Time of Desperation: An Examination of Criminal Defendants' Experiences of Allocuting at Sentencing

By Burger-Caplan, Joshua I. | Columbia Journal of Law and Social Problems, Fall 2017 | Go to article overview

Time of Desperation: An Examination of Criminal Defendants' Experiences of Allocuting at Sentencing


Burger-Caplan, Joshua I., Columbia Journal of Law and Social Problems


What do you want to say? I think that's really all you can say, is speak from the heart, I mean. But it is desperation too. ... I do feel like I said things from the heart, but I do also feel like it was a lot of desperation.1

I expressed myself the best way I could, with the best vocabulary I could, with the best way I knew how at that time. I wasn't coached, I wasn't prepped. . . .So you really don't know what to say. You know you've got to say "sorry."2

I. INTRODUCTION

Allocution - the right of a defendant in a criminal case to speak at her or his sentencing hearing before the sentence is pronounced - has been recognized in English common law since 16893 and has been enshrined in some form in the Federal Rules of Criminal Procedure since 1944.4 Most of the United States also recognize the right to allocute in some form.5 Though many have argued that allocution is no longer necessary due to advances in criminal procedure that protect defendants' rights and better ensure fair sentencing,6 many judges7 and defendants8 believe that the right has continued relevance and importance in the present day. After all, there are only four true opportunities for defendant speech during the legal process: "trial, guilty pleas, sentencing, and behind them all, conversations with counsel."9 In a system where so few people go to trial, let alone testify,10 sentencing is often the only opportunity for defendants to speak during the legal process in a way that is even nominally unconstrained.

The practical value of allocution - the benefit it actually provides for defendants and judges - remains, however, an open question. The traditional rationale for allocution is mitigation, defined by Professor Kimberly Thomas as "reasons why the trial court should view the offender as less responsible for his acts or view the offense as less severe."11 These statements "may also, but do not need to, accept responsibility for the offense."12 By this view, the value of allocution is its ability to influence judges.

Yet the procedural protections that have developed for defendants have, in the view of some, rendered allocution obsolete.13 Because of these changes, in the last fifteen years several articles have been published suggesting a second rationale for allocution: "humanization."14 Humanization is a purposefully expansive rationale, meant to allow for "a broader scope of defendant speech," and to "accommodate the defendant's unique perspective."15 Under a humanization rationale, whether the act of allocuting has an impact on the eventual sentence is immaterial to the importance of the right to allocute - leading to an environment in which it is permissible for defendants to touch on subjects or stories that may be difficult for a court to hear or otherwise unwelcome. Thus, denial of the right of allocution under such a rationale could never be considered harmless error, as the right being denied is not just the right to present information that would mitigate one's sentence (a role that may be filled by counsel), but the opportunity to speak more generally and individualistically.

Considered from the perspective of defendants' experiences of allocution, both of these rationales have their virtues and their issues. A rationale for allocution that focuses purely on mitigation presupposes a narrow window of acceptable speech while ignoring the reality that the presentation of mitigating evidence does not usually result in a lower sentence. And a rationale based solely on humanization does not take into account the intense pressure that is often felt by a defendant facing a period of incarceration.

While the humanization rationale is certainly a noble understanding of the right of allocution from an academic perspective, it does not seem to comport with the actual experiences of defendants who have allocuted. While a survey of federal judges' attitudes towards allocution16 and a linguistic analysis of federal allocutions17 have been conducted, as of yet no one has formally interviewed defendants who have allocuted to discover their reasons for allocuting and to ask what they found valuable in the process. …

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