The federal courtroom in Tucson lacked a familiar sound Tuesday: the clanking of chains as dozens of people accused of crossing the border illegally took their seats.
The 47 people who appeared in court did so without the shackles around their wrists, waists, and ankles worn by thousands of their predecessors at U.S. District Court in Tucson.
All criminal cases in Arizona’s federal courthouses were affected by a decision by the 9th U.S. Circuit Court of Appeals that reversed a longstanding policy in the District of Arizona requiring defendants wear restraints except when in front of a jury.
It is unclear when defendants at the Tucson federal courthouse began wearing shackles, but defense lawyers said it began at least 15 years ago.
Before the circuit court ruling, the “vast majority” of defendants in the federal court in Tucson wore restraints throughout the proceedings, said Eric Rau, an assistant federal public defender.
The majority opinion in the 6-5 decision by a panel of circuit court judges, which was based on cases from Southern California, stressed that defendants are innocent until proven guilty and should be treated accordingly.
Judge Alex Kozinski, who wrote the opinion, said shackles should be used only when a judge makes an “individualized decision” that the defendant poses a security risk.
He cited another judge’s ruling that stated prisoners suffer degradation “when needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”
Judge Sandra S. Ikuta, who wrote the dissent, accused the majority of “inventing a new right out of whole cloth” and putting courtrooms at risk of violence.
“The majority’s rule therefore fails not only as a matter of law, but also as a matter of common sense,” Ikuta said.
The Tucson federal courthouse sees about 4,500 criminal cases each year, including 1,300 immigration-related cases, according to U.S. District Court annual reports.
The circuit court decision also affects thousands more immigration cases prosecuted through Operation Streamline, a fast-track program in which defendants appear before a magistrate judge in groups as large as 70 at a time.
The Border Patrol, which runs Streamline, does not release annual totals for the program’s prosecutions.
On Tuesday, Streamline defendants appeared in groups of seven and without shackles, although many kept their hands clasped behind their backs. Defense lawyers said their clients were shackled before entering the courtroom and immediately after leaving.
The U.S. Marshals Service, which is responsible for the defendants, could not be reached for comment about the effects of the new policy.
The circuit court decision was published May 31 but did not take effect in Arizona until July 14. In response to a request from the U.S. Attorney’s Office, the circuit court had issued a stay while the government considered an appeal to the U.S. Supreme Court and judges grappled with how to implement the circuit court’s decision.
Some District of Arizona judges chose to observe the stay in having the decision take effect, but public defenders argued the decision was already published and should be implemented circuit-wide, according to a July 21 brief from the U.S. Attorney’s Office.
While the circuit court judges considered whether to order District of Arizona judges to have defendants unshackled, defense lawyers made individual requests of judges to unshackle their clients.
For defense lawyer Hortencia Delgadillo, who said she has handled Streamline cases since the program arrived in Tucson in 2008, the removal of the shackles was a matter of “dignity” for her clients.
“We’re very happy to see defendants are being treated like the human beings that they are,” said Victoria Brambl, a lawyer with the Federal Public Defender’s Office in Tucson.
Migrants who arrive at a dining hall for deportees in Nogales, Sonora, regularly complain about the physical and psychological effects of the shackles, said Joanna Williams, a spokeswoman for the Kino Border Initiative.
After the circuit court decision, KBI volunteers started writing down those complaints. Some said the shackles were used by authorities who wanted them to feel like criminals. One woman said her handcuffs were so tight, the marks were still visible after she served her 30-day sentence.
In her dissent, Ikuta said the appeal was moot because the four people named in the lawsuit had left custody prior to their appeal being heard.
She said the “majority’s rhetoric about the presumption of innocence has no place in the analysis” because the defendants in question were not appearing before a jury.
Ikuta also cautioned against creating splits, or contradictory opinions, with other circuits. The 2nd and 11th circuits concluded that juror bias is the paramount issue in not shackling defendants.
The courts should defer to the Marshals Service on questions of courtroom security, Ikuta said. And appellate courts, which are “far removed from the day-to-day administration of criminal justice,” should defer to district courts.
The circuit court judges left the door open for district court judges to keep defendants restrained.
In the case of a 55-year-old U.S. citizen accused of smuggling methamphetamine and heroin across the border in Nogales, her lawyer cited the circuit court opinion and asked the court to remove her shackles on July 19, court records show.
However, Magistrate Judge D. Thomas Ferraro cited her previous criminal history in his decision to keep her restrained.
