What’s Safety Got To Do With It? Why We Shouldn’t Be Shackling Youths (or Anyone) in Michigan
By Melissa Almonte
Associate Editor, Vol. 25
During my first seminar with the Juvenile Justice Clinic at the University of Michigan Law School, I learned that children are routinely shackled in juvenile proceedings in Michigan. My jaw dropped. I thought: but that’s only supposed to happen in criminal court!
But I shouldn’t have been surprised. In New York, I had seen men enter the immigration court room covered in shackles from their wrists to their ankles.[1] I had watched judges order countless men deported and watched, over and over, as the men struggled to wipe their tears away because they could not raise their hands past their hips. Although immigration law is “civil” in nature, that did not stop the system from treating the men, some who had never been convicted of a crime, the same as adults in criminal court.
The juvenile justice system, too, is “civil” in nature. Although the juvenile justice system purports to have a vested interest in the rehabilitation of children, it often fails to even approach that goal. One of the ways that the state of Michigan fails to reach this goal is in its practice of shackling children enmeshed in the juvenile justice system.[2]
Unfortunately, Michigan is not exactly an outlier in maintaining this arcane rule. Twenty-seven other states also routinely shackle the children before them.[3] But Michigan can and should do better. It recently joined the majority of states in raising the age that juvenile offenders can be charged as adults,[4] and it should continue that momentum by affirming the dignity of the kids in its juvenile justice system.
The main argument for shackling is safety.[5] Courts and law enforcement cite concerns that kids will act out or flee courtrooms.[6] However, data and anecdotal evidence collected by the Campaign Against Indiscriminate Youth Shackling (CAIYS), which has been leading the charge on opposing youth shackling since 2014, shows that creating a presumption against shackling has not negatively affected courtroom safety. As of 2016, Miami-Dade County in Florida had limited juvenile shackling for 10 years and dealt with 25,000 cases without incident; the Children’s Court Division of Albuquerque, New Mexico saw no escapes and only three incidents of children “acting out in court” over the course of 12 years; and New Orleans Parish, Louisiana reduced security staffing after the change and did not see any incidents after their shackling reform.[7]
Thus, while the safety concern appears to be facially valid, it is unsupported by the evidence of reforms in other states. It appears unlikely that a critical mass of juvenile defendants will flee or cause disruption if they are not shackled. It is perhaps not a coincidence that the population that shackling proponents are most concerned with is disproportionately made up of people of color. According to the most recently available data in Michigan, Black, Latinx, and Native American defendants make up for just over 50% of arrestees.[8] In comparison, just 10.24% of arrestees are white.[9] This large racial disparity is not unique.
People should be concerned about the continued use of this barbaric, arcane practice, particularly because it so clearly evokes this country’s history of slavery. Black and brown people are already disproportionately criminalized and discriminated against. Shackling them only adds to this stigma and robs them of the presumption of innocence. The U.S. Supreme Court recognized as much in Illinois v. Allen,[10] where it stated that: “no person should be tried while shackled and gagged except as a last resort,” and noted that “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.”[11]
The Supreme Court went further in Deck v. Missouri, [12] where it overturned the death sentence of an adult defendant who had been shackled during the sentencing phase of his trial.[13] The Supreme Court held that the Due Process Clause “prohibit[s] the use of physical restraints visible to the jury absent a trial court determination” regarding the need for shackles.[14] The Court also noted that the use of shackles “almost inevitably affects adversely the jury’s perception of the character of the defendant” and “inevitably implies” that court officials consider the defendant to be dangerous.[15] The use of shackles, then, sets a thumb on the guilty verdict’s side of the scale. This is not a result that Michigan courts should keep condoning.
It should not be the case that, 50 years after Illinois v. Allen, and 15 years after Deck, Michigan and 26 other states need to be convinced that shackling is unnecessary, dehumanizing, and an impingement on the constitutional right to a fair trial. If we can recognize that shackles are not justified in the guilt phase of an adult criminal trial, we should be prepared to recognize that shackles are not justified in the juvenile context, particularly since the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment applies to children.[16]
It should be clear without argument that the use of shackles for children regardless of age – whether they’re nine years old or sixteen years old – is demeaning and dehumanizing. A client once said of the shackles, “it’s a reminder of how we’re marked. We’ll always be criminals, animals to them.” And he could not have been more right. The guards and judges did not think my clients worthy of that little bit of freedom. Of the ability to freely wipe their own faces, read a document, sign their signature, or shake a hand. And they still don’t.
These limitations are traumatizing for anybody, but they have an even stronger impact on young people who are still in the process of developing their sense of self. Dr. Marty Beyer, a psychologist with substantial experience working with justice-involved youth, has noted that the use of shackles leads to feelings of shame and humiliation.[17] This is especially harmful because “children and adolescents are more vulnerable to lasting harm from feeling humiliation and shame than adults.”[18] This lasting harm can affect self-esteem and influence young people to engage in more criminalized behavior. Child psychologists note that children who have been shackled feel like criminals and in turn are more likely to behave as such.[19] Psychologists have also noted that the use of shackles can retraumatize children by reminding them of other moments when they could not control hurtful things that had happened to them or by “re-activat[ing] memories of past traumas.”[20]
The use of shackles also affects the level of representation for and understanding of justice-involved youths. Because of their level of maturity and brain development, young people are more likely to be preoccupied with shackles and the humiliation of having to wear them. For people of color, this public degradation will be experienced as racism, regardless of whether the shackling process is universal.[21] For Black defendants specifically, they are also confronted with the direct imagery of slavery. These preoccupations make it difficult for young people to pay attention to what has happened in court. It also makes it more difficult for them to understand how to best assist in their own defense.
There is simply no defending Michigan’s current shackling practice. Michigan should follow the lead of the other 23 states and adopt anti-shackling legislation or court rules that create a presumption against shackling. Such a policy would require the prosecution to prove that shackling is necessary due to some previous history of escape or violence that would put someone’s safety at risk. House Bill No. 4802 was introduced last year and includes such a policy.[22] Michigan legislators should move the bill forward. Doing so would help preserve the presumption of innocence, uphold the constitutional right to fairness and due process for Michigan’s juvenile defendants, and advance the rehabilitative goals of the juvenile court.
[1] They had leg irons, a belly chain, and handcuffs.
[2] See Daniel Zeno, Shackling Children During Court Appearances: Fairness and Security in Juvenile Courtrooms, 12 J. Gender Race & Just. 257 (2009) (asserting that shackling juveniles goes against the rehabilitative goal of juvenile courts and that shackling is harmful to children).
[3] Currently, 23 states have limitations on shackling for juveniles: Alaska, California, Delaware, Florida, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Nebraska, New Hampshire, New York, Nevada, North Carolina, North Dakota, New Mexico, Oregon, Pennsylvania, South Carolina, Utah, Washington, Vermont. Anne Teigan, States that Limit or Prohibit Juvenile Shackling and Solitary Confinement, National Conference of State Legislatures (Jan. 29, 2020), https://www.ncsl.org/research/civil-and-criminal-justice/states-that-limit-or-prohibit-juvenile-shackling-and-solitary-confinement635572628.aspx.
[4] Cheyna Roth, Gov. Whitmer Signs Bills Raising Age Of Michigan’s Juvenile Offenders, Michigan Radio, (Oct. 31 2019), https://www.michiganradio.org/post/gov-whitmer-signs-bills-raising-age-michigans-juvenile-offenders.
[5] See Gary Gately, Why Do We Still Shackle Kids? The Crime Report (June 15, 2015), https://thecrimereport.org/2015/06/15/2015-06-why-do-we-still-shackle-kids/.
[6] Id.
[7] Campaign Against Indiscriminate Juvenile Shackling, Fact Sheet: Shackling and Courtroom Safety, (Mar. 4, 2016), https://njdc.info/wp-content/uploads/2016/03/CAIJS_Shackling-and-Courtroom-Safety-3.4.16.pdf.
[8] 32.12% of juvenile arrestees are black, 9.8% are Latinx, and 8.1% are Native American. Combined, this means that black and brown youths make up for over 50.2% of arrestees. Michigan Department of Health and Human Services, Juvenile Justice Programs & the Michigan Committee on Juvenile Justice, Michigan’s Statewide Juvenile Arrest Analysis Report, Volume One: 2008-2014 Report (June 2015), https://michigancommitteeonjuvenilejustice.com/2013%20JCAR%20Report_Final.pdf.
[9] Id.
[10] 397 U.S. 337 (1970) (emphasis added).
[11] Id.
[12] 544 US 622 (2005).
[13] Id.
[14] Id. at 629.
[15] Id. at 633 (citations omitted).
[16] See In re Gault, 387 U.S. 1, 13 (1967) (“[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”)
[17] Affidavit of Dr. Marty Beyer, (Aug. 2006), https://njdc.info/campaign-against-indiscriminate-juvenile-shackling/.
[18] Id.
[19] Victor E. Kappeler & Gary W. Potter, The Mythology of Crime and Criminal Justice 265 (Waveland Press eds., 5th ed. 2018); Patricia Puritz, Shackling Juvenile Offenders Can Do Permanent Damage To Our Kids, The Washington Post (Nov. 13, 2014), https://www.washingtonpost.com/opinions/shackling-juvenile-offenders-can-do-permanent-damage-to-our-kids/2014/11/13/55561dfe-602e-11e4-9f3a-7e28799e0549_story.html; Stacy T. Khadaroo, Momentum Builds to Stop the Automatic Shackling of Juveniles in Court, The Christian Science Monitor (Aug. 14, 2015), https://www.csmonitor.com/USA/Justice/2015/0814/Momentum-builds-to-stop-the-automatic-shackling-of-juveniles-in-court.
[20] Affidavit of Dr. Marty Beyer, (Aug. 2006), https://njdc.info/campaign-against-indiscriminate-juvenile-shackling/; Affidavit of Julian Ford (Dec. 2014), https://njdc.info/campaign-against-indiscriminate-juvenile-shackling/.
[21] Affidavit of Dr. Marty Beyer, (Aug. 2006), https://njdc.info/campaign-against-indiscriminate-juvenile-shackling/.
[22] H.R. 4802, 100th Leg., Reg Sess. (Mich. 2019).
