19 responses

  1. That was the practice in the S.D. of Iowas but i decided not to follow it when I was appointed in the N.D. of Iowa. I explain my reasons for te sentence in detail and just felta defendant would be more comfortable sitting. The same i true for me with their allocution – no need to stand fo me. On the few occassions where either a defendant or counsel ask I just respond whatever you or your client prefer.

  2. i do not believe the government possesses the authority to COMPEL a defendant to stand at sentencing. the failure to stand at sentencing (or at other times during court proceedings) may accurately be interpreted as demonstrating a lack of respect for the judge, the court, the prosecutor, and/or the entire criminal justice process (and the court/judge should perhaps point such out). nevertheless, criminal defendants/convicted criminals have not forfeited their First Amendment right of self-expression. so long as the individual in question is not engaging in any behavior which disrupts, impedes, or interferes with the proceedings (as opposed to merely offending somebody’s sense of decorum), i do not believe the government possesses the power to compel the individual in question to stand.

    this is not to say that choosing not to stand at the “appropriate” time during a court proceeding is an intelligent move. however, the question (as i understand it) is not whether it would be wise to stand at such times, but instead whether the government can/should COMPEL you to stand at such times. if the defendant chooses to express himself/herself by simply remaining in a seated position (and not otherwise interfere with matters in any way), i think the court/judge should respect such and just get on with things.

  3. I’ll defer to Russ’ understanding of whether a judge can compel standing, but IMNSHO, the just-convicted certainly should be required to stand. The comfort level of a miscreant in a court, within broad limits, has no importance. 1) It’s a measure of respect, lessened by the requirement and so not freely given, but a measure, nonetheless. 2) It’s an early reminder that he’s screwed up and wants punishment. 3) It’s a measure of the discipline to which he’s now subject as he enters the correctional system. 4) It’s an opportunity to take an early, if small, step toward rehab (see a thread below).

    Apart from all of that, the miscreant cannot effectively execute his First Amendment right to express his disrespect until he actively disobeys an order to stand. Until then, his behavior is indistinguishable from simple ignorance of protocol, and so the lack of requirement to stand deprives him of his freedom of expression.

    Eric Hines

  4. I’m just a young whippersnapper, but I just don’t understand how standing up ever demonstrated “respect”, whether it was at court, at a ballgame, or when a lady enters the room. It’s nice… but meaningless.

    That practice always reminded me of the protocol demands in The King and I.

    Then again, I’m told I have a rather functional view of the world. A brief missing a critical (and obvious) case, repeated motions for extensions of time, or providing nonresponsive oral answers seems far more disrespectful to me than where your head is relative to Judge’s.[1]

    [1] http://www.intronvaria.com/waihekechoral/KingAndI/KingAndIScript.html

  5. Eric, i certainly possess no unique understanding of “whether a judge can compel standing,” but was instead simply offering an opinion (which may be flat out wrong and with which, i suspect, many will disagree). i don’t necessarily disagree with your observations, if we’re talking about what SHOULD occur (for the very reasons you articulate). i guess my concern, however, is that “forced” respect for the judge/court doesn’t really promote or engender respect.

  6. I don’t make defendants stand. I figure that being sentenced is hard enough without having to engage in ceremonial acts at the same time.

  7. Russ,

    I profiled you. Most of the folks on this blog are “in the profession,” whereas I am not at all. Thus, I assumed greater knowledge on your part.

    However, my reasons for requiring the standing of a miscreant remain, I think, valid. On the specific matter of respect, I think in a setting like a law court (or when the national anthem is played, or when a lady enters the room (or approaches a dinner table), or etc), the form of respect is important regardless of the level of respect in a man’s heart.

    But I’m one of those throwbacks, for instance, who insists on walking on the outside of a sidewalk when I’m accompanying my wife, or another lady. Much to the tolerant amusement of my wife.

    J Law commented on the functionality of respect. I was in grad school when “women’s lib” was really taking off. When I moved to open the door for a lady whom I briefly dated, she berated me for the gesture and demanded to know what I would have done had she held the door for me. She was quite taken aback when I said I’d thank her for the courtesy and go on through.

    Also, my military training reminds me that even just enforcing the form of respect is valuable in inculcating and enforcing discipline.

    Respect matters, the forms of respect matter, and respect is a two-way street.

    Eric Hines

  8. Mr. Hines:

    (I apologize for not being able to thread this response correctly, but WordPress doesn’t seem to want to embed that many layers.)

    I’m curious — why do you think the “form of respect” is important? And why do you think enforcing a form of respect enforces discipline?

    The reason I ask is because I am personally one of those people where the opposite is true. If you force me to do something for which you have no justification, you will lose my respect. If you don’t take the time to think through something and explain it, you are treating me not as an equal, but as an inferior or a child subject to your whims. “Because I say so” is not an explanation. It is a command.

    If you treat me as an inferior being, you disrespect me, and I will treat you accordingly. That is, I will disrespect you covertly. Me, I would rather someone disrespect me overtly so I know when I can turn my back!

    This doesn’t mean that I don’t stand up to let a pregnant woman, or elderly gentleman sit down on the train, hold open doors for others (men and women, elderly and children alike), wait until someone is done speaking until making a comment (or refrain from making any comment), place the salad fork to the outside of the entree fork, and the soup spoon to the top of the setting, and say please, thank you, and goodbye.

    In fact, I not only read Emily Post’s Etiquette when I was in high school, I still have a well-thumbed copy somewhere around here. But it does mean that I dislike wasting time with enforced formalities whose rationale either have been lost to time or never had one to begin with.

    Why does standing in front of the judge show respect besides “because I say so”? Why does it create respect? And if the defendant does not want to stand, what does forcing him to do so say about whether you respect him as an individual and not merely a docket number?

    (Here is where I hope that RGK isn’t pro-standing. Or at least, has a good explanation for it.)

  9. Eric,

    when i read that i had been “profiled,” i almost spit my coffee out….as an old(er) white male, this may very well be the first (and maybe last) time i’ve been “profiled” (NSA activities notwithstanding). i, too, served in the military and your observations certainly resonate with me, i think we may simply disagree as to the role/benefit of compulsion in this particular context. this is not, in my opinion, an easy question (although it may appear as such initially) and it is certainly one on which reasonable people can disagree. if it were an easy question, i doubt the Judge would have wasted his (or our) time with it. cheers 🙂

  10. I’m curious — why do you think the “form of respect” is important? And why do you think enforcing a form of respect enforces discipline?

    (WordPress does a better job of threading than do lots of other blog formats, which only post comments in chronological order. Which is why I’m in the habit of quoting relevant parts of comments to which I’m responding.)

    Empirically, I’ve seen enforcement of the forms of respect support discipline. It helps generate a necessary habit, like the make-work of arranging dresser drawers in a prescribed manner in a cadet’s dresser. In the military, also, I need obedience as much as respect–the lives of men and women depend on it. As, I think, do the lives of prisoners. And the habit of discipline is useful in its own right. Aside from which, disobedience becomes a much more useful message when it’s from a position of understanding than when it’s just a kneejerk response of “I don’t feel like it”–the counter-party to “Because I said so.”

    I’ve also seen enforcement of forms lead to a development of a genuine respect as the individual sees the effects of the behavior from observing the form. Not always, certainly, but a not insignificant number of times.

    None of this obviates the usefulness of explaining the whys (unless time was of the essence, I always was happy to explain my instructions (I actually gave a direct order about three times in my military career) or to answer questions about why); understanding helps future behavior–or informed disobediences.

    As for the just convicted, I frankly don’t give a rat’s patootie about his respect, I’m more interested in the other reasons I offered for requiring standing in a court room. A command is as appropriate here as it is in the military.

    This doesn’t mean that I don’t stand up….

    At the risk of over-responding, no one suggested otherwise. We were discussing the utility of demanding forms in a court room. Incidentally, there are other forms of respect required in a court room; why should requiring a miscreant to stand during sentencing be handled any differently?

    Eric Hines

  11. Mr. Hines:

    (Ok, I’m going to try manually citing. I wish I could edit comments and have a WYSIWYG editor!)

    It helps generate a necessary habit, like the make-work of arranging dresser drawers in a prescribed manner in a cadet’s dresser. In the military, also, I need obedience as much as respect–the lives of men and women depend on it.

    Perhaps it’s the difference of our backgrounds then. In academia and business, “make-work” is the biggest waste of my time, which is the most disrespectful thing you can do to me. For example, there are countless times when someone has asked for a report rushed by some date, but they never read it. Or if they did, they didn’t get around to it until three weeks later.

    I have enough skill, experience, habit, and discipline to do things on a timely basis. I have never blown a deadline without sufficient reason and warning, and permission. Making scut work for me is disrespectful of me because it shows that a) you didn’t bother to find out whether I was any good at it or was disciplined; and b) you made my life difficult for no reason other than because you had the power to do so. You disciplined me for something I did not do. That is, as they say, “arbitrary and capricious”.

    And the habit of discipline is useful in its own right.

    Why? As long as someone is disciplined where it affects other people, why does someone need a habit of discipline in things that affect no one and nothing else?

    Let me give you an example. My wife is a physician. She is absolutely scrupulous when it comes to her patients, to the point of working many more hours than necessary, but I would hardly call her disciplined when it comes to dishes in the sink, leaving the lights on, napping on the couch. If she had to be disciplined at home as well as work, I think she would have a mental breakdown.

    Incidentally, there are other forms of respect required in a court room; why should requiring a miscreant to stand during sentencing be handled any differently?

    An example. My judge requires there to be absolute silence when a verdict is announced. Why? Because the jury should not feel guilty or threatened by civilians in the gallery. Why? The jury is impartial and should not feel be or feel bad about doing their duty. Also, they did not volunteer. Negatively impacting a jury is bad for the system because jurors will be incentivized to try to be dismissed for cause in the future, or to come to an arbitrary verdict.

    Another example. One time when an attorney was before my judge on a rule to show cause, he never stood up to respond, he slouched, rolled his eyes, and sighed deeply. My judge didn’t even blink. The moment the attorney started obviously lying though, was the moment the judge held him in contempt. Why? The court is, first and foremost, a place for fact-finding. Permitting attorneys to lie in court incentivizes them to continue lying.

    As for the just convicted, I frankly don’t give a rat’s patootie about his respect, I’m more interested in the other reasons I offered for requiring standing in a court room.

    I think that’s where we differ, then. I just don’t see where a defendant is being sentenced to be forced to stand serves any purpose. Twenty minutes of standing while being told he did something wrong is like being chastised as a child. It doesn’t make him disciplined and doesn’t make him obedient in the future — just angry.

  12. Perhaps it’s the difference of our backgrounds then. In academia and business, “make-work” is the biggest waste of my time….

    Absolutely, academia and business are different environments with different imperatives and trappings for respect. But a court room is neither of those.

    My wife is…absolutely scrupulous when it comes to her patients….

    Sounds like a habit of discipline to me. You may be conflating a demand for discipline in an area with a demand for discipline in everything. I’ve made no such demand.

    As for the miscreant, again, I don’t care about his sensibilities. More, he’s about to start leading a pretty regimented life. He can start that in the court room. The forms of respect can be applied in all court room activities.

    Eric Hines

  13. On second thought, I should have just gone with the stock answer you learn in law school — which may have been Judge Kopf’s original intent.

    “It depends.”

  14. More, he’s about to start leading a pretty regimented life. He can start that in the court room. The forms of respect can be applied in all court room activities.

    It’s funny you say that. For the great majority of defendants in this courtroom, it isn’t their first time at the rodeo. They have already learned to stand when the big guys with guns and batons are glaring at him, but will also gladly shove a shiv in your kidneys when you’re in the grocery store parking lot at night. That isn’t respect to me.

  15. It seems to me that the Defendant should stand, but should not necessarily be compelled to do so. I guess my question to the judges here is: is there any possible benefit for the Defendant?

  16. The custom of standing when one is being addressed by someone with power over them is an ancient sign of respect for the speaker and for the office that s/he represents. The defendant who rises to his feet without prodding is showing that respect personally.

    Once you start forcing the defendant to stand, the gesture loses it’s meaning, and you unfairly place those who actually respect the court on the same level with those who only show false respect in hopes of getting on the judge’s good side. At this point it’s become just a hollow theater performance.

  17. Pingback: Kopf’s answer to a simple question « Hercules and the umpire.

  18. Not a lawyer but I think that when being sentenced you ought to be allowed to do just about what ever you want to — except leave!

%d bloggers like this: