Appellant was convicted of robbery on one indictment and pleaded guilty to robbery on another indictment. He was sentenced under the former for four to twelve years imprisonment and under the latter for two to six years, the sentences to run consecutively. There was no appeal, but after the time therefor had expired appellant moved in the District Court, under 62 Stat. 967 (1948), as amended, 28 U.S.C. § 2255 (1952),
No attack is now made upon the conviction or plea of guilty, but only upon the sentence, and this on the ground that the District Court in sentencing appellant did not comply with Rule 32(a), Fed.R. Crim.P.
This court holds that the better practice in sentencing a convicted person is to afford him a personal opportunity to make a statement in his own behalf, which might include information in mitigation of punishment.
BURGER, Circuit Judge, who took office after the hearing and consideration of these cases, took no part in their decision.
FAHY, Circuit Judge.
Chief Judge EDGERTON and Circuit Judges BAZELON, WASHINGTON and I participate in the adoption by the court of the prospectively operative procedure above set forth. We wish also to make plain our own view that where the procedure now prescribed is not followed error occurs that requires resentencing in accordance with Rule 32(a), certainly when the matter is brought before us on direct appeal, and in some circumstances, at least as to trials and convictions occurring after the rendition of today's opinion, when the question arises under section 2255, 62 Stat. 967 (1948), as amended, 28 U.S.C. § 2255 (1952). See Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, note 4 (dissenting opinion). We need not express a view as to the availability of section 2255 in the present cases, since a majority of the court does not decide that the rule now laid down is to be applied retroactively.
Rule 32(a), note 2 supra, has the force of law. See 47 Stat. 904 (1933), as amended, 18 U.S.C. § 3772; Order of Feb. 8, 1946, Adopting Rules 32-39, 18 U.S.C.A., xix (1951); Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479; John R. Alley & Co. v. Federal Nat. Bank, 10 Cir., 124 F.2d 995, 998; C. J. Wieland & Son Dairy Products Co. v. Wickard, D.C.E.D.Wis., 4 F.R.D. 250, 252; and see Bank of U. S. v. White, 8 Pet. 262, 33 U.S. 262, 8 L.Ed. 938. We think the Rule means, as it says, that before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present information in mitigation of punishment. He may respond through counsel if he desires, or he may remain silent. But the opportunity afforded must be personal, and it is not when, as here, the judge asks only counsel if counsel has anything to say. This court recognizes
An opportunity afforded to counsel ordinarily is an opportunity afforded to his client. It is essential to maintain this relationship of counsel to court and to client in order to preserve counsel's vital role in the administration of justice. But there are exceptions, and the one under consideration has long been established.
The practice of asking the defendant whether he has anything to say before sentence is imposed had its genesis in English law at a time when a person accused of a felony was not permitted to have counsel to defend him. See State v. Hoyt, 47 Conn. 518, 545; Sarah v. State, 28 Ga. 576; Orfield, Criminal Procedure From Arrest To Appeal 539 (1947); 5 Holdsworth's History of English Law 192 (1938). This barrier to legal representation was not generally abolished in England until 1837, though the right to be defended by counsel had been extended to defendants in high treason cases in 1695. See 9 Holdsworth's History of English Law 235 (1938). Thus originally in English law the right to speak before sentence was imposed was of necessity extended to the defendant personally since he had no counsel. See 4 Blackstone's Commentaries 375, and App. at p. iii (1854). And Chitty makes it clear that the inquiry invited information in mitigation of punishment as well as grounds in law advanced to bar the imposition of sentence. He wrote that the allocution was indispensably necessary, and that if the defendant "has nothing to urge in bar, he frequently addresses
That these commentators were correct in stating that the right of allocution was firmly established in English law as a necessary procedural step is plain from two high treason cases decided in 1689. In Rex & Regina v. Geary, 2 Salk. 630, 91 Eng.Rep. 532, the prisoner had pleaded guilty, but upon a writ of error exception was taken "that it did not appear he was asked what he had to say why judgment should not be given against him." The court held that exception good. "[A]ll the procedents are with an allocutus quid, or si quid pro se dicere habeat, &c. Vide Plowd. 387. Co. Ent. 532. Rast 455. * * * [H]e might have matter to move in arrest of judgment, or a pardon * * *." In The King v. Speke, 3 Salk. 358, 91 Eng. Rep. 872, the error assigned was "that upon oyer of the indictment, the defendant Speke confessed it, and thereupon judgment was given, but without demanding of him, what he had to say for himself, why judgment should not be given." It was held the omission was error which required reversal, "for it is a necessary question, because he may have a pardon to plead, or may move in arrest of judgment * * *." Thus the court was required to ask the prisoner himself if he had anything to say why sentence should not be imposed. This is clear from the English version of what transpired at sentencing, and is made doubly clear by the Latin phrase, "pro se."
Despite the fact that in the United States persons accused of crimes could be defended by counsel, the majority of jurisdictions enforced the right of allocution, though restricting it to capital cases. E. g., Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377; Keech v. State, 15 Fla. 591; Jones v. State, 51 Miss. 718; James v. State, 45 Miss. 572; People v. Nesce, 201 N.Y. 111, 94 N.E. 655; Hamilton v. Commonwealth, 4 Harris 129, 16 Pa. 129; Orfield, op. cit. supra at 539; 22 Minn.L. Rev. 733; 62 U. of Pa.L.Rev. 741; 113 A.L.R. 823.
The retention of the practice no doubt was motivated by the desire of the law to preserve those salutary procedures in the administration of justice sanctioned by experience and sound policy. As said
Rule 32(a) now extends the ancient procedure to all criminal cases in the federal courts. Federal cases which antedate the Rule, and state cases not governed by it, which held that allocution was not indispensable, are therefore of no relevancy. For we think the Rule has now become a command upon the federal courts. To permit a departure from this command to go uncorrected in a particular case, assuming the question to be properly before us, in our view would be to permit a practice which violates the Rule to supersede a rule of law prescribed by the Supreme Court under authority of Congress after centuries of development in the common law.
WILBUR K. MILLER and BASTIAN, Circuit Judges, concur in affirmance but dissent from adoption of the new procedure for the following reasons:
In our opinion no necessity exists for exercising our supervisory authority to establish the new procedure outlined. We think the majority gives too narrow a construction to Rule 32(a) of the Federal Rules of Criminal Procedure. That section provides:
Defendant's counsel urges that the trial court did not afford defendant an opportunity to make a statement in his own behalf and personally to present any information in mitigation of punishment, as the rule requires. The short answer to this is that that is not what the rule provides.
In effect, the majority says that the trial court must specifically ask the defendant personally if he wishes to make a statement, where his lawyer has already spoken for him. It is to be noted that throughout the Federal Rules of Criminal Procedure the word "defendant" is used often, but in practically every case there can be no doubt that the effective way is for defendant's counsel to take the action required.
As stated, counsel was invited to and did make a statement, and nothing would
Counsel is often better able than defendant himself to bring before the court statements concerning defendant, his prior record, his family, his environment, and facts germane to the mitigation of his punishment.
We see no reason for the trial judge to ask the defendant personally if he wishes to make a statement when a statement has already been made for him by his counsel and where the court is not advised by defendant or his counsel that the defendant wishes to make a statement personally.
We believe that the correct rule was laid down by this court on January 12, 1956, in Hudson v. United States, 97 U. S.App.D.C. 153, 229 F.2d 36, a case (on direct appeal) as precisely similar to these cases as can be imagined. There this court said:
The present decision, of course, constitutes a reversal of the views of this court as expressed so recently in Hudson.
We have been unable to find any case where the procedure now to be applied has been required by an appellate court under circumstances similar to the present cases. On the contrary, it has been held that "if counsel were present and no request was made of the court to be heard, and no objection was made to being sentenced without being heard, we think it would amount to a waiver of this formality." State v. Hoyt, 47 Conn. 518, 36 Am.Rep. 89. Cf. Steel v. State, 149 Ga. 134, 99 S.E. 305.
"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence."
"Sentence. Sentence shall be imposed without unreasonable delay. Pending sentence the court may commit the defendant or continue or alter the bail. Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment." 18 U.S.C.
Some jurisdictions held that allocution was required even in non-capital felony cases. E. g., Oliver v. State, 25 Ala.App. 34, 140 So. 180; Cole v. State, 10 Ark. 318.