Judge Martin criticizes the SDFLA's practice of stacking 924(c) counts in
this concurrence:
Although many things about this case are troubling, perhaps most worrisome is that Mr. Hernandez might never have received this sentence if he had been sentenced in another part of the country. The Sentencing Commission also reported to Congress that the practice of "stacking" § 924(c) charges happens in very few districts. The Commission's data showed "no evidence that those offenses occur more frequently in those districts than in others." Id at 361. The Sentencing Commission thus concluded that "this geographic concentration is attributable to inconsistences in the charging of multiple violations of § 924(c)." Id. at 361-62. As it happens, the Southern District of Florida, where Mr. Hernandez was sentenced, is one of the districts recognized as exceptionally prolific in charging § 924(c) crimes. In fiscal year 2010, at least one in thirty-five of our entire nation's § 924(c) sentences came from the Southern District of Florida. Id at 276. The Southern District of Florida was one of only twelve districts in the country that reported having over 50 of these cases that year. Id. For the same period, 38 districts reported having ten or fewer. Id.
Another local practice that may come under fire in the near future is the shackling of all defendants in magistrate court.
The 9th Circuit just found the practice unconstitutional, which is in direct conflict with the 11th Circuit. The Supreme Court may get the issue, but it's hard to disagree with the 9th's conclusion:
We must treat people with respect and
dignity even though they are suspected of a crime.
* * *
The Constitution enshrines a fundamental right to be free
of unwarranted restraints. Thus, we hold that if the
government seeks to shackle a defendant, it must first justify
the infringement with specific security needs as to that
particular defendant. Courts must decide whether the stated
need for security outweighs the infringement on a defendant’s
right. This decision cannot be deferred to security providers
or presumptively answered by routine policies. All of these
requirements apply regardless of a jury’s presence or whether
it’s a pretrial, trial or sentencing proceeding. Criminal
defendants, like any other party appearing in court, are
entitled to enter the courtroom with their heads held high.
The policy that defendants challenged here isn’t presently
in effect. Thus, although we hold that policy to be
unconstitutional, we withhold the issuance of a formal writ of
mandamus at this time.
8 comments:
funny...don't see the "heads held high" provision in the Bill of Rights. What a load of garbage.
@ 5:39 PM, see the United States Bill of Rights,
https://en.wikipedia.org/wiki/United_States_Bill_of_Rights
"with their heads held high" means the defendant is entitled to a presumption of innocence. A shackled defendant looks like a threat, and is presumed less than innocent, if not guilty as hell.
A shackled defendant is also being punished before a verdict.
Fourth Amendment
The right of the people to be secure in their persons,... and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,...
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,... nor be deprived of life, liberty, or property, without due process of law...
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, an impartial jury, an impartial jury, an impartial jury, an impartial jury,...
Eighth Amendment
...nor cruel and unusual punishments inflicted.
A shackled defendant is being punished before a verdict, an unusual punishment in the SDFLA vs. the rest of the United States.
5:39 - Have you ever read a judicial opinion? It's called a rhetorical device. You should read more.
Ok so we can hold them in jail pretrial but shackling them before a magistrate with no jury present is pre-verdict "punishment" that might cause the magistrate to question the presumption of innocence. Makes sense.
Without looking deeply into which side is right, it is worth noting that the Eleventh and Second Circuits, in addition to a slew of dissenting judges in the Ninth Circuit, disagree with the result of the en banc Ninth Circuit decision. If it goes to SCOTUS, a reversal is likely.
Glad you can make a SCOTUS prediction even without looking into the case too deeply. You're smart.
By the way - the 11th gets reversed more than the 9th by the SCT.
OK, 2:40. Just observing that Pryor wrote the Eleventh Circuit decision; he followed the Second Circuit; and a bunch of conservative judges on the Ninth Circuit disagreed with the en banc majority decision (i.e., they agreed with the Eleventh and the Second). Given the current makeup of SCOTUS, it doesn't take a deep look into the merits to suggest that a reversal is "likely."
Reversal would be 7-2. All you "due process" hand-wringers are blowhards. i repeat; there is no "heads held high" provision no matter what some liberal whackjob thinks in California. Plus, the shackling is only done for security reasons, not to punish them. The mag judge knows they are presumed innocent under the law, whether they are shackled or not. So due process does not compel the Marshals to unshackle them, any more than it compels them to take off their handcuffs. Presumably everyone would agree with handcuffs, and if so what is the difference? Presumably everyone would agree that they can be in their detention garb in court. So what is the diference? Now, if you want to be intellectual consistent and say that due process requires no handcuffs, no shackles, no prison garb, and a hat that says "innoncent" then fine, but realize that you have just lost your mind.
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