Remorse and sentencing in a world of plea bargaining 1 (original) (raw)
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REMORSE AND SENTENCING IN A WORLD OF PLEA BARGAINING
Remorse and Criminal Justice, 2021
That the presence or absence of remorse is felt to be central to sentencing decision-making is now well established. Most scholarship has focused on normative questions of whether and how remorse ought to influence sentencing decisions. More recently, research is exposing the difficulties and dangers faced by judicial sentencers seeking to evaluate the authenticity of expressions of remorse. Distinctively, this paper asks why, despite its apparent irrationality, judges and lawyers seem compelled to focus on the attitude of the person to be sentenced. Illustrated by recent research into sentencing and guilty pleas, we reveal how a perception of ‘zero-sum gamesmanship’ appears to defendants and judges and lawyers to pervade the daily workings of the courts, most especially in plea bargaining practices. It argues that the inability of these court professionals to know, and confidently to believe they know, the ‘real’ attitude of the defendant is intensified by the very practices court professionals feel obligated to pursue
So you're sorry? The role of remorse in criminal law
The journal of the American Academy of Psychiatry and the Law, 2014
The role of remorse in judicial decisions in the criminal justice system has been addressed in scholarship and remains controversial. The purpose of this qualitative research was to examine the views of sitting criminal judges on remorse, its assessment, and its relevance in their decision-making. After approval of the study design by the institutional review board, 23 judges were interviewed in an open-ended format. Transcriptions of these audio-recorded sessions were analyzed phenomenologically by the research team, using the method of narrative summary. The results showed that the judges varied widely in their opinions on the way remorse should be assessed and its relevance in judicial decision-making. They agreed that the relevance of remorse varied by type of crime and the stage of the proceedings. The indicators of remorse for some judges were the same as those that indicated the lack of remorse for others. All the judges recognized that assessment of remorse, as well as judic...
Sentencing and Plea Bargaining: Guilty Pleas Versus Trial Verdicts
Criminology and Criminal Justice, Criminal Courts and Prosecutors (ed. Michael Tonry), 2016
In the daily work of criminal justice, the relationship between plea decision-making and sentencing is important. Meanwhile in the academic and policy literatures, it is one of the most controversial. This essay appraises the international empirical literature and the moral arguments surrounding this plea-dependent (guilty/not guilty) “sentence differential.” Sentence differential is the morally neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” Section II analyzes whether the sentence differential undermines the presumption of innocence. Section III investigates whether the sentence differential violates legal equality. Section IV assesses the three main justifications for the differential. Section V scrutinizes measurement of the sentence differential. Section VI proposes an agenda for future research, including the need for deeper research into the experiences of and interpretations by defendants of the justice process.
The Role of Remorse in Criminal Justice
In this essay I review the role that remorse does and ought to play in criminal justice. Evidence of remorse appears to influence decision-making in a number of stages of the criminal process. But should it? I explain how remorse might have an appropriate role given certain assumptions about the general justifying aim of criminal justice. I also look at the nature of remorse as an emotion, and how that informs our understanding of the role remorse might play. However, I also look at some serious challenges that face any proposal to give criminal justice officials powers to evaluate remorsefulness and to treat offenders differently on their basis. I conclude that it may be that the best we can do is to attempt to design a system that acknowledges the appropriateness of remorse but does not disadvantage those who are unable to display it to the satisfaction of a designated official.
Handbook on Sentencing Policies and Practices in the 21st Century (eds C Spohn and P Brennan) Taylor & Francis, 2019
Anglo-American justice systems are marked by the importance of adversarial principles, including evidentially contested trials. An adversarial approach is often said to be the best way of protecting the presumption of innocence against the might of the state. However, the daily reality is starkly different. Anglo-American justice systems depend heavily on the generation of guilty pleas and agreement between prosecution and defense. Why is this? Is this reliance on guilty pleas simply borne of pragmatic necessity, or are there are other dynamics at play? What are the normative implications for the fairness of the system? Legal practitioners and defendants widely believe that those who plead guilty are likely to receive a reduced sentence compared to those who are convicted of the same charges following a trial. This chapter interrogates the plea-dependent (guilty/not guilty) “sentence differential.” “Sentence differential” is the normatively neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” The first part investigates whether a sentence differential violates the cherished values of the presumption of innocence and the notion of equality before the law. It examines the criticism that the sentence differential operates to penalize those who continue to plead not guilty by imposing (or threatening to impose) a higher sentence than if they plead guilty. It also considers the criticism that the sentence differential may have disparate impacts on different groups (specifically minorities and those who are socially and economically disadvantaged). The second part reflects on why, in light of the dangers to principled sentencing and liberal rule of law values, justice systems continue to persist with guilty plea discounts. Finally, drawing on recent empirical evidence, the third part investigates how the experiences of defendants may be affected by the sentence differential.
Handbook on Sentencing Policies and Practices in the 21st Century Ed by Cassia Spohn and Pauline Brennan , 2020
Anglo-American justice systems are marked by the importance of adversarial principles, including evidentially-contested trials. An adversarial approach is often said to be the best way of protecting the presumption of innocence against the might of the state. However, the daily reality is starkly different. Anglo-American justice systems depend heavily on the generation of guilty pleas and agreement between prosecution and defence. Why is this? Is this reliance on guilty pleas simply borne of pragmatic necessity, or, are there are other dynamics at play? What are the normative implications for the fairness of the system? Legal practitioners and defendants widely believe that those who plead guilty are likely to receive a reduced sentence compared to those who are convicted of the same charges following a trial. This chapter interrogates the plea-dependent (guilty/not guilty) “sentence differential.” “Sentence differential” is the normatively neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” Section I investigates whether a sentence differential violates the cherished values of the presumption of innocence and the notion of equality before the law. It examines the criticism that the sentence differential operates to penalize those who continue to plead not guilty by imposing (or threatening to impose) a higher sentence than if they plead guilty. It also considers the criticism that the sentence differential may have disparate impacts on different groups (specifically minorities and those who are socially and economically disadvantaged). Section II reflects on why, in light of the dangers to principled sentencing and liberal rule of law values, justice systems continue to persist with guilty plea discounts. Finally, drawing on recent empirical evidence, Section III investigates how the experiences of defendants may be affected by the sentence differential.
In most common law jurisdictions worldwide, an offender’s remorse is a mitigating factor in sentencing. It matters whether or not a person who has committed a crime is truly sorry for what they have done. And yet how judges evaluate such expressions is unclear. Drawing on 18 interviews with judges in the New South Wales criminal justice system in Australia, this article examines the status of offenders’ live, sworn evidence in the judiciary’s assessment of offenders’ remorse. These interviews with the judiciary reveal that remorse assessment often operates beyond semiotic, representational paradigms (such as ‘demeanour assessment’) and instead works, in experiential terms, as a feeling. When it comes to offenders getting into the witness box and speaking of their remorse, it seems that sometimes something gets felt by judges at the level of embodied affect that then enables them to declare: ‘This person is remorseful.’
A defendant's failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing. Yet there is currently no evidence that remorse can be accurately evaluated in a courtroom. Conversely there is evidence that race and other impermissible factors create hurdles to evaluating remorse. There is thus an urgent need for studies about whether and how remorse can be accurately evaluated. Moreover, there is little evidence that remorse is correlated with future law-abiding behavior or other legitimate penal purposes, and, in fact, there is evidence that remorse is often conflated with shame, which is correlated with increased future criminality. More accurate information on the nature and evaluation of remorse can be used to reform the criminal justice system.