Ashley Nicole DeLeon

MULTNOMAH COUNTY gets a lot of use out of its shackles.

As a matter of course, prisoners who have hearings in the county courthouse have their hands cuffed, their legs in irons, and their arm movement constrained by a third chain around their waist. They are marched through the courthouse’s public hallways like this, and—unless appearing before a jury—typically remain at least partially restrained throughout their hearings.

It’s been this way for years, but the county’s shackling policy—along with the policies of an untold number of courts—has been ruled unconstitutional.

In a recent opinion that could snarl the operation of criminal justice, the federal Ninth Circuit Court of Appeals recently found that it’s against the law for courts to uniformly require prisoners to appear in restraints, as happens in Multnomah and other counties in Oregon. Instead, the court found, judges who want to ensure safety by shackling a defendant in court must decide on a case-by-case basis whether that prisoner is a threat.

“Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom,” reads the opinion, filed on May 31.

The concept isn’t foreign in Oregon. Not long after the appeals court’s opinion, Governor Kate Brown signed a bill into law prohibiting the shackling of juvenile defendants in court, barring special circumstances.

But the Ninth Circuit ruling, which holds sway over state and federal courts in much of the Western United States, has caused serious concerns about how to comply.

“The most difficult part of it is the notion that they’re going to be individualized discussions,” says Edward Jones, the county’s chief criminal judge. “We’re moving dozens of people a day, and on some days hundreds. How that actually works in practice is a little problematic.”

Multnomah County’s reliance on shackling is based partly on its century-old courthouse. The building isn’t connected to the jail, and doesn’t have hallways specifically for moving prisoners to court and back, as many newer facilities do. That means county corrections deputies move shackled prisoners through the same corridors that other visitors use.

Under the Ninth Circuit ruling, that’s fine. The appeals court limited its ruling to court appearances—not how people are transported to them. Even so, the opinion presents special concerns for the Multnomah County Sheriff’s Office (MCSO), justice officials say.

By fully restraining inmates, the MCSO can cut down on the number of deputies needed to ferry them to court hearings and back. If defendants are now unshackled during those hearings, the sheriff’s office is exploring whether it will either have to hire more corrections staff or reduce how many inmates can be transported in a given day.

“These are things we have to consider,” says Lt. Chad Gaidos, a spokesperson for the MCSO. “It’s a big change in practice for everyone involved in that system.”

Given the tricky logistics of prisoner transport, local defense attorneys haven’t mounted an assault on the county’s practice of shackling adult defendants.

“I don’t think anybody thought, 'Can we just object generally?’” says Lane Borg, executive director of Metropolitan Public Defenders. Instead, defense attorneys and others had requested the recent changes to Oregon’s juvenile shackling policies.

Federal public defenders in San Diego took things further. The recent appeals decision was based on a 2013 case of four federal defendants in Southern California who argued that being shackled in court had violated their Fifth Amendment right to be free of unwarranted restraints. One of those defendants had a fractured wrist, but was restrained nonetheless. Another was in a wheelchair.

Judges in the Southern California court routinely denied defense attorneys’ objections to the shackling, citing safety concerns of the US Marshals Service, which transports prisoners to and from federal court. But an 11-judge panel, in a narrow 6-5 opinion, ruled that that policy was flawed, and risked diminishing the dignity that court hearings are supposed to bring.

“A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom,” the majority opinion reads, “not like a bear on a chain.”

While he has not pushed back on the policy of shackling adult defendants, Borg says the court’s reasoning makes sense.

Shackling “does have a demeaning effect on many people, and not just the defendant” he says. “It’s terrible for a child to see their parent shackled unless there’s absolutely no choice, yet people will bring families to court.”

Local officials are still grappling with how to comply with the court’s ruling. When news of the opinion hit, Jones convened a panel to figure out how to quickly implement a system where judges could make “individualized” decisions on defendants without gumming up the system. Those officials were relieved on June 16, when the appeals court granted the US Department of Justice’s request for a 90-day stay on the ruling, while DOJ officials plotted their next move. That stay is in effect until August 29.

“It takes a bit of the pressure off,” says Nan Waller, the county’s presiding judge.

Depending on whom you ask, the effects of the ruling could be severe or relatively harmless. Borg suggests the system for individually ruling on defendants who require shackles doesn’t have to be onerous. Others say the courthouse might be clogged by the ruling, if it makes deputies less able to move prisoners.

“Everybody in the justice system needs [prisoner] transports to work,” says Chuck Sparks, a chief deputy district attorney who’s working on the issue. “You have lawyers and judges and juries all sitting around waiting” for prisoners.

And there’s something else lots of people are wondering about the recent ruling: How long it will be around.

In forming its opinion, the Ninth Circuit differed from rulings about shackling in two other federal circuits. That creates a scenario where the US Supreme Court might be more likely to take up a case and settle the matter.

“I suspect what we’re going to see is that this Ninth Circuit decision isn’t going to sustain itself,” says Jones, the chief criminal judge. “My assumption for what we are going to see is that the case is going to get overturned.”

It’s also possible the Ninth Circuit could modify its opinion. In the mean time, local justice officials are bracing for change.

“We’re going to prepare as if this is going into effect,” says Gaidos. “Anybody who’s waiting on a change in the legal opinion could be caught in a bad spot.”