1. Individualized Justice: Ending the Automatic Shackling of Youth in Juvenile Court JILL BEELER-OFFICE OF THE OHIO PUBLIC DEFENDER, JUVENILE DIVISION SHAKYRA DIAZ-POLICY MANAGER FOR THE ACLU OF OHIO OJACC CONFERENCE-OCTOBER 8, 2015 1

2. Kids VS. Adults 2

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4. Kids in Shackles Kids for Cash 4

5. Legal Implications: Chains Hurt the Constitution  The indiscriminate use of restraints in court:  Create a presumption of guilt  Interfere with the attorney-client relationship  Have a chilling effect on notions of fairness  Undermine due process protections  Conflict with goals of the juvenile justice system  Provide for the care, protection, and mental and physical development of children 5

6. Legal Implications: Chains Hurt the Constitution  Deck v. Missouri, 544 U.S. 622 (2005)  Adult defendant was restrained as the jury considered the death penalty  Court reiterated long-held rule that the right to appear before a jury unshackled is a basic element of the due process of law  3 fundamental legal principles:  The presumption of innocence  The right to counsel  The need for judges to maintain a dignified judicial process 6

7. Legal Implications: Chains Hurt the Constitution  Deck held indiscriminant shackling of adult during the penalty phase:  Violates due process clause of the 5 th and 14 th Amendments  Violates the 6 th Amendment right to counsel:  Violates each these rights in the same manner as during the guilt phase 7

8. Legal Implications: Chains Hurt the Constitution  Practical implications in criminal court  Discretion of the trial court judge  Restraints should be used as a last resort  If there is a dispute, court must hold a hearing to determine if restraints are necessary  Make a finding justifying the restraint  More than mere deference to law enforcement  Preferred practice to hold the hearing prior to restraining the defendant 8

9. Legal Implications: Chains Hurt the Constitution  But kids don’t have the right to trial by jury  Kids do have  Presumption of innocence  Right to the effective assistance of counsel  Right to due process  Kids who are shackled in court  Do not present themselves as well  Cannot effectively communicate with their counsel  Cannot effectively communicate with the court  Are not able to listen and absorb information  Do not feel like they are being treated fairly 9

10. Adolescent Development: Chains Hurt Children It is well known that between 75% to 93% of youth entering the juvenile justice system annually have experienced some degree of trauma.  Research and the U.S. Supreme Court have found that minors are less culpable and more amenable to rehabilitation than adults.  “Shackling is inherently shame-producing. Feelings of shame and humiliation may inhibit positive self- development and productive community participation.”—CWLA, January 2015 10

11. 11 Adolescent Development: Chains Hurt Children “The practice of indiscriminate shackling adds to the trauma that many of these youth have already experienced. It is also unnecessarily demeaning, humiliating and stigmatizing.”—AACAP, January 2015 “…a policy of indiscriminate juvenile shackling is in essence a policy of retraumatization…”—AOA, January 2015

12.  ODH  ODJFS  ODD 12 Who Limits the Use of Restraints & Shackles?  All Common Pleas Courts in Ohio  ODRC  ODYS  ODMHAS  ODE

13. 22 States & D.C. limit the use of restraints in juvenile court East Coast Connecticut Florida Maryland Massachusetts New Hampshire New York North Carolina South Carolina Vermont Washington D.C. West Coast Alaska California New Mexico Nevada Oregon Utah Washington Mid-West Idaho Indiana Illinois Nebraska North Dakota Pennsylvania 13

14. What is the national conversation on the issue?  The National Council of Juvenile and Family Court Judges resolves to stop shackling children in juvenile court-August 2015  The American Bar Association resolves to urge all government to adopt a presumption against the use of restraints on juveniles in court-February 2015 14

15. Where does Ohio stand?  ‘An Ohio Supreme Court subcommittee will examine and deliver recommendations concerning policies juvenile courts must follow when considering whether youths should be restrained during court proceedings.’  Chief Justice O’Connor noted, “We must balance the safety of the juvenile and others in court proceedings with the rehabilitative focus that is at the core of our juvenile court system. Clearly there are circumstances where restraints are needed. But blanket restraint policies that do not consider the least restrictive means backed by findings that restraints in individual cases are necessary seems contrary to that purpose.” Court News Ohio, Staff Report August 19, 2015 15