The U.S. incarcerates more citizens than any other country, according to the International Centre for Prison Studies. It makes up 5 percent of the world’s population, but incarcerates nearly 25 percent of the world’s prisoners. Aiming to reduce crime and incarceration, many states have created and implemented drug-treatment courts.
Observing criminal drug court in Baltimore for the first time last week, I was disgusted watching defendants being trudged out in wrist and ankle shackles before they had officially “entered” drug court, that is, pleaded guilty to the alleged drug offense.
The entire basis for the criminal justice system is the presumption of innocence. Shackling innocent drug court defendants makes a mockery of the idea of “innocent before proven guilty.”
Here are seven reasons why shackling is not only inhumane, but a violation of basic due process rights:
- Defendants in drug court are generally not violent.
We shackle defendants to keep everyone in the courtroom safe. But defendants charged with violent crimes are not eligible for drug court. Courts assume – based on no prior knowledge of any history of committing violent or abusive acts – that drug court defendants pose a threat of physical danger. This rests on the presumption that addiction somehow makes defendants create physical harm – an unjustified conclusion.
- Shackling prejudices fact-finding.
Shackling a criminal defendant sends a message: this person is dangerous. Some courts have concluded that shackling is per se or inherently prejudicial. We generally don’t let juries see defendants in handcuffs because of this prejudicial effect. Judges are just as human as laypersons and they are affected by the same subliminal messaging.
- Shackles hurt.
Shackling ankles and chaining wrists behind a person’s back isn’t just uncomfortable. It can inflict physical pain and produce scars. The justice system is literally bruising and cutting people who haven’t even been proven guilty. And it’s happening in court, where a defendant’s rights ought to be scrupulously preserved.
- Shackling isn’t an approach to public health problems.
The skyrocketing costs of operating overcrowded prisons have spurred widespread support to legalize marijuana and shift the justice system’s focus on punishment to rehabilitation. Drug treatment courts are emblematic of that shift. In many criminal cases, these courts are an alternative to incarceration.
At the very least, the presence of a drug treatment court makes it explicit that the justice system views drug abuse as a different sort of crime. The cases are transferred to a separate courtroom where the social work component plays a greater role and judges applaud defendants to positively reinforce their progress in drug treatment.
Most Americans seem to believe drug abuse is a public health issue. In 2014, The Pew Research Center published the results of a survey, which asked Americans what the government should focus on in developing drug policies. Just 26 percent said they should focus on prosecuting drug users, while 67 percent said the focus should be on providing treatment. Seven percent were undecided.
The National institute on Drug Abuse defines addiction as a “chronic, often relapsing brain disease that causes compulsive drug seeking and use, despite harmful consequences.” Our courts don’t shackle defendants who suffer from bipolar disorder simply because they suffer from a chronic brain disease. Prevailing research says drug abuse is a public health problem. To approach a public health problem with handcuffs flies in the face of common sense.
- The brain doesn’t like shackling.
Addiction is a disease – and recovery is really about empowerment, that is, regaining control of a person’s life situation, cognitive understanding, and autonomy.
Now, I’ve never been in handcuffs or ankle restraints, but I imagine that nothing is quite as disempowering as having your hands shackled behind your back and shuffling to the clinking and clanking of ankle shackles. Shackling dehumanizes, humiliates, and re-traumatizes. In a recent unsigned editorial, the Los Angeles Timeswrote “Routinely shackling or handcuffing defendants who are presumed innocent insults their dignity as well as the court’s.”
Persons who have been shackled report that it made them feel like an animal or a monster. If the court forces a person to see herself as an animal or a criminal, it seems plausible that the person is more likely to act in a way that reflects animalistic or criminal identities.
The stress brought on by shackling can curb brain development. Shackling’s traumatic impact is often cited as a reason to end universal shackling for juvenile defendants whose brains have not matured.
When children experience traumatic stress, the brain “can actually change” the physical composition and size of certain parts of the brain, thereby affecting the ability to make memories and learn, child advocate expert Frank Kros explained in a presentation before the University of Baltimore’s “Child and The Family” class in September. These effects were initially thought to be limited to children, but emerging neuroscience research suggests that the human brain isn’t developed until a person reaches her mid-20s.
Twenty-something-year-old drug court defendants lack brain maturity. For that reason, it just doesn’t make sense to shackle them in the courtroom any more than to shackle juvenile defendants. Shackling hurts brains.
- Other methods exist.
Shackling is simply not the least restrictive way to create a safe environment. Bailiffs and law enforcement can engage strategies to prevent and protect against outbursts and enforce decorum just as they do for hostile, sometimes violent, civil respondents e.g. parents indicated for abusing their children. If this doesn’t suffice judges’ concerns about safety – then I challenge the legal profession to find a more creative way than chaining a person’s wrists behind their back. This might be an opportunity to use less-invasive, non-prejudicial technological advances to improve court proceedings.
- “Problem-solving” courts have enough problems.
Amid all of the due process issues with boutique courts – including exparte communication, a lack of legal representation, and the requirement that a defendant in these special courts must first waive her rights to a full trial – drug courts should not compound due process problems by shackling non-violent defendants. Exparte communication refers to “team” communication about the defendant’s case among attorneys, social workers, and the judge without the defendant being present, meaning that the person is unable to confront potential accusations. It’s rationalized in the drug court context because defendants must admit to the allegations upon entering drug court, waiving rights to a trial where they would otherwise be allowed to make a case, present evidence and call and cross examine witnesses.
Shackling calls into question the legitimacy of the proceedings as drug court defendants must decide whether or not to plead guilty (enter drug court), while restrained in cuffs. Meanwhile, stress incurred by shackling makes it difficult for defendants to focus, recall, and relay valuable information to their attorneys and the court. The sheer weight of the power imbalance makes the admission of guilt appear coercive.
That the policy of shackling must be argued against is a paradigmatic problem unto itself. In evaluating the criminal justice system, it seems more prudent to scrutinize whether shackling promotes therapeutic jurisprudence and produces consequences that actually improve people’s lives.