Monday, August 8, 2016
Ninth Circuit to Review Southern District’s Detainee Shackling Policy En Banc
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday agreed to decide, en banc, the validity of the Southern District of California’s policy of shackling pretrial detainees for most non-jury court appearances.
The court, in a brief order signed by Chief Judge Sidney Thomas, said a majority of its unrecused active judges had voted to grant en banc review in United States v. Sanchez-Gomez, 13-5056.
A three-judge panel ruled in August of last year that the policy, which provides that a detainee will appear in court unshackled only if the judge specifically requests it, could not be sustained on the basis of the record before it. The evidence suggested that the policy was primarily based on economic concerns, which was not enough to satisfy the due process concerns, Senior Judge Mary M. Schroeder explained for the panel.
She was joined by Judge Jacqueline Nguyen and U.S. District Judge Jack Zouhary of the Northern District of Ohio, sitting by designation.
The case came to the Ninth Circuit on consolidated appeals by four defendants, who argued that the policy of restraining most detainees in leg shackles and handcuffs connected to a belly band by a 15-inch long chain violates the Due Process Clause. The policy had been adopted by the district’s chief judge at the request of the Marshal Service, which cited staffing cutbacks, some security incidents, and the opening of a new courthouse as justification.
Schroeder, however, said such a policy “cannot rest primarily on the economic strain of the jailer.” The U.S. Supreme Court, she noted, has held that shackling of detainees undermines the presumption of innocence, interferes with attorney-client communication and thus with the constitutional right to counsel, and renders the judicial process undignified.
She distinguished the Ninth Circuit decision in United States v. Howard (2007) 480 F.3d 1005, in which the panel struggled through three opinions—all written by Schroeder—over a two-year period before upholding the routine shackling of detainees at first appearances before magistrate judges in the Roybal Courthouse.
In a November 2005 opinion, Schroeder—joined by Judge Ronald M. Gould—said the policy lacked adequate justification. Judge Richard Clifton dissented.
But in September of the following year, the panel ruled on rehearing that Bell v. Wolfish (1979) 441 U.S. 520 compelled a different result. Bell holds that courts “ordinarily defer to the expert judgments and professional expertise of corrections officials” in determining whether a restraint policy imposed by the government is reasonably related to a legitimate goal. Schroeder said on that occasion that the policy was reasonably related to security concerns expressed by the Marshal Service.
In March 2007, the panel withdrew the previous year’s opinion, but reached the same result with a somewhat different rationale. She noted the heightened concerns arising from proceedings taking place in a large courtroom in the presence of multiple defendants, with attendant risks of conflict, violence, or escape.
Schroeder also noted that the policy had been revised to provide for the use of leg irons only, rather than full restraints, and that a defendant could ask the court for removal of the shackles due to extenuating circumstances.
In Sanchez-Gomez, however, Schroeder said the Southern District policy was far more intrusive than the Central District rules approved in the earlier case, because full shackles were permitted, the policy applied to a wider range of proceedings before both district judges and magistrate judges, and the security justification had less evidentiary support.
She cited United States v. Zuber (1997) 118 F.3d 101, which upheld the shackling of an individual defendant at a sentencing hearing before the same judge who had presided over the trial. The Second Circuit held that the trial court was not required to conduct an individualized hearing every time a prisoner was brought into court. Id. At such a sentencing proceeding, the trial court properly deferred to the “professional judgment of the Marshals Service regarding the precautions that seem appropriate or necessary in the circumstances,” the Second Circuit said.
“That case did not involve a blanket pretrial policy of shackling all defendants regardless of the circumstances,” Schroeder noted, “but rather approved limited deference to the Marshals’ judgment that individual defendants be shackled in particular circumstances.” Such deference, she wrote, “is a far cry from deferring to the Marshals’ request that all defendants be shackled in all appearances before trial.”
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