Detainees file into San Francisco immigration court linked together like a “chain-gang,” bound at their wrists, waists and ankles. A metal chain or seatbelt-style restraint is wrapped around the detainees’ waists and connected to their wrists with a link to the detainee in front of them.
The detainees often must to sit four to a bench and remain bound to each other throughout the court proceedings. While sitting bound, they are limited in movements and the restraints prevent simple tasks, such as taking notes during the proceeding.
Class-Action to Stop Harsh Treatment
Most of these detainees are not violent criminals, but are treated as equally harsh before the court. Legal advocates believe this practice is unconstitutional. Although every courtroom has safety concerns, they reserve physical restraints for the most violent offenders.
In fact, a 2009 report by the U.S. against Immigration and Customs Enforcement agency shows that 95 percent of the immigration detainees having no violent felony records. Yet the practice of shackling all immigration detainees is nationwide problem, the decision to do so is at the discretion of each county.
Because the blanket policy of shackling all detainees in court continues, the American Civil Liberties Union (ACLU) of Northern California, in partnership with the Lawyers Committee for Civil Rights and the law firm of Wilson, Sonsini, Goodrich and Rosati, filed a class-action suit in the U.S. District Court in San Francisco to compel ICE and other federal law enforcement agencies to bring an end to this indiscriminate practice.
ACLU filed the case in the name of four plaintiffs on behalf of all current and future adult immigration detainees who could be subjected to being bound for hours without a stated cause. The practice affects the quality of defense they receive during immigration proceedings; according to ACLU attorney Julia Mass. Detainees cannot even raise their hands in order to be sworn in for court proceedings while they remain shackled.
According to Dan Macallair, director of the Center on Juvenile and Criminal Justice (CJCJ) in San Francisco, shackling undocumented detainees in the same way as violent criminals could cause a disparity between their treatment and that of others arrested for nonviolent infractions
“Because of luck a judge (those accused of a crime) can be detained or released on bail,” Macallair said. “If they are detained they are more likely to receive harsher treatment throughout the judicial process.”
CJCJ has conducted several studies showing that if two individuals with similar criminal records are charged with the same offense and one is an immigration detainee while the other is not, they receive differential treatment, according to Macallair. The detained individual almost always receives harsher treatment, such as higher bail or longer sentences.
In addition to the allegations of differential treatment the ACLU lawsuit claims that being shackled is detrimental to the mental and physical health of detainees.
“The defendant’s policy and practice of shackling all detained immigrants for immigration court proceedings causes detainees to suffer physical and emotional pain, is dehumanizing, and undermines the dignity of the court proceedings,” according to the class action complaint for injunctive and declaratory relief filed by ACLU.
Battered in Brazil, Mistreated in America
One of the named plaintiffs, a Brazilian immigrant named Uelian De Abadia-Peixoto, 35, is in immigration custody in Yuba County. She has no history of violence or disruption in court. She has plastic and steel plates on her knees, legs, feet, back and head.
According to the ACLU complaint, De Abadia-Peixoto has suffered injuries as a result of being bound for hours at a time during five court appearances since January 2011.
A survivor of domestic violence, De Abadia-Peixoto says she was bound and raped by her abusive husband and his brother while she lived in Brazil. She has applied for asylum in the United States based on being a victim of a violent crime, said ACLU’s Mass.
The treatment De Abadia-Peixoto has received as a detainee has triggered mental distress, bringing back memories of the trauma she experienced in Brazil.
The other three plaintiffs in the class action suit have sustained similar physical and mental harm as a result of their detention.
The ACLU of Northern California hopes to bring an end to the blanket policy of shackling for all detainees and see it replaced by a case-by-case policy. None of the plaintiffs are seeking monetary compensation for injuries resulting from the shackling; they simply want to see and end to these practices, according to Mass.
CJCJ’s Macallair explained that separation of violent and non-violent criminals or classification has been a practice entrenched in the U.S. criminal justice system since one of the first American penitentiaries, the Walnut Street jail in 1790.
Typically, in U.S. courtrooms, shackling during court proceedings is limited to violent criminals, who are threatening or flight risks.
The classification system distinguishing violent from nonviolent criminals is as much to protect the accused as to mete out equal justice under the law, Macallair said. “It is important to separate the hard and violent offenders from the first-time offenders to avoid exploitation and victimization of first time offenders that runs ramped outside of classification,” he noted.
The primary issue with classification is that all undocumented immigrants are technically in violation of the law, but they do not fall into clear categories. “Immigration is increasingly difficult because defendants are not necessarily charged with a criminal offense in the classic sense,” Macallair said.
In fact, often times immigration detainees are not even charged with a crime, according to Neil Babra an immigration attorney.
But in a motion to dismiss the class action, ICE and the other defendants answered the ACLU complaint stating that they “specifically and categorically deny any implication that the use of temporary restraints in immigration court to prevent flight and to protect the safety of those present constitutes a violation of the United States Constitution or any provision of law.”
According to court documents, the general shackling policy was implemented in San Francisco by the United States Marshals Service for the Central District Court of California after discussions with magistrate judges. Authorities, say the defendants, “sought to address security concerns associated with multi-defendant proceedings in an unsecured, large courtroom in a district which the security personnel must cover several court houses.”
ALCU also claims that the shackling impairs clients’ ability to communicate with their attorneys, which could violate attorney-client confidentiality while detainees are bound together.
“This practice is particularly problematic for detainees who have grounds to seek asylum because they may, for example, fear persecution based in HIV status, gender, sexual orientation, gender identity or other protected grounds,” Mass said. “Because they are shackled to other individuals they are either forced to disclose this information in front of others or withhold it from their attorneys.”
In the motion to dismiss filed by the defendants in the case acknowledged that the general rule in the criminal justice system is not to physically restrain the defendant without “compelling circumstances,” but that is not necessary in proceedings without a jury because there is ideally no prejudicial judgment.
The motion to dismiss also claims that the government only needs to produce “some evidence” to keep detainees physically restrained during proceedings “regardless of the negative effects appearing in restraints might have on an individual, including affecting their ability to communicate with counsel or participate in the restraints.”
The suit is currently in the discovery phase of the case and set to go to trial by April 22 of next year. Both parties are gathering and exchanging evidence before moving on to litigation, according to Mass.
“The practice we are challenging is quite shocking and pervasively different from fundamental American values,” Mass said. “Everyone intuitively understands people shouldn’t be chained up unless he or she poses a specific danger. Yet everyone in San Francisco is forced to testify in full chains in a way that is inhumane.”