September 2018Volume 49Number 3PDF icon PDF version (for best printing)

A call to end routine shackling of custodial defendants

In most Illinois criminal courtrooms, defendants are separated into two categories: those who have the financial means to post bail and the dangerous, berserk animals who cannot.

Well, at least that’s the conclusion a courtroom spectator might draw at a routine pretrial hearing, when the side door opens and the in-custody defendants shuffle into the courtroom, flanked by armed deputies, jingling and jangling like Harry Houdini taking the stage for an escape trick.

It’s not often we see our fellow citizens in chains. After a subtle physical recoil, we usually take mental note—perhaps subconsciously—of the social distance between us and them. “There go the bad guys,” one might reasonably think, “the ones who would do harm if not restrained.”

But this is almost always wrong. In most Illinois courtrooms, shackles are the uniform attire of all in-custody defendants, with no individualized consideration given to a defendant’s dangerousness or likelihood of escape. Most often the difference between the defendant in chains and the defendant in khakis is nothing more than financial ability to post bond.

Consider a recent personal experience in a Champaign County courtroom. I was appearing in arraignment court with a client who had posted bond after being charged with criminal sexual abuse. He entered the courthouse through the metal detectors, wearing a black polo shirt tucked into khaki pants, and sat in the gallery of the courtroom along with other members of the public. As I sat waiting for his case to be called, the side door to the courtroom opened, and in came an armed correctional officer escorting a man wearing a full orange jumpsuit, orange flip-flops, metal chains around his ankles, and handcuffs that were secured tight to his waist with a thick, black Velcro belt. I came to learn that he too was charged with criminal sexual abuse, but the alleged facts of his case were no more alarming than those of my client.

On paper, the man in chains was different from my client in only one meaningful way: he couldn’t post bond. The judge had not found him to be dangerous (at least no more dangerous than anyone else accused of such an offense). Having no pockets, there was no risk he had a weapon. And he was certainly no more likely than my client to make a break for Mexico. Yet, purely as a consequence of his being financially unable to post bond, he was forced to make his public court appearance draped in the trappings of a dangerous person.

Last year, the Ninth Circuit Court of Appeals ruled that, even in pretrial proceedings, “[b]efore 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.”1 In so ruling, the court held that the fundamental, constitutional right to be free from unwarranted restraints prohibited the courts from (1) delegating that constitutional question to those who provide security and (2) instituting routine shackling policies reflecting a presumption that shackles are necessary in every case.

Judge Kozinski, writing for the court, astutely concluded that “[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.” 

This past term, the U.S. Supreme Court accepted Sanchez-Gomez for review, but reversed the ninth circuit’s decision on mootness grounds without reaching the merits of the constitutional question of routine shackling.2 

As is often proclaimed from legal soapboxes, optics matter. Placing a fellow citizen in chains sends the message that the person is dangerous and unsuited for freedom. It dehumanizes—and not in a liberal arts, snowflake-y kind of way, but in an old school, Indiana Jones and the Temple of Doom kind of way. It’s primitive, and our criminal justice system is better than that.

Our courts should respond to risk and minimize threats, but the routine shackling of all custodial inmates is grand overkill. If security personnel have reason to believe a custodial defendant presents a particularized danger, they should be able to make their concerns known to the court and request permission to use appropriate restraints, as the situation demands. But the routine shackling of all custodial inmates at all court appearances reflects a constitutionally imbalanced approach, one that cuts away far too much liberty in the pursuit of absolute safety.       

1. U.S. v. Sanchez-Gomez, 859 F.3d 649 (2017).

2. U.S. v. Sanchez-Gomez, 138 S.Ct. 1532 (2018).

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