Abstract
After surveying the many practical difficulties sentencing judges must confront in determining whether the offenders who appear before them are genuinely remorseful, recent dialogical accounts of remorse-based sentence reductions are examined. These accounts depend on a morally communicative approach to legal punishment’s justification and seem to confine such communication to offenders. They contend that, in order to respect remorseful offenders, sentencing judges must reduce their sentences. Why they should do so, by how much they should do so, and whether they should do so when the individuals being sentenced are recidivists, are among the questions discussed. Also examined is whether remorse should be a prominent mitigating factor in sentencing or only one among many aggravating or mitigating factors. In conclusion, it is suggested that existing sentencing practices might make more sense if we suppose judges to be looking for things other than genuine remorse in the individuals who appear before them.
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Notes
Most recently, Hannah Maslen, Remorse, Penal Theory, and Sentencing (Oxford: Hart Publishing, 2015) and Michael Proeve and Steven Tudor, Remorse: Psychological and Jurisprudential Perspectives (New York: Routledge, 2016).
Proeve and Tudor, Remorse, pp. 136–38. See also Mirko Bagaric and Kumar K. Amarasekara, “Feeling Sorry?—Tell Someone Who Cares: The Irrelevance of Remorse in Sentencing,” The Howard Journal 40 (2001): pp. 364–76. On public support for treating remorseful offenders differently than non-remorseful ones, see Julian V. Roberts, Punishing Persistent Offenders: Exploring Community and Offender Perspectives (Oxford: Oxford University Press, 2008): pp. 75–76.
Bryan H. Ward, “Sentencing without Remorse,” Loyola University of Chicago Law Review 38 (2006): pp. 131–67.
Maslen, Remorse, and Proeve and Tudor, Remorse. Nick Smith also supports a role for remorse in the criminal justice process in his Justice through Apologies: Remorse, Reform, and Punishment (Cambridge: Cambridge University Press, 2014). However, his account is not as specifically dialogical. Also, it is less clear whether and to what extent Smith sees the role of remorse as occurring primarily at the sentencing stage, especially under current forms of charge adjudication dominated by plea bargaining in its various forms.
Ward, “Sentencing without Remorse;” Jeffrie G. Murphy, “Well Excuse Me—Remorse, Apology, and Criminal Sentencing,” Arizona State Law Journal 38 (2006): pp. 371–86; Susan A. Bandes, “Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition,” in Jill Hunter, Paul Roberts, Simon N. M. Young, and David Dixon (eds.), The Integrity of Criminal Process: From Theory into Practice (Oxford: Hart Publishing, 2016): pp. 309–26. Smith, in Justice through Apologies, repeatedly emphasizes the many problems with reliably identifying genuine remorse.
Maslen, Remorse, pp. 5–11, and Proeve and Tudor, Remorse, pp. 29–49.
Ward, “Sentencing without Remorse,” pp. 142–54.
Smith, Justice through Apologies, p. 98 and p. 177.
See Recidivism Is a Core Criminal Justice Concern, National Institute of Justice, at https://nij.ojp.gov/topics/articles/recidivism-core-criminal-justice-concern (accessed November 12, 2020).
Smith, Justice through Apologies, p. 215.
See Bandes, “Remorse and Demeanor,” for a useful summary of the problems with identifying genuine remorse, or its absence, in certain kinds of offenders.
Smith, Justice through Apologies, pp. 137–38.
Bandes, “Remorse and Demeanor,” p. 316.
Smith, Justice through Apologies, pp. 203–15.
For an account of the kinds of brusque procedures that produce convictions in many misdemeanor cases, see Alexandra Natapoff, “Misdemeanors,” Southern California Law Review 85 (2012): pp. 1313–75. Note that 80 per cent of the cases that the US criminal justice system processes involve misdemeanors.
Ward, “Sentencing without Remorse,” pp. 157–64.
Jay Gormley and Cyrus Tata, “Remorse and Sentencing in a World of Plea Bargaining,” forthcoming in Steven Tudor, Richard Weisman, Michael Proeve, and Kate Rossmanith (eds.), Remorse and Criminal Justice: Multi-Disciplinary Perspectives (New York: Routledge, forthcoming). Smith, in Justice through Apologies, at pp. 190–93, also notes the problems that robust plea bargaining regimes pose for assessments of remorse and their role in the criminal justice system.
Andrew Ashworth, “Re-evaluating the Justifications for Aggravation and Mitigation at Sentencing,” in Julian V. Roberts (ed.), Mitigation and Aggravation at Sentencing (Cambridge: Cambridge University Press, 2011): pp. 21–39, at 27.
See Richard L. Lippke, “Rewarding Cooperation: The Moral Complexities of Procuring Accomplice Testimony,” New Criminal Law Review 13 (2010): pp. 90–118.
See Michael Tonry, Doing Justice, Preventing Crime (New York: Oxford University Press, 2020), pp. 147–86.
Maslen, Remorse, pp. 100–01; Proeve and Tudor, Remorse, p. 126.
Andreas (formerly Andrew) von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993): p. 10.
Maslen, Remorse, p. 107.
Smith, Justice through Apologies, pp. 156–57.
Smith, Justice through Apologies, p. 175.
Ashworth, “Re-evaluating,” p. 27.
See Daniel S. Nagin, Frances T. Cullen, and Cheryl Lero Jonson, “Imprisonment and Reoffending,” Crime and Justice: A Review of Research 38 (2009): pp. 115–200.
von Hirsch, Censure and Sanctions, pp. 12–13.
R. Antony Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001): p. 121.
The idea that legal punishment stands for the value of victims’ lives and interests is found in some of the writings of Jean Hampton. See her “A New Theory of Retribution,” in Raymond G. Frey and Christopher W. Morris (eds.), Liability and Responsibility: Essays in Law and Morals (Cambridge: Cambridge University Press, 1991): pp. 377–414 and “Correcting Harms Versus Righting Wrongs: The Goal of Retribution,” UCLA Law Review 39 (1992): pp. 1659–1702.
Maslen, Remorse, Chapter 8. See also her “Penitence and Persistence: How Should Sentencing Factors Interact?” in Julian V. Roberts (ed.), Exploring Sentencing Practice in England and Wales (London: Palgrave Macmillan, 2015): pp. 173–93.
Maslen, Remorse, pp. 171–73, and “Penitence and Persistence,” p. 184.
Maslen, Remorse, p. 175.
Maslen, Remorse, p. 104.
Maslen, Remorse, p. 104.
Proeve and Tudor, Remorse, p. 128.
Proeve and Tudor, Remorse, p. 128.
Proeve and Tudor, Remorse, p. 128.
Proeve and Tudor, Remorse, p. 128.
Proeve and Tudor, Remorse, p. 129.
Proeve and Tudor, Remorse, p. 129.
Proeve and Tudor, Remorse, p. 130.
Proeve and Tudor, Remorse, p. 129.
Proeve and Tudor, Remorse, pp. 140–44.
Proeve and Tudor, Remorse, p. 150.
Proeve and Tudor, Remorse, pp. 148–49.
Proeve and Tudor supplement their dialogical argument against aggravating the punishment of defiant gloaters with an appeal to parsimony (pp. 152–54). They suggest that we should not be too eager to search for aggravating factors in sentencing, although we should assiduously search for mitigating ones. However, in the presence of openly defiant offenders, not much searching will be needed: They stand before the sentencing judge and proclaim their pride or happiness in what they have done. It is not apparent why the judge should simply ignore this.
Proeve and Tudor do concede that there might be an appropriate aggravation principle according to which the defiantly remorseless, assuming that we can identify them with accuracy and consistency, might be punished more than those whose state of remorse, or lack thereof, cannot be discerned. See Remorse, p. 145. However, they argue that the burden of proof ought to fall on those who support this aggravating principle. I am not sure why the burden should fall on those who would support such a principle, especially given the intuitively plausible notion that the defiantly remorseless should be communicated with differently than those who are remorseful or about whose remorse we are uncertain.
Gormley and Tata, “Remorse and Sentencing,” forthcoming.
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Lippke, R.L. Remorse, Dialogue, and Sentencing. Criminal Law, Philosophy 16, 611–630 (2022). https://doi.org/10.1007/s11572-021-09599-0
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DOI: https://doi.org/10.1007/s11572-021-09599-0