A push to end shackling of children in Delaware courts

Children and teens appear every day in Delaware courtrooms with ankles locked together by metal leg irons.

Their crimes range from drug possession and theft to gun charges and rape. All are in state custody because they cannot afford to post bail. All are presumed innocent until proven guilty.

"They are shackled and brought into court like a slave more or less," said state Rep. James Johnson, D-New Castle. "That is something that will stick with with you the rest of your life."

Defense attorneys and child advocates say this daily scene in Family Court is grisly – youth are restrained and left traumatized by a criminal justice system that is supposed to rehabilitate, not punish, them. That is why there is an effort to end the shackling of youth during proceedings at the the state's three courthouses.

Adult defendants in Delaware are not usually shackled during trials so as not to influence juries. Typically, adult defendants wear leg irons only during other court proceedings.

For juveniles, handcuffs and belly chains are removed once they get to the courtroom, but leg irons remain during all proceedings. Nearly half of all states have ended this practice in the United States.

Johnson introduced a bill in the House of Representatives in June to limit the use of shackles except in rare circumstances where the court can show that restraints are necessary to prevent flight or physical harm to the child or others. The bill is on hold in the House Judiciary Committee and could get support if the Department of Services for Children, Youth and Their Families doesn't change its policy on shackling juveniles on its own.

The department's division that handles youth detention and transport to court is looking forward to young people attending court free of shackles, a spokeswoman said, but is concerned about the layout of the Family Court facilities in Dover and Georgetown. The 3-decade-old courts are in desperate need of upgrades and pose security concerns, court officials have said.

In November, Delaware Supreme Court Chief Justice Leo E. Strine Jr. stressed to lawmakers the need for funds to upgrade these buildings.

One judge in Dover was spat on by an inmate when they were forced to share the same elevator in the back of the courthouse, according to an attorney. And because the facilities are small, those seeking protective orders bump into people they are accusing and lawyers have little space to discuss cases with their clients.

"We will need to work with our system partners – Family Court, the Attorney General’s Office and the Public Defender’s Office – to ensure that any changes that are implemented can be done in a way that can provide for the safety of the youth and others in the courthouse provided the challenges of the physical plant in some of the court facilities," department spokeswoman Dawn Thompson said in a statement.

Delaware Chief Public Defender Brendan O'Neill said the matter is pressing and can't wait for those changes.

"The practice of routinely shackling kids coming into court without an affirmative finding that they pose a genuine security risk is just flat out wrong," he said. "We are trying to change it."

Feeling like a 'caged animal'

In January 2014, the National Juvenile Defender Center, a nonprofit in Washington, D.C., launched a nationwide campaign to end indiscriminate juvenile shackling. The campaign comes amid a flurry of criminal justice reform efforts, including pushes to end the money bail system and a proposal to scale back mandatory minimum sentences.

"People are realizing that the things we have done in the past have not worked and should be changed," Johnson said. "This is one of the changes that should be made."

Twenty-three states have banned the practice of juvenile shackling either by legislation or court order. About half of those have done so since 2014.

Most recently, in September, the Maryland Court of Appeals and the state Judicial Council adopted an anti-shackling policy that leaves the decision to shackle a youth up to a judge if there are safety concerns.

Maryland Public Defender Paul B. DeWolfe, a strong supporter of the change, wrote in an editorial in the Baltimore Sun last year that during the media storm surrounding the death of Freddie Gray, one instance of juvenile shackling stood out to him. A teen was arrested by Baltimore police during protests and told an NBC reporter that being shackled felt like a "caged animal."

"It's tragic," DeWolfe told The News Journal. "It's tragic to see a 12- or 13-year-old coming into a courtroom ... in chains. It's completely unnecessary and goes against the whole principle of juvenile court."

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DeWolfe praised the end of the practice in Maryland, but said there are still some jurisdictions not complying with the new policy. In particular, Baltimore has resisted the change and continued to keep leg irons or handcuffs on children during hearings, he said.

"We are litigating those cases and trying to get that before the Court of Appeals," he said. "But, by and large across the state, once the proclamation was put into effect, the practice stopped. It's been a great success and long overdue."

Christina Gilbert, a staff attorney and policy counsel at the National Juvenile Defender Center, said this shows the importance of ensuring the change is mandatory statewide.

"A number of states, I anticipate, in addition to Delaware, will shift in the next year or so," she said.

What does Delaware do?

Juveniles who are detained in Delaware are transported by the Division of Youth Rehabilitative Services to the state's three courthouses in Kent, Sussex and New Castle counties.

When they arrive, handcuffs and belly chains are removed, but leg irons remain during court proceedings. On a case-by-case basis, judges can consider if an individual poses a safety risk and should have the additional restraints left on.

Even with the restraints on, youth can still pose a risk, some say. For example, a 17-year-old defendant kicked out the window in a van that was taking him in shackles from a family court proceeding in September.

He jumped out of the moving vehicle in Wilmington and was on the run from authorities for about a month.

Advocates say these types of scenarios are rare – and need to be weighed against the more widespread harm that shackles can inflict on children.

The developing brain

Attempts by The News Journal to speak with youth who have been detained and their families were unsuccessful.

Karen DeRasmo, executive director of Prevent Child Abuse Delaware, said the experience of being shackled can impact a child's brain at a time when it is still developing.

"What we always have to imagine and appreciate is that kids' brains are in the process of developing," she said. "They tend to think much more concretely about things. They don't have some of the higher level of thought processes that adults have."

For that reason, shackling could be traumatizing to a young person, especially because those who are entering the juvenile justice system are probably already experiencing a higher level of toxic stress in life, she said.

"It could indeed cause them more trauma because they don't have the same facilities to deal with that situation," she said. "It could actually affect the way their brain is developing and how they are going to view the world going forward."

Gilbert said eliminating juvenile shackling can also change the courtroom environment from one of an authoritative, penal system to one of openness and fairness.

"We know that the idea of procedural justice is so important to youth," she said. "The juvenile court is designed to be different from the adult court system. It is supposed to be rehabilitative, not punishing."

Shackling also more heavily impacts poor black and Hispanic youth who enter the system and cannot afford to pay bail, O'Neill and DeRasmo said.

In 2014, 4,303 juveniles arrested in Delaware and 1,038 admissions into juvenile detention facilities. Of those detained, 71.8 percent were African-American – making it seven times more likely that African-American youth will be placed in a state detention center than white youth.

"It seems like one more way we are doing harm when we don't have to," DeRasmo said.

Although House Bill 211 is on hold, Johnson said that if an agreement with the children's department does not eliminate juvenile shackling soon, the bill could be put to the forefront in the legislative session.

"I think now is the time," Johnson said. "We want to move forward with it."

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.