U.S. states are rapidly removing Confederate statues, symbols of racial oppression. But there is another holdover from slavery that is prevalent in our society today — the routine use of shackling persons using handcuffs, leg irons and other hardware to confine individuals in the justice system.
This past summer, I had the opportunity to view a felony appellate courtroom in Casablanca, Morocco. These were appeals by people imprisoned for felony offenses who were asking the court to reduce their sentences. The people who were appealing — appellants — were brought in from prison and sat on benches behind a wooden screen. Their families sat on the other side of the court. One by one, the appellants were led to the front of the courtroom and directly addressed the judges, standing with dignity next to their lawyers.
What was remarkable was the fact that every person who stepped up to appeal their sentence was dressed in street clothes and unshackled. They stood respectfully before the appellate justices and were free to consult with their lawyers without the degradation of handcuffs, of leg irons, of belly chains and of prison uniforms.
The court resembled a U.S. traffic or civil court — not a felony criminal court.
The lack of prison uniforms and shackles dramatically changed the tone of the proceedings, serving as a reminder of the essential dignity of each of the persons appealing their sentence.
We observed a case of a young man in his early 20s appealing a 10-year sentence in a drug case. He was free to confer with his lawyer and to respond to questions by the court, without the interference of shackles on his hands or legs. The fact that he wore street clothes, not a prison uniform, served as an additional equalizer. A person who appears respectful and dignified in street clothes standing freely before the court seems a more likely candidate for early release from prison than a person in a prison uniform and shackled. The court subsequently reduced his sentence to four years.
In the United States, even children who are accused of a crime and confined in detention/prison appear in court in prison clothing and shackled with handcuffs. Leg irons and belly chains are frequently used along with handcuffs. Shackles are used in court from the first moment of the case — even before the trial and well before sentencing and appeal. A campaign by the National Juvenile Defender Center has convinced several states, including Illinois, to ban the use of handcuffs and shackles on children in courtrooms — but these instruments of human degradation are still used to transport children from detention to court.
Corporations that manufacture the hardware have convinced U.S. justice system officials that shackling individuals is essential for secure courtrooms and safe transport. A few decades ago, handcuffs alone were enough — but a consumer market was then developed for leg irons and belly chains and states rushed to invest in the “necessary” hardware. Shackling human beings is less than first world — and the experience in the Morocco felony courtroom demonstrates vividly that shackling is not essential to safety.
The racial legacy in the use of shackling is clear. One of our former staffers discovered that juveniles are not shackled in her home nation of Japan. A Japanese academic explained that this is a uniquely U.S. practice that is the legacy of slavery, the current iteration of the former use of “slave chains.”
Indeed, while the practice of shackling children is nearly universal in urban courtrooms filled with black and brown children from low-income neighborhoods, children from families of means who demonstrate similar “criminal” behavior have access to mental health and/or substance abuse treatment centers that generally do not use human shackling hardware, except in short-term “crisis” situations.
Testimony at a public hearing when Illinois considered adopting a Supreme Court Rule to end indiscriminate shackling of children in court included emotional comments from a former juvenile court judge. She noted that the use of shackles on children was common practice in her courtroom when she first came to the bench, and she didn’t think to challenge the practice.
In retrospect, she stated that she wished she had changed the policy — she recalled the horror on the faces of parents as they saw their child brought into the court in shackles and the shame on the faces of the children. Another lawyer argued there was no “safety” issue, as his experience with children shackled in the court system and children with similar issues who were not shackled in the mental health system convinced him that children could be safely transported and appear in court without shackles.
Respecting the human dignity of all individuals, including those accused/convicted of criminal offending, is essential to ensure a strong civil society. The use of shackles on human beings in the U.S. is the legacy of slavery — today’s slave chains. It is especially problematic given the profound racial disparities in our justice system. It is time to end this practice and extend to all our citizens — especially children — their human right to stand unshackled in our courtrooms.
Elizabeth Clarke of Evanston, Illinois, is founder and president of the Juvenile Justice Initiative, a coalition working to transform the juvenile justice system in Illinois.
On Nov. 7, the National Juvenile Justice Network (NJJN) will hold a webinar focusing on the new Models For Change publication “Washington Judicial Colloquies Project: A Guide for Improving Communication and Understanding in Court.”
The guide, published by Washington State NJJN member TeamChild, offers advice on how professionals can better explain and describe the legal language used in court proceedings to young people.
Working with the National Juvenile Defender Center and the Juvenile Indigent Defense Action Network, TeamChild created a guide that suggests “colloquies,” pre-written language for judges and attorneys to use during young people’s first court appearances and further disposition hearings. The language is written at a 6th grade-level and designed to be easily understood by juveniles. In fact, according to the the guide, effective use of colloquies sometimes increased young people’s understanding of release and probation conditions from one third to 90 percent after hearings.
Presenting at the webinar will be TeamChild research associate and former University of Michigan sociology professor Rosa Peralta, who will discuss several of the recommended colloquies and later field questions from Webinar attendees.
The free event is scheduled to begin at 2 p.m. EST. To view the webinar, attendees are required to register here.
Immediately before my closing I attended a workshop on truancy led by Judge Joan Byer of Louisville, Ky., and Dr. Shawn Marsh of the NCJFCJ. They offered some great ideas and further empowered me for my closing keynote speech on the importance of working together in the community to help our kids avoid the trauma of detention -- and it is traumatic despite what we may tell ourselves.
Judge Byer asked how many in the audience are from jurisdictions that allow the detention of truant (status) youth. Most raised their hands.
Then she asked how many use detention in truancy cases. Only two raised their hands.
I was please to see that despite the overwhelming number of jurisdictions that permit detention of truants, most judges exercise self-restraint.
The empowerment I derived from this workshop lies not only in this fact as well as the content and delivery, but knowing that the NCJFCJ is exercising judicial leadership off the bench to publish best practices -- even if it may invite controversy!
Let’s face it -- we know that truancy is linked to later delinquency. A 20-year longitudinal study found that truant youth are eight times more likely to become delinquent than non-truant youth (Henry & Huizinga, 2005). Truancy is a serious issue and cannot be treated lightly -- it is a precursor to delinquency. Treating truancy is about preventing delinquency.
The rub is in the "how?" -- and detention is not the answer.
Those who believe that detention is effective obviously believe so on anecdotal evidence. It's surely not grounded in competent evidence -- that is, the kind of evidence judges are suppose to consider when making findings of fact in their courtroom. Why do some of us (judges) do so well in the courtroom drawing conclusions, but are horrible outside our domain of laws and decorum?
Do we perform better in the courtroom because we are trained to apply rules of evidence to sort out the truth when judging a case? We (judges) qualify experts and often rely on their expert opinions when grounded in sound scientific principles. So, how can a judge be so quick to dismiss research grounded in hard data and analyzed using social scientific principles as in the use of detention and status youth?
Maybe some don't know the research; or, that some lack the resources to treat and use detention as a default; or, that others simply find it more convenient to detain than to treat; or, could it be that some simply don't care? Maybe it’s a combination of all -- though I am convinced the latter group is the smallest minority. Most judges I have come to know in my 13 years on the bench truly care. It’s typically never a question of motive, but one of method.
So, what about methodology?
Detention facilities are intended to provide temporary holding for youth pending a hearing on a delinquent act and are deemed high risk of serious re-offending or not appearing in court. It is an interesting paradox how on one hand detention is designed for youth at high risk for serious re-offending on a delinquent act but on the other some judges use it for truants as a preventive means against delinquency.
Let’s see if this makes sense. Truant kids are not delinquent -- they have committed no crime. Truant kids are high risk to become delinquent. These facts are undeniable – even for those judges who believe in the use of detention. So how does locking up non-delinquent kids with serious high risk delinquent kids become preventative, especially if truant kids are already high risk to become delinquent? As some would say -- "This is not rocket science!"
Nonetheless, this is what the research says:
- Detention is not necessary for status offenders and other low-risk offenders (Austin, Johnson, and Weitzer, 2005);
- Is less effective than community-based detention alternatives and can cause lasting harm (Munson et al., 2008; Holman and Ziedenberg, 2007; National Juvenile Defender Center, 2006);
- Is associated with higher rates of recidivism than community-based alternatives and costs far more (Austin, Johnson, and Weitzer, 2005; Holman and Ziedenberg, 2007; Munson et al., 2008; Howell, 1995); and
- Does not improve, and may worsen, public safety (Holman and Ziedenberg, 2007).
Besides the fact that detention facilities are not exactly the best housing in America -- many are understaffed (Holman and Ziedenberg, 2007), "crowded and unsafe" (National Juvenile Defender Center, 2006:4), and the risk is great that status youth will develop more deviant attitudes and behaviors through exposure to other status offenders and to delinquent youth (Holman and Ziedenberg, 2007) -- Judge Byer offered a distressing observation in her presentation: Detention also violates the needs of status offenders!
Judge Byer stated that her court collects data on truant youth that come through her court and at least 60 percent have suffered trauma at the hands of neglect, abuse, or both -- and the research supports her data. Consider a study that reported the following:
"[y]outh who enter juvenile status offense systems are often in extreme conflict with their parents that cannot be resolved privately without some intervention. These are youth who often fall between the ‘cracks’ of two bureaucratic legal systems -- one designed to respond to maltreatment of young children and the other focused on youthful offenders who present a risk to society. They need protective interventions, and their families require non-coercive, family-focused approaches that may help deter future delinquency. Many have been abused or neglected; are dealing with domestic violence within their families; come from poor and violent neighborhoods; suffer from serious unmet mental health needs, learning disabilities, and emotional or behavioral problems; and lack adequate educational and career opportunities. These are teens and families at risk and in great need of assistance." (Kendall, 2007).
The bottom line -- why keep beating them up by throwing them in jail? Would we do that to a child in a dependency case? Would we do it to our own child? Assuming there are no resources, why use a default that hurts more than it helps?
I am thankful there are more who follow the research than not and, in time, with the leadership and fortitude of the NCJFCJ, there will be even more.
|13 percent of young people in detention facilities are lesbian, gay, bisexual, transgender, or questioning (LGBTQ) according to a report called Hidden Injustice. The study done by National Juvenile Defender Center looks at how gay teens are treated in juvenile courts across the country. It profiles some common misconceptions about these kids and why the judicial system fails to meet the needs of this hidden population.|