Week in Review: October 17-21
Happy Friday Everyone! It's been a road trip kind of week for OJD. On the counties visited this week: Cabarrus, Henderson, and Sampson! We really love getting to see our defenders in court and have many more trips planned to support the great work everyone does. This week, we have a tip on Restraints in Juvenile Court
Tip of the Week - Restraints in Juvenile Court
In adult and juvenile proceedings, we frequently have clients who are confined pretrial. Those clients are often brought into courtrooms for secure custody hearings, probable cause, motions and adjudication hearings in shackles and chains. Yes, restraints are shackles and chains…handcuffs and leg restraints connected to each other through loops of chain around the client’s waist. The practical effect of those chains is that they humiliate the person and dehumanize the child to the Court and other stakeholders as well as all other individuals in the courtroom. Those who practice in the adult system know that it is common practice to procure appropriate clothing for a client prior to a jury trial. Defense attorneys do not allow the adult client to stand before a jury in an orange jumpsuit or stripes and chains. In fact, the American Bar Association adopted a resolution that recommends states adopt a presumption against the use of restraints on juveniles. Why then, as a juvenile defender, would you allow a child to be paraded before a full courtroom in full or partial restraints?
Consider this language from the North Carolina Prosecutor Resource Online:
“The Fifth and Fourteenth Amendments to the United States Constitution prohibit the use of physical restraints visible to the jury unless the trial judge has determined, in the exercise of his or her discretion, that the restraints are justified by an essential state interest specific to a particular trial. Deck v. Missouri, 544 U.S. 622 (2005). The rationale is that routine shackling of defendants would undermine the presumption of innocence and the related fairness of the fact-finding process, interfere with the defendant’s ability to communicate with his or her lawyer and to participate in his or her own defense, and be affront to the dignity and decorum of judicial proceedings. Id. Examples of essential state interests that justify shackling include physical security, escape prevention, and courtroom decorum. See State v. Jackson, 235 N.C. App. 384 (2014) (shackles justified based on defendant’s prior escape attempt, anger issues, verbal threats, and serious nature of charges and penalties).” (Emphasis added.)
The same rationale can and should be utilized in Juvenile proceedings. The Juvenile Code provides an opportunity for a hearing on the use of restraints in the courtroom under 7B-2402.1. Under this section of the Code, “the judge shall provide the juvenile and the juvenile’s attorney an opportunity to be heard to contest the use of restraints before the judge orders the use of restraints.” The language presumes that restraints will be addressed first and not after the child is already standing before the court in restraints. If the Court fails to address this issue first and your district does not have a policy whereby the restraints have already been removed, counsel should request a hearing on the use of restraints.
Counsel should always argue for removal of restraints as the Court can only order the use of restraints under three circumstances: the restraints are reasonably necessary to maintain order; prevent the juvenile’s escape; or provide for the safety of the courtroom. ADAs frequently argue the seriousness of the underlying offense which is not one of the statutory considerations. Observe your courtroom and those around you. Is the courtroom small or large? How many bailiffs, court counselors or other officers are in the courtroom or surrounding areas? Make note of the child’s size and age and demeanor. Consider asking for the courtroom to be closed under 7B-2402 if there is any expressed concern over safety, order, or escape. Ask for your client’s detention records and records from Department of Juvenile Justice to show that the youth does not pose a risk to order, safety, or possible escape. When arguing for removal of restraints, argue for removal of all restraints including the leg irons. Even if the leg restraints are not visible, the sound of the chains rattling as child is escorted into the courtroom leads to the same issues. Counsel should also be mindful of the racial disparities that exist with the use of restraints and the emotional impact this has on the youth and families. The DPS 2021 Annual Report indicates that fully 66% of all detained youth were Black youth and another 10 % were Hispanic youth.
By waiving or consenting to the use of restraints in the courtroom, especially in cases where counsel may have just met the child for the first time, you may be damaging the attorney client relationship and providing a false impression to the Court and other stakeholders that you believe your client poses a risk. Waiving or consenting to any restraints, even if it is “only leg restraints” can also create an impression that you believe your client is responsible for the alleged offenses. Many individuals in the criminal and juvenile justice system may already be reluctant to trust appointed counsel. Imagine then, a child who has been separated from family, arrested, placed in detention and is dependent on a stranger to assist him or her in court. If counsel waives the restraint hearing without speaking to the youth, this could reinforce any existing negative thoughts about the justice system and appointed counsel. Youth in juvenile court are entitled our zealous advocacy in the same manner as an adult and to the same presumption of innocence. Advocate for your child client as if they were an adult standing before a jury because they are entitled to the same rights and protections as adults.
Eastern Defender Forum - November 4, 2022
Registration for our Eastern Youth Defender Forum is live and underway! The Eastern Youth Defender Forum will be on Friday, November 4, 2022 at Lenoir County Community College: 231 North Carolina Highway 58 Kinston, NC 28504.
Registration ends this Friday, October 28, 2022! Please register here!
Travel Scholarships are also available! Please reach out to Yolanda (firstname.lastname@example.org) if you have a need and for instructions on how to apply for funding!
Below you’ll find more information about the Youth Defender Forums.