The Seventh’s Circuit opinion last week in United States v. Noel (No. 07-2468) reveals a substantial division over how to handle violations of a defendant’s right to address the court at sentencing. As now codified in Federal Rule of Criminal Procedure 32, the Supreme Court has held that defendants must be personally invited to address the court before being sentenced; it is not enough for defense counsel to be given an opportunity to speak. I have long thought this right of allocution to be a Rorschach test of sorts, revealing fundamental disagreements in the way that criminal procedure rights are conceptualized.
According to one view — probably the most common — criminal defendants have procedural rights so to ensure the accurate sorting of the guilty from the innocent. Thus, for instance, we give defendants a right to counsel so that falsely accused defendants are able to mount a successful defense. On this view of procedural rights, though, the right to allocute appears a largely empty technicality. By the time of sentencing, the defendant’s guilt has already been established, and the selection of a sentence is not the sort of decision that has a singular right answer. It is hard to see how allocution fits the accuracy-enhancement paradigm. Perhaps defendants may occasionally use their opportunity to speak in ways that persuade an otherwise skeptical judge of their remorse, and perhaps the sentences these defendants receive are improved as a result. Even so, allocution still seems to be making a rather weak contribution to the search for “right answers” in the criminal justice system; other rights (such as the rights to counsel, to obtain exculpatory evidence in the government’s possession, to confront accusers, and to suppress coerced confessions) seem far more weighty.
On a competing view, though, the rights of criminal defendants are not exclusively (or perhaps even primarily) about accuracy-enhancement, but about showing respect for defendants’ essential human dignity. (I discussed this point of view in religious terms here.) Central to the dignitary paradigm is giving defendants the opportunity to tell their side of the story before punishing them. From this perspective, allocution is not merely a peripheral, “technical” right, but a core right — indeed, it is perhaps the most important right in our plea-bargaining-dominated system that rarely gives defendants an opportunity to tell their side of the story at trial.
It is interesting to read Noel against this backdrop of accuracy versus dignitary views of criminal procedure. Noel was convicted of possessing and producing child pornography. He appealed both his conviction and sentence. The Seventh Circuit (per Judge Kanne) affirmed, but only narrowly so. For one thing, the court indicated that a police officer improperly testified at trial that Noel’s images fit the legal definition of pornography. Although the court scolded the government for presenting this testimony, the error did not warrant reversal because Noel did not object to the testimony at trial, and the testimony did not rise to the level of plain error.
Likewise, although the court noted a nationwide debate on the propriety of the jury instruction used by the trial judge to define child pornography (the so-called Dost instruction), any problems with the instruction did not support a finding of plain error.
This brings us to the allocution issue. The trial judge solicited a statement from Noel’s attorney, but not Noel himself. Once again, the Seventh Circuit found error, but not one warranting reversal.
Because Noel failed to object in the district court, he could not win on appeal unless he showed (1) a plain error that (2) affected his substantial rights and (3) seriously affected the “fairness, integrity, or public reputation of the judicial proceedings.” And the court did find plain error that affected substantial rights. With respect to the latter element, the court relied on United States v. Luepke, 495 F.3d 443 (7th Cir. 2007), which held that the court “presume[s] prejudice when there is any possibility that the defendant would have received a lesser sentence had the district court heard from him before imposing sentence.”
But Noel lost on the third element. In finding that the error did not seriously affect the “fairness, integrity, or public reputation of the judicial proceedings,” the court relied on the following facts: the sentencing judge twice mentioned Noel’s right to allocute (even though he did not personally solicit a statement from Noel), Noel’s lawyer read a letter from him at sentencing, the letter was structured much as an allocution would be, everyone at the sentencing overlooked the error, and Noel received a sentence far below the recommended guidelines range.
Chief Judge Easterbrook wrote a concurring opinion arguing that the Luepke rule of presumed prejudice should be overturned and the burden of proving prejudice placed on the defendant. Luepke reflected a concern that defendants would have an unduly hard time showing prejudice: how could a defendant really show that he would have received a different sentence if allowed to speak? But Easterbrook did not share this concern: “[T]he reason it is hard to show injury is that violations of [Rule 32] usually are inconsequential.” In the same vein, he characterized a violation of the right to allocute as merely “technical.” His emphasis on prejudice, of course, is characteristic of the accuracy paradigm in criminal procedure. One wonders if he will be looking for an opportunity to press his desire to overturn the Luepke rule in future cases.
Judge Williams wrote a dissenting opinion with two purposes. The first was to take issue with the majority’s conclusion that the allocution error did not seriously affect the fairness of the sentencing proceeding. In particular, Judge Williams was far less impressed than the majority with the fact that defense counsel read the letter from Noel, which was not apparently written with the intention that it be presented in lieu of an in-court statement.
Judge Williams’ second purpose was to defend Luepke. In her view, “the importance of the right to allocute cannot be minimized.” She noted the contribution of allocution to the “perceived equity” of the sentencing process, and suggested that allocution implicated “core values” of sentencing. Plainly, Judge Williams has much more of the dignitary perspective on process than Chief Judge Easterbrook.
The importance she would attach to the right to allocute contributed to her conclusion that the rules of appellate review should give defendants a realistic opportunity to enforce the right. More specifically, because the burden of proving prejudice would be “almost insurmountable for defendants,” the Luepke presumption plays an important role in ensuring that the right to allocute is something more than an “unenforced honor code” for district judges.
Other new opinions in criminal cases were:
United States v. Johnson (No. 08-3541) (Kanne, J.) (affirming district court’s denial of Franks hearing and affirming sentence).
United States v. Plummer (No. 07-4031) (Rovner, J.) (affirming finding in drug case that substance involved was crack cocaine).
United States v. Zahursky (No. 08-1151) (Tinder, J.) (in child enticement case, reversing enhancement of defendant’s sentence under U.S.S.G. § 2G1.3(b)(2)(B) because defendant did not engage in prohibited sexual conduct).
United States v. Winbush (No. 08-1602) (Kanne, J.) (affirming sentence and conviction in drug trafficking case)
United States v. Meece (No. 09-1211) (Bauer, J.) (affirming conviction and sentence in felon-in-possession case).
United States v. Anderson (No. 08-2925) (Ripple, J.) (affirming conviction and sentence in telemarketing fraud case).
United States v. Garcia (No. 07-3964) (Kanne, J.) (affirming conviction and sentence in drug trafficking case).