In a recent Rule 35(b) sentencing hearing (which allows for the reduction of a previously imposed sentence), I learned of all of the positive steps that the defendant had taken while incarcerated. And if a defendant accepts the sentence as fair or even just legitimate, I suspect the defendant will pursue a more productive path during and after incarceration. Moreover, I strongly believe that if defendants perceive that they have the judge’s attention and interest, they will have a higher likelihood of accepting the sentence as one that is fair. In this regard, the colloquy helps realize the statutory requirements of federal sentencing. The defendant’s allocution and the court’s response open the door for the judge to speak directly to the defendant and, through this process, come to know his “history and characteristics” all the better. By statute, judges must consider, among other factors, the “history and characteristics” of the defendant in imposing a sentence that is “sufficient, but not greater than necessary” to comply with certain purposes set forth in the statute. Having the clearest picture of the defendant, in turn, helps us as judges to sentence more appropriately. A defendant’s allocution animates his circumstances in a way that cannot be adequately captured by the written words of the presentence investigation report provided by the probation office. The defendant is often remorseful not just for having committed the criminal acts, but also for having disappointed many people - including, for example, having failed to meet his mother’s expectations or not having served as a better role model for his children. Defendants usually articulate some degree of acceptance of responsibility for their actions and express their apologies to the judge, the government, and their family and friends. While there are instances in which a defendant is untruthful or inauthentic, I am more often than not impressed by the sincerity of the defendants’ sentencing statements. The sentencing colloquy often helps to present us with a better picture of the defendant. So why not make it count? The Sentencing Colloquy Matters For all parties, this truly is the conversation of a lifetime. Moreover, sentencing has a lasting effect - obviously for the defendant, who must live with the sentence and carry with him the last words he has heard from the judge - but also for the victims of the crime, who may be present in the courtroom for the defendants’ loved ones, who are left behind and even for the judge, who, in my experience, carries with her the weight of hundreds or even thousands of allocutions. Although the defense lawyer makes the formal argument to the court on a defendant’s behalf, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” And, importantly, defendants’ allocutions may have a real impact on the sentence imposed. Scripted or not, the sentencing colloquy almost always is the emotional focal point of a case. They present an opportunity to inject humanity into the process. While other aspects of the criminal justice system may at times seem mechanical, sentencing hearings are, at their core, deeply personal interactions. The exchange between a judge and defendant is central to the court’s role as adjudicator and as one human being sitting in judgment of another. Sentencing is a profound moment in a criminal case and in a defendant’s life. Yet we spend too little time considering why that is and how to better acknowledge the importance of these statements. At nearly every sentencing, the defendant’s own words act as a critically important humanizing reference for the judge. Those personal stories are often revealed at the sentencing hearing. Surely, this is a worthy discussion, but the focus on the quantitative aspects of sentencing can overshadow the individual stories behind the numbers. The thrust and focus of this attention have been on the statistics of sentencing and reforms, with the aim of making sentencing fairer and more consistent. In recent years, there has been increased attention on sentencing, and particularly sentencing disparities.
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