Can Words Really Set a Man Free?—A Semiotic Analysis of the American Criminal Defendant’s Right to Allocution

Abstract

In America, a person convicted of a crime has a right to allocution before being sentenced; the curtailment of or failure to grant this right may be grounds for an appellate court to remand the case for resentencing. The historical question which the judge posed when offering the defendant the opportunity to allocute was more focused: “Do you know of any reason why judgment should not be pronounced upon you?”. The defendant’s response was confined to legal defenses, such as, pardon, pregnancy, insanity, misidentification, or benefit of the clergy. Current justifications for the right are broader: To promote sentencing objectives, the right to allocution allows a judge to gather information that will enable him or her to more accurately mitigate or individualize punishment. In theory, a defendant’s allocution is unbounded; however, for practical purposes, such as the maintaining of decorum in the courtroom or judicial expedience, the defendant’s allocution may be abridged. The implications of the right to allocute and the multiple meanings such a privilege can engender – meanings for the defendant, the judge, the victim(s), the prosecution, onlookers, society as a whole, and Law as an institution – will be the focus of this paper. A semiotic analysis of this post-trial, pre-sentence right will illumine certain existing and potential meanings in Law, while at the same time it does meaning-making in Law.

Only the man who has enough good in him

to feel the justice of the penalty can be punished

William Ernest Hocking