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Less shackling, sentencing changes coming for Utah’s youth offenders

Justice • Less shackling, more rights part of law revisions that were passed.

on Wednesday, June 18, 2014.

The boy's hands are cuffed together in front of him, attached to a heavy belly chain that rests on his hips. His feet are shackled, causing him to shuffle and slide into the juvenile courtroom.

It doesn't matter his age. Or his accused crime. If a youth is staying at a juvenile-detention center, he or she will be brought into court shackled.

But a new amendment to Utah's juvenile-offender laws, approved during the past legislative session, will likely change all that — and is making other big changes in how kids are treated in the juvenile-justice system.

'Shame and humiliation' • Advocates pushing for a change in Utah's habit of handcuffing juveniles say it is harmful and treats even the most minor offenders as hardened criminals.

Sen. Aaron Osmond, the South Jordan Republican who sponsored SB167, said shackling youths was not always the default in Utah, but has become the norm in recent years.

"In my view, the evidence was compelling that shackling a youth in court was unnecessary and only had negative psychological effects of shaming and embarrassment," Osmond said. " ... Unless the minor has a history of violence and is an obvious risk to himself [or] herself and the safety of those in the court, there is no reason to shackle every youth in court, regardless of the seriousness of the crime."

Pamela Vickrey, executive director for Utah Juvenile Defender Attorneys, said the juvenile-court system is supposed to focus on rehabilitation, and shackling interferes with youths' ability to talk with their attorneys or form a relationship with the judges. Vickrey said she spoke to one juvenile who remembered going to court, but she had little recollection of what was said at the hearing.

The way the shackles rested on the girl's wrists, however, was unforgettable.

"Juveniles are in a crucial stage of their development," Vickrey said. "They are vulnerable to lasting feelings of shame and humiliation. ... The purpose of juvenile court is rehabilitation and the indiscriminate shackling of juveniles is counterintuitive to this goal, as it traumatizes young kids and leaves them feeling like they are being treated like a criminal."

Whether juveniles should be shackled in court has become an issue in states other than Utah. Fourteen states have addressed the issue in some form, according to the National Juvenile Defender Center. The NJDC has launched a Campaign Against Indiscriminate Juvenile Shackling, saying handcuffing kids stigmatizes and traumatizes them.

Vickrey hopes that shackling in the future will be done on a case-by-case basis — reserved for only those juveniles who are a flight risk or a safety risk.

"I am hopeful the new legislation gives the discretion to shackle or not to shackle back to the juvenile-court judge," she said. " ... The goal of the legislation was for the judicial council to structure a rule that gives that discretion back to the judges. The juvenile-court judge is the person uniquely suited to make individualized decisions."

While Osmond and Vickrey hope that Utah will adopt a nonshackling approach to youth offenders, the ultimate deciders of the new rule will be the Utah Judicial Council, the 14-member policymaking body made up almost entirely of judges.

Though the amendments were passed during January's legislative session and signed into law by Gov. Gary Herbert in April, the shackling changes likely won't be implemented for some time.

Courts spokeswoman Nancy Volmer said that after the rule is drafted, it will go through two subcommittees before it reaches the Judicial Council for approval. The proposed rule then would go out for public comment, and any necessary revisions would be made. After those revisions, the rule would be finalized and take effect.

Until then, the court has already begun running a pilot program to "test the impact of not shackling youth in court," Osmond said. More than 300 youths appeared in four courtrooms in the Salt Lake Valley in a six-month period, according to Vickrey, and only 48 were restrained. There were no incidents of violence or escape, according to court officials.

While the specifics of the rule will be decided by the Judicial Council, officials with sheriff's offices in Salt Lake and Davis counties said they will adjust their policies to accommodate the new changes, but still plan to restrain youths while transporting them to and from the courthouse.

Sentencing changes • Along with changes to youth shackling, Osmond's bill also shifts how kids are sentenced when they are charged in adult court.

For juveniles convicted in adult court and sentenced to prison, the new law requires they be housed in a juvenile-detention center until they are 18 years old, at which time they would be transferred to adult lockups.

"They may not be sent to the adult penitentiary [before they are 18]," Osmond said, "unless the court feels that it is necessary for the safety of other prisoners."

Most frequently, Utah youths can be sent to adult court in three ways: Prosecutors can "direct file" in adult district court if the youth is over age 16 and is accused of murder or aggravated murder, or has already been to a secure facility and commits a serious felony after release. A 16- or 17-year-old's charges can also be moved into the adult system under the Serious Youth Offender statute if they are charged with one of 10 designated felonies — such as aggravated kidnapping, aggravated arson or aggravated sexual assault — and a preliminary hearing is held. At the end of that hearing, a juvenile judge will decide whether to keep the case in the juvenile system or send it to adult court.

But with any youth over age 14 facing felony charges, prosecutors can seek to have the juvenile certified as an adult. A judge will make that decision after hearing evidence and weighing the severity of the alleged crimes, the community's safety, as well as the youth's psychological records, family history and rehabilitation needs.

Salt Lake County District Attorney Sim Gill said research shows that the human brain continues to develop until age 24, so it "makes sense" to keep teenagers in a juvenile facility post-conviction, where they will likely receive more counseling and other services than at the adult prison. He said the sentencing change is a "step in the right direction."

"We don't want to set people up to fail," Gill said. "We want them to succeed. I think one of the things that I like about this legislation is it's really trying to bring those competing ideas to an intellectual discussion, and we can start to create a more respectful and fair and just criminal-justice system and get away from historical practices which may have served its purpose at one time, but are now antiquated."

Right to counsel • Vickrey said another important issue that was addressed in SB167 involves a juvenile's right to an attorney. She said youth offenders will sometimes opt to not have an attorney represent them in court, even when they face serious charges that could have long-lasting effects on their future.

"People have a perception," she said, "The idea is that it's not a criminal conviction like an adult conviction."

Vickrey said the juvenile-court system's goal is rooted in rehabilitation. But when the allegations are serious, they can impact a youth's future in many ways — like in obtaining a driver license or medical licensing, along with immigration consequences.

The new amendments require that a youth charged with a felony offense have an attorney provided. Youths cannot waive their right to a lawyer until they have had "a meaningful opportunity" to discuss their case with an attorney, the law reads.

Vickrey said youths charged with misdemeanors still can hire their own attorneys — or have public defenders appointed — but it is by request, not an automatic action, as the new law requires for felony cases.

"A defense attorney helps a kid understand what is going on, and makes sure their voice is heard," Vickrey said. "... It's important you are treated fairly, and a juvenile defender helps do all of these things."

jmiller@sltrib.com

Twitter: @jm_miller

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