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Allocution

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Allocution

An allocution or allocutus is a formal statement made to the court by the defendant who has been found guilty, prior to being sentenced. It is part of the criminal procedure in some common law jurisdictions.

An allocution, in mitigation, allows the defendant to explain why the sentence should be lenient.

In plea bargains, an allocution may be required of the defendant; the defendant explicitly admits specifically and in detail to what he or she did and for what reason, in exchange for a reduced sentence. In principle, it removes any doubt as to the exact nature of the defendant's guilt in the matter. This is also known as a plea colloquy.

The term "allocution" is used generally only in jurisdictions in the United States, though there are vaguely similar processes in other common law countries. In many other jurisdictions it is for the defense lawyer to mitigate on his client's behalf, and the defendant himself will rarely have the opportunity to speak. The right of victims to speak at sentencing is also sometimes referred to as allocution.[1]

Allocution often appears in movie and television scripts.

An allocution is generally not made under oath and it is not subject to cross-examination. Victim impact statements are also sometimes called "allocution".

History

In common law, the right of a prisoner to speak in his own behalf, sometimes called the allocutus, was recognized as early as 1682. Its purpose was to give defendants, many of whom might have lacked counsel, an opportunity to present legal defenses that could result in a reprieve or other relief from sentence.

Uses

The Leff Dictionary of Law notes that allocution "has the practical advantage of preserving in the record, by the defendant's reply, evidence of his presence and freedom to speak."[2] D. Brock Hornby notes:[3]

For defendants who have pleaded Guilty or who have not testified at trial -- together, almost every sentencing -- it is my only window into their minds and souls. Failure to speak is an irretrievably missed opportunity. When defendants speak, there are several audiences. Much of the statement is aimed at the judge, seeking a lower sentence. But defendants often apologize to their victims, present or not, sometimes turning to address them directly. Defendants apologize to parents, children, spouse, or siblings, seeking forgiveness. Occasionally, defendants apologize to the prosecutor, the community, or the United States for their destructive behavior. Sometimes they thank prosecutors for fairness, and deputy marshals for respectful treatment. All these public statements carry significance, regardless of whether they sway the punishment. They can affect victims, and the community if reported; they can also affect the defendant and family when they are uttered sincerely and with dignity.

Mark W. Bennett notes that what he looks for in a defendant's allocution is "(1) a sincere demeanor; (2) a discussion of what 'taking full responsibility' actually means to the defendant; (3) an acknowledgment that there are victims (e.g., even when the PSR indicates 'no identifiable victim,' as it does in most drug cases); (4) an understanding of how the crime affected the victims; (5) an expression of genuine remorse; (6) a plan to use prison or probation time in a productive manner; (7) a discussion of why the defendant wants to change his or her criminal behavior; and, perhaps most importantly, (8) information that helps humanize the defendant and the defendant's role in the crime."[4]

A survey by Bennett of all federal district judges in the United States found that allocution does not typically have a large influence on defendants' final sentences. Most of the judges agreed, however, that the right to allocute remains an important feature of the criminal-justice process. The judges' recommendations for defendants and defense attorneys aiming to craft the most effective allocution possible included preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.[5]

Allocution is sometimes used by less contrite defendants to explain their reasons for committing crimes and to criticize the criminal justice system, an example being hacktivist Jeremy Hammond's statement to the court prior to being sentenced to 10 years in prison for the 2012 Stratfor email leak.[6] Journalist Barrett Brown's allocution prior to his sentencing for the crimes of accessory after the fact, obstruction of justice, and threatening a federal officer, stated, "I’m going to make some criticisms of the manner in which the government has pursued this case. Normally this sort of thing is left to one’s lawyers rather than the defendant, because to do otherwise runs the risk of making the defendant seem combative rather than contrite. But I think Your Honor can walk and chew bubble gum at the same time. I think Your Honor understands that one can regret the unjust things one has done, while also being concerned about the unjust things that have been done to him."[7]

C. Volkert argues that "allowing the defendant a chance to deliver a defiant allocution may also serve to vindicate that person in the future when what was once considered defiance is now considered lawful and just. . . . The American Courts have a long history of displaying their inferiority complex, i.e. their desire to be taken seriously. In the landmark case of Marbury v. Madison, Chief Justice John Marshall went to great lengths to vindicate the power of the courts and their equal status within the American tripartite system of government. One of the ways the courts maintain this respect is through the maintaining of order and decorum in the courtroom; a defiant allocution can seriously undermine this goal."[8]

One of the adverbs most commonly used in allocution is "just"; e.g. "I just wanna apologize for what I did," "I just wanna get help with my drug addiction, get back up and be a father and support my children," or "I just made a bad decision." Other adverbs commonly used in allocution are "very," "really," "so," "sincerely," and "truly".[9]

Examples

In 1922, Mohandas Gandhi, prior to being sentenced for sedition, stated to the court, "I believe that I have rendered a service to India and England by showing in non-co-operation the way out of the unnatural state in which both are living. In my humble opinion, non-co-operation with evil is as much a duty as is co-operation with good. But in the past, non-co-operation has been deliberately expressed in violence to the evildoer. I am endeavoring to show to my countrymen that violent non-co-operation only multiplies evil and that as evil can only be sustained by violence, withdrawal of support of evil requires complete abstention from violence. Nonviolence implies voluntary submission to the penalty for non-co-operation with evil. I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, the judge, is either to resign your post, and thus dissociate yourself from evil if you feel that the law you are called upon to administer is an evil and that in reality I am innocent, or to inflict on me the severest penalty if you believe that the system and the law you are assisting to administer are good for the people of this country and that my activity is therefore injurious to the public weal."[10]

In 1977, Leonard Peltier said, prior to being sentenced for first degree murder in the shooting of two Federal Bureau of Investigation (FBI) agents during a 1975 conflict on the Pine Ridge Indian Reservation, "Your conduct during this trial leaves no doubt, that you will do the bidding of the FBI without any hesitation. You are about to perform an act which will close one more chapter in the history of the failure of the United States Courts and the failure of the people of the United States to do justice in the case of a native American. After centuries of murder, of murder of millions of my people, brothers and sisters, by the white race of America could I have been wise in thinking that you would break that tradition and, commit an act of Justice? Obviously not, because I should have realized that what I detected was only a very thin layer of dignity and surely of not fine character."[11]

In 1997, Timothy McVeigh stated in allocution, before being sentenced for the Oklahoma City Bombing, "If the Court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me. He wrote, 'Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.' That's all I have."[12]

In 1998, Ted Kaczynski said in allocution, before being sentenced for illegally transporting, mailing, and using bombs, that the government's pre-sentencing memo contained "false statements, misleading statements" intended to discredit his anti-technology views by decrediting him personally. He stated, "At a later time I expect to respond to the false statements."[13]

In 2004, Terry Nichols said in allocution, before being sentenced for murder, "Words cannot adequately express the sorrow I have had over the years for the grief that so many have endured and continue to suffer. I am truly sorry for what occurred." He also asked "everyone to acknowledge God," offered to correspond with survivors to "assist in their healing process," and said that the hand of God "has been guiding this trial from Day 1. There is no other explanation. And it was God who, through the Holy Spirit, worked in the hearts of those jurors who refused to vote for death."[14]

In 2006, Zacarias Moussaoui, prior to being sentenced for being a co-conspirator in the September 11 attacks, said in allocution, "You have branded me as a terrorist or a criminal or whatever. Look at yourselves. I fight for my belief. As long as you don't hear, America, you will feel. God curse America. God save Osama bin Laden. You will never get him."[15]

In 2009,

In 2009, Bernie Madoff, stated in his plea allocution for the Madoff investment scandal, "When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme. However, this proved difficult, and ultimately impossible, and as the years went by I realized that my arrest and this day would inevitably come."[16]

In 2012, Allen Stanford gave a 40-minute allocution in which he denied that he had defrauded investors, stated that he "was not a thief" and that it was the government's "Gestapo tactics" and insistence on making him a "scapegoat" for the "worldwide economic collapse" that "destroyed a business that had real value." He stated that he "worked tirelessly and honestly" for thirty years building a "world class financial services global company," and that his bank was no different than "the big banks whose CEOs and chairmen sit on the board of directors of the Federal Reserve." He suggested he had been singled out for prosecution because of his lack of political connections. He concluded by saying he was "at peace" with the way he "conducted [him]self in business."

In 2012, Naser Jason Abdo stated in allocution, before being sentenced for collecting bomb-making materials to carry out what he told authorities would be a massive attack on a Texas restaurant full of Fort Hood troops, that he lived in Nidal Hasan's shadow despite "efforts to outdo him" and that he would continue his jihad "until the day the dead are called to account for their deeds." He also said, "I do not ask the court to give me mercy, for Allah is the one that gives me mercy."[17]

In 2013, Bradley Manning stated in allocution, before being sentenced for violations of the Espionage Act and other offenses, after disclosing to WikiLeaks nearly three-quarters of a million classified or unclassified but sensitive military and diplomatic documents, "I am sorry for unintended consequence of my actions. When I made these decisions, I believed I was going to help people, not hurt people".[18]

In 2015, Dzhokhar Tsarnaev stated in allocution, before being sentenced for the Boston Marathon bombing, "I am sorry for the lives that I've taken, for the suffering that I've caused you, for the damage that I've done."[19]

Specific jurisdictions

Australia

In Australia the term allocutus is used by the Clerk of Arraigns or another formal associate of the Court. It is generally phrased as, "Prisoner at the Bar, you have been found Guilty by a jury of your peers of the offense of XYZ. Do you have anything to say as to why the sentence of this Court should not now be passed upon you?" The defense counsel will then make a plea in mitigation (also called submissions on penalty) in an attempt to mitigate the relative seriousness of the offense and heavily refer to and rely upon the defendant's previous good character and good works (if any).

In Australia, the right to make a plea in mitigation is absolute. If a judge or magistrate were to refuse to hear such a plea, or obviously fail to properly consider it, then the sentence would, without doubt, be overturned on appeal.

United States

In most United States jurisdictions, defendants are allowed the opportunity to allocute—that is, to explain themselves—before a sentence is passed. Some jurisdictions hold this as an absolute right, and, in its absence, a sentence (but not the conviction) may potentially be overturned, with the result that a new sentencing hearing must be held. In the federal system, Federal Rule of Criminal Procedure 32(i)(4) provides that the court must "address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence."[20] A denial of allocution is per se prejudicial and requires a remand without an investigation of prejudice.[21]

The Federal Public Defender recommends that defendants speak in terms of how a lenient sentence will be sufficient, but not greater than necessary, to comply with the statutory directives set forth in .[22]

See also

References

  1. ^
  2. ^
  3. ^
  4. ^
  5. ^
  6. ^ http://www.sparrowmedia.net/2013/11/jeremy-hammond-sentence/
  7. ^ http://www.dailydot.com/politics/barrett-brown-sentencing-allocution/
  8. ^
  9. ^
  10. ^ http://law.justia.com/cases/oregon/supreme-court/1988/306-or-91.html
  11. ^ http://law2.umkc.edu/faculty/projects/ftrials/peltier/peltierstatement.html
  12. ^ http://www.outpost-of-freedom.com/mcveigh/okc0814mv.htm
  13. ^ http://articles.latimes.com/1998/may/05/news/mn-46440
  14. ^ http://www.nytimes.com/2004/08/10/us/apologetic-nichols-is-sentenced-to-life-for-oklahoma-bombing.html
  15. ^ http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1517548/Moussaoui-told-You-will-spend-life-in-a-supermax-prison.-You-havent-won.html
  16. ^ http://blogs.wsj.com/law/2009/03/12/madoff-speaks-the-plea-allocution/
  17. ^ http://www.timesnews.net/article/9050263/awol-soldier-gets-life-term-for-fort-hood-plot
  18. ^ http://www.theguardian.com/world/2013/aug/14/bradley-manning-sorry-leaks-hurt-united-states
  19. ^ http://www.nbcnews.com/storyline/boston-bombing-trial/boston-marathon-bomber-dzhokhar-tsarnaev-addresses-victims-n381196
  20. ^ http://www.law.cornell.edu/rules/frcrmp/Rule32.htm
  21. ^ United States v. Torres-Palma, 290 F.3d 1244 (10th Cir. 2002).
  22. ^ http://www.fd.org/pdf_lib/allocution%20pleading.pdf
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