Douglas A. Berman
Within the wake of a notable sentencing ruling by Florida Supreme Court docket earlier this month (discussed here), I requested Prof. M. Eve Hanan of the UNLV Boyd Faculty of Legislation if she may like to jot down a visitor put up on the subject. She kindly obliged:
The Supreme Court docket of Florida just lately held that the trial choose could penalize extra harshly a defendant who maintains his innocence at sentencing. Davis v. State, No. SC19-716 (December 2, 2021).
The court docket framed the difficulty as follows: “Does a trial court docket, when imposing a sentence on a defendant who has voluntarily chosen to allocute and preserve his innocence on the sentencing listening to, violate the defendant’s due course of rights by contemplating the defendant’s failure to take accountability for his actions?” The unmissable foreshadowing within the court docket’s framing hints that the court docket will assuage due course of issues with a waiver-type concept: If the defendant voluntarily speaks at sentencing, something the defendant says, together with protesting his innocence, is honest recreation for the choose to think about in sentencing.
A protestation of innocence is a good characterization of Mr. Davis’ assertion at sentencing. Actually, he maintained his innocence all through. Not like over 95% of defendants, he didn’t plead responsible however asserted his proper to a jury trial.
Davis was charged with possession of a firearm by a prohibited individual primarily based on a gun present in a automobile wherein he was a passenger. At trial, the teenage driver testified that the gun discovered within the automobile belonged to his passenger, Davis. The jury believed the teenage driver and convicted Davis. No bodily proof tied Davis to the gun.
At sentencing, Mr. Davis made a press release, quoted in full within the dissenting opinion, that argued for his innocence and expressed disappointment in his legal professional and within the verdict. The allocution seems to have been cogent and well mannered, however, as I’ve argued in my article Talking Back in Court, the courtroom setting makes the defendant’s efforts to talk each dangerous and troublesome. Within the Florida Supreme Court docket’s characterization of his allocution, Mr. Davis was “voicing his disagreement with the decision, blaming the motive force, the police, his lawyer, and the trial court docket for his conviction…” Nonetheless respectful his tone or cheap his claims, he talked back.
The sentencing vary permitted any sentence from 10 to fifteen years. The choose imposed the utmost time period of 15 years primarily based on the crime, Mr. Davis’s prior report, and his “failure to take any accountability.”
It ought to be famous that regret and taking accountability are handled as interchangeable by the court docket, however they’re totally different. Regret is an emotion. As I’ve argued elsewhere, it’s troublesome to evaluate regret precisely, and that ambiguity lends itself to implicit biases which will gas sentencing disparities. Taking accountability, then again, is usually simply one other manner of claiming that the defendant confessed or pleaded responsible. In Mr. Davis’ case, the court docket labeled Mr. Davis’ protestation of innocence as a failure to take accountability.
Regret and taking accountability are permissible mitigators in at the least two areas of Florida sentencing legislation: in downward departures from minimal sentences and as mitigation within the penalty part of loss of life penalty trials. In distinction, a scarcity of regret or failure to take accountability will not be thought of as aggravating components in loss of life penalty instances as a result of “[t]o equate a defendant’s not responsible plea with lack of regret … would in impact punish the defendant for exercising rights of due course of.” Pope v. State, 441 So. second 1073, 1078 (Fla. 1983). And, in one other loss of life penalty case, the court docket held that sustaining one’s innocence, by way of a plea of not responsible, can’t be used to reject the mitigating issue of “appreciat[ing] the criminality of 1’s conduct.” Holton v. State, 573 So. second 284, 292 (Fla. 1990).
The Florida Supreme Court docket first distinguished Davis’ jail sentence from the loss of life penalty caselaw, which adheres to strict limits on aggravating components. In distinction, the sentencing choose had discretion to condemn Mr. Davis to any period of time inside the 10- to 15-year sentencing vary set by statute. Second, the Florida Supreme Court docket characterised as dicta the language within the loss of life penalty instances that acknowledged that penalizing defendants for protesting their innocence violates due course of.
The Florida Supreme Court docket then pivoted to its waiver concept to resolve the query of whether or not penalizing a defendant for sustaining his innocence violates due course of or the best in opposition to self incrimination within the Florida Structure. Artwork. I, § 9, Fla. Const. By selecting to allocute, the court docket reasoned, Mr. Davis waived his proper to stay silent. And thus, something that he stated may very well be held in opposition to him. The court docket drew a parallel between Mr. Davis’ “unwillingness to just accept the reality and take accountability” and U.S. v. Grayson, 438 U.S. 41 (1978), wherein the Court docket held, below federal sentencing legislation, that the trial choose could take into account the defendant’s false trial testimony.
In his dissent, Justice Polston argued that punishing the defendant for proclaiming his innocence is analytically indistinguishable from punishing the defendant for asserting the best in opposition to self-incrimination. Furthermore, the dissent went on, there should be limits to the voluntary relinquishment of the best to stay silent. If, as each the concurrence and the dissent confused, some concerns are categorically impermissible, they can’t be waived by way of some type of assumption of danger that the defendant takes on by talking on the sentencing listening to. For instance, the sentencing choose can’t punish the defendant for having a non secular affiliation merely as a result of the defendant volunteered details about his faith throughout sentencing. Likewise, the dissent argues, volunteering to talk at sentencing doesn’t terminate the defendant’s proper in opposition to self incrimination and due course of.
The place does Davis go away the harmless defendant? The place, for that matter, does Davis go away any defendant who doesn’t confess guilt and specific regret throughout sentencing? As in so many different contexts, the defendant is in a Catch-22 wherein leniency is based on admissions of guilt at a time when the best in opposition to self-incrimination stays important to any retrial granted on enchantment.
I will say it once more. If a convicted defendant insists he’s harmless, the choose, in addition to the parole board, ought to ask themselves simply how assured they’re of his guilt. If they’re sure, I feel it is wonderful to present them extra time, or deny parole, on that foundation. If not, they should not.
The ever-so harmless Jussie Smollett will present a well timed and interesting check for Prof. Hanan’s view that we’re required to present the convicted defendant credit score reasonably than blame for the tenacity of his lies.
