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 Holmes’ Allocution At Sentencing 

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Michael Santos

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Introduction

Not many moments during a person’s journey through a federal criminal case will be as impactful as their allocution on sentencing day. 

Most of what we know about sentencing allocution we have learned directly from federal judges. When federal district court judges share their views on the significance of the sentencing allocution, they encourage defendants to prepare for this important event. They also admit that the allocution can move the needle in the defendant’s favor in many cases. 

The team at Prison Professors has extensive experience with sentencing mitigation and allocution strategy, based on discussions with federal judges over many years. 

Also, through our lived experiences and years of working with people facing sentencing, we understand what federal sentencing judges want to see and hear from a defendant at the sentencing hearing. 

Every member of our team has gone through the criminal justice process, including sentencing allocution, and is committed to sharing our collective lessons learned with others.

Discussion

Allocution is a uniquely significant opportunity for any criminal defendant to influence the outcome of their case. The Prison Professors team works with hundreds of clients daily to help them craft a sentencing mitigation plan, including preparation for their allocution on sentencing day.

What is the Sentencing Allocution?

Federal criminal defendants have the opportunity to address the court to seek to mitigate their sentence. The allocution is a defendant’s formal statement to the court before the judge imposes a sentence. It provides an opportunity to accept responsibility, humanize themselves, and show remorse. 

Rule 32(i)(4) of the Federal Rules of Criminal Procedure provides criminal defendants an “opportunity to speak” before sentencing. That is referred to as the allocution statement or sentencing allocution.

Remarkably, not all defendants accept the opportunity to make an allocution statement to the court. Allocution statements are not mandatory, and defendants can waive their right to speak to the court before sentencing. Some defendants prefer to submit oral or written statements through their lawyers. 

The American Bar Association has reported that approximately 84 percent of federal defendants exercise their right to allocution, according to a 2014 survey of federal judges.  

What do federal judges look for from the defendant’s allocution?

Sentencing allocutions are tricky, and, as noted above, not all criminal defendants accept their opportunity to speak to the court before sentencing. 

Our team has extensive experience and knowledge of what federal judges look for from the defendant’s allocution. Indeed, Michael Santos, Prison Professors’ founder, lived as a federal prisoner between 1987 and 2013. Michael interviewed more than 1,000 people about their sentencing experience during that time. 

During the latter portion of his lengthy federal prison journey, Michael wrote books and lessons to help people prepare for their federal sentencing, including their allocution. Over more than ten years, Prison Professors continues to gather information about the sentencing experience from the various people with whom we work, including:

  • Federal judges
  • Federal probation officers
  • Assistant US Attorneys
  • Defense attorneys, and
  • People charged with federal crimes.

One way or another, federal sentencing judges want to know whether people can own up to what they did, show concern for their victims, return to a law-abiding, prosocial lifestyle, and show remorse. If asked, people should be prepared to answer if the judge directly asks, “why should I show you leniency?”

Moreover, sentencing judges will seize on two specific things to gain insight into whether a person deserves leniency:

  • how the person handles themselves during the sentencing allocution; and 
  • what, if anything, they have done vis-a-vis their victims.

To read more from Prison Professors on how to prepare for the allocution at sentencing, See below

Key Takeaways

Putting together our team’s extensive experience in sentencing mitigation, these are some key general takeaways about sentencing allocution:

  1. To allocute or not allocute? Sentencing judges, who have the tremendous responsibility of a person’s liberty in their hands, say they appreciate when the defendant takes the opportunity to address the court at sentencing.
  1. Sentencing judges are looking for defendants to show how they understand their offense, own their mistake, are sincerely remorseful, and intend to never run afoul of the law again.
  1. Sentencing judges want to see if the defendant’s actions at the allocution are consistent with the observations made by US Probation in the presentence investigation report. The judge’s take on the defendant’s sentence begins with what they get from probation.  That means that preparation for allocution begins with preparation for the interview with probation first and foremost. Many judges start formulating a possible sentence when they first review the presentence report prepared by the probation officer.
  1. Sentencing judges care a lot about the defendant’s post-arrest pretrial conduct. This includes employment, finances, lifestyle, family, substance abuse, and restitution, among other things. Defendants often overlook the importance of their post-arrest pretrial conduct. 
  1. Sentencing judges greatly appreciate when a defendant makes an  effort to make their victims whole. In some cases, defendants can do this by paying some or all of the restitution amount. If possible,  apologizing to the victims and their families is also helpful. There are many other steps defendants can take in this regard. People should not overlook opportunities to show they care about their victims. 
  1. The ultimate impact of the allocution statement depends on the facts of the case, and the underlying crime. Some judges have reported that they are more willing to consider a person’s mitigating factors in low-level drug crimes and white-collar cases. Defendants in low-level crimes and white-collar cases should maximize their opportunities to show the judge their mitigating factors. 
  1. Defendants should begin to prepare for their allocution as early as possible. The odds are that a federal criminal defendant has a 99% chance of winding up before a sentencing judge and an 86% chance of receiving a prison term. Such odds suggest that sentencing mitigation efforts can be very worthwhile.  

To read our blog discussing restitution before sentencing See below:

Elizabeth Holmes’ Sentencing Allocution

In September 2022, Elizabeth Holmes is scheduled for a sentencing hearing. At that time, Holmes and her team will have to decide whether or not she will take the opportunity to address the court and ask for leniency. 

In prior blogs and videos, we have discussed what are the possible sentencing guidelines calculations for Holmes. See Below.

And how Holmes should approach her meeting with US Probation in advance of sentencing. See below.

During the coming months, Holmes and her team must prepare to show the sentencing judge her remorse, her understanding that she was wrong, and her appreciation for the victims. 

It does not matter that Holmes may never be able to pay back the hundreds of millions at issue in her case. Nor that her victims were sophisticated investors. Indeed, for sentencing purposes, it is not always about the money per se but about the defendant’s attitude and willingness to make amends. Sentencing judges consider the defendant’s approach to restitution as evidence of sincere remorse and acceptance of responsibility. 

CONCLUSION

Allocution statements can positively impact sentencing outcomes to varying degrees. According to a study by Judge Mark Bennett, 99% of all federal judges consider allocution a crucial part of the process. Sentencing judges want to listen, watch, and assess whether the person truly understands the magnitude or seriousness of the offense.

In addition, sentencing judges want to see action accompanying the defendant’s words. They appreciate even token restitution payments for the victims instead of apathy or inaction.

Our team at Prison Professors believes that allocution statements are essential to provide judges with a better understanding and appreciation of the human being in front of them. Allocution statements also help defendants publicly accept responsibility for their actions and begin to turn the page.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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