Remorse, Penal Theory and Sentencing

Hannah Maslen

• Publisher: Hart Publishing
• Year: 2015
• Print ISBN: 9781509915439
• eBook ISBN: 9781782258940
• Edition: 1
• Topic: Law
• Subtopic: Sentencing
• Index: Law

This monograph addresses a contested but under-discussed question in the field of criminal sentencing: should an offender's remorse affect the sentence he or she receives? Answering this question involves tackling a series of others: is it possible to justify mitigation for remorse within a retributive sentencing framework? Precisely how should remorse enter into the sentencing equation? How should the mitigating weight of remorse interact with other aggravating and mitigating factors? Are there some offence or offender characteristics that preclude remorse-based mitigation? Remorse is recognised as a legitimate mitigating factor in many sentencing regimes around the world, with powerful effects on sentence severity. Although there has been some discussion of whether this practice can be justified within the literature on sentencing and penal theory, this monograph provides the first comprehensive and in-depth study of possible theoretical justifications. Whilst the emphasis here is on theoretical justification, the monograph also offers analysis of how normative conclusions would play out in the broader context of sentencing decisions and the guidance intended to structure them. The conclusions reached have relevance for sentencing systems around the world.

1

Remorse and its Relevance to Penal Theory

Northampton County Judge FP Kimberly McFadden sentenced Dennis Francis Wechsler Jr to 49 to 150 years behind bars for sexually abusing girls ages 15, 8 and 7.… [McFadden] said she believed he was truly remorseful for his actions, and she accepted the apologies he offered his absent victims. Those words, however, could not undo the damage he had caused, she said. ¹

REMORSE CANNOT CHANGE the past. No matter how deeply and genuinely sorry an offender is for the harm he caused, what is done cannot be undone. How, then, can remorse ever be relevant to the sentence an offender receives? This question is most challenging for theories of punishment concerned with the offender’s desert. If the punishment an offender deserves is proportionate to the seriousness of his offence, remorse seems to have no legitimate role to play. Desert theories are said to be backward looking. They are concerned with the facts surrounding the offence—the degree of harm caused or risked, and the offender’s culpability for it. Subsequent remorse cannot, it would seem, be amongst these facts.

But, the prima facie irrelevance of remorse is in great tension with the societal and, indeed, penal significance often attached to it. The recent media coverage of the trial of Rolf Harris produced many headlines focused on his lack of remorse: ‘Rolf Harris: Jailed for five years and nine months but shows no remorse’, ² ‘Rolf Harris sentenced to five years and nine months after showing “no remorse at all” over child sex offences’, ³ ‘Remorseless Rolf Harris is handed six-year jail term’. ⁴ His lack of remorse was perhaps seen as confirming once and for all that he was well and truly lacking in moral fibre. When he later launched a bid to appeal against his conviction, the response of at least one of his victims (and, consequently, the headlines) was to again condemn his lack of remorse: ‘It really shook me up and it’s really wrong of him. It shows that he’s got no remorse in any shape or form’. ⁵

In addition to the significant societal interest in the offender’s response to his offence, the presence of remorse is considered to be a mitigating factor in many jurisdictions around the world. According to the 2012 Crown Court Sentencing Survey conducted in the courts of England and Wales, remorse was the most common mitigating factor taken into account by judges. ⁶ Its role is often formalised in guidelines or becomes firmly established through precedent within case law. In capital cases it can often make the difference between life and death. ⁷

But, how can this practice be justified if remorse does not alter what was done? For sentencing rooted in consequentialist justification of punishment, the possibilities are clear: if—and the ‘if’ is contingent on empirical likelihood—remorse were to indicate a reduced need for specific deterrence or particular amenability to rehabilitation, then it would justify imposing a less severe sentence. Pure consequentialist theories of punishment are concerned with preventing future crime at the lowest material and human cost. If the remorseful offender does not require as much punishment as the unremorseful, then it would be more efficient to impose the lesser quantum.

However, the relevance of remorse for desert theories cannot be founded on any effect remorse might have on future behaviour. Remorseful and unremorseful offenders alike are punished in proportion to their past misconduct. Being thus, must sentencers be adopting consequentialist sentencing aims when they reduce an offender’s sentencing based on his remorse? Correspondingly, if a sentencing regime were to be based solely on the foundations of desert, must it relinquish remorse as a mitigating factor?

OVERVIEW OF THE BOOK

This book is divided into two parts. The first part examines five potential desert-compatible arguments for the mitigating role of remorse at sentencing. The second part examines implications of the theoretical arguments for sentencing practice and provides an introduction to the approaches taken in various jurisdictions.

Part I: Retributive Arguments

In the first part of this book I examine various arguments that seek to reconcile desert theories with the mitigating role of remorse. Drawing on judicial sentencing remarks and guidance, I consider five types of argument that could be advanced to explain why the remorseful offender should receive a reduced sentence: the Changed Person argument, the Reduced Harm argument, the Already Punished argument, the Responsive Censure argument and the Merciful Compassion argument.

The first argument relies on the idea that the remorseful offender is a changed person. I consider both the stronger version of this argument—that the remorseful offender is a different person from the person who committed the offence—and weaker versions of the argument, which claim that the remorseful offender has become less responsible or blameworthy for the offence due to his remorse. I conclude that none of these arguments succeed.

Second, I consider the argument that remorse reduces the harm of the offence. If the harm of the offence is reduced, it might be claimed, then the quantum of punishment due is correspondingly reduced. I examine both the argument that remorse can forestall significant psychological harm to the victim and the argument that remorse reduces the overall ‘badness’ of the offence. I conclude that there are limited circumstances under which the former argument succeeds but that estimations of harm at sentencing require harm to be temporally bounded. The latter argument is shown only to succeed to the extent that remorse provides evidence of lesser culpability. It cannot retroactively alter facts about the offender’s state of mind at the time of the offence.

The third argument addressed is founded on the idea that remorse might substitute some of the deserved punishment. Remorse involves a kind of suffering. If the remorseful offender is already suffering, it might be claimed, the state need not inflict as much hard treatment as it otherwise would. Examining this possibility in relation to prominent desert theories, I conclude that where the infliction of punishment is justified by its penitentiary function, self-imposed penances constitute some of the deserved punishment. I demonstrate that other theories are committed to the view that punishment must be delivered by the state and that remorse cannot therefore serve as a substitute.

The fourth argument draws on the emphasis in modern desert theories on the censuring role of punishment. If, to communicate disapprobation, punishment appeals to the offender’s reflective capacity then it could be claimed that the offender’s remorse is of relevance to this function. I argue that optimal communication will be attuned to its recipient and that, where the recipient has already conceded the message, as demonstrated in his remorse, censure should be responsive to this. I suggest that this argument is not only compatible with communicative desert theories but also implied by them.

The final argument I consider is that remorse justifies showing merciful compassion towards the offender. According to this argument, remorse evokes the legitimate sympathy of the judge and, based on this charitable concern for the offender, a degree of leniency can be extended. I suggest that mercy may not be the appropriate response to the remorseful wrong-doer and that, even if it were, the Responsive Censure argument developed in Chapter 5 provides a more principled basis for remorse-based mitigation. Further, in operating more ‘internally’ to deserved censure, it is preferable to a justification based on merciful compassion.

Part II: Remorse and Sentencing Practice

In the second part of this book I turn to sentencing practice and the role that remorse plays therein. In doing this, I draw on the arguments assessed in the first part of the book to demonstrate the implications they have for different elements of sentencing guidance. Examining the practical implications of a normative argument serves to prompt reflection on its validity. I argue that implications of the Responsive Censure argument lend it support.

In Chapter 7 I examine how the nature and seriousness of different offences might influence the extent to which remorse should mitigate an offender’s sentence. I address the claim that remorse can only have a limited role to play for offences of the greatest seriousness. I then consider whether remorse is the appropriate response to certain offences of lesser seriousness and propose an alternative approach to remorse-based mitigation for such offences, drawing on the concept of ‘civic duty’. The outcome of this chapter is a series of suggestions that would add more nuance and direction to sentencing guidelines, based on the nature of remorse and its relationship to mitigation.

In Chapter 8 I address the issue of interactions between different—and potentially conflicting—sentencing factors. In particular, I consider how the remorseful offender with previous convictions should be sentenced. Drawing on the principal justifications for the aggravating role of previous convictions, I examine whether and how—if we were to accept their tenets—the mitigating role of remorse would be affected. I demonstrate that the answer differs depending on which model of previous convictions is accepted. I discuss the implications of this for sentencing guidance.

The ninth chapter provides a survey of sentencing guidance on remorse. It presents the guidelines system operating in England and Wales and then introduces contrasting approaches taken to remorse and sentencing in three other jurisdictions. I examine the different approaches in light of the preceding issues addressed throughout the course of the book.

SETTING THE SCENE: REMORSE

Court transcripts, newspaper articles and even victim impact statements demonstrate that there is great emphasis on whether or not an offender has shown remorse. Apologies are anticipated, body language is scrutinised and post-offence conduct is discussed and showcased as evidence of the presence or absence of remorse. But quite what remorse amounts to is not immediately clear. Sometimes an offender claims to feel remorse but his claims are rejected with the suggestion that what is felt is ‘not really remorse’. Sometimes other emotions are i...

Table of contents

• Cover
• Title Page
• Dedication
• Preface
• Contents
• 1. Remorse and its Relevance to Penal Theory
• Part I Retributive Arguments
• Part II Remorse and Sentencing Practice
• Acknowledgements
• eCopyright