What Effect Might Jail Clothing Have On A Judge’s Sentence?

In Estelle v Williams, 96 S.Ct. 1691 (1976) Chief Justice Berger wrote :

The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions,determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. [citations omitted.]

The American Bar Association’s Standards for Criminal Justice also disapprove the practice. ABA Project on Standards for Criminal Justice, Trial by Jury, s 4.1(b), p. 91 (App.Draft 1968). This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429 (1965).

Given what we know about implicit bias can we safely say that how a defendant appears will have no effect on how a judge sentences? Defendants have a right to appear in civilian clothes during trial so why adopt a different rule at sentencing? The issue comes up in the news because a federal judge rejected Paul Manafort’s request to wear a professional suit during a hearing later about his sentence, noting the former Trump campaign chairman is now a convicted felon who has lost the right to wear street clothing in all his court proceedings.

“This defendant should be treated no differently from other defendants who are in custody post-conviction,” U.S. District Court Judge T.S. Ellis III wrote in a sharply-worded order.” There is no reason to treat Paul Manafort different than other in custody defendants, but is the answer to require him to wear jail clothes or let every defendant have the opportunity to reduce the implicit bias that jail clothing may cause?

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