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Originally Posted by Ksyrup
A little more on the shackling issue:
In Allen v. Illinois, 397 U.S. 337, 344 (1970), the Court recognized two additional "inherent disadvantages" to shackling a defendant at trial: physical restraints may not only cause jury prejudice and impair the presumption of innocence, they may also detract from the dignity and decorum of the proceeding and impede the defendant's ability to communicate with his counsel. Id. "The lower courts have observed two further weaknesses in imposing physical restraints: they may confuse and embarrass the defendant, thereby impairing his mental faculties; and they may cause him pain." Spain v. Rushen, 883 F.2d 712, 720-21 (9th Cir. 1989) (citing cases from other circuits), cert. denied, 495 U.S. 948 (1990).
With the exception of the presumption of innocence, these "inherent limitations" of shackling continue into the penalty stage of a trial. Because "there seems to be no reason to restrict the[se] principles to the guilt-innocence stage of trial," we conclude the constitutional rules regarding shackling at trial apply equally in the sentencing context. Elledge v. Dugger, 823 F.2d at 1451.
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The right to appear before a jury free of shackles, however, is not absolute. Wilson v. McCarthy, 770 F.2d 1482, 1484-85 (9th Cir. 1985). Shackling is inherently prejudicial, but it is not per se unconstitutional. See Spain v. Rushen, 883 F.2d at 716. Under certain circumstances, "shackling . . . may be appropriate because of the public's competing interest in courtroom security and the just administration of law." Id. at 722 (citing Allen v. Illinois, 397 U.S. at 344). Because of the potential for prejudice, however, due process requires that shackles be used only as a "last resort." Illinois v. Allen, 397 U.S. at 344.
It is a denial of due process if a trial court orders a defendant shackled without first engaging in a two-step process. Castillo v. Stainer, 983 F.2d 145, 147-48 (9th Cir. 1992), as amended by, 997 F.2d 669 (9th Cir. 1993). "First, the court must be persuaded by compelling circumstances 'that some measure [is] needed to maintain security of the courtroom.' " Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.) (quoting Spain v. Rushen, 883 F.2d at 720), cert. denied, 498 U.S. 832 (1990). "Second, the court must 'pursue less restrictive alternatives before imposing physical restraints.' " Id. (quoting Spain, 883 F.2d at 721). See also United States v. Baker, 10 F.3d 1374, 1401 (9th Cir. 1993).
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