WSR 14-05-022

RULES OF COURT

[February 6, 2014]

The Washington State Bar Association having recommended the adoption of proposed New JuCR 1.6, and the Court having approved the proposed new rule for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed new rule as shown below is to be published for comment in the Washington Reports, Washington Register, and on the Washington State Bar Association and Office of the Administrator for the Courts' websites expeditiously.

(b) The purpose statements as required by GR 9(e), are published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2014. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929 or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 6th day of February, 2014.

Suggested Juvenile Court Rule 1.6 addresses the routine shackling of juveniles in courtrooms in Washington absent an individualized determination that restraints are necessary to maintain order and prevent injury. The suggested rule would create a procedure to ensure that juveniles brought before juvenile courts in Washington would not appear in shackles unless the court found that there were no less restrictive means to ensure the safety of the court and to allow for orderly proceedings; it would not prohibit the use of shackles in every case.

Washington courts recognize that juveniles' due process rights are implicated when they are restrained during court proceedings.1 Forty-five years ago, the Supreme Court's landmark ruling in In re Gault, 387 U.S. 1 (1967) held that juveniles are entitled to the same procedural rights as adults in court proceedings. Adoption of this rule would ensure those procedural rights in all juvenile courts in Washington.

There is currently no court rule establishing a standard procedure for removing shackles from a youth prior to his or her appearance in juvenile court. Washington State courts vary widely in the use of shackles. A survey conducted by University of Washington Law Students found that both juvenile offenders and status offenders are routinely shackled in juvenile courtrooms in a majority of the counties in the state, including Thurston, Pierce and Snohomish counties. Only one county, Chelan, has adopted a court order prohibiting the routine shackling of youth. In this rural county, shackling is permitted only when deemed necessary by the juvenile court judge or commissioner.2 Several larger counties, including King, Clark, Yakima and Spokane, do not shackle juveniles. Like the newly adopted Court rule in Chelan, suggested JuCR 1.6 would presume that juveniles appear unshackled and would not require a juvenile to request removal of restraints.

Suggested JuCR 1.6 would provide a standard procedure for the court to determine whether a juvenile should be shackled in the courtroom. A judge would be required to make a finding on the record that shackles are the least restrictive means to ensure that the courtroom will be secure and orderly. The suggested rule would require that any physical restraint be removed prior to the youth's appearance before the court unless the judge deemed the use of restraints necessary. This suggested procedure would provide a meaningful safeguard to ensure that every youth in Washington State has equal access to justice in the juvenile court system.

1 State v. E.J.Y. 113 Wn. App. 940, 951-952, P.3d 673 (2002).

2 Chelan county Juvenile Court GENERAL ORDER Number 2010-01 In re: SHACKLING OF JUVENIL DETAINEES APPEARING IN COURT

(a) Use of Restraints on Juvenile Respondents. Juveniles shall not be brought before the court wearing any physical restraint devices except when ordered by the court during or prior to the hearing. Instruments of restraint, such as handcuffs, ankle chains, waist chains, strait jackets, electric-shock producing devices, gags, spit masks and all other devices which restrain an individual's freedom of movement shall not be used on a respondent during a court proceeding and must be removed prior to the respondent's appearance before the court unless the court finds both that:

(1) The use of restraints is necessary due to one of the following factors:

(A) Present behavior of the respondent represents a current threat to his or her own safety, or the safety of other people in the courtroom;

(B) Recent disruptive courtroom behavior of the respondent has placed others in potentially harmful situations or presents a substantial risk of inflicting physical harm to himself or herself or others; or

(C) Present behavior of the respondent presents a substantial risk of flight from the courtroom; and

(2) There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the respondent or another person, including, but not limited to, the presence of court personnel, law enforcement officers, or bailiffs.

(b) Challenge to the use of restraints. Before or after any juvenile is ordered restrained, the court shall permit any party to be heard on the issue of whether the use of physical restraints is necessary in a particular situation or as to a particular child.