Courtesy of James R. Touchstone, Esq. of Jones & Mayer
On May 31, 2017, the Ninth Circuit Court of Appeal, sitting en banc, issued an opinion in United States v. Sanchez-Gomez wherein the defendants challenged the Southern District’s policy of routinely shackling in-custody defendants without an individualized determination that they pose a material risk of flight or violence. The Court clarified that the right to be free of unwarranted restraints guaranteed by the Fifth Amendment of the United States Constitution applied whether the proceeding is pretrial, trial, or sentencing, with a jury or without. The Court held that before a presumptively innocent defendant may be shackled, the Court must make an individualized decision that a compelling government purpose would be served and that the shackles are the least restrictive means for maintaining security and order in the courtroom. Further, the Court held that courts cannot delegate this constitutional question to those who provide security, such as the U.S. Marshals Service. Nor can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.
Facts and Background
In 2013, the judges of the Southern District of California acceded to the U.S. Marshals Service’s request for “a districtwide 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.
In July 2013, the United States Marshals Service, pursuant to its congressional charge “to provide for the security . . . of the United States District Courts,” 28 U.S.C. § 566(a), recommended that the judges of the Southern District of California allow the Marshals Service to produce all in-custody defendants in full restraints for non-jury proceedings.
The Marshals Service based this recommendation on several factors. First, a number of dangerous incidents had recently occurred in the courthouse. 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. The Marshals Service also discovered that several detainees had armed themselves with homemade weapons in holding cells, including a detainee with no violent background who attempted to smuggle a razor blade in his shoe.
Second, 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 who were charged with non-violent offenses, engaged in violent acts while in custody. For instance, in 2013 there were seven detainee-on-staff assaults in the Southern District of California. Six of the offenders had been charged with non-violent offenses, and five of those six had no histories of violence. Moreover, the Marshals Service could access only 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. Accordingly, the Marshals Service concluded that it had little ability to predict which detainees would present a danger.
After seeking input from the U.S. Attorney’s Office, the Federal Defenders of San Diego and a Criminal Justice Act panel representative, the judges adopted the policy of deferring to the Marshals’ shackling decisions, with a few minor exceptions. The judges retained discretion to “direct the Marshals to produce an in-custody defendant without restraints.” Additionally, any judge could opt-out of the policy for his or her courtroom.
The shackling policy was the same regardless of a defendant’s individual characteristics.
Ninth Circuit Court’s Decision
The defendants in this case sought relief not merely for themselves, but for all in-custody defendants in the District. Thus, the defendants made class-like claims and asking for class-like relief. The en banc Court agreed that the claims by defendants could proceed as a class action for the benefit of all in-custody defendants. The defendants challenged the Southern District’s policy of routinely shackling in-custody defendants without an individualized determination by the judge that they pose a material risk of flight or violence.
The Ninth Circuit held that the fundamental right to be free from unwarranted restraints is protected by the Fifth Amendment of the Constitution. “At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty”. (Citation omitted.) “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.” (Citation omitted.)
Under the Fifth Amendment, no person shall be “deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. The Supreme Court has said time and again that “[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (alteration in original) (quoting Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 18 (1979) (Powell, J., concurring in part and dissenting in part)). Liberty from bodily restraint includes the right to be free from shackles in the courtroom. See Deck v. Missouri 544 U.S. 622, 629–30 (2005)
Relying on the United States Supreme Court’s holding in Deck v. Missouri, supra, the Ninth Circuit reiterated that:
“[T]he Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an essential state interest’—such as the interest in courtroom security—specific to the defendant on trial.” Id. at 624 (quoting Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)). In evaluating the government’s justification, a court may “take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.” Id. at 629. While the decision whether to shackle is entrusted to the court’s discretion, routine shackling isn’t permitted. Id. at 629, 633. Instead, courts must make specific determinations of necessity in individual cases. Id. at 633.
The Supreme Court identified three constitutional anchors for the right: (1) the presumption that a defendant is innocent until proven guilty; (2) the Sixth Amendment right to counsel and participation in one’s own defense; and (3) the dignity and decorum of the judicial process, including “the respectful treatment of defendants.” Id. at 630–31. In jury proceedings, an additional concern is that the sight of a defendant in shackles would prejudice the jury against him. Because prejudice is difficult to discern from a cold record, shackles visible to the jury are considered “inherently prejudicial.” Id. at 635 (quoting Holbrook, 475 U.S. at 568). But when security needs outweigh these other concerns, even visible restraints may be used. Id. at 632.
Consistent with Deck v. Missouri, supra, the Ninth Circuit held that criminal defendants have a “constitutional right to be free of shackles and handcuffs in the presence of the jury absent an essential state interest that justifies the physical restraints.” (Citations omitted).
In a somewhat scathing dissent, in which four other judges joined, Judge Ikuta noted that: “Far removed from the potential dangers of a trial court, the majority holds that criminal defendants whose cases are now moot can use their individual appeals as vehicles to invalidate the prospective application of a federal district court’s policy of deferring to the United States Marshals Service on questions of courtroom security.” Judge Ikuta further stated that: “In reaching this conclusion, the majority ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution. We should not be hearing this case at all, much less using it to announce a sweeping and unfounded new constitutional rule with potentially grave consequences for state and federal courthouses throughout this circuit.” (Emphasis added.)
Judge Ikuta also reiterated the Marshalls Service’s motivations for recommending the rule. Specifically, Judge Ikuta noted that the Marshalls Service had stated that it many times had insufficient information to effectively vet inmates for prospective acts of violence because it did not possess accurate prior criminal history for many inmates. Judge Ikuta observed that several prior acts of violence committed by inmates in the courtroom were by inmates with no prior acts of violence or other indicators that would permit a meaningful determination of the potential for violence by those inmates.
The dissent observed that: “The question presented on the merits is whether the Constitution precludes placing restraints on detainees during pretrial proceedings before a judge in the absence of a special need.” (Emphasis added.) The dissent noted that the majority based its decision, in part, on “Deck v. Missouri, in which the Supreme Court considered ‘whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution.’” The dissent noted that Deck involved shackling before a jury that was considering punishment of a person convicted of a capital offense, which was inherently prejudicial to the defendant.
In contrast, the policy under consideration by the Court concerned proceedings outside the presence of the jury. As such, the dissent argued that the Deck case was inapplicable and that the majority had improperly extended the holding of the case to pretrial proceedings. The dissent also noted that the majority’s decision created a circuit split on the issue of shackling pretrial detainees between the Ninth Circuit and the Second and Eleventh Circuits, both of which hold that the rule against routine shackling only applied to proceedings before a jury.
The dissent also observed that: “The ramifications of the majority’s holding will reach into courthouses of every size and capacity, yet the majority never once pauses to consider the consequences of its one-size-fits all security decree.”
HOW THIS AFFECTS YOUR AGENCY
This ruling does not mean that criminal defendants may not be shackled while in custody and in court. Rather, it provides that the decision to shackle a criminal defendant is ultimately up to the judge after consideration, on a case-by-case basis, under all of the circumstances, whether there is a compelling governmental interest that outweighs a defendant’s right to be free from shackles.
Lower courts are now required to consider concerns such as evidence of prior disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities. Sheriff’s Departments, entrusted with courtroom security, should analyze their policies, in light of the Sanchez-Gomez decision, to ensure they are compliant with the holding of this case.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at email@example.com.
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