Can Capital Defendants Be Visibly Restrained During Sentencing? The Supreme Court Says No

By SHERRY F. COLB
Wednesday, Jun. 01, 2005

Last week, in Deck v. Missouri, the Supreme Court held that the State of Missouri violated the Due Process rights of Carman L. Deck by keeping him in visible restraints during the sentencing phase of his trial for capital murder.

The Court reasoned as follows: In the absence of a showing that visibly restraining this particular defendant is justified by an essential State interest, the appearance of a defendant in irons is inherently too prejudicial to the sentencing jury's decision-making process to pass constitutional muster.

The Court's motives here are praiseworthy: It is seeking to ensure fairness in a process in which the defendant may be condemned to death. But the logic of the Court's decision, on closer examination, does not make very much sense.

The Prejudicial Impact of the Defendant's Appearance

In Estelle v. Williams, the Supreme Court held that forcing a defendant to appear at his criminal trial in prison clothing would unduly prejudice his case before the jury. And in Illinois v. Allen, the Court indicated that a defendant might be unduly prejudiced if forced to sit before the jury bound and gagged.

Only when the State could demonstrate the need to restrain a particular defendant with the sort of restraints that could not be hidden from view, the Court suggested, would restraints like these be permissible.

The reason for such decisions is simple. Presenting the defendant before the jury in prison clothing and leg irons strongly suggests that court personnel, including the judge - who rules over her courtroom - believe that the defendant is as good as convicted before the jury has even heard the evidence.

For good or ill, we tend to place people into categories based on their appearance. If a person comes to a job interview in stained pants and a T-shirt full of holes, for example, he is unlikely to impress the employer as a serious and competent candidate, no matter how otherwise stellar his credentials may be. By the same token, mediocre applicants become employees every day by "acting the part" of the enthusiastic and eager worker during their interviews.

The defendant's appearance, of course, functions in a manner distinct from that of a job applicant. While Joe Interviewee might be blamed for wearing an unwashed pair of pants to an interview, the criminal defendant does not choose to wear a green jumpsuit with the words "County Jail" written on it. No juror is going to think, "Well, if he couldn't be bothered to wear a nicer outfit to court, then screw him."

Instead, the defendant's clothes and his degree of apparent freedom affect jurors in the way that attractiveness affects an employer at a job interview - unfairly.

Whether a job applicant is handsome or pretty is a fact that lies more or less beyond the control of the applicant. Everyone can make the best of what he or she has, but in the end, the beautiful people stand out from the crowd, and studies have shown that they have an easier time in the employment arena, along with many other areas of life.

When an employer looks at an attractive person, that person will often seem not only better-looking but superior in other respects as well. Though regrettable, such discrimination has remained quite resistant to change.

Where does discrimination of this sort come from? It may well be a vestige of the idea - common to traditional children's fairy tales - that the best people will be blessed with a beautiful face, and that ugly people (like the wicked stepmother in so many stories) will have an ugly soul as well.

If this hypothesis is true, then it means that observers look to attractiveness as an easy-to-discern signal of inner quality. The cliché that "you can't judge a book by its cover" may have evolved in response to people's known tendency to make precisely such judgments. When we have little to go on, we place a lot of weight on the information that we do have, flimsy as it might be.

All of this bears a great deal on a jury's potential perception of a defendant on trial for a crime. Jurors know little about the man or woman who sits before them, waiting to be judged "guilty" or "not guilty" of an offense. They are eager to have as much information as possible to assist in that judgment. One piece of information that is not officially "evidence" at all is the defendant: What does she look like? How does she behave during the trial? How does she react when the victim testifies? Even (and perhaps especially) if the defendant never takes the stand to tell her side of the story, the jury will watch her carefully.

Whether the powers that be - in this case, the authorities - see fit to place him in leg irons and a "county jail" outfit can unconsciously convey a lot about the proper "role" of the defendant. If he is dressed like a criminal whose captors do not trust him, then the jury may be more likely to see him that way as well.

If a higher power is thought to endow the righteous with outer beauty, then the judge and court personnel might constitute the analogous higher power when it comes to the defendant's appearance during the trial, making him look scary or ordinary, as appropriate.

Capital Defendants: Even More Vulnerable to Appearances

What holds for regular criminal defendants may prove even more powerful for capital defendants. The difference between guilt and innocence in the case of a capital case is enormous. The defendant is either the worst sort of murderer, one deserving (in the prosecution's eyes) of death, or he is a wrongfully accused man. The more like a guilty person the defendant looks, therefore, the more likely the jury will see him as a vicious killer.

The "County Jail" outfit and the irons can be especially damaging in this context. The jury might rationally conclude that if it acquits the defendant who stands before them, then this person - one who the court evidently believes is best housed in a jail cell and held in irons even in open court - will go free. A juror might have a hard time avoiding the sense that this would not represent a positive development.

Do Appearances Still Matter at the Sentencing Phase of a Capital Trial?

The idea of protecting the defendant from unfair prejudice that results from visual signals motivates the Supreme Court's decision last week in Deck. The majority acknowledges that at the sentencing phase, a jury has already found the defendant guilty of capital murder and therefore no longer presumes innocence, as it must do during the guilt phase of the trial.

However, notes Justice Breyer for a seven-Justice majority, the sentencing phase of a capital trial is an extremely important event too. It determines whether the defendant will live or die. And anything that might prejudice the jury - by suggesting, for example, that this defendant is especially dangerous - should be off-limits. This may be an even greater concern at sentencing, as the majority argues, where dangerousness is "often a statutory aggravator and nearly always a relevant factor in jury decisionmaking."

This is all true. And unnecessarily suggesting to a jury that some defendant is especially dangerous would indeed be inappropriate. A person who has been convicted of capital murder, however, is not just "some defendant" that the jury must judge.

First and most importantly, he is a defendant who has already been found beyond a reasonable doubt to have committed murder under circumstances that potentially qualify him for the death penalty.

Jurors know that not everyone convicted of a crime is eligible for the death penalty, so the very fact that they have before them the decision of whether the defendant will live or die itself communicates the gravity of his conduct and the serious dangers that he might pose to others; indeed, it arguably does so more graphically than any restraints or uniform that he might be wearing could possibly do. There is no way, in other words, to conceal the most "prejudicial" -- in the sense of damning -- facts about this defendant.

Secondly, it is the very jurors that are about to sentence him that found this defendant guilty of capital murder in the first place. That is, this is not a jury that has been instructed: "Here is a convicted murderer; you must draw your own factual conclusions about the case to decide what his sentence ought to be." Instead, by their own decision-making process, these jurors have necessarily condemned the defendant to wear the clothing of the prisoner, and to find himself in irons when he is not locked behind the bars of a prison.

The only question left is whether the jury will also condemn this defendant to die. This is an extremely important question, of course, but it is one that is unlikely to turn in any way on whether he sits before the jury in restraints.

Seeing a person in the accoutrements of a convicted killer conveys only the very fact that these jurors have already solemnly found - that the man who stands before them committed murder. Visible restraints may even help the defendant by dramatizing the fact that even if the jury sentences him to imprisonment, those in charge of his custody will take the necessary steps to restrain him. As the trial court suggested regarding Deck, his "'being shackled takes any fear out of [the jurors'] minds.'"

Impractical Decision: Predicting Dangerousness Doesn't Work

In addition to the arguments I have made above regarding the implausibility of the majority's concerns about prejudice, the dissent's argument affirmatively supporting the use of restraints during sentencing is quite compelling as well.

Court personnel -- including the trial judge -- place themselves in a great deal of danger in their everyday work. People who may wish to do them harm -- either out of anger over their own predicament, or as a means of facilitating escape from that predicament -- regularly share a courtroom with them.

Acknowledging this reality, the majority notes that the right to avoid visible irons in court is not absolute. A judge may use her discretion to make a finding particular to this defendant that an essential government interest -- including security -- justifies visible restraints.

There is a problem with this approach, however, one that the dissent -- perhaps for its own reasons -- does not highlight. It is a problem that exists even if one believes that visible restraints are highly prejudicial to the determination of whether to execute a defendant, a belief that I do not share, as I explained above.

Predicting dangerousness on a person-by-person basis is virtually impossible, according to psychiatrists - whose profession often demands that they make attempts at such prediction. The one potentially useful predictor of future violence, moreover, is a past history of violent behavior, and that predictor does little to distinguish among people convicted of capital murder.

Accordingly, if judges are sincere in their efforts to single out only a small number of defendants from the crowd to restrain, based on predictions about dangerousness, their efforts will likely leave them vulnerable to danger in many cases.

Conversely, if judges are overly cautious on their own behalf when determining when to use restraints, then the "rule" of no visible restraints will be honored only in the breach.

The rule that the majority announces is therefore impractical, in addition to being -- as I suggest above -- unnecessary.

Where Both Dissent and Majority Go Wrong

The dissenters, unfortunately, do not distinguish adequately between guilt and sentencing, any more than the majority does.

Justice Thomas argues that even though the guilt phase is distinct from the sentencing phase, there is no right to remain without visible restraints during either stage of the trial. In support of this position, he relies on the lack of consensus among courts in favor of such a right, and on the fact that the old common law rules about restraints during trial stemmed from the physical pain that the restraints of old used to cause the defendant.

Pain could interfere, Justice Thomas explained, with the defendant's ability to defend himself, which he then had to do without an attorney's assistance. This rationale, he contends, has no bearing on today's shackles, which cause little or no pain.

This argument is unpersuasive, however, because it operates at the wrong level of generality. Historically, opposition to restraints during trial might have emerged because of the role of pain in reducing the effectiveness of a defendant's case. But the underlying principle is that of allowing a defendant to be as effective as he can, not the mechanism by which that effectiveness is undermined.

If one has a right to present oneself effectively to a jury during one's trial, therefore, then any significant impediment to that effectiveness raises serious constitutional concerns. Though painful shackles are worse than painless ones, the appearance of a "presumptively innocent" person in shackles (or in a County Jail outfit) is jarring. It impedes the defendant's case by painting a categorical picture of the defendant as a criminal rather than a potentially wrongly accused civilian. What the jury is likely to take away may be no better than it was historically, when a defendant in pain attempted to formulate an articulate defense.

Guilt versus Innocence

I have written in an earlier column about the difference between guilt and innocence, for constitutional purposes. That difference returns in this case.

The distinction at issue - between the defendant on trial for murder, and the convicted murderer appearing before his jury for sentencing - is crucial. Yet neither majority nor dissent is sufficiently attentive to it.

For the jury to pre-judge an accused person denies the person due process, and so does behavior on the part of court officials that is likely to motivate such pre-judgment. But for the jury to pre-judge a convicted murderer -- one whom this very jury recently found guilty -- as potentially posing a flight risk or a risk of deliberately injuring those around him -- is both logical and inevitable. It is indeed difficult to imagine that most people sitting near someone who they learn is a convicted murderer would not feel at least some apprehension.

Does that mean that death is a foregone conclusion? Not at all. When the jurors turn to sentencing, they might hear facts about the defendant's character, about the people whose lives were destroyed by his actions, about the kindness that he might have shown in other contexts, and about his potential for changing his ways.

This is where specific information about a particular defendant can and should make the difference in determining his sentence. But the notion that jurors might possibly view the defendant as nonthreatening to those around him in courtroom, if he is not wearing visible restraints, is naive. And when a capital murderer stands in their midst, naiveté is a luxury that judges and other courtroom personnel can ill afford.


herry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.

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