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Baylor Law Review




Although ICE's shackling practices vary across the country, in at least some jurisdictions ICE has exercised its authority under the 1988 Memorandum to indiscriminately shackle all detainees. The exact extent of this practice is unknown, but recent litigation suggests that it is not uncommon. In fact, such litigation indicates that ICE has indiscriminately shackled detainees even in courtrooms located outside of detention facilities, such as the San Francisco Immigration Court. Consequently, detained noncitizens frequently appear in immigration court looking like criminals, wearing orange jumpsuits, handcuffs, leg irons, and belly chains, even though there has been no individualized determination that they pose a safety threat or flight risk.

This Article argues that procedural due process requires an individualized judicial determination of the need for restraints in removal proceedings based on the same rationales underlying this prohibition in the criminal context. Specifically, the indiscriminate use of restraints in removal proceedings diminishes the dignity of the proceedings, impairs a litigant's ability to participate fully in his or her defense, and undermines the fairness of the fact-finding process. Individualized judicial determinations about the need for restraints would minimize these infringements on important rights while still protecting the government's security interests. Such determinations would also avoid the high risk of erroneous deprivation that results when an adversarial party is allowed to make self-serving decisions about the use of restraints in the courtroom.

Part II provides background information on the detention and deportation of noncitizens, describing the rapid expansion of immigration detention, the numerous challenges that detainees face in removal proceedings, and how poorly they fare in terms of outcomes compared to non-detained individuals. Against this backdrop of the quasi-criminal removal process, Part III explains the historical origins and contemporary rationale for the prohibition against the indiscriminate use of restraints in criminal jury trials and explores how some courts have extended this prohibition to criminal proceedings before a judge.

In Part IV, the Article discusses how courts have embraced a similar standard in the civil context, requiring individualized determinations by the trial judge and prohibiting the delegation of this duty to a correctional officer that is an adversarial party. Part IV then provides a detailed analysis of whether procedural due process requires an individualized judicial determination of the need for restraints in removal proceedings under the three-part test in Mathews v. Eldridge, which requires courts to consider the private interests at stake, the government interest, and the risk of erroneous deprivation with and without the additional procedures.

Part V deepens this procedural due process analysis by examining empirical studies suggesting that restraints may have profound cognitive and behavioral effects on both the restrained individual and the judge. These studies are relevant to understanding the private interests at stake under the first factor of the Mathews test, as well as the risk of erroneous deprivation under the third factor. In addition, these studies support an argument that prejudice should be presumed for due process violations involving the use of restraints because the psychological and behavioral impacts are so difficult to measure. The Article offers recommendations in Part VI and concludes in Part VII.

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