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December 13, 2017

Asylum Seekers and Vulnerable Migrants Greeted with Shackles and Prison Sentences

On Friday, the Supreme Court granted certiorari to United States v. Sanchez-Gomez, thereby committing to review a Ninth Circuit ruling that a policy of mass shackling defendants in court proceedings violates their Fifth Amendment right to be free from unwarranted restraints. The Ninth Circuit said that “presumptively innocent defendants…[should] be treated with respect and dignity in a public courtroom, not like a bear on a chain.”

At the request of U.S. Marshals, federal courts within the Ninth Circuit—which covers nine western states—had implemented a policy to bring defendants to most court proceedings in handcuffs and leg shackles connected by a waist chain. Sitting en banc, the Ninth Circuit held that the court could not employ a blanket policy of shackling defendants; instead the court must decide on a case-by-case basis whether restraining the person served a compelling government purpose.

Since its implementation in mid-July, this decision has been a small yet important step in an otherwise inhumane, en masse, fast-track proceeding in Tucson, Arizona, known as “Operation Streamline,” which prosecutes up to 75 migrants a day for crossing into the United States without authorization. The decision has also been implemented in Operation Streamline proceedings in Yuma, Arizona.

I’ve seen the shackling policy before and after the Ninth Circuit decision. Prior to the decision, migrants prosecuted through Operation Streamline in Tucson and Yuma were fully bound by chains. The clanging was piercing as defendants, with a limited range of motion, would shuffle up in rows of five to eight before the magistrate judge, who would speed through a short script of questioning and then hand down prison sentences of up to 180 days for entering the United States without authorization.

This indiscriminate policy of shackling rarely exempted anyone. The government used restraints on people with broken bones and people using canes, crutches, or wheelchairs. Along with others, I observed defendants trip on these chains, sometimes falling to the floor. Restraints were so tight that that they cut into peoples’ wrists and ankles and made it difficult for them to walk or even stand. Multiple pregnant women have been shackled as well.

Some defendants who were shackled:

  • Roderico, a Guatemalan prosecuted through Operation Streamline in Tucson, was fully shackled even though he had required medical care after being run over by a motorcycle he claimed was Border Patrol.
  • Romel from Mexico shuffled to the front of the courtroom in full shackles with a gunshot wound to his face. The court record reflected the trauma noting, “record made re competency, medical needs and seizures from a gunshot wound.”
  • Franklin suffered a severe wrist injury in Honduras attempting to save his sister from being raped. When it was pointed out to the judge, she agreed it looked bad and stated for the record that “the Court recommends the defendant be seen for medical attention.”
  • Manuel from Mexico sat in a chair due to recent open-heart surgery and left court on crutches.

Many of those shackled are asylum seekers who fled horrors in their home countries. According to Customs and Border Protection (CBP), a growing share of those crossing into the United States “illegally” are “surrendering to law enforcement to seek humanitarian protection rather than trying to evade detection or apprehension.” Many Border Patrol sectors, including those along the Arizona sector near Tucson and Yuma, have implemented a “zero-tolerance” policy, meaning that all apprehended—including asylum seekers—are arrested and prosecuted for entering the United States “illegally.”

Not only is this policy shameful, it violates the provision of the Refugee Convention (which the United States adopted when it ratified the 1967 Protocol Relating to the Status of Refugees) that prohibits states from penalizing asylum seekers for their manner of entry or presence in the country where they're seeking asylum.

Seeking asylum is a legal act, yet the U.S. government is treating asylum seekers as if they were criminals. Shackling asylum seekers is especially harmful in today’s climate as the Trump Administration depicts them as security threats. While Operation Streamline remains chockfull of constitutional violations, the Ninth Circuit decision restored to it a measure of decency. However, the holding does not bind the Operation Streamline courts outside the Ninth Circuit, namely those in Texas and New Mexico, where I have witnessed its continued implementation.

Since the implementation of non-shackling in Operation Streamline, the Federal Public Defender for the District of Arizona has reported that there has been no “incidents of violence or escape by detainees unshackled.” The Supreme Court is set to review whether the Ninth Circuit properly exercised its authority next year. It could vacate the decision and pave the way for the return of blanket shackling.

In a country with a justice system that prides itself on fairness and dignity, there is no place for mass shackling of human beings, including those whose only “crime” was seeking protection from persecution and death.