New York May Soon Bar the Shackling of Children in Family Court

by Michael Fitzgerald

One client of Betsy Kramer’s law firm has never left her mind. The New York foster child, who had been arrested and briefly in detention, appeared in court in 2018 with his wrists shackled. The court had declared the boy “destitute,” legally defined as “a state of want or suffering” without adequate food, clothing, shelter or parents to care for him. 

In handcuffs secured to chains around his waist, Kramer recalled, the boy said he “felt like an animal.”

The director of public policy and special litigation at the Manhattan-based Lawyers For Children said this child is not alone. Kramer’s firm has had a number of clients who chose not to appear in court at all “rather than appear before the judge in a manner that prejudices that judge against them,” she said.

Now, after nearly a decade of advocacy by Kramer’s organization and others — and a growing national consensus that courts should eliminate the use of “hardware restraints” on youth during hearings — New York state is poised to ban the practice. By Thursday, both houses of the Democrat-led state Legislature had passed a bill that adds a new section to the Family Court Act, prohibiting the use of “handcuffs, chains, shackles, irons, straitjackets and other restraints” on those 21 and younger appearing in family court.

Gov. Andrew Cuomo (D) will have until the end of the year to sign or veto the legislation. If enacted, it would immediately apply to children entering a family courtroom for any type of hearing, including delinquency, foster care or custody and visitation.

There would be limited exceptions to the prohibition on shackles, but judges would have to rule “on the record” as to whether a child appearing unshackled in court poses an unreasonable risk to safety or order in the court — and the child would be given an opportunity to be heard on the matter. The right to appear unshackled is currently applied even to adult murder defendants.

Bronx state Sen. Jamaal Bailey (D) described his bill as “a common sense piece of legislation.” Bailey, the lead sponsor on several juvenile justice reform measures moving through the Legislature as the session concludes this week, said “shackling and restraining young people does not reduce negative behavior. It’s such a barbaric and disrespectful manner, it’s not a means for that end.”

Rochester Democrat Demond Meeks sponsored the bill in the state assembly, where it passed by a wide margin Thursday.

“Shout out to @DemondLMeeks for this bill,” Queens Assembly member Catalina Cruz (D) tweeted Thursday. “These are children, they enter the system screaming for help. Having to actually debate this is insane. This is the right thing.”

The Office of Court Administration, which oversees the court system statewide, recommended the bill to the Legislature. An accompanying legislative memo cited child psychologists’ findings that shackling “is so damaging to a child’s developing sense of self that it may well push him or her into further criminality.”

Dennis Quirk, the president of the New York State Court Officers Association, said he was unfamiliar with the details of the pending legislation. He described the shackling of youth as rare, but sometimes necessary, stating it “provides protection for the individual, court officer, judge, attorneys and all other people in attendance.”

He also said judges already had the authority to decide when a young person gets shackled, under the state’s Office of Court Administration (OCA) rules.

“I don’t know why OCA does’t enforce their own rule,” he said. “A law in Albany is not necessary.”

A spokesperson for OCA responded in an email that the court system has “no blanket policy” and that while judges “are the ultimate authority and in control of their respective courtrooms,” they have typically deferred to ranking court officers on safety decisions.

According to the National Juvenile Defender Center in Washington, D.C., as of late 2019, 32 states had rules, statutes or administrative orders that limit the shackling of youth in court, most of them adopted in the past decade. Youth advocates and the New York court administrators’ legislative memo describe the practice as humiliating and traumatizing, and say it undercuts the presumption of innocence and the rehabilitative mission of juvenile courts.

The Supreme Court has repeatedly ruled that criminal defendants should not appear shackled before juries, but most juvenile proceedings don’t involve juries. State rules have varied widely, and judges often defer to court officers’ safety evaluations. In 2007, a USA Today investigation found courts in dozens of states “routinely” used that discretion to shackle youth.

In 2018, the Buffalo News reported that a third-grader had been placed in leg irons while waiting for a court hearing, prompting outrage from some county and school officials. The county’s social services commissioner told the newspaper that all youth in the local family court for delinquency proceedings had their ankles shackled, regardless of their alleged offense, and that the practice is “common across the state.”

Despite the continued use of shackles on children, there is growingagreement that the practice is deeply flawed. Professional associations ranging from the National Council of Juvenile and Family Court Judges, the Association of Prosecuting Attorneys, the National Association of Counsel for Children, the American Bar Association and the New York City Bar Association have all issued resolutions or statements against the indiscriminate shackling of youth.

The Office of Court Administration has asked the state Legislature to formally bar the practice for the past four sessions. The bill never made it out of committee until Democrats took over the statehouse in 2019. Its earlier sponsor was Brooklyn Democrat Velmanette Montgomery, a longtime champion of juvenile justice reform, but the bill failed to pass both houses before her retirement at the end of last session.

Sen. Bailey said he picked up the bill at the request of Montgomery, his mentor. He described it as a “recognition that we have to do what’s right for our children.”

“Arresting kids who are 7 years old does not protect them from a negative future,” he said. “You are scarring them for life.