High Court Mulls Appellate Restraints on Criminal Shackling (1)

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By Jordan S. Rubin

When Justice Stephen G. Breyer hypothesizes out loud about people in court being bound, gagged, and hanged upside down while wearing body armor, that could signal something more than a humdrum technical argument at the Supreme Court.

Even though the justices didn’t directly tackle whether it’s constitutional to routinely shackle criminal defendants in court, some of the substance and feeling behind the question of “liberty,” as some members of the court characterized it, seeped into the March 26 argument in United States v. Sanchez-Gomez.

When the high court agreed to hear the case, it declined to take up whether it was constitutional for federal courts in Southern California to routinely shackle criminal defendants. The U.S. Court of Appeals for the Ninth Circuit ruled it wasn’t.

Instead the justices looked at a narrower issue: whether the Ninth Circuit even had authority to consider the policy challenge.

Different justices focused on different parts of that question at argument. But in some instances, it was suggested that the substance of the shackling issue was bound up in the procedural aspect.

But Breyer and his colleagues tackled elements of the appellate issue in varying ways. This included whether they should send the case back to the Ninth Circuit, leaving in doubt on what grounds the court might rule and for whom.

Can They Appeal? And How?

Four defendants challenged the shackling policy while their cases were pending at the trial court level. They had been charged with illegal reentry, drug offenses, and other crimes.

In scrutinizing the Ninth Circuit’s ruling that the policy was unlawful under the Fifth Amendment’s due process clause, a good deal of the argument centered on whether the challengers were allowed to appeal their shackling while the cases were pending, and under what legal mechanism.

Allon Kedem, assistant to the U.S. solicitor general, said the challengers couldn’t bring their claims because their cases were pending. So they weren’t appealing “final orders” as required by statute, he said.

Justice Anthony M. Kennedy pushed back on the idea that their trials needed to end first.

“It seems to me there may well be a legal violation in shackling people, particularly people with disabilities and so forth, and that doesn’t have anything to do with the trial,” he said.

The notion of being able to challenge shackling outside the context of a trial appeal led Breyer to ask about the “very hypothetical” bound, gagged, upside down defendant.

“If, by some chance, they have a policy in a court, a federal court of the United States, that people will come in bound and gagged in body armor, hung upside down, O.K., you’re saying even if that’s so, that person in this country has no way of challenging that order,” he said to Kedem.

Kedem said that hypothetical defendant could bring a mandamus petition, an extraordinary filing that can allow appellate courts to make lower courts enforce certain rights.

“There would be a clear abuse of discretion” in Breyer’s scenario, Kedem conceded.

So then why can’t the challengers here have brought mandamus petitions? Breyer asked.

This case is different, Kedem said, in effect.

“What I think people are asking you is it seems harsh to say that there’s really no way of presenting those claims,” Justice Elena Kagan told Kedem.

Repeat Customers

By the time the Ninth Circuit ruled for the challengers to the shackling policy, they were no longer being shackled under their initial cases.

That led Kedem to argue here that their claims were moot.

“Mootness would be probably the most straightforward way to resolve the question,” he said in response to prompting from Justice Samuel A. Alito Jr.

But, notably, two of the four challengers had been rearrested and shackled again after they appealed.

Their lawyer, Reuben C. Cahn of the federal defenders of San Diego, pointed to that fact during the argument.

He said their claims could go forward under the “capable of repetition yet evading review” doctrine, which applies to moontess in all sorts of cases, including abortion disputes.

Pushing back against Kedem, Chief Justice John G. Roberts Jr. noted the rearrests.

“It turned out to be true, right? Two of the four were, in fact, arrested again and did go through the shackling again?” he asked.

Kagan noted the fact that the rearrests were for illegal reentry could be significant, given the high rate of recidivism for that crime.

“I suspect you, in fact, see extremely high levels of recidivism for that crime because people often have their families here,” she said.

Class Action?

The Ninth Circuit ruled for the challengers to the policy because it said they presented “class like” claims.

But despite appreciating that ruling, Cahn didn’t vigorously defend its reasoning, if at all.

“It’s quite unclear” whether they could, in fact, bring a class action, Cahn said.

The lack of enthusiasm struck Alito.

“it’s pretty remarkable that, whether you’ve abandoned the point or not, you certainly have not made any effort to defend it,” he said.

Ginsburg noted that, by statute, the federal defenders actually can’t even bring a class action. So the prospect of that class remedy is “more imaginary than real,” she said.

Roberts chimed in to point out that attorneys’ fees might be available, suggesting private attorneys could be incentivized to bring these claims.

Justice Sonia Sotomayor asked if confusion surrounding the class action theory should lead them to send the case back to the Ninth Circuit.

“If we don’t accept the class action mechanism they use—it’s a big but—hypothetically, if we don’t accept that, shouldn’t we just remand and let them decide whether this is capable of repetition or not?” she asked.

The civil action issue prompted Kagan to ask Cahn something she was “just curious” about.

“At some point why didn’t one of the lawyers in your office pick up the phone—there are a host of organizations that I can imagine bringing a suit like this one outside of any individual criminal case—why didn’t that call get made to one of those organizations?” she asked

“The lawyers, the resources just aren’t there to bring those cases in San Diego,” Cahn replied. “It’s that simple.”

The case is United States v. Sanchez-Gomez , U.S., No. 17-312, argued 3/26/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

For More Information

Argument transcript available at src.bna.com/xkI.

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