by Anthony Accurso

The Supreme Court of Washington issued a ruling that both clarified the standards governing the use of shackles during all court appearances and criticized the adoption of blanket policies for shackling without an individualized inquiry.

John W. Jackson, Sr. was accused of “assault in the second degree, domestic violence” after allegedly strangling his wife during an argument in early 2017. During Jackson’s pre-trial hearings, he was required to be shackled and in a jail uniform. During the trial, he was allowed to wear street clothes but was required to wear a leg “brace” that prevented him from walking normally or potentially escaping.

Jackson’s attorney objected to this treatment and filed a motion requesting the court conduct an individualized hearing on the need to restrain Jackson during appearances. On August 4, 2017, the Clallam County Superior Court issued an opinion on Jackson’s motion, as well as similar motions by other defendants then pending, which adopted the policies of the Clallam County Sheriff’s Office on the restraint and shackling of in-custody defendants until a viable alternative, such as videoconferencing, was available.

During his trial, Jackson raised concerns that the jury could see his leg brace under his clothing, and it would be difficult for him to stand while preparing to testify.  He was ultimately excused from standing when the jury entered and when he took his oath.  He was ultimately convicted at trial and filed an appeal on the basis that the court violated his rights by shackling him throughout the proceedings.

The Washington Supreme Court noted the long history of a defendant’s right to appear in court without shackles or bonds, having its roots in English common law.  Further, article I, section 22 of the Washington Constitution states this right includes “the use of not only his mental but physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is in plain violation of the constitutional guaranty.”

In the past, the Washington Supreme Court discussed the importance of preserving this right and for individualized assessment of the need for shackling, explaining “restraints are viewed with disfavor because they may abridge important constitutional rights, including the presumption of innocence, privilege of testifying on one’s own behalf, and right to consult with counsel during trial.” State v. Hertzog, 635 P.2d 694 (Wash. 1981).

A court retains discretion in determining when shackles are necessary, but a “broad general policy of imposing physical restraints upon prison inmates charged with new offenses because they may be ‘potentially dangerous’ is a failure to exercise discretion.” Id.

The Court announced the extension of “the trial protections against blanket shackling policies to pretrial proceedings as well…. We now determine that the constitutional right to a fair trial is also implicated by shackling and restraints at nonjury pretrial hearings.” 

The Court stated that its position is based on “[w]hat we now know regarding the unknown risks of prejudice from implicit bias” and the culture in some county courts “in which incarcerated defendants are virtually guaranteed to have their constitutional rights violated” by blanket shackling policies.

The Court of Appeals agreed that Jackson’s rights had been violated by the shackling, but it also concluded that he could not demonstrate the violation wasn’t harmless and thus affirmed his conviction.

The Washington Supreme Court reversed this finding.  While the high court had adopted a harmless error analysis regarding shackling during jury trials that placed the burden on defendants in State v. Hutchinson, 959 P.2d 1061 (Wash. 1998), it later shifted the burden to the State to prove “that the shackling did not influence the jury’s verdict.” State v. Damon, 25 P.3d 418 (Wash. 2001). 

In the present case, the Court expressly disavowed Hutchinson’s “substantial or injurious effect” test and announced: “We hold that the State bears the burden to prove beyond a reasonable doubt that the constitutional violation was harmless as set forth in” State v. Clark, 24 P.3d 1006 (Wash. 2001).

After reviewing what occurred at trial, the Court concluded “the State cannot prove harmlessness beyond a reasonable doubt….”

Accordingly, the Court reversed the Court of Appeals on the issue of harmlessness and remanded for a new trial “with instructions that at all stages of the proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary, and for further proceedings consistent with this opinion.” See State v. Jackson, 467 P.3d 97 (Wash. 2020). 

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