The Florida Bar
The Florida Bar News
October 1, 2006
Bar panel urges: Unchain the children
Committee takes issue with ‘indiscriminate shackling’ of juveniles
By Jan Pudlow
When children are charged with crimes, they are supposed to be treated more gently in juvenile court where the goal is to help, not hammer, them.
But it has been the practice in Miami-Dade County, and some other jurisdictions in Florida, to treat kids more harshly than adults charged with serious crimes. Never mind that they are charged with misdemeanors or are only accused and not yet convicted. All children have been handcuffed and shackled at their ankles with 16-inch chains, forcing them to shuffle into the courtroom.
Carlos Martinez, chief assistant public defender for Miami-Dade’s 11th Circuit, brought that emotion-charged issue to The Florida Bar’s Legal Needs of Children Committee at the General Meeting in Tampa September 14.
After a spirited debate, including showing pictures of Miami children in chains, the committee voted 15-0 (with three abstentions) that both the committee and entire Florida Bar should take a position opposing the indiscriminate use of chains and shackles in juvenile courtrooms throughout Florida.
A second motion passed 13-0 (with five abstentions) to encourage the adoption of a ban on the indiscriminate use of chains and shackles in juvenile courtrooms through court rule, legislation, and executive branch policy.
“This is better than I was hoping for. This is excellent,” Martinez, vice chair of the committee, said after the meeting.
“Number 1, it provides more visibility for the issue so that other members of The Florida Bar will actually know the disgusting nature of what’s happening in our juvenile courts. Through this process of getting the Bar to look at it and to approve it, hopefully, it will shed light on it, and hopefully changes will happen even before The Florida Bar takes its formal position.”
Shackling children first shocked Martinez’ consciousness when he was visiting a Tallahassee courtroom and watched an 11-year-old girl, only 3-foot-7-inches tall, led to juvenile court wearing a belly chain connected to both handcuffs and leg irons — usually reserved for adults who are flight risks or charged with first-degree murder. He later learned it is a statewide practice in Florida to shackle children detained by the Department of Juvenile Justice when they are transported to court, and the chains often remain as they stand before judges across the state, regardless of the child’s age, height, weight, gender, offense, risk of flight, or threat to public safety.
After administrative efforts failed to end the shackling in Miami-Dade, 11th Circuit Public Defender Bennett Brummer’s office filed motions in individual cases September 11 to unchain the children, arguing shackling them makes a mockery of the presumption of innocence doctrine, violates children’s right to due process, and interferes with their ability to take notes and participate in their defense, as well as violates international law. The motion was bolstered by affidavits from University of Miami law professors Bruce Winick and Bernard Perlmutter, a committee member, and Marty Beyer, a clinical psychologist and national consultant on juvenile justice issues — all detailing harmful humiliation to children when they are shackled in court.
Martinez reported that the test cases that day in Miami could not have been better to illustrate his point that every child appearing before a juvenile judge does not deserve to be “chained like an animal.”
One 13-year-old boy named Omar, 5-foot-3-inches and 100 pounds, was charged with loitering and prowling for hiding in bushes near the Venetian Causeway. The prosecutor dropped the charges after the boy spent a night in lockup.
Also in court that day was 16-year-old Chanel, with no prior arrests, charged with domestic violence for getting into a fight with her mother. Before long at the hearing, an aunt piped up that it was actually the girl’s mother who was the aggressor, hitting and biting the girl.
In those first test cases, Miami-Dade Circuit Judge William Johnson said he did not agree with DJJ’s policy and agreed to allow most juveniles to appear before him without handcuffs or shackles. A second set of motions filed the following day for children appearing before the other three Miami-Dade juvenile court judges were not granted, but the children were not shackled, Martinez said.
“We will see how that goes. In one courtroom, the judge continued the hearing to see what DJJ argues,” Martinez said, adding that several other counties in Florida are preparing for similar legal challenges, and he has also heard from California, Pennsylvania, and North Dakota, as well as Amnesty International.
“These children are presumed innocent, yet the message we are sending is they are dangerous animals, herded in chains,” Martinez told the committee.
“A lot of kids in juvenile courts have issues involving mental illness, retardation, and disabilities. This is just heaping it on when those kids show up in court, again, without individualized determination. We need to end the humiliation and restore the courtroom’s dignity. Restraints should only be used in exceptional cases.”
DJJ General Counsel Jennifer Parker, a committee member, said her response in the Miami-Dade cases is due September 26, after this News went to press.
Because it is pending litigation, Parker said she was constrained in what she could say at the Bar meeting and abstained from voting.
“Everyone thinks we don’t care about the security of the child. For us, it is an incredibly serious issue,” Parker said.
While many adult first-appearance hearings are held at the jail or via video-conferencing from the jail, by law juveniles must be brought to the courtroom, she said.
“We don’t have the resources to supervise one-on-one, one supervisor for one child,” Parker said, adding that DJJ will be exploring the role of bailiffs to help maintain security in juvenile courtrooms.
The lone prosecutor on the committee, Jay Plotkin, an assistant state attorney in the Fourth Judicial Circuit in Jacksonville, also abstained from voting, and said he first heard of the shackling issue when he read a newspaper article about Martinez’ efforts.
“I am a distinct minority in this room. I applaud Carlos and know his interests are genuine for children and he makes some good points,” Plotkin said. “I did poll my attorneys who said, ‘I would feel unsafe in my courtroom if they were not shackled or restrained.’
“If this committee votes on a recommendation, I have a general comment. The Florida Bar is generally viewed as a very liberal organization, and this committee is viewed as a liberal wing of The Florida Bar. I am using exaggerated language. But we have to be careful how to accomplish this thing.”
Plotkin specifically cautioned about language in the motion, supported by Beyer’s affidavit, that children of color may associate shackling with racism.
“The overrepresentation of minorities in the system may be the most serious problem in the juvenile justice system,” Plotkin said. “I don’t believe DJJ is herding kids in there to look like cattle and a bunch of slaves.”
Pointing out there is a “punishment angle to what we are doing,” Plotkin said, “there is something to be said for kids to see what is going on with kids committing more serious charges.” Seeing other children in shackles could have a deterrent effect, he said.
Whether to shackle juveniles is not the state attorney’s call, he said, but should be left up to judges in how to maintain order in their courtrooms. While agreeing indiscriminate shackling may not be the best policy, Plotkin said, “I think you start from the perspective of security and then go back and say, ‘This kid doesn’t need the restraints DJJ says.’”
But Derrick Roberts, of Childnet in Ft. Lauderdale, said the policy should be the other way around, countering the least restrictive measures, just as in treatment options, should be used with juveniles.
“It’s disheartening when you hear them coming. It sounds like a chain gang. At the least, it should be a case-by-case determination, because that is constitutional,” Roberts said.
After the meeting, the committee’s chair, Gerard Glynn, a professor at the Barry University School of Law Children and Family Clinic, said in Orlando children and adults are treated the same: Both are shackled for court hearings. He will work with Ninth Circuit public defenders on challenging that policy for juvenile defendants.
“The point is: children are different. Our whole purpose of this court process is different. Whether the term ‘therapeutic jurisprudence’ is popular or not popular, juvenile court has always been a therapeutic court. That’s why we separated it in the early 1900s. It’s still a therapeutic vision that we are about rehabilitating children,” Glynn said.
“So we should look and say, ‘What part of our processes is doing damage?’ The experience of being shackled in front of a judge is damaging to a child. That’s what the evidence in support of their motion indicates. I’m not sure you are going to find any therapist or psychologist who would say otherwise. I am not aware of anyone who says this is a positive thing, other than the Orlando Sentinel editorial board.”
A September 13 editorial in that paper argued shackles should remain on children for safety reasons.
“In a public courtroom where a suspect’s friends or victims could be among the observers, it’s best to err on the side of safety,” the editorial said. “Also, while safety is the main reason for the restraints, deterrence is a likely byproduct.”