What to Wear for Sentencing

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Does what a defendant wears to court impact his or her sentence?

We’ve written about dress and appearance a lot on this blog. Jeff wrote here about defendants wearing eyeglasses and dress clothes and covering up tattoos in front of a jury, and here about a judge’s authority to set rules about what people can wear to court. He talked about juror attire here. Shea tackled dress standards for lawyers—particularly women—here.

I’m not exactly breaking any news to say that appearances matter in the criminal justice system. For defendants. For lawyers. For probation officers (who have considered transitioning from business attire to a uniform, by the way). For everyone—just as in all walks of life, I suppose.

As for defendants, the due process and statutory rules about clothing at trial mostly relate to wearing jail or prison garb, and they’re focused on protecting the defendant’s right to a fair trial before a jury. See Estelle v. Williams, 425 U.S. 501, 504–05 (1976) (“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. . . . Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial.”); G.S. 15-176 (“It shall be unlawful for any sheriff, jailer or other officer to require any person imprisoned in jail to appear in any court for trial [in superior court] dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian’s dress.”).

But the issue surely goes beyond the jury. Defendants’ dress and appearance before the judge at sentencing is something we talk about every year in our annual sentencing seminar at the School of Government (the one created and led by Jim Drennan for over 20 years). And every year, court officials acknowledge the ways defendants’ attire can affect their thinking—for better or for worse. Some of their reactions are straightforward, but some are really subtle. We talk about separating our pet peeves and preferences (some of which might stem from socioeconomic, generational, or cultural differences) from issues that convey information truly relevant to the purposes of sentencing.

Some general rules of thumb emerge. If the court has posted rules about attire, and the defendant doesn’t follow them, that’s bad. (I was just at a courthouse yesterday, and the most prominent signs on the courtroom door were those requiring shirts to be tucked in.) There is the occasional anecdote about a defendant wearing a t-shirt with a marijuana leaf to his drug crime sentencing. Those choices can be received as a signal that the defendant isn’t taking the proceedings seriously. And that can lead to a harsher sentence, to “get the defendant’s attention.” Some will say things like “dress like you’re going to church,” but most are very welcoming of defendants dressed like they’re going to work—whether it’s a business suit, medical scrubs, or a mechanic’s uniform. I’d be interested to hear any practical advice our readers have to offer.

10 comments on “What to Wear for Sentencing

  1. Makes me think about defendant wearing t-shirt with Slick Rick says on front and F—- you on back. Or judge Winberry never hearing what a female attorney had to say because he was looking through rules of court to determine if he could hold her in contempt for wearing pants to court.

  2. I used to ask clients to dress as if they were going to work until I was reminded by one that I was representing her for working as a prostitute and by another that he was working as a dealer. That’s another one of those things we “think makes perfect sense” in our relatively affluent professional minds. That doesn’t mean it translates to those we represent. Now I say that our goal is to make the judge/jury/panel “want to help you.” Then we talk about everything we can do to achieve that: attire, eye contact, posture, facial expression, personal grooming. It’s about persuasion, not costuming.

  3. I advise active military members to not wear their uniform. Ex-servicemen have told me that the military has rules against wearing uniforms to court, and judges might be aware of that. In any case, the uniform is as likely to hurt as to help. I also usually ask defendants to not wear military veteran items such as ball caps and t-shirts.

  4. If my client has only one suit, and he only wears it to funerals, then I don’t want him to wear it to sentencing. The last thing I want is him sitting there looking like he’s at a funeral.

    I also don’t want my client sitting there in front of a jury fidgeting with a tie because he’s not used to wearing one.

  5. When I was a district court judge, I usually made a point to thank defendants (especially young ones) when they “dressed up” for court. This was whether they were there for sentencing or any other matter. I thought of it as positive reinforcement for respect for the court. But at the same time, I didn’t want other people to think they’d be treated differently if they weren’t wearing coats and ties.
    In superior court, if a defendant is entering a plea and knows he/she is going to receive an active sentence, I certainly understand why he/she may wear the plain white tee and jeans , and I don’t consider that attire to be inappropriate at all.
    And as you pointed out, many attorneys, probation officers, other court personnel no longer dress according to old school professional guidelines.
    I did have one defendant entering a plea who wore a tshirt with something very sexual and drug oriented on it. Not sure if his attorney noticed it, but about two sentences into the plea transcript, I just stopped and asked him to step outside and turn his shirt inside out or backwards for the rest of the plea. And he did. I still sentenced him according to the plea agreement; I just wanted him to know it wasn’t appropriate to wear that shirt in court (or anywhere else, in my opinion). I could have been hard core and made go home and change clothes, but that didn’t seem practical or efficient.
    I’d like to think I don’t sentence differently based on the attire of the defendant at sentencing. Many people just don’t own conservative, business clothes any more.

    • Thank you. Your comment called to mind a practical question that comes up sometimes. Those who know they are going to prison will sometimes ask if it makes sense to wear multiple pairs of socks or underwear, in the hope that they will be allowed to keep them instead of prison issued items. They will not. I’m told DACJJ will take all the items on admission and exchange them for prison issue clothing.

    • probably all of us, including judges, like to think that we are not affected by the things by which we are affected.

  6. A few thoughts:
    When families say they will bring him clothes, I still go to Goodwill and get clothes for the defendant. Either they don’t have the resources to dress him/her as well as I’d like or they could have radically different ideas on what is appropriate.
    I had a really nice set of jailers one time who gave my defendant spare boots to wear to his trial. Even though the defendant is seated at a desk where the jurors couldn’t see he would be in jail slippers, it was obvious that the defendant appreciated the dignity to wear real shoes with the suit I gave him.
    Once I walked in district court with a guy with a fezz hat on. He was giving a statement during sentencing where forgave the defendant. I asked one of the deputies why he was allowed to wear the really loud and colorful hat, the jailer said it was a relgious hat (apparently the Moorish Temple followers wear fezz hats?). It was nice to see a judge to ask about headwear and to allow genuine religious headwear.
    Either let the family drop off clothes at the jail themselves, or tell the jailers these were clothes supplied by the family. People sew in drugs into the clothes, and you don’t want to be the one bringing them to the jail. The most common way is to cut the hem on clothes and crush up pills and sew them back in.
    Lastly, a humorous one: When Halloween comes around, there are always one person who thinks it’s a good idea to dress up.

  7. Jury dynamics is interesting how people react to different colors the defendant is wearing. Hiding tats is a good thing although I do not have any. If one is expected to be remanded then jeans, shorts, and something that can be put in a jail garment bag is best no doubt. It’s not fun putting on a wrinkled suit after a year or two! The Menendez brothers in Beverly Hills wore pastel Polo shirts, khaki pants often to make them look preppy. In federal court of course it is all about the presentence report, points, and criminal history category. Although the sentencing guidelines are not mandatory, they are alive and well in federal court.

  8. In the past, I advised clients to dress for court like they would dress for church. After a client showed up in a “suit” made up of some kind of polyester/denim hybrid (with pinstripes), I changed my advice to “dress like you’re going to your mother’s church.” This worked pretty well until (and I kid you not) my client showed up, with his mother in tow, and he was wearing the tuxedo T-shirt straight out of “Talladega Nights.” Now I tell clients to dress appropriately and then specifically list what they shouldn’t wear (ripped clothing, sexually explicit items, marijuana T-shirts, etc.); so far, there hasn’t been a reappearance of the tuxedo T-shirt.

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