom Nor has he attempted to escape from a courtroom Although he is before the court for alleged crimes of violence towards others, it is the history of his good behavior in court over

many hearings in nearly a year that is most important to consider [Using this as a model,

describe why your client should be unshackled based on his or her personal history This can either be a lack of evidence that the child is CURRENTLY a risk of flight or a danger; or

affirmative evidence to the contrary While this specific example presumes some length of time already in the system, a standard form motion can also be developed for all first appearances, because the length of detention has no legal or developmental correlation to the harms caused by shackling.]

The Court’s Uniform Policy of Shackling All Detained Juveniles

[Begin by stating whether there is an actual policy of shackling juveniles by relevant agencies If

so, provide it If not, say so You may want to ask well in advance of court security personnel if there is such a written policy, and whether you can have a copy.] The uniform practice of the courts and the policy of the [Department of Juvenile Justice] requires that all detained juveniles appear before the court in handcuffs and shackles The Court makes no individualized

determination as to whether mechanical restraints are necessary In compliance with this

practice, juveniles are brought to court bound hand, waist, and often foot Handcuffs are used to

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belt loop or chain no more than a few inches long The juvenile’s feet are usually both cuffed and chained together, often forcing the juvenile to shuffle through the courtroom [This practice exists in juvenile court, despite that fact that no similar equivalent exists in criminal court within

this jurisdiction.] [Here, describe in specific detail the devices used in the courtroom, making the

description as visually poignant as possible Include a comparison to how adults appear in court (in terms of restraint use), if such a comparison is favorable.]

ARGUMENT

JUVENILES VIOLATES THE CONSTITUTIONAL RIGHT TO A FAIR HEARING AND THE ASSISTANCE OF COUNSEL.

The United States Constitution preserves the ancient right under the common law to “be brought

to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an

escape.” 4 W Blackstone, Commentaries on the Laws of England 317 (1769); see Deck v

Missouri, 544 U.S 622 (2005) (shackling in penalty phase of capital trial violates due process)

The right to appear before the court unfettered protects a number of underlying principles

including the presumption of innocence, the right to secure a meaningful defense, the right to communicate with counsel without interference, the right to participate in one’s own defense andthe need to maintain “[t]he courtroom’s formal dignity, which includes the respectful treatment

of defendants….” Deck, 544 U.S 630-31; e.g.,U.S Const amends V, VI, XIV; [Cite to State

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A Visible Restraints Threaten the Fairness of the Decision-making Process and the

Presumption of Innocence.

The blanket use of shackles communicates to the court – whether overly or subtly – that

the state has not only alleged the juvenile committed a crime, but also that that child is currently

violent and dangerous When there is no articulable reason to presume a child is dangerous or a risk of flight, the imagery of shackles does nothing to further justice

The appearance of a person in shackles undermines the fairness of the decision-making process and endangers the fundamental principle that an accused is innocent until proven guilty

Deck, 544 U.S at 630 (“Visible shackling undermines the presumption of innocence and the

related fairness of the factfinding process.”) Because visible restraints can have conscious and subconscious effects on the viewer, the use of shackles on a criminal defendant is “inherently

prejudicial.” Deck, 544 U.S at 632-33 (quoting Holbrook v Flynn, 475 U.S 560, 568-69

(1986)); see also Deck, 544 U.S at 628 (“[M]aking a defendant appear in prison garb poses such

a threat to the fairness of the factfinding process that it must be justified by an essential state policy.”)

As the Illinois Supreme Court explained, ensuring the presumption of innocence has greatvalue in itself: “The presumption of innocence is central to our administration of criminal

justice…It jeopardizes the presumption’s value and protection and demeans our justice for an accused without clear cause to be required to stand in a courtroom in manacles or other restraints

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425 U.S 501, 503, 505 (1976)) An Illinois Supreme Court Justice further explored this concern:

[U]nnecessary shackling threatens the dignity of the court…As a court loses its dignity,

it loses credibility with the public…; and I further would argue that it loses credibilitywith the respondent—to the possible detriment of his defense To do his best at trial, thedefendant must have confidence that he is making his case to a rational and impartial trier

of fact who genuinely presumes he is innocent until the State proves him to be guiltybeyond a reasonable doubt Unnecessary and unjustified shackling weakens thatconfidence; it jeopardizes the presumption’s value and protection…The presumption ofinnocence is a noble ideal, but this ideal will inspire little hope if hard iron reminds thedefendant, every moment of the trial, how things really are between him and the court—for, plainly, he is not stand[ing] trial with the appearance, dignity, and self-respect of afree and innocent man In addition to defending himself against the State’s evidence, adefendant should not have to struggle with a sense of futility, a disheartening suspicionthat he is presumed guilty Anyone who can sit in chains with no diminution of courage

and confidence has a thicker hide than the common run of humanity State v Doe, 333

P.3d 858, 868-69 (Id Ct App 2014) (internal quotations and citations omitted)

The same concerns apply in juvenile proceedings Serious decisions are made at each

court appearance throughout the life of a juvenile case These decisions include an initial finding concerning probable cause; a determination concerning whether the child must be detained

pending trial; a verdict on whether the child committed the offenses alleged in the petition; and a dispositional decision concerning what consequences a finding of involvement will have on the child’s liberty, often resulting in direct and collateral consequences that last into adulthood Each

of these determinations involves the judge—in consultation with lawyers, probation officers, andwitnesses—making findings concerning facts that might warrant commitment, the child’s level

of guilt on factual allegations, the child’s acceptance of accountability, the child’s potential

dangerousness, and, indeed, the very nature of the child’s character

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innocence, and dangerousness are often, as in Deck, “unquantifiable and elusive.” 544 U.S at

633 As a result, courts must be particularly sensitive to practices that consciously or

subconsciously affect what the Supreme Court called the “perception of the character” of a

respondent Id Chaining children with metal cuffs and leg irons in detention hearings, trials, and

disposition hearings poses an “unacceptable risk of impermissible factors” influencing those

determinations Estelle, 425 U.S at 504-05; see also Holbrook, 475 U.S at 568-69; Deck, 544

U.S at 633 (“[T]hrough control of a defendant’s appearance, the State can exert a powerful

influence on the outcome of the trial”) (quoting Riggins v Nevada, 504 U.S 127, 142 (1992)

(Kennedy, J., concurring).1

Indeed, an Idaho appeals court has noted that routine juvenile shackling is incompatible

“with the distinct characteristics of the juvenile justice system On one hand, our Supreme Court has held that juveniles are not entitled to a jury trial because they are not considered as being

‘tried’ for a criminal offense, but yet, under our current practice, juveniles have lesser protections

than adult criminal defendants in regard to the use of shackles merely on the basis that a jury is not present.” State v Doe, 333 P.3d 858, 870 (Id Ct App 2014) This is counterproductive and

contrary to the interests of justice in a juvenile court based on rehabilitating youth “The use of shackles in a courtroom absent a case-by-case, individual showing of need creates the very tone

1 Although Deck and its predecessors described the subtle effects that visible restraints “almost inevitably” have

on feelings about a defendant’s character in the context of decisions about guilt and punishment, the same

intuitions and attitudes are perhaps even more relevant to pretrial determinations that require a lower evidentiary burden (as in a probable cause hearing) or that require an explicit finding about dangerousness (as in a detention

hearing) See D.C Code § 16-2310, § 16-2312.

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Angeles County, 150 Cal App 4th 1344, 1362 (2007) “It is only in extreme and exceptional

cases, where the safe custody of the prisoner and the peace of the tribunal imperatively demand,

that restraints should be used.” State v Wright, 283 P.3d 795, 804 (Id Ct App 2012) (emphasis added) (citing Deck, 544 U.S at 626–27).

1 Science Demonstrates that Subconscious Bias and “Priming” Affect Beliefs, Behavior, and Judgments

The Supreme Court’s concerns about the prejudicial effects of visible shackling are

confirmed by prevailing understandings of human psychology and an overwhelming new body ofsocial science and psychological research Indeed, the growing body of research on unconscious (implicit) bias begins to quantify what has long been “common human experience”—that our attitudes and judgments about people are based, at least in part, on factors outside our conscious

control Estelle, 425 U.S at 504 The Supreme Court has urged that courts “do the best they can

to evaluate the likely effects of a particular procedure, based on reason, principle, and common

human experience.” Id The Supreme Court has thus recognized that it is virtually impossible to

estimate with any precision the prejudicial effects, both conscious and unconscious, of viewing a

criminal defendant subjected to any particular practice See id The danger is amplified by the

“continuing influence” that such an “identifiable” condition exerts throughout the many times an

observer views an accused in shackles over the course of a court proceeding Estelle,425 U.S at

504-05

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feelings of like and dislike, apportionments of cause and blame, stereotypes, and fear.2 Most

importantly, we now know that these subconscious biases actually influence our beliefs,

judgments, and behavior “Priming” research captures the “common human experience” that

2 Kristin A Lane, Jerry Kang, & Mahzarin Banaji, Implicit Social Cognition and Law, 3 ANN REV L & SOC SCI No 427 (2007); Anthony G Greenwald & Linda Hamilton Kreiger, Implicit Bias: Scientific Foundations, 94 CAL L REV 945, 956-57 (2006)) (See, e.g., Anthony G Greenwald & Mahzarin Banaji, Implicit Social

Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 PSYCH REV 4 (1995); Andreas Olson et al., The Role of Social Groups in the Persistence of Learned Fear, 309 SCIENCE 785 (2006); Elizabeth A Phelps et al.,

Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J COGNITIVE

NEUROSCIENCE 729 (2000)) Indeed, the available research suggests that subconscious cognition can actually be

a more significant predictor of behavior in some circumstances than explicit attitudes A metaanalysis of 122

studies on behavior and implicit cognition, involving nearly 15,000 people, found that subconscious attitudes can

be more robust predictors of real-world behavior than a person’s explicit statements about her beliefs (Greenwald,

A G., Poehlman, T A., Uhlmann, E., & Banaji, M R (2009) Understanding and Using the Implicit Association

Test: III Meta-analysis of Predictive Validity, J PERS & SOC PSYCH., 97, 17-41 (2009); see also id (Appendix)

(documenting the influence of subconscious bias in a variety of areas, including employment decisions, voting

behavior, particular policy preferences, choosing of partners, friendliness, and funding decisions for organizations that had applied for money)) In a wide variety of decisionmaking contexts, people’s measured unconscious bias

was shown to influence and predict their actual beliefs and behavior, even when the decisions they made were more

deliberative and made over a longer period of time See also, e.g., Jennifer L Eberhardt et aI., Looking

Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17

PSYCHOL SCI 383 (2006) (finding that faces rated independently as more stereotypically black are far more

likely to receive the death penalty, even when controlling for all other factors); Justin D Levinson, et al., Guilty By

Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 OHIO ST J CRIM L 187 (2010) (finding

that subconscious bias affects juror decisions about guilt and innocence); Alexander R Green et al., Implicit Bias

Among Physicians and its Prediction of Thrombolysis Decisions for Black and White Patients, 22 J GEN

INTERNAL MEDICINE, 1231 (2007) (finding that doctors' choice of prescriptions was linked to subconscious attitudes and was completely uncorrelated with the doctor's own stated conscious judgments); Jennifer L

Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J PERSONALITY & SOC PSYCHOL 876

(2004) (documenting subconscious bias in police officers when primed with certain images); Allen R McConnell

& Jill M Leibold, Relations among the Implicit Association Test, Discriminatory Behavior, and Explicit Measures

of Racial Attitudes, 37 J EXPERIMENTAL SOC PSYCHOL 435 (2001) (finding that people behave differently

in interviews based on their scores on subconscious bias tests); Arnd Florack et aI., The Impact of Perceived

Threat on the Use of Automatic Associations in Person Judgments, 32 ZEITSCHRIFf FUER

SOZIALPSYCHOLOGIE 249 (2001); Bertram Gawronski, Implicit Bias in Impression Formation: Associations

Influence the Construal of Individuating Information, 33 EUR J Soc PSYCH 573 (2003) (Those with higher

implicit bias against a minority group were more likely to find a suspect belonging to that minority guilty of a

crime when asked to evaluate a set of facts.); Shankar Vedantam, See No Bias, WASHINGTON POST, Jan 23,

2005 (Magazine) (describing unpublished study of Professor Robert W Livingston in which Milwaukee residents

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cues can also change levels of implicit bias temporarily.4

The appearance of children in chains throughout their court appearances creates a strikingvisual “prime” for the decision-maker Given the new evidence of how subconscious cognition predicts attitudes, beliefs, and behavior, and the evidence of the role of visual cues in activating subconscious biases, there is significant reason to be concerned that indiscriminate shackling of children in Superior Court could affect ultimate decisions about those children, including

assessments of their character, dangerousness, and culpability

2 Factfinders Are Not Immune to Subconscious Bias and “Priming”

All factfinders, even judges, are human Thus, concerns about the subtle effects of

with higher relevant implicit bias scores advocated a higher sentence for a hypothetical Mexican defendant as

compared to a white non-Hispanic defendant on the same set of facts).

3 See, e.g., Lemm, K M., Dabady, M., & Banaji, M R (2005) Gender Picture Priming: It Works with Denotative

and Connotative Primes SOCIAL COGNITION, 23, 218-241 (finding that priming people with gender-related

words or images affects subsequent behavior relating to gender-related judgments); Justin D Levinson, Race,

Death, and the Complicitous Mind, 58 DEPAUL L REV 599, 609 (2009) (Priming people with concepts associated

with the elderly

caused people subconsciously to walk more slowly afterward.) Many studies have shown that people behave

differently when primed with images of whites than they do when primed with images of blacks See e.g., Gregory

M Walton & Geoffrey L Cohen, Stereotype Lift, 39 J EXPERIMENTAL SOc PSYCHOL 456 (2003)

(demonstrating effects of priming on performance on a standardized test); Margaret Shih et al., Stereotype

Susceptibility: Identity Salience and Shifts in Quantitative Performance, 10 PSYCHOL SCI 80 (1999) (same, for

Asian females).

A growing body of legal scholarship is beginning to apply some of this research See, e.g., Barbara

O'Brien & Daphna Oyserman, It’s Not Just What You Think, But Also How You Think About It: The Effect of

Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 MARQ L REV 149, 151 (2008);

Justin D Levinson, Suppressing the Expression of Community Values in Juries: How “Legal Priming”

Systematically Alters the Way People Think, 73 U ON L REV 1059 (2005) (describing the “priming” effect of the

entire jury process on the minds of jurors).

4 In one study, for example, those primed with positive black faces and stories later reduced their implicit bias

against blacks by over 50% See Nilanjana Dasgupta & Anthony G Greenwald, On the Malleability of Automatic

Attitudes: Combating Automatic Prejudice with Images of Admired and Disliked Individuals, 81 J PERSONALITY

& SOC PSYCH 800 (2001) The converse is also true: shackling children in court, many of whom are children of color, can constitute negative “priming” of minorities in court

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judge rather than a jury Estes v Texas, 381 U.S 532, 548 (1965) (“Judges are human beings also and are subject to the same psychological reactions as laymen.”); Cox v Louisiana, 379 U.S 559,

565 (1965) (noting that because “judges are human,” they may be subject to being “consciously

or unconsciously influenced” by irrelevant factors) As New York’s highest court has noted,

“judges are human, and the sight of a defendant in restraints may unconsciously influence even a

judicial factfinder.” People v Best, 979 N.E.2d 1187, 1189 (2012) Although the “inherent

prejudice” identified by the Supreme Court may be less for a juvenile given that his or her

factfinder is a judge and not a jury, the available scientific evidence suggests that it is not

absent.5

5 Indeed, in the first large-scale study of the direct effects of subconscious bias on juvenile court judges, the

researchers found that 87.1 % of Caucasian judges exhibited a pro-white subconscious bias and that this bias had

an effect on the decisions of those judges in juvenile cases (Jeffrey J Rachlinski et al., Does Unconscious Bias Affect Trial Judges? 84 NOTRE DAME L REV 1195, 1210 (2009) The study did not find, independent of

subconscious bias, significant effects of racial priming on the judgments of judges in their sample This finding contrasts with other research, which has found troubling effects of priming on police and parole officers, who,

when primed with racial images, "deemed the juveniles more culpable, more likely to recidivate, and more

deserving of a harsh punishment." Graham & Lowery, supra at 21; Bridges & Steen, supra at 21 The researchers

found that“[j]udges with strong white preferences on the [subconscious bias test] made somewhat harsher

judgments of the juvenile defendants after being exposed to the black subliminal prime, and judges with strong black preferences were somewhat more lenient after exposure to the black subliminal prime In effect, the

subliminal processes triggered unconscious bias, and in just the way that might be expected.” Although most

implicit bias studies primarily focus on racial bias, the findings can be analogized to all forms of prejudice or bias, including the biased perception of viewing those shackled as dangerous and/or guilty It is also worth noting, for example, that the United States Sentencing Commission has consistently found systemic disparities in the

sentencing decisions of federal judges consistent with prevalent subconscious biases Prior to promulgating the federal Sentencing Guidelines, the Sentencing Commission compared the very similar crimes of theft and fraud, and according to then-Judge Breyer: "The Commission found in its data significant discrepancies between pre- Guideline punishment of certain white-collar (typically associated with wealthier defendants) crimes, such as

fraud, and other similar common law crimes, such as theft." Stephen Breyer, The Federal Sentencing Guidelines

and the Key Compromises Upon Which They Rest, 17 HOFSTRA L REV 1,20 (1988) Breyer also noted: “The

Commission's statistics indicated that where white-collar fraud was involved, courts granted probation to

offenders more frequently than in situations involving analogous common law crimes; furthermore, prison terms

were less severe for white-collar criminals who did not receive probation.” Id.

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sources of priming and prejudice and taking simple steps to minimize them Unchaining children when decisions are made about their characters, guilt, and dangerousness, and when credibility determinations are made about their testimony, is a simple but important way to apply the wealth

of knowledge about human decision-making uncovered by researchers in recent years toward creating more fair courtroom proceedings in Superior Court

3 Due Process Requires a Dignified Process.

Leading researchers have identified five critical aspects of procedural justice that impact

individuals who come into contact with the justice system First, voice, the perception that their side of the story has been heard Second, respect, the perception that system actors have treated them with dignity and respect Third, neutrality, the perception that the decision-making process

is unbiased and trustworthy Fourthly, subjective understanding, individual comprehension of the process and how decisions are made And fifth, helpfulness, the perception that justice system

After the federal Guidelines were ruled merely advisory in 2004, the Sentencing Commission's data has once again shown unexplained statistical disparities in criminal sentencing by federal judges For example, after

2004, sentences for black defendants are almost 5% higher when controlling for other potential variables UNITED STATES SENTENCING COMMISSION, FINAL REPORT ON THE IMPACT OF UNITED STATES V BOOKER

ON FEDERAL SENTENCING 106 (2006), available at http://www.ussc.gov/bookecreport/bookecreport.pdf

Defendants of "other" races (usually Native Americans) received sentences 11% higher than whites Male

offenders were given sentences about 16% higher than females Most startling, non-U.S citizens received

sentences almost 36% higher than Americans after controlling for other potential variables See also, e.g., Traci Schlesinger, Racial and Ethnic Disparity in Pretrial Criminal Processing, 22 JUSTICE QUARTERLY 170, 185-86

(2005) (finding that, when controlling for other variables, blacks and Latinos receive less beneficial pretrial

detention decisions from judges).

Blackness, whiteness, gender, and national origin, therefore, appear to explain each of these differences Assuming judges are not intentionally raising or lowering sentences based on these immutable variables, these results suggest that judges are not immune to subconscious bias.

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widespread recognition, from the United States Supreme Court and other jurisdictions, that it is ajudge’s duty to “maintain a judicial process that is a dignified process” and which “includes the

respectful treatment of defendants.” Deck, 544 U.S at 631 This consideration and its

applicability to shackling “applies with, at the very least, equal force to juveniles.” State v Doe,

333 P.3d at 868

B MECHANICAL RESTRAINTS IMPEDE DUE PROCESS BY HAMPERING A

CHILD’S ABILITY TO PARTICIPATE EFFECTIVELY—OR AT ALL—IN

interactions when they do occur Dr Robert Bidwell, a physician board certified in pediatric and adolescent medicine with significant experience providing health care to youth in juvenile

detention and correctional facilities, has written that “[e]xtreme stress impairs cognition This distress, together with the alien physical experience of shackling itself, may compromise the

ability of a young person to focus on the issues at hand in a court proceeding, as well as impair

6 See Tom R Tyler, Why People Obey the Law (New Haven, CT: Yale University Press, 1990); see also M.S

Frazer, The Impact of the Community Court Model on Defendant Perceptions of Fairness: A Case Study at the Red

Hook Community Justice Center (New York: Center for Court Innovation, 2006).

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her own defense.” [Juvenile Shackling Affidavit of Dr Robert Bidwell-General, February 12, 2015] The effects of stress on cognition are well-established.7 Restraint use, therefore, puts youth

at a disadvantage in assisting in their own defense (“Shackling Children in Court: Implications for Adolescent Development,” American Orthopsychiatric Association, Adopted January 27,

2015) The negative effects on a child’s already limited developmental capacity may also infringe

on the child’s ability to understand and participate in the confrontation of witnesses Cf Gault,

387 U.S 1, 56 (1967) Studies demonstrate, however, that youth who are provided with a stress experience are better able to engage deliberatively with counsel and take full advantage of their due process rights.8

lower-In addition, shackling can affect the child’s decision whether to testify See Aff of

Dr Joette James For example, because of the limited cognitive capacity of a child and the

tendency of children to focus on immediate needs and concerns to the exclusion of long-term consequences, a critical decision such as whether to testify may be dominated, not by mature considerations of legal strategy, but rather by fears of walking to the witness stand in front of people while shackled, raising shackled hands to take an oath, and sitting shackled in front of the

whole courtroom while testifying up on the witness stand See Aff of Dr Joette James, at 2;

Deck, 544 U.S at 631 (“[Shackles] can interfere with a defendant’s ability to participate in his

7 Policy Statement of American Orthopsychiatric Association, citing Lupien, S J., Maheu, F., Fiocco, A., &

Schramek, T E (2007) The effects of stress and stress hormones on human cognition Implications for the field of

brain and cognition Brain and Cognition, 65, 209-237.

8 Laurence Steinberg et al., Are Adolescents Less Mature than Adults? Minors’ Access to Abortion, the Juvenile

Death Penalty, and the Alleged APA “Flip-Flop’, 64 Am Psychol.583 (2009).

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Similarly, the prospect of spending hours and days in chains in front of strangers may influence

the child’s decision concerning whether even to exercise his or her fundamental right to trial See

Aff of Dr Joette James, at 2 Shackling thus calls into question whether a child has truly made a

knowing, intelligent, and voluntary waiver of her fundamental rights See Johnson v Zerbst, 304

U.S 458 (1938)

An accused person’s right to appear free from chains extends beyond jury trials The

presumption of innocence, the accused’s need to confer with counsel and think clearly, and the premium on maintaining the dignity of the defendant and the proceedings, all require protection

even in pretrial proceedings In People v Fierro, 821 P.2d 1302 (Cal 1992), the court held that it

was error to shackle a defendant at a preliminary hearing absent a showing of evident necessity

[The] rule of “evident necessity” serves not merely to insulate the jury from prejudice, but to maintain the composure and dignity of the individual accused, and to preserve

respect for the judicial system as a whole; these are paramount values to be preserved irrespective of whether a jury is present during the proceeding Moreover, the unjustified use of restraints could, in a real sense, impair the ability of the defendant to communicate effectively with counsel or influence witnesses at the preliminary hearing Accordingly,

we hold that, as at trial, shackling should not be employed at a preliminary hearing absentsome showing of necessity for their use

The same principles require that juveniles be permitted to appear unshackled before this court

1 Restraints impede a juvenile’s ability to communicate effectively with courtroom

stakeholders, thus violating due process.

The need for juveniles to confer with their attorneys and parents exists at every stage of the proceedings before the court Additionally, the juvenile who is distracted or embarrassed by

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evidentiary hearing, at an adjudication hearing, or at disposition.

One of the greatest harms posed by indiscriminate juvenile shackling is that it underminesthe constitutional right to the effective assistance of counsel “Shackles can interfere with the

accused’s ability to communicate with his lawyer.” Deck, 544 U.S at 631 Physical restraints

impact the ability of a defendant of any age to participate fully in his defense in numerous ways Shackles—even if solely handcuffs— prevent a child from having a full range of movement and hinder a child’s ability to engage in appropriate physical contact with counsel, to share

information, or to ask or answer questions in an efficient, quiet, speedy way This can be of

particular importance given the ever-changing nature of complicated trials and the potential

necessity for quick, unfettered communication between attorney and client concerning

contemporaneous witness testimony, manner of questioning, or evidentiary objections This is especially true in juvenile cases where counsel must compensate for a child’s lack of

sophisticated understanding of what is going on, underdeveloped maturity, and overall greater

vulnerability Cf Roper v Simmons, 543 U.S 551, 569 (2005) (holding that children lack

“maturity,” are more “vulnerable,” and that their characters are “not as well formed” as that of

adults); Graham v Florida, 560 U.S 48, 68 (2010) (same) As a result, attorney -child

communication requires greater care, understanding, and accommodation by the court in order toconvey legal or factual points than would typically be needed with an adult client

Specifically, shackles impede the ability of young people to rely on their own cognitive

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explains:

Restraint impedes the use of gestures that speakers use for a variety of meaning andorganizational purposes Deictic gestures (such as pointing) allow a speaker to speak lessambiguously and be more comprehensible to the listener Beat gestures (such as the

“meaningless” movement of hands) assist the speaker and listener in keeping track ofsentence structure Essentially, restraint removes the speaker’s abilities to use embodiedcognitive processes in which motion or space act as a memory aid or trigger Theseprocesses support language production in general speech by supporting memory for whathas recently been said and what needs still to be said This allows speech to flow clearly.Without gesture, as is the case in restraint, spoken responses are less complete andcomprehensible Under these conditions, spoken responses will appear to be less truthfulthan is the speaker’s intent In addition, spoken responses may appear to be morecombative than is the speaker’s intent [Shackling Aff of Gwyneth Campell Rost, P.h.D

at 7a.]

The implications are clear Restrained children will be less able to communicate with

courtroom stakeholders including their attorney and the judge They will be less able to explain themselves Perhaps most damaging of all, they will appear more guilty than their unrestrained counterparts

Mechanical restraints also hinder children from taking notes and otherwise collecting and memorializing their ideas for more thoughtful participation in the defense, even apart from the heat-of-the-moment communication that attorney and client must share It is thus both

unconstitutional and counterproductive to burden and hinder the attorney-client relationship

without an individualized determination that such interference is necessary See, e.g., In re

R.W.S., 728 N.W 2d 326, 330 (2007) (“[T]he right to remain unshackled is based on

considerations including inhibition of free consultation with counsel ”); In re Staley, 364

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As Dr Rost points out, shackles have a deleterious effect on memory:

Physical restraint of any type impedes comprehension and memory for what has beenheard, both by drawing attention from what is being said and by changing the overtperception of what is being said Youth who are restrained have attention drawn torestraint, and away from linguistic interactions Therefore, when language is difficult,they will often fail to process what they are told or asked Restraining youth in academicsituations leads to poorer learning outcomes: the same student will learn a lesson betterwhen unrestrained than when restrained To extend this to the court, one would expectthat a youth who is restrained during proceedings will understand the proceedings less,remember the proceedings more poorly, and follow the instructions given to him/her less

accurately than the same youth would if he/she were not restrained [Rost Aff., supra, at

7b.]

Beyond the disadvantages of restraints on the ability of young people to benefit from theirown hearings as delineated above, the clear implications of Dr Rost’s affidavit are that we are likely to see worse outcomes for restrained youth than their unrestrained counterparts Given Dr.Rost’s statement that youth will be less likely to accurately follow instructions, we can infer that

to include instructions from the court, for example, likely seeing reduced compliance with

conditions of probation

Because distraction affects every moment of a child’s appearance in court, it is impossible

to quantify the ways in which the degrading experience alters the child’s participation in and

perception of his or her case See generally, Aff of Dr Marty Beyer; Aff.of Dr Joette James

Thus, to the extent shackling interferes with the child’s competent participation, it threatens the

core fundamental rights that define American legal proceedings See Cooper v Oklahoma, 517

U.S 348, 354 (1996) (“Competence to stand trial is rudimentary, for upon it depends the main

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counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to

testify on one’s own behalf or to remain silent without penalty for doing so.”) (quoting Riggins v.

Nevada, 504 U.S 127, 139-140 (1992) (Kennedy, J., concurring)) Dr Eugene Griffin argues that

it may be difficult—if not impossible—to tell whether a child’s restraints have altered or

hampered a given child’s ability to participate in proceedings As he notes, “In fact, shackling can trigger classic traumatic responses, such as fighting, fleeing, or freezing Violence and escapeattempts are self-evident The freezing behavior (dissociation) is more passive and therefore

harder to distinguish People may believe that the young person is doing fine, but the youth in fact is unable to talk, listen, or communicate.” (Testimony of Eugene Griffin, J.D.P.h.D., In

Support of S.B 269, An Act Relating to the Use of Restraints on Children in Courts, Missouri Legislature, April 14, 2015)

These concerns are exacerbated by certain circumstances common in juvenile court

Many children who appear in Court have mental health problems Others have themselves been the victims of child abuse Shackling can intersect with these histories to create even more

significant barriers to a free and meaningful understanding of and cooperation in the legal

defense See Aff of Dr Marty Beyer, at 4-5; Aff of Dr Joette James, at 4 Pain and discomfort

can have severe consequences to the child’s sense of self and on his or her feelings toward the court proceedings and the juvenile system more generally, particularly for children with

emotional disorders, cognitive deficiencies, or memories of abuse that can be triggered by

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setting in the courtroom They are thrust into a confusing environment of legal jargon that

surrounds discussion about the most intimate details of their lives It can be a time of great

anxiety and emotional insecurity See id at 6 With respect to children, the danger of intimidation

and confusion affecting participation and influencing a child’s decision-making on important

issues suggests that courtroom shackling is particularly “repugnant.” See In re Amendments to

the Fla Rules of Juvenile Procedure, 26 So 3d 552, 556 (Fla 2009).

2 Shackling a Child in the Courtroom Can Create Physical and Psychological Harm.

Restraining children in courtroom proceedings is prejudicial, dehumanizing,

uncomfortable, and obstructive Restraints affect the mind and body of the shackled individual, are uncomfortable, embarrassing, and distracting As an initial matter, physical pain and

discomfort to a child are tangible harms to be avoided in their own right As the Supreme Court

explained in Deck: “[S]hackles impose physical burdens, pains, and restraints, tend to confuse

and embarrass defendants’ mental faculties, and thereby tend materially to abridge and

prejudicially affect his constitutional rights.” 544 U.S at 635 (quoting People v Harrington, 42 Cal 165, 168 (1871)) (quotations and alterations omitted); see also Duckett v Godinez, 67 F.3d

734, 748 (9th Cir 1995) (Shackles “confuse and embarrass the defendant, thereby impairing his

mental faculties; and they may cause him pain.”) (citing Spain v Rushen, 883 F.2d 712, 720-21 (9th Cir 1989) (collecting cases from other circuits); see also Zygadlo v Wainwright, 720 F.2d

1221, 1223 (11th Cir 1983) (noting, among other problems, the tendency of physical restraints to

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