Metropolitan News-Enterprise


Wednesday, November 16, 2005


Page 3


Ninth Circuit Strikes Down Local Policy on Shackling of Defendants


By a MetNews Staff Writer


A policy under which all custodial defendants making their initial appearances in the U.S. District Court for the Central District of California are required to wear leg shackles violates the Due Process Clause, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

“[B]ecause it is undisputed that the policy effectuates a diminution of the liberty of pretrial detainees and distracts from the dignity and the decorum of a critical stage of a criminal prosecution, we conclude that the shackling policy requires adequate justification of its necessity,” Chief Judge Mary M. Schroeder wrote for the court.

The court may reinstate the policy or adopt a similar one, Schroeder wrote, but only if it makes “a reasoned determination that it is justified on the basis of past experiences or present circumstances in the Central District.”

Judge Ronald M. Gould joined in the opinion, but Judge Richard Clifton dissented, arguing that the court’s legitimate security concerns should be held paramount in the absence of a showing that the policy has caused real harm to defendants.

The Federal Public Defender’s Office challenged the policy on behalf of more than a dozen defendants whose motions to appear without the shackles were denied by various magistrate judges. The district judges reviewed the policy, which was implemented in 2003 on the recommendation of the Marshals Service, and upheld it.

Among the evidence the district judges considered was a declaration by the chief deputy marshal, who said it was “not possible to conduct an individualized analysis of a defendant at the time of the initial appearance,” and that the shackling policy was necessary to ensure safety and order in the courtroom.

He also cited current staffing shortages in the Marshals Service.

But Schroeder said the evidence presented to the judges was insufficient to support shackling as a matter of policy, even at the first appearance, where the magistrate advises the defendant of his or her rights, reads the charges, appoints counsel if necessary, sets or denies bond, and schedules dates for future proceedings.

The chief judge acknowledged that cases on whether shackling before a judge, rather than a jury, violates due process have been few and conflicting. But while the lack of a jury eliminates the problem of prejudice, identified by the Supreme Court as requiring a specialized showing of need before shackling will be permitted, it does not eliminate all of the problems associated with shackling, she said.

“Shackling a defendant in any judicial proceeding can have negative effects,” Schroeder wrote. “The Supreme Court has stated that ‘the use of [shackling and restraints] is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.’....Moreover, the Supreme Court expressed concern that restraints could greatly reduce the defendant’s ability to communicate with his counsel....This court has noted that shackling may confuse and embarrass the defendant, thereby impairing his mental faculties....Shackling may also cause the defendant physical and emotional pain.”

The jurist suggested that the district judges had been overly deferential to the Marshals Service. It is up to judges, not correctional officials, to make certain that court proceedings are conducted with appropriate “dignity and decorum,” Schroeder wrote.

“A court should insist on some showing that a policy impinging on defendants’ freedoms and ability to communicate, as well as diminishing the decorum of the court proceedings, is reasonably related to a legitimate goal,” the chief judge continued. “By requiring the government to establish the need for the policy, the court can ensure that the policy does not constitute punishment of pretrial detainees during judicial proceedings.”

But Clifton, dissenting, said the difficulties suggested by the chief judge were speculative.

“The justification for the policy — to improve court security — is evident, while there is essentially nothing in the record that demonstrates any actual negative impacts from the practice when there is no jury present to be influenced, as there is not during the initial court appearance,” the dissenting jurist argued. “At a time when concern for court security is understandably and properly high, I would accept the judgment of the district court — and the collective judgments of the judicial officers most affected, the magistrate judges of the Central District — and affirm.”

The majority’s due process analysis was flawed, Clifton went on to say, because it was based on the premise that shackling was punitive, even though it was “plain” that the court’s intent was not to punish pretrial detainees.

The judge noted that when first appearances are held, detainees are brought to, and taken from, the courtroom wearing handcuffs and waist chains, which are removed before they face the magistrate, in addition to the leg shackles.

“The advantage of maintaining some of that control in the courtroom, by leaving the leg restraints on when the handcuffs and waist chains are removed, is clear,” Clifton wrote. “That is particularly true when the Marshals Service is understaffed, as we know that it is. If we cannot be sure that there will be sufficient deputy marshals or other security officers present in the courtroom to control all unrestrained defendants, then it makes sense to leave the leg restraints on....”

The record, he said, was “completely blank” as to any actual harm suffered by any defendant as a result of being shackled at first appearance.

The case is United States v. Howard, 03-50524.


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