The Road to End Shackling in Deschutes County
by: TomCr49 • June 26, 2015 • no comments
The first time I realized that shackling juveniles was wrong was when I was asked to cover an emergency arraignment on a kid in detention for threatening to kill his teacher.
I was at counsel table looking at the discovery when the jailer brought in the prospective client, a seven-year-old who when standing was shorter than I am sitting down. He was in handcuffs, belly chains and ankle chains, despite having come into the courtroom detention facility from an area where restraints are not required.
When the referee walked in the courtroom I rose and could barely maintain decorum as I said, “I demand that the shackles be removed from this child immediately.” The referee nodded to the jailer and we waited until all of the hardware had been removed. Ultimately all charges against him were dismissed as saner heads prevailed in that post-Columbine climate. I’ve thought about him many times over the intervening years and wondered how he thinks about that day and the overreaction by the adults in his life.
Several times in the years since I have been a part of a group attempting to end the practice in Deschutes County. Two years ago we almost succeeded. After a discussion with the head of the detention facility during which we determined we held the same views, he was able to persuade his boss to eliminate the practice. The new policy was set to go into place when the then-presiding judge (who has since retired) declared, “This is a courthouse security issue” and had the local Public Safety Committee veto the change.
Last summer, my desire to eliminate shackling was reignited. I was representing a 10-year-old who was fully shackled in court when I received an email from my daughter with a new signature line:
- Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.
- — Dr. Seuss, The Lorax
That simple quote made me realize that the shackling policy wasn’t going to change on its own. Later, while on a site review to Washington County, I got to know the new Deputy General Counsel to OPDS, Amy Miller. She indicated that one of her priorities is to end shackling statewide. I promised I would do what I could to bring the issue up in Deschutes County.
A conversation with the head of detention revealed he was still on board with eliminating shackling. The new DAs assigned to juvenile were people I had initially hired. They weren’t lifelong prosecutors, so they didn’t have strong feelings that every kid should be in restraints. The referee was ambivalent about it but mainly wanted to make sure people in his courtroom felt safe.
I approached our presiding judge and indicated that shackling was an area of concern—an indication from OPDS was that they would be encouraging juvenile practitioners around the state to challenge the practice by litigation, if necessary. I told her that we would be prepared to do that, but that I always thought a collaborative approach worked better. She agreed on the approach but indicated, “I’m not up on the issue, educate me.”
I provided her with materials (available from me by request, tc@crlaw.org), and over the next month every time I saw her she would tell me where she was in the process of wading through them. Finally, she called me in her office and said, “My reaction in reading most of those articles was ‘Duh!’” She asked me who would oppose the change, and I updated her on my contacts with the various players in the system. We discussed how the policy change should be accomplished. I suggested a court policy similar to that formulated by the Washington Supreme Court, but she thought that since the Juvenile Department was in favor of the change they should just change their policy. Needless to say, her position prevailed.
Ultimately the juvenile department took several months to write a policy, then wanted it reviewed by others, including the sheriff. Judge Brady decided to bring it up to the Public Safety Committee and persuaded them that it was the right thing to do. As of April 27, 2015, youths appear in court unshackled unless there is concern for escape risk or risk of violence, and the judge must approve the use of shackles before the individual is brought into court. Based on my years of appearing in that facility, my guess is that this exception to the policy will rarely be invoked.
Though the process took significantly longer than I had hoped, the desired result was ultimately achieved and all parties bought into the change. Now when I appear in juvenile court and am standing next to a client, I no longer get a knot in my stomach because of the hardware the person is forced to wear.
OCDLA member Tom Crabtree practices law in Bend. He serves on the Juvenile Law Committee. This article originally appeared in the June/July 2015 issue of The Oregon Defense Attorney journal.
