Criminal Justice Insider

It has recently been reported that some of those involved in the insurrection and attack on the United States Capitol on January 6, 2021, have refused to acknowledge their wrongdoing before the court when pleading guilty. For these defendants, this defiance is more than just a mere moral failing. A failure to acknowledge such wrongdoing may force the court to reject the plea and go to trial. In order to understand the significance of lack of remorse, an explanation of the mechanisms of plea and sentence in federal court is in order.

In federal court, an agreement to plead guilty is one that is reached between the defendant and the prosecuting U.S. Attorney’s Office. While each U.S. Attorney’s Office has a slightly different form, the agreements contain the same fundamental terms. Most saliently, the agreement requires that the defendant plead guilty to a specified charge, that the U.S. Attorney’s Office will recommend a sentencing guidelines range but cannot guarantee that the court will impose a sentence within that range, and that the defendant waives the right to a trial and the ability to appeal, other than to appeal the sentence imposed by the court should it exceed the recommended range.

Critically, in pleading guilty a defendant is required to allocute. In order to accept a plea, the court must determine that there is a factual basis to support the charge and the plea and to ensure that the plea was voluntarily made. Accordingly, the allocution generally requires that a defendant admit the facts underlying the criminal charge. Courts also generally require a defendant to confess wrongdoing to ensure that the plea is knowing and voluntarily so as to safeguard against an innocent person bargaining away their right to a trial. It is for this reason that the failure of the Capitol defendants to admit that what they did was wrong undermines the plea process.

In very rare instances, a court can accept an Alford plea. An Alford plea, so named after the Supreme Court’s decision in North Carolina v. Alford, 400 U.S. 25 (1970), allows a defendant to plead guilty without allocution. It is simply an admission by the defendant that the prosecution has enough evidence to convict the defendant beyond a reasonable doubt. In the federal system, the U.S. Attorney’s Offices will generally not accept such a plea except in highly unusual circumstances.

Allocution plays another important role in the federal criminal justice system: it allows the defendant to address the court and express remorse to be considered in sentencing. Federal judges possess extraordinary latitude and discretion in sentencing. There are federal sentencing guidelines and the court must perform the relevant guidelines calculation when pronouncing a sentence. However, pursuant to United States v. Booker, 543 U.S. 220 (2005) and its progeny, the federal sentencing guidelines are not mandatory. Instead, a court must also consider the factors set forth in 18 U.S.C. §3553(a) in fashioning a sentence. One such factor implied in 18 U.S.C. §3553(a) is that defendant understands the seriousness of their crime and expresses remorse. In like fashion, when the Capitol defendants act defiant during allocution by refusing to admit wrongdoing, a federal judge is required to consider that defiance in fashioning an appropriate sentence.

The highly publicized nature of the prosecution of the Capitol insurrectionists provides a good lens through which to view the opaque processes that underlie a plea and sentence. A plea and the subsequent sentence are far from a simple means for a defendant to evade judgment and procure a lower sentence. Rather, a defendant must stand before the court, admit their crimes and express adequate remorse. Many defendants, such as some of those implicated in the Capitol insurrection, will not take this critical step and instead opt to go to trial.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533