Sentence Mitigation: Acceptance of Responsibility

Hon. William H. Burgess, III, B.C.S.

A common and longstanding practice in the trial courts of Florida is to reward defendants who accept responsibility for their actions with lighter sentences than those defendants might otherwise have received. Many prosecutors encourage this form of sentence mitigation and it is not unusual for prosecutors to agree to downward departure sentences for such defendants in appropriate circumstances, usually early in the case. Appellate courts have noted that acceptance of responsibility is an appropriate factor for the court to consider in mitigating a sentence.¹ As a practical matter, early acceptance of responsibility can show actual or potential rehabilitation,² and it furthers the important state interests in judicial efficiency and economy. There is, however, no consensus within the trial and appellate courts as to what “acceptance of responsibility” or “early acceptance of responsibility” is, and so it is an open question as to whether or not this is a valid stand-alone basis for departure below a presumptive minimum sentence.

Under federal sentencing law, acceptance of responsibility means that the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his or her criminal conduct. This acceptance of responsibility can be evidenced by such things as voluntary termination of criminal conduct, voluntary and truthful admission of guilt, voluntary surrender promptly after commission of the offense, voluntary payment of restitution prior to an adjudication of guilt, voluntary assistance to the authorities, and other actions of like character.³ Under federal law, a defendant’s acceptance of responsibility and his or her assertion of mitigating circumstances are not necessarily inconsistent or incompatible. The concepts are related but independent, e.g., a defendant can demonstrate acceptance of responsibility and have a lack of remorse.⁴

Florida appellate law is less clear. The Florida Supreme Court has acknowledged sincere acceptance of responsibility as a nonstatutory mitigator in capital cases.⁵ The Fifth District Court of Appeal has found that the making of a full confession was a valid mitigating factor which, in combination with other factors, warranted a downward departure.⁶ The Second District Court of Appeal, on the other hand, has required a showing or remorse to accompany acceptance of responsibility⁷ and has asserted that the concepts of acceptance and early acceptance of responsibility are arguably incorporated into the mitigating factors set forth in sections 921.0026(2)(i) (cooperation) and 921.0026(2)(j) (remorse) of the Criminal Punishment Code (CPC) and, to that extent, it would be improper to allow a defendant to avoid the specific requirements of the CPC necessary to establish the express grounds for departure under the CPC.⁸

NOTES

¹See Green v. State, 84 So. 3d 1169 (Fla. 3d DCA 2012); also Rankin v. State, 174 So. 3d 1092, 1097 (Fla. 4th DCA 2015) (remorse and admission of guilt may be grounds for mitigation of sentence).

²“Acceptance of responsibility . . . demonstrates that an offender ‘is ready and willing to admit his crime and enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.’” McKune v. Lile, 536 U.S. 24, 36-37, 122 S.Ct. 2017 (2002) (quoting Brady v. U.S., 397 U.S. 742, 753, 90 S. Ct. 1463 (1970)).

³See U.S. v. Beserra, 967 F. 2d 254 (7th Cir. 1992).

⁴See U.S. v. Douglas, 569 F. 3d 523 (5th Cir. 2009).

⁵See, e.g., Stephens v. State, 787 So. 2d 747, 761 (Fla. 2001) (upholding trial court’s downplaying plea of guilty made for tactical advantage and for use as argument before the jury).

⁶State v. Randall, 746 So. 2d 550 (Fla. 5th DCA 1999).

⁷State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (“It is impossible for a defendant who refuses to accept responsibility for an offense to show remorse for that offense.”).

⁸State v. Hall, 47 So. 3d 361, 364 (Fla. 2d DCA 2010), n. 5.