Kopf’s answer to a simple question

Earlier today, I posted a simple question.  Should a defendant be required to stand when the judge hands down the sentence?  The post has now generated a fair number of comments, and they are very good ones.  Admitting that there is no correct view, I want to provide my own answer now.  I hope that his post might also generate a good discussion because this issue, in my opinion, is more important than you might think.

Kopf’s take:

  1. Whenever a judge enacts a rule or a procedure the judge ought to ask whether there is a good reason for the rule or procedure. Otherwise, the law of unintended consequences comes into play.
  2. I did a fairly detailed search of the Internet, including Google Scholar, and Westlaw, including the “all-feds” and “law review” data bases.  I failed to find any analysis of why a judge should require a defendant to stand when hearing the sentence.
  3. Watch this clip of an 18-year-old high school boy (Tony Farmer, a highly recruited basketball player) receiving a prison sentence while standing.  Then, you will see why I don’t require defendants to stand when hearing what is frequently a helluva of a long and life altering sentence.


13 responses

  1. Judge,

    I’ll play. It was easy for me to argue the other side. This one is harder. I’m going to fail the ideological Turing test. (http://en.wikipedia.org/wiki/Ideological_Turing_Test).

    Standing at the podium puts the defendant in the most direct, closest position to the judge. The judge should be able to look the defendant in the eye, and, without flinching or making excuses for the sentencing guidelines, sentence the defendant. If the judge has to blame Congress–a faceless entity who devises sentences without having to do what the judge does in executing them–then it is a sign that the sentence is fundamentally unjust.

    If the defendant is sitting at defense counsel’s table, which is frequently off to the side (and facing the jury box) it’s easy for the judge to ignore him while reading from Probation’s sentencing recommendations.

    As for the defendant: Unless he or she is going to self-report later, the defendant will be going straight into custody. What defendant Farmer experienced while standing is actually a good thing in that makes the harsh reality of the sentence hit sooner, causing him to more quickly acclimatize to the conditions of his confinement. Defendants must learn to follow rules. This is an introduction (or a reminder) about how to play nicely with others.


    Then again, I always thought that the allocution while facing the judge (and not facing the gallery, where, if ever, the victim or victim’s family would be) was kind of odd. Why not sit in the witness box?

    I also did a reasonable search through the secondary sources database. I figured there must be *some* law student in the history of the US who has written about this. Guess not.

  2. Judge,
    I am only a law student, but I spent some time as a teacher, and the reasons for standing and looking the judge in the eye seem like they would be very similar to teaching techniques for disciplining children.

    When a child has done something wrong, (good) teachers tell the student to stand up straight and look the teacher in the eye. Sometimes, the teacher does not even need to speak. Making eye contact is a highly confrontational form of body language that makes us very uncomfortable. When we are forced to stand, we are much more likely to make eye contact, because the position is not as comfortable. The person forcing the other to make eye contact is very dominant, and the person being forced wants to avoid the confrontation. Outside of the courtroom, such eye contact is often the step right before a fight breaks out. It is a very confrontational behavior. It is used in the military by drill sergeants to enforce discipline and encourage recruits to not react so strongly to such confrontational gestures.

    Like a teacher, the judge might have different goals when sentencing a defendant. If the judge’s goal is to make the defendant regret his actions and feel remorse, than standing and making eye contact during the most confrontational part of the trial is appropriate. A good example might be a case where the defendant does not seem to understand the scope of their wrongdoing. If, however, the judge’s goal is to create a just sentence with the minimum of feelings involved, or does not wish to give the defendant the attention they crave, than perhaps sitting without eye contact is better. It is a less confrontational situation.

    As the judge might choose whether to have a defendant sit or stand depending on a number of factors, I don’t think there should be a hard and fast rule that defendants must always stand. It might force unfortunate defendants to undergo stress, such as the young man in the video you linked.

  3. By training, I am required to point out the absurd consequences of following rules too far. Would this mean that a person in a wheelchair could not be sentenced? Or suffer the indignity of having to be held up like a withered scarecrow before learning his fate? I am reliably informed that Warren Urbom in the Wounded Knee trial allowed the Native American witnesses to take the oath with their hand on the peace pipe, not the Bible. I am also reliably informed that the defendants would not stand when Judge Urbom entered the courtroom, except on the last day they stood as a gesture of how deeply they appreciated his fair conduct of the trial. There’s a big difference between having power over a person and earning his respect. Best, Pat.

  4. Pat,

    Your recollection of Judge Urbom’s handling of the Wounded Knee trials is correct. His book recounts that in vivid detail. Warren is a legendary trial judge and one of the most decent human beings on the planet.

    I purposefully choose “standing while sentencing” to avoid Warren’s example because Warren seems not to have addressed that issue. Incidentally, for a more recent case about standing when the judge or jury enters, where the judge held a Somali woman in contempt and one contempt citation was affirmed on appeal see here. The trial judge in that case is a highly respected judge as well (and a person of color).

    All the best.


  5. Dear Southern Law Student,

    You are going to make a great lawyer. Your insights, from your days as a teacher, strike me as very persuasive. Thanks so much.


  6. Dear J. Law,

    The problem with the Turing test is that all arguments are not created equal. So a “skew” on the Turing test might not reveal a damn thing.

    Your reference to the Turing test, sparked a personal memory. A long time ago when I was considering whether to become a political scientist, I did an experiment where I posed First Amendment problems based upon what the Supreme Court held in particular cases to a large group of lay people and I asked them to tell me the proper outcome. I then asked the respondents to identify their political affiliation. I wanted to know if one’s self-identification was predictive of how the respondent would “judge” a First Amendment issue. It turned out that there was no (or at least a very weak) correlation. (Incidentally, that was back in the day when computers were as big as refrigerators.)

    That aside, you did a great job of making the other side’s case. All the best.


  7. Not to go off topic, but do any courts have people take the oath when their hand on the Bible anymore, even if the person wants to? I’ve only ever seen it in the “raise your right hand” style.

  8. Jay,

    We don’t use a bible. Indeed, when I personally administer the oath I try to use the “under penalty of perjury” language rather than “so help you God.” Federal law permits both oaths and affirmations.

    All the best.


  9. Right; the courtroom deputy I’m most familiar with always just said “do you swear or affirm,” and the person could mentally decide which one it was, I suppose.

  10. My wife reminded me of another reason for requiring a miscreant to stand (and face the judge) when receiving his sentence. All gangs have forms of respect which must be honored, regardless of any actual respect that might or might not be felt–with very severe consequences for not following the form.

    Court rooms have their own forms of respect, and the miscreant now faces a new alpha dog. He needs to recognize that, he needs to change his manchi; standing and facing the music is a form that is useful in this regard.

    Eric Hines

  11. I have been told that one of my favorite judges, Jack Weinstein, of the EDNY, had a practice of sitting directly across from the counsel table whenever he sentenced a defendant, not at the bench. And he wore a suit, not a robe. That seems to me more respectful of the essential humanity of everyone involved in the process, and preferable to what is otherwise a power trip, creating anger and resentment. But then, what do I know, I don’t practice criminal law….

    I have also just recently discovered your blog, and thank you for your insights.

  12. Dear Richard,

    In cases where the defendant is fragile (usually mentally but sometimes both mentally and physically), I do much the same thing. For example, picture a guy, who is nearly, but not quite, mentally disabled, who robs banks while confined to a wheel chair. I sentenced such a fellow at least three different times. He was terrified of me when I took the bench wearing a robe. His excellent AFPD made the suggestion that I stand down in shirt sleeves and sit with the defendant at counsel table, and I was happy to do so.

    The foregoing said, I will never be a Judge Jack Weinstein and certainly would never compare myself to him. He is a judge for all seasons.

    All the best.


  13. Another great story I heard about Judge Weinstein was about a defense lawyer who said of his client, pre-sentencing, “give him a break, judge, he grew up in a bad neighborhood.” The judge said, “I grew up three blocks from him.”

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