Why shackle every federal defendant?
Alexandra Smoots-Thomas stood handcuffed and shackled with her head downcast before a Houston magistrate on federal charges she’d illegally misspent campaign funds. The 44year-old, who had recently undergone chemotherapy, was accustomed to court appearances, but she usually viewed them from the vantage point of the bench.
Prosecutors agreed to release Smoots-Thomas, a presiding judge in state court, on bond without conditions at the November hearing. That night, the civil judge tearfully said that standing in chains was “the most humiliating thing she had ever been through in her life,” recalled her attorney, Kent Schaffer.
“You would have thought that they were bringing a serial killer into court,” Schaffer said. “Here is a woman who can barely walk at all. She’s tiny compared to all these marshals. Why is she going to be shackled? Is she going to run away?”
The now-suspended judge’s treatment reflects the standard practice in a region where most federal judges follow guidelines of the U.S. Marshals Service, which recommends keeping defendants under lock and key regardless of whether they are accused of a violent crime. Everyday practices vary widely across the country, but in the
Houston region, with few exceptions, everyone — including pregnant, elderly and infirm defendants, as well people using wheelchairs and walkers — appears in court in some form of restraints.
The marshals’ policy governs security measures when deputies are escorting defendants through hallways, elevators, stairwells, sally ports and holding cells, but the balance tips inside the courtroom, the universe of the judiciary branch, where judges and magistrates may decide to uncuff and unshackle people. Few do so.
Lee Rosenthal, chief judge for the 43-county region, said her colleagues prefer to impose the “least constraint necessary for security,” but most keep the cuffs and shackles on in the absence of a jury. Defendants are typically unshackled during jury trials; sometimes, as in the case of a recent armored car robbery trial involving four suspects, defendants’ leg irons are concealed behind a skirt around the defense table.
The default shackling practice — handcuffs, leg restraints and a belly chain linking cuffed hands to the waist — is a “horrible specter” and a civil rights violation in the eyes of Marjorie A. Meyers, the chief federal public defender in the district since 2004. It’s an issue she has raised with seven or eight newly appointed judges.
“I haven’t convinced any of them,” Meyers said, not even a protege from the public defender’s office who became a Houston magistrate in 2018.
Two veteran judges in the Southern District, Lynn Hughes in Houston and Ricardo Hinojosa in McAllen, routinely request that defendants be unshackled and uncuffed inside their courtrooms, according to Meyers, who has appeared before judges across the region since 1983. But the other 27 lifetime appointees in the Southern District generally opt to keep defendants in some form of restraints, she said.
Rosenthal, the chief judge, said they try to balance issues of security against those of fairness and to weigh what type of proceeding it is and what the defendant’s history is.
She sometimes asks for shackles to come off if a person is not feeling well or has physical limitations. Some judges have defendants uncuffed to raise their hands to be sworn in or to review or sign documents.
‘Chained like animals’
In the rest of the country, federal court shackling practices vary widely. In Oakland, Calif., the norm is for defendants to be unshackled unless the judge has a specific reason to think they’re a threat, according to a public defender who has practiced there for decades. In Arizona, the norm is to shackle everyone because there is a staffing shortage at the marshals service, said Jon Sands, the chief federal public defender. Across Louisiana, people accused of nonviolent crimes generally appear without handcuffs in front of the judge, said Michael Walsh, a lawyer from Baton Rouge, La., who has appeared at most courthouses in the state.
Meyers is among many defense lawyers who practice in federal court nationally and told the Houston Chronicle they’re disturbed that judges permit shackling of people who are presumed innocent.
“I think that people should not be chained like animals … like circus elephants,” Meyers said. To her, it’s a humanitarian matter, it’s a constitutional issue, but it’s also a question of basic propriety: “Having people clanking around in chains is not very decorous.”
She believes defendants should be allowed to change into street clothes and appear without restraints to avoid implicit bias. A judge may try to set aside gut reactions, she said, “But looking at somebody in an orange jumpsuit in chains affects the way you look at them: Your image of them is different, and it’s got to play a role in the back of your mind.”
Rosenthal said judges defer to the marshals’ recommended protocol, especially in the wake of recent incidents when defendants attacked witnesses, prosecutors, deputy marshals and court security staff.
Judge Keith P. Ellison — who oversaw the historic prison heat case at the Pack Unit and is generally viewed as patient and deferential to criminal defendants — said he changed his practice of removing restraints after an unshackled defendant in the Rio Grande Valley stabbed a deputy marshal in the neck with a razor blade in 2009.
“I decided then that I should quit telling the marshals how to do their job,” Ellison said. “I ask for unshackling now only when the defendant looks physically incapable of violence.”
‘Judicial hostility’
The issue of security is at the forefront for magistrates, who are on the front lines when it comes to shackling policy. In the quadrant of Texas headquartered in Houston, they hear cases from many defendants at a time when they’re handling initial appearances. They usually have little or no information about the crowd of defendants the marshals bring into their courtroom. Many of these prisoners wait in the courtroom while a magistrate hears the entire docket for that session.
Given these circumstances, Magistrate Judge Nancy Johnson said her colleagues prioritize the safety of everyone in the courtroom, including all defendants, deputies, attorneys, pretrial services personnel, court staff and the public. Johnson said if there’s a reason to release someone, judges will address it.
The exception to the rule, in Meyers’ experience, is Magistrate Judge Peter Ormsby in McAllen, who asks for restraints to be removed, even when there are approximately 70 defendants packed in the room.
Security needs to be balanced against other compelling issues, Meyers argues. She cites a California case, U.S. v. Sanchez-Gomez, that found that judges may restrain a person if there a compelling purpose for doing so and that shackles are the least restrictive means to ensure security. The U.S. Supreme Court vacated that case on appeal because the defendant was no longer in pretrial custody — an issue that hampers challenges, since the defendant has often been acquitted or convicted before the case comes up on appeal.
Meyers also references a Virgin Islands case that framed shackling as a form of “judicial hostility” that interferes with attorney-client communication, compromises a person’s dignity and undermines the presumption of innocence. The court found shackling in U.S. v. Ayala was not a violation of the defendant’s rights because it was not a capital case, the defendant was not sentenced by a jury and the district court did not merely delegate the shackling decision to the marshals.
For Schaffer , who has practiced criminal law nationally for decades and represents the suspended judge Smoots-Thomas, the issue of whether to shackle is a simple matter of looking at the individual defendant and making a judgment on that basis.
“For somebody who has no history of violence,” he said, “the only purpose it serves is to humiliate them.”