In criminal procedure, allocution is a formal statement made to the court by the defendant who has been found guilty, prior to being sentenced. It is one place in the criminal process where every convicted defendant has the chance to speak, even if he pleaded guilty or waived his right to testify at his trial. The defendant may speak in mitigation or in humanization, explaining why the sentence should be lenient. This could include accepting responsibility, expressing remorse and promising not to commit similar offenses, or it could include arguing that the offense committed was not of a grievous nature that would warrant a severe sentence. Humanization is an opportunity for the court to learn details about the person to be sentenced. It is also an opportunity to set the record straight concerning any factual or legal errors. In the case of an indigent defendant who could not choose his attorney, it is an opportunity to voice disagreement with what his attorney said on his behalf.
Allocution can sometimes also be the one place in the criminal process where explicit criticism of the system that gave rise to the conviction is possible, as the defendant talks about . Incorporating into allocution the humanization stories that engage in this criticism strengthens the system imposing the sentence and gives more credibility to the punishment meted out without disrupting the traditional constraints of relevant testimony at trial or discouraging the admittedly efficient prevalence of guilty pleas.
Boylovers convicted of sex offenses can use their allocution for an apology or a political statement.
The Supreme Court of Pennsylvania has indicated that the right of allocution is of paramount importance, and it has unequivocally stated that the sentencing court has a mandatory duty to advise a defendant of his right of allocution and that a defendant who establishes a violation need not demonstrate prejudice in order to obtain relief. Specifically, "What effect the exercise of the right of allocution might have on the subjective process of sentencing can never be known with such certainty that a reviewing court can conclude there was no prejudice in its absence."
The right to personally address the court prior to sentencing is of ancient origin. Often referred to as the `ancient inquiry,' the practice originated in the English common law where, as early as 1689, any failure to permit a defendant to plead for mercy required reversal.
An apology made during allocution could theoretically heal psychic wounds, teach lessons, and reconcile damaged relationships, while also possibly getting the defendant a lighter sentence if the court believes he has already paid a cost (in pangs of conscience) for his offense and that as a remorseful person, he is less likely to commit another crime. On the other hand, judges may not be willing to grant a lighter sentence, since they may view the apology as insincere, or doubt a link between expressions of remorse and apology to a decreased need for specific deterrence of particular offenders, or be concerned about the effect on general deterrence if lighter sentences are given to remorseful offenders.
Allocution can serve a political purpose, if the defendant makes statements that could cast doubt on whether the law or the uses to which it is being put are just. Such statements could be viewed as minimizing or rationalizing his offense, but he has nothing to lose if the court does not care about his allocution or if he is already subject to a mandatory minimum sentence of life imprisonment or was going to be punished at the maximum no matter what he said. An example of such a situation might be in the sentencing guidelines already called for him to be punished at the statutory maximum.
A defense attorney rarely is in a position to adequately convey her client's defiance. Foremost is the ethical and professional tension between expressing the client's wishes and attempting to minimize the harm, in the form of incarceration, that is given to the client. The balance struck by any one lawyer often will depend on factors outside the scope of the client's wishes, such as the attorney's perception of the client's competence or impairment, the degree of harm that the client will suffer, the sentencing court's likely reaction to a defiance story, or the amount of preparation time that the lawyer can spend with the client. This dilemma assumes the client will have conveyed his desire to portray himself in this way to his lawyer and his lawyer, in turn, understands the defiance story. This assumption often will be untrue. The defense counsel may not dedicate the time or have the skills needed for the client to share this priority. Even a dedicated attorney may not understand the client's goals, perhaps because of barriers of class, race, language, or life experience. Counsel may understand, but believe her client's autonomy is violated if she expresses the client's story in her lawyerly and stilted language. Finally, the lawyer may herself believe that the client's defiance story is inappropriate or offensive, and the lawyer may act based on her own moral judgment.
- Kimberly A. Thomas (April 2007). "Beyond Mitigation: Towards a Theory of Allocution". Fordham L. Rev. 75 (2641).
- Com. v. Thomas, 553 A. 2d 918 - Pa: Supreme Court 1989
- Stephanos Bibas and Richard A. Bierschbach (October 2004). "Integrating Remorse and Apology into Criminal Procedure". Yale L.J. 114 (85).