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September 13, 2005

Ninth Circuit upholds allocution earning defendant 30 extra months

At the end of a long decision, the Ninth Circuit today in US v. Smith, No. 03-10604 (9th Cir. Sept. 13, 2005) (available here), upheld a district court's decision to increase a sentence by 30 months (from 121 months to 151 months) in response to the defendant's lengthy speech in which the defendant contested the court's jurisdiction and demanded that the court set him free.  Here is a passage from the Ninth Circuit's rejection of the defendant's complaint on appeal:

Smith argues that his First Amendment free speech and Fifth Amendment due process rights were violated because he was punished with a higher sentence for expressing his views on the district court's lack of jurisdiction.  But the district court made it clear that it was increasing the sentence based on Smith's lack of remorse, and his threat to the financial safety of the public when released.  These are legitimate sentencing factors under 18 U.S.C. ยง 3553(a), which include considering the "characteristics of the defendant" and the need for the sentence "to promote respect for the law," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant."

The district court may indicate a tentative sentence and then hear from the defendant before making a final sentencing determination.... That the district court considered Smith's lack of remorse in sentencing him is by no means a novel concept. The district court did not err in taking Smith's statement into consideration for sentencing.  The Sentencing Guidelines, in either their mandatory or advisory status, do not insulate a defendant from his or her own foolishness.

In addition to serving as a useful warning to defendants and their counsel about "foolishness" at sentencing, the decision in Smith perhaps suggests the need for a post-conviction, Miranda-type warning: "You have a right to remain silent at sentencing, anything foolish you say can and might be used against you to increase your sentence, ..." 

September 13, 2005 at 01:48 PM | Permalink


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What a non-argument! The Defendant's claim is that the increased punishment violated the First Amendment. The Court's answer is that the increased punishment was justified by 3553(a) and the Guidelines. Did I miss something? Perhaps its the unspoken assumption that these authorities can never applied unconstitutionally, since that would be, you know, disruptive.

The name of the game is processing, not deciding cases. The outcome was probably right, but I am offended by the basic lack of interest in applying the constitution when it is inconvenient to do so. This is a sound byte, not an opinion.

Posted by: R/W | Sep 14, 2005 9:44:55 AM

Allocution is a treasured right of criminal defendants, presumably on the basis that pleas for mercy help, but honestly, it isn't clear to me that allocutions should have a significant impact either way. Shouldn't the deeds done matter far, far more. (I know of at least one case in Jefferson County, Colorado some time ago, where the judge changed a concurrent to a consecutive sentence for a very serious multi-year sentence after the defendant bragged that he could serve both sentences standing on his head).

The big problem with allocution is not that it abridges any first amendment rights. It is not the place to spout off your general opinions on life. It is that it invites the system to indulge in unprincipled decision making which is deeply influenced by cultural biases of the judge and the cultural capital of the defendant, who must know what the judge wants to hear.

Posted by: ohwilleke | Sep 14, 2005 8:42:47 PM

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