United States District Court, E.D. Kentucky, Central Division
OPINION & ORDER
Gregory F. Van Tatenhove, Judge
sometimes called ‘the allocutus' is of such
ancientness that it is difficult, if not impossible, to
discover its historical origin.” Paul W. Barrett,
Allocution, 9 Mo. L. Rev. 115, 115 (1944) (citations
omitted). The Federal Rules of Criminal Procedure require a
sentencing judge to address the defendant specifically and
allow the defendant to respond, but courts offer little
discussion as to why the practice warrants such importance.
The defendant, Mr. Norman David West, has made a novel
“allocution request.” Consequently, this Court
has the opportunity to evaluate the purpose of allocution in
a modern criminal system.
West seeks permission to access a violin while in the custody
of the United States Marshal. [R. 64.] In February, Mr.
West entered a guilty plea for distribution of
methamphetamine, and his sentencing was scheduled for July
10, 2019. [R. 57.] Over the course of meetings with his
client, counsel for Mr. West determined he is a talented
violinist, and if such is true, counsel wishes to showcase
such proficiency to the Court during Mr. West's
sentencing. [R. 64.]
as any musician would, Mr. West would like the opportunity to
practice prior to sentencing, and the United States Marshal
will not permit access to a violin without an Order from this
Court. Id. Necessarily, to determine whether Mr.
West should have access to a violin in prison, the Court must
first decide whether the right to allocution affords Mr. West
a right to play his violin. The Court ultimately finds the
right to allocution does not grant a defendant a right to
allocution in any manner he or she pleases. However, because
the Court is granted broad discretion at sentencing, and
because the Court is required to consider certain factors at
sentencing pursuant to 18 U.S.C. § 3553, the Court finds
it has discretion to permit allocution in manners other than
written letters or spoken words. In this specific case, the
Court will permit Mr. West to play the violin as a method for
his own allocution.
Rule 32(i)(4) gives parties and victims an opportunity to
speak prior to imposing the sentence. For the defendant, the
Court must (i) “provide the defendant's attorney an
opportunity to speak on the defendant's behalf” and
(ii) “address the defendant personally in order to
permit the defendant to speak or present any information to
mitigate the sentence.” Fed. R. Crim. Pro. 32(i)(4)(A).
However, the history of this right to speak does not give the
Court much guidance as to the modern purpose of allocution.
doctrine of allocution appears to have developed in four
seventeenth century cases: an Anonymous case,
Rex & Regina v. Geary, The King v.
Speke, and Rex v. Royce. Paul W. Barrett,
Allocution, 9 Mo. L. Rev. 115, 121 (1944). At that
time, the court had no discretion as to the punishment for a
defendant's crime, and the punishment for felonies other
than petty larceny and mayhem was death. Id. at
119-23. Nor did the courts afford a defendant the right to
counsel or the ability to speak on his or her behalf during
trial. Green v. United States, 365 U.S. 301, 304
(1961). During allocution, a defendant was permitted to raise
several defenses, such as pardon, pregnancy, insanity,
misidentification, or benefit of the clergy. Kimberly A.
Thomas, Beyond Mitigation: Towards a Theory of
Allocution, 75 Fordham L. Rev. 2641, 2646 (2007). Quite
bluntly, allocution permitted a defendant to explain why he
or she should not be executed for the crime of conviction.
Barrett, supra, at 115. As early as 1689, English
courts began to require reversal of a sentence if the trial
judge did not afford a defendant opportunity to speak.
Green v. United States, 365 U.S. 301, 304 (1961)
(citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep.,
no right to allocution explicitly exists in the United States
Constitution, United States v. Richardson, 906 F.3d
417 (2018), the Federal Rules of Criminal Procedure
incorporated the requirement for a judge to specifically
address the defendant. Green, 365 U.S. at 304. But
though legislative history makes clear the drafters intended
the defendant to be afforded this opportunity, it makes
little reference as to what purpose allocution
serves in a modern judicial system. Defendants are now
permitted to testify at trial, and the Constitution
guarantees a right to counsel. U.S. Const. amend. VI. Yet,
though defendants no longer offer reasons to avoid execution,
Rule 32 still requires the sentencing judge “address
the defendant personally in order to permit the defendant to
speak or present any information to mitigate the
sentence.” Fed. R. Crim. Pro. 32(i)(4)(A).
now, however, have discretion when imposing a sentence, so
long as the sentence abides by the applicable statutory
minimums and/or maximums. See, generally, United States
v. Booker, 543 U.S. 220 (2005). So, while allocution is
no longer needed to avoid a death penalty, allocution permits
a defendant to discuss relevant information a judge must
consider when imposing a sentence.
time a judge makes a decision about a sentence, he or she
considers seven different factors. 18 U.S.C. § 3553(a).
Three of those factors address the relationship between
imposing a sentence and the sentencing guidelines: the kinds
of sentences available, the kinds of sentence and sentencing
range established by the applicable guidelines promulgated by
the United States Sentencing Commission, and the need for the
sentence imposed to meet certain public policy goals of
sentencing (to reflect the seriousness of the offense, to
promote respect for the law, to provide just punishment, to
afford adequate deterrence, to protect the public from future
crimes, and to provide the defendant with needed training,
care, and/or treatment). 18 U.S.C. § 3553(a)(2)-(4). The
other factors require a judge to consider policy statements
issued by the sentencing commission, any potential for
sentence disparities among defendants with similar records,
and any need to provide victim restitution. 18 U.S.C. §
3553(a)(5)-(7). The most important factor for this
discussion, however, is the first factor listed in the
statute: the judge “shall consider the nature and
circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. §
at sentencing, attorneys for both the United States and
defendant discuss these factors and why they support the
sentence each counsel recommends. Even so, “The most
persuasive counsel may not be able to speak for a defendant
as the defendant might, with halting eloquence, speak for
himself.” Green v. United States, 365 U.S.
301, 304 (1961). Rule 32 explicitly allows a defendant to
both speak for himself or herself and “present any
information to mitigate the sentence.” Fed. R. Crim.
Pro. 32(i)(4)(A). A defendant may not be able to provide
argument as to why a certain sentence promotes respect for
the law or affords adequate deterrence from criminal
behavior. However, a defendant will know his own story, his
own history and characteristics, better than anyone else. In
these moments, some defendants offer merely an apology, some
read from lengthy letters they wrote prior to the proceeding,
some offer explanations of why they committed the offense,
some describe their lives before criminal activity, some ask
for help, some insist they will never make the same mistake
again, some outline the characteristics of themselves that
they believe will help them overcome this obstacle, and still
some choose not to speak at all. The decision not to speak
never impacts a defendant's sentence; the defendant's
counsel adequately addresses the factors upon which the Court
makes a determination. However, when a defendant speaks to
the Court during allocution, the Court must listen.
United States v. Carter, 355 F.3d 920, 926 (6th Cir.
2004). The Court considers the information provided by the
defendant when weighing the sentencing factors under 18
U.S.C. § 3553 and imposing a sentence.
language in Rule 32 provides defendants an opportunity to
speak or provide mitigating information. Prior to
the imposition of a sentence and the Court's statement of
reasons, it is impossible for a defendant to know what
information a court might consider “mitigating.”
Thus, a defendant must necessarily have some discretion on
how best to communicate characteristics she believes to be
mitigating. As with any ability to speak publicly, such
discretion is not unlimited, and a court also retains
discretion to permit or restrict the defendants' choice.
Carter, 355 F.3d 920 at 926. For example, the right
to provide mitigating information does not permit the
defendant to filibuster his sentence to remain out of prison.
See, Id. (citing United States v. Li, 115
F.3d 125, 133 (2d Cir. 1997)). Moreover, the right extends
only to providing mitigating information, therefore,
if the court considers the type of information a defendant
seeks to provide and determines the information will not, in
fact, be mitigating, a court may restrict the defendant's
ability to present that information. See Fed. R.
Crim. Pro. 32.
Rule 32 gives defendants such an opportunity, because the
Court has broad discretion and because the Court is required
to consider the factors under 18 U.S.C. § 3553, the
Court must necessarily have the flexibility to permit a
defendant to offer information above and beyond what is
considered “typical” for allocution purposes. A
trial court maintains broad discretion when sentencing a
defendant and must be permitted to consider any information
the court may find helpful during the ...