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Unlike the Supreme Court's reasoning regarding prison clothes, its rationale in shackling cases has not been grounded only in the presumption of innocence. See Elledge v. Dugger, 823 F.2d at 1451 (recognizing that "the Supreme Court has not bottomed the prohibition against shackling on the presumption of innocence alone"). But see id. at 1454 (Edmondson, J., concurring in part and dissenting in part) (arguing that the presumption of innocence is "the single major analytical thrust" of the shackling cases).

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.

This conclusion is supported by analogy to the treatment of the shackling issue in civil cases. There, the presumption of innocence does not apply. Nonetheless, relying on criminal case precedents, courts have held that when an individual's level of dangerousness is a question the jury must decide in a civil proceeding, it is a violation of the right to a fair trial to compel that individual to appear before the jury bound in physical restraints. See, e.g., Tyars v. Finner, 709 F.2d 1274, 1284-85 (9th Cir. 1983) (unconstitutional to compel the subject of a civil commitment hearing to wear physical restraints at trial); Lemons v. Skidmore, 985 F.2d 354, 356-58 (7th Cir. 1993) (impermissible to shackle plaintiff prison inmate in a civil rights action alleging excessive force by corrections officers). Cf. Holloway v. Alexander, 957 F.2d 529, 530 (8th Cir. 1992) (constitutional to shackle plaintiff prison inmate in civil rights action challenging constitutionality of living conditions in state prison, because plaintiff's status as dangerous felon irrelevant).

In the penalty phase of a capital trial, the jury knows the defendant is a convicted felon. But the extent to which he continues to be dangerous is a central issue the jury must decide in determining his sentence. "[N]ot all convicted felons are so dangerous and violent that they must be brought to court and kept in handcuffs and leg irons." Lemons v. Skidmore, 985 F.2d at 357. Unlike prison clothes, physical restraints may create the impression in the minds of the jury that the court believes the defendant is a particularly dangerous and violent person. Therefore, in the absence of a compelling need to shackle the defendant during his sentencing hearing, such a practice is inherently prejudicial.

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).

A defendant's status as a convicted felon may justify a trial judge's concern for security. Wilson v. McCarthy, 770 F.2d at 1482. Standing alone, however, this is not sufficient reason to impose physical restraints. Rhoden v. Rowland, 10 F.3d 1457, 1458 (9th Cir 1993). See also State v. Young, 853 P.2d 327, 350-51, 351 n.97 (Utah 1993) (holding that a murder conviction alone is not a sufficient basis for shackling a defendant at sentencing). In all the cases in which shackling has been approved, there has also been evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities. See, e.g., Morgan v. Bunnel, 24 F.3d 49, 51 (9th Cir. 1994); Hamilton v. Vasquez, 17 F.3d 1149, 1154-55 (9th Cir. 1994); United States v. Baker, 10 F.3d at 1401; King v. Rowland, 977 F.2d 1354, 1358 (9th Cir. 1992); Jones v. Meyer, 899 F.2d at 885; Stewart v. Corbin, 850 F.2d 492, 498 (9th Cir. 1988), cert. denied, 490 U.S. 1016 (1989); Wilson v. McCarthy, 770 F.2d at 1485.






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