THOMAS, J., DISSENTING
DECK V. MISSOURI
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 04-5293
CARMAN L. DECK, PETITIONER
v. MISSOURI
on writ of certiorari to the supreme court of
missouri
[May 23, 2005]
Justice Thomas, with whom Justice
Scalia joins, dissenting.
Carman Deck was convicted of
murdering and robbing an elderly couple. He stood before the
sentencing jury not as an innocent man, but as a convicted double
murderer and robber. Today this Court holds that Deck’s due process
rights were violated when he appeared at sentencing in leg irons,
handcuffs, and a belly chain. The Court holds that such restraints
may only be used where the use is “ ‘justified by an essential
state interest’ ” that is “specific to the defendant on
trial,”
ante, at 1, and that is supported by specific
findings by the trial court. Tradition—either at English common law
or among the States—does not support this conclusion. To reach its
result, the Court resurrects an old rule the basis for which no
longer exists. It then needlessly extends the rule from trials to
sentencing. In doing so, the Court pays only superficial heed to
the practice of States and gives conclusive force to errant dicta
sprinkled in a trio of this Court’s cases. The Court’s holding
defies common sense and all but ignores the serious security issues
facing our courts. I therefore respectfully dissent.
I
Carman Deck and his sister went
to the home of Zelma and James Long on a summer evening in 1996.
After waiting for nightfall, Deck and his sister knocked on the
door of the Longs’ home, and when Mrs. Long answered, they asked
for directions. Mrs. Long invited them in, and she and Mr. Long
assisted them with directions. When Deck moved toward the door to
leave, he drew a pistol, pointed it at the Longs, and ordered them
to lie face down on their bed. The Longs did so, offering up money
and valuables throughout the house and all the while begging that
he not harm them.
After Deck finished robbing their
house, he stood at the edge of their bed, deliberating for 10
minutes over whether to spare them. He ignored their pleas and shot
them each twice in the head. Deck later told police that he shot
the Longs because he thought that they would be able to recognize
him.
Deck was convicted of the murders and robbery
of the Longs and sentenced to death. The death sentence was
overturned on appeal. Deck then had another sentencing hearing, at
which he appeared in leg irons, a belly chain, and handcuffs. At
the hearing, the jury heard evidence of Deck’s numerous burglary
and theft convictions and his assistance in a jailbreak by two
prisoners.
On resentencing, the jury unanimously found
six aggravating factors: Deck committed the murders while engaged
in the commission of another unlawful homicide; Deck murdered each
victim for the purpose of pecuniary gain; each murder involved
depravity of mind; each murder was committed for the purpose of
avoiding a lawful arrest; each murder was committed while Deck was
engaged in a burglary; and each murder was committed while Deck was
engaged in a robbery. The jury recommended, and the trial court
imposed, two death sentences.
Deck sought postconviction relief from his
sentence, asserting among other things, that his due process and
equal protection rights were violated by the trial court’s
requirement that he appear in shackles. The Missouri Supreme Court
rejected that claim. 136 S. W. 3d 481 (2004) (en banc). The
court reasoned that “there was a risk that [Deck] might flee in
that he was a repeat offender and evidence from the guilt phase of
his trial indicated that he killed his two victims to avoid being
returned to custody,” and thus it could not conclude that the trial
court had abused its discretion.
Id., at 485.
II
My legal obligation is not to
determine the wisdom or the desirability of shackling defendants,
but to decide a purely legal question: Does the Due Process Clause
of the Fourteenth Amendment preclude the visible shackling of a
defendant. Therefore, I examine whether there is a deeply rooted
legal principle that bars that practice.
Medina v.
California,
505 U. S. 437, 446
(1992);
Apprendi v.
New Jersey,
530 U. S. 466, 500
(2000) (Thomas, J., concurring); see also
Chicago v.
Morales,
527
U. S. 41, 102–106 (1999) (Thomas, J., dissenting). As I explain
below, although the English common law had a rule against trying a
defendant in irons, the basis for the rule makes clear that it
should not be extended by rote to modern restraints, which are
dissimilar in certain essential respects to the irons that gave
rise to the rule. Despite the existence of a rule at common law,
state courts did not even begin to address the use of physical
restraints until the 1870’s, and the vast majority of state courts
would not take up this issue until the 20th century, well after the
ratification of the Fourteenth Amendment. Neither the earliest case
nor the more modern cases reflect a consensus that would inform our
understanding of the requirements of due process. I therefore find
this evidence inconclusive.
A
English common law in the 17th
and 18th centuries recognized a rule against bringing the defendant
in irons to the bar for trial. See,
e.g., 4 W. Blackstone,
Commentaries on the Laws of England 317 (1769); 3 Coke, Institutes
of the Laws of England *34 (1797) (hereinafter Coke). This rule
stemmed from none of the concerns to which the Court points,
ante, at 7–9—the presumption of innocence, the right to
counsel, concerns about decorum, or accuracy in decisionmaking.
Instead, the rule ensured that a defendant was not so distracted by
physical pain during his trial that he could not defend himself. As
one source states, the rule prevented prisoners from “any Torture
while they ma[de] their defence, be their Crime never so great.” J.
Kelyng, A Report of Divers Cases in Pleas of the Crown 10
(1708).[
Footnote 1] This
concern was understandable, for the irons of that period were heavy
and painful. In fact, leather strips often lined the irons to
prevent them from rubbing away a defendant’s skin. T. Gross,
Manacles of the World: A Collector’s Guide to International
Handcuffs, Leg Irons and other Miscellaneous Shackles and
Restraints 25 (1997). Despite Coke’s admonition that “[i]t [was] an
abuse that prisoners be chained with irons, or put to any pain
before they be attained,” Coke *34, suspected criminals often wore
irons during pretrial confinement. J. Langbein, The Origins of
Adversary Criminal Trial 50, and n. 197 (2003) (hereinafter
Langbein). For example, prior to his trial in 1722 for treason,
Christopher Layer spent his confinement in irons. Layer’s counsel
urged that his irons be struck off, for they allowed him to “sleep
but in one posture.”
Trial of Christopher Layer, 16 How.
St. Tr. 94, 98 (K. B. 1722).
The concern that felony
defendants not be in severe pain at trial was acute because, before
the 1730’s, defendants were not permitted to have the assistance of
counsel at trial, with an early exception made for those charged
with treason. Langbein 170–172. Instead, the trial was an
“ ‘accused speaks’ ” trial, at which the accused defended
himself. The accused was compelled to respond to the witnesses,
making him the primary source of information at trial.
Id., at 48; see also
Faretta v.
California,
422 U. S. 806, 823–824
(1975). As the Court acknowledges,
ante, at 3, the rule
against shackling did not extend to arraignment.[
Footnote 2] A defendant remained in irons at
arraignment because “he [was] only called upon to plead by
advice of his counsel;” he was not on trial, where he
would play the main role in defending himself.
Trial of
Christopher Layer, supra, at 100 (emphasis added).
A modern-day defendant does not spend his
pretrial confinement wearing restraints. The belly chain and
handcuffs are of modest, if not insignificant, weight. Neither they
nor the leg irons cause pain or suffering, let alone pain or
suffering that would interfere with a defendant’s ability to assist
in his defense at trial. And they need not interfere with a
defendant’s ability to assist his counsel—a defendant remains free
to talk with counsel during trial, and restraints can be employed
so as to ensure that a defendant can write to his counsel during
the trial. Restraints can also easily be removed when a defendant
testifies, so that any concerns about testifying can be
ameliorated. Modern restraints are therefore unlike those that gave
rise to the traditional rule.
The Court concedes that modern restraints are
nothing like the restraints of long ago,
ante, at 7, and
even that the rule at common law did not rest on any of the “three
fundamental legal principles” the Court posits to support its new
rule,
ibid. Yet the Court treats old and modern restraints
as similar for constitutional purposes merely because they are both
types of physical restraints. This logical leap ignores that modern
restraints do not violate the principle animating the common-law
rule. In making this leap, the Court’s strays from the appropriate
legal inquiry of examining common-law traditions to inform our
understanding of the Due Process Clause.
B
In the absence of a common-law
rule that applies to modern-day restraints, state practice is also
relevant to determining whether a deeply rooted tradition supports
the conclusion that the Fourteenth Amendment’s Due Process Clause
limits shackling. See
Morales, 527 U. S., at 102–106
(Thomas, J., dissenting). The practice among the States, however,
does not support, let alone require, the conclusion that shackling
can be done only where “particular concerns … related to the
defendant on trial” are articulated as findings in the record.
Ante, at 11. First, state practice is of modern, not
longstanding, vintage. The vast majority of States did not address
the issue of physical restraints on defendants during trial until
the 20th century. Second, the state cases—both the earliest to
address shackling and even the later cases—reflect substantial
differences that undermine the contention that the Due Process
Clause so limits the use of physical restraints. Third, state- and
lower federal-court cases decided after
Illinois v.
Allen, 397
U. S. 337 (1970),
Estelle v.
Williams,
425
U. S. 501 (1976), and
Holbrook v.
Flynn,
475 U. S. 560 (1986), are not evidence
of a current consensus about the use of physical restraints. Such
cases are but a reflection of the dicta contained in
Allen,
Estelle, and
Holbrook.
1
State practice against shackling
defendants was established in the 20th century. In 35 States, no
recorded state-court decision on the issue appears until the 20th
century.[
Footnote 3] Of those
35 States, 21 States have no recorded decision on the question
until the 1950’s or later.[
Footnote
4] The 14 state (including then-territorial) courts that
addressed the matter before the 20th century only began to do so in
the 1870’s.[
Footnote 5] The
California Supreme Court’s decision in
People v.
Harrington, 42 Cal. 165 (1871), “seems to have been the
first case in this country where this ancient rule of the common
law was considered and enforced.”
State v.
Smith,
11 Ore. 205, 208, 8 P. 343 (1883). The practice in the United
States is thus of contemporary vintage. State practice that was
only nascent in the late 19th century is not evidence of a
consistent unbroken tradition dating to the common law, as the
Court suggests.
Ante, at 3–4. The Court does not even
attempt to account for the century of virtual silence between the
practice established at English common law and the emergence of the
rule in the United States. Moreover, the belated and varied state
practice is insufficient to warrant the conclusion that shackling
of a defendant violates his due process rights. See
Martinez v.
Court of Appeal of Cal., Fourth Appellate
Dist.,
528 U.
S. 152, 159 (2000) (where no history of a right to appeal much
before the 20th century, no historical support for a right to
self-representation on appeal).
2
The earliest state cases reveal
courts’ divergent views of visible shackling, undermining the
notion that due process cabins shackling to cases in which
“particular concerns … related to the defendant on trial” are
supported by findings on the record.
Ante, at 11.
The Supreme Court of the New
Mexico Territory held that great deference was to be accorded the
trial court’s decision to put the defendant in shackles, permitting
a reviewing court to presume that there had been a basis for doing
so if the record lay silent.
Territory of New Mexico v.
Kelly, 2 N. M. 292, 304–306 (1882). Only if the
record “affirmatively
” showed “no reason whatever” for
shackling was the decision to shackle a defendant erroneous.
Ibid.; see
State v.
Allen, 45
W. Va. 65, ___, 30 S. E. 209, 211 (1898) (following
Kelly), overruled in relevant part,
State v.
Brewster, 164 W. Va. 173, 182, 261 S. E. 2d 77,
82 (1979). The Alabama Supreme Court also left the issue to the
trial court’s discretion and went so far as to bar any appeal from
the trial court’s decision to restrain the defendant.
Faire v.
State, 58 Ala. 74, 80–81 (1877); see
Poe v.
State, 78 Tenn. 673, 677 (1882) (decision
to manacle a defendant during trial “left to the sound discretion
of the trial court” and subject to abuse-of-discretion standard of
review). Mississippi concluded that the decision to shackle a
defendant “may be safely committed to courts and sheriffs, whose
acts are alike open to review in the courts and at the ballot
box.”[
Footnote 6]
Lee
v.
State, 51 Miss. 566, ___ (1875), overruled on other
grounds
Wingo v.
State, 62 Miss. 311 (1884).
By contrast, California, Missouri, Washington,
and Oregon adopted more restrictive approaches. In
People
v.
Harrington, supra, the California Supreme Court held
that shackling a defendant “without evident necessity” of any kind
violated the common-law rule as well as state law and was
prejudicial to the defendant.
Id., at 168–169. A few years
later, the Missouri courts took an even more restrictive view,
concluding that the use of shackles or other such restraints was
permitted only if warranted by the defendant’s conduct “at the time
of trial.”
State v.
Kring, 64 Mo. 591, 593
(1877); see
State v.
Smith, supra, at 207–208, 8
P., at 343 (following
Kring and
Harrington
without discussion);
State v.
Williams, 18 Wash.
47, 50–51, 50 P. 580, 581–582 (1897) (adopting
Kring’s
test).
Texas took an intermediate position. The Texas
Court of Appeals relied on
Kring, and at the same time
deferred to the decision made by the sheriff to bring the defendant
into the courtroom in shackles. See
Rainey v.
State, 20 Tex. Ct. App. 455, 472 (1886); see also
Parker v.
Territory, 5 Ariz. 283, 287–288, 52 P.
361, 363 (1898) (following
Harrington but permitting the
shackling of a defendant at arraignment based on the crime for
which he had been arrested as well as the reward that had been
offered for his recapture).
Thus, in the late 19th century States agreed
that generally defendants ought to come to trial unfettered, but
they disagreed over the breadth of discretion to be afforded trial
courts. A bare majority of States required that trial courts and
even jailers be given great leeway in determining when a defendant
should be restrained; a minority of States severely constrained
such discretion, in some instances by limiting the information that
could be considered; and an even smaller set of States took an
intermediate position. While the most restrictive view adopted by
States is perhaps consistent with the rule Deck seeks, the majority
view is flatly inconsistent with requiring a State to show and for
a trial court to set forth findings of an “ ‘essential state
interest’ ” “specific to the defendant on trial” before
shackling a defendant.
Ante, at 1. In short, there was no
consensus that supports elevating the rule against shackling to a
federal constitutional command.
3
The modern cases provide no more
warrant for the Court’s approach than do the earliest cases. The
practice in the 20th century did not resolve the divisions among
States that emerged in the 19th century. As more States addressed
the issue, they continued to express a general preference that
defendants be brought to trial without shackles. They continued,
however, to disagree about the latitude to be given trial courts.
Many deferred to the judgment of the trial court,[
Footnote 7] and some to the views of those
responsible for guarding the defendant.[
Footnote 8] States also continued to disagree over whether
the use of shackles was inherently prejudicial.[
Footnote 9] Moreover, States differed over the
information that could be considered in deciding to shackle the
defendant and the certainty of the risk that had to be established,
with a small minority limiting the use of shackles to instances
arising from conduct specific to the particular trial or otherwise
requiring an imminent threat.[
Footnote 10] The remaining States permitted courts to
consider a range of information outside the trial, including past
escape,[
Footnote 11] prior
convictions,[
Footnote 12]
the nature of the crime for which the defendant was on
trial,[
Footnote 13] conduct
prior to trial while in prison,[
Footnote 14] any prior disposition toward
violence,[
Footnote 15] and
physical attributes of the defendant, such as his size, physical
strength, and age.[
Footnote
16]
The majority permits courts to
continue to rely on these factors, which are undeniably probative
of the need for shackling, as a basis for shackling a defendant
both at trial and at sentencing.
Ante, at 6–7. In
accepting these traditional factors, the Court rejects what has
been adopted by few States—that courts may consider only a
defendant’s conduct at the trial itself or other information
demonstrating that it is a relative certainty that the defendant
will engage in disruptive or threatening conduct at his trial. See
State v.
Coursolle, 255 Minn. 384, 389, 97
N. W. 2d 472, 477 (1959) (defining “immediate necessity” to be
demonstrated only by the defendant’s conduct “at the time of the
trial”);
State v.
Finch, 137 Wash. 2d 792, 850,
975 P. 2d 967, 1001 (1999) (en banc);
Blair v.
Commonwealth, 171 Ky. 319, 327–328, 188 S. W. 390,
393 (1916);
State v.
Temple, 194 Mo. 237, ___, 92
S. W. 869, 872 (1906); but see 136 S. W. 3d, at 485 (case
below) (appearing to have abandoned this test).
A number of those traditional factors were
present in this case. Here, Deck killed two people to avoid arrest,
a fact to which he had confessed. Evidence was presented that Deck
had aided prisoners in an escape attempt. Moreover, a jury had
found Deck guilty of two murders, the facts of which not only make
this crime heinous but also demonstrate a propensity for violence.
On this record, and with facts found by a jury, the Court says that
it needs more. Since the Court embraces reliance on the traditional
factors supporting the use of visible restraints, its only basis
for reversing is the requirement of specific on-the-record findings
by the trial judge. This requirement is, however, inconsistent with
the traditional discretion afforded to trial courts and is
unsupported by state practice. This additional requirement of
on-the-record findings about that which is obvious from the record
makes little sense to me.
4
In recent years, more of a
consensus regarding the use of shackling has developed, with many
courts concluding that shackling is inherently prejudicial. But
rather than being firmly grounded in deeply rooted principles, that
consensus stems from a series of ill-considered dicta in
Illinois v.
Allen,
397
U. S. 337 (1970),
Estelle v.
Williams,
425
U. S. 501 (1976), and
Holbrook v.
Flynn,
475 U. S. 560 (1986).
In
Allen, the trial
court had removed the defendant from the courtroom until the court
felt he could conform his conduct to basic standards befitting a
court proceeding. 397 U. S., at 340–341. This Court held that
removing the defendant did not violate his due process right to be
present for his trial. In dicta, the Court suggested alternatives
to removal, such as citing the defendant for contempt or binding
and gagging him.
Id., at 344. The Court, however, did
express some revulsion at the notion of binding and gagging a
defendant.
Ibid.
Estelle and
Holbrook,
repeated
Allen’s dicta.
Estelle,
supra,
at 505;
Holbrook,
supra, at 568. The Court in
Holbrook went one step further than it had in
Allen, describing shackling as well as binding and gagging
in dicta as “inherently prejudicial.” 475 U. S., at 568.
The current consensus that the Court describes
is one of its own making.
Ante, at 5. It depends almost
exclusively on the dicta in this Court’s opinions in
Holbrook,
Estelle, and
Allen. Every
lower court opinion the Court cites as evidence of this consensus
traces its reasoning back to one or more of these
decisions.[
Footnote 17]
These lower courts were interpreting this Court’s dicta, not
reaching their own independent consensus about the content of the
Due Process Clause. More important, these decisions represent
recent practice, which does not determine whether the Fourteenth
Amendment, as properly and traditionally interpreted,
i.e., as a statement of law, not policy preferences,
embodies a right to be free from visible, painless physical
restraints at trial.
III
Wholly apart from the propriety
of shackling a defendant at
trial, due process does not
require that a defendant remain free from visible restraints at the
penalty phase of a capital trial. Such a requirement has no basis
in tradition or even modern state practice. Treating shackling at
sentencing as inherently prejudicial ignores the commonsense
distinction between a defendant who stands accused and a defendant
who stands convicted.
A
There is no tradition barring the
use of shackles or other restraints at sentencing. Even many modern
courts have concluded that the rule against visible shackling does
not apply to sentencing. See,
e.g.,
State v.
Young, 853 P. 2d 327, 350 (Utah 1993);
Duckett v.
State, 104 Nev. 6, 11, 752 P. 2d
752, 755 (1988)
(per curiam); State v.
Franklin, 97 Ohio St. 3d 1, 18–19, 776 N. E. 2d 26,
46–47 (2002); but see
Bello v.
State, 547
So. 2d 914, 918 (Fla. 1989) (applying rule against shackling
at sentencing, but suggesting that “lesser showing of necessity”
may be appropriate). These courts have rejected the suggestion that
due process imposes such limits because they have understood the
difference between a man accused and a man convicted. See,
e.g.,
Young,
supra, at 350;
Duckett,
supra, at 11, 752 P. 2d, at
755.
This same understanding is
reflected even in the guilt-innocence phase. In instances in which
the jury knows that the defendant is an inmate, though not yet
convicted of the crime for which he is on trial, courts have
frequently held that the defendant’s status as inmate ameliorates
any prejudice that might have flowed from the jury seeing him in
handcuffs.[
Footnote 18] The
Court’s decision shuns such common sense.
B
In the absence of a consensus
with regard to the use of visible physical restraints even in
modern practice, we should not forsake common sense in determining
what due process requires. Capital sentencing jurors know that the
defendant has been convicted of a dangerous crime. It strains
credulity to think that they are surprised at the sight of
restraints. Here, the jury had already concluded that there was a
need to separate Deck from the community at large by convicting him
of double murder and robbery. Deck’s jury was surely aware that
Deck was jailed; jurors know that convicted capital murderers are
not left to roam the streets. It blinks reality to think that
seeing a convicted capital murderer in shackles in the courtroom
could import any prejudice beyond that inevitable knowledge.
Jurors no doubt also understand
that it makes sense for a capital defendant to be restrained at
sentencing. By sentencing, a defendant’s situation is at its most
dire. He no longer may prove himself innocent, and he faces either
life without liberty or death. Confronted with this reality, a
defendant no longer has much to lose—should he attempt escape and
fail, it is still lengthy imprisonment or death that awaits him.
For any person in these circumstances, the reasons to attempt
escape are at their apex. A defendant’s best opportunity to do so
is in the courtroom, for he is otherwise in jail or restraints. See
Westman, Handling the Problem Criminal Defendant in the Courtroom:
The Use of Physical Restraints and Expulsion in the Modern Era, 2
San Diego Justice J. 507, 526–527 (1994) (hereinafter Westman).
In addition, having been convicted, a
defendant may be angry. He could turn that ire on his own counsel,
who has failed in defending his innocence. See,
e.g.,
State v.
Forrest, 609 S. E. 2d 241, 248–249
(N. C. App. 2005) (defendant brutally attacked his counsel at
sentencing). Or, for that matter, he could turn on a witness
testifying at his hearing or the court reporter. See,
e.g., People v.
Byrnes, 33 N. Y. 2d
343, 350, 308 N. E. 2d 435, 438 (1974) (defendant lunged at
witness during trial);
State v.
Harkness, 252
Kan. 510, 516, 847 P. 2d 1191, 1197 (1993) (defendant attacked
court reporter at arraignment). Such thoughts could well enter the
mind of any defendant in these circumstances, from the most
dangerous to the most docile. That a defendant now convicted of his
crimes appears before the jury in shackles thus would be
unremarkable to the jury. To presume that such a defendant suffers
prejudice by appearing in handcuffs at sentencing does not comport
with reality.
IV
The modern rationales proffered
by the Court for its newly minted rule likewise fail to warrant the
conclusion that due process precludes shackling at sentencing.
Moreover, though the Court purports to be mindful of the tragedy
that can take place in a courtroom, the stringent rule it adopts
leaves no real room for ensuring the safety of the courtroom.
A
Although the Court offers the
presumption of innocence as a rationale for the modern rule against
shackling at trial, it concedes the presumption has no application
at sentencing.
Ante, at 9. The Court is forced to turn to
the far more amorphous need for “accuracy” in sentencing.
Ibid. It is true that this Court’s cases demand
reliability in the factfinding that precedes the imposition of a
sentence of death.
Monge v.
California,
524 U. S. 721, 732
(1998). But shackles may undermine the factfinding process only if
seeing a convicted murderer in them is prejudicial. As I have
explained, this farfetched conjecture defies the reality of
sentencing.
The Court baldly asserts that
visible physical restraints could interfere with a defendant’s
ability to participate in his defense.
Ante, at 7–8. I
certainly agree that shackles would be impermissible if they were
to seriously impair a defendant’s ability to assist in his defense,
Riggins v.
Nevada,
504 U. S. 127, 154,
n. 4 (1992) (Thomas, J., dissenting), but there is no evidence
that shackles do so. Deck does not argue that the shackles caused
him pain or impaired his mental faculties. Nor does he argue that
the shackles prevented him from communicating with his counsel
during trial. Counsel sat next to him; he remained fully capable of
speaking with counsel. Likewise, Deck does not claim that he was
unable to write down any information he wished to convey to counsel
during the course of the trial. Had the shackles impaired him in
that way, Deck could have sought to have at least one of his hands
free to make it easier for him to write. Courts have permitted such
arrangements. See,
e.g.,
People v.
Alvarez, 14 Cal. 4th 155, 191, 926 P. 2d 365, 386
(1996);
State v.
Jimerson, 820 S. W. 2d 500,
502 (Mo. App. 1991).
The Court further expresses concern that
physical restraints might keep a defendant from taking the stand on
his own behalf in seeking the jury’s mercy.
Ante, at 7–8.
But this concern is, again, entirely hypothetical. Deck makes no
claim that, but for the physical restraints, he would have taken
the witness stand to plead for his life. And under the rule the
Court adopts, Deck and others like him need make no such assertion,
for prejudice is presumed absent a showing by the government to the
contrary. Even assuming this concern is real rather than imagined,
it could be ameliorated by removing the restraints if the defendant
wishes to take the stand. See,
e.g.,
De Wolf v.
State, 96 Okla. Cr. 382, 383, 256 P. 2d 191, 193
(1953) (leg irons removed from defendant in capital case when he
took the witness stand). Instead, the Court says, the concern
requires a categorical rule that the use of visible physical
restraints violates the Due Process Clause absent a demanding
showing. The Court’s solution is overinclusive.
The Court also asserts the rule it adopts is
necessary to protect courtroom decorum, which the use of shackles
would offend.
Ante, at 8. This courtroom decorum rationale
misunderstands this Court’s precedent. No decision of this Court
has ever intimated, let alone held, that the protection of the
“courtroom’s formal dignity,”
ibid., is an individual
right enforceable by criminal defendants. Certainly, courts have
always had the inherent power to ensure that both those who appear
before them and those who observe their proceedings conduct
themselves appropriately. See,
e.g.,
Estes v.
Texas,
381
U. S. 532, 540–541 (1965).
The power of the courts to maintain order,
however, is not a right personal to the defendant, much less one of
constitutional proportions. Far from viewing the need for decorum
as a right the defendant can invoke, this Court has relied on it to
limit the conduct of defendants, even when their
constitutional rights are implicated. This is why a defendant who
proves himself incapable of abiding by the most basic rules of the
court is not entitled to defend himself,
Faretta v.
California, 422 U. S., at 834–835, n. 46, or to remain in
the courtroom, see
Allen, 397 U. S., at 343. The concern
for courtroom decorum is not a concern about defendants, let alone
their right to due process. It is a concern about society’s need
for courts to operate effectively.
Wholly apart from the unwarranted status the
Court accords “courtroom decorum,” the Court fails to explain the
affront to the dignity of the courts that the sight of physical
restraints poses. I cannot understand the indignity in having a
convicted double murderer and robber appear before the court in
visible physical restraints. Our Nation’s judges and juries are
exposed to accounts of heinous acts daily, like the brutal murders
Deck committed in this case. Even outside the courtroom, prisoners
walk through courthouse halls wearing visible restraints.
Courthouses are thus places in which members of the judiciary and
the public come into frequent contact with defendants in
restraints. Yet, the Court says, the appearance of a convicted
criminal in a belly chain and handcuffs at a sentencing hearing
offends the sensibilities of our courts. The courts of this Nation
do not have such delicate constitutions.
Finally, the Court claims that “[t]he
appearance of the offender during the penalty phase in shackles …
almost inevitably implies to a jury, as a matter of common sense,
that court authorities consider the offender a danger to the
community—often a statutory aggravator and nearly always a relevant
factor in jury decisionmaking.”
Ante, at 10. This argument
is flawed. It ignores the fact that only relatively recently have
the penalty and guilt phases been conducted separately. That the
historical evidence reveals no consensus prohibiting visible
modern-day shackles during capital trials suggests that there is
similarly no consensus prohibiting shackling during capital
sentencing. Moreover, concerns about a defendant’s dangerousness
exist at the guilt phase just as they exist at the penalty
phase—jurors will surely be more likely to convict a seemingly
violent defendant of murder than a seemingly placid one. If neither
common law nor modern state cases support the Court’s position with
respect to the guilt phase, I see no reason why the fact that a
defendant may be perceived as a future danger would support the
Court’s position with respect to the penalty phase.
B
The Court expresses concern for
courtroom security, but its concern rings hollow in light of the
rule it adopts. The need for security is real. Judges face the
possibility that a defendant or his confederates might smuggle a
weapon into court and harm those present, or attack with his bare
hands. For example, in 1999, in Berks County, Pennsylvania, a
“defendant forced his way to the bench and beat the judge
unconscious.” Calhoun, Violence Toward Judicial Officials, 576
Annals of the American Academy of Political and Social Science 54,
61 (2001). One study of Pennsylvania judges projected that over a
20-year career, district justices had a 31 percent probability of
being physically assaulted one or more times. See Harris,
Kirschner, Rozek, & Weiner, Violence in the Judicial Workplace:
One State’s Experience, 576 Annals of the American Academy of
Political and Social Science 38, 42 (2001). Judges are not the only
ones who face the risk of violence. Sheriffs and courtroom bailiffs
face the second highest rate of homicide in the workplace, a rate
which is 15 times higher than the national average. Faust &
Raffo, Local Trial Court Response to Courthouse Safety, 576 Annals
of the American Academy of Political and Social Science 91, 93–94
(2001); Weiner et al., Safe and Secure: Protecting Judicial
Officials, 36 Court Review 26, 27 (Winter 2000).
The problem of security may only
be worsening. According to the General Accounting Office (GAO), the
nature of the prisoners in the federal system has changed: “[T]here
are more ‘hard-core tough guys’ and more multiple-defendant cases,”
making the work of the federal marshals increasingly difficult.
GAO, Federal Judiciary Security: Comprehensive Risk-Based Program
Should Be Fully Implemented 21 (July 1994). Security issues are
particularly acute in state systems, in which limited manpower and
resources often leave judges to act as their own security. See
Harris,
supra, at 46. Those resources further vary between
rural and urban areas, with many rural areas able to supply only
minimal security. Security may even be at its weakest in the
courtroom itself, for there the defendant is the least restrained.
Westman 526.
In the face of this real danger to courtroom
officials and bystanders, the Court limits the use of visible
physical restraints to circumstances “specific to a particular
trial,”
ante, at 6,
i.e., “particular concerns …
related to the defendant on trial,”
ante, at 11. Confining
the analysis to trial-specific circumstances precludes
consideration of limits on the security resources of courts. Under
that test, the particulars of a given courthouse (being nonspecific
to any particular defendant) are irrelevant, even if the judge
himself is the only security, or if a courthouse has few on-duty
officers standing guard at any given time, or multiple exits.
Forbidding courts from considering such circumstances fails to
accommodate the unfortunately dire security situation faced by this
Nation’s courts.
***
The Court’s decision risks the
lives of courtroom personnel, with little corresponding benefit to
defendants. This is a risk that due process does not require. I
respectfully dissent.
Footnote 1
See Coke *34 (“If felons come in judgement to
answer, … they shall be out of irons, and all manner of bonds, so
that their pain shall not take away any manner of reason, nor them
constrain to answer, but at their free will”);
Cranburne’s
Case, 13 How. St. Tr. 222 (K. B. 1696) (prisoners “should
stand at their ease when they are tried”); The Conductor Generalis
403 (J. Parker ed. 1801) (reciting same); cf.
ibid.
(“[t]hat where the law requires that a prisoner should be kept in
salva &
arcta custodia, yet that must be
without pain or torment to the prisoner”).
Footnote 2
When arraignment and trial occurred on
separate occasions, the defendant could be brought to his
arraignment in irons.
Trial of Christopher Layer, 16 How.
St. Tr. 94, 97 (K. B. 1722) (defendant arraigned in irons);
King v.
Waite, 1 Leach 28, 36, 168 Eng. Rep. 117,
120 (K. B. 1743) (fetters could not be removed until the
defendant had pleaded); but cf. R. Burns, Abridgment, or the
American Justice 37 (1792) (“The prisoner on his arraignment … must
be brought to the bar without irons and all manner of shackles or
bonds, unless there be a danger of escape, and then he may be
brought with irons”).
Footnote 3
State v.
Mitchell, 824
P. 2d 469, 473–474 (Utah App. 1991);
Smith v.
State, 773 P. 2d 139, 140–141 (Wyo. 1989);
Frye v.
Commonwealth, 231 Va. 370, 381–382, 345
S. E. 2d 267, 276 (1986);
State v.
White,
456 A. 2d 13, 15 (Me. 1983);
State v.
Baugh,
174 Mont. 456, 462–463, 571 P. 2d 779, 782–783 (1977);
Brookins v.
State, 354 A. 2d 422, 425 (Del.
1976);
State v.
Phifer, 290 N. C. 203, 219,
225 S. E. 2d 786, 797 (1976);
State v.
Lemire, 115 N. H. 526, 531, 345 A. 2d 906, 910
(1975);
Anthony v.
State, 521 P. 2d 486, 496
(Alaska 1974);
State v.
Palmigiano, 112
R. I. 348, 357–358, 309 A. 2d 855, 861 (1973);
Jones v.
State, 11 Md. App. 686, 693–694, 276
A. 2d 666, 670 (1971);
State v.
Polidor, 130
Vt. 34, 39, 285 A. 2d 770, 773 (1971);
State v.
Moen, 94 Idaho 477, 479–480, 491 P. 2d 858, 860–861
(1971);
State v.
Yurk, 203 Kan. 629, 631, 456
P. 2d 11, 13–14 (1969);
People v.
Thomas, 1
Mich. App. 118, 126, 134 N. W. 2d 352, 357 (1965);
State v.
Nutley, 24 Wis. 2d 527, 564–565, 129
N. W. 2d 155, 171 (1964), overruled on other grounds by
State v.
Stevens, 26 Wis. 2d 451, 463, 132
N. W. 2d 502, 508 (1965);
State v.
Brooks,
44 Haw. 82, 84–86, 352 P. 2d 611, 613–614 (1960);
State v.
Coursolle, 255 Minn. 384, 389, 97
N. W. 2d 472, 476–477 (1959) (handcuffing of witnesses);
Allbright v.
State, 92 Ga. App. 251, 252–253, 88
S. E. 2d 468, 469–470 (1955);
State v.
Roscus, 16 N. J. 415, 428, 109 A. 2d 1, 8
(1954);
People v.
Snyder, 305 N. Y. 790,
791, 113 N. E. 2d 302 (Ct. App. 1953);
Eaddy v.
People, 115 Colo. 488, 491, 174 P. 2d 717, 718 (1946)
(en banc);
State v.
McKay, 63 Nev. 118, 161–163,
165 P. 2d 389, 408–409 (1946) (also discussing a 1929 Nevada
statute that limited the use of restraints prior to conviction);
Rayburn v.
State, 200 Ark. 914, 920–922, 141
S. W. 2d 532, 535–536 (1940);
Schultz v.
State, 131 Fla. 757, 758, 179 So. 764, 765 (1938);
Commonwealth v.
Millen, 289 Mass. 441, 477–478,
194 N. E. 463, 480 (1935);
Pierpont v.
State, 49 Ohio App. 77, 83–84, 195 N. E. 264, 266–267
(1934);
Corey v.
State, 126 Conn. 41, 42–43, 9
A. 2d 283, 283–284 (1939);
Bradbury v.
State, 51 Okla. Cr. 56, 59–61, 299 P. 510, 512 (App.
1931);
State v.
Hanrahan, 49 S. D. 434,
435–437, 207 N. W. 224, 225 (1926);
South v.
State, 111 Neb. 383, 384–386, 196 N. W. 684, 685–686
(1923);
Blair v.
Commonwealth, 171 Ky. 319, 327,
188 S. W. 390, 393 (1916);
McPherson v.
State, 178 Ind. 583, 584–585, 99 N. E. 984, 985
(1912);
State v.
Kenny, 77 S. C. 236,
240–241, 57 S. E. 859, 861 (1907);
State v.
Bone, 114 Iowa 537, 541–543, 87 N. W. 507, 509
(1901). The North Dakota courts have yet to pass upon the question
in any reported decision.
Footnote 4
See n. 3,
supra. It bears
noting, however, that in 1817 Georgia enacted a statute limiting
the use of physical restraints on defendants at trial, long before
any decision was reported in the Georgia courts. Prince’s Digest of
the Laws of the State of Georgia §21, p. 372 (1822). Its courts did
not address shackling until 1955.
Allbright v.
State,
supra, at 252–253, 88 S. E. 2d, at 469–470.
Footnote 5
Parker v.
Territory, 5 Ariz. 283,
287–288, 52 P. 361, 363 (1898);
State v.
Allen,
45 W. Va. 65, ___, 30 S. E. 209, 211 (1898), overruled in
relevant part,
State v.
Brewster, 164 W. Va.
173, 182, 261 S. E. 2d 77, 82 (1979) (relying on
Illinois v.
Allen,
397
U. S. 337 (1970), and
Estelle v.
Williams,
425
U. S. 501 (1976));
State v.
Williams, 18
Wash. 47, 50–51, 50 P. 580, 581–582 (1897);
Commonwealth
v.
Weber, 167 Pa. 153, 165–166, 31 A. 481, 484 (1895);
Rainey v.
State, 20 Tex. Ct. App. 455, 472
(1886);
Upstone v.
People, 109 Ill. 169, ___
(1883);
State v.
Thomas, 35 La. Ann. 24, ___
(1883);
State v.
Smith, 11 Ore. 205, 208, 8 P.
343 (1883);
Territory of New Mexico v.
Kelly, 2
N. M. 292, 304–306 (1882);
Poe v.
State, 78
Tenn. 673, 677–678 (1882);
Faire v.
State, 58
Ala. 74, 80–81 (1877);
State v.
Kring, 1 Mo. App.
438, 441–442 (1876);
Lee v.
State, 51 Miss. 566,
___ (1875), overruled on other grounds,
Wingo v.
State, 62 Miss. 311, ___ (1884);
People v.
Harrington, 42 Cal. 165, 168–169 (1871).
Footnote 6
Pennsylvania first addressed the question of
the shackling of a defendant in the context of a grand jury
proceeding. It too concluded that deference was required, finding
that the appropriate security for the defendant’s transport was
best left to the officers guarding him.
Commonwealth v.
Weber, supra, at 65, 31 A., at 484.
Footnote 7
See,
e.g.,
State v.
Franklin, 97 Ohio St. 3d 1, 18–19, 776 N. E. 2d 26,
46 (2002) (decision to shackle a defendant is left to the sound
discretion of a trial court);
Commonwealth v.
Agiasottelis, 336 Mass. 12, 16, 142 N. E. 2d 386, 389
(1957) (“[A] judge properly should be reluctant to interfere with
reasonable precautions which a sheriff deems necessary to keep
secure prisoners for whose custody he is responsible and, if a
judge fails to require removal of shackles, his exercise of a sound
discretion will be sustained”);
Rayburn v.
State,
200 Ark., at 920–921, 141 S. W. 2d, at 536 (“Trial Courts must
be allowed a discretion as to the precautions which they will
permit officers … to take to prevent the prisoner’s escape, or to
prevent him from harming any person connected with the trial, or
from being harmed”);
State v.
Hanrahan, 49
S. D., at 436, 207 N. W., at 225 (“It is the universal
rule that while no unreasonable restraint may be exercised over the
defendant during his trial, yet it is within the discretion of the
trial court to determine what is and what is not reasonable
restraint”);
McPherson v.
State, 178 Ind., at
585, 99 N. E., at 985 (“[W]hether it is necessary for a
prisoner to be restrained by shackles or manacles during the trial
must be left to the sound discretion of the trial judge”).
Footnote 8
See,
e.g.,
Commonwealth v.
Millen, 289 Mass., at 477–478, 194 N. E., at
477–478.
Footnote 9
See,
e.g.,
Smith v.
State, 773 P. 2d, at 141 (“The general law applicable
in situations where jurors see a handcuffed defendant is that,
absent a showing of prejudice, their observations do not constitute
grounds for a mistrial”);
People v.
Martin, 670
P. 2d 22, 25 (Colo. App. 1983) (shackling is not inherently
prejudical)
State v.
Gilbert, 121 N. H. 305,
310, 429 A. 2d 323, 327 (1981) (shackling is not inherently
prejudicial);
State v.
Moore, 45 Ore. App. 837,
840, 609 P. 2d 866, 867 (1980) (“[A]bsent a strongly
persuasive showing of prejudice to the defendant and that the court
abused its discretion, we will not second guess [the trial court’s]
assessment of its security needs”);
State v.
Palmigiano, 112 R. I., at 358, 309 A. 2d, at
861;
State v.
Polidor, 130 Vt., at 39, 285
A. 2d, at 773;
State v.
Norman, 8 N. C.
App. 239, 242, 174 S. E. 2d 41, 44 (1970);
State v.
Brooks, 44 Haw., at 84–86, 352 P. 2d, at 613–614;
State v.
Brewer, 218 Iowa 1287, ___, 254
N. W. 834, 840 (1934) (“[T]his court cannot presume that the
defendant was prejudiced because he was handcuffed”), overruled by
State v.
Wilson, 406 N. W. 2d 442, 449, and
n. 1 (Iowa 1987); but see
State v.
Coursolle, 255 Minn., at 389, 97 N. W. 2d, at 476–477
(shackling is inherently prejudicial).
Footnote 10
See,
e.g., ibid. (defining
“immediate necessity” as “some reason based on the conduct of the
prisoner at the time of trial”);
Blair v.
Commonwealth, 171 Ky., at 327–328, 188 S. W., at 393;
State v.
Temple, 194 Mo. 237, ___, 92 S. W.
869, 872 (1906) (citing
State v.
Kring, 64 Mo.
591, 592–593 (1877)).
Footnote 11
See,
e.g.,
Commonwealth v.
Chase, 350 Mass. 738, 740, 217 N. E. 2d 195, 197
(1966) (attempted escape on two prior occasions, plus the serious
nature of the offense for which defendant was being tried supported
use of restraints);
People v.
Thomas, 1 Mich.
App., at 126, 134 N. W. 2d, at 357 (prison escape for which
defendant was on trial sufficed to permit use of shackles);
People v.
Bryant, 5 Misc. 2d 446, 448, 166
N. Y. S. 2d 59, 61 (1957) (attempts to escape “on prior
occasions while in custody,” among other things, supported the use
of restraints).
Footnote 12
See,
e.g.,
State v.
Roberts, 86 N. J. Super. 159, 165, 206 A. 2d
200, 204 (App. Div. 1965) (“In addition to a defendant’s conduct
at the time of trial, … defendant’s reputation,
his known criminal record, his character, and the
nature of the case all must be weighed” in deciding whether to
shackle a defendant (second emphasis added));
State v.
Moen, 94 Idaho, at 480–481, 491 P. 2d, at 861–862
(that three defendants were on trial for escape, had been convicted
of burglary two days before their trial for escape, and were being
tried together was sufficed to uphold trial court’s shackling him);
State v.
McKay, 63 Nev., at 164, 165 P. 2d,
at 409 (prior conviction for burglary and conviction by army
court-martial for desertion, among other things, taken into
account);
People v.
Deveny, 112
Cal. App. 2d 767, 770, 247 P. 2d 128, 130 (1952)
(defendant previously convicted of escape from prison);
State v.
Franklin, supra, at 19, 776 N. E.
2d, at 46–47 (defendant just convicted of three brutal
murders).
Footnote 13
See,
e.g.,
State v.
Roberts, supra, at 165–167, 206 A. 2d, at 204.
Footnote 14
See,
e.g.,
State v.
Franklin, supra, at 18–20, 776 N. E. 2d, at 46–47
(defendant “had stabbed a fellow inmate with a pen six times in a
dispute over turning out a light”).
Footnote 15
See,
e.g.,
Frye v.
Commonwealth, 231 Va., at 381, 345 S. E. 2d, at 276
(permitting consideration of a “defendant’s temperament”);
De
Wolf v.
State, 95 Okla. Cr. 287, 293–294, 245
P. 2d 107, 114–115 (1952) (permitting consideration of both
the defendant’s “character” and “disposition toward being a violent
and dangerous person, both to the court, the public and to the
defendant himself”).
Footnote 16
See,
e.g.,
Frye v.
Commonwealth, supra, at 381–382, 345 S. E. 2d, at 276
(“A trial court may consider various factors in determining whether
a defendant should be restrained” including his “physical
attributes”);
State v.
Dennis, 250 La. 125,
137–138, 194 So. 2d 720, 724 (1967) (no prejudice from
“defendant’s appearance in prisoner garb, handcuffs, and leg-irons
before the jury venire” where it was a “ ‘prison inmate
case’ ” and “defendant was a vigorous man of twenty-eight or
twenty-nine years of age, about six feet tall, and weighing
approximately two hundred and twenty to two hundred and twenty-five
pounds”).
Footnote 17
Dyas v.
Poole, 309
F. 3d 586, 588–589 (CA9 2002)
(per curiam) (relying
on
Holbrook) amended and superseded by 317 F. 3d 934
(2003)
(per curiam);
Harrell v.
Israel,
672 F. 2d 632, 635 (CA7 1982)
(per curiam) (relying
on
Allen and
Estelle);
State v.
Herrick, 324 Mont. 76, 80–81, 101 P. 3d 755, 758–759
(2004) (relying on
Allen and
Holbrook);
Hill v.
Commonwealth, 125 S. W. 3d 221, 233
(Ky. 2004) (relying on
Holbrook);
State v.
Turner, 143 Wash. 2d 715, 724–727, 23 P. 3d 499,
504–505 (2001) (en banc) (relying on
State v.
Finch, 137 Wash. 2d 792, 842, 975 P. 2d 967, 997–999
(1999) (en banc), which relies on
Allen,
Estelle,
and
Holbrook)
; Myers v.
State,
2000 OK CR 25, ¶¶46–47, 17 P. 3d 1021, 1033 (relying on
Owens v.
State, 1982 OK CR 1, 187, ¶¶4–6, 654
P. 2d 657, 658–659, which relies on
Estelle);
State v.
Shoen, 598 N. W. 2d 370, 375–376
(Minn. 1999) (relying on
Allen,
Estelle, and
Holbrook);
Lovell v.
State, 347 Md. 623,
638–639, 702 A. 2d 261, 268–269 (1997) (same);
People
v.
Jackson, 14 Cal. App. 4th 1818, 1829–1830, 18 Cal.
Rptr. 2d 586, 593–594 (1993) (relying on
People v.
Duran, 16 Cal. 3d 282, 290–291, 545 P. 2d 1322, 1327
(1976), which relies on
Allen);
Cooks v.
State, 844 S. W. 2d 697, 722 (Tex. Crim. App. 1992)
(relying on
Marquez v.
State, 725 S. W. 2d
217, 230 (Tex. Crim. App. 1987) (en banc), overruled on other
grounds,
Moody v.
State, 827 S. W. 2d 875,
892 (Tex. Crim. App. 1992), which relies on
Holbrook);
State v.
Tweedy, 219 Conn. 489, 505, 508, 594
A. 2d 906, 914, 916 (1991) (relying on
Estelle and
Holbrook);
State v.
Crawford, 99 Idaho
87, 95–96, 577 P. 2d 1135, 1143–1144 (1978) (relying on
Allen and
Estelle);
People v.
Brown, 45 Ill. App. 3d 24, 26, 358 N. E. 2d 1362,
1363 (1977) (same);
State v.
Tolley, 290
N. C. 349, 367, 226 S. E. 2d 353, 367 (1976) (same). See
also,
e.g., Anthony v.
State, 521
P. 2d, at 496, and n. 33 (relying on
Allen for the
proposition that manacles, shackles, and other physical restraints
must be avoided unless necessary to protect some manifest
necessity);
State v.
Brewster, 164 W. Va.,
at 180–181, 261 S. E. 2d, at 81–82 (relying on
Allen
and
Estelle to overrule prior decision permitting
reviewing court to presume that the trial court reasonably
exercised its discretion even where the trial court had not made
findings supporting the use of restraints);
Asch v.
State, 62 P. 3d 945, 963–964 (Wyo. 2003) (relying on
Holbrook and
Estelle to conclude that shackling
is inherently prejudicial, and on
Allen to conclude that
shackling offends the dignity and decorum of judicial proceedings);
State v.
Wilson, 406 N. W. 2d, at 449,
n. 1 (relying in part on
Holbrook to hold that
visible shackling is inherently prejudicial, overruling prior
decision that refused to presume prejudice);
State v.
Madsen, 57 P. 3d 1134, 1136 (Utah App. 2002) (relying
on
Holbrook for the proposition that shackling is
inherently prejudicial).
Footnote 18
See,
e.g.,
Harlow v.
State, 105 P. 3d 1049, 1060 (Wyo. 2005) (where jury
knew that the prisoner and two witnesses were all inmates, no
prejudice from seeing them in shackles);
Hill v.
Commonwealth, 125 S. W. 3d, at 236 (“The trial
court’s admonition and the fact that the jury already knew
Appellant was a convicted criminal and a prisoner in a penitentiary
mitigated the prejudice naturally attendant to such restraint”);
State v.
Woodward, 121 N. H. 970, 974, 437
A. 2d 273, 275 (1981) (where jury already aware that the
defendant was confined, any prejudice was diminished); see also
Payne v.
Commonwealth, 233 Va. 460, 466, 357
S. E. 2d 500, 504 (1987) (no error for inmate-witnesses to be
handcuffed where jurors were aware that they “were … convicted
felons and that the crime took place inside a penal institution”);
State v.
Moss, 192 Neb. 405, 407, 222 N. W.
2d 111, 113 (1974) (where defendant was an inmate, his appearance
at arraignment in leg irons did not prejudice him);
Jessup
v.
State, 256 Ind. 409, 413, 269 N. E. 2d 374, 376
(1971) (“It would be unrealistic indeed … to hold that it was
reversible error for jurors to observe the transportation of an
inmate of a penal institution through a public hall in a shackled
condition”);
People v.
Chacon, 69 Cal. 2d 765,
778, 447 P. 2d 106, 115 (1968) (where defendant was charged
with attacking another inmate, “the use of handcuffs was not
unreasonable”);
State v.
Dennis, 250 La., at 138,
194 So. 2d, at 724 (no prejudice where defendant of
considerable size appeared in prisoner garb, leg irons, and
handcuffs before the jury where it was a “ ‘prison inmate
case’ ”).
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