The Ninth Circuit held last fall – in United States v. Howard, 429 F.3d 843 (9th Cir. 2005) – that courts could not shackle defendants during non-jury court proceedings without some justification, at least of a general sort. See Howard, 429 F.3d at 851 (leaving open the question of whether there must be a defendant-specific justification). All the opinion actually requires is that the government and/or the Marshal’s office make some record of justification, see id. at 846, 851, but the government has petitioned for rehearing nonetheless. The Ninth Circuit has ordered a response, and as I have worked on the response, I’ve pondered: "Why are we doing this?" Of course, I mean "we" in the more generalized sense of our judicial system, for I doubt defense attorneys desire such generalized shackling of their clients.
The Ninth Circuit should not – and hopefully will not – vacate the panel opinion in Howard, but the question of what to do will remain either way. If the panel opinion stands, there will be efforts by marshals’ offices – and prosecutors who may feel bound to "represent" the marshals’ offices – to make a record that justifies shackling even under Howard, and district courts will have to decide how to exercise their judgment under Howard. If the panel opinion does not stand, it will simply leave discretion in the district courts, for the Ninth Circuit will certainly not require shackling. So I offer some thoughts not on whether we – again, meaning the system as a whole – can shackle defendants, but whether we should.
First, let’s think about whether and why it matters. The other side argues that shackles are much less physically uncomfortable and painful than they used to be. They are, in the words of Justice Thomas – in dissent, mind you – "nothing like the restraints of long ago." Deck v. Missouri, 125 S. Ct. 2007, 2018 (2005) (Thomas, J., dissenting). See also id. at 2017-18 (citing T. Gross, Manacles of the World: A Collectors Guide to International Handcuffs, Leg Irons and Other Miscellaneous Shackles and Restraints 25 (1997)).
But what about the psychological effect? How must it feel to a defendant to shuffle up to the podium or counsel table in leg irons and/or belly chains, like a slave, or one already consigned to a chain gang, or one condemned to a totalitarian gulag in old Soviet Siberia? And how effectively does a defendant who feels like that present himself or herself to the judge who is deciding whether to detain him or her or deciding what sentence he or she deserves? How many defendants have been detained or been denied probation not because the chains had some psychological impact on the judge – who at least in theory can set that effect aside – but because the chains had some subtle effect on the defendant’s demeanor? Then what about the demeaning effect that parading defendants in the courtroom in chains has not just on the defendant but on all of us? It is not just the defendant whom the chains demean. It demeans all of us. We trumpet our system and our Bill of Rights – rightly so – as enlightened and respectful of the individual, and all of us – defense attorneys, judges, prosecutors, and hopefully even law enforcement officers – participate in the system at least partly because of that. And sometimes respect during the process – and an appearance of respect – is all the system can give a defendant in these days of harsh and sometimes mandatory sentencing laws.
My research in preparing the opposition to the petition for rehearing in Howard – and the citation of Blackstone in the Supreme Court’s most recent shackling opinion in Deck v. Missouri, see id., 125 S. Ct. at 2010 – led me to old common law commentators’ discussions of shackling in 17th and 18th century England, where one might expect views to have been much less enlightened. Views then were not less enlightened, however. Blackstone himself wrote:
The prisoner is to be called to the bar by his name; and it is laid down in4 William Blackstone, Commentaries on the Laws of England *317.
our antient books, that, though under an indictment of the highest nature,
he must be brought to the bar without irons, or any manner of shackles or
bonds; unless there be evident danger of an escape, and then he may be
secured with irons.
Blackstone did go on to note the contrary ruling in Trial of Christopher Layer, 16 How. St. Tr. 94 (K.B. 1722), see 4 Blackstone, supra, at *317, but the Layer case was not so much stating the general rule as applying the exception. The prisoner in Layer was charged with the most serious crime of high treason, and the prosecuting attorney alleged that he had attempted to escape, explaining: "[T]he prisoner hath been kept [in chains] as all persons in his circumstances are, when they have been attempting to make an escape; there was an attempt of that nature made by him." Layer, 16 How. St. Tr. at 97. And the judge based his ruling on this, stating: "I do not think a man charged with high treason of this nature, can be said justly to be too well guarded, especially if it be true what hath been suggested, that he hath endeavored to make his escape." Id. at 101.
Other old common law commentators of Blackstone’s era agreed that shackling at arraignment was not permitted in the absence of special circumstances. Burn, whose work Blackstone commended to his readers, see 1 Blackstone, supra, at *343, stated the rule as had Blackstone: "The prisoner on his arraignment, though under an indictment of the highest crime, must be brought to the bar without irons and all manner of shackles or bonds unless there be a danger of escape, and then he may be brought in irons." 1 Richard Burn, Justice of the Peace 67 (1755). Coke wrote: "If felons come in judgement to answer, etc., they shall be out of irons, and all manner of bonds." 3 Edward Coke, Institutes of the Laws of England *34. Hale wrote: "The prisoner, tho under an indictment of the highest crime must be brought to the bar without irons, and all manner of shackles or bonds." 2 Matthew Hale, Pleas of the Crown *219. Interestingly, Hale also noted what the defense conceded in Howard – that prisoners could be brought to court in shackles, and simply "stand at the bar unbound." Id.
Finally, another commentator, Hawkins, wrote:
2 William Hawkins, Pleas of the Crown 308 (1724). As evidenced by the latter part of this quotation, it was not just complete shackling but also partial shackling such as that at issue in Howard, i.e., "fetters on his feet," which was forbidden.
Every person at the time of his arraignment, ought not to be used with all the humanity and gentleness which is consistent with the nature of the thing, and under no other terror or uneasiness than what proceeds from a sense of his guilt, and the misfortune of his present circumstances; and therefore ought not to be brought to the bar in a contumelious manner; as with his hands tied together, or any other mark of ignominy and reproach; nor even with fetters on his feet, unless there be some danger of a rescous or escape.
The common law rule on shackling at arraignment was thus like the rule on shackling at trial, that there be no shackling unless there was a danger of escape or violence. Have we become less enlightened then our old common law ancestors? Did defendants have it better in 17th and 18th century England?
One can ask – and the other side certainly does – whether respect for these high-minded but arguably symbolic principles justifies risking a defendant’s flight and/or injury to one of the other participants in courtroom proceedings. You may say this now, they say, but you wouldn’t be talking so idealistically if you were the one who was hurt.
Perhaps. But unless we are to allow "security" to take complete priority with no balancing at all, it is fair to ask how much risk there really is and to say that a relatively minimal risk does not justify grossly demeaning our courtrooms, the process, and the people who must go through them.
So how much risk is there? As to flight from and/or violence in the courtroom during court proceedings – which is all we are talking about here, since Howard still permits the shackling of defendants in the lock-up, while they are being taken to and from court, and probably even while they are waiting for their cases to be called – defense attorneys’ experience is as relevant as that of the marshal’s offices. I have been a deputy federal public defender for over twenty years and have witnessed and/or talked with other attorneys about thousands of court appearances during that time. At the time this litigation about shackling commenced, I had heard of – not seen, but heard of – a grand total of four incidents where a defendant tried to flee or became even partially violent in the courtroom. When we commenced the litigation, I took a survey of all the deputy federal public defenders in my office – with criminal practice experience ranging from a few months to twenty-five years – and was told about three additional incidents I hadn’t heard of. This suggests a grand total of seven incidents – some of which were in jury trials where the defendants could not have been shackled without particularized concerns anyway – in tens of thousands of court appearances in our district. I would expect other districts’ experiences are comparable.
Recent memos I have seen from the marshals’ offices in Alaska and Sacramento
[Click on attachments to view]
suggest they can’t come up with anything more. The Alaska memo points to several incidents involving defendants in cells or defendants being moved to or from court – where shackling would not be barred by Howard – but only one incident involving a defendant in court – a woman who threw water at a prosecutor after she received a ten-year sentence.
The Sacramento memo points to a greater number of incidents but only two to five incidents – depending on how you count – that took place in the courtroom during a court proceeding, which is the only time Howard would apply. One was an incident during a jury trial – where there are well-established limits on shackling even without Howard – which involved only spitting and verbal threats. Two others involved a defendant named Charles White – about whom there appeared to be prior knowledge of dangerousness which would have justified shackling even under Howard. Another involved a defendant who had been summoned to court and so was not in custody and could not have been handcuffed in any event. The other incident that took place during court proceedings was one that had taken place some ten years earlier, and a colleague from the Eastern District of California tells me that this defendant might have also been anticipated to be violent and so been shackled even under Howard.
One may reasonably suggest that if this is the most even the marshals’ offices can come up with, and they have to go back ten years to do it, it proves our point. The risk, while perhaps not absolutely zero, is minimal.
One response to the attempt to look at empirical evidence and experience is an argument that the marshals are the experts in security and so we ought to just accept their advice. But whether even all the marshal "experts" agree is unclear. I had a recent conversation with one deputy marshal who suggested that defendants whom deputies treat with respect are less likely to become uncooperative and defendants who are treated without respect are the ones most likely to become uncooperative. He wondered if keeping people shackled in chains might make them more resentful and more prone to become disruptive. Perhaps it is when we treat people like animals that they are most likely to act that way.
Putting these comments aside, there is more at issue here than security. In the jail and prison context – where security is all that is at issue – the courts have given great deference to custodial officials, perhaps for good reason. As the Supreme Court pointed out in Bell v. Wolfish, 441 U.S. 520 (1979): "[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration, and . . . it would not [be] wise . . . to second-guess the expert administrators on matters on which they are better informed." Id. at 531 (internal quotations omitted).
Here there are issues of court administration, however, and in that area, it is courts that are better informed and courts that are well equipped. Courts have an appreciation for issues of courtroom decorum and dignity and issues of due process which security officers may ignore or grossly discount. Unlike the operation of correctional facilities, which "is peculiarly the province of the Legislative and Executive Branches of our Government," Wolfish, 441 U.S. at 548, the operation of the courts is the province of the Judicial Branch. As Howard put it:
Restrictions on defendants during judicial proceedings, however, are not within the realm of correctional officials. The conduct of judicial proceedings is the domain of the Courts. Preservation of dignity and decorum are necessary for the conduct of judicial proceedings that determine issues of liberty and life.Howard, 429 F.3d at 851.
These thoughts are appropriate even if Howard does not stand, in guiding courts in their exercise of whatever discretion they end up having. Today, it is just a general shackling policy as to which the marshals' offices want judges to take their word on, but what will be next? Controls on the scheduling and timing of hearings? Controls on whether and when to allow the public into proceedings? Controls on whether and when the defendant can be present? Controls on other fundamental court decisions on which not just security concerns but the interests of justice should have influence?
Letting the concerns of security officials control on this issue of shackling without requiring a justification brings to mind comments made by, first, the Supreme Court over 100 years ago, and, second, a veteran United States Senator less than two months ago. The Supreme Court warned: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). Then the United States Senator, the Honorable Robert Byrd of West Virginia, in discussing the "Patriot Act," warned:
There is no doubt that constitutional freedoms will never be abolished in one152 Cong. Rec. S1654 (daily ed. Mar. 2, 2006) (statement of Sen. Byrd).
fell swoop, for the American people cherish their freedoms and would not
tolerate such a loss if they could perceive it. But the erosion of freedom
rarely comes as an all-out frontal assault, but rather as a gradual, noxious
creeping, cloaked in secrecy, and glossed over by reassurances of greater
Maybe what we have to fear is not what unshackled defendants might do. Maybe what we have to fear is something else. To paraphrase Franklin Delano Roosevelt, maybe the only thing we have to fear is fear itself.