Amicus Curiae Brief — United States, Petitioner v. Rene Sanchez-Gomez, et al.

No. 17-312

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

v.

RENE SANCHEZ-GOMEZ, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF FORMER JUDGES, FORMER

PROSECUTORS, FORMER GOVERNMENT

OFFICIALS, LAW PROFESSORS, AND SOCIAL

SCIENTISTS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JUDITH RESNIK

127 Wall St.

New Haven, CT 06511

STEPHEN I. VLADECK

727 E. Dean Keeton St.

Austin, TX 78705

MEIR FEDER

Counsel of Record

JONES DAY

250 Vesey St.

New York, NY 10281

(212) 326-3939

mfeder@jonesday.com

SARAH L. LEVINE

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

[Additional Counsel Listed on Inside Cover]

[Continued from Cover]

AMANDA K. RICE

JONES DAY

150 W. Jefferson Ave.

Suite 2100

Detroit, MI 48226

CHRISTINA N. LINDBERG

ELI M. TEMKIN

ADRIENNE L. KAUFMAN

JONES DAY

90 S. 7th St.

Suite 4950

Minneapolis, MN 55402

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..................................... iii

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT .............................................................. 5

I.

The Importance of the Underlying Question

Is Central to the Propriety of Appellate

Jurisdiction, and this Case Centers on

Critical Questions of Constitutional Law .......... 5

II. Criminal Defendants’ Constitutional Right to

Be Treated with Dignity in Public

Proceedings Intersects with the Public’s

Constitutional Interest in Observing Court

Proceedings that Respect the Presumption of

Innocence and the Equality of All Persons

Before the Law .................................................... 8

A. The Constitution Mandates that Criminal Proceedings Be Open to the Public, and the Constitution Protects How

Defendants Are Treated in

Courtrooms .................................................... 8

B. Judges Have Constitutional and Common Law Obligations to Regulate

Courtroom Conduct Both to Ensure

Criminal Defendant’s Due Process

Rights and Article III Values of

Judicial Impartiality ................................... 14

ii

TABLE OF CONTENTS

(continued)

Page

C. All Participants Must Respect the

Unique Environment of Courtrooms,

and the Design of Courtrooms Makes

Manifest the Public’s Important Role

in the Administration of Justice................. 17

III. Blanket Five-Point Shackling Is Incompatible with Criminal Defendants’ Due Process Rights and with the Public’s Interest

in Observing Dignified Courtroom Processes Reflecting Those Constitutional

Commitments .................................................... 25

IV. Given the Centrality of this Issue to American Justice, Appellate Review Was Warranted Here ........................................................ 28

CONCLUSION ......................................................... 29

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Abney v. United States,

431 U.S. 651 (1977) ............................................ 5, 6

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ................................................ 6

Baer v. Salt Lake City Corp.,

705 F. App’x 727 (10th Cir. 2017)........................ 15

Bank v. Katz

No. 08-CV-1033, 2009 WL 3077147

(E.D.N.Y. Sept. 24, 2009) ..................................... 21

Carey v. Musladin,

549 U.S. 70 (2006) ................................................ 19

Cheney v. United States Dist. Court

for D.C.,

542 U.S. 367 (2004) .......................................... 6, 29

Cohen v. Beneficial Industrial Loan

Corp.,

337 U.S. 541 (1949) .......................................... 5, 29

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) ................................................ 5

Cox v. Louisiana

379 U.S. 559 (1965) .............................................. 14

Deck v. Missouri,

544 U.S. 622 (2005) ...................................... passim

Estelle v. Williams,

425 U.S. 501 (1976) ................................................ 8

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Globe Newspaper Co. v. Superior Court

for Norfolk Cty.,

457 U.S. 596 (1982) .............................................. 13

Hodge v. Talkin,

799 F.3d 1145 (D.C. Cir. 2015) ............................ 14

In re Globe Newspaper Co.,

729 F.2d 47 (1st Cir. 1984) .................................. 12

Kentucky v. Stincer,

482 U.S. 730 (1987) .............................................. 26

La Rocca v. Lane,

338 N.E.2d 606 (N.Y. Ct. App. 1975) ............ 20, 21

La Rocca v. Lane,

366 N.Y.S.2d 456 (N.Y.A.D. 1975)....................... 21

Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) .............................................. 11

Mitchell v. Forsyth,

472 U.S. 511 (1985) ................................................ 6

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009) ................................................ 5

Nestel v. Moran

513 A.2d 27 (R.I. 1986) ........................................ 16

Norris v. Risley

918 F.2d 828 (9th Cir. 1990) ................................ 20

People v. Best,

979 N.E.2d 1187

(N.Y. Ct. App. 2012) ............................................. 27

v

TABLE OF AUTHORITIES

(continued)

Page(s)

People v. Buchanan,

912 N.E.2d 553 (N.Y. 2009) ................................. 22

People v. Pennisi,

563 N.Y.S.2d 612

(N.Y. Sup. Ct. 1990) ............................................. 20

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .............................................. 11

Press-Enter. Co. v. Superior Court of

Cal., Riverside Cty.,

464 U.S. 501 (1984) ........................................ 11, 28

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ...................................... passim

Sefick v. Gardner,

164 F.3d 370 (7th Cir. 1998) ................................ 14

Sell v. United States,

539 U.S. 166 (2003) ............................................ 5, 6

Sheppard v. Maxwell,

384 U.S. 333 (1966) .............................................. 15

Smith v. Doe,

538 U.S. 84 (2003) .................................................. 9

Stack v. Boyle,

342 U.S. 1 (1951) .................................................... 6

State v. Franklin,

327 S.E.2d 449 (W. Va. 1985) .............................. 20

State v. Pelletier

786 A.2d 609 (Me. 2001) ...................................... 16

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. ex rel. Robson v. Malone,

412 F.2d 848 (7th Cir. 1969) ................................ 16

United States v. Abascal

509 F.2d 752 (9th Cir. 1975) ................................ 16

United States v. Abuhamra,

389 F.3d 309 (2d Cir. 2004) ................................. 12

United States v. Chagra,

701 F.2d 354 (5th Cir. 1983) ................................ 12

United States v. Durham,

287 F.3d 1297 (11th Cir. 2002) ............................ 22

United States v. Peoples

698 F.3d 185 (4th Cir. 2012) ................................ 16

United States v. Simone,

14 F.3d 833 (3d Cir. 1994) ................................... 12

Waller v. Georgia,

467 U.S. 39 (1984) .................................... 10, 11, 13

Woods v. Dugger

923 F.2d 1454 (11th Cir. 1991) ............................ 20

STATUTES

18 U.S.C. § 401 .......................................................... 16

28 U.S.C. § 636 .......................................................... 16

40 U.S.C. § 6135 ........................................................ 18

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

OTHER AUTHORITIES

3 E. Coke,

Insitutes of the Laws of England 34

(1797) .................................................................... 27

4 JEREMY BENTHAM,

Draught for the Organization of

Judicial Establishments, Compared

with that of the National Assembly,

with a Commentary on the Same,

THE WORKS OF JEREMY BENTHAM 305

(John Bowring ed., 1838–1843) ..................... 10, 11

Justice Stephen G. Breyer,

Foreword to

CELEBRATING THE COURTHOUSE

(Steven Flanders ed., 2006) ..................... 10, 12, 17

Canon City Municipal Court,

Courtroom Dress and Attire ................................ 19

Circuit Court of Illinois,

Eight Judicial Circuit,

Uniform Rules of Practice 1.11............................ 18

Code of Conduct for the Public,

D.C. COURTS ......................................................... 19

Code of Conduct for U.S. Judges,

Canon 3................................................................. 15

Courtroom Etiquette and Attire,

WASHTENAW CTY. TRIAL CT. ................................. 19

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

FAQs—Visiting the Court,

SUPREME COURT OF THE

UNITED STATES ..................................................... 18

Fed. R. Crim. P. 10 .................................................... 12

Financial Services and General

Government Appropriations for 2016:

Hearing Before the Subcomm.

on Fin. Servs.,

114th Cong. 109 (2015) ........................................ 23

Jona Goldschmidt,

“Order in the Court!” Constitutional

Issues in the Law of Courtroom

Decorum,

31 HAMLINE L. REV. 1 (2008) ............................... 15

Judicial Conference of the United

States: Committees (Chronological),

FED. JUD. CTR. ...................................................... 22

JUDICIAL CONFERENCE OF THE

UNITED STATES,

Portable Communication Devices in

the Courthouse (2017) .................................... 22, 23

JUDICIAL CONFERENCE OF THE

UNITED STATES,

Report of the Proceedings of the

Judicial Conference of the United

States (2013) ........................................................ 23

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

JUDICIAL CONFERENCE OF THE

UNITED STATES,

U.S. COURTS DESIGN GUIDE (1991) ...................... 24

JUDICIAL CONFERENCE OF THE

UNITED STATES,

U.S. COURTS DESIGN GUIDE (2007) ...................... 24

Jury Frequently Asked Questions,

D.C. COURTS ......................................................... 20

Al Kamen,

In the Loop,

Wash. Post, Sept. 11, 2009 .................................. 18

Joan M. Krauskopf,

Physical Restraint of the Defendant

in the Courtroom,

15 ST. LOUIS U.L. J. 351 (1971) ........................... 27

Kristin A. Lane, Jerry Kang &

Mahzarin R. Banaji,

Implicit Social Cognition and Law,

ANN. REV. L. & SOC. SCI., 3 (2007) ....................... 27

Samuel J. Levine,

Religious Symbols and Religious

Garb in the Courtroom: Personal

Values and Public Judgments,

66 FORDHAM L. REV. 1505 (1998)......................... 21

Municipal Court Dress Code,

LEE’S SUMMIT, MO. ............................................... 19

x

TABLE OF AUTHORITIES

(continued)

Page(s)

Chief Justice John G. Roberts,

2010 Year-End Report on the

Federal Judiciary ................................................. 23

Jocelyn Simonson,

The Criminal Court Audience in a

Post-Trial World,

127 HARV. L. REV. 2173 (2014) ............................ 10

The Court and Its Traditions,

SUPREME COURT OF THE

UNITED STATES ..................................................... 17

Tom R. Tyler,

Does the American Public Accept the

Rule of Law? The Findings of

Psychological Research on Deference

to Authority,

56 DEPAUL L. REV. 661 (2007) ............................. 27

Tom R. Tyler,

WHY PEOPLE OBEY THE LAW

(2d ed. 2006) ......................................................... 27

U.S. COURTS,

U.S. District Courts—Criminal

Defendants Terminated, by Type of

Disposition and Offense—During the

12-Month Period Ending

December 31, 2016,

STATISTICAL TABLES FOR THE

FEDERAL JUDICIARY .............................................. 13

xi

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. GEN. SERVS. ADMIN.,

2 VISION + VOICE: CHANGING THE

COURSE OF FEDERAL ARCHITECTURE

(2004) .................................................................... 24

U.S. GEN. SERVS. ADMIN.,

James M. Carter and Judith N.

Keep US Courthouse............................................ 24

U.S. GEN. SERVS. ADMIN.,

JOHN JOSEPH MOAKLEY U.S.

COURTHOUSE AND HARBOR PARK

(2003) .................................................................... 25

U.S. GEN. SERVS. ADMIN.,

THE SITE SECURITY DESIGN GUIDE

(2007) .................................................................... 22

Douglas P. Woodlock,

Drawing Meaning from the Heart of

the Courthouse,

CELEBRATING THE COURTHOUSE

(Steven Flanders ed., 2006) ................................. 15

INTEREST OF AMICI CURIAE

Amici are former judges, former prosecutors, former government officials, law professors focused on

the jurisprudence of the federal courts, and social scientists expert on human perception and behavior. We

write to provide this Court with our understanding of

why the question of the constitutionality of blanket

shackling of all criminal defendants during pretrial

courtroom proceedings is so important that it fits the

criteria for immediate appellate review. Post-trial appeals cannot vindicate defendants’ due process rights

to dignified treatment or protect the public’s interest

in observing criminal proceedings in which all defendants are treated as individuals and entitled to the presumption of innocence. 1

SUMMARY OF ARGUMENT

To decide the propriety of appellate jurisdiction

under either the “collateral order” rule or supervisory

mandamus requires consideration of the importance

of the issue presented on appeal. The underlying issue

here meets that requirement.

Appellate review was sought because of the decision by the judges of the Southern District of California to accede to the U.S. Marshals Service’s request

that all criminal defendants appear in court during

pre-trial proceedings in five-point shackles—leg and

arm irons, connected with a belly chain. Whether

1 In accordance with Supreme Court Rule 37.6, amici state

that no counsel for a party authored this brief in whole or in part,

and that no person or entity, other than amici and their counsel,

made a monetary contribution intended to fund the preparation

and submission of this brief. Counsel of record for all parties have

consented in writing to the filing of this brief.

2

charged with misdemeanors or felonies and whether

physically able or infirm, every criminal defendant

was required to appear before magistrate and district

court judges in shackled restraints.

In Deck v. Missouri, 544 U.S. 622 (2005), this

Court held that the Constitution “forbids the use of

visible shackles during the penalty phase” in a capital

case. Id. at 624. This Court concluded that shackling

in front of a jury violated the defendant’s due process

rights; absent specific and individualized showings of

an “essential state interest,” based on “physical security, escape prevention, or courtroom decorum,” shackling was not permissible. Id. at 624, 628.

Deck focused on the impact of shackles on jurors,

who, while central to criminal proceedings, are not the

only persons who have a constitutionally protected

role in courts. The public has a First Amendment

right to watch criminal proceedings. See Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (plurality opinion). In addressing why the First Amendment protects the public’s right to attend criminal trials, Chief Justice Burger discussed the centrality of

“publicity” (borrowing that term from Jeremy Bentham) to our legal system. Id. at 569.

As Chief Justice Burger explained, the public’s

presence has several functions. Attendance “contribute[s] to public understanding of the rule of law and

to comprehension of the functioning of the entire criminal justice system.” Id. at 573 (citation omitted).

Moreover, open courts enable the public to see and to

understand that justice is done, and open courts protect the public’s right to gather and disseminate information. Id. at 570–73.

3

This case is at the intersection of the due process

principles of the presumption of innocence and the

dignity of criminal defendants, which were central to

Deck, and the important educative function played by

open courts, which animated Richmond Newspapers

and its progeny. Criminal defendants—unless and until adjudicated guilty—are cloaked in a presumption

of innocence, and the public has a right to attend proceedings that put that precept into practice. Justice

must not only be visible but also comport with these

constitutional commitments

Since Richmond Newspapers, the Court has held

that the public’s First Amendment attendance rights

are not limited to trials. Those rulings reflect the importance of the entire criminal justice process, from

arraignment through sentencing. More than 75,000

criminal defendants had their cases resolved in federal district courts in 2016; fewer than 2000 of those

dispositions were by bench or jury criminal trials. Proceedings other than trial are the core of today’s federal

criminal justice system.

A myriad of rules organizes the ways in which all

people—judges, litigants, lawyers, jurors, witnesses,

bailiffs, marshals, and the public—must behave in

court. A mix of constitutional law, statues, regulations, and customs point to the same conclusion:

Courtrooms are central to American law, and behavior

and attire must honor this unique space.

This Court and lower courts insist that members

of the audience dress appropriately, rise when judges

enter the room, sit quietly, and do nothing that would

distract from the solemnity of decision-making about

the rights and obligations of the disputants. Moreover,

significant resources have been invested in building

4

courthouses that welcome the public, and design

guides developed by the U.S. judiciary specifically require ample public seating in courtrooms.

Blanket five-point shackling is visibly and disruptively inconsistent with these core constitutional values and practices. The government decision to stigmatize all defendants fails to give them their constitutional due as individuals and undermines public understandings of the process as even-handed. Conditioning criminal defendants’ rights to be present in

court on being placed in five-point shackles does not

reflect the distinctive function of the courtroom as the

place where all individuals are presumed innocent

and equal before the law.

To be sure, maintaining security is crucial, and doing so requires assistance from the U.S. Marshals, under the guidance of the United States Judicial Conference Committee on Security. But ensuring courtroom

safety has long been accomplished without daily, indiscriminate shackling of all criminal defendants in

all pretrial matters. Rather, as both Deck and Richmond Newspapers direct, neither the blanket use of

shackles nor the generic closing of courtrooms is permissible. The tests of Deck and of Richmond Newspapers should govern here, rather than doctrines of deference to security personnel in detention centers that,

unlike courts, are not venues presumptively open to

the public.

Appellate review during the pretrial stage of the

proceedings was proper because the question of the

constitutionality of indiscriminate shackling of all

criminal defendants during the pretrial process meets

all the criteria of the “collateral order doctrine” and of

supervisory mandamus. The issue is not mooted by

5

the conviction of individual defendants, some of whom

have been repeatedly shackled in San Diego federal

courts.

ARGUMENT

I.

The Importance of the Underlying Question

Is Key to Appellate Jurisdiction, and this

Case Centers on Critical Questions of Constitutional Law.

This Court’s grant of certiorari focused on appealability and mootness. The Ninth Circuit panel heard

the appeal under the “collateral order” doctrine; the

en banc panel exercised review relying on its supervisory mandamus authority. Amici address one prong of

the propriety of appellate review—the importance of

the Southern District of California’s policy that mandated five-point shackles for all criminal defendants

in all pre-trial proceedings.

Collateral review is available only in a narrow category of cases. Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), identified the need for such

review. In the decades since, this Court has clarified

Cohen’s limited application. This Court has rejected

the idea that all pretrial decisions, even if they sound

the “death knell” of a case, could justify interlocutory

appeals. Coopers & Lybrand v. Livesay, 437 U.S. 463,

468 (1978). Rather, collateral order appeals are permissible in rare instances, and generally only when

holding a trial under the challenged conditions causes

the very injury that gives rise to the need for appeal.

See, e.g., Abney v. United States, 431 U.S. 651 (1977);

Sell v. United States, 539 U.S. 166 (2003); Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).

6

Bail is a classic example. See Stack v. Boyle, 342

U.S. 1 (1951). Another is whether a defendant can be

forced to take medication in order to stand trial. See

Sell, 539 U.S. 166. A third line of cases recognizes appeal as-of-right when defendants assert immunity

from trial—based on double jeopardy, see Abney, 431

U.S. 651, or qualified or absolute immunity in the civil

context, see Mitchell v. Forsyth, 472 U.S. 511, 526–27

(1985); Ashcroft v. Iqbal, 556 U.S. 662 (2009). These

cases exemplify the types of issues subject to collateral

appellate review: important, severable, finally decided questions generally involving constitutional

rights that emerge before a final judgment and which

would, in essence, be extinguished once the trial has

concluded.

Shackling all criminal defendants under a district-wide policy fits squarely within these parameters.

The opportunity to challenge the constitutionality of a

general policy of placing criminal defendants in

shackles for all pre-trial proceedings in public courts

is lost if denied below and not reviewed immediately.

Further, the public’s interest in watching courtroom

proceedings that respect criminal defendants’ due process rights to individual treatment can only be vindicated when the harm imposed is alleviated, which is

during pretrial proceedings.

Supervisory mandamus is the other basis for appellate jurisdiction. This Court has relied on that doctrine to permit appellate review when there is “no

other adequate means to attain the relief” requested,

the petitioner’s right is “clear and indisputable,” and

“exceptional circumstances” render relief “appropriate under the circumstances.” Cheney v. United States

Dist. Court for D.C., 542 U.S. 367, 380–81 (2004).

7

Central to both of these doctrines of appellate jurisdiction is the importance of the underlying issue—

or, in the language of supervisory mandamus, the “exceptional” nature of the circumstances. Putting all

criminal defendants during pre-trial proceedings in

five-point shackles as a condition of their participation in public proceedings is an “exceptional” act in

American legal history.

This Court decided in Deck v. Missouri, 544 U.S.

622 (2005), that visibly shackling defendants before

juries was impermissible, unless the state established

its “essential . . . interest” in a specific individual’s

case. Id. at 624. What was not decided in Deck is the

permissibility of shackling defendants outside the

presence of the jury, during the pre-trial process before judges and the public. This Court has also decided

in Richmond Newspapers v. Virginia, 448 U.S. 555

(1980), and its progeny that the First Amendment

right to watch courtroom proceedings aims to enable

education about and understanding of the administration of criminal justice.

Because this Court’s decisions protect defendants’

due process rights and the public’s right to be present

at trial and at related proceedings, this case brings a

central and vitally important question of American

justice to the fore: How will defendants be treated during pre-trial proceedings, and what will people learn

about the constitutional treatment of criminal defendants when they are in U.S. courthouses?

8

II. Criminal Defendants’ Constitutional Right

to Be Treated with Dignity in Public Proceedings Intersects with the Public’s Constitutional Interest in Observing Court Proceedings that Respect the Presumption of

Innocence and the Equality of All Persons

Before the Law.

Given that the propriety of appellate review turns

in part on the importance and exceptional nature of

the issues, Amici provide an overview of the bodies of

law and the practices that form the principle that

courtrooms are sacrosanct spaces in American law in

which the rights of defendants and of the public converge.

As we detail, a host of constitutional and statutory

regulations organize the format of courtroom proceedings and the contours of courthouses. Law prevents

rowdy crowds from gathering outside courthouses,

and law circumscribes what people can wear and how

they can behave inside courtrooms. These regulations

have two purposes: to protect the rights of litigants

and to reflect Article III courts’ commitments to the

neutrality and integrity of judicial proceedings.

A. The Constitution Mandates that Criminal Proceedings Be Open to the Public,

and the Constitution Protects How Defendants Are Treated in Courtrooms.

Much of the law on defendants’ garb in U.S. courtrooms has focused on the impact of dress and of restraint on juries. See, e.g., Estelle v. Williams, 425 U.S.

501 (1976); Deck v. Missouri, 544 U.S. 622 (2005). But

jurors are not the only members of the public entitled,

as a matter of constitutional right, to be present in the

9

courtroom and for whom the defendants’ appearance

matters.

When members of the public walked into the federal district court in San Diego in the fall of 2013, they

were confronted with criminal defendants chained in

five-point shackles. From October 2013 through November 2015, when the policy was suspended a few

months after the Ninth Circuit panel decision, see Pet.

App. 71a, the United States District Court for the

Southern District of California placed all defendants

in five-point shackles. That policy did not take into account the crimes charged, physical abilities, or the

amount of information available about individual defendants. See J.A. 76–79. Defendants were shackled

for pre-trial appearances and, apparently, occasionally for sentencing. See Pet. App. at 1a–5a; 73a–75a.

None of the individuals was assessed as to their

potential to be dangerous. Rather, the four Respondents, Rene Sanchez-Gomez, Moises Patricio-Guzman,

Jasmin Isabel Morales, and Mark William Ring, were

forced to appear in shackles in the courtrooms of magistrate and district court judges in the James M.

Carter and Judith N. Keep United States Courthouse

and in the Edward J. Schwartz Federal Building and

U.S. Courthouse.

When the government puts a person in shackles,

it marks that person as a threat. The Constitution

permits various forms of intrusion on individual liberty, despite their stigmatizing effect, but only after

an individualized assessment to ensure accuracy and

fairness. See, e.g., Smith v. Doe, 538 U.S. 84 (2003)

(upholding post-conviction registries of sex offenders

based on the process of factfinding and decisionmaking that undergirds them). Courtrooms, in other

10

words, are places where “the judicial branch of government treats each citizen before it not as a member

of a group but as a separate human being.” Justice

Stephen G. Breyer, Foreword to CELEBRATING THE

COURTHOUSE 9, 11 (Steven Flanders ed., 2006).

Indiscriminate shackling breaches the due process obligation to treat criminal defendants as individuals, entitled to be presumed innocent. A policy of

shackling all criminal defendants likewise undermines the public’s interest in observing dignified proceedings that exemplify American commitments to respect defendants’ rights and the rule of law.

The public’s right of access to criminal proceedings is a bedrock principle of our judicial system,

founded in traditions of the common law and protected by the First Amendment, and is intertwined

with defendants’ rights to public proceedings. Richmond Newspapers, 448 U.S. at 580; Waller v. Georgia,

467 U.S. 39, 46 (1984); Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World, 127 HARV.

L. REV. 2173 (2014). This Court and lower courts have

explained the history and the importance of these

rights, today understood as running from arraignment and bail to probable cause, preliminary hearings, voir dire, sentencing, and post-trial hearings.

The openness of courts has many utilities, but as

Chief Justice Burger concluded, “it would be difficult

to single out any aspect of government of higher concern and importance to the people than the manner in

which criminal trials are conducted.” Richmond

Newspapers, 448 U.S. at 575. The constitutional guarantee of open courts reflected what Jeremy Bentham

called “publicity,” id. at 569, which Bentham termed

the “soul of justice,” see 4 JEREMY BENTHAM, Draught

11

for the Organization of Judicial Establishments, Compared with that of the National Assembly, with a Commentary on the Same, in THE WORKS OF JEREMY BENTHAM 305, 316 (John Bowring ed., 1838–1843).

As Bentham explained, courts are schools for justice, id. at 317, teaching that law treats everyone as

equals and assesses individual claims on their merits.

As this Court put it, the inclusion of the public provides a form of “legal education” that “‘hopefully promotes confidence in the fair administration of justice.’” Richmond Newspapers, 448 U.S. at 572 (citation

omitted).

This educative function is not limited to trials. Indeed, “since the development of trial by jury, the process of selection of jurors has presumptively been a

public process with exceptions only for good cause

shown.” Press-Enter. Co. v. Superior Court of Cal.,

Riverside Cty., 464 U.S. 501, 505 (1984). Whether at

voir dire, suppression hearings, or other proceedings,

the goal is for the public to see a defendant who “is

fairly dealt with and not unjustly condemned.” Waller,

467 U.S. at 46 (citing T. Cooley, CONSTITUTIONAL LIMITATIONS 647 (8th ed. 1927)).

In addition to the law on public access, the integrity of judicial proceedings has been protected by this

Court’s insistence that the “judicial Department” be

protected from encroachment that would diminish its

authority. See, e.g., Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 226–27 (1995). And, in so doing, the

Court has emphasized the importance of presenting

the values of judicial integrity to the public. See, e.g.,

Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545–46

(2001) (finding that a restriction on lawyers violated

12

separation-of-powers principles and the First Amendment when it would lead “[t]he courts and the public . . . to question the adequacy and fairness” of the

judicial process). In short, as Justice Breyer has explained, courthouses belong “not just to the judges or

courts or lawyers but to the public as well.” Breyer,

Foreword to CELEBRATING THE COURTHOUSE at 9.

These entwined themes—the obligations of the

criminal justice system to treat criminal defendants

fairly, public rights to attend, the importance of courthouses in American law, and the integrity of Article

III courts—undergird a host of public access provisions. Federal Rule of Criminal Procedure 10(a) requires that arraignments “be conducted in open court.”

Bail hearings must likewise be open, for the “‘contemporaneous review’ of criminal prosecutions ‘in the forum of public opinion’ serves as an important restraint on abuse of government power.” United States

v. Abuhamra, 389 F.3d 309, 323 (2d Cir. 2004) (quoting In re Oliver, 333 U.S. 257, 270 (1948)). Accord In

re Globe Newspaper Co., 729 F.2d 47 (1st Cir. 1984);

United States v. Chagra, 701 F.2d 354, 362 (5th Cir.

1983). As Judge Frank Coffin stated in Globe Newspaper, public access to bail hearings serves “the need for

a public educated in the workings of the justice system

and for a justice system subjected to the scrutiny of

the public.” 729 F.2d at 52. After trial, the public is

permitted to observe post-trial hearings investigating

jury misconduct. See United States v. Simone, 14 F.3d

833, 839 (3d Cir. 1994).

This jurisprudence reflects the centrality of nonjury, non-trial proceedings in today’s federal courts. In

2016, 76,891 criminal defendants had their cases disposed of in U.S. district courts; 161 defendants were

13

convicted by bench trials, and 66 acquitted; 1,510 defendants were convicted by juries, and 203 acquitted.

See U.S. COURTS, U.S. District Courts—Criminal Defendants Terminated, by Type of Disposition and Offense—During the 12-Month Period Ending December

31, 2016, STATISTICAL TABLES FOR THE FEDERAL JUDICIARY D-4 at 1, http://www.uscourts.gov/sites/default/files/data_tables/stfj_d4_1231.2016.pdf. The total number of trials—bench and jury—represented 2.5

percent of the dispositions. Id.

Of course, the public’s right of access to court proceedings is not unlimited. But any restriction on that

right must be justified by an individualized analysis—

against a baseline presumption that the public must

be allowed to be present. Under the First Amendment

framework, denial of the public’s right of access must

be necessitated by a compelling governmental interest,

and such denial must be narrowly tailored to serve

that interest. Globe Newspaper Co. v. Superior Court

for Norfolk Cty., 457 U.S. 596, 606 (1982). The Sixth

Amendment standard is similar: The party that seeks

“to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must

be no broader than necessary to protect that interest,

the trial court must consider reasonable alternatives

to closing the proceeding, and it must make findings

adequate to support the closure.” Waller, 467 U.S. at

48.

14

B. Judges Have Constitutional and Common Law Obligations to Regulate Courthouse and Courtroom Conduct to Ensure Criminal Defendants’ Rights to Due

Process and Article III Values of Judicial

Impartiality.

Preserving the dignity and decorum of the judicial

process sometimes requires judges to take measures

to police conduct. “Newspapers and the streets outside

are open to scathing criticism of what happens within

the courthouse . . . . But the halls of justice may be

kept hushed.” Sefick v. Gardner, 164 F.3d 370, 373

(7th Cir. 1998).

Indeed, the special status of the courthouse extends beyond its front door. In Cox v. Louisiana this

Court explained that “it is of the utmost importance

that the administration of justice be absolutely fair

and orderly” given that “the unhindered and untrammeled functioning of our courts is part of the very

foundation of our constitutional democracy.” 379 U.S.

559, 562, 564 (1965). In that case, the Court upheld an

ordinance prohibiting picketing near a courthouse. Id.

at 562; see also, e.g., Hodge v. Talkin, 799 F.3d 1145,

1150 (D.C. Cir. 2015) (upholding prohibition against

assemblage and display of signs on Supreme Court

grounds in light of “the government’s long-recognized

interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality)

of a judiciary uninfluenced by public opinion and pressure”). Courthouse lobbies are likewise special places,

where rules of conduct are enforced. “Courts seek to

induce in the jurors, witnesses, and litigants who pass

through the lobby on the way to the courtrooms a serious cast of mind.” Sefick, 164 F.3d at 373.

15

The courtroom is “the heart and soul of the courthouse.” Douglas P. Woodlock, Drawing Meaning from

the Heart of the Courthouse, in CELEBRATING THE

COURTHOUSE, supra, at 155, 167. And judges are at

the helm, ensuring that behavior befits the solemnity

of the judicial process. After all, “the ‘very purpose of

a court system . . . [is] to adjudicate controversies, both

criminal and civil, in the calmness and solemnity of

the courtroom according to legal procedures.’” Sheppard v. Maxwell, 384 U.S. 333, 350–51 (1966) (quoting

Cox, 379 U.S. at 583).

To that end, as the Code of Conduct for United

States Judges explains, federal judges “should maintain order and decorum in all judicial proceedings.’”

Code of Conduct for U.S. Judges, Canon 3 (A)(2),

http://www.uscourts.gov/sites/default/files/vol02ach02_0.pdf. The obligation to protect courtroom decorum applies to judges and magistrate judges alike. See,

e.g., Baer v. Salt Lake City Corp., 705 F. App’x 727,

732 (10th Cir. 2017). That decorum in turn helps to

“maintain public trust and confidence in the courts

and the rule of law, generally.” Jona Goldschmidt,

“Order in the Court!” Constitutional Issues in the Law

of Courtroom Decorum, 31 HAMLINE L. REV. 1, 9 (2008).

Appellate courts likewise are required to ensure decorum, making it proper in cases such as this to exercise

supervisory mandamus authority.

In individual cases, judges have used contempt

sanctions to preserve “judicial serenity and calm,”

Sheppard, 384 U.S. at 355. Conduct of individuals—

whether litigants, lawyers, witnesses, court personnel,

jurors, or members of the audience—can be the

16

grounds for contempt. Both district judges and magistrate judges have authority to impose contempt sanctions. See 18 U.S.C. § 401; 28 U.S.C. § 636(e).

When judges perceive a threat to the public’s experience of courtroom justice, individualized assessments are made in order to preserve the dignity and

decorum of the courtroom. For example, in United

States v. Abascal, the Ninth Circuit affirmed a contempt conviction where the appellant refused to step

forward and remained slouched in his chair while the

court addressed him. 509 F.2d 752, 754 (9th Cir. 1975).

The “ability of a trial judge to compel obedience to his

orders,” the court noted, “is fundamental to the proper

functioning of our system of justice.” Id. Individuals’

refusal to stand when judges leave or enter courtrooms has likewise drawn sanctions. U.S. ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir. 1969).

Other kinds of conduct have also prompted the

imposition of contempt sanctions. In State v. Pelletier,

for example, the court noticed a vulgar phrase on the

back of a criminal defendant’s t-shirt only after the

conclusion of arraignment proceedings. 786 A.2d 609,

610–11 (Me. 2001). The judge emphasized the many

spectators who must have seen the vulgar language

and judged him to be in contempt. Id. In Nestel v. Moran, the court affirmed a contempt conviction where

protestors stood and turned their backs to the judge

during sentencing. 513 A.2d 27, 29 (R.I. 1986). And in

United States v. Peoples, the court upheld a contempt

conviction for vulgar language that was directed at a

judge. See 698 F.3d 185, 190 (4th Cir. 2012).

17

C. Participants Must Respect the Unique

Environment of Courtrooms, and the Design of Courtrooms Makes Manifest the

Public’s Important Role in the Administration of Justice.

Core Article III and due process values govern

what happens inside courtrooms to ensure that judges

are impartial, that every party is treated with respect,

and that the judicial process proceeds in a solemn and

respectful manner. The key element is not the presence of jurors but the preservation of the meaning of

the courtroom, which “is the home of the law.” Breyer,

Foreword to CELEBRATING THE COURTHOUSE, supra, at

11.

Longstanding tradition, current custom, and this

Court’s jurisprudence confirm that what a judicial

proceeding looks like matters. Justice must appear

fair, and justice must be fair. From the details of the

dress of the participants to the way in which individuals comport themselves, the presence of U.S. Marshals and of the U.S. flag to the protection of the buildings and sidewalks of courthouses, the law makes

plain the importance of what transpires inside courtrooms. Presenting all defendants in shackles violates

this fabric of both doctrine and rules.

That courtrooms are regulated spaces is a familiar precept in this Court. In the late 1890s, future senator George Wharton Pepper arrived to argue wearing

a grey coat. The Court refused to let him enter until

he borrowed a more formal morning coat. The Court

and Its Traditions, SUPREME COURT OF THE UNITED

STATES, https://www.supremecourt.gov/about/traditions.aspx (last visited Feb. 26, 2018).

18

Although morning coats are no longer the measure of respectful attire, the dress of individuals continues to reflect the significance of what transpires. 2

In this Court, “[s]unglasses, identification tags (other

than military), display buttons, and inappropriate

clothing may not be worn in the Courtroom when

Court is in session.” FAQs—Visiting the Court, SUPREME COURT OF THE UNITED STATES, https://www.supremecourt.gov/about/faq_visiting.aspx (last visited

Feb. 26, 2018). The grounds of this Court are likewise

protected from inappropriate activities. See e.g., 40

U.S.C. § 6135 (preventing the display of “a flag, banner, or device designed or adapted to bring into public

notice a party, organization, or movement” in the Supreme Court’s building or grounds).

Judges, of course, take care to dress in a way that

preserves the dignity and decorum of the courtroom. 3

The robes that judges don when presiding before the

public signify their special role in American life and

help mark the space of a courtroom as unique. Other

court personnel—including bailiffs and marshals—

likewise dress in a manner that befits the solemnity

of the judicial process. These standards communicate

to the public the gravity of the proceedings.

2 Less than ten years ago, it made news when Justice Ka-

gan, while serving as Solicitor General, appeared before the

Court in a dark suit rather than in a morning coat. Al Kamen,

In the Loop, Wash. Post, Sept. 11, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/09/10/AR2009091004250.html?sub=AR (last visited

Feb. 26, 2018).

3 In some jurisdictions, the custom of judicial robes is codified in formal rules. See , e.g., Circuit Court of Illinois, Eighth

Judicial Circuit, Uniform Rules of Practice 1.11(a).

19

Both the participants in and the observers of judicial proceedings must stand when judges enter the

room and must dress in a manner that befits the dignity of the courtroom. As Justice Souter explained,

judges have an “affirmative obligation to control the

courtroom and keep it free of improper influence.”

Carey v. Musladin, 549 U.S. 70, 82 (2006) (Souter, J.,

concurring). Consistent with that obligation, Justice

Souter concluded, “allowing spectators at a criminal

trial to wear visible buttons with the victim’s photo

can raise a risk of improper considerations.” Id. Indeed, courts around the country commonly prohibit

clothing that is provocative. 4 Court dress codes ban

tank tops; shorts; baggy pants; hats not worn for religious purposes”; 5 “heavily soiled work clothing”; 6 and

“theatrical costumes.” 7 Rules also direct the dress of

jurors; for example, the District of Columbia Courts

4 Code of Conduct for the Public, D.C. COURTS,

https://www.dccourts.gov/sites/default/files/divisionspdfs/PublicCode-of-Conduct.pdf (last visited Feb. 26, 2018).

5 Courtroom Etiquette and Attire, WASHTENAW CTY. TRIAL

CT., http://washtenawtrialcourt.org/general/courtroom_etiquette-attire (Michigan trial court); see also Canon City Municipal Court, Courtroom Dress and Attire, available at

http://www.canoncity.org/departments/courtroom_etiquette.php

(Colorado municipal court) (last visited Feb. 26, 2018).

6 Municipal Court Dress Code, LEE’S SUMMIT, MO.,

http://cityofls.net/Municipal-Court/Court-Process/Dress-Code

(last visited Feb. 26, 2018).

7 Id.

20

expect jurors to respect “the formality of the court proceedings” by avoiding jeans, t-shirts, shorts, athletic

wear, and hats. 8

When inappropriate attire undermines the integrity of a judicial proceeding, courts have concluded

that outcomes cannot stand. In Norris v. Risley, for

example, the Ninth Circuit reversed a conviction for

kidnapping and sexual assault when spectators wore

“Women Against Rape” buttons during trial. 918 F.2d

828, 832–34 (9th Cir. 1990). Similarly, in Woods v.

Dugger, the Eleventh Circuit reversed a conviction for

murder of a prison staff member in part because, at

trial, members of the public appeared in the uniform

used by prison staff. 923 F.2d 1454 (11th Cir. 1991);

see also State v. Franklin, 327 S.E.2d 449, 454–55 (W.

Va. 1985) (reversing a conviction related to driving

under the influence of alcohol because audience members wore Mothers Against Drunk Driving buttons

during the trial); People v. Pennisi, 563 N.Y.S.2d 612,

616 (N.Y. Sup. Ct. 1990) (prohibiting a victim’s family

and supporters from wearing corsages during criminal trial, finding that doing so could “constitute conduct disruptive of a courtroom environment, which environment must be scrupulously dedicated to the appearance as well as the reality of fairness and equal

treatment”).

Courts have also recognized that religious garb

may, in some circumstances, undermine the neutrality of judicial proceedings. In La Rocca v. Lane, for example, the New York courts held that an attorney’s

8 Jury Frequently Asked Questions, D.C. COURTS,

http://www.dcd.uscourts.gov/sites/dcd/files/jury-FAQ.pdf (last

visited Feb 26, 2018).

21

religious right to wear a clerical collar was outweighed

by the need to ensure a fair trial. 338 N.E.2d 606, 613

(N.Y. Ct. App. 1975). A fair trial, the court emphasized,

“includes the atmosphere and the appearance of a fair

trial.” La Rocca v. Lane, 366 N.Y.S.2d 456, 464

(N.Y.A.D. 1975). In this and other cases, “courts have

expressed a concern for the potential prejudice that

might result if an attorney or witness is allowed to

dress in religious garb.” Samuel J. Levine, Religious

Symbols and Religious Garb in the Courtroom: Personal Values and Public Judgments, 66 FORDHAM L.

REV. 1505, 1524 (1998).

Concern for the dignity and decorum of courtrooms—and respect for Article III values reflected

therein—is not limited to times when judges preside

at jury trials. In Bank v. Katz, for example, a lawyer

filed a federal lawsuit insisting that he had a First

Amendment right to wear jeans and a baseball hat in

the courtrooms of New York State. No. 08-CV-1033,

2009 WL 3077147, at *1 (E.D.N.Y. Sept. 24, 2009).

The court rejected that First Amendment claim and

held that the state’s restriction was “reasonably related to the maintenance of courtroom civility and respect for the judicial process.” Id at *2. The state

judge’s enforcement reflected its “obligation to maintain the dignity of judicial proceedings and to oversee

courtrooms in a manner that promotes their integrity.”

Id.

Security is of course part and parcel of the dignity

of courtrooms. The case law reflects that deciding

whether restraints are needed requires scrutiny of

specific circumstances. For example, when considering whether criminal defendants can be required to

22

wear stun belts during proceedings, judges have repeatedly insisted on individualized assessments of

dangerousness, whether or not the garb is visible to

jurors. See, e.g., United States v. Durham, 287 F.3d

1297, 1304 (11th Cir. 2002); People v. Buchanan, 912

N.E.2d 553, 554 (N.Y. 2009). Whether visible or not,

“stun belts plainly pose . . . a serious threat to the dignity and decorum of the courtroom.” Durham, 287

F.3d at 1306.

These individual decisions take place against the

backdrop of national efforts to secure the safety of

courtrooms. The General Services Administration has

guidelines on the zones within courthouse areas requiring different levels of security. See U.S. GEN.

SERVS. ADMIN., THE SITE SECURITY DESIGN GUIDE at

21–25

(2007),

https://www.gsa.gov/cdnstatic/

GSA_Chapter_Two_8-8-07.pdf. The Judicial Conference of the United States has a committee on Judicial

Security, distinct from its Committee on Space and

Facilities, and dedicated to developing policy protecting safety. Judicial Conference of the United States:

Committees (Chronological), FED. JUD. CTR.,

https://www.fjc.gov/history/administration/judicialconference-united-states-committees-chronological

(last visited Feb. 26, 2018).

The decisionmaking processes of the Judicial Conference’s Security Committee reflect the need for deliberation and collaboration to ensure balancing of the

needs of all courthouse users. For example, in the context of developing guidelines on the use of cell phones

in courthouses, the Conference explained, “[c]ourt security committees, which may include federal defenders and the panel attorney district representative, are

well suited” to shaping appropriate rules. JUDICIAL

23

CONFERENCE OF THE UNITED STATES, Portable Communication Devices in the Courthouse 4 (2017),

http://www.uscourts.gov/sites/default/files/portable_comm_devices_policy.3.12.17.pdf. Likewise, study

was required before deciding whether court and chamber personnel should pass through metal detectors before entering court spaces. See JUDICIAL CONFERENCE

OF THE UNITED STATES, Report of the Proceedings of

the Judicial Conference of the United States 21 (2013),

http://www.uscourts.gov/sites/default/files/201303.pdf.

The national policies on security in courthouses

are a subset of a broader set of decisions by the judiciary about courthouse design. In Justice Kennedy’s

words, federal courthouses “are a tangible, palpable,

visible, clear manifestation of our commitment to the

Rule of Law.” Financial Services and General Government Appropriations for 2016: Hearing Before the

Subcomm. on Fin. Servs., 114th Cong. 109 (2015).

The U.S. Supreme Court building, completed in

1935, is an iconic exemplar. “Seventy-five years later,

the Supreme Court’s majestic building stands out as

a familiar and iconic monument to the rule of law. The

architect’s use of classical elements and durable stone

has aptly captured the Court’s imperishable role in

our system of government.” Chief Justice John G. Roberts, 2010 Year-End Report on the Federal Judiciary,

at 1, https://www.supremecourt.gov/publicinfo/yearend/2010year-endreport.pdf.

Since Chief Justice Rehnquist recognized the

critical need for courthouse construction in the 1980s,

the federal judiciary has taken a leadership role in ensuring that courthouses make clear to the public our

constitutional commitment to the rule of law. Doing

24

so entailed ensuring an architecture appropriate for

federal courts, in which courtroom layout is central.

See U.S. GEN. SERVS. ADMIN, 2 VISION + VOICE: CHANGING THE COURSE OF FEDERAL ARCHITECTURE, 5–7

(2004); VISION + VOICE: DESIGN EXCELLENCE IN FEDERAL ARCHITECTURE: BUILDING A LEGACY 33 (2002).

As the 2007 U.S. Courts Design Guide instructs,

the “architecture of federal courthouses must promote

respect for the tradition and purpose of the American

judicial process. To this end, a courthouse . . . must

express solemnity, integrity, rigor, and fairness . . . .

to frame, facilitate, and mediate the encounter between the citizen and the justice system.” JUDICIAL

CONFERENCE OF THE UNITED STATES, U.S. COURTS DESIGN GUIDE 3-1 (2007).

Courtrooms must provide the public with insights

into the “dignity of the judicial system.” JUDICIAL CONFERENCE OF THE UNITED STATES, U.S. COURTS DESIGN

GUIDE 91 (1991). Doing so requires ample seating for

the public. The 2007 Guide provided specifications for

district judge and magistrate judge courtrooms. See

2007 U.S. COURTS DESIGN GUIDE, supra, at 4-15, 24.

Because “[t]he right to a public trial necessitates a certain volume of general public,” the design guide instructed that seating should be available for sixty-five

to eighty-five people in a district judge’s courtroom. Id.

at 4-13.

The San Diego courthouses where Respondents

were shackled exemplify the public commitment to ensuring the dignity of courthouses and courtrooms. See

U.S. GEN. SERVS. ADMIN., James M. Carter and Judith

N. Keep US Courthouse, https://www.gsa.gov/aboutus/regions/welcome-to-the-pacific-rim-region-9/build-

25

ings-and-facilities/california/james-m-carter-and-judith-n-keep-us-courthouse. The care taken in the construction of San Diego’s federal district courthouse is

not unusual. Another example is the John Joseph

Moakley Courthouse in Boston, Massachusetts. Each

of the courtrooms is decorated with four rounded

arches, symbolizing that the disputants, the judge,

and the public are each equally important to the legal

process. That design “gives appropriate recognition to

each player in the judicial process.” U.S. GEN. SERVS.

ADMIN, JOHN JOSEPH MOAKLEY U.S. COURTHOUSE AND

HARBOR PARK 8 (2003).

III. Blanket Five-Point Shackling Is Incompatible with Criminal Defendants’ Due Process

Rights and with the Public’s Interest in Observing Dignified Courtroom Processes Reflecting Those Constitutional Commitments.

As Amici have recounted, the Constitution requires courtrooms to be open to the public, which

plays a critical role in the processes of generating legitimacy for the criminal justice system. We devote

significant resources to building and maintaining

courthouses because they embody a profound commitment to equal justice under law.

The layers of regulations of courtrooms rightfully

reflect that what people wear and how they move

weave the fabric of our legal system. To prevent a lawyer, a juror, or a spectator from wearing a badge or a

t-shirt but to mandate that all criminal defendants

wear chains is to undermine the individual treatment

of all persons in courts, which the Constitution protects.

26

Criminal defendants have a right to be present at

any stage of the proceeding that is “critical to its outcome if his presence would contribute to the fairness

of the procedure.” Kentucky v. Stincer, 482 U.S. 730,

745 (1987). But under the policy in the Southern District of California, defendants were forced either to

stay out of court or to enter the halls of justice in fivepoint shackles—with no individualized assessment.

Shackles have a long history of marking the person bound as dangerous, as threatening, as violent,

and, historically, as subjugated to others and enslaved.

To require criminal defendants to walk into court by

shuffling into that hall of justice with arms and legs

bound, arms chained to waist, is to undermine the

commitment that all persons enter with dignity.

Judges, lawyers, staff, and the public who see a shackled detainee observe someone set apart and physically

marked as other—and as lesser. Forcing all criminal

defendants who appear for court proceedings into fivepoint shackles thus undermines the public’s understanding that courtrooms treat all persons as individuals and respect the presumption of innocence. Blanket shackling breaches the delineation between the

courtroom and the holding cells or detention centers

from which defendants are brought.

Even as this case raises the question for the first

time before this Court in the context of pre-trial proceedings, the common law has long recognized the

damage that indiscriminate shackling does to the legitimacy of criminal justice and its public perception.

Citing Bracton, Magna Carta, Virgil, and the Books of

Luke and John, Coke wrote: “[A]ll the said ancient authors are against any pain, or torment to be put or inflicted upon the prisoner before attainder, nor after

27

attainder, but according to the judgement.” 3 E. Coke,

Institutes of the Laws of England 34 (1797); see also

Joan M. Krauskopf, Physical Restraint of the Defendant in the Courtroom, 15 ST. LOUIS U.L. J. 351, 351–

53 (1971). And history followed suit: As the Ninth Circuit en banc opinion chronicled, the longstanding rule

in England and the United States requires an individualized determination before a defendant may be

shackled in both jury and non-jury proceedings.

By stigmatizing all defendants, the government

undercuts the legitimacy of the process for both the

defendants and the viewing public. See Tom R. Tyler,

Does the American Public Accept the Rule of Law? The

Findings of Psychological Research on Deference to

Authority, 56 DEPAUL L. REV. 661, 664–65 (2007);

Tom R. Tyler, WHY PEOPLE OBEY THE LAW (2d ed.

2006). Shackling defendants may also cause judges—

despite their best efforts—to see shackled detainees

as dangerous and likely guilty. See, e.g., People v. Best,

979 N.E.2d 1187, 1189 (N.Y. Ct. App. 2012) (holding

that the trial court erred by allowing a defendant, who

had not been subjected to an individualized assessment, to appear at a bench trial in shackles).

A literature on implicit bias focuses on associational stereotyping—linking, for example, age with infirmity. See generally Kristin A. Lane, Jerry Kang &

Mahzarin R. Banaji, Implicit Social Cognition and

Law, ANN. REV. L & SOC. SCI., 3, 427–51 (2007). But

here the problem is not implicit bias but explicit labeling by the government of all criminal defendants as

dangerous risks.

Amici are keenly aware of the importance of protecting every person in court proceedings. Doing so requires a cooperative effort among all participants that

28

is consistent with constitutional obligations. This

Court announced how to balance security concerns

and defendants’ rights in the context of defendants appearing in shackles before juries. This Court concluded that individualized assessments of dangerousness can accomplish security goals without giving

courtrooms the ambiance of detention centers. See

Deck, 544 U.S. at 630.

A parallel principle is reflected in the law governing the public’s right to be present in courtrooms,

which is also not absolute. See Press-Enter. Co., 464

U.S. at 509. Closing courtrooms can take place, but

only based on evaluations in specific contexts and

then with as narrowly tailored a limit on public access

as possible.

Blanket five-point shackling, in contrast, deprived criminal defendants in San Diego of their constitutional rights by undermining their individuality

and marking them all as dangerous. No less than at

trial or sentencing, indiscriminate shackling at pretrial stages communicates to the public that criminal

defendants are not truly individuals in the eyes of the

law. Accordingly, the integrity of our judicial system

requires that shackling—at any stage of proceedings—be allowed only if individual circumstances

show a need based on a risk of violence or escape.

V. Given the Centrality of this Issue to American Justice, Appellate Review Was Warranted Here.

This case is at the heart of American justice, as its

outcome will decide what American courtrooms look

like. If no appellate review can be had, district courts

may indiscriminately shackle defendants with no

29

oversight. A never-ending parade of defendants appearing in five-point shackles for nearly every court

proceeding is anathema to the due process rights of

defendants and to the dignity and decorum that are

bedrock principles in American judicial proceedings.

Thus, this case meets the test of “importance” that

is central to the collateral order doctrine, see Cohen,

337 U.S. at 546, and presents the “exceptional circumstances” required to exercise supervisory mandamus,

Cheney, 542 U.S. at 380. To be decided is whether

criminal defendants are treated as individuals and

what the public sees and learns about American criminal justice by watching courtroom processes.

The harm to the public happens at the moment a

defendant shuffles into court in shackles. That image

of American criminal justice cannot be remedied at

some later date, and it is not rendered moot by completion of any individual criminal proceeding. Immediate appellate review—through either the “collateral

order” or “supervisory mandamus” framework—is

therefore essential to preserving criminal defendants’

rights and the dignity and decorum of the American

judicial process.

CONCLUSION

For the foregoing reasons, as well as those given

by Respondents and in the decisions below, the judgment of the Court of Appeals should be affirmed.

30

FEBRUARY 28, 2018

Respectfully submitted,

JUDITH RESNIK

127 Wall St.

New Haven, CT 06511

MEIR FEDER

Counsel of Record

JONES DAY

250 Vesey St.

New York, NY 10281

(212) 326-3939

mfeder@jonesday.com

STEPHEN I. VLADECK

727 E. Dean Keeton St.

Austin, TX 78705

SARAH L. LEVINE

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

AMANDA K. RICE

JONES DAY

150 W. Jefferson Ave.

Suite 2100

Detroit, MI 48226

CHRISTINA N. LINDBERG

ELI M. TEMKIN

ADRIENNE L. KAUFMAN

JONES DAY

90 S. 7th St.

Minneapolis, MN 55402

Counsel for Amici Curiae

APPENDIX—LIST OF AMICI CURIAE *

Mahzarin R. Banaji

Richard Clarke Cabot Professor of Social Ethics

Harvard College Professor

Chair, Department of Psychology, Harvard

University

Rosemary Barkett

Retired Judge, U.S. Court of Appeals, Eleventh

Circuit

Former Justice, Florida Supreme Court

David H. Coar

Retired Judge, U.S. District Court, Northern District

of Illinois

Former Judge, U.S. Bankruptcy Court, Northern

District of Illinois

Fernande R.V. Duffly

Retired Associate Justice, Massachusetts Supreme

Judicial Court

James Forman, Jr.

Professor of Law, Yale Law School

Royal Furgeson

Retired Judge, U.S. District Court, Western and

Northern Districts of Texas

Dean, UNT Dallas College of Law

* Institutional affiliations are listed solely for purposes of

identification and do not indicate institutional support for the

positions articulated in this brief.

2

Nancy Gertner

Retired Judge, U.S. District Court, District of Massachusetts

Senior Lecturer, Harvard Law School

John Gleeson

Former Judge, U.S. District Court, Eastern District

of New York

Former Assistant U.S. Attorney, Chief, Criminal Division, Eastern District of New York

Partner, Debevoise & Plimpton LLP

Rory K. Little

Joseph W. Cotchett Professor of Law, U.C. Hastings

College of the Law, San Francisco

Former Associate Deputy Attorney General, U.S. Department of Justice

Former Assistant U.S. Attorney, Chief, Appellate

Section, Northern District of California

Former Trial Attorney, Organized Crime & Racketeering Strike Force, U.S. Department of Justice,

San Francisco

Toni M. Massaro

Milton O. Riepe Chair in Constitutional Law, University of Arizona

Mary B. McCord

Former Acting Assistant Attorney General, National

Security Division, U.S. Department of Justice

Former Assistant U.S. Attorney, District of Columbia

3

Senior Litigator from Practice and Visiting Professor

of Law, Georgetown University Law Center, Institute for Constitutional Advocacy and Protection

Lauren Ouziel

Assistant Professor of Law, Temple University

James E. Beasley School of Law

Former Assistant U.S. Attorney, Southern District of

New York and Eastern District of Pennsylvania

Judith Resnik

Arthur Liman Professor of Law, Yale Law School

Stephen C. Robinson

Former Judge, U.S. District Court, Southern District

of New York

Former U.S. Attorney, District of Connecticut

Partner, Skadden, Arps, Meagher & Flom LLP

Shira A. Scheindlin

Retired Judge, U.S. District Court, Southern District

of New York

Of Counsel, Stroock & Stroock & Lavan LLP

Randall T. Shepard

Retired Chief Justice, Indiana Supreme Court

Norman W. Spaulding

Sweitzer Professor of Law, Stanford Law School

E. Thomas Sullivan

Former Dean, University of Minnesota Law School

Former Dean, University of Arizona College of Law

4

Robert S. Taylor

Former Principal Deputy General Counsel, U.S.

Department of Defense

Tom R. Tyler

Macklin Fleming Professor of Law and Professor of

Psychology, Yale University

Stephen I. Vladeck

A. Dalton Cross Professor in Law, University of

Texas School of Law

Patricia M. Wald

Retired Judge, U.S. Court of Appeals, D.C. Circuit