The Shackling of Pretrial Defendants

by Dana M. Grimes, Esq.  

In United States v. Sanchez-Gomez, 584 U.S. -, No. 17-312 (2018), the Court vacated the Ninth Circuit’s en banc decision striking down as unconstitutional the Southern District’s policy on pre-trial shackling of defendants. The Supreme Court did not rule on the merits. Instead, it found the case was moot because “before the [Ninth Circuit] court could issue a decision, [the defendant’s] underlying criminal cases came to an end.”

So, is there any way to challenge the shacking policy? According to the opinion:

“None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.”

Below is a discussion of the Ninth Circuit opinion.

“At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty . . . . And while the phrase may be well-worn, it must also be worn well: We must guard against any gradual erosion of the principle it represents, whether in practice or appearance. This principle safeguards our most basic constitutional liberties, including the right to be free from unwarranted restraints.”

So says U.S. v Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc), a case dealing with restraints in the courtroom. This Ninth Circuit opinion was published May 31, 2017. It was a 6-5 decision, and the majority justices and dissenting justices expressed unusually strong disagreement. The case was brought by Federal Defenders of San Diego, Inc., and argued by Reuben Cahn, the executive director of that office.

In 2013, the judges of the Southern District of California acceded to the U.S. Marshals Service’s request for a district wide policy of allowing the Marshals Service to produce all in custody defendants in full restraints for most non-jury proceedings. “Full restraints” means that a defendant’s hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together.

Justice Kozinski writes for the majority in holding this shackling is unconstitutional. He says it is not just about the defendant, it is about courtroom decorum and dignity.

“The most visible and public manifestation of our criminal justice system is the courtroom. Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of the proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if the defendants are marched like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.”

Kozinski goes on to state that this right has “deep roots in the common law”, and that the Due Process Clause specifically protects those fundamental rights which are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.

“We have a long history of giving correctional officers a wide berth in maintaining security within their own facilities. But we don’t have a tradition of deferring to correctional or law enforcement officers as to the treatment of individuals appearing in public courtrooms…Insofar as they have information pertaining to particular defendants, they may, of course, bring it to the court’s attention. But a blanket policy applied to all defendants infuses the the courtroom with a prison atmosphere. The Marshals Service should not have proposed it and the judges should not have paid heed.”

Justice Ikuta writes a strongly worded opinion for the dissenting justices. He says that the majority is “far removed from the potential dangers of the trial court”, and “in reaching its conclusion, the majority ignores Article III’s limitations on federal judicial power, conjures up an unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustified circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution”. He points out that in supporting the courtroom restraint policy, the Marshals Service relied on several factors. In 2013 alone, there were two separate inmate-on-inmate assaults inside courtrooms; an inmate was stabbed in the face as a result of one of those assaults. Several detainees had armed themselves with homemade weapons in holding cells, including an inmate with no violent background who attempted to smuggle a razor blade in his shoe. The Marshals Service determined that it lacked sufficient information to predict which detainees would present a danger. In many cases, detainees with no history of violence, or those charged with nonviolent offenses, engaged in violent acts while in custody. In 2013, there were seven detainee-on-staff assaults in the Southern District of California. Moreover, the Marshals Service can only access limited criminal background information regarding detainees who are not residents of the United States, and the Southern District of California hears an unusually high number of cases involving such detainees. The Marshals Service concluded that it had little ability to predict which detainees would present a danger. They also took into consideration the close quarters in the courtrooms used by magistrate judges, the configurations of the courtrooms used by district judges, and the budgetary constraints on the Marshal’s Service. In short, the Marshals Service security recommendations arose from a confluence of factors, many of which were specific to the Southern District of California.

“Making this case even simpler, the district court’s deference to the Marshals Service, the entity Congress statutorily charged with providing courtroom security, 28 U.S.C. 566(a), is consistent with the Marshals Service role as an expert entity charged with securing courtrooms and managing pretrial detainees during their court appearances.”

In her opinion concurring with the majority, Justice Schroeder writes: “I fully concur in Justice Kozinski’s opinion and with its comprehensive historical analysis. I write separately only to offer a brief comment about Judge Ikuta’s lengthy, well written dissent.”

“In addition to noting my disagreement with the dissent’s interpretation of the common law and Supreme Court authority, I also observe that the dissent unfortunately lacks sensitivity to two of the most important components of our system of justice. The first is the dignity with which court proceedings should be conducted. The dissent thus ignores the degradation of human beings who stand before the court in chains without having been convicted, or in many instances, without even having been formally charged with a crime. Second, the dissent lacks sensitivity to the proper role of the judges as opposed to the Marshals Service even though no district court judge has ever made a finding of fact concerning the data’s accuracy or whether it provides a good reason for this unprecedented mass shackling.”

“Our court today correctly upholds the proper role of judges, as opposed to jailers, in the courtroom.”