After pleading guilty, a defendant is typically offered a formal opportunity to address the court to express remorse, and explain personal circumstances that might be considered in sentencing. This is known as an allocution statement. These statements have a long and important history in the American legal system, serve a variety of functions, and, as “Teaching Legal Docs” explores here, produces an associated legal document.
The allocution statement provides an opportunity for defendants to accept responsibility, humanize themselves, and to mitigate their sentences to ensure that their punishment is appropriate for both the crime and the person who committed it.
From the court’s perspective, judges cannot simply accept a defendant’s guilty plea. They must determine that there is an “adequate factual basis to support the charge and the plea” and that the plea was “knowingly, voluntarily, and intelligently made.” Allocution statements aid in making these determinations. With this in mind, not all defendants exercise their right to submit an allocution statement directly to the court. Lawyers may submit statements on the defendant’s behalf, or statements may be waived entirely. According to a 2014 survey of federal judges, 84 percent of defendants in federal court exercise their right to allocution.
Allocution statements are sometimes also used at other times in court, outside of sentencing. For instance, judges might allow allocution at resentencing, probation, or supervised release hearings. Allocution rights appear at the state level, though they vary across jurisdictions. Likewise, the protocols for delivering the statement might vary between being written or spoken. In fact, several famous allocution statements in history were spoken, including John Brown’s statement to the court after being sentenced to death in 1859, and Susan B. Anthony’s statement to the court after being arrested for voting in 1873. Here, “Teaching Legal Docs” will focus on allocution at the federal court level, which concerns written statements. In federal court, allocution is discussed in Rule 32(i)(4) of the Federal Rules of Criminal Procedure, providing an “opportunity to speak” prior to sentencing. The court must provide not only the defendant, but also the defendant’s lawyer and the government’s lawyer, with opportunities for allocution.
Roots in English Law
Allocution rights may be traced back to 1689, when English courts recorded that, in cases in which defendants faced possible death sentences, the failure to ask defendants directly if they had anything to say prior to sentencing constituted a basis for reversal. By the 17th century, English and colonial American courts sometimes permitted and sometimes required allocution. But there was no general agreement about when allocution rights were required or how they should be exercised. After the 17th century, the practice decreased in Britain because death penalty sentences also decreased. But the practice flourished in the United States as it was not limited to capital cases.
The right of allocution appears at the federal level in the first version of the Federal Rules of Criminal Procedure, published in 1946. It has evolved slightly over time, especially following a Supreme Court ruling in 1961, Green v. United States, in which the Court ruled that it was not enough to offer the defendant’s lawyer an opportunity speak. In his opinion for the Court, Justice Felix Frankfurter described allocution as a “matter of good judicial administration,” and explained that judges should “unambiguously address themselves to the defendant,” leaving “no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.”
It might seem unusual in today’s digital age, but allocution statements almost always originate as handwritten documents, typically 1–3 pages in length. The federal rule does not specify whether the statement should be presented in writing to the court or spoken directly to the judge, but, at the federal court level, the statement is generally handwritten. This is due in part to practical reasons—the defendant may lack access to a typewriter or computer. But handwriting actually tends to reveal more about the individual. The example here showcases this, as the handwritten version exhibits penmanship, crossed out words, spacing, and lacks punctuation that was included in the typed version. Sometimes it is not practical to include a handwritten statement, if a defendant has injured his or her hand, for example. In these cases, typed statements are arranged. In either circumstance, handwritten or typed, the statement is filed in the court, with case number, parties, and date stamped or attached.
What do the statements actually say? That varies from defendant to defendant, but, typically, the defendant’s lawyer will advise the defendant what to consider or include. The lawyer might provide a list of questions for the defendant to address, such as:
- What are your best accomplishments?
- What are your best attributes?
- What are your long- or short-term goals?
- What is a just punishment for your offense and why?
- How would leniency in sentencing promote your respect for the law?
- Would you benefit from educational or vocational training? How would leniency provide you with additional training?
- How would giving you leniency protect the public from additional crimes committed by you?
In the excerpted example here, the defendant’s statement includes personal goals and reasons for self-improvement that might benefit others besides the defendant.
Do They Have Any Effect on Sentencing?
Allocution statements may or may not have an effect on sentencing, depending on the case, crime committed, or tone of the statement. While it is difficult to say with certainty, when federal judges were surveyed in 2014 they indicated that, overall, they are hesitant to lower or increase sentences based on allocution. Certain crimes, however, elicit trends in sentencing regardless of allocution. For example, judges seemed least likely to lower sentences for crimes involving child pornography, while low-level drug crimes and white-collar crimes inspired them to consider mitigating factors in sentencing.
Outside of sentencing, allocution statements serve several different purposes for the parties involved in a particular case and for society at large. They allow the court to quickly recognize the humanity of the matter before it, and provide the judge with a better understanding of the defendant. Allocution statements also benefit victims and their families, as well as the defendant’s family. They also help defendants accept responsibility for their actions, and make the defendant a meaningful part of the sentencing process. When statements are released, as Bernie Madoff’s was in 2009, they also provide the public with an opportunity to better understand the crime and the defendant and the resolution to the case.