ALLOCUTION IN DEATH PENALTY CASES

You asked about the defendant’s right of allocution in death penalty cases in Connecticut and other states.

Generally, allocution is the court’s inquiry of the defendant as to whether there is any legal cause why conviction should not be pronounced or whether he would like to make a statement on his behalf and present mitigating information.

The Connecticut Supreme Court recently ruled that the defendant does not have a right to an allocution in a capital sentencing hearing (State v. Colon (272 Conn. 106 (2004)).

We looked at other states with the death penalty and found 13 states where the defendant has a right of allocution in death penalty sentencing and an additional four states where cases appear to indicate a right of allocution. We also found three states where a general provision on allocution may apply to death penalty sentencing.

In nine states, we found court cases ruling that defendants do not have allocution rights in death penalty sentencing. In addition, we found a New Hampshire case ruling that it was not an abuse of discretion to deny a defendant allocution in a non-capital case but it is not clear whether this ruling applies to death penalty cases.

The Connecticut Supreme Court recently ruled that the defendant does not have a right to an allocution in a capital sentencing hearing (State v. Colon (272 Conn. 106 (2004)). In this case, the defendant filed a motion for an allocution in his sentencing hearing, after presentation of evidence in the penalty phase and before closing arguments. The judge denied the motion but asked the defendant if he wished to be heard before rendering judgment in accordance with the jury’s verdict.

The court found that the Connecticut legislature set detailed procedures for capital sentencing hearings. The court stated that the principal goal of allocution is the dispensation of mercy and the statutory scheme, which permits cross-examination and rebuttal by the state, specifically contemplates mercy as one of the factors for the jury to consider in making its decision. The court concluded it would be inconsistent to give the defendant the right to make a plea for mercy through an unsworn statement without cross-examination. Based on federal and state court opinions and the six-factor test for state constitutional protections, the court found no federal or state constitutional right to allocution.

For a more detailed summary of the ruling in this case, see OLR Report 2004-R-0987.

In the following states, the defendant has a right of allocution in death penalty sentencing hearings.

1. Arkansas: A statute gives the accused, upon sentencing, the opportunity to show any cause why sentencing should not be pronounced (Ark. Code § 16-90-106(b)). The Arkansas Supreme Court cited this statute in a death penalty case stating that the total failure to afford a convicted defendant the right to state any legal reason why judgment should not be pronounced was reversible error. But it found no prejudicial error as to allocution in this case after reviewing the entire sentencing procedure (Hill v. State, 962 S. W. 2d 762 (Ark. 1998)).

2. Colorado: The Colorado Supreme Court ruled that the statute requiring the court to give the defendant an opportunity to make a statement in his own behalf before sentencing applies to death penalty cases (Colo. Stat. 16-11-102(5); People v. Borrego, 774 P. 2d 854 (Colo. 1989)).

3. Delaware: A lower court ruled that a defendant has a right of allocution based on a Superior Court criminal rule, Delaware’s death penalty statute, and Delaware case law (Shelton v. State, 744 A. 2d 465 (Del. Supr. 2000)).

4. Idaho: Jury instructions for death penalty sentencing provide the defendant with a right of allocution: to personally address the jury without being put under oath or being subject to cross-examination (Death Penalty Sentencing Instructions, Instruction No. 1709).

5. Maryland: There is a common law right of allocution (Harris v. State, 509 A. 2d 120 (1986)).

6. Nevada: There is a common law right of allocution in death penalty cases limited to expressions of remorse, pleas for leniency, and plans or hopes for the future (Homick v. State, 825 P. 2d 600 (1992); NRS § 176. 015 also provides a general statutory right).

9. Ohio: Defendants have an allocution right in death penalty sentencing to explain, apologize, or beg for mercy before sentencing. The court must address the defendant personally and ask whether he wishes to make a statement in his behalf or present any information in mitigation of punishment. Allocution is “much more than an empty ritual: It represents a defendant’s last opportunity to plead his case or express remorse” (State v Green, 738 N. E. 2d 1208 (Ohio 2000)).

10. Oregon: A non-capital case states that there is a constitutional right to allocution (DeAngelo v. Schiedler, 757 P. 2d 1355 (1988)). In a death penalty case, the Appellate Court presumes a constitutional right to allocution in its discussion of the defendant’s claimed conflict between his constitutional right to remain silent and his allocution right (State v. Wilson, 985 P. 2d 840 (Or. App. 1999)).

11. Virginia: The state Supreme Court ruled that there is a statutory right of allocution before the judge pronounces sentence in both bench and jury death penalty cases. Allocution is the right to speak after determining guilt but before the judge pronounces sentence (Commonwealth v. Bassett, 284 S. E. 2d 844 (1981)).

12. Utah: Allocution is an inseparable part of the constitutional right to appear and defend in person (Utah Const. Art. I, § 12) which is implemented in Criminal Procedure Rule 22 (State v. Maeslas, 63 P. 3d 621 (Utah 2002)). An earlier case required allocution in a capital case (State v. Young, 853 P. 2d 327 (Utah 1993)).

13. Washington: The allocution right is limited to pleas for mercy. A defendant who moves from allocution to testifying must be sworn and subject to cross-examination (State v. Lord, 117 Wash. 2d 829, 822 P. 2d 177 (1991), State v. Mak, 105 Wn. 2d 692).

In addition, we found four states where there appears to be a right of allocution in death penalty sentencing.

1. Arizona: In a death penalty case, the sentencing judge failed to ask if the defendant wanted to be heard, but the state Supreme Court found that the error did not require resentencing. The court stated that allocution allows the defendant to make a mitigating statement to the judge considering sentencing but there is no need for resentencing unless the defendant can show that the allocution would have added something to the mitigation evidence already presented (State v. Hinchey, 890 P2d 602 (Ariz. 1995)).

2. Mississippi: In a death penalty case, the court mentioned that the defendant made an unsworn opening statement to the jury at the sentencing phase (Williams v. State, 445 So. 2d 798 (Miss. 1984)).

3. South Carolina: The state Supreme Court stated that the statutory right of closing argument and the right of allocution are distinguishable. The court rejected the defendant’s argument in a death penalty case that his sentence should be overturned because the trial court impermissibly limited his allocution (State v. Stokes, 548 S. E. 2d 202 (S. C. 2001)).

4. Wyoming: The state Supreme Court recognized a constitutional right to allocution (Harvey v. State, 835 P. 2d 1074 (Wyo. 1992); Christy v. State, 731 P. 2d 1204) but we did not find a case specifically involving this right in death penalty sentencing. But in Olsen v. State (67 P. 3d 536 ( Wyo. 2003)), the defendant made a statement in allocution in a death penalty case.

In the following states, we found a general allocution provision that may apply in death penalty cases.

1. Alabama: Defendants are entitled to allocation under the criminal rules (Davis v. State, 747 So. 2d 921 (Ala. Crim. App. 1999)) and allocution is mandatory before sentencing for a felony (Burks v. State, 600 So. 2d 374 (Ala. Crim. App. 1991)).

2. Indiana: There is a general right to allocution (Ind. Const. Art I, § 13; Ind. Stat. § 35-38-1-5).

In the following states, the defendant does not have a right of allocution in death penalty sentencing hearings.

1. California: In capital cases, there is no need or constitutional requirement for the defendant to address the sentencer without being subject to cross-examination (People v. Robbins, 755 P. 2d 355 (1988)).

2. Georgia: The defendant does not have a right to make an unsworn statement in death penalty sentencing and the trial court did not err in denying the defendant’s motion to address the jury before deliberation in the sentencing phase or to take the stand and testify with cross-examination limited only to those issues of the direct examination (State v. Jenkins, 498 S. E. 2d 502 (1998)).

3. Illinois: In capital cases, there is no right to allocution in the sentencing hearing (People v. Hall, 743 N. E. 2d 126 (2000)).

4. Missouri: Rule 29. 07(b)(1) recognizes the right to address the court before imposing judgment and sentence, but the right of allocution does not extend to addressing the jury (State v. Whitfield, 837 S. W. 2d 503 (Mo. 1992)).

5. New York: A lower court ruled that a defendant in a capital case does not have a statutory or constitutional right to allocution before the sentencing jury. The court stated that there is a statutory right in non-capital cases (N. Y. Crim. Pro. § 380. 50) but New York’s “intricate death penalty sentencing scheme” does not allow an unsworn allocution (People v. Owens, 729 N. Y. S. 2d 285 (2001)).

6. Pennsylvania: The legislature abrogated common law rules governing capital cases with its statutory scheme and there is no reason that defendants should be permitted to make unsworn statements to juries in capital sentencing hearings (Commonwealth v. Abu-Jamal, 555 A. 2d 846 (1989)).

7. North Carolina: There is no statutory, common law, or constitutional right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding (State v. Perkins, 481 S. E. 2d 25 (N. C. 1997)).

8. Oklahoma: There is no statutory, common law, or constitutional right to make a plea for mercy or otherwise address the sentencing jury in addition to closing argument by counsel in capital cases (Duckett v. State, 919 P. 2d 7 (Okla. Crim. App. 1995)).

9. Tennessee: There is no statutory or common law right to allocution in a capital case and no constitutional right to make an unsworn statement to a jury in the sentencing phase of a capital trial (State v. Stephenseon, 878 S. W. 2d 530 (Tenn. 1994)).

In addition, the New Hampshire Supreme Court ruled in a non-capital case that the trial court did not abuse its discretion in refusing to allow allocution (State v. Vandebogart, 652 A. 2d 671(N. H. 1994)). But we did not find a case involving death penalty sentencing.


January 31, 2005		2005-R-0048
ALLOCUTION IN DEATH PENALTY CASES

By: Christopher Reinhart, Senior Attorney