As many would suspect, placing shackles on children can cause permanent harm. Hearing the metal click of handcuffs as they tighten around the wrists of a child is a sound that can actually turn one’s stomach – it is offensive to everything that juvenile defenders believe. It undercuts the legitimacy of a court system that should view children as children, not threats. Many of these children have experienced violence, abuse, neglect, and maltreatment by other adults. The practice of routinely slapping handcuffs on children causes trauma, and only engenders mistrust of the court system that invariably demands their respect.
Despite the fact that many Pennsylvania counties continue to shackle children during transportation to and from courtrooms, a piece of legislative reform passed in 2012 does limit the use of restraints on children. 42 Pa.C.S. §6336.2 . The law reinforces a rule adopted in 2011 by the Pennsylvania Supreme Court. Pennsylvania Rule of Juvenile Procedure 139. Both the statute and the Rule were created in reaction to the Kids for Cash scandal in Luzerne County, in an effort to prevent those horrors from occurring elsewhere.
Both the statute and the rule mandate the removal of all restraints such as handcuffs, chains, shackles, irons, or straitjackets prior to the commencement of a court proceeding. Unfortunately, neither prohibits the use of restraints entirely. There are certain limited exceptions when the court can determine that restraints are necessary during proceedings, although the child has a right to be heard:
- to prevent physical harm to the child or another person;
- to prevent disruptive courtroom behavior, evidenced by a history of behavior that created potentially harmful situations or presented substantial risk of physical harm; or
- to prevent the child, evidenced by an escape history or other relevant factors, from fleeing the courtroom.
Juvenile defenders should be zealous advocates in ensuring that this statute is enforced. Few other aspects of our representation say more to a client and his family about our willingness to be effective advocates than demanding his basic human dignity to stand before the court unshackled. The law creates a presumption that the cuffs must be removed – it is up to the court to justify on the record a reason why they should not be. Both the second and third prongs of statute require a history of very specific behavior. The court must find these reasons on the record, and the client has the opportunity to be heard (and arguably present testimony) to the contrary. Technically, counsel can only rely to argue that restraints should be removed once the judge calls the child’s case to the bar of the court, thus permitting court staff to transport the child to and from the courtroom in physical restraints. However, counsel can rely on the Comment to Rule 139 to argue against the use of restraints even in transport to the courtroom. Rule 139 Comment states that “[t]he use of any restraints, such as handcuffs, chains, shackles, irons, or straitjackets, is highly discouraged. The routine use of restraints on juveniles is a practice contrary to the philosophy of balanced and restorative justice and undermines the goals of providing treatment, supervision, and rehabilitation to juveniles. Therefore, restraints should not be used in most instances. However, there are some circumstances when juveniles need to be restrained to protect themselves and others and to maintain security in the courtroom. See 42 Pa.C.S. § 6301 for purposes of the Juvenile Act.”