Defendants are currently brought to federal court in leg and arm shackles attached at the waist and are required to wear them for almost every federal court hearing outside of trial and sentencing, following a recent policy set by the national United States Marshal Service.
Defense lawyers are protesting the restraints, on the record, to the judges. They say the shackles are inhumane and prejudice the proceedings.
“It’s shocking to see people bound hand and foot, it’s something from the Middle Passage or Jim Crow era,” says Reuben Cahn, head of Federal Defenders, which represents indigent clients in federal court. “It’s humiliating and demeaning. It tells defendants that all the rights the courts say people have — the right to be tried by their peers and the right to a fair trial, that they are innocent until proven guilty — that all of that is meaningless.”
Every one of the 58 lawyers Cahn supervises is protesting on the record that the shackles violate clients’ rights, including their Fifth Amendment rights, he said. But almost all of the judges defer to the Marshals Service and leave defendants shackled throughout their hearings.
The majority of federal court defendants are there for nonviolent offenses.
“In this district, most defendants are first-time offenders with border-related crimes, crossing illegally for the second time, smuggling drugs — big and small quantities — and transporting illegal aliens,” Cahn said.
Most of the defendants in San Diego federal court are there for nonviolent, border-related defenses. Of 3373 criminal cases handled in the courts in 2012, 33 were for violent offenses that include four homicides. According to the U.S. Courts Judicial Business 2012 report, the district handled 1283 immigration-related cases, including illegal re-entry, more than any other federal court district in the Ninth Circuit. (Arizona had more illegal re-entry cases but fewer immigration cases.) The courts handled 1539 drug cases, including 313 marijuana cases, usually involving smuggling — 20 percent of all the cases in the Ninth Circuit.
Contacted for comment, the U.S. Marshal Service provided of copy of a letter from presiding U.S. District judge Barry Ted Moskowitz outlining the reasoning behind the change. The letter clearly says the judges retain the ability to ask the marshals to remove the chains during proceedings.
The policy change may be tied to an incident in judge Irma Gonzalez’s court in the spring of last year, when one of several Mexican Mafia codefendants attacked another during a hearing. The marshals say one gangster stabbed the other, while the lawyers present describe the attack as punching.
Ironically, Judge Gonzalez is one of few judges who will order defendants unshackled for hearings.
Gene Iredale, who practices in federal court, has protested the shackling at hearings. He calls the practice “demeaning and ugly.”
“The imposition of a blanket chaining order without there being a serious threat is not in keeping with the federal tradition enunciated by U.S. Supreme Court justice Felix Frankfurter that the courts are palladiums of liberty,” he said.
Iredale feels the shackling policy is a solution to a problem that didn’t exist. “Here in San Diego, the Marshals Service has always been extraordinary in dealing with the security of the courtroom and the humanity of the defendants.”
Chaining, Iredale stated, “says the person is treated like an animal, has no human value, has no rights.”
Cahn said he has clients charged with first-time, nonviolent offenses for whom shackling is painful.
“I have a client who is a veteran of Iraq and Afghanistan who suffered extensive spine and bone injuries from an IED and has post-traumatic stress disorder. It not only causes him physical pain to be held in that position and unable to walk upright, but it causes him extraordinary anguish because of the PTSD.”
Cahn says the impact of being shackled on people who have never been convicted of anything may affect the justice they seek.
“I’m concerned our clients will abandon their defenses so they don’t have to go to court. We have clients who don’t want their families at the proceedings because it’s too humiliating,” he explained. “This is punishment before the conviction.”
Other lawyers say the shackling during hearings poses practical problems that interfere with the defense.
“For me, the hardest part is that when clients need to tell us something, they would be able to write a note and now they can’t,” said an attorney (who asked not to be named) after a hearing where her client was left shackled. “They can barely get the translator’s headphones on and you’re not allowed to help them.”
Other lawyers worry that jurors are being prejudiced.
For example, that the key figure in the U.S. Navy bribery scandal, Leonard Francis, was brought to court and sat through the hearing in shackles was widely reported. His lawyer, Pat Swan, was able to get the judge to order the shackles removed.
In some cases, the defendants are people who are coming to a hearing to be sent into a diversion program — after the U.S. attorney has agreed they pose no risk to society and can be rehabilitated, Cahn said.
“Every person who arrives at the Metropolitan Correctional Center is screened at arrival: their criminal history is reviewed and whether or not they are a threat is determined on a case-by-case basis. Very few are,” he said. “But they’re all brought shackled to court.”
The majority of the district and magistrate judges deny requests to have defendants unshackled and defer to the new policy, defense lawyers report. Former judges Irma Gonzalez, Janis Sammartino, and Marilyn Huff have ordered shackles removed for hearings, lawyers say. “The judges have control over their courtrooms,” Iredale says flatly, and Cahn agrees.
“That’s the most disturbing thing, to raise this objection to judges who don’t see anything wrong with it,” he said. “The judges operate on the assumption that the defendants believe the judge won’t be biased against them because they are innocent until proven guilty, and then they allow the defendants to be chained like animals. You can see why a defendant would doubt the judge is interested in justice.”
In late November, Cahn argued against the blanket policy before judge Larry Burns, who turned down the writ of mandamus. Cahn will be appealing the ruling to the Ninth Circuit Court of Appeals, he said.