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Home , Guilt (emotion), Remorse

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2014

Commentary: Reflections on

Stephen J. Morse University of Pennsylvania Carey Law School

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Repository Citation Morse, Stephen J., "Commentary: Reflections on Remorse" (2014). Faculty Scholarship at Penn Law. 1602. https://scholarship.law.upenn.edu/faculty_scholarship/1602

This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more , please contact [email protected]. Commentary: Reflections on Remorse

Stephen J. Morse, JD, PhD

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.

J Am Acad Law 42:49–55, 2014

Zhong et al.1 have presented the results of a qualita- It is useful to compare this definition with the Ox- tive study of how judges use the concept of remorse ford English Dictionary (OED) entry3: in sentencing. Although the study has numerous Deep or for doing something morally wrong; methodological limitations that the authors admira- the fact or state of for committing a ; bly recognize, it is an interesting paper and a useful repentance, compunction. catalyst for further reflections on remorse. This com- Although similar, they are somewhat different. mentary focuses on the relation between remorse and Consider the similarities. In both, there is a cognitive various justifications for punishment that are com- and an affective component. The agent makes the monly accepted in Anglo-American jurisprudence. judgment that he has done something wrong and, Zhong et al. addressed this relation, but briefly, and I explicitly for the former and implicitly for the latter, wish to expand their discussion. I will also consider accepts responsibility for the harm caused. The def- the role forensic psychiatry should play in helping to inition Zhong et al. used is ambiguous about both evaluate whether a defendant is in fact remorseful in wrong and the of responsibility. An agent cases in which remorse is considered. I begin, how- who causes harm accidentally as a result of inten- ever, by addressing the definition of remorse that tional bodily movement is causally responsible for guides the discussion. I conclude by briefly consider- harming the victim and may take responsibility be- ing what I consider to be the study’s most striking cause it was his action that caused the harm. But has finding: the extensive variability in how judges use the agent wronged the victim? It seems that the agent remorse at sentencing. might properly feel what Bernard Williams calls “agent-regret” (Ref. 4, p 27) because the agent has caused harm, but genuine remorse would be inap- The Definition of Remorse propriate because no moral wrong has been done and Zhong et al. use a definition of remorse adopted there is no for the harm. Agent- from Proeve and Tudor2: regret would be distressing, but guilty would not be justified. In contrast, the OED makes clear Remorse may be defined as a distressing emotion that arises from acceptance of personal responsibility for an act of that the judgment must be of a moral wrong. This harm against another person. Often, with further reflec- aspect of the definition would be especially relevant tion, the remorseful individual may that the act had at sentencing because the convicted defendant has never occurred at all and wish to make restitution toward been found to be morally culpable. To see this most the victim [Ref. 1, p 41]. clearly, consider a crime of strict liability. The con- Dr. Morse is Ferdinand Wakeman Hubbell Professor of Law and victed agent should not feel guilty, but might prop- Professor of Psychology and Law in Psychiatry, University of Pennsyl- erly feel agent-regret if innocent victims were vania Law School, Philadelphia, PA. Address correspondence to: harmed. Remorse is a distinctively moral reaction. Stephen J. Morse, JD, PhD, University of Pennsylvania Law School, 3501 Sansom Street, Philadelphia, PA 19104-6204. E-mail smorse@ I leave aside cases involving regulatory or malum law.upenn.edu. prohibitum crimes. Even in these, however, there is Disclosures of financial or other potential conflicts of : None. a point to be made that conviction implies a moral

Volume 42, Number 1, 2014 49 Commentary violation to some degree.5 Crimes of strict liability an agent. In response to such moral concerns, theo- are a clear exception, but they are also notoriously rists have offered many potential candidates for jus- controversial because they condemn and punish tifying punishment. These are loosely placed in two without fault. categories: nonconsequential or deontological and The definition of remorse in Zhong et al. is also consequential. The former includes retribution or nonspecific about what the distressing just deserts. The latter includes general prevention, should be. Agent-regret might be profoundly dis- specific prevention, and some forms of rehabilita- tressing, but not because it is a proper result of guilty tion. These various justifications can lead to differing feelings and repentance would not be appropriate. conclusions. For example, a mentally disordered but Moral regret and guilt are the proper response to culpable defendant may deserve less retributive moral wrongdoing. Moreover, remorseful feelings and punishment because his rational capaci- of regret and guilt need not be distressing for the ties are compromised, but the same abnormality remorse to be genuine. In some cases, these feelings might make him especially dangerous and thus a may be cleansing and help the agent feel that the good candidate for extended incarceration to prevent moral balance is somewhat restored by an appropri- him from committing further crimes. ate reaction. Many jurisdictions list the justifications in the Both definitions include a desire that the harm penal code that the legislature has decided should be had not occurred and that the pre-harm state can be adopted, and judges explicitly use the justifications restored. I think this desire is implicit in the notion of in sentencing decisions, but they typically do not regret. Remorse may also imply a feeling of explain why they adopt particular justifications and for an earlier, innocent time, a suggestion made to virtually never forth an algorithm for how they me in a personal communication from Benjamin J. should be balanced. This deficit is not important for Sadock, MD. our present purposes, but I discuss it in the penulti- Finally, the definition in Zhong et al. includes a mate section of the paper. novel criterion: the desire to make restitution. Mak- Let us consider the justifications and their rela- ing restitution would surely be a logical corollary of tions to remorse. feeling remorse, but it does not seem to be part of remorse itself. Nonconsequential/Deontological Justification For all these reasons, I that the definition Retribution given to the judges was not as precise and relevant to Retribution is a theory of justice: giving criminal the criminal context as it could have been. I might offenders their just deserts for what they have culpa- attribute the great variability in the judges’ responses bly done is justice. A retributive or just-deserts ratio- to these difficulties, but judicial discretion leads to nale imposes a deserved punishment because it is great variability, even when criteria are clearer, be- right in itself to give a culpable offender what he cause judges inject the same criteria with different deserves. Although there may be consequential con- moral and social meaning. I shall return to this theme straints on desert in extreme cases, retributive pun- in a later section, but will use my OED-based inter- ishment ignores whether good consequences will fol- pretation of remorse as the foundation for further low from giving the offender his just deserts. There reflections on the role of remorse in criminal justice. are many different versions of retributivism. For ex- ample, giving people their just deserts can be either Remorse and the Justifications for Blame obligatory or permissive. For another example, some and Punishment retributivists think that the amount of harm a defen- Blaming and punishing an agent for committing dant causes is relevant to deciding what blame and a crime is the most afflictive, awesome exercise of the punishment the offender deserves; others believe that power of the state over an individual. Punishment only the offender’s wrong conduct and not the harm involves not only the stigma of blame, but it also it causes is relevant. As a deontological theory, retri- most fundamentally includes the intentional inflic- bution is similar to deontological theories in other tion of some form of harm or on the convicted areas of law, such as the obligation to keep one’s person. If anything requires moral justification, it is promise in contract law, even if breaching might the intentional stigmatizing and inflicting of pain on be efficient. Retribution includes a proportionality

50 The Journal of the American Academy of Psychiatry and the Law Morse principle. No offender should be punished more crime is committed affects the crime itself and what than he deserves. Thus, retributivists are opposed the offender deserves for committing it. Before act- in principle to criminal liability for strict-liability ing, the offender should have brought to mind and crimes because defendants convicted of such crimes been guided by the moral considerations that later are not culpable and do not deserve to be punished. caused remorse. In that case, the agent would not Retribution is often confused with, but is most de- have committed the crime, would not deserve pun- cidedly not, . Revenge is the crude psycho- ishment, and would have no need for regret. logical satisfaction that comes from hurting those If one adopts a character-based theory of retribu- who have hurt the victim. It is not a justification for tion, it is difficult to understand why the offender’s legal punishment, which involves doing justice im- sentence should be altered. The expression of genu- partially and fairly. Finally, retributively justified ine remorse may speak well of the offender’s post- punishment need not be harsh. Retributivists can be crime character, it may help restore the defendant’s tender or tough. Few theorists are pure retributivists, breach with the victim and society, and recognition and, to the best of my knowledge, no jurisdiction has that it has occurred may acknowledge the offender’s implicitly or explicitly adopted retributivism as its rationality and autonomy, but it is nonetheless hard sole justification for punishment, but virtually all be- to understand why the deserved sentence should be lieve that it is a necessary precondition for punish- affected on grounds of desert. We are punishing the ment, even if it is not sufficient. offender for what he has done. Moreover, as dis- Is retribution intended to give offenders what they cussed in greater detail later in the article, it is diffi- deserve for what they have done or for who they are, cult to know whether the offender is genuinely re- for their characters? It is often said that acts are ex- morseful and what his character really is. Perhaps it pressive of character, but we know that seemingly has morally eroded and it is not clear that remorse, good people sometimes do terrible things. Does this even if apparently genuine, indicates that his charac- mean that the heinous act is less terrible and more ter has reverted to the apparent status quo ante. Some- justifiable or excusable or does it mean that our pre- times we must be judged by our one-offs. As Nick 7 vious evaluation of the perpetrator’s character was Hornby wrote in his novel, How To Be Good, it incorrect? I will ignore the debate about whether would not have done for Lee Harvey Oswald to claim character or the situation most accounts for the vari- that he was not ordinarily the sort of person who ance in an individual’s behavior and will assume that killed presidents. Finally, remorse may seem to have character plays a substantial role and that situational more purchase for reducing sentences according to causation is no more of an excuse, per se, than any a communicative justification of punishment tied to other kind of causation. retributive desert, but its primary proponent denies What does it mean to say that an act is out of that this is true, a recent proponent acknowledges 8 character if an unjustified and unexcused agent has that remorse may be best justified consequentially, intentionally committed a crime? How do we decide and no jurisdiction has adopted this view. what the agent’s enduring behavioral predispositions Consequential Justifications are except by observing their actions over time and across situations? Further, as a set of behavioral pre- Deterrence and Incapacitation dispositions, character is a status, and in our consti- If we want to justify the use of remorse in sentenc- tutional order, it is a violation of the Eighth Amend- ing, we must do so on consequential grounds. Gen- ment to punish for one’s status alone, such as being a eral deterrence, specific deterrence, and incapacita- drug addict.6 tion are the primary consequential justifications in A retributive justification based on the offender’s Anglo-American penal law. As is well known, general past acts is retrospective because it focuses on what deterrence is a method of crime prevention that seeks the offender has already done in the past. The ques- to use the potential pain of punishment to give all tion is what he deserves for the crime he has commit- people reason not to offend. Special deterrence and ted. Remorse is always expressed after the wrongful incapacitation are methods of specific prevention deed has been done. Therefore, if one takes an act- that are used to prevent offenders from committing oriented view of retribution, remorse is irrelevant, further offenses by giving them good reason not to simply because nothing the offender does after the or by keeping them incarcerated. These justifications

Volume 42, Number 1, 2014 51 Commentary succeed only if a punishment practice in fact achieves cant risk factor for future criminal conduct, but the the of prevention. If it does not, the punishment specific role of CU was unknown. A recent study is unjustified on consequential grounds. Consequen- controlled for the other relevant variables and found tialism also has a proportionality principle. No more that CU was associated with incrementally enhanced pain should be inflicted on the offender than is nec- recidivism risk,11 but CU includes more than defi- essary to maximize social welfare. Any punishment cient remorse, and it is unclear how much of the beyond the minimum necessary for that purpose is variance remorse accounted for. These data are sug- disproportionate. Consequential justifications iden- gestive, but we must still conclude that the associa- tify the good consequence that is desired. Most tion between remorse alone and recidivism is un- broadly, the good consequence is considered to be known. Moreover, we do not know whether the social welfare. This theory then holds that an action association, if valid, is smoothly scalar or is distrib- is justified if the net result is achieving or maximizing uted differently. the good. There are theorists who propose a purely We have no valid data to indicate how using re- consequential justification of punishment, but with morse as a mitigating factor that leads to reduce sen- limited exceptions, no jurisdiction has adopted such tences would general deterrence. Moreover, if a view. An exception might be enhanced sentences there were inconsistent results between the gain to for recidivists, although many retributivists attracted the offender and the loss to society, can we really to this practice have tried unsuccessfully to provide a calculate the social welfare outcome? Of course, such retributivist justification. Punishment for strict-lia- skeptical concerns about the ability actually to calcu- bility crimes is also justified purely consequentially. late net social welfare are a staple of anti-consequen- The question concerning the effect of remorse on tial thought. At present, then, no sentencing judge consequential justifications is empirical. Does re- could use remorse on empirically valid and thus prin- morse or its absence validly predict whether the of- cipled consequential grounds. fender is less or more dangerous and thus should receive a lesser or greater sentence (holding every Nonpaternalistic and Paternalistic Rehabilitation other variable constant)? When remorse is used for Rehabilitation is a currently disfavored conse- mitigation, the consequential may lead to in- quential justification and has been so for about four consistent results. Remorse that leads to lesser sen- decades. In the late 1960s and early 1970s there was tences because remorseful defendants are less likely to an unusual bipartisan agreement that in large part recidivate may also have the effect of undermining blamed rehabilitation theory and its empirical fail- general deterrence, because the criminal law may be ures for arbitrary sentencing discretion. The biparti- seen as soft or easy to manipulate by faked emotions. san consensus was largely responsible for the resur- If lack of remorse is associated with enhanced danger gence of the just-deserts model of sentencing and the of recidivism, then general and special prevention limitation of judicial and parole discretion. Nonethe- would both be achieved by lengthening the sentences less, rehabilitation always retains strong proponents, of such offenders. the efficacy data turn out to be less pessimistic than it Assuming that we can accurately judge when re- first appears, and the justification pendulum can and morse is genuine and what its depth and quality are, always does swing in criminal justice. a question to which I return in the next section, as Rehabilitation can be either nonpaternalistic (or Zhong et al. rightly note, the consequential out- nonparentalistic if one prefers the ungendered locu- comes of using remorse are almost entirely specula- tion) or paternalistic. In the former, we impose reha- tive. Guilt does seem to be protective against further bilitative interventions on the offender to render criminal conduct,9 but the data on remorse specifi- him less dangerous, whether he likes it or not. We cally are sparse. One epidemiological study found a straightforwardly acknowledge that we are violating modest association between lack of remorse and an- the offender’s autonomy and are manipulating tisocial conduct,10 but it was not a prospective study. him for our good, not his. A Clockwork Orange,12 in The major exception to this generally cautious con- which a psychopathic, violent predator is trained by clusion may be the callous/unemotional (CU) factor classical conditioning to become ill when presented in , which includes deficient remorse. It with violent stimuli, is a classic example. This is has been long known that psychopathy is a signifi- clearly a consequential justification based on the cost

52 The Journal of the American Academy of Psychiatry and the Law Morse savings achieved if an effective treatment is less ex- a single fixed amount of punishment for each crime pensive than continued incarceration. It is a form of type. Rather, it sets a range of proportionate punish- specific prevention. The major problems are that ef- ment for crimes. An offender should receive at least fective rehabilitation methods are expensive, they do the minimum but not more than the maximum of not work for everyone and we cannot identify in the deserved range. Within the range, consequential advance the promising candidates, and most meth- justifications can be used to adjust the sentence up or ods are not very effective. There are promising excep- down within the range For example, more dangerous tions, however, and as data accumulate, this form of offenders may receive sentences toward the higher consequential justification may again play a larger end of the range and vice versa. role in the justification of punishment. Remorse fares no better as a principled ground for In the case of paternalistic rehabilitation, the goal sentencing under the mixed justification than it did is to improve the offender so that he can lead a better under either of the two pure categories, for the obvi- and flourish. For several reasons, this justification ous reason that if it cannot be properly used by either has no proper role to play as a prima facie justification alone, no moral alchemy makes it viable if one tries to for punishment. Most fundamentally, paternalistic blend justifications. rehabilitation is not a form of the intentional inflic- tion of pain, and thus it is not a state punishment, Remorse and Forensic Practice even if the offender experiences it as such. Second, in Mock studies with college student subjects, which a liberal society, paternalistic interventions are disfa- may be of limited ecological validity,14 show that the vored generally, and most prisoners are not among study subjects take remorse into account in making the classes of individuals, such as minors or people judgments about criminal responsibility and punish- with dementia, for whom paternalism is justified be- ment,15,16 and many sentencing judges take remorse cause they are not responsible agents. Third, in a into account. These facts are positive, not normative, world of limited, scarce resources, it is unfair to pro- however. I have suggested that, at present, the law vide benefits to those who least deserve them and should not consider remorse when making decisions especially because the offender may not want the about an offender’s fate because there is apparently benefits. Finally, characterizing punishment as a no good justification for doing so. Nonetheless, in treatment for the offender’s own good promotes a the discussion that follows, I shall assume that, as a form of moral blindness that allows us to manipulate practical matter, remorse will be considered. It seems people in unacceptable ways. This outcome is always that there would then be two roles for forensic psy- a danger of medicalizing a moral or social problem, chiatrists. The first would be to help identify whether such as how to respond to so-called mentally abnor- an offender is in fact remorseful. The second would mal, sexually violent predators. be to do research that would create a reliable and The problem of the relation of remorse to rehabil- valid instrument for identifying remorse and then to itation is the same as besets the relation of remorse determine whether remorse is a valid indicator of one to other consequential justifications. There is simply or more of the consequential justifications of punish- no evidence that a genuinely remorseful offender is a ment. Let us consider these two roles. better candidate for nonpaternalistic rehabilitation The question the first role raises is whether foren- than an offender who is not remorseful. Once again, sic psychiatrists and psychologists have special exper- remorse can play no principled role in a sentencing tise, qua forensic psychiatrists and psychologists, in decision guided by a rehabilitative justification. identifying genuine remorse and its depth and char- acter. I know of no study that addresses this question Mixed Justifications specifically, and a search of PubMed disclosed none. A mixed justification of punishment attempts to For various reasons, I believe we should be cautious blend retributivism and consequentialism. Although before claiming that we have special expertise or be- many claim that mixed justifications are incoher- fore offering our services for the purpose of evaluat- ent,13 it is probably the dominant form of justifica- ing remorse. tion used today. I confess to being a muzzy-headed, Remorse is mostly not a mental health concept. It mixed theorist, myself. The most usual form ac- is what is often termed a moral emotion. In the entire knowledges that retribution has no theory to provide Diagnostic and Statistical Manual of Mental Disor-

Volume 42, Number 1, 2014 53 Commentary ders, Fifth Edition (DSM-5), it receives only one cial expertise in evaluating remorse and that we mention, as the diagnostically unnecessary (because should proceed with caution in this domain. the diagnosis can be made without this criterion be- The second role for forensic mental health profes- ing satisfied) seventh criterion for antisocial person- sionals would be to develop an instrument that ality disorder (APD) (Ref. 17, pp 659–63). Lack would reliably and validly measure remorse and then of remorse is indicated by “being indifferent to or to determine whether it is a valid indicator of future rationalizing having hurt, mistreated, or stolen....” dangerousness and amenability to rehabilitation. With all respect, this criterion is vague. For example, That task is for the future, however. how indifferent must the subject be and what will count as a sufficient rationalization? The relatively Judicial Discretion good reliability of APD does not obviate this prob- Zhong et al.1 strikingly confirmed that judges use lem, and it does not address remorse specifically. widely different sentencing criteria in very different There is no entry for remorse in the American Psy- ways and impose markedly different sentences in chiatric Publishing volume, The Language of Mental similar cases, even if the sentencing criteria have been 18 Health: A Glossary of Psychiatric Terms. Although I identified in advance. Although the and vices have no study to prove this point, I am quite certain of judicial sentencing discretion are not a central con- that the evaluation of remorse plays a trivial role in cern in forensic psychiatry, it is worth a brief discus- most psychiatry and psychology clinical training, in- sion because it affects how our work is treated in cluding specialty training in forensic practice; but my criminal cases and because forensic psychiatrists and supposition may be inaccurate. Finally, because lack psychologists are often asked for their input concern- of remorse is not really a psychiatric or psychological ing the criminal process. symptom, studies concerning the identification of Unequal treatment was a large part of the motiva- malingering of psychopathology are inapposite. tion of the bipartisan movement in the 1960s and Psychopathy, which is a relatively well-character- 1970s to limit judicial discretion in various ways. ized condition and best measured by the Hare Psy- Disparate judicial treatment of like cases was one of chopathy Checklist-Revised (PCL-R),19 is not a rec- the foundations for the imposition of the Federal ognized DSM disorder, but it may seem to provide Sentencing Guidelines in federal criminal cases. The an exception to the cautious concern about lack of mandatory nature of the guidelines was declared un- special expertise. One of its 20 items is “lack of re- constitutional for complicated reasons in 2005 in morse or guilt,” which is itself part of what is called United States v. Booker,22 but the guidelines were the affective facet, the same facet that includes cal- retained as advisory, and federal judges are expected lousness and lack of . The PCL-R has excel- to operate within them, although they are not bound lent overall interrater reliability among trained users, by them. The result has been guideline creep, to wit, but there is reason to question whether the reliability the reintroduction of substantial sentencing dispari- is as good in applied forensic settings as in research ties in like cases. In Zhong et al., the judges ranged studies, and few field trials of reliability have pro- remarkably widely in how they applied the same def- vided scores for the subscales or individual items.20 inition of remorse. In light of the history of judicial In the most recent report of an applied field trial with discretion about sentencing, this is entirely unsur- relatively few subjects, the overall reliability was prising and entirely unsettling. Experienced criminal moderately good, but the reliability of the lack of lawyers know that most criminal defendants care remorse item among highly trained clinicians was more about whether and how long they will be im- only 0.51, with a large interval, and the prisoned than about whether they will be convicted. reliability of the affective facet was only 0.59 over- Unjustified disparities in sentencing are, quite sim- all.21 Indeed, the only facet of the instrument that ply, unjust. has genuinely good reliability, the antisocial facet, Judges are human beings who have their own per- measures essentially antisocial conduct, a more ob- ceptions and value systems. Sentencing criteria, jectively identifiable set of variables that do not mea- when they exist, are often vague, and there is seldom sure remorse. an algorithm for how to weigh and balance the vari- I thus conclude, on the basis of the currently avail- ous factors. It is thus no that sentencing able data, that forensic professionals possess no spe- judges are shaped by their implicit or explicit under-

54 The Journal of the American Academy of Psychiatry and the Law Morse lying justifications for punishment that are in turn that the evidence to date does not support the con- shaped by the judges’ unique histories. They will clusion that forensic mental health professionals have wittingly or unwittingly create their own criteria or special expertise concerning the evaluation of re- infuse existing criteria with their subjective meanings morse. Finally, I bemoaned the sentencing disparities and values. Only the most constraining legislative resulting from judicial discretion that Zhong et al. limits can prevent such exercises of discretion. In the have so manifestly confirmed, but observed that, as a worst cases, judges may be swayed unconsciously by practical matter, judicial discretion will continue. unacknowledged prejudice. I am not suggesting that judges act in bad when they sentence. Virtually References none does, I believe. Virtually all state and federal 1. Zhong R, Baranoski M, Feigenson N, et al: So you’re sorry? The trial judges who I have talked to over the years rec- role of remorse in criminal law. J Am Acad Psychiatry Law 42:39– ognize the extraordinary power that they possess over 48, 2014 2. Proeve M, Tudor S: Remorse: Psychological and Jurisprudential the liberty and well-being of convicted offenders, and Perspectives. Burlington, VT: Ashgate, 2010 they try to sentence in a principled and fair manner. 3. Remorse, in Oxford English Dictionary (ed 2). New York: Oxford For the reasons given, however, even if every judge University Press, 1989 4. Williams B: Moral Luck. Cambridge, UK: Cambridge University behaved that way, the disparities would still be broad. Press, 1981 The argument to the contrary is that each crime is 5. Duff RA: Answering for Crime. Portland, OR: Hart, 2007 unique and so many factors may be considered at 6. Robinson v. California, 370 U.S. 660, 1962 sentencing that no set of criteria that impose severe 7. Hornby N: How to Be Good. New York: Riverhead Books, 2001 8. Tudor SK: Why should remorse be a mitigating factor in sentenc- constraints could conceivably do proper justice. Un- ing? Crim Law Philos 2:241–57, 2008 less one had a theory about how all of the potential 9. Tangney J, Stuewig J, Hafez L: , guilt and remorse: impli- sentencing factors should affect sentences and how cations for offender populations. J Forensic Psychiatry Psychol 22:706–23, 2011 they should all be weighed and balanced, this ac- 10. Goldstein RB, Grant BF, Huang B, et al: Lack of remorse in count of justice is, with all respect, a pipe . We antisocial personality disorder: sociodemographic correlates, would all like to believe that there are people who by symptomatic presentation, and comorbidity with Axis I and Axis II disorders in the National Epidemiologic Survey on Alcohol and dint of rigorous training and professional experience Related Conditions. Compr Psychiatry 47:289–96, 2006 can be trusted to make wise, fair decisions. Unfortu- 11. Kahn RE, Byrd AL, Pardini DA: Callous-unemotional traits ro- nately, as noted, legislatures seldom make clear what bustly predict future criminal offending in young men. Law Hum theory of justice is guiding the adoption, weighing, Behav 37:87–97, 2013 12. Burgess A: A Clockwork Orange. London: Heinemann, 1962 and balancing of possible sentencing factors. Thus, 13. Moore MS: Law and Psychiatry: Rethinking the Relationship. in most cases, each judge applies an individualized New York: Cambridge University Press, 1984 theory of justice and account of punishment. 14. Batista LM, Myers W: Commentary: perception of remorse by jurors in a mock capital murder trial. J Am Acad Psychiatry Law Even if my diagnosis of the ills of sentencing is 40:55–8, 2012 accurate, and many would disagree, the solution re- 15. Corwin EF, Cramer RJ, Griffin DA, et al: Defendant remorse, mains unclear. It is possible to wring virtually all need for affect, and juror sentencing decisions. J Am Acad Psychi- discretion out of sentencing, but that will not prevent atry Law 40:41–9, 2012 16. Jehle A, Miller MK, Kemmelmeier M: The influence of accounts law enforcement officials and prosecutors from exer- and remorse on mock jurors’ judgments of offenders. Law Hum cising their discretion. Charging decisions are a no- Behav 33:393–404, 2009 torious example of a situation in which discretion 17. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Washington, DC: and disparities abound. Perhaps, however, we should American Psychiatric Association, 2013 put our jurisprudential pants on one leg at a time and 18. Sharokh NC, Hales RE, Phillips KA, et al: The Language of Men- reduce unjustified discretion when and where we can. tal Health: A Glossary of Psychiatric Terms. Washington, DC: American Psychiatric Publishing, 2011 19. Hare RD: Manual for the Revised (ed 2). Conclusion Toronto: Multi-Health Systems, 2003 20. Forth A, Bo S, Kongerslev M: Assessment of psychopathy: the Remorse is a familiar concept and a moral emotion Hare psychopathy checklist measures, in Handbook on Psychop- that judges and laypeople alike use in judging others. athy and Law. Edited by Kiehl K, Sinnott-Armstrong W. New Zhong et al. have provided an impetus to reflect on York: Oxford University Press, 2013, pp 5–33 the use of remorse by judges at sentencing and to 21. Sturup J, Edens JF, So¨rman K, et al: Field reliability of the psy- chopathy checklist-revised among life sentence prisoners in Swe- conclude that, at present, this practice is almost im- den. Law Hum Behav, in press. possible to defend normatively. I have also suggested 22. United States v. Booker, 543 U.S. 220 (2005)

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