Do the due process restrictions on shackling criminal defendants apply equally to jury and non-jury proceedings?

Background

Due process under the Fifth and Fourteenth Amendments restricts the use of physical restraints on criminal defendants during a criminal trial. Because shackles are inherently prejudicial, the Supreme Court instructed in Deck v. Morrison (2005) that defendants should only be shackled during trial as a last resort. Shackles interfere with a jury’s ability to make accurate determinations about both guilt and sentencing because they imply to a jury that the defendant is dangerous, and may cause a jury to infer negative attributes about the defendant’s character.

The Court established a rule in Deck that physical restraints that are visible to a jury may only be used after a trial court determination that they are justified by an essential state interest, based on particular concerns in a specific defendant’s trial. For example, a trial court may find that a particular defendant poses such severe security risks that shackling is necessary to protect the occupants of the courtroom. Judges may not impose blanket rules about the use of restraints, and the inquiry must be specific to concerns about the particular defendant. The Deck rule applies to both guilt-determination proceedings and to sentencing proceedings.

The Court builds the rule in Deck v. Morrison from three essential principles:

  • The presumption of a defendant’s innocence until proven guilty. Visible restraints erode the fairness of the criminal proceeding by implying that the defendant is dangerous and tipping the scale in favor of guilt.
  • The defendant’s constitutional right to counsel. Shackles interfere with a defendant’s ability to move freely to communicate with her attorney. Defendants physically struggle to write when they are restricted by shackles, which limits their ability to effectively communicate with counsel during criminal proceedings.
  • The dignity and decorum of the courtroom is necessary to support confidence that the legal system pursues justice as it handles the potential deprivation of liberty. Courtroom dignity requires that defendants are treated respectfully.

The Issue

The Court only addressed jury proceedings in Deck. The Deck holding left lower courts to determine whether a defendant’s due process rights require the same justification for shackles in proceedings without juries.

The Split

The Second Circuit does not require a specific evaluation of the need for restraints in non-jury proceedings. Because juror prejudice is the primary concern for limiting the use of restraints in the courtroom, the Second Circuit examined in United States v. Zuber (1997) whether a concern of prejudice is present when judges rather than juries do the sentencing.

We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors, …, and we make no exception here. We presume that where, as here, the court defers without further inquiry to the recommendation of the Marshals Service that a defendant be restrained at sentencing, the court will not permit the presence of the restraints to affect its sentencing decision.

Similarly, the Eleventh Circuit held in United States v. Lafond (2015) that the Deck rule against restraints only limits the use of restraints at proceedings with juries.

The Ninth Circuit arrived at a different conclusion in United States v. Sanchez-Gomez (2017). The court extended the Deck rule to non-jury proceedings and clarified that it applies in pretrial, trial, and sentencing proceedings. The Ninth Circuit now requires that, before shackling a criminal defendant in both jury and non-jury proceedings, courts must decide if the security concerns with the particular defendant outweigh the infringement on the defendant’s due process right.

Continuing with the rationale for the Deck rule, the court applied the principle of presuming a defendant’s innocence until proven guilty.

The principle [that defendants are innocent until proven guilty] isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.

Using the third Deck justification, the Ninth Circuit reasoned that dignity and decorum require consistent application of the rule:

Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.

Looking Forward

The Supreme Court recently granted a writ of certiorari for Sanchez-Gomez, but declined to take up the issue of whether due process prohibits the use of restraints in non-jury proceedings. The circuit split and conflicting rationales present a need for clarity on this important constitutional issue.

 

 

 

 

Too Little Too Late If You Work for The State? The Applicability of Employee Thresholds to Age Discrimination Claims from State Workers

The Issue

Americans born in 1978 will be turning 40 this year. In addition to the wisdom that comes with age, these citizens will also be gaining the possibility of protection from age discrimination under the Age Discrimination and Employment Act (ADEA). This act prohibits employers from discriminating “against persons 40 years of age or older.29 U.S.C. §§ 621–34. According to 29 U.S.C. § 630(b), the term “employer” is defined as:

[…] a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year․ The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. (Emphasis Added)

If the “twenty or more employees” threshold is not met, workers over 40 are ineligible for ADEA protection. The circuit courts are split on whether the 20-employee threshold only applies to persons, or whether agents of persons, and state entities are included.

The Split

The Seventh Circuit

In Kelly v. Wauconda Park Dist. (7th Cir. 1986), the Seventh Circuit ruled that government entities were encompassed by the 20-employee threshold in 29 U.S.C. § 630(b). The court utilized a two-step process in determining whether government entities had to meet the 20-employee threshold. First, the court looked at whether 29 U.S.C. § 630(b) is ambiguous. If the statute was determined to be ambiguous, then the court would analyze legislative history to guide its decision.

In the first step of the analysis, both parties made arguments about the ambiguity of the statute. Kelly made an argument that the statute excluded government entities, and Wauconda argued that government entities were included by the statute. The court concluded that the statute was ambiguous because it had two reasonable but differing interpretations.

The court then analyzed the legislative history. The lower court ruled “that ‘[t]he legislative history of the 1974 amendment, the similarities between it and a parallel amendment of Title VII, and common sense’ all favor [Wauconda’s] reading of section 630(b).” The Seventh Circuit believed that the analysis of the 1974 ADEA amendment’s history was a valid point, and that Title VII had a large number of parallels to the ADEA. Ultimately, the Seventh Circuit held that the legislative history weighed in favor of the ADEA’s 20-employee threshold applying to government entities.

Therefore, Wauconda Park District, a local government entity, was not an “employer” for ADEA purposes because it did not have the required number of employees as specified in 29 U.S.C. § 630(b).

The Sixth, Eighth, and Tenth Circuits

In EEOC v. Monclova Township (6th Cir. 1990), Palmer v. Arkansas Council On Economic Education (8th Cir. 1998), and Cink v. Grant County (10th Cir. 2015), the Sixth Circuit, Eighth Circuit, and Tenth Circuit, respectively, came to the same conclusion as the Seventh Circuit in Kelly.  Each circuit held that the 20-employee threshold applied to state entities.

The Ninth Circuit

In Guido v. Mount Lemmon Fire Dist. (9th Cir. 2017), the court held that the ADEA definition of “employer” “is deconstructed as follows: The term “employer” means [A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” Due to the division of these three categories, the “person” category is the only category of the three that is modified by the “who has twenty or more employees” clause. If this is the case, then “agents of the person” or “state-affiliated entities” would have to comply with the ADEA regardless of meeting the 20-employee threshold.

The court supports their position by claiming that the “person” category is further defined by 29 U.S.C. § 630(a) (The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons), and is narrowed by the “engaged in an industry affecting commerce who has twenty or more employees for each working day” clause. The court also claims that the “state-affiliated entities” category is further defined by “the various types of State-affiliated entities covered, such as a ‘political subdivision of a State’.”

The Equal Employment Opportunity Commission (EEOC) supports the Ninth Circuit’s holding. The EEOC states that when Title VII was amended, Congress was able “to apply clarifying language across multiple definitions of a term.” The clarifying language in question applied to “States and State-related entities, including political subdivisions of a State.” 42 U.S.C. § 2000e. The EEOC believed that Congress could have applied similar language to 29 U.S.C. § 630(b) if it had wanted to, but that Congress chose not to.

The ninth circuit ultimately held that “a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA.”

Looking Forward

Based on the holdings from the various circuits, a state entity may or may not be considered an “employer” under the ADEA’s 20-employee threshold. On February 26, 2018, the Supreme Court granted certiorari to hear the case of Guido v. Mount Lemmon Fire Dist. Thus, the issue may be resolved soon.

For further reading, see what Squire Patton Boggs has to say on the topic.

Stay-Put or Pay for Better: Students with Disabilities and the Stay-Put Provision

ISSUE

The Individuals with Disabilities Education Act (IDEA) requires school districts to develop Individualized Education Programs (IEP) for children with disabilities specifying how each student will receive a Free Appropriate Public Education (FAPE). A variety of disputes may arise over what constitutes a FAPE for a student with disabilities. If a parent or guardian feels their child is not receiving adequate resources, they may approach the district for a collaborative process towards resolution. However, either party, the school district or the parent, may also file a complaint to request a hearing, which gives the parties 30 days to resolve the dispute. An additional 45 days may be allotted if a resolution is still not reached.

As part of that process, the “stay-put” provision protects students while parents and school districts resolve their dispute over how to best educate the student. The provision provides: “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.” The purpose of the provision is to prevent schools from excluding students with disabilities and to provide stability for those students during their hearing. Town of Burlington v. Dep’t of Education (1985). In Burlington, the Supreme Court affirmed reimbursement for private school placement during trial, but it is unclear whether reimbursement is available throughout appellate procedure.

If a school district prevails in the dispute, parents still upset with the outcome are generally forced to enroll their students in private schools. They also hold the right to seek state or federal court review post the initial decision. However, courts are split whether the “stay-put” provision applies through the pendency of the appellate case and whether parents and guardians are entitled to tuition reimbursement at private schools if the court ultimately holds in their favor on appeal.

SPLIT

The courts of appeals are divided as to whether the stay-put provision applies through the judicial appeals process or whether it drops after the trial court reviews the state administrative decision.

The D.C. Circuit originally held that the stay-put provision only applies through the trial court decision and the word “proceedings” does not include judicial appeals.

D.C. Circuit: In Andersen v. District of Columbia (D.C. Cir. 1989), four children with learning disabilities sought reimbursement from the District of Columbia Public Schools for expenses of tuition at private specialized schools. The court held that assertion inconsistent with statutory language because the statute in Section 17 refers only to “due process hearings, state administrative review where available, and civil actions for review brought in district court.” The court also referenced legislative purpose, stating:

“Once a district court has rendered its decision approving a change in placement, that change is no longer the consequence of a unilateral decision by school authorities; the issuance of an automatic injunction perpetuating the prior placement would not serve the section’s purpose.”

However, recently, the Third and Ninth Circuits created a split by holding that the pendency applies through appeals. Under this decision, the student would be entitled to stay-put provision protection and reimbursement through lengthy appellate trials.

Ninth: In Joshua A. v. Rocklin (9th Cir. 2009) the court held that the Andersen interpretation was overly narrow and that allowing the district to terminate the child’s placement during the appeals process runs counter to the purpose of the stay-put provision:

“[R]efusing to enforce the stay put provision during the appeals process would force parents to choose between leaving their children in an education setting which potentially fails to meet minimum legal standards, and placing the child in private school at their own cost. Congress sought to eliminate this dilemma through its enactment of § 1415(j).”

Third: In M.R. v. Ridley (3rd Cir. 2014), the court found it was impossible to protect a child’s educational status quo without enforcing the stay-put provision through appellate procedure and was an unavoidable consequence of the balance Congress struck to ensure stability for a vulnerable group of children.

LOOKING FORWARD

Currently, the Supreme Court’s Burlington decision does not definitively say whether parents can be reimbursed for appellate procedure. The dicta in the opinion suggests that reimbursement for appellate procedure should only be approved if “the State or local education agency and the parents… agree.” But the recent Third and Ninth Circuit interpretations contradict this dictum and indicate a shift away from the Burlington dictum. Furthermore, other Supreme Court cases referencing the IDEA have emphasized the importance of the protecting disabled students’ placement and entitlement to FAPE. Limiting the stay-put provision to trial courts forces disabled children with limited means to move back to placements that could have been inappropriate to avoid costs that they may be entitled to under further consideration.