WJI, other organizations back rule to limit juvenile shackling in court

By Gretchen Schuldt

A proposed Wisconsin Supreme Court rule that would ban routine juvenile shackling in court has broad support and would bring consistency to shackling practices across the state, according to the Wisconsin Justice Initiative.

“It should provide the necessary clarity that decisions about courtroom security belong to the judiciary and provides a humane framework for those decisions,” WJI President Craig Johnson said in comments submitted to the court. “It has appropriate guidance for the judiciary as to when the presumption against shackling may be overcome, with specific and clear standards.”

The Supreme Court will hold a public hearing on the petition at 9:30 a.m. Feb. 15  in the court’s hearing room in the State Capitol.

Under the proposed new Supreme Court rule, children could not be restrained during a court proceeding unless a judge found one of the following:

• Restraints were necessary to prevent physical harm to the child or another person.
• The child had a history of disruptive courtroom behavior that placed others in potentially harmful situations, or the child presented a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.
• There was a founded belief that the child presented a substantial risk of flight from the courtroom.

​Restraints use also would be limited to situations where there were no less restrictive alternatives "that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs," according to the petition.

The rule would prohibit use of restraints "that are fixed to a wall, floor, or furniture," the petition says.

More than a dozen commenters wrote in favor of the petition. No one submitted comments opposing it. The comment period closed Jan. 3.

Submitting the petition were attorneys Diane R. Rondini and Eileen A. Hirsch, Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. 

Commenters supporting the petition said  shackling is humiliating and can do psychological harm to children.

“Shackling children on a routine basis is dehumanizing,” wrote Kim Vercauteren, executive director of the Wisconsin Catholic Conference. 

Children appearing in court already have suffered trauma and psychological harm in many instances, she said. Shackling adds to the humiliation and degradation.

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Dane County holds about 500 hearings each year for youths held in juvenile detention,  wrote John Bauman, juvenile court administrator for the county.  Until 2016, juveniles were indiscriminately shackled, but now each judge makes decisions based on input from staff, bailiffs, lawyers, and others.

“In analyzing data since implementing the change to our shackling procedure, there have been approximately 10% of youth who have remained in restraints during hearings,” Bauman wrote in supporting the petition. “Of the 90% who remained unshackled, there were no major incidents during their court hearings. Youth in detention have been noticeably more relaxed and engaged when in court and report that they feel more respected.” 

“I believe that adopting a uniform policy that eliminates indiscriminate shackling will help reduce trauma, keep juveniles engaged in the courtroom, and improve outcomes,” District 1 Court of Appeals Judge M. Joseph Donald wrote. “Shackling should only be used in rare instances.”

The State Bar’s Board of Governors also endorsed the petition.

“The BOG recognizes that even occasional interactions with the criminal justice system may have a profound impact, especially for children and teens who have been traumatized by domestic and street violence,” State Bar President Cheryl Furstace Daniels wrote. 

Data from around the country show that routine shackling is not necessary, she said. Shackling humiliates, stigmatizes, and traumatizes juveniles, Daniels said.

It also “impedes the attorney-client relationship, chills juveniles’ constitutional right to due process, runs counter to the presumption of innocence, and draws into question the rehabilitative ideals of the juvenile court,” she wrote.
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“The experience in 34 other states and DC, as well as five counties in Wisconsin which have adopted a policy substantially similar to what is proposed in the petition is that these policies work well and do not result in increased security concerns,” State Public Defender Kelli Thompson wrote.

All of the comments are available here.