Some bloggers have objected to District Judge Marcia Cooke's saying that Jose Padilla should not wear handcuffs and ankle chains during court appearances unless government officials can show that he poses an immediate safety threat. These objections may arise from a misunderstanding about how criminal defendants normally are treated. It is standard in most courtrooms not to shackle defendants, particularly in sight of the jury, because of concerns that this will prejudice the jury. Of course, if the defendant has a track record of misbehaving in court -- jumping around, lunging at people, etc. -- he will be cuffed for the sake of order and safety (as approved by the Supreme Court in Estelle v. Williams, 425 U.S. 501 (1976) (noting that shackles may be necessary "to control a contumacious defendant"), but defendants have won habeas petitions based on unnecessary cuffing.

There was a great deal of discussion about whether this is a good policy in March of last year, when an unrestrained defendant who was alleged to have committed rape grabbed a deputy's gun and killed her as well as a judge and court reporter. Padilla is said to have behaved himself throughout his detainment and prosecution, and the only justification for treating him as a threat to courtroom safety might be his prior conviction for murder. Notwithstanding Padilla's fame as the "dirty bomber," the terrorism charges against him are solely for conspiracy to murder, kidnap and maim people overseas -- Chechnya, Bosnia, Somalia and Kosovo -- with no direct mention of Al Qaeda, only an accusation that Padilla trained for jihad in Afghanistan. This indictment is not indicative of present dangerousness, though it does inform one of Padilla's wonderful pseudonym "Abu Abdullah the Puerto Rican."

Perhaps if we are concerned about prejudicing juries, while simultaenously recognizing that some defendants need to be cuffed, we should just make shackles a standard policy for all defendants, even those accused of nonviolent white collar crimes. I want to see Ken Lay going into the courtroom in handcuffs and ankle chains! Not just for my personal entertainment, but also because if cuffs become wholly standard, then they will be less prejudicial. As it stands, any informed juror who sees a restrained defendant automatically assumes that this person must be really dangerous instead of merely a regular defendant. When every defendant is shackled, no defendant is shackled. Or something like that.