Lessons in Allocution and Acquitted Conduct

Apparently yesterday was sentencing hell day at Simple Justice.

First up, Scott reminds us of the case of Antwuan Ball, Joseph Jones, and Desmond Thurston who were accused of engaging in a massive drug dealing conspiracy. The case went to a jury trial, and they beat all of the conspiracy charges. The jury only found them guilty of some relatively small-time drug dealing.

When it came time for sentencing, however, the prosecutor argued that they should receive harsh sentences for the crimes they had been convicted of because they committed those crimes as part of a massive drug-dealing conspiracy, even though they had been acquitted of those charges.

This process of sentencing on acquitted conduct turns out to be a pretty common practice. I’m very shaky on the legal reasoning, but I gather the basic principle is that a convicted person can only be sentenced for crimes he’s found guilty of committing, but once he’s convicted, the judge has broad latitude to mete out any sentence up to the maximum spelled out in the criminal code, and in making his sentencing decision, he can take into account factors that have not been proven to the jury. I can’t even pretend to understand the details.

What I do understand, however, is that this is bullshit.

One of the things I’ve learned from my amateur interest in economics is that it is more useful to judge policies by their results, fully accounted for, than by their intent or the mechanism used to enact them. Thus, a legislature that passes price caps on gasoline may intend to make driving more affordable for motorists, but when gas station owners stop selling gas because they cannot do so profitably, the result is going to be a gasoline shortage. The price cap mechanism and the legislature’s intent to ease the life of motorists may be well-intentioned and competently implemented, but any evaluation of the effectiveness of the price cap policy should include the fact that it makes it harder for motorists to fuel their cars.

Most of us think that the verdict in a jury trial is pretty important: You can’t be sent to jail for charges they can’t make stick, right? But in a case like this, where the judge can take into account everything the defendant is accused of (even if he’s acquitted of those crimes by the jury) the prosecution can obtain a hefty sentence — just as if they had succeeded at getting the jury to convict on many charges — as long as they can prove at least one of their accusations and then convince a judge to choose a sentence at the high end of the range based on all the remaining accusations, even if the jury was not convinced. Thus prosecutors can increase a defendant’s sentence (on average) by lodging many accusations, even if few of them can be proven to a jury.

In other words, if we look at the sentencing results produced by the policy of sentencing on acquitted conduct, we can see that the ability of the jury to influence the defendant’s sentence is being diminished by this policy. This is pretty disturbing in a country that is supposed to guarantee a right to a trial by a jury. How real is that right if the jury has so little control over the resulting sentence?

This whole idea angered Jim Caron, a former economist for the U.S. Department of Agriculture, who also happened to be one of the jurors that acquitted Antwuan Ball of so many charges. When he heard about the prosecution’s request, he wrote a scathing letter to the judge. I can’t find a copy of the whole letter, but here’s an excerpt:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.

This story does not have a happy ending for the defendants. The prosecutors didn’t get quite the sentence they wanted, but the defendants still got tough sentences which were just upheld by the D.C. Circuit Court of Appeals a couple of days ago. Scott has more explanation and outrage.

Scott also posts about an Alabama Law Review article that reveals some disturbing (although not particularly surprising) things about how federal judges react to defendants’ allocution, which is basically their last chance to say something to the court prior to sentencing. I didn’t read the article, but Scott’s summary starts with some hope:

What this suggests isn’t that judges aren’t open to being influenced by allocution, but that the defendant’s statement (as well as defense counsel’s argument) do not sufficiently alter the calculus.  In other words, the opportunity may be there, but it’s either not being used very well or, more likely, there isn’t much that can be said that will change the judge’s views.

But significantly, when allocution does affect the sentence, it serves to lower the sentence, mostly within the guideline range, but closely followed by a below guidelines sentence.  The message here is that it is definitely worthwhile to put in the effort, and get it right.

Unfortunately, that proves to be difficult:

The problem, as is made clear in what follows, is that every judge has an approach that they think is perfect, and they differ markedly.

In their open-ended responses, some judges commented on the value of hearing defendants’ plans for the future, with one judge noting, “Some suggestion that the defendant has a concrete game plan for turning his life around would be helpful.” Many judges commented on the value of hearing the defendant reflect on his or her victims. But as one judge observed, defendants should “resist the powerful urge to whine and blame others.” Also, although defendants might think it wise to ask the court for forgiveness, at least for one judge, it is actually better to ask for leniency instead: It is not a “judge[’]s role to grant forgiveness. Asking for leniency and providing reasons why [a] certain sentence is appropriate works much better.” As this semantic difference demonstrates, defendants must forever be on their toes, navigating the bear-filled woods of each sentencing judge’s preferences—and defense counsel should be their guide.

What struck me about the specific advice is that many judges appear rather petty and trivial in what matters, reflecting a remarkable lack of understanding about the people whose lives are in their hands. Silly aspects, such as semantics, matter greatly to them, as they apparently are unaware that most defendants didn’t go to Harvard Law School and were lucky to have graduated from high school.  Yet, they expect such finely honed allocutions to reflect levels of mitigated speech, delivered with precision and yet sincerity, to appeal to their prep school sensibilities.

One of the the judges in the study advises that lawyers “Don’t let them read these long, prison-written letters. They tend to become maudlin, self-indulgent, and annoying . . . . Some defendants get carried away and start to whine that it wasn’t their fault, etc. That hurts any good that the attorney may have done.”

Scott’s response is moving:

Every lawyer knows the “long, prison-written letters,” put together with the best advice of their jail-house sentencing mavens, which is likely the longest thing they’ve ever written in their lives. They can be enormously proud of their speech, and desperate to deliver it.  They may swear it’s sincere, and demand their right to read it to the judge.  We may try desperately to explain that it’s not as effective as they think it is, to no avail. They want to be sincere, to be real, but it’s not the same sincere and real that judges want to hear.

That’s because, as the paper notes:

After preparation, defendants must come to court and deliver the allocution in a style that connects with the presiding judge. Overwhelmingly, judges in the survey indicated that they want defendants to show genuine remorse and sincerity. One judge bluntly recommended to defense counsel, “If your client cannot be sincere, and that is frequently the case, tell them to shut up.”

The problem with that idea, as the study paper points out, is that judges aren’t very good at detecting sincerity.

In fact, from what I’ve read elsewhere, I think it is safe to say that there is no such thing as a general human ability to detect sincerity. Study after study has shown that when we do correctly identify that someone is lying to us, it is not because of their demeanor, or their body language, or the tone of their voice. We detect their lies primarily through analysis of their statements and our knowledge of the subject matter. We look for internal inconsistencies within their story, we check their statements against facts we can verify, we compare their story to similar stories that we know the truth or falsity of, and we try to nudge them off their story to see if it changes.

Obviously, if the defendant’s allocution conflicts with his earlier testimony, or with other trustworthy evidence from the trial, a judge could conclude that he’s lying. But how can the judge tell if he’s sorry? How can the judge tell if he really wants to be a better person? How can the judge tell what’s in his heart?

Judges do have a lot of experience hearing allocutions, but I don’t think they get too much feedback. If they disbelieve the sincerity of a defendant’s remorse and sentence him to longer than he deserves, how will they ever know if they made a mistake? And if they don’t find out about their mistakes, how will they learn?

Frankly, I’ve always been a little horrified at the idea of “taking responsibility” and related concepts in sentencing. It seems like some kind of Soviet show trial, where the defendant is found guilty and then coerced into confessing his crimes. Because that’s what it is when you threaten to give somebody a longer sentence if they refuse to admit guilt: A coerced confession.

As Scott points out, this leaves defendants who believe they are innocent with a difficult choice:

The most notable, and glaring, omission in this article is what a defendant can do if he maintains his innocence through sentence.  This may suggest that no federal judge believes that any defendant being sentenced is innocent, or that they just don’t want to deal with difficult situations.

Given that they clearly want sincere expressions of remorse, it presents a dilemma for the defendant who maintains that he was wrongly convicted, which means he is unable to gain the advantage of a reduced sentence based on a sincere expression of remorse because he isn’t guilty, or he must give up his position of innocence to feign remorse to appeal to the judge.

Even with defendants who are factually guilty, this approach penalizes people who aren’t well educated or good at explaining things or used to speaking to judges. It’s hard to see what any of those things have to do with how much prison time is necessary, but apparently that’s how the system works.

On the other hand, this is also a system that rewards those who are slick and well-spoken and well-prepared by their attorneys. It rewards those who can acknowledge their bad acts and then look the judge in the eye at just the right point and, with just a hint of real tears, say they’re sorry and they’ve learned their lesson and with God’s help they will do better. It rewards those who are good at figuring out what other people want to hear and then saying it convincingly and with apparent sincerely. It rewards, among others, psychopaths.

Somehow that doesn’t seem like a very good way to fight crime.

7 responses to “Lessons in Allocution and Acquitted Conduct”

  1. Bill

    Key point: Used to speaking with judges. A few of these exalted bench warmers are even-handed, temperate people. That’s the minority. The ones I’ve met are egotistical, self-important and more than a little vindictive. Unless the defendant is holding the negatives from last year’s Christmas party, he’s just wasting his breath and pissing off Hizhoner, whose little mind is already made up.

    And yeah, the system does favor psychopaths, sociopaths and politicos.

  2. RC O'Leary

    Excellent and insightful post. I hope this gets widely read. One of my favorite lines: One of the things I’ve learned from my amateur interest in economics is that it is more useful to judge policies by their results, fully accounted for, than by their intent or the mechanism used to enact them

    R

  3. Matthew J. Haiduk (@haiduklaw)

    “What I do understand, however, is that this is bullshit.” <– pretty much sums up a lot of our system. Of course, apathy on the part of the general public with respect to the bullshit sums up the rest of it.

    Hence, there will likely be more bullshit before there's less.

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