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April 12, 2006

Interesting little opinion on the right to allocute

I just noticed an interesting little opinion on the right to allocute at sentencing from the Fifth Circuit.  In US v. Magwood, No. 05-20352 (5th Cir. Apr. 10, 2006) (available here), a panel holds that the defendant's right to allocute was violated.  However, the panel goes on to find that there was "no miscarriage of justice" and thus, reviewing for plain error, the court declines "to exercise our discretion to correct the district court's error."

April 12, 2006 at 03:44 PM | Permalink

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Comments

The right to allocute is certainly more valuable in most state courts than in a federal court that is following the guidelines. But, the decision is still troubling, because it is so easy to remedy on remand. You don't need a retrial, just a one or two hour hearing before the same judge. The judge could then write a very brief supplemntary opinion on the sentencing issue stating on the record that he heard and considered the allocution, and that he was or was not moved by it.

Posted by: ohwilleke | Apr 12, 2006 3:51:56 PM

Until a few years ago, when the rule was changed by the en banc court, the Fifth Circuit treated a denial of allocution as reversible error per se, even on plain error review. Under that rule, I won a reversal of a life sentence, where we had no other issues. Nothing in the record suggested the judge might do anything different on remand. But he did. With good counseling, the defendant was able at resentencing to make a good and sincere allocution, and the sentence went from life to 25 years. Still a very long sentence, but of course it was a very bad case, and the difference is one of no hope versus something to live for. Allocution is a true common law right, which long pre-dates the Bill of Rights. It honors the defendant's fundamental humanity, and requires the judge to look at and hear the voice of the person about to be punished. It's a shame the Fifth Circuit has changed its approach.

Posted by: Peter G | Apr 12, 2006 10:13:29 PM

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