The Great Unshackling?

June 6, 2017
/ Author: Rick

I have long been an anti-shackling advocate. All my advocacy on that issue so far, however, pertains to children being shackled, which I have considered one of the great shames of our juvenile courts.

But, even though I’ve known that it’s equally wrong, I’ve never really addressed the issue of shackling adults. I’ll admit, the primary reason for that is this: my research brought me to the belief that one of the primary wrongs of shackling children is that it causes physiological changes to their brains. Adults, one could assume, don’t suffer the same effects, having passed the age of maximum plasticity in brain development.

My fear has always been that judges, and law enforcement, not being so concerned about such things largely not giving a shit what happens to the children brought before them however much lip service they pay to the idea of rehabilitation, would change the laws on shackling if I went after the also-reprehensible policies of shackling any human beings that came before them—even adults.

But one Court has “definitively” addressed the issue of this shameful and uncivilized practice. 

Of course, that Court is the Ninth Circuit Circuit Court of Appeals, so there’s always still the possibility that the United States Supreme Court will disagree. It’s not like the Supremes have cultivated a taste for being very pro-Constitution.

But, for now, the Ninth Circuit, via an Opinion written by Judge Kozinski, has kinda-sorta done the right thing.

One thing I love about this Opinion is the parallels I see to when I first began fighting juvenile shackles. [1]And, by the way, if you clicked on any of the links, or if you know me, you realize I was successful in getting the “policy” changed. Juveniles are no longer brought to court in Fresno in shackles, barring some specific reasons. Even then, I’ve sometimes managed to get the shackles removed. Cops love shackles; judges hate me disrupting proceedings more.

I still remember the day I decided that from that moment on, I would object to every single juvenile brought to court in shackles. [2]See my Motion to Allow Client the Dignity of Entering the Courtroom without Shackles. It was when a judge told me, essentially, that he wasn’t going to allow me to disrupt his courtroom, like I had others, by fighting over shackles. And, from the Opinion, a similar thing happened in San Diego:

After ruling on a few individual objections, the judges indicated that they didn’t “want to go through it a bunch of times.” “For the record,” one judge helpfully noted, “every defendant that has come out is in th[e] exact same shackling; so [counsel doesn’t] have to repeat that every time.”

Prior to that moment in my own cases, I had sometimes discussed the point with my client, and if my client said he did not mind the shackles, I had not always raised the objection.

Part of the reason for this is that the courts, in their resistance to doing the right thing, went at it all ass-backwards on the issue of juvenile shackles.

Perhaps the most important California case on this was Tiffany A. In that case, the Court stated:

Let a writ of prohibition issue directing the respondent court to set-aside its prior general policy concerning the use of physical restraints in the courtroom on all minors during juvenile delinquency proceedings; and to henceforth consider any request for the use of physical restrains upon minors in the court-room during court proceedings on an individual case-by-case basis in accord with the views expressed herein. (Italics added.)

My reading of this is that the default position the courts should take on shackles is “no shackles.” The court should “consider any request for the use” of shackles. In other words, the request comes; the court considers the request; the court rules on the request. If the ruling is “shackles are okay in this situation,” then, and only then, the shackles go on.

The “okay in this situation” part is crucial. Courts—at least in California, where my criminal defense law office is located—have long held that there needs to be a particular threat.

[W]e conclude that any decision to shackle a minor who appears in the juvenile delinquency court for a court proceeding must be based on the nonconforming conduct and behavior of that individual minor. Moreover, the decision to shackle a minor must be made on a case-by-case basis. [3]Tiffany A. v. Superior Court, 150 Cal.App.4th 1344, 1359 (2007).

The same standard technically should apply to adults. To quote from another brief I once wrote to remove shackles from a juvenile,

[T]he evidence of conduct utilized in adult cases that justify the use of restraints focuses on conduct relating to court proceedings. This includes threats to kill witnesses, attempts to hide weapons in the courtroom, escape attempts, repeatedly shouting obscenities in a courtroom, kicking the counsel table, attacking officers in the courtroom, and throwing oneself on the floor in the courtroom. (Italics added.)

Indeed, at least when it comes to adults in the presence of a jury, the same standard always has applied.

While the court retains discretion to order restraints when they are needed to protect against courtroom violence or other disruptions, we cautioned that imposing visible physical restraints without a record showing violence, a threat of violence, or other nonconforming conduct, “will be deemed to constitute an abuse of discretion.” [4]People v. Stevens, 47 Cal. 4th 625, 633 (2009).

But the lower courts haven’t cared very much about these standards. The standard they follow is, “if law enforcement wants it, then we defer to their judgment.”

As a fresh new attorney, it was once suggested to me that this was because judges, like lots of other people, were afraid of the retribution that comes from failure to submit to law enforcement. Given that as recently as a year or two ago, I saw a bailiff yell at a judge to get out of the courtroom, I don’t doubt it. [5]The deputies had decided to tackle some people who were yelling at each other. They yelled to everyone to clear the courtroom. The judge, however, continued sitting in his chair at the bench, until the bailiff yelled at him, too, at which point he obediently left.

In any event, it appears the Ninth Circuit, at least, may have grown some balls. They’ve decided that old constitutional principles don’t give way just because bailiffs say they do. At some point, even the courts just have to realize that things have gone a little bit overboard:

[A]nother defendant was shackled despite being brought into court in a wheelchair due to her “dire and deteriorating” health. The court “noted” her objection to the shackles and “appreciate[d] [counsel] not taking anymore time” with it.

The government—as Terry MacCarthy would call them, “the persecutors”—wanted the Ninth to stay out of it:

The government urges us to reconsider Howard, arguing that shackling decisions don’t satisfy the requirements for immediately appealable collateral orders.

Howard is an interesting case, because it actually allows for a kind of shackling at pre-trial hearings: leg shackles only. It also applied only in hearings before magistrates; not judges.

Because the shackling in this case is more burdensome and used more frequently than in Howard, it carries a greater risk of impeding the ability of defendants to participate in their defense and communicate with their counsel. The shackles at issue here are also a greater affront to the dignity and decorum of the proceedings, because the shackles themselves are more conspicuous and are used at many different stages of a criminal case. This shackling policy thus carries a greater risk of interfering with a defendant’s constitutional rights.

Frankly, this sounds pretty close to a horseshit argument. I mean, I’m glad that the Ninth is drawing a line, but the line should have been drawn as regards leg-only shackles, as well. I guess technically leg shackles are less “conspicuous” than five-point shackles; that doesn’t make them inconspicuous. I don’t see that they’re much less of an affront to the dignity and decorum of proceedings where those being brought to court in the shackles are supposed to be deemed innocent unless proven guilty. How do leg shackles interfere less with constitutional rights than five-point shackles? Do accused people say, “Gee, I feel less like a free person” in five-points than they do in leg shackles? I mean, psychologically, are leg shackles just no big deal?

At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty. See Taylor v. Kentucky, 436 U.S. 478, 483 (1978). 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. See Deck v. Missouri, 544 U.S. 622, 629–30 (2005).

It has long been the case that indiscriminate shackling is a violation of due process, but indiscriminate shackling has, through leaps and bounds, made its way into all our courtrooms. Now, maybe, the tide may start to turn.

We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. 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 shackles are the least restrictive means for maintaining security and order in the courtroom. (Footnotes deleted.)


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.

I don’t know about you, but I just can’t get enough of this opinion. It sounds almost like I wrote it, then edited out the swear words.

This right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty. The principle isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.


[W]e have a tradition dating from time out of mind that defendants will appear in court prior to their conviction as free men with their heads held high.

What’s not to like about this?

Well, for one thing, this isn’t the first trip to the altar for the Ninth Circuit dealing with this issue. In 2015, the Ninth Circuit addressed the exact same policy, deciding it was unconstitutional at that time. Despite their ruling,

For now, a marshals [sic] official said the policy will continue as is.

In other words, “Fuck you, Ninth Circuit.”

Other than the fact that they have the guns, I’m not really sure how they got away with that.

On the other hand, maybe they didn’t. This is why I put “definitively” in quotes near the top of this post, and why I said they “kinda-sorta” dealt with it. Because despite the wonderful flowery language, and the apparent ruling that the policy is unconstitutional, the Ninth Circuit denied the writ of mandamus that would absolutely put an end to the policy, at least where they have jurisdiction.

Their stated reason?

The policy that defendants challenged here isn’t presently in effect.

So maybe the Marshals backed down, after all.

Sadly, the policy does exist in California state courts, beyond the reach of the Ninth Circuit. Federal Courts—other than the United States Supreme Court—have only what’s called “persuasive power” over state courts. Ultimately, however, if the state courts choose to ignore them, their power is unpersuasive.

I mentioned the Ninth’s Opinion in this case to a judge in Kings County the other day. She merely shrugged her shoulders. I doubt there will be any changes there any time soon.

On the other hand, a deputy at the Fresno Superior Court this morning was talking to me about the Opinion. He brought it up; not me, which is actually what caused me to decide to blog about it today. The deputy shocked me by appearing to indicate they may try to implement a change in policy here.

In retrospect, I don’t know if he was talking about something real, or if he was just hypothetically warning what would happen if they did. I do remember him threatening that the bailiffs would bring “prisoners”—yep, that’s the word for guilty, and presumed-to-be-innocent-accused persons alike—out to the courtroom one at a time. He then said,

Let’s see how long that [policy against shackling] lasts.

Reflecting back on the judge who fled the courtroom when barked at by the bailiff a year or two ago, I think I know who’s going to win this fight.


1And, by the way, if you clicked on any of the links, or if you know me, you realize I was successful in getting the “policy” changed. Juveniles are no longer brought to court in Fresno in shackles, barring some specific reasons. Even then, I’ve sometimes managed to get the shackles removed. Cops love shackles; judges hate me disrupting proceedings more.
2See my Motion to Allow Client the Dignity of Entering the Courtroom without Shackles.
3Tiffany A. v. Superior Court, 150 Cal.App.4th 1344, 1359 (2007).
4People v. Stevens, 47 Cal. 4th 625, 633 (2009).
5The deputies had decided to tackle some people who were yelling at each other. They yelled to everyone to clear the courtroom. The judge, however, continued sitting in his chair at the bench, until the bailiff yelled at him, too, at which point he obediently left.

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