Posted by Orin Kerr:
Guess the Authoring Justice:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116866889
In an opinion handed down this morning, [1]Deck v. Missouri, the
Supreme Court considered when it is constitutional for a capital
defendant to appear before the sentencing jury in shackles. There was
a majority opinion and a dissenting opinion; one was written by
Justice Thomas, the other by Justice Breyer. Here is an excerpt from
the majority opinion:
We first consider whether, as a general matter, the Constitution
permits a State to use visible shackles routinely in the guilt
phase of a criminal trial. The answer is clear: The law has long
forbidden routine use of visible shackles during the guilt phase;
it permits a State to shackle a criminal defendant only in the
presence of a special need.
This rule has deep roots in the common law. In the 18th century,
Blackstone wrote that �it is laid down in our antient books, that,
though under an indictment of the highest nature,� a defendant
�must be brought to the bar without irons, or any manner of
shackles or bonds; unless there be evident danger of an escape.� 4
W. Blackstone, Commentaries on the Laws of England 317 (1769)
(footnote omitted); see also 3 E. Coke, Institutes of the Laws of
England *34 (�If felons come in judgement to answer, . . . they
shall be out of irons, and all manner of bonds, so that their pain
shall not take away any manner of reason, nor them constrain to
answer, but at their free will�). Blackstone and other English
authorities recognized that the rule did not apply at �the time of
arraignment,� or like proceedings before the judge. Blackstone,
supra, at 317; see also Trial of Christopher Layer, 16 How. St. Tr.
94, 99 (K. B. 1722). It was meant to protect defendants appearing
at trial before a jury. See King v. Waite, 1 Leach 28, 36, 168 Eng.
Rep. 117, 120 (K. B. 1743) (�[B]eing put upon his trial, the Court
immediately ordered [the defendant�s] fetters to be knocked off�).
American courts have traditionally followed Black-stone�s
�ancient� English rule, while making clear that �in extreme and
exceptional cases, where the safe custody of the prisoner and the
peace of the tribunal imperatively demand, the manacles may be
retained.� 1 J. Bishop, New Criminal Procedure §955, p. 573 (4th
ed. 1895)
Now here is an excerpt from the dissenting opinion:
[A]lthough the English common law had a rule against trying a
defendant in irons, the basis for the rule makes clear that it
should not be extended by rote to modern restraints, which are
dissimilar in certain essential respects to the irons that gave
rise to the rule. Despite the existence of a rule at common law,
state courts did not even begin to address the use of physical
restraints until the 1870�s, and the vast majority of state courts
would not take up this issue until the 20th century, well after the
ratification of the Fourteenth Amendment. Neither the earliest case
nor the more modern cases reflect a consensus that would inform our
understanding of the requirements of due process. therefore find
this evidence inconclusive.
Okay, so here's the question: which Justice wrote the majority
opinion, and which wrote the dissenting opinion?
([2]Click here for the answer.)
([3]Justice Breyer wrote the majority opinion adhering to the common
law rule. Justice Thomas wrote the dissenting opinion distinguishing
the common law rule.)
References
1. http://www.supremecourtus.gov/opinions/04pdf/04-5293.pdf
2. file://localhost/var/www/powerblogs/volokh/posts/1116866889.html
3. file://localhost/var/www/powerblogs/volokh/posts/1116866889.html
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