Encouraging Allocution at Capital Sentencing: A Proposal for Use Immunity
32 Pages Posted: 21 Oct 2010
Date Written: April 1997
This Note considers the self-incrimination dilemma raised by a capital defendant's allocution statements at the sentencing phase of his trial. Allocution gives a defendant the opportunity to make a direct plea to the sentencing judge or jury. However, in a system where reversals are common, admissions made at sentencing in one trial may be used against the defendant at retrial, chilling the practice.
After examining the origins of this country's bifurcated system of capital punishment and tracing the evolution of the common law right of allocution, the author contends that this ancient practice should assume a greater role in the sentencing phase of modern capital trials. The author argues that, in the context of a separate sentencing phase whose primary aim is to achieve an individualized determination of punishment, allocution performs a valuable role in providing the sentencer with greater information upon which to base its decision.
While there is no constitutional doctrine that mandates use immunity in this context, there are powerful policy concerns that support such a rule. The right to be heard from personally may both aid in mitigation of sentence and broaden the participation of a defendant in his own trial. However, it is also in the state's interest, in imposing its most severe sanction, to reach the most informed result. In order to encourage allocution at capital sentencing, the author proposes granting use immunity to allocution statements, thereby preventing them from being used against a defendant at retrial.
Keywords: death penalty, capital sentencing, allocution, mercy, atonement
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