Nick Smith: “Guidelines for Evaluating Apologies and Remorse in Criminal Contexts: Summary Version for Practitioners,” 2017 C4eJ [9]

GUIDELINES FOR EVALUATING APOLOGIES AND REMORSE IN CRIMINAL CONTEXTS: SUMMARY VERSION FOR PRACTITIONERS
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Nick Smith*

In most of the millions of cases in the criminal justice systems in the United States and around the world, state officials determine punishments in part based on their sense of whether an offender is remorseful. This ranges from traffic officers deciding whether to let an apologetic speeder off with a warning, all the way to sentencing judges determining if a capital offender demonstrates sufficient remorse to be spared execution.

Determining whether an offender is actually remorseful—rather than just faking it to lighten punishment—presents very complex theoretical and practical problems. In Justice through Apologies, I argued that all major theories of punishment should in principle typically endorse “apology reductions” for criminal sentences only if offenders demonstrate moral transformation by satisfying rigorous standards for apologies. According to most current practices, however, state agents determine punishments for millions of offenders by consulting gut feelings, evaluating a few behavioral clues, and rendering unappealable decisions regarding the defendant’s contrition. Findings of remorse can determine whether an offender lives or dies, yet we expect reviewers to “know it when they see it”: look into the defendants’ souls, intuit the depths of their evil, and punish accordingly.

This presents various problems. It invites inconsistency and unfairness in punishment, and also causes problems of proportionality as similar apologies are not treated alike. Some offenders receive too much credit for apologies choreographed by $1000 per hour attorneys and apology consultants who coach defendants on how to use their remorse to maximal strategic benefit, including how to express it, when to manifest it, when to avoid it. Rich offenders can throw money at the problem in other ways, for example enrolling in state-of-the-art treatment programs or providing victims with considerable redress in an attempt to demonstrate their sincerity. The genuinely repentant poor or mentally disabled offender, meanwhile, will often seem to lack credibility. Clothes, speech patterns, posture, class signifiers and so on all create a “demeanor gap” between races and classes. State agents exercise in-group bias in favor of those whose high-status lives look most like their own, so if a person looks and acts in a way that the court associates with criminals, then that person must overcome powerful implicit biases before the system credits her repentance.

Discretion generally tilts toward power, and impressionistic evaluations of remorse in policing and sentencing predictably lead to discriminatory effects. In the United States, the adversarial system driven by plea bargaining and framed by the Federal Sentencing Guidelines creates an especially hostile environment to thoughtful evaluations of offender remorse. The Sentencing Guidelines attempted to add some consistency to punishments by allowing reductions in sentences for those who “accept responsibility,” but, in practice, accepting responsibility has come to mean agreeing to a plea even while denying guilt. Apologies and remorse are a cornerstone of criminal justice and serve as a foundation upholding millions of sentences. They are also a crumbling, counterintuitive, and deceptive parody of justice.

If we are to continue reducing punishments for apologetic offenders, we should be much more explicit about how we classify the meanings of remorse. We should specify how those meanings should affect punishment, and how these standards apply fairly and transparently in all cases. We should promulgate definite standards, train state agents to apply the standards consistently, and vigilantly watch for discriminatory applications. This paper attempts to demystify the process of evaluating apologies by setting out questions that should help orient reviewers in criminal contexts. This summary is intended for practitioners, removing portions of the discussions that are of interest primarily to academics. For more detailed guidance, please see Justice through Apologies. This essay lists questions that should guide how we evaluate apologies across legal contexts. The guidelines below attempt to maximize our ability to reduce punishment when appropriate in the fairest possible way and in a manner subject to reasoned analysis and public scrutiny.[1] Such coding of apologies by experienced administrators, I believe, is more just, effective, and fair than allowing various state agents to conduct an impressionistic—and often implicitly biased— “examination of the criminal’s soul,” as one court put it.[2]

For these reasons, the following questions should serve as a useful guide for evaluations of apologies in criminal contexts:

  1. Has the offender corroborated the factual record?

Reviewers should first ask whether the wrongdoer explains what she did with an appropriate degree of specificity and thereby corroborates a detailed factual record of the events salient to the injury. Rather than offering vagaries like “I used poor judgment” or “I failed to heed the warnings,” reviewers should look for apologies that provide a clear account of what happened. This information may implicate others without excusing oneself. In conjunction with considerations regarding timing discussed below, offenders should generally “come clean” or “get it all out” early in the process rather than waiting for years of investigations and legal proceedings to disclose the extent of the transgressions. The offender will be exceptionally cooperative in helping authorities gather information and will not obstruct evidentiary process. Offenders who volunteer incriminating evidence increase their credibility, especially if prosecutors are unaware of the existence of such evidence or if it would have been particularly difficult to obtain. With the caveats noted later regarding not punishing defendants for protecting their rights, uncooperative offenders who make specious attempts to exclude evidence undermine their credibility.

Reviewers should also question the remorse of offenders who claim to have disclosed everything only to later release more incriminating information when pressure mounts. If possible, corroborated records should reach agreement amongst the victim, offender, and sometimes the community regarding what transpired and the relevant aspects of the context in which the injury occurred. In cases of crimes committed by multiple actors, contradictory stories raise doubts—especially if two offenders seek apology reductions while offering competing accounts of what happened.

Records will often include accounts of the mental states of the apologizer at the time of the offense, including motivations for committing the offense. If the offender took a calculated risk to maximize her personal wealth while endangering the well-being of others, she should not describe the consequence as unforeseeable. In addition to establishing the record, meeting this criterion goes some way toward demonstrating the offender’s credibility and candor.

  1. Has the offender accepted blame for the crime?

In accordance with notions of proximate causation, the offender accepts blame for causing the harm at issue. We can distinguish this from expressing sympathy for the injury, noting the difference between statements such as “I was wrong and I accept blame for X” and “I am so very sorry that this crime occurred.” These discussions benefit from speaking precisely in terms of “accepting blame” rather than “accepting responsibility.”[3] Accepting blame admits that I did something wrong and I deserve blame for the consequences. Accepting responsibility can mean any number of things, for instance when a maintenance worker “takes responsibility” for cleaning someone else’s mess (an occupational responsibility) or when an innocent bystander takes “moral responsibility” for a natural disaster by providing aid (an ethical duty).

The offender need not accept blame for every charge if she is innocent of some of them. She may explain, with precision, the portion of the blame that she deserves. This might entail apologizing and accepting culpability for a minor offense while aggressively defending against more serious and less credible accusations. Such honesty can counter adversarial trends that encourage opposing parties to deny everything and accuse everything, hoping that years of attorneys’ fees will produce truth somewhere in between.

Reviewers should pay especially close attention to acceptance of blame in cases of collectives harms committed by multiple offenders. Offenders who attempt to shift culpability to peers, supervisors, institutional dynamics, or social structures diminish their own culpability.

Acceptance of blame should link to culpable mental states, with intentional, knowing, willful, negligent, reckless, and other mens rea requirements reflected in the acceptance of blame. Attempts to explain why the offender is not at fault often bespeak a failure to accept blame. Offenders who appear primarily to regret being caught or subject to review often fail to satisfy this element. Offenders also should not attempt to describe intentional offenses as accidental or otherwise deny that it was their intention to harm. Those who invoke insanity defenses or otherwise cast their behavior as excused or justified will typically not accept blame.

In situations where legal doctrine deviates from common conceptions of proximate causation—felony murder, for example—reviewers may need to afford apologetic offenders some latitude in their understanding of blame for convicted offenses.

  1. Does the offender possess appropriate standing to apologize and accept blame?

The offender accepts blame for the harm and she—rather than an attorney, proxy, or other third party—undertakes the work of apologizing described herein. This can become problematic in various ways. First, someone other than the defendant may attempt to apologize for her. A parent, for example, might apologize for a child by stating “she is very sorry and accepts blame for her actions.” Although parents may have some insight into an offender’s attitudes that are unavailable to the court and that may add some credibility to the offender’s own stated acceptance of blame, third parties cannot do the work of apologizing for the offender. An attorney, for instance, cannot feel guilt for her client or complete her community service work on her behalf. Certain apologetic activities cannot be outsourced without altering their meanings. In situations where the offender has limited ability to express her apology—for example because of language barriers or disabilities—a proxy can help the offender articulate her contrition. Translating an offender’s statements, for instance, need not diminish their value.

Different issues arise when the state charges the defendant with an offense for which she believes she lacks standing to accept blame. This can result from an insistence of innocence: “Someone else should be apologizing because I didn’t do it.” Offenders can appear remorseless when they insist on their innocence in good faith. Such an insistence of innocence can prove contrary to their legal interests because that accepting a guilty plea—even when innocent—can be the safer legal strategy.[4] A system that credits apologetic offenders can increase injustice for the wrongfully convicted who maintain their innocence: not only do they face unjust punishment for the crime they did not commit but they may even be perceived as deserving even more punishment because they refuse to accept blame, apologize, or show remorse. Capital cases are especially worrying in this regard, as a capital defendant’s insistence of innocence can be perceived as the sort of lack of remorse that justifies lethal punishment.

The state might also pursue a crime different from or more serious than the defendant’s actual offense. If a prosecutor charges a street level drug dealer with money laundering but her low rank never brought her into such activity, then she lacks standing to accept responsibility for the money laundering. Given the prevalence of plea arrangements wherein defendants accept charges that may not reflect the spirit of their actual crime, the moral relation between offense, blameworthiness, charge, and apology can become divorced from the offender’s perception of what actually happened and what deserves an apology. Reviewers should be mindful of these convoluted moral chains, both to require the offender to personally accept blame for her crimes and to allow contrite offenders some latitude when charges do not line up cleanly with actual wrongdoing for which she feels remorse.

  1. Does the offender identify each harm?

Crimes often result from the aggregation of many lesser wrongs. The apologetic offender should identify each harm, taking care not to conflate several harms into one general harm or apologize for only a lesser offense (the “wrong wrong”). In the criminal context, this will include elements of the crime. Volunteering non-criminal activity that contributed to the offense such as alcohol addiction provides reviewers with additional insight into the offender’s understanding of how various activities led to the crime. Offenders should also distinguish harms to various victims and constituencies.

Self-awareness of contributory but non-criminal activity provides insights into her understanding of her predicament as well as her likelihood of recidivism. Alcoholism, for example, can relate to the harms caused as well as the likelihood of recidivism. Alcoholism is not, however, a crime. State reviewers should be wary of allowing such information related to non-criminal activities to effectively increase or decrease punishments. If an offender finds the primary harm caused by her commission of murder to be disobedience to her god, for instance, reviewers should take care to neither reward nor punish this view.

Given their prevalence and their status as what many consider to be “victimless crimes,” drug offenses create tensions in this regard. If a marijuana grower does not view her illegal activity as harmful, then as a matter of political conscience she may refuse to apologize or accept blame. She may also carefully parse the harms, explaining that she does not find growing harmful but she appreciates that trafficking in such illegal activity visits various harms upon her family, her community, law enforcement, and others. Reviewers should understand such disputes regarding the proper nature of harm as probative of the offender’s attitudes and predictive of her future behavior.

  1. Does the offender identify principles underlying each harm?

The offender should identify the moral principles underlying these harms with an appropriate degree of specificity, making explicit the values at stake. The offender explains why she is wrong. Someone who understands both the legal and the moral justifications for the criminalization of these activities provides reviewers with insights into their comprehension of the wrongness of their actions. An offender who views the activity as inappropriate solely because it is illegal demonstrates a kind of superficiality that reviewers should take into account, if only as an indicator that she lacks internal motivations for not reoffending and may recidivate when she believes she is unlikely to be caught. In some cases offenders may not understand the criminal nature of their activity or the seriousness of their crimes. Consider, for example, white-collar criminals who knew that their fraudulent activities exposed them to civil claims but did not realize that they faced prison. Such a shock can trigger rapid reform.

Those who identify the principles underlying their harms provide insights into their character and the nature of their offenses. Notice that many of the relevant moral principles—avarice, lust, envy, etc.—are not necessarily illegal. Offenders will hold diverse views regarding the ultimate source of the moral authority underlying laws. Some may cite the Koran, some their Baptist grandmother, some their instincts. Reviewers should resist the temptation to place more credence in the belief systems that come closest to their own views.

  1. Does the offender share a commitment to the principles underlying each harm?

In addition to understanding the principles underlying the various harms at issue, the offender commits to these principles as just. The phrase “I was wrong” conveys this better than “I am sorry,” as the former accepts blame for what the offender appreciates as wrongdoing while the latter may provide no more than an expression of sympathy or a displeasure with a state of affairs. As with all elements, reviewers may question offenders to ensure that they understand and commit to the values at issue. Perhaps more than any of the other aspects of the apology, an offender’s expressed commitment to the violated principle can humanize her. Rather than just another human statistic to be processed, we see the offender as a person with shared values.

The offender may not share all of the underlying values, again with an advocate for drug legalization providing an obvious example. In such cases the offender may clarify that although she disagrees with the underlying principle, she understands the principle, she respects the law, and she will not violate it again. Reviewers can understand such an offender as simultaneously disagreeing with, yet pledging obedience to, the particular statute. Reviewers should evaluate the credibility of such a pledge in the context of other elements.

  1. Does the offender recognize victims as moral interlocutors?

Throughout this process the offender should recognize the victims of the underlying offenses as moral interlocutors. With this, she demonstrates that she considers the victims to be moral agents worthy of engaging in moral discourse. She abandons the belief that she can disregard the victim’s dignity, humanity, or worth in pursuit of her own objectives. This process invites the victim and others to judge her. She makes herself vulnerable and cedes control. In her most vulnerable moments the offender turns not to her allies but to her victims, now welcoming them as peers in the struggle for meaning and justice.

Offenders can demonstrate this by reaching out to victims in various ways, including attempting to apologize to them directly. They might include their direct contact information to those harmed, allowing victims to control the timing and other terms of interactions.

Occasions may arise in which reviewers credit offenders for not reaching out to victims because the offender appreciates that contacting the victim in order to apologize might actually cause further harm. Reviewers should be wary of offenders who direct their apologies primarily to review committees and appear to disregard victims. Given the limited opportunities for offenders to address victims within many justice systems, reviewers should appreciate this limit and facilitate such exchanges where possible.

  1. Has the offender expressed and demonstrated categorical regret?

The offender should demonstrate categorical regret for the actions in question, meaning she believes that she made a mistake that she wishes could be undone. Reviewers should distinguish categorical regret from the offender’s continued endorsement of her actions (often accompanied by an expression of sympathy regarding what she perceives as the justifiable consequences of her actions). If an applicant claims that her conduct was “the best choice she had” given the circumstances, reviewers have reason to doubt if she would act differently if confronted with similar temptations.

Reviewers should note precisely what the offender regrets. Sentencing courts often confront sentiments similar to those expressed in People v. McDade, where the offender stated: “I would like to say due to the seriousness of the charges, it’s forced me to look at myself, and I regret getting in the situation that I got in, which all I want to do is just get through this and return back to my family.”[5] The appellate court found that this “statement indicated he was not sorry for what he had done to the victim, but rather he was sorry for what he had done to himself.”[6] Reviewers should not discount the importance of an offenders regretting the damage caused to themselves and to their families, and their wishes that those effects could be undone. Self-interested regret has motivation power. If regret for harming victims does not accompany this regret for harms caused to oneself and one’s immediate family, however, then reviewers should question offenders’ appreciation for the nature of the harms caused as well as their commitment to reform.

If the offender appears primarily to regret being caught, reviewers can attempt to clarify the intended significance and adjust their evaluation accordingly. Inarticulate defendants may be especially prone to speak of regret in a general sense that appears to connote self-interest rather than regret for offending and causing harm to others, and reviewers should take precautions to prevent unfortunate phrasing from obscuring categorical regret for harming the victim.

  1. Has the offender performed the apology?

When appropriate, offenders should express apologies to the victim rather than keeping thoughts of contrition to themselves or sharing them only with third parties such as the reviewers. Offenders should address apologies to victims as moral interlocutors. They should express the content required of a categorical apology explicitly. The apology should reach the victim or an appropriate proxy. The victim may exercise reasonable discretion regarding whether the offender should present the apology only to the victim or also to a broader community. The determination of whether the apology should be committed to writing, conferred to the victim in writing, or entered into the record also lies within the victim’s and reviewer’s reasonable discretion. Written statements will often prove valuable given the complexity of apologies. An apology can be a technical undertaking as it corroborates a record, identifies norms, parses causal moral responsibility, and commits to certain kinds of reform and redress. A written version of the apology allows the offender to construct a precise statement attending to these details. Oral apologies often occur in emotional fits and starts with garbled content. Rather than attempt to identify the contents of the apology amidst an emotional and highly nuanced conversation, the victim, reviewers, and other parties can benefit from scrutinizing a stable written statement in order to identify the sorts of meaning the offender may or may not have offered. In addition, a written apology records the statement, allowing the victim to share it with others or produce it as evidence.[7] On the other hand, oral apologies afford victims and reviewers an opportunity to evaluate the offender’s demeanor. They can also ask questions and engage the apologizer and read her cues when “off-script” of a written apology. A written apology supplemented by face-to-face conversation is usually optimal. To repeat: reviewers should exercise appropriate skepticism toward apologies and remorse directed primarily at the reviewing body and should direct applicants to take steps toward reconciling with the offended. Given the dynamics of current criminal procedures in the United States, even those with the best intentions may find it difficult to apologize directly to victims rather than to the court and its officials.

  1. Has the offender demonstrated sufficient reform?

The categorically apologetic offender will reform and forbear from reoffending over her lifetime. She will demonstrate this commitment by resisting temptations to reoffend. Actions will speak louder than words. Resisting many similar temptations over a considerable duration adds credibility. The shorter the record and the fewer temptations resisted, the less confidence reviewers should feel in their ability to predict the trajectory of the offender’s behavior.

This temporal aspect of reform creates obvious procedural challenges. Reviewers have a better sense of reform when they possess longitudinal data on the offender’s pre- and post-offense behavior. Again, the longer she goes without reoffending when presented with similar temptations, the more credible her reform. Yet in the context of most sentencing, courts have very little data that speaks credibly to the offender’s reform. Unless they have compelling evidence establishing otherwise, reviewers will typically infer that offenders will recidivate. If an offender in her twenties commits an assault and stands before a sentencing judge one year later, the court has a limited record of reform to evaluate. If the applicant was incarcerated for much of the duration between offense and review, while in prison she may not have confronted anything like similar opportunities to reoffend. Beyond having the occasion to demonstrate reform, offenders need time to appreciate that they should reform. Whether because they deceive themselves about their culpability or because they fail to understand why they should reform, it takes time to undergo the sort of change of heart associated with a categorical apology. Offenders may require years of incarceration and treatment before they even begin to undertake internally motivated reform. Even then, they do not flip a switch from bad to good. Prima facie, reviewers face a serious problem: how can they judge reform before the offender has actually had time to reform?

For these reasons, when reviewers evaluate an offender’s reform becomes especially important. Expressions of remorse that include concrete measures of reform will gain credibility. Different opportunities for reform are available from pre-crime, offense, arrest, allocution, trial, sentencing, incarceration, conditional release, execution, and the many points in between. The timing of sentencing, however, often prematurely judges remorse with insufficient data. In Justice through Apologies I consider in more detail additional and potentially more appropriate opportunities for evaluating reform, including credit for serving “good time” in prison. Such a broader perspective on reform should afford a more accurate evaluation of the apology across more data points. Evaluations of apologies could then be more like clemency and pardon decisions, where reviewers enjoy longer durations between offense and evaluation and therefore generate more confidence when determining the extent of reform.

Reviewers should also consider conduct before the offense. Although not entirely symmetrical because the very notion of reform promises a break with the past, reviewers should consider all relevant information regarding the trajectory of the offender’s record. A repeat offender who previously promised but failed to reform will lack credibility barring some reason for distinguishing the past from the future. Apologies from offenders with a record of deceiving, refusing to accept blame, failing to complete addiction treatment programs, or otherwise backsliding will appear unreliable.

Reviewing bodies should consider the conditions that created temptations to offend. If the convict was impoverished at the time she committed a petty theft, for instance, a better financial situation may reduce the likelihood of recidivating. Addiction treatment should factor prominently in this regard; an applicant who offended while addicted and has been sober for years since committing the offense demonstrates that she has potentially reformed her conduct in part. For those who have had little opportunity to demonstrate reform at the time of review, a promising plan to utilize their post-conviction time—whether in prison or otherwise—offers a window into their imagined path toward reform. Such promises to reform will carry less weight than actual demonstrated records of change.

It will be challenging for reviewers not to compound advantages or disadvantages of offenders in this regard. Wealthy offenders, for instance, have resources to post bail and demonstrate reform by participating in top treatment programs at the counsel of elite attorneys who understand what sorts of activities will impress particular reviewers. Indigent offenders, by contrast, may languish in prison unable to do much to demonstrate reform other than staying out of further trouble. Realistic reviewers will appreciate the advantages of privileged offenders upon release into money and opportunity when compared with those who return to poverty even worse off as a result of being branded with a criminal sentence. This does not, however, mean that the rich are necessarily more reformed than the poor.

Finally, recidivism rates vary considerably by offense. Reviewers should adjust their expectations for what sufficiently demonstrates reform accordingly.[8]

  1. Has the offender provided appropriate redress for her offenses?

The offender should take practical responsibility for the harm she causes, providing commensurate remedies and other incommensurable forms of redress to the best of her ability. Redress can take many forms, pecuniary or otherwise. The applicant should provide a proportionate amount of redress, but she need not meet excessive demands from victims with unreasonable or inappropriate expectations. Questions regarding what constitutes excessive demands can be determined in consideration of cultural practices and such deliberations will often prove contentious. She provides these remedies to the offended parties or a suitable proxy.

The apologizer should accept the legitimacy of some amount of legal punishment for her criminal wrongdoing. An offender can remain contrite while protesting what she perceives to be excessive sanctions—sentences for drug crimes will be the most common case here. The amount of punishment that offenders believe they deserve offers insight into the extent of their remorse.

Timing of the redress also provides probative value. Redress early in the process can indicate the offender’s inclination to reform as well as her desire to reduce the harm to the victim as soon as possible. As the Federal Sentencing Guidelines recognize, redress prior to conviction can reinforce a willingness to accept blame.[9] The greater the portion of redress provided at the time of review, the more credible the apology.

Reviewers should not confuse limited resources or opportunities to provide redress with an absence of contrition. Indigent offenders will often lack the ability to offer redress as they wait in detention and struggle to find money to post bail, retain attorneys, and pay fines.[10] A small amount of redress earned through considerable efforts of an indigent inmate can provide more insight into contrition than a large check from a wealthy but unmoved offender.

Reviewers should also appreciate the potentially infinite forms of redress other than financial compensation. Consulting victims regarding their preferred methods of redress creates an opportunity to treat them as moral interlocutors. Reviewers should avoid language suggesting that redress can in every instance provide value commensurate with the injury, and they should watch for offenders who overstate the ability of redress to “pay their debt” or “put this behind” them. The victims or the state may reasonably contend that some injuries can never be sufficiently redressed despite offenders’ best efforts.

Apologies from offenders who fail to redress harms or provide a credible plan for providing redress should be discounted accordingly.

  1. Does the offender intend for the apology to advance the victim’s well-being and affirm the breached value rather than merely serve her self-interest?

Instead of merely promoting the apologizer’s purely self-serving objectives, the offender should intend her apology as a good faith attempt to advance the victim’s well-being and affirm the breached value. Benefits the offender receives from her apology—such as restored social standing, amelioration of guilt, or reduced punishment—should be the byproduct rather than primary objective of the apology. The offender should not offer the apology primarily as a means to the end of reducing punishment. We can understand the Sentencing Guidelines’ refusal to reduce punishment for an offender convicted at trial and who “only then admits guilt and expresses remorse” as a way to evaluate intentions in this regard.[11] This provides a secular correlate to the common religious belief that “only redemptive acts carried out from a conviction of their intrinsic rightness should have the power to redeem.”[12]

Behavior demonstrating a pattern of remorse will likely provide greater insight into the offender’s mental states than will bare assertions of her intentions (“I promise I apologize out of respect for the victim rather than to reduce my punishment!”) or demeanor evidence (effusive crying to demonstrate that I feel really awful). Timing, placement, and method of apology can provide windows into motivations. Apologizing well before conviction can provide evidence of the offender’s intentions because the confession and acceptance of blame suggests that the offender acts from moral principles despite the strategic disadvantages this likely causes her. Offenders who seek to advance the victim’s well-being should demonstrate sensitivity to the impact of apologies on victims, for instance by taking precaution not to unnecessarily open old wounds or by heeding victims’ requests that details of the confession remain private because of the harm publicity might cause. Here offenders find opportunities to treat victims as moral interlocutors.

In this regard and in many others, apology reductions can change strategy and dynamic for both prosecution and defense. Zealous and overzealous representation can substantially undermine an offender’s remorse. For example, an attorney may insist on denying wronging and aggressively attempt to suppress evidence that corroborates an apologetic confession. If we grant reductions for contrition, effective attorneys will need to develop new ways to represent the interests of their clients by understanding their client’s moral transformation, their objectives in confession, the legal and interpersonal landscape into which the confession would fall, and the most effective means of reaching those objectives. Using clear standards for apology reductions should help smoke out apologies calibrated to limit exposure to legal penalties or parlay undeserved moral credit into self-serving benefits. Reviewers should have a healthy skepticism for apologies that smell of the law office, but hopefully such standards allow them to parse the meanings without unduly discounting apologies that attempt in good faith to meet categorical standards.

  1. Does the applicant demonstrate appropriate emotions?

As a result of her wrongdoing, the offender should experience an appropriate degree and duration of sorrow and guilt as well as empathy and sympathy for the victim. Reviewers should determine what constitutes the appropriate qualitative and quantitative emotional components of apologies in consideration of cultural practices. Focusing reviewers on such evidence and requiring finding of fact on these points should discipline committees to value the emotional content of the apology as only one element of many, allowing them to attribute apologetic meanings to emotions without overvaluing dramatic displays of feeling. However distraught a convict, these emotions alone do not necessarily accept blame or demonstrate reform.

Emotional content and intensity will vary over time. Immediately after committing a crime, adrenaline-fueled fear and denial may limit the offender’s ability to understand the harms she causes. She may come to appreciate the seriousness of her offense only upon hearing a victim impact statement. For some, the sharp intensity of angry self-loathing upon conviction may evolve into a somber acceptance of guilt. An offender’s experience of seemingly conflicting emotions such as simultaneous guilt for committing the crime along with hope in her attempted self-improvement need not undermine the emotive force of her apology. Reviewers should also not underestimate offenders’ cognitive and emotional bias toward denying guilt, especially early in the process as they come to terms with their situation. Offenders may require a considerable amount of guided reflection to process and express complex emotions, particularly those offenders with preexisting emotional and psychological challenges. The procedural environment can also influence emotions, with adversarial processes that isolate the offender differing from restorative practices that actively cultivate feelings as offenders interact with stakeholders in various ways. Reviewers should calibrate expectations for the offender’s emotions accordingly.

Reviewers should not expect emotional amplifiers—“I am so very very deeply sorry”—to convey the central meanings of apologies.

Concluding Remarks

With these guiding questions in view, we can appreciate how “gut instincts” about remorse in punishment often fail us. Compared to allowing various state actors to improvise according to their personal and often vague notions of what contrition is and how it should relate to punishment, evaluating each case based on the above criteria should produce much more consistent and fair results. Reviewers will inevitably need to weigh and prioritize the various elements in light of the relationship between the meanings of the apologies provided and the objectives of the system. But reviewers should appreciate that none of the thirteen elements are trivial. Reviewers should recognize red flags, understand the dangers they present, and judge accordingly based on the totality of the circumstances. Many additional questions will arise when applying these guidelines, and I again refer readers to the relevant sections of Justice through Apologies for more detailed discussions and application notes. A few issues will already be obvious and merit brief mention here.

First, where and when should we evaluate offender apologies and remorse? For these guidelines to work to maximal effect, qualified reviewers should apply them at appropriate times. As noted throughout, forbearance, reform, and redress present ongoing projects: the categorically apologetic offender reforms and forbears from reoffending over her lifetime. With the possible exception of death, no single moment allows for final judgment of an apology’s meaning. Apologies provide treatments, not cures. An offender resisting temptations to reoffend over a considerable portion of her life should be considered more reliably reformed than someone who lacks a similar record. Recidivating gives reason to reinterpret all preceding apologetic gestures and reduce their significance accordingly. Just as a sentencing hearing does not provide an especially telling occasion to judge an offender’s recovery from addiction—and indeed it may be a particularly ineffective time to evaluate because of the likelihood that the addict will be on her best behavior—singular moments in the criminal process provide but a glimpse into remorse. If only judges could look into the present and future of the offender’s soul and divine her remorse forevermore. But they cannot, and believing otherwise is dangerous judicial occultism. Ideally, reviewers should base major reductions in punishment for apologies upon longitudinal evaluations of an offender, with demonstrations of contrition over time deserving the greatest reductions. Reviewers can identify such data points at all stages of the process, including but not limited to pre-offense, immediately post-offense, pre-arrest, arrest, arraignment, plea negotiations, plea allocutions, trial, sentencing, various restorative processes, time served, parole, probation, and post-release. The objective is to maximize data points available to reviewers at various stages.

Who should evaluate offender remorse? In general, evaluations of apologies should be conducted by reviewers who can consistently apply coherent and compelling standards for apologetic meanings that track the intended penological purposes. Just as we would not accept an unqualified correctional officer prescribing medication for an inmate’s mental illness, those making judgments about apology reductions should be fluent in the languages of contrition. In addition to holding the appropriate expertise, reviewers should be neutral third parties without conflicts of interest in the outcomes. Prosecutors and defense attorneys can offer insights into offenders’ apologies, but given their institutional roles as advocates to respectively maximize or minimize punishment we should not entrust them with the final word on what sorts of reductions offenders deserve. Prosecutors’ combination of power and discretion to charge and plea bargain, coupled with their incentive to increase conviction rates and capitalize on sunk costs, creates a dangerous mix that leaves them especially ill-positioned to evaluate apologies. Plea situations—which comprise the vast majority of cases in the United States given the realities of drug case load management—problematically station prosecutors as the primary if not sole arbiter of apologies. Expert witness testimony from either side of the conflict can also provide insights into apologies, but again the state should view their reliability in light of their incentives to distort the evidence.[13] The guidelines should maximize the fairness of such decisions and institute rigorous appellate oversight to ensure that the state does not abuse such authority.[14]

Reviewers should also be appropriately detached from the crime in order to evaluate apologies free from institutional bias of excessive emotional distortions. Victims, for instance, may want an apology so desperately that they inflate the meanings conveyed and fail to understand the correlation between the apology provided and the penological objectives. Prosecutors, by contrast, may become so jaded that they discount all apologies as disingenuous.[15] Instead, reviewers should cultivate an unbiased attitude that allows them to evaluate the cognitive, behavioral, and emotive elements of apology. We might think of juries as the conscience of the community and therefore good candidates for applying apology reductions, but they have no necessary expertise and cannot provide continuity of review as an offender’s remorse evolves over time.

Sentencing judges seem like obvious candidates for reviewing apologies, but they also typically lack training in the subject. Replacing ad hoc impressionistic review with judicial training on the nuances of apologetic meaning could improve this situation. Oversight by state experts coupled with less deferential appellate review would also help the process conform to more defensible standards. Judges—like victims, arresting officers, prosecutors, expert witnesses, social workers, or any other one of these reviewers—have a limited perspective on any particular offender’s remorse. State experts who follow the development of an offender’s remorse can synthesize more holistic views of how apology reductions should apply. Unlike Guidelines section 3E1.1, review of reductions for apologies should not be afforded exceptional deference. An apology evolves over time, at each stage warranting de novo review based on new evidence added to the record. The trajectory of apologetic meanings can go in opposite directions, with an initially remorseless offender radically transforming or an apparently model penitent being exposed as a fraud. We should retire the simpleminded legal fiction born from the epistemological limits of criminal procedure that judges can, in a single moment, see into the hearts of criminals. Replacing this metaphysical convenience requires rolling up our sleeves to do the gritty work of applying apology reductions. For these reasons, states utilizing apology reductions should a) establish clear standards regarding the sorts of meanings expected of apologies to warrant reductions in punishment; b) promulgate those standards widely and train experts to apply these standards; c) rely on experts to gather longitudinal data and synthesize data provided, and to make evaluations of offender apologies based on this information; d) provide rigorous oversight of these determinations to maximize accuracy and consistency. This leaves two preferable options for who should occupy this institutional role: either better-trained judges with expertise in apology reductions who follow the apologies of individual offenders over time, or non-judicial state experts who specialize in evaluating apologies and report their recommendations to the judiciary and other state agents who control custodial and non-custodial punishments. Any number of permutations of these possibilities might also prove viable, for example combining both better training for judges and providing them with readily available access to state experts.

Precisely how much should a state reduce punishment once an offender establishes various apologetic meanings? In general, reviewers should think in terms of a sliding scale, with more thorough apologies deserving greater reductions in punishment.[16] Various sources suggest a one-third reduction, but this is not especially informative without details about the offense, the punishment and its objectives, and the apology. The difficulty of answering this question results in part from divergent views regarding why we punish, how much we should punish, and what kinds of punishment provide proportionate and commensurate responses to crime. Apologies and all of their nuances add layers of complexity. My basic advice here calls for legislative bodies to articulate the underlying objectives of punishment pursued by the judiciary and to correlate these objectives with apology reductions. If they wish to index punishments to remorse or remorselessness, legislatures should make these intentions as explicit as possible so that the standards can be applied consistently and the results measured with the relevant metrics. Of course legislators will debate all aspects of apology reductions, and hopefully such debates will advance the analysis beyond anything proposed here. Criminal procedures are the pumps and hydraulics driving these conversations, and this is very much an evolving field as theorists and practitioners work through the fine-grained details. International practices such as active remorse (tätige reue) in Germany and neighboring jurisdictions provide additional resources. Arguing about the amount of reduction for apologetic offenders, promulgating rules, and providing guidance to state agents stands a far better chance of approximating justice than the current practices of expecting individual reviewers to improvise based on their gut instructs.

 

* J.D./Ph.D.; Professor and Chairperson, University of New Hampshire Department of Philosophy; nick.smith@unh.edu. This paper reproduces and condenses portions of arguments appearing primarily in Justice through Apologies: Remorse, Reform, and Punishment (Cambridge University Press, 2014) as well as portions of “Why Public Apology is a Friend of the Powerful,” Aeon Magazine, October 14, 2014 (available via http://aeon.co/magazine/society/why-the-apology-is-a-friend-of-the-powerful/) (accessed November 8, 2017). Please refer to that work as well as I Was Wrong: The Meanings of Apologies (New York: Cambridge University Press, 2008) for much more extensive treatments of these issues.

[1] See Stephanos Bibas, “Forgiveness in Criminal Procedure,” Ohio State Journal of Criminal Law 4 (2007): 347 .

[2] U.S. v. Vance, 62 F.3d 1152, 1158 (9th Cir. 1995).

[3] See I Was Wrong, 33-38.

[4] See State v. Hardwick, 905 P.2d 1384, 1391 (Ariz. Ct. App. 1995): “As contrition or remorse necessarily imply guilt, it would be irrational or disingenuous to expect or require one who maintains his innocence to express contrition or remorse.”

[5] People v. McDade, 579 N.E.2d 1173, 1183 (Ill. App. Ct. 1991).

[6] Ibid., 1184.

[7] See I Was Wrong, 78, 142, and 232.

[8] See the Bureau of Justice Statistics reports on recidivism, available at http://www.bjs.gov/index.cfm?ty=tp&tid=17.

[9] 2012 Guidelines Manual § 3E1.1.

[10] See Michael O ‘Hear, “Solving the Good-Time Puzzle: Why Following the Rules Should get you Out of Prison Early,” Wisconsin Law Review 1 (2012): 195, 217.

[11] 2012 Guidelines Manual § 3E1.1.

[12] See Jon Elster, “Redemption for Wrongdoing: The Fate of Collaborators after 1945,” Journal of Conflict Resolution 50-3 (2006): 342, 336.

[13] See Michael Proeve and Steven Tudor, Remorse: Psychological and Jurisprudential Perspectives (Burlington: Ashgate, 2010), 104.

[14] Stephanos Bibas and Richard A. Bierschbach,“Integrating Remorse and Apology into Criminal Procedure,” Yale Law Journal 114 (2004): 85, 130: “prosecutorial discretion raises the dangers of discrimination and abuse of power. But these dangers are inherent in existing prosecutorial discretion; remorse and apology make them no worse.”

[15] See Margareth Etienne and Jennifer K. Robbennolt, “Apologies and Plea Bargaining,” Marquette Law Review 91 (2007): 295, 316-17.

[16] Bibas, “Forgiveness in Criminal Procedure,” 339.