Ky. Prov. Juv. Ct. R. P. & Prac. JCRPP 20
There shall be a presumption that no child shall be restrained upon entry into the courtroom. This presumption may be rebutted with good cause shown.
Ky. Prov. Juv. Ct. R. P. & Prac. JCRPP 20
Commentary
While KRS 640.010 referring to preliminary hearings does not mention KRS 635.020(4) relating to use of a firearm in a felony, the latter section states that a preliminary hearing is required to determine whether there is probable cause to believe that the child committed a felony using a firearm, and that the child was over 14 years of age at the time of the commission of the felony, before the court may transfer the case for grand jury proceedings. Therefore, there is no "automatic transfer" of a firearms felony offense absent a finding of probable cause to believe that the child has committed such an offense. See K.R. v. Commonwealth, 360 S.W.3d 179, 185 (Ky. 2012).
Commentary
Use of restraints in a courtroom has generally been defined to include handcuffs, waist chains, ankle restraints, zip ties, or other restraints that are designed to impede movement or control behavior. (National Council of Juvenile and Family Court Judges, Resolution Regarding Shackling of Children in Juvenile Court, 2015 [hereinafter NCJFCJ Resolution]).
The Association of Prosecuting Attorneys has issued a Statement of Principles concerning the use of restraints in court that states in part, "[t]here should be a presumption against the use of restraints on juveniles in court without appropriate evidence-based and data-driven assessments indicating that there are no less restrictive alternatives to restraints that will prevent flight or physical harm to the child or another person, including, but not limited to, the public, court personnel, law enforcement officers, or bailiffs." The prosecutors note that minors "are impressionable and the indiscriminate use of restraints in court has been shown to influence juveniles such that it negatively impacts their future behavior and also fosters a negative perception of the criminal justice system, including decreasing their level of cooperation and engagement with courtroom stakeholders." (Association of Prosecuting Attorneys, Statement of Principles, 2015).
This concern is echoed by the National Council of Juvenile and Family Court Judges as it notes that restraining children in court may infringe upon the presumption of innocence, undermine confidence in the fairness of our justice system, interfere with the right to a fair trial, impede communication with judges, attorneys, and other parties, and limit the child's ability to engage in the court process. Given that research in social and developmental psychology has indicated that restraints can interfere with healthy identity development, be traumatizing and contrary to the developmentslly appropriate approach to juvenile justice; negatively influence how a child behaves as well as how a child is perceived by others; and promote punishment and retribution over rehabilitation and development of children under the court's jurisdiction, it is critical to recognize the need for continued attention and consistent judicial leadership to ensure that policies regarding treatment of children in juvenile and family court are fair, age appropriate and promote justice. (NCJFC Resolution).
This rule is likewise in accord with the American Bar Association, Criminal Justice Section Resolution 107A, which states thusly: "RESOLVED, That the American Bar Association urges all federal, state, local, territorial and tribal governments to adopt a presumption against the use of restraints on juveniles in court and to permit a court to allow such use only after providing the juvenile with an opportunity to be heard and finding that the restraints are the least restrictive means necessary to prevent flight or harm to the juvenile or others." (American Bar Association, Criminal Justice Section Resolution 107A, 2015).
The NCJFCJ Resolution supports a presumptive rule or policy against shackling children, recommends that requests for exceptions be made to the court on an individualized basis and that such requests must include a cogent rationale, including the demonstrated safety risk the child poses to him or herself or others. In accord with juvenile and family court practice, JCRPP 20 creates such a rule in its purest and simplest form.