My dirty little secret: How I obscure the suffering of the defendant during allocution

Mark W. Bennett, U.S. District Court (Northern District of Iowa), and Ira P. Robbins, American University – Washington College of Law, are extraordinary thinkers, writers and researchers. Their new work, entitled Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, (March 10, 2014), is required, and I mean required, reading for any lawyer who represents a federal criminal defendant facing sentencing.

The last thing that takes place before a sentence is imposed in federal court is the defendant’s personal statement to the judge–allocution. After more than 20 years, and a 1,000 plus allocutions, I have a dirty little secret to admit.

Sometimes, when the allocution is raw with begging and bargaining and terror and fear, I will take my glasses off as I look directly into the defendant’s eyes. When I do, the defendant’s facial features becomes fuzzy and obscured and indistinct even though I appear to be focused on the face. I know that doing so is cowardly. But when I reject the plea for mercy, it helps to get me through the long nights that follow. After all, it’s all about me.


16 responses

  1. Pingback: In The Defendant’s Own Words (Update) | Simple Justice

  2. I agree with you, RGK, about Judge Bennett’s article (not that anyone asked for my endorsement). But I also want to say, that of all your many, many provocative and touching blog posts, this one has to be one the very best. It, too, should be required reading for sentencing judges.

  3. I’m reading it right now as well. Your articles always make me think about the justice system in a different way. Thank you for sharing it.

  4. ” …one *of* the very best,” I meant. Would be nice to have a self-editing function for those typos that become visible only after hitting “post.”

  5. This is why you can’t stop blogging. Little things like this really help me get good insights that allow me to better represent my clients. I’m a young attorney and I always seriously consider any cases, articles or other comments you post. I’m just saying that I’m glad you are back.

  6. OK, Now I will Tell You my Dirty Little Secret! I once had a minor traffic ticket & went to Court to Fight It! I thought I was Innocent! I had to sit in the stand next to the Judge. Then the questions starting Flying from the Lawyer. I was so nervous, All I can Remember is Crying My Eyes Out! The Judge would not look at Me while I was crying to the Judge. All I could remember is Please can Someone Help Me!! I am Innocent!!!

  7. I guess this post leaves me wondering whether the good judge has ever granted an allocutionary plea for mercy. Zero out of 1,000 times?

  8. Rather than frame your comment in an accusatory tone, and which assumes a negative answer, why not just ask the judge to tell us (if he is willing) how often, in numbers or percentages, he guesstimates that the defendant’s personal statement at sentencing has caused him to impose a lesser punishment than the one he had in mind before hearing the allocution? I’d also be interested to learn what characteristics those “successful” statements exhibited.

  9. thusblogedanderson,

    I have been moved by pleas for mercy. Not very often, but sometimes. I think (but am not sure) that what moved me in those cases was the ability of the defendant to evidence introspection.

    All the best.


  10. Judge Kopf,

    Thanks so much for your blog (and the continued blogging given your current health; on that note, all the best for a good outcome from your treatment)! I came across your blog yesterday and have enjoyed reading your perspective.

    I have follow up questions from your post. If you are inclined to respond, I am interested in your views and thoughts.

    “Sometimes, when the allocution is raw with begging and bargaining and terror and fear, I will take my glasses off as I look directly into the defendant’s eyes. When I do, the defendant’s facial features becomes fuzzy and obscured and indistinct even though I appear to be focused on the face. I know that doing so is cowardly. But when I reject the plea for mercy, it helps to get me through the long nights that follow. After all, it’s all about me.”

    I sense that the last sentence was sarcastic. (If I am right, no need to reward my awesome powers of observation with any positive reinforcement). But, in reading, I wonder about the “long nights that follow” from rejecting pleas of mercy. A cold view would wonder why you would have any long nights from imposing just sentences. But, I doubt that a feeling person, even in doing their duty, would not have compassion for those who suffer the pain- no matter how well deserved- of the duty done.

    In rejecting the pleas, seems to me you must have thought that the pleas did not matter or lessen the ultimate sentence you imposed. I may be reading between the lines, but I am wondering if you are commenting on the inflexibility of sentencing guidelines, or just recognizing the fact that, whatever sentence you were inclined to adjudge that caused you to remove your glasses, the convict will suffer and lose their liberty for the term imposed.

    Are you commenting on the sentencing guidelines (and any tyranny they may visit on folks), just acknowledging that any lengthy sentence is going to cause a convict to suffer, some combination of the preceding, or have I missed your point altogether?


    Jason Perry

  11. First of all, best wishes for a speedy recovery.

    I found the article to be excellent. Let me give my perspective as a state court prosecutor. I’ve seen a wide variety of allocutions in my 16 year career. Some good, some bad, most indifferent. (Pro tip: it’s bad when the defendant is asked by the judge if there is anything he wishes to say and turns to his lawyer in a too-loud whisper, “tell that judge it’s none of his f***ing business.)

    A well thought out and executed expression of sincere remorse is very helpful for crime victims. I have seen victims who go into a sentencing hearing with a burning hatred for a defendant hear genuine remorse and have a complete turnaround. I’ve walked out of the courtroom with a crime victim asking me about how quickly the defendant will be eligible for drug treatment in prison or other expressions of concern. You would be surprised at how effective it can be.

    If I were a defense lawyer with a client who was going to make a sincere apology I would do everything I could to make sure that happened before the victim addressed the court. Also, in a indeterminate sentence/parole system (unlike in federal court) defense attorneys should remember they are getting a chance to mitigate the victim’s motivation to show up at a parole hearing and advocate for a denial of parole.

  12. Jason,

    I am not commenting on the draconian aspects of the Guidelines because any smart federal judge can drive a truck through them by alluding to (cherry picking) certain aspects of section 3553(a), the statutory sentencing goals. The Supreme Court has essentially freed district judges to do what they want.

    Rather, I am commenting upon those cases where the sentence will be god-awful long because on balance the sentencing goals require such a sentence. Example: 19-year old white gangbanger with a history of violence since age 12, who has never served hardly any time in prison despite a criminal history VI, who, near tears, cannot comprehend why he will go to the federal slammer for 15 years because of his involvement in a drug conspiracy and who, in utter panic, tells me that he has learned his lesson and desires to become a drug counselor. I feel enormous empathy for the kid. He never had a chance. But he is both dangerous and beyond redemption. In that circumstance, it helps me to take my glasses off.

    All the best.


  13. AlanO,

    You are right. There are times when a defendant’s allocution is meaningful both for the defendant and society writ large. Just not very often.

    All the best.


  14. As a criminal defense lawyer, I probably stand alone in the advice I give to my clients regarding allocution. I tell them that their job is to convince the judge of the one thing I cannot, i.e. their sincerity. I can tell the court the facts, and frankly my offers of proof of facts are likely to be accepted more readily than my client’s. I can talk about proportionality with other crimes or offenders, without sounding like the client is not taking responsibility. I can argue mitigation without diluting the defendant’s core message, i.e. that he “gets it.”

    But, what I can’t do is demonstrate that the defendant’s emotions are genuine. If I say, “Judge, he is remorseful,” that has the weight of a feather. Now, what I tell my clients is (a) a good allocution is no longer than 30 seconds, (b) a great one is no more than 20 seconds, ( c), it needs to come from the heart and (d) don’t ask for anything (because that’s my job). It is haiku. I want the judge to leave the bench thinking, I really wish the defendant said more…he really gets it…unlike every other defendant I’ve seen recently.

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