Wisconsin Supreme Court ends indiscriminate shackling of children in court

On Tuesday, the Wisconsin Supreme Court heard arguments for a potential rule change regarding the shackling of juveniles in the courtroom. While many other states have moved past a default practice of shackling juveniles, the Badger State had not.

Although a formal decision will not be released until May, sources at the Supreme Court report that the petition to prohibit state courts from indiscriminately shackling juvenile defendants during court proceedings was overwhelmingly approved, and courts will be required instead to create policies to restrain children in court only when necessary.

Eileen Fredricks, a trial attorney in the state public defender’s Madison office, explained that shackling kids who are accused of crimes  stems from the 1990s concept of “super predators.” Driven by political rhetoric and sensational media stories,   there was a widespread public belief that juvenile offenders were prone to increasingly violent crimes. Earlier in her  law career, Fredricks recalls that there was not much discussion about whether a child needed to be shackled in the courtroom. The  presumption was that juveniles would enter the courtroom in restraints.  “It was very clear that it was kind of disruptive,” Fredricks tells Wisconsin Examiner. “It made it difficult for kids to pay attention, it was kind of distracting, embarrassing. They would be kind of withdrawn, compared to when I’d be with them when they weren’t shackled.”

The use of indiscriminate shackling of juveniles has been justified by the slightest possibility that a child could be disruptive or pose a danger in court. “I was never scared of my kids,” says Fredricks, adding that shackling only further stigmatized and traumatized her clients. “It just, to me, always seemed kind of unnecessary and frustrating that we were shackling these kids all the time.”

Over the course of the last decade a movement to change the practice has grown across the state. “In Wisconsin, I would say in 2014 was when we were really making a push,” says Fredricks, noting that judges brought up the issue in Dane County judges’ meetings. Initially, concerns about restraints were satisfied through a  motion to have restrains removed which needed to be filed 48 hours in advance. Some judges questioned the need to file a motion just to request that a juvenile not be shackled. “Ultimately, once we started having kids unshackled in court, people saw the benefit of kids really just engaging more, sitting up straighter, making eye contact,” says Fredricks.

Eventually, those calls developed into a petition to the Wisconsin Supreme Court amend the statute that sets rules regulating the shackling of children in juvenile court. The rule change prohibits the shackling of juveniles brought into the courtroom unless restraints are needed to prevent physical harm, if the child posed a flight risk or if there was  a history of disruptive courtroom behavior that placed others in harm’s way. The petition was filed by six Wisconsin judges from the circuit courts of Dane County, La Crosse County, Milwaukee County, Eau Claire County and Marathon County, as well as by attorneys Eileen Hirsch and Diane Rondini.

Comments on the rule change flowed in during December and January. In one comment, Era Laudermilk, chief of staff for the Cook County Public Defender’s Office in Illinois, spoke to the benefit of a similar rule change in her locale. Laudermilk stated that since the rule change, “incidents of violence in the courtrooms have not increased; rather there have probably been fewer, given the focus on de-escalation tactics instead of the use of shackles and force.”

Cecelia Klingele, an associate law professor at the University of Wisconsin Law School, emphasized that positive results of unshackling kids are borne out by research. “The negative effects of physical restraint upon children have been well documented by researchers,” she explained in her submitted comments, “but the profoundly detrimental — and potentially traumatizing — effects of shackling on children’s mental health should be apparent to anyone who cares for or works closely with youth. Indeed, physical restraint of the kind routinely applied in our courtrooms would be intolerable if indiscriminately used by teachers, medical providers, or caregivers.”

Tuesday’s  Supreme Court hearing included the testimony of numerous judges, attorneys, juvenile justice and mental health advocates calling for an end to indiscriminate shackling. Milwaukee County Circuit Court Judge Laura Crivello, who joined in filing  the petition, spoke about the importance of protecting a long-standing goal of courts to reduce recidivism and encourage rehabilitation. “We need youth to recognize their potential, and what they have to give to society,” said Crivello. “And wrapping a child in chains does not further that mission.” Crivello stressed that “judges need to change the perception of the youth in front of us, and we need to treat youth fairly. And fair is not a blanket policy that every child that comes in front of us is placed in shackles.”

Hirsch, a retired state public defender, says the nature of indiscriminate shackling in Wisconsin causes more harm than good. She describes the juveniles in court not as dangerous predators but as fragile kids “with substantial trauma in their backgrounds very frequently, or with mental health issues.” Hirch adds, “The evidence shows that shackling is harmful to juvenile courts as well. It interferes with an effective juvenile court process, and it can interfere with rehabilitation. So kids who are shackled in court, without specific reason or cause, tend to have higher recidivism rates than kids who are not shackled in court.” She stresses that “it’s the court’s issue because this affects the effectiveness of the juvenile court system.”

In Hirsch’s own experience, “kids who are shackled are often so distracted by the shackles, or so shamed by the shackles, that they become less able to actually pay attention to the proceedings, and talk to their counsel and work with their lawyers.” Conversely, when the children are not indiscriminately shackled upon entering court, Hirsch has found that they tend to be more expressive and communicative. “They’re more able to take in what the judge and other people in the courtroom are telling them,” she explains. “So that’s important to juvenile court processes, that the judge could actually develop a rapport with the child.”

Diane Rondini, a defense attorney and one of the petitioners for the rule change, says the Supreme Court rule change transcends politics. “Really the harm to our children that this creates, and the court system and the rehabilitative policies needs to be above and beyond politics.”