Allocution versus the Predisposition of a Judge


How many times have you appeared for a sentencing hearing and spoken eloquently about your client’s many virtues, only to have your efforts to mitigate the punishment thwarted when your client throws it in the gutter he allocutes? If you’ve suffered through this indignity, then you’ll want to read Allocution in Federal Sentencing, 65 Alabama L.R. 735 (2014), written by District Judge Mark Bennett and Professor Ira Robbins.

To write this paper, the authors surveyed district court judges and 500 of the 677 active district court judges responded. The common thread in any successful allocation is the defendant must convince the sentencing judge they are genuinely remorseful and sincere. Any attempt to deflect responsibility during allocution will doom any attempt to mitigate the punishment.

Even though the purpose of allocution is to provide the defendant an opportunity to influence sentencing, 70% of the responding judges viewed it as “somewhat important,” “not very important,” or “not at all important” in reaching sentencing decisions. Instead, 85% of the judges viewed allocution as simply allowing the defendants an opportunity to participate in the proceeding. In sum, even though most of the responding judges viewed allocution as inconsequential, most did not want to eliminate this exercise because it is one of the few times the defendant gets to speak directly to the sentencing judge and it also is viewed as bringing fundamental fairness to the proceeding.

From this paper, it appears that many judges have their minds made up when they take the bench to impose sentence. Consequently, you must take the time to craft a sentencing memorandum, in advance of this hearing, so you can frame the issues you believe are relevant for consideration in imposing sentence.