At sentencing, defendants are expected to express remorse for their crimes. Indeed, the defendant who fails to impress the judge with the sincerity of his contrition is apt to face a longer sentence on that basis. But what if the defendant chooses to say nothing at all at sentencing? On the one hand, a judge might infer a lack of remorse from the defendant’s silence. But, on the other, there seems some tension between penalizing a defendant’s failure to speak and the Fifth Amendment privilege against self-incrimination.
The Seventh Circuit addressed this tension earlier today in United States v. Keskes (No. 12-1127) (Tinder, J.). Convicted of mail fraud, Keskes apparently declined the opportunity to allocute at his sentencing. The district judge then made note of this in finding a lack of remorse and increasing Keskes’ sentence on that basis. On appeal, Keskes argued that the sentence violated his right to remain silent. The Seventh Circuit, however, affirmed.