December 28, 2004
ALLOCUTION AND DEATH PENALTY SENTENCING HEARINGS
By: Christopher Reinhart, Senior Attorney
You asked for a summary of the Connecticut Supreme Court's ruling on the defendant's right to allocution in death penalty sentencing hearings.
In State v. Colon (SC 16446, December 17, 2004), the Connecticut Supreme Court ruled, in a six to one decision, that there is no right to an allocution in capital sentencing hearing. The right to allocution was one of many issues decided by the court in this case.
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. At the defendant's sentencing hearing in this case, he filed a motion for an allocution 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.
Justice Zarella wrote the majority opinion for the court. 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.
Justice Katz dissented from the court's ruling on the right of allocution. She disagreed with the majority based on historical developments of the right to allocution, the fundamental purposes served by that right, and the purposes of the capital sentencing hearing. She concluded that there is a common law right to allocution that the legislature had not expressly preempted. She argued that the majority blurred the distinction between the accused giving testimony in his own behalf and making a plea for mercy. She argued that the capital sentencing statute did not abrogate or preempt the common law right of allocution in capital sentencing proceedings as it applies to a defendant personally addressing a plea for mercy to the sentencer. But she added that the trial court could place limits on the right.
The court began with a description of the historical background of allocutions.
1. At common law, the defendant in a felony case had a right of allocution—the judge asked the defendant whether he had any reason to offer why judgment should not be entered against him.
2. Under ancient English common law, the defendant was not allowed counsel and could not be a witness on his own behalf. The presiding judge was theoretically his counsel but did not represent the accused in the modern sense. The common law judge generally had no discretion as to punishment in felony cases, which usually carried a capital sentence. The purpose of the judge's question or allocution was not to seek mitigating evidence or a plea of leniency but to give the defendant a formal opportunity to show one of the strictly defined legal grounds to avoid or delay the sentence: he was not the person convicted, he had the benefit of clergy or a pardon, he was insane, or, if a woman, she was pregnant.
3. Many American jurisdictions codified the rule in statute or court rules but in other jurisdictions the tendency is to treat it as a technicality of little importance where modern criminal procedure provides other protections for the defendant.
4. Even though the Federal Rules of Criminal Procedure require an opportunity for the defendant to speak before sentencing, the U.S. Supreme Court that found a judge's failure to ask a defendant represented by counsel whether he wanted to speak was not “an omission inconsistent with the rudimentary demands of fair procedure” and not a constitutional error. The Court has never decided whether sentencing a defendant who wished to speak raised a constitutional question.
Common Law and Connecticut Statutes and Court Rules
The court stated that the Practice Book provides a right of allocution in criminal matters but the rule and the capital sentencing statute are both silent about the right in capital sentencing hearings (Practice Book § 43-10(3), CGS § 53a-46a).
The court found several courts in other jurisdictions that concluded there is no statutory or common law right of allocution in capital sentencing hearings. But it found others where the common law right did apply, with the majority of these limited to pleas of mercy or leniency and expressions of future hope.
The court found the reasoning of a Pennsylvania case persuasive (Commonwealth v. Abu-Jamal, 521 Pa. 188 (1989)). The Pennsylvania court found:
1. certain procedures apply specifically to capital cases and reliance on rules that apply to non-capital cases is misplaced;
2. the legislature abrogated the general provision and replaced it with statutes specifically devised for the capital cases;
3. the evidentiary hearing is part of the “truth-determining process” to allow the sentencer to discern facts and apply them to determine the sentence;
4. the defendant must prove mitigating circumstances and the jury assesses the credibility of evidence;
5. the state must be able to challenge the facts and credibility, whether a witness or the defendant is involved; and
6. there is no reason “in law or logic” to allow the defendant to present evidence without the testing for truthfulness and reliability of cross-examination.
Similarly, the court found that the Connecticut legislature set detailed procedures for capital sentencing hearings, including the type of evidence to be admitted. The statute permits the defendant to present information relating to mitigation and contemplates the state having an opportunity to rebut that information. The court found that the principal goal of allocution is the dispensation of mercy and stated:
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 life-or-death decision…It would be fundamentally inconsistent with that scheme, therefore, to afford the defendant the right to make a plea for mercy to the jury through an unsworn statement that is free from cross-examination.
The court ruled that the capital sentencing procedures fulfill the purposes of allocution by providing the defendant with an opportunity to participate in sentencing. The court added that the defendant is not precluded from testifying and providing a statement of remorse or other information but, based on the capital sentencing scheme, he would be subject to cross-examination.
The court ruled that there is no federal constitutional right to make an unsworn statement before a capital sentencing jury. It reasoned as follows.
1. The U.S. Supreme Court has not addressed whether there is a constitutional right of allocution in a capital sentencing hearing. But it has ruled that it was not a constitutional violation when a trial court failed to ask a defendant if he wanted to make a statement before sentencing as required by court rules. The Court stated that is was “not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.”
2. While the Supreme Court did not decide if it was a constitutional violation to affirmatively deny a request to speak, two federal circuit courts found no constitutional right to make an allocution. The 5th Circuit stated that there is no “constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross examination.” Several state courts have also ruled that there is no constitutional right to make an allocation before a capital sentencing jury.
The court concluded that the purpose of allocution is to allow the defendant to introduce information relevant to his plea for mercy and this “is equally served by the structure of our capital sentencing scheme, which permits a capital defendant to present any information relevant to any mitigating factor during the penalty phase hearing, regardless of its admissibility under evidentiary rules applicable to criminal trials.”
Connecticut Constitution, Article I, § 8 states: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel…”
The court stated that it considers six factors to determine if the state constitution provides broader protection than the federal constitution:
1. persuasive relevant federal precedents;
2. the text of the constitutional provision;
3. historical insights into the intent of the constitution;
4. related Connecticut precedents;
5. persuasive precedents in other states; and
6. contemporary understanding of applicable economic and sociological norms, or related public policies.
The court concluded that none of the factors in the test favor finding a broader protection for allocution in the state constitution. It reasoned as follows.
1. Relevant federal precedents favor a determination that the state constitution does not afford greater protection than the federal one.
2. The text of the constitutional provision provides a right to be heard but nothing suggests the framers' intent to provide a right of allocution in capital sentencing proceedings.
3. This court looked at this constitutional provision in 1985 and found two legal developments that may have led to its adoption in the 1818 constitution. First, the right to self-representation had evolved to guarantee a choice between representation by counsel or self-representation. The court in 1985 found that the provision was addressed to secure both of these rights and not a “hybrid representation.” Another legal development was that a defendant in Connecticut had no right to testify in his own behalf but he could be heard by making an unsworn statement. The constitutional provision could have been intended to insure the right to counsel and to be heard but in 1985 the court concluded that it did not need to decide which historical background was more persuasive because there was little evidence that the framers intended such a result and the provision had not previously been construed that way.
4. The right to representation is supported by historical texts about Connecticut but the right to make an unsworn statement is based on out-of-state sources and speculation about what the provision could mean.
5. At least two states concluded that similar state constitutional provisions do not give the right to make an allocution to a capital sentencing jury.
6. As for public policies, the capital sentencing statute gives the defendant an opportunity to present any information relevant to mitigation and adequately protects his rights during the capital sentencing hearing.
JUSTICE KATZ'S DISSENT
Justice Katz did not agree with the majority based on historical developments of the right to allocution, fundamental purposes served by that right, and the purposes of the capital sentencing hearing. She concluded that there is a common law right to allocution that the legislature had not expressly preempted.
Justice Katz reasoned as follows.
1. The majority's opinion results in a capital defendant having less of a right to personally address the sentencer and plead for mercy than a non-capital defendant. Statutes should be construed to avoid bizarre results such as this.
2. The Practice Book provision on allocution does not distinguish between capital and non-capital cases. It codifies the common law and affords the defendant the right to (a) make a statement on his own behalf and (b) present any information in mitigation of punishment.
3. The court cannot presume that a statute abrogates a common law right without clear legislative intent. Although the capital sentencing statute governs the presentation of information relevant to mitigating factors, it is silent on the right of a defendant to make a personal statement in his own behalf. The statute's legislative history does not address allocution. There is no clear evidence of intent to abrogate the common law. The statute does not occupy the field or conflict with the right of allocution.
4. The majority relies on a Pennsylvania case that blurs the distinction between the accused giving testimony in his own behalf and making a plea for mercy. Testimony disputes or offers evidence of a fact while a plea for mercy does not intend to advance or dispute facts but asks for leniency or understanding in the sentencer's decision.
5. The capital sentencing statute does not abrogate or preempt the common law right of allocution in capital sentencing proceedings as it applies to a defendant personally addressing a plea for mercy to the sentencer.
6. Only allowing the defendant to personally address the jury without cross-examination can satisfy the right of allocution. By “equating allocution with testimony that is subject to cross-examination, the majority essentially forces capital defendants to choose between personally addressing the sentencing jury in a plea for mercy, on the one hand, and exercising their constitutional right to remain silent and free from self-incrimination, on the other.”
7. The right of allocution is not unlimited. The trial court can limit its duration and content, preview proposed statements, and take remedial action if the defendant oversteps the bounds of allocution. Properly limited, allocution is consistent with the purposes of the statutory sentencing scheme.
8. Allocution imposes a minimal burden on the court's ability to exercise control over courtroom proceedings and because allocution is more important in death penalty cases, any burden on the court or state is far outweighed by the defendant's interest in individualized consideration in the face of the death penalty. Allocution furthers the purposes of the capital sentencing scheme.
Because Justice Katz found a common law right to allocution, she did not consider whether there was a constitutional right to allocution.