Excellent Article on Federal Judges' Views of Allocutions (4/17/14)

I refer students and practitioners to an excellent empirical study of federal judges' views on allocution under FRCrP Rule 32(i)(4)(A), here.  Mark W. Bennett and Ira P. Robbins, Last Words: A Survey and Analysis of Federal Judge's Views on Allocution in Sentencing, 65 Ala. L. Rev. 735 (2013), here.  I first cut and paste the introduction (footnotes omitted) and then offer some of the findings and conclusions.  I omit footnotes and references to footnotes.

I am not a victim. It was stupid. I was wrong.
--Kwame Brown, Former D.C. Councilman 1 

Others can take my life. They can take and make me out as a monster. They can treat me as a monster. But they can't take away my heart, and in my heart I know I did not do those alleged disgusting, hideous acts. 

--Jerry Sandusky, Former Pennsylvania State University Assistant Football Coach 2 

Your Honor, I cannot offer you an excuse for my behavior. How do you excuse betraying thousands of investors who entrusted me with their life savings? How do you excuse deceiving 200 employees who have spent most of their working life working for me? How do you excuse lying to your brother and two sons who spent their whole adult life helping to build a successful and respectful business? How do you excuse lying and deceiving a wife who stood by you for 50 years, and still stands by you? And how do you excuse deceiving an industry that you spent a better part of your life trying to improve?
 . . .
Apologizing and saying I am sorry, that's not enough. Nothing I can say will correct the things that I have done. . . . There is nothing I can do that will make anyone feel better for the pain and suffering I caused them, but I will live with this pain, with this torment for the rest of my life.
I apologize to my victims. I will turn and face you. I am sorry. I know that doesn't help you.
Your Honor, thank you for listening to me. 

--Bernard Madoff, Former NASDAQ Chairman 3 

INTRODUCTION 

Sentencing: "[T]hat gut-wrenching courtroom moment when a real life intersects with esoteric legal arguments and sentencing guidelines that never truly capture a case's nuances." Some individualization does, however, enter the sentencing process through allocution--the defendant's opportunity to stand up and address the court. Despite this opportunity--or perhaps because of it--many judges consider tailoring the sentence to the specifics of a case the "most difficult and draining aspect of their work." The three excerpts above illustrate how drastically different allocutions can be. While Brown and Madoff readily admitted guilt, Sandusky vehemently denied all wrongdoing and instead portrayed himself as the victim. Sandusky was sentenced to thirty-to-sixty-years imprisonment for sexual abuse, and Brown was sentenced to one day in custody plus community service for bank fraud. Soon after hearing Madoff's allocution, then-Federal District Judge Denny Chin condemned Madoff's actions as "extraordinarily evil" and imposed a 150-year sentence--three times longer than the federal probation office had recommended and more than ten times longer than Madoff's lawyers had requested. 9 Given these radically different approaches and the various sentences imposed, did the allocutions serve any valuable purpose? Did Madoff's apologetic allocution make any difference? 

In theory, allocution provides an opportunity for defendants to accept responsibility, to humanize themselves and their transgressions, and to mitigate their sentences, thus ensuring that the sentences are "tailored to fit both the crime and the person who committed it." From the earliest days of allocution to the present time, defendants' procedural rights have expanded in criminal trials, including the right to testify on one's behalf, the right to counsel, the mandatory preparation of presentence reports, and the right to object to their contents. Has this evolution of rights greatly altered the rationale behind the need for allocution? Whatever the answer to this question may be, ultimately judicial discretion is the greatest factor affecting how much weight will be accorded to a defendant's allocution. But this truism raises many critical questions, including the following: When might allocution help the defendant? When might it hurt? Do defense attorneys take allocution seriously? Do they prepare their clients adequately for allocution? How much do federal judges weigh allocution in deciding the final sentence? What features of allocution carry the most weight? 

While commentators have addressed some of these questions in a scholarly or anecdotal manner, this Article answers these questions more directly through a first-ever survey of all federal district judges regarding allocution. This Article discusses the importance of allocution and the relevance, attention, and weight federal judges place on this often-overlooked stage of the criminal-justice process. Part I explores the history of the right to allocute from its foundations in seventeenth-century common law to its modern-day application. Part II outlines our expectations prior to conducting the survey, some aspects of the participating judges' backgrounds and statuses, and the format of the survey. Part III summarizes the results of the survey. Part IV expounds on the survey's findings and includes recommendations for effective allocution and for future surveys on this subject. Finally, this Article concludes with a brief summary of the federal district judges' allocution advice.

I offer a few more excepts that I found particularly interesting.  The excerpts are not in the order presented in the article:

• Impact on Sentencing (Article p. 757):

When asked how important allocution is in arriving at the final sentence, more than 80% (408) of the judges indicated that it is important to some degree, as indicated in Table C. A majority (53.0% or 269) indicated that allocution is "somewhat important," and 5.3% (27) responded that it is "extremely important." Only 9 judges (1.8%) responded that allocution is not at all important. 

• Impression on Judges (Article pp. 752 ff):

The survey asked the judges to rank from a list the top five characteristics of defendants' allocutions that most impress them. The five top-rated responses were "genuine remorse," "sincerity," "realistic and concrete plans for the future," "acknowledgement of and sincere apology to the victims," and "understanding of the seriousness of the offense." The responses reveal that the most important thing a defendant can do in an allocution is to demonstrate remorse: judges ranked "genuine remorse" as the most important factor, while only 74 judges ranked "sincerity" first. Additionally, "genuine remorse" earned a total point value almost twice that of "sincerity," which had the second-highest total point value. "Realistic and concrete plans for the future" placed third in both first-ranked responses and total point value.  

Genuine remorse, however, was not the most frequent response to an open-ended question regarding the most helpful characteristics of a defendant's allocution. Instead, 141 judges (40.3%) suggested that defendants explain their plans for the future and for lessening the likelihood of recidivism, while 98 (28%) mentioned genuine remorse. Other responses to this open-ended question, in descending frequency, were acceptance of responsibility (21.4% or 75 judges), offer apologies to victims and their families (13.4% or 47), sincerity (12.3% or 43), explanation of conduct (8.3% or 29), acknowledgement of the crime's effect on others (8.3% or 29), and demonstration that the defendant understands the seriousness of the offense (8.0% or 28).  

The following sample of the judges' narrative responses is representative of the 350 responses regarding statements that may help reduce the sentence. One judge wrote, "The defendant can give an honest explanation of any mitigating circumstances, show an understanding of the wrongfulness of the conduct, and show honest remorse and an intention to do better." Another judge stated that "[s]howing credible remorse, determination to change, or demonstration that change has already occurred" may positively influence sentencing. Echoing familiar parental advice, one judge wrote, "It isn't what they say, it's how it is said. Honesty, sincerity and genuine remorse count for a lot. . . ." Another judge's response reflected many of the other comments: 

What they say about themselves is important and, even more important, is how they say it. A judge would like to understand what kind of person stands before the court particularly those defendants who understand what they have done and why and have some reasonable notion of where they might go from here ...[.] [This demonstrates] understanding of themselves, their own realistic assessment of strength and weakness and what might be done about it. An example is the drug case where the defendant talks about his desire to counsel others against drugs. I try to tell them that their job is not to prevent others from using [drugs], it is  to prevent themselves from using drugs and this is going to take all their efforts for a long time.  

In addition to inquiring about what most impresses judges in defendants' allocutions, the survey also asked judges to rank what impresses them the least. The top five responses based on total point value were: explaining "how the defendant was the victim of circumstance," "finding religion," "promising never to commit another crime," saying '"I can't change the past' or similar statements," and "thanking the prosecutor and agent for arresting and prosecuting the defendant." In open-ended responses, many judges also stated that defendants should not shift blame to others or try to minimize their involvement in the crime. For example, defendants should not "simply express or imply sorrow for getting caught," 121 "blame others or try to make [themselves] a victim of society," "make excuses," or "seek a lesser sentence." 

• Who most affects sentences (Article p. 762).

Federal Rule of Criminal Procedure 32(i)(4)(A) states that the sentencing judge must provide the defense attorney, the defendant, and the prosecutor an opportunity to speak at sentencing. While all three actors play an important role in shaping the ultimate sentence, the judges indicated that defendants' allocutions are least influential, but not significantly so, especially compared with prosecutors' statements at sentencing. 

* * * * 

Based on total point value, the judges ranked defense lawyers as most effective, prosecutors second, and defendants last. However, when the first rank order is isolated, the defendant's allocution significantly outranks the prosecutor's argument in terms of influencing the judge's sentencing decision. While 137 judges (29.7%) indicated the defendant was most effective and 103 (22.3%) ranked the prosecutor as the most effective, an overwhelming number of judges (47.9% or 221) indicated that defense lawyers are the most effective. 

•  When Not to Allocute (Article p. 751-2):

When asked whether there are situations in which they recommend that defendants not allocute, 94 only 182 judges (35%) responded with examples. 95 Of those judges, (28.6%) indicated that defendants should not allocute if they intend to deny guilt or responsibility for their crimes. Twenty-three judges (12.6%) also indicated that defendants should not allocute if they are not remorseful or are planning to appeal and allocution could compromise their position on appeal. Other responses garnering support from increasingly fewer judges include situations where defendants will lie; will further incriminate themselves; will only express anger towards victims, the court, or others; or will cause harm to or threaten others. Six judges (3.3%) indicated that a defendant should not allocute in child sexual abuse or child pornography cases. Three judges (1.7%) indicated that defendants should not allocute in cases where it is highly likely they will receive a mandatory minimum sentence. Finally, 6 judges (3.3%) commented that it is not their role to make this recommendation. 

• Nonsentencing Purposes of Allocution (Article pp. 749-750):

Even when allocution does not affect the sentence, the judges overwhelmingly agreed that it serves "other important purposes" and identified those purposes in open-ended responses. While 85.7% (442 judges) of the respondents agreed that allocution serves other important purposes, 4.3% (22) of the judges disagreed and 10.1% (52) had "no opinion." Of the 442 judges who indicated that allocution serves important purposes other than sentencing, 407 specified what those other purposes are. These judges most often (40.8% or 166 judges) stated that allocution enables the defendant to participate in the process and affords the defendant an opportunity to speak. Next, 17.4% (71) of the judges observed that allocution benefits the victim, the victim's family, and the defendant's family; 84 14.3% (58) indicated that allocution provides the sentencing judge and others in the courtroom with a better understanding of the defendant; 85 and 9.6% (39) indicated that allocution helps defendants accept responsibility for their actions. 86 As one judge wrote, allocution "allows the court to recognize ... the humanity of the person before the court." Another judge aptly summarized other purposes served by allocution: 

It gives the defendant the sense that he is a meaningful part of the sentencing process and that his statements will be considered by the court in determining the sentence. It is a forum to apologize to those who have been affected by the defendant's actions. It gives the defendant an opportunity to fill in gaps within the [pre-sentencing report (PSR)] or answer questions that the PSR left unanswered. Often the defendant will touch on an area or topic that the defense attorney failed to raise. Frequently, allocution allows the court to have a meaningful dialogue with the defendant on both sentencing issues and post-imprisonment issues.