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Time of Desperation: An Examination of Criminal Defendants’ Experiences of Allocuting at Sentencing

By Joshua Burger-Caplan

For criminal defendants, allocution is the last time they may address the court before sentencing is pronounced. For many defendants, whether because they pled guilty or did not testify at trial, it is their only such opportunity. According to a recent survey of federal judges, allocution at sentencing can, for better or worse, significantly affect sentencing decisions. Other researchers have suggested that, beyond such effects, allocution is also important in creating opportunities for defendant expression that go beyond the presentation of mitigating information.

Despite the impact of sentencing, little research has been done into defendants’ perspectives on their own allocutions. This Note draws on interviews to explore the ways in which defendants prepare for and experience their allocutions, and situates their rationales for allocution within the existing literature. Part II provides background information on how allocution has been treated in the courts. Part III discusses the Note’s interview methodology. Parts IV and V respectively examine the humanization and mitigation rationales for allocution from the perspective of defendants, and conclude that it is the mitigation rationale that more accurately reflects the accounts given by defendants.

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Bargaining Life Away: Appellate Rights Waivers and the Death Penalty

By Edmund A. Costikyan

In our criminal justice system, it is now a matter of little note that the vast majority of cases are resolved by guilty plea rather than at trial, without a single fact ever presented to a jury. Since the passage of the Sentencing Reform Act of 1984, it has become common practice for plea agreements to require not only that a defendant waive her right to trial by pleading guilty, but also that she waive her right to ever appeal her conviction or sentence. This Note explores the waiver of appellate rights from both a due process and public policy standpoint, arguing ultimately that when a defendant faces a potential death sentence at any point during the adjudication of her case, her appellate rights cannot be constitutionally waived; additionally, that in both the interest of justice and the public interest, such waivers should not be sought or upheld.

Part II of this Note introduces the relevant background of the plea bargaining system and the use of appellate waivers. Part III discusses the issues raised both when a defendant is asked to waive her appellate rights and by the enforcement of such waivers once effected, before addressing the arguable benefits of such waivers. Finally, Part IV seats these arguments in the context of capital punishment, where, due to the finality of the punishment and its powerful coercive force, the unreviewability of a conviction is at the highest level of concern.

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