Pretrial Shackling Unconstitutional, 9th Circuit Says

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By Jessica DaSilva

A policy of automatically shackling defendants in courtrooms violates the presumption of innocence, according to a May 31 ruling from the U.S. Court of Appeals for the Ninth Circuit ( United States v. Sanchez-Gomez , 2017 BL 181508, 9th Cir., No. 13-50561, 5/31/17 ).

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

The Southern District of California adopted a rule permitting the U.S. Marshals Service to determine whether to shackle defendants appearing in court during pretrial proceedings. Ultimately under this policy every defendant appeared in shackles, regardless of the individual’s potential dangerousness.

Any defendant wishing to appear uncuffed had to object, and the judge had to hold a hearing.

Many judges grew tired of the process with so many defendants filing in and out of court, so several simply automatically denied those objections.

The practice not only unconstitutional, but “inherently prejudicial,” the Ninth Circuit said.

“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,” Kozinski wrote.

Chief Judge Sidney R. Thomas and Judges Mary M. Schroeder, Stephen Reinhardt, Diarmuid F. O’Scannlain, Barry G. Silverman, Susan P. Graber, Richard A. Paez, Marsha S. Berzon, Consuelo M. Callahan, and Sandra S. Ikuta heard the case. Schroeder filed a concurrence, and Ituka dissented.

Federal Defenders of San Diego Reuben Camper Cahn, Shereen J. Charlick, and Ellis M. Johnston III represented the defendants.

Assistant United States Attorneys Daniel E. Zipp and Kyle Hoffman, with Appellate Section Chief of the San Diego United States Attorney’s Office Criminal Division Bruce R. Castetter, represented the government.

To contact the reporter on this story: Jessica DaSilva in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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