(concurring) — I concur that there was no established justification for placing Cecil Davis in restraints during the trial. But under our jurisprudence, it is per se reversible error in a death penalty sentencing if the trial court (1) fails to go through the proper procedures before restraining a defendant, and (2) the restraints become apparent to the jury. The jury was required by law to consider whether Davis was dangerous when deciding whether he was deserving of death. See RCW 10.95.070(8). The sight of unjustified restraints fatally taints this deliberation. E.g., State v. Finch, 137 Wn.2d 792, 842, 846, 975 P.2d 967 (1999).357
Constitutional errors in criminal trials are extremely troubling. Arguably, they violate the compact between the citizen and the State and deprive the accused of a fair trial. Arguably, many errors, even constitutional ones, are harmless. We have long struggled with the appropriate approach *762to their review. E.g., State v. Borrero, 147 Wn.2d 353, 58 P.3d 245 (2002) (plurality of a starkly divided court applies constitutional harmless error analysis to instructional errors); State v. Brown, 147 Wn.2d 330, 58 P.3d 889 (2002) (plurality notes some constitutional instructional errors require reversal per se); see also Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); cf. State v. Norman, 145 Wn.2d 578, 40 P.3d 1161 (2002) (dispute over the plain language of the state constitution in light of advancing technology). Some justices approach these cases as if any constitutional error probably rendered the trial fundamentally defective. Other justices approach these cases with the faith that almost any error can be harmless. We return to this struggle again and again.
I do not think this divide is a bad thing. It helps the court’s deliberation by airing both points of view in the context of specific claims of constitutional error and makes us regularly revisit claims of justice, pragmatism, and absurd formalism.
But we have already settled whether we must vacate a death sentence when the defendant is improperly restrained and when that fact comes to the attention of the jury. The majority has shown no compelling reason to part with our jurisprudence, nor any compelling way that this case is distinguishable from Finch, where we vacated a death sentence for this very reason. Finch, 137 Wn.2d at 842; see also State v. Berlin, 133 Wn.2d 541, 547, 947 P.2d 700 (1997) (cases must be both incorrect and harmful before they may be overruled).
This rule makes sense. Not only does it give appropriate weight to the gravity of this error, it also puts the incentives in the right place. A defense counsel already has a strong incentive to have his or her client appear before the jury without restraints because of their prejudicial effect. See generally Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). With this rule in place, the prosecution will also have a strong incentive to ensure that a proper hearing is held before the defendant is restrained, and the *763least visible and intrusive restraints are used to ensure that this issue does not arise on review.
I emphasize that had the trial court properly determined that the restraints were necessary after following the appropriate procedures, and had the least visible and least restrictive means of effective restraint been used, this may not have been reversible error. It would not have been “unconstitutional shackling,” raising the heightened concerns articulated in Finch and State v. Clark, 143 Wn.2d 731, 774-77, 24 P.3d 1006 (2001). Indeed, it might not have been error at all. Cf. United States v. Mayes, 158 F.3d 1215, 1226 (11th Cir. 1998). Under those circumstances, had the shackles been unveiled by a stray gust of wind or wayward wheeled briefcase, the State should be allowed to demonstrate, beyond a reasonable doubt, that the error did not deprive Davis of a fair sentencing hearing. Cf. Neder, 527 U.S. at 8; Clark, 143 Wn.2d at 776-77. However, given the gravity of sentencing errors in capital cases, this court should err on the side of finding prejudice. Cf. State v. Benn, 120 Wn.2d 631, 660, 845 P.2d 289 (1993).358
This comes to us as a personal restraint petition, and the burden is on the petitioner to show prejudice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990). But under Finch, and to give due weight to the extraordinary importance of the Sixth Amendment’s guaranty of a fair trial, especially in capital sentencing, the petitioner meets his initial burden by demonstrating he was shackled without the appropriate procedural safeguards, and that the shackles were visible to the jury. Cf. Allen, 397 U.S. at 344; see generally Crawford v. Washington, 541 U.S. 36, 42, *764124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (rejecting a lenient approach to the requirements of the Sixth Amendment because “[djispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”). Shackles communicated to the jury that Davis was extraordinarily dangerous, and that is improper. See RCW 10.95.070(8) (instructing a jury impaneled to consider a death penalty to consider whether the defendant is dangerous); Finch, 137 Wn.2d at 849-51 (noting that shackles strongly imply dangerousness).
With that reservation, I concur with the majority.
As the United States Supreme Court wrote:
Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.
Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
Even if I were to agree with the majority that some sort of independent review of the evidence is appropriate, I am not persnaded that Strickland and its progeny put forth the proper analysis. Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (establishing reasonable probability of harm standard); cf. majority at 704-05 (same). Strickland was about ineffective assistance of counsel, and prevailing on an ineffective assistance of counsel claim always requires showing likely harm. This unlawful shackling goes to the very question the jury was required to consider and tainted its ability to do so. We should impose a higher standard given the type of error. Cf. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (effectively imposing higher standard on errors that go to the evidence presented to the jury).