Sunday, June 04, 2017

Case o' The Week: Judicial Restraint(s) - Sanchez-Gomez and Shackling of Pretrial Defendants, En Banc

“At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty . . . . 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.”
The Honorable Judge Alex Kozinski


United States v. Sanchez-Gomez, 2017 WL 2346995 at *8 (9th Cir. May 31, 2017) (en banc) decision available here.

Players: Admirable decision by Judge Alex Kozinski, joined by Chief Judge Thomas, and Judges Reinhardt, Paez, and Berzon. Potent concurrence (and dissent commentary) by Judge Schroeder. (Six). 
  Dissent by Judge Ikuta, joined by Judges O’Scannlain, Silverman, Graber, and Callahan (Five). 
  Important shared victory for Reuben Cahn, Executive Director, Federal Defenders of San Diego, Inc., Chief Trial Attorney Shereen Charlick, AFPD Ellis Johnston, III, the entire staff of San Diego Defenders’ office, and Ninth Circuit Defender amici.

Facts: With one exception, San Diego federal judges acceded to the Marshals’ request to have pretrial defendants shackled in full restraints. Id. at *2. (District Judge Marilyn Huff “opted out of the policy altogether.”) 
  Defender objections were overruled. 
  The shackling policy was the same regardless of a defendant’s individual characteristics: defendants with a broken wrist, vision-impaired with a cane, brought into court sick and in a wheelchair: all were shackled. 
  When the defense objected, one court chided that it “appreciated counsel not taking anymore time with it.” Id. at *2. 
  Challenges from four defendants were consolidated before the Ninth. Id. at *3.

Issue(s): “We consider whether a district court’s policy of routinely shackling all pretrial detainees in the courtroom is constitutional.” Id. at *2. “Defendants challenge the Southern District’s policy of routinely shackling in-custody defendants without an individualized determination that they pose a material risk of flight or violence.” Id. at *3.

Held: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. 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.” Id. at *9 (footnotes and citations omitted).

Of Note: The Northern District of California, thankfully, has not suffered this blanket shackling policy. In other districts, however, U.S. Marshals continued shackling policies despite earlier and contrary Ninth Circuit authority. See article here.
"The Problem We All Live With," by Norman Rockwell
  Remarkably, even after Sanchez-Gomez was decided, there are early reports of Magistrate Judges in one district balking at unshackling defendants over Marshal objection, despite this controlling en banc decision.
  Federal Marshals famously enforced federal court orders in the 60’s. See generally here. Sanchez-Gomez raises the intriguing question of who enforces a federal court order, when the U.S. Marshal is the subject?

How to Use: How, exactly, did the Ninth get to this issue? The Defenders brought what was really a district-wide challenge, seeking relief not just for the four defendants in this action, but for all in-custody defendants. Id. at *3. Judge Kozinski explains that sometimes such challenges are brought as civil class actions, id. at *3, but can be construed as writs of mandamus as the Court exercises its “supervisory” or “advisory” authority. Id. at *4.
 Sanchez-Gomez is a seminal case on pretrial confinement in court, but is also an important en banc interpretation by the Court on its own jurisdictional powers. The decision is worth a read for that very interesting discussion, and is a good “Federal Courts” primer on mandamus authority and the supervisory powers.
For Further Reading: Sanchez-Gomez is a beautifully written decision. For a thoughtful analysis on why this is a “masterful” opinion (and some timely observations on the uncomfortably-close split the case engendered), see the posting of Professor Shaun Martin, available here.

Image of “The Problem We All Live With,” by original uploader User: Jengod, Fair use,

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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