For judges, the question whether a defendant demonstrates authentic remorse is of paramount importance. But how do they interpret and weigh these demonstrations of remorse?
Remorse – a crucial emotion in Western understandings our obligations to others – is an essential ingredient of sentencing practices.
Authentic remorse, to judges, is more than just an apology. They also actively look for signs that a defendant is ‘taking responsibility’. Indications that the defendant is bettering his or her life – by finding a meaningful way to pass the day (employment or education) or by seeking help for medical or mental health issues – can be interpreted as signs of remorse.
But the priority judges attach to such demonstrations of remorse, it turns out, really depends on the type of case. Indeed, judges tend to work with a set of ‘typical cases’ that involve typified understandings of the kind of defendant, kind of circumstances, and kind of offence. Depending on this whole-case scenario, they either value, or devalue, defendants’ demonstrations of remorse.
An example? In cases involving petty theft by drug-addicted defendants – a rather common kind of case in the lower Courts – judges tend to sideline defendants’ demonstrations of remorse. After all, ‘the addiction will be stronger than their resolve’. The ethical and political implications of such an understanding of crime, moral responsibility, and addiction are far-reaching indeed!
For more on ‘whole case narratives’, see this piece by Cyrus Tata (foundational for my thinking about judicial practices as ‘craft-work’). For a more in-depth discussion of the relationship between whole-case narratives and the interpretation and weighing of remorse, see this article in Social and Legal Studies, or Chapter 3 in The Law Multiple. There, I make the case that remorse is a contextual and mediated achievement:
Remorse, then, is mediated narratively: first, judges face a narrating subject in court, whose “story” has the capacity to inform not only their impression of the defendants’ remorsefulness, but also their sentencing decisions. The narratives proffered by the defendant face dual and sometimes conflicting demands: a narrative offering temporal-causal intelligibility, as is the case in those defendants seeking to argue a case of self-defense, for instance, may detract from the successful narration of moral and personal responsibility. Second, defendants’ remorsefulness is weighed and evaluated in and through several typical whole-case narratives: recurring and typified “cases” characterized by different modes of emplotment (Ricoeur 1992), including different conceptions of what drives people to do what they do (anger, addiction, a bad relationship), different modes of evaluating the degree to which they are responsible, and different modes of retaining or rejecting the normative expectation that they should take responsibility. (p. 109)
A great read is also this piece by Kate Rossmanith, Steven Tudor, and Michael Proeve on the question, How do Judges Know? An important source to think remorse in criminal justice settings is Richard Weisman’s Showing Remorse: Law and the Social Control of Emotion.