Judge Mark Bennett (N.D. Iowa) has a fascinating essay on allocution in a recent issue of The Champion. There’s a lot of very practical and pointed advice here for defense counsel, and I have no doubt it will have real value to many lawyers — especially those who happen to practice in front of Judge Bennett. However, I find myself mildly troubled by some of the remarks.
Bennett makes clear that allocution really matters to him — defendants can help or hurt themselves a lot at sentencing by what they say and how they say it. And he makes it equally clear that lawyering can have a big impact of the quality of the allocution. This works out well, no doubt, for defendants who have experienced, capable counsel — particularly if it’s a lawyer who has appeared before Bennett before — but what about other defendants who aren’t so fortunate?
What Bennett indicates he is looking for may sound like commonsense to veteran judges and lawyers, but I’m not sure it will be so obvious to others.
For instance, I can understand why, to Bennett’s ears, it is so off-putting for a defendant to say things like “if you give me probation, you have my personal guarantee I will never come back to your court” or “if you give me probation, I will talk to high school students about drugs” — to him, these are clichés he has heard time and again — but there are reasons why these sorts of statements are repeated so often. Defendants understand that the allocution is their opportunity to commit to following a more positive path in the future — that much does seem commonsensical enough — but it’s hard to express that commitment in ways that don’t come across as clichés.
Better than words are actions. Ideally, by sentencing, the defendant will have undertaken some concrete steps that can give life to what would otherwise appear empty words at the allocution — voluntary restitution, the initiation of some rehabilitative program, new employment, or the like. But the ability to accomplish such positive steps may depend on circumstances beyond the defendant’s immediate control, such as the availability of financial resources and a good social support network. Absent a presentencing record of positive steps, or a savvy lawyer who knows the clichés to avoid, even those defendants with a heartfelt desire to do better may have a very hard time convincing the judge of that.
Of course, putting a premium on a defendant’s oral performance before the sentencing judge likely disdvantages certain categories of defendants who are already disadvantaged in multiple ways in the criminal-justice system: the poorly educated, the mentally retarded, the mentally ill, the young, and members of racial and ethnic minority groups.
To his credit, Bennett seems well aware of these risks. I think he would say that sincerity is the great equalizer:
Sincerity — or lack of it — is usually easy to spot. I don’t worry too much about being conned. If I did, I would likely not assign much weight to allocutions in my sentencing deliberations. However, I like to give defendants the benefit of the doubt on sincerity. It is worth it to me to be conned on a rare occasion to be sure that truly sincere defendants are not lumped in with the insincere ones. Perhaps I am fooling myself, but I think that faking sincerity is no easy task. While it is not impossible to gauge, sincerity is harder to sense when a defendant is reading verbatim from a script, often speaking too fast and not making eye contact. I think defendants should be encouraged to speak from their hearts rather than from their written statement whenever possible. And it is not just a matter of eloquence or sophistication. I have heard extraordinarily sincere allocutions from folks who could not read or write and infuriatingly insincere nonsense from sophisticated, highly educated white collar defendants.
I think that Bennett may indeed be “fooling himself” when he suggests that sincerity is “easy to spot.” I have an argument precisely to this effect in my article “Appellate Review of Sentences: Reconsidering Deference,” 51 Wm. & Mary L. Rev. 2123, 2141-49 (2010).
Bennett says that what he is looking for in an 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.
His list overlaps to a remarkable extent with that the philosopher Nick Smith calls the “elements of a categorical apology.” (I”ve been reading Smith’s book on apologies, I Was Wrong.) A defendant who delivers what Bennett seeks is, I think, doing something good and useful. But I’m much less certain to what extent, if any at all, a defendant’s sentence should depend on (a) the defendant’s ability to understand and articulate this sort of apology, and (b) the judge’s ability to accurately determine when this sort of apology has been sincerely made.
Bennett’s article is “Heartstrings or Heartburn: A Federal Judge’s Musings on Defendants’ Right and Rite of Allocution,” The Champion, March 2011, at 26.