In a very lengthy law review article published in the Alabama Law Review, Northern District of Iowa Judge Mark W. Bennett (the “other” Bennett) and American University Lawprof Ira Robbins have done an empirical survey of the impact of the defendant’s statement to the court on federal sentencing. It’s a disturbing study.
Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.
Putting aside the methodologies, the backend of the article contains
recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.
This is where it gets interesting. Bear in mind, these are from the mouths of judges, so it’s not an issue of what you think about the recommendations, but what they, the people doing the sentencing, think.
The common assumption is that judges have already written down their number before taking the bench for sentencing, and the effort at sentence is, essentially, wasted breath. It appears that judges believe that allocution is reasonably important in arriving at a final sentence, though its actual impact is modest.
While a significant portion of the judges indicated that allocution is often an important consideration in sentencing, their responses suggest that allocution, in fact, only modestly impacts sentencing at all. The survey asked how frequently allocution results in either a higher or lower sentence and whether that sentence is above or below the range recommended in the U.S. Sentencing Commission Federal Sentencing Guidelines Manual (the Guideline range). The judges’ responses indicate that allocution sometimes results in a modified sentence. And perhaps not surprisingly, not a single judge indicated that an allocution always results in a different sentence.
What this suggests isn’t that judges aren’t open to being influenced by allocution, but that the defendant’s statement (as well as defense counsel’s argument) do not sufficiently alter the calculus. In other words, the opportunity may be there, but it’s either not being used very well or, more likely, there isn’t much that can be said that will change the judge’s views.
But significantly, when allocution does affect the sentence, it serves to lower the sentence, mostly within the guideline range, but closely followed by a below guidelines sentence. The message here is that it is definitely worthwhile to put in the effort, and get it right.
The more troubling problem is the “what is the right thing to say” conundrum.
Just as Goldilocks liked things to be “just so”—porridge that is not too hot or too cold and a bed that is not too hard or too soft—sentencing judges also prefer allocution a certain way.
For defendants to allocute their way to a lower sentence, they must carefully balance several factors and tailor their allocutions to the predilections of the judges whom they face. First, defendants and defense attorneys should recognize the potential importance of allocution in judges’ sentencing decisions. Second, defendants should prepare their allocutions in just the right way—prepare but do not over-prepare; think extensively about what to say but do not merely recite what they think the judge wants to hear. Third, allocuting defendants should mind their body language and present themselves as genuinely remorseful, without appearing overly apologetic, which can seem insincere.
In other words, be perfect, whatever that means. The problem, as is made clear in what follows, is that every judge has an approach that they think is perfect, and they differ markedly.
In their open-ended responses, some judges commented on the value of hearing defendants’ plans for the future, with one judge noting, “Some suggestion that the defendant has a concrete game plan for turning his life around would be helpful.” Many judges commented on the value of hearing the defendant reflect on his or her victims. But as one judge observed, defendants should “resist the powerful urge to whine and blame others.” Also, although defendants might think it wise to ask the court for forgiveness, at least for one judge, it is actually better to ask for leniency instead: It is not a “judge[’]s role to grant forgiveness. Asking for leniency and providing reasons why [a] certain sentence is appropriate works much better.” As this semantic difference demonstrates, defendants must forever be on their toes, navigating the bear-filled woods of each sentencing judge’s preferences—and defense counsel should be their guide.
What struck me about the specific advice is that many judges appear rather petty and trivial in what matters, reflecting a remarkable lack of understanding about the people whose lives are in their hands. Silly aspects, such as semantics, matter greatly to them, as they apparently are unaware that most defendants didn’t go to Harvard Law School and were lucky to have graduated from high school. Yet, they expect such finely honed allocutions to reflect levels of mitigated speech, delivered with precision and yet sincerity, to appeal to their prep school sensibilities.
Thus, while one of the most important aspects of sentencing to the judge is “sincerity,” it’s their flavor of sincerity, not the defendant’s. Many defendants want desperately to use their statement as an opportunity to “explain” themselves to the court, to come clean in their own way. This is their truth, but judges don’t like it.
As part of this role, defense counsel should encourage their clients to be concise while allocuting. Verbose allocutions more frequently detract from an allocution’s effectiveness than any other factor. Indeed, as one judge advised: “Don’t let them read these long, prison-written letters. They tend to become maudlin, self-indulgent, and annoying . . . . Some defendants get carried away and start to whine that it wasn’t their fault, etc. That hurts any good that the attorney may have done.” Overly brief allocutions, however, are less likely to have a negative impact. Thus, defendants should prepare what they want to include in their allocutions beforehand to ensure they are not unnecessarily long.
Every lawyer knows the “long, prison-written letters,” put together with the best advice of their jail-house sentencing mavens, which is likely the longest thing they’ve ever written in their lives. They can be enormously proud of their speech, and desperate to deliver it. They may swear it’s sincere, and demand their right to read it to the judge. We may try desperately to explain that it’s not as effective as they think it is, to no avail. They want to be sincere, to be real, but it’s not the same sincere and real that judges want to hear.
Which leads to an even more disturbing finding:
After preparation, defendants must come to court and deliver the allocution in a style that connects with the presiding judge. Overwhelmingly, judges in the survey indicated that they want defendants to show genuine remorse and sincerity. One judge bluntly recommended to defense counsel, “If your client cannot be sincere, and that is frequently the case, tell them to shut up.”
Given the importance that judges assign to sincerity and genuine remorse, judges presumably believe that they are adept at recognizing deceit and feigned remorse in their courtrooms. But are they really? Numerous studies have indicated that humans, in general, are not as adept as they think they are at detecting sincerity and, more specifically, that judges are able to identify deceit at a rate only slightly better than chance.
Thus, while judges believe they have magical powers that allow them to discern sincerity, they don’t. They know what they like. They have no clue what is real, and are just as likely to reject a sincere allocution as to embrace an insincere one. Sadly, it’s just a shot in the dark.
The most notable, and glaring, omission in this article is what a defendant can do if he maintains his innocence through sentence. This may suggest that no federal judge believes that any defendant being sentenced is innocent, or that they just don’t want to deal with difficult situations.
Given that they clearly want sincere expressions of remorse, it presents a dilemma for the defendant who maintains that he was wrongly convicted, which means he is unable to gain the advantage of a reduced sentence based on a sincere expression of remorse because he isn’t guilty, or he must give up his position of innocence to feign remorse to appeal to the judge.
The article offers a number of takeaways that are helpful in guiding a defendant’s preparation for allocution. At the same time, there are so many internal contradictions that it appears to reduce the allocution to a game, despite the emphasis on sincerity. About the only thing that is universal is to be concise, focus on the judge’s concerns (rather than the typical apology to the defendant’s family, which the judge couldn’t care less about) and don’t try to shift blame.
Of course, most defendants want nothing more than to shift blame, and demand their right to do so. The problem is that they are sometimes right about blame, putting sincerity in conflict with remorse. But as this article makes clear, truth just gets in the way, and it remains one of the most ironic aspects of criminal defense that defendants often have a desperate demand for truth, albeit their truth, from the system.
Update: At Hercules and the Umpire, Judge Richard Kopf offers one of his personal tricks for making it through the allocution:
Sometimes, when the allocution is raw with begging and bargaining and terror and fear, I will take my glasses off as I look directly into the defendant’s eyes. When I do, the defendant’s facial features becomes fuzzy and obscured and indistinct even though I appear to be focused on the face. I know that doing so is cowardly. But when I reject the plea for mercy, it helps to get me through the long nights that follow. After all, it’s all about me.
I’m unsure what to make of this. While the act of sentencing another human being to prison is a difficult one, perhaps even painful despite the belief that it’s the right thing to do, I have to agree with Judge Kopf: it’s cowardly.
I can well understand how no one enjoys doing an unpleasant but, in their mind, necessary task, but the very least one can do is take ownership of it. If that’s too hard to do, then it calls into question the legitimacy and propriety of the decision. Unpleasant tasks are a fact of the legal system, but even small tricks like this to avoid the responsibility of one’s decision is deeply disturbing.
H/T Doug Berman