Academic journal article Harvard Law Review

Sixth Amendment Challenge to Courthouse Dress Codes

Academic journal article Harvard Law Review

Sixth Amendment Challenge to Courthouse Dress Codes

Article excerpt

Courthouses with dress codes require the public to conform to particular standards of attire in order to enter. They may be specific--for example, refusing entry to people wearing shorts, tank tops, hats, or clothing with writing or logos--or general--requiring that all clothing meet a standard like "appropriate" (1) or not "dirty, slovenly, bizarre, revealing, or immodest." (2) Where, as in the vast majority of courthouses, (3) the public must pass through a security checkpoint, the dress code is enforced by security officers at the point of entry. (4) Dress codes therefore delegate to security officers the authority to decide who may enter to observe court proceedings, based on their own determinations of who is dressed "appropriately" and who is not.

Largely unconstrained discretion to exclude members of the public from courthouses, and from criminal proceedings in particular, threatens three distinct harms. First, it weakens the key constitutional principle of popular access to, and control over, the courts. Public access to the courts is protected by the First Amendment, Sixth Amendment, Due Process Clauses, and Privileges and Immunities Clause. (5) These guarantees recognize the importance of public access as both a safeguard of individual liberty and an assertion of popular sovereignty: as the Supreme Court said in In re Oliver, (6) "[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." (7) But if members of the public can be arbitrarily excluded by the government they are supposed to check, such "contemporaneous review" promises little bite. While there is no data on the number of people excluded from courts for their manner of dress (and it is likely highly variable by space and time), reporting across the country suggests that it is not at all uncommon. (8)

Second, dress code exclusions pose even greater risks in practice. The standards that security officers are likely to apply in determining who is dressed "appropriately" and what clothing is "disruptive" or "threatening" are likely to be entangled with culture, race, gender, and class. (9) In the first place, people without much money may be simply unable to afford clothes that satisfy certain standards of formality. (10) Equally important, some notions of what clothes are "professional" have discriminated against people of color. (11) Trials that have struggled with perceptions of racial bias, from Nelson Mandela's to Assata Shakur's, have involved racist conceptions of what clothing is appropriate for court.12 It is exceedingly unlikely that the people kept out of courthouses because of what they wear are a random cross section of the community--the impact is likely to fall almost entirely on the poor, minorities, and anyone who rouses the ire of courthouse security.

For a "criminal justice system" (13) already deeply vulnerable to critiques of race and class bias, (14) the risk that security officers will disproportionately view black, brown, and poor citizens as inappropriately dressed for court is profound. And the harm is magnified by the fact that these communities already comprise a disproportionate number of the individuals charged with crimes. (15) If public access is supposed to hold the government accountable for the way it prosecutes its citizens, then the presence of racial minorities and the poor in criminal court audiences is vital as a check on the overincarceration of their own communities. Excluding the populations most directly impacted by criminal prosecutions would render the public's information incomplete, feedback unrepresentative, and oversight ineffective. (16) Courtroom audiences that are too wealthy and too white will be less likely to object to (and even to perceive) the biases that plague criminal prosecutions.

Third, the current system marginalizes judicial oversight. The decision of whom to exclude from courthouses is better located with judges in courtrooms, not security officers outside. …

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