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Deputies now need judge’s permission to use restraints in court

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Shackles in Court 02

A Benton County inmate appears in court with restraints Friday for a hearing. 

Benton County sheriff's deputies now need a judge’s permission to use restraints on an inmate who is appearing in Circuit Court for a hearing.

The change comes after the United States Court of Appeals for the Ninth Circuit, which has jurisdiction over Oregon, ruled that defendants should not be shackled in the courtroom unless a judge determines an individual poses a danger or risk for escape.

The basis for the ruling, which was handed down May 31, is that a presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom. The U.S. Attorney’s Office applied for and was granted a 90-day stay on the issue, so the new policy went into effect this fall.

“When you see a person in shackles, it automatically makes you believe that they’ve done something wrong, which belies the presumption of innocence,” said Jennifer Nash, a Corvallis defense attorney.

Local courts have long held that defendants should not be restrained during jury trials, but have typically shackled in-custody defendants for all other court hearings.

“This completely changes all that,” said Sheriff Scott Jackson.

Now, each time an in-custody defendant is scheduled to appear in court, a deputy fills out an affidavit in support of mechanical restraints in court proceedings, the sheriff said. The document includes information on the defendant’s criminal history, past jail and courtroom behavior and pending charges. A judge then decides whether mechanical restraints are necessary for the defendant. A hearing may be held on the issue.

Jail Commander Diana Rabago said deputies look at the seriousness of charges. For a low-level offense like trespassing, they may not recommend restraints, she said. For Measure 11 offenses, which all carry a presumptive prison sentence, deputies would recommend shackles, she said.

“If someone knows, ‘If I’m convicted, I’m going to prison,’ that inherently creates a flight risk, in my opinion,” Rabago said.

Nash said the Ninth Circuit’s decision disallows blanket policies, such as shackling for all serious offenses.

“My argument would be that it doesn’t matter what the charge is,” she said. “The burden is the same … there has to be reasons particular to that case.”

A judge must recognize those specific concerns. In September a judge denied a request for restraints in a case against Raymond Merl Turner, who was facing multiple Measure 11 sexual abuse charges, according to court records.

When a judge denies the use of restraints, the deputies have to adjust their security plans, the sheriff said.

“We have an obligation to keep the community safe,” Jackson said.

Jackson said deputies can walk the defendant to the courtroom in restraints and then take off the restraints at the door. At least two deputies are then needed in the courtroom to respond to potential problems such as an inmate becoming violent or trying to escape, he said.

“It’s a worry of mine as sheriff that we’re going to have some incident where either staff or a community member gets hurt,” Jackson said.

For the Turner case, four deputies were involved in transporting the defendant to court and making sure the floor where the hearing was taking place was clear of people so Turner would not be seen in shackles, the sheriff said. 

The extra staff needed to comply with the new rule is a strain on the department, Jackson said. The agency may need to hire more deputies or rely more heavily on reserve deputies or private security, he said.

“There’s going to be a cost of complying with this or we don’t meet our obligation to keep the community safe,” Jackson said.

Rabago said deputies are filing, on average, three restraint affidavits a week.

There are options beyond the typical belly chains and leg restraints, such as electronic devices that can be hidden by clothing. When these devices are used, a deputy holds a remote control unit that could issue an electric shock to the inmate if he were to try to run, the sheriff said.

However, a judge must approve the use of such devices and they’re rarely used, Jackson said. (The last time he could recall using electronic restraints was during the case against Joel Courtney for the kidnapping, rape and murder of Brooke Wilberger.)

The U.S. Attorney's Office has appealed the Ninth Circuit’s decision to the U.S. Supreme Court, Nash said. The Supreme Court has not yet accepted review of the case.

Lillian Schrock covers public safety for the Gazette-Times. She may be reached at 541-758-9548 or Follow her on Twitter at @LillieSchrock. 

“When you see a person in shackles, it automatically makes you believe that they’ve done something wrong, which belies the presumption of innocence.”

Jennifer Nash, Corvallis defense attorney.


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