The Role of Remorse in Criminal Law

REGULAR ARTICLE So You’re Sorry? The Role of Remorse in Criminal Law

Rocksheng Zhong, MD, MHS, Madelon Baranoski, PhD, MSN, Neal Feigenson, JD, Larry Davidson, PhD, Alec Buchanan, MD, PhD, and Howard V. Zonana, MD

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 judicial decision-making in general, must be altered for defendants with mental illness. The judges varied in their views of the relevance of psychiatric assessments in determining remorse, although most acknowledged a role for forensic psychiatrists.

J Am Acad Psychiatry Law 42:39–48, 2014

Legal scholars and courts appreciate the significance We concern ourselves initially with the topic of of remorse in criminal law. Remorse is held to be an remorse in general and then with its presence in the appropriate consideration, particularly during the setting of mental illness in particular. Psychiatric sentencing phase of criminal proceedings.1,2 How- symptoms can influence both the experience and ex- ever, it remains a poorly formulated concept, lacking pression of remorse. Furthermore, knowledge that a clarity and uniformity in both its definition and the defendant has mental illness may color observers’ in- characteristics that signal its presence or absence. The terpretations of that person’s behavior. problem of remorse is further complicated in indi- Background viduals with psychiatric illness because their behaviors and cognitions may deviate from the expecta- The role of remorse in the legal system remains tions that judges have. The purpose of this article is unresolved. In criminal proceedings, empirical stud- to present the results of a qualitative study that ex- ies have shown that remorse plays an important role plored how some criminal court judges view remorse, in observers’ judgments of defendants. When a person is identified as remorseful, his character is judged its assessment, and its relevance in their adjudication 3 of cases involving persons with and without psychi- more favorably. Furthermore, that person is per- atric disorders. ceived to be less likely to recidivate and to have a higher potential for rehabilitation.4,5 Legal research has demonstrated that remorseful defendants are Dr. Zhong is a Resident, Hospital of the University of Pennsylvania Department of Psychiatry, Philadelphia, PA. Drs. Baranoski and Bu- generally more likely to receive relatively lenient chanan are Associate Professors and Drs. Davidson and Zonana are punishments, whereas remorseless defendants are Professors, Yale University School of Medicine Dept of Psychiatry, 6,7 New Haven, CT. Mr. Feigenson is Professor, Quinnipiac University more likely to receive harsher punishments. In School of Law, Hamden, CT. This research was supported by the Yale civil law, such as negligence cases in tort, it has been University School of Medicine William U. Gardner Memorial One- noted that convincing displays of remorse may affect Year Medical Student Research Fellowship. Address correspondence to: Rocksheng Zhong, MD, 108 Dobbs Drive, Hi Nella, NJ 08083. the damages plaintiffs seek, and apology has been E-mail: [email protected]. suggested as an alternative to purely monetary 8,9 Disclosures of financial or other potential conflicts of interest: None. reparations.

Volume 42, Number 1, 2014 39 Role of Remorse in Criminal Law

Despite these and other empirical findings, the precise and well-developed characterization that in- relevance of remorse remains controversial in legal corporates notions of distress, personal responsibil- reasoning. Some contend, on both practical and the- ity, moral wrong, regret, and restitution. Although oretical grounds, that judges should take neither the their analysis represents an improvement in the cur- presence nor the absence of an expression of remorse rent theory of remorse, much work remains, espe- into account when determining a person’s punish- cially when considering it in conjunction with other ment. Duncan,10 for example, highlights the diffi- cognitive and emotional states. culty of accurately discerning remorse in human expression and then differentiating it from other emotions. Purpose of the Investigation Bagaric and Amarasekara11 take the theoretical The legal debate concerning the relevance of re- position that remorse cannot be justified in terms of morse in criminal law aside, forensic psychiatrists are either utilitarian or retributive theories of punish- frequently asked to assess its expression, either di- ment. A utilitarian account typically holds that of- rectly or indirectly, in criminal cases. Forensic psy- fenders should be punished just enough to deter chiatric evaluations that examine individuals’ appre- them (specific deterrence) and others like them (gen- ciation of wrongfulness, their insight into their own eral deterrence) from committing future crimes. Al- behavior, or even their appreciation of the charges though remorseful offenders are assumed to be less against them often require defendants to reflect on likely to recidivate and therefore may require less the criminal act. During these discussions, offenders punishment, there is no empirical evidence to sup- may reveal aspects of themselves pertaining to report a correlation between remorse and decreased morse that are hidden from other courtroom actors. recidivism. The authors further argue that the re- Therefore, forensic psychiatrists are uniquely posi- tributivist theory of punishment requires congruence tioned to provide courts with a fuller description and between the severity of the punishment and the understanding of the thoughts and feelings that give severity of the wrongfulness of the act; in contrast, rise to remorse, not only in terms of its general psy- the degree of remorse, if any, is a characteristic of the chology and presentation, but also as it applies to offender. particular individuals whom psychiatrists are asked Proponents of a remorse principle acknowledge to evaluate. these weaknesses but emphasize the value of remorse Through qualitative methods and analysis and in a social relational context. They maintain that re- using a series of semistructured interviews with the morse is a moral good worthy of civic recognition: judges, we seek first to present their views of the thus when judges alter a punishment on the basis of re- far nebulous concept of remorse: why and how much morse, they acknowledge a person’s self-conception should genuine remorse (or its absence) affect the and honor his or her autonomy.12 They also suggest outcome of a case? How do judges gauge whether an that outside of the courtroom, the expression of re- offender is sincerely remorseful? Do judges view morse can have powerful reconciliatory healing ef- someone with mental illness differently with regard fects for offenders and victims, and these effects can to remorse? Second, in this article, we intend to in- even extend to the community at large by reaffirm- form and aid psychiatric experts in the crafting of ing social norms and adding to the public’s moral their own reports, as well as in consulting for and education.13 educating judges who seek their help. The debate is fueled in part by the elusive nature of remorse. The struggle of scholars across disciplines to delineate the essence, indicators, and relevance of Methods this emotion is shared by judges in the courtroom. Thirty-two (26%) of 124 sitting judges in the In the absence of clear guidelines, courts have been Connecticut State Superior Court Criminal Docket inconsistent and subjective in describing the relative were contacted through e-mail with an explanation importance of remorse in criminal justice, as well of the investigation and a copy of Yale University’s as its physical manifestations.14 Recently, Proeve and institutional review board (IRB) exemption. Of Tudor8 have sought to combine the wide range of those contacted, twenty-three judges (72%) re- intellectual inquiry concerning remorse into a more sponded and agreed to participate. The participants

40 The Journal of the American Academy of Psychiatry and the Law Zhong et al. had between 7 and 30 years of experience as sitting the possible effect of mental illness on defendants’ judges. The sample comprised 19 men and 4 women. ability to experience and express it. For recruitment, we used a snowball sampling Interviews were transcribed and analyzed accord- method, in which participants were asked to refer ing to the phenomenologic method. This mode of other individuals as potential participants.15 Initial analysis is usually applied to narratives (stories), re- recruitment targeted judges with prior experience in organizing and condensing raw text into narrative collaborating with the Yale School of Medicine De- summaries that are coherent accounts of personal partment of Psychiatry. All were familiar with its subjective experience, written in the first person mission of clinical evaluation, consultation, educa- and adapted from the respondents’ language.16 Of tion, and research. Snowball sampling methods are note, the present research was not designed to under- frequently used in qualitative research for both their stand judges’ experience of remorse as a subjective logistic convenience and their methodologic advan- phenomenon, per se. That is, summaries were not tages. Logistically, direct references from peers allow constructed with the singular goal of recounting researchers to gain access to otherwise insulated episodic events. Instead, the summaries were orga- populations (such as judges). Methodologically, nized according to major themes pertaining to re- members of a group are often best positioned to morse. The summarization process eliminated excess identify other members who may contribute useful text and extracted useful meaning from the fre- information. quently wide-ranging interviews. All 23 interviews were conducted by the principal Before the analysis phase, the research team re- investigator (R. Z.) at times and places of the partic- ceived training from the methodology expert in the ipants’ choosing, usually in the judges’ chambers. construction of narrative summaries. Then, the Informed consent was obtained before each inter- principal investigator and one other rater from the view, and the participants were told that their re- team, consisting of a forensic psychiatrist, forensic sponses would be audio recorded and de-identified. psychologist, social worker, and two law professors, Interviews ranged in length from 35 to 129 minutes; composed narrative summaries of each interview most lasted approximately one hour. Upon comple- transcript. The common methodology training pro- tion of the session, the participants were thanked and moted consistency in generating the narrative sum- offered notification of the results. No reimbursement maries. However, the research team was intentionally or other gratuity was offered. composed of scholars from different disciplines to The interview questions were developed by the capture a variety of viewpoints and minimize rater authors in consultation with several legal scholars, bias stemming from idiosyncrasies of personal expe- including a judge, law professor, former prosecutor, rience or training. The summaries were roughly 2 and public defender. All interviews began with the pages in length (condensed from an average tran- following definition of remorse, adapted from the script text of 14 pages) and provided thematically discussion of the topic by Proeve and Tudor: organized synopses of the respondents’ substantive views. Once the summaries were completed, the rat- Remorse may be defined as a distressing emotion that arises ers met under the direction of the member of the from acceptance of personal responsibility for an act of harm against another person. Often, with further reflec- research team (L.D.) with special expertise in quali- tion, the remorseful individual may desire that the act had tative methodology. This meeting provided a forum never occurred at all and wish to make restitution toward for the raters not only to reach consensus regard- the victim [summarized from Ref. 8]. ing potential interrater inconsistencies, but also to The participants were asked whether they agreed conduct an analysis of common themes among with this definition and how they would change it. interviews. They were then asked a series of open-ended questions regarding their experiences with remorse in Results their legal practice, the role remorse plays in court The judges generally concurred with the proposed cases and the courtroom setting, and how they assess definition of remorse, with some revisions and ex- and use remorse at various stages of the legal process. pansions: remorse is a “blending of emotions and The interview concluded with questions regarding belief or reason” or a “fundamental regret for self- the evaluation of genuine versus feigned remorse and accusatory consciousness of guilt”; it includes “an

Volume 42, Number 1, 2014 41 Role of Remorse in Criminal Law appreciation of the impact on the victim”; it can be in more serious cases. Others stated that leniency directed toward others beyond the victim (e.g., the stemming from remorse would be more meaningful defendant himself, the defendant’s family, and by- in cases involving less serious crimes because it could standers); and a remorseful individual “wishes to alter the structure of a sentence (e.g., probation ver- modify his or her behavior so that similar acts do not sus prison). Many of the judges observed that re- occur in the future.” morse is more common and has more influence in Beyond the initial definition, the judges expressed crimes involving victims, whereas others considered no uniform view about remorse or about the nature it more relevant in property and financial crimes, and extent of its role in judicial decisions. We briefly where there is an opportunity to make meaningful summarize the range of their responses regarding the restitution. However, some of them disagreed: “Pay- legal relevance of remorse in criminal justice, the ef- ing one’s way out of a problem is not necessarily fect of the type of offense and stage in the criminal evidence of true remorse.” Finally, some indicated justice process on the role it plays in decisions, and its that they considered remorse more relevant in crimes assessment. of negligence, recklessness, and impulsiveness than in premeditated crimes. The only agreement was Legal Relevance with regard to heinous crimes, especially murder and The judges disagreed about whether an offender’s rape, in which the seriousness of the offense was seen remorse or its absence is an appropriate consideration as the overriding consideration in sentencing, and in the criminal justice process. Views ranged from remorse was viewed as having no impact. regarding remorse as centrally pertinent to irrelevant All the judges agreed that the impact of remorse to the legal process. Those who deemed it relevant varies according to the stage of the legal process and justified its role in different ways, ranging from find- that it is generally not a factor during trial, where a ing it relevant to all four standard theories of punish- defendant’s right to maintain innocence predomi- ment (deterrence, incapacitation, rehabilitation, and nates. Moreover, any expression of remorse would retribution) to finding it relevant only in terms of have no bearing on the duties that the trial judge retribution. must perform, including ruling on evidence and in- Many viewed remorse as indicative of personal structing the jury. character and therefore predictive of future behavior The judges disagreed about the relevance of re- in terms of likelihood of rehabilitation versus recidi- morse at other stages of the legal process. Some ar- vism. However, one judge stated that remorse is a gued that it should not be considered at arraignment “weak counterbalance” to the various external pres- or affect the bail decision, since strict legal require- sures that push people toward additional criminal ments (e.g., the severity of the crime and the defen- activity. dant’s criminal history) dictate that decision. Fur- The judges differed significantly in their views re- thermore, at that initial stage, defendants’ intense garding the absence of remorse. Some believed its emotions would interfere with an accurate assess- absence indicates sociopathy and increased criminal- ment of remorse. In contrast, others considered re- ity, making the person more dangerous, more likely morse at arraignment to be predictive of a defen- to recidivate, and less amenable to rehabilitation and dant’s ability to follow court orders and therefore, thus warranting harsher punishment. Others empha- highly relevant. Moreover, the chances of ultimately sized that the absence of remorse should never justify being sentenced to jail would be much lower if a additional punishment because due process guaran- defendant demonstrates good behavior while out tees defendants the right to assert their innocence, on bail. and defendants cannot be expected to show remorse Many of the judges identified the type of plea as if they do not admit the crime. an indication of the presence or absence of remorse: “straight guilty is the best way to indicate remorse.” Time and Place for Remorse They differed in their views of remorse when defen- The judges varied in their views regarding the im- dants resort to the Alford plea, a variant of a guilty pact of remorse on judicial decisions across type of plea in which defendants do not admit factual guilt crime and stage in the criminal justice process. No- but concede that the prosecution is likely to convince tably, some of them placed greater importance on it the jury of their guilt.17 Some of the judges under-

42 The Journal of the American Academy of Psychiatry and the Law Zhong et al. stood that an Alford plea is a “tactical decision” that Statements consisted of oral or written communi- “serves its own purpose and is not an indicator of the cations that indicated a “recognition of wrongdo- presence or absence of remorse, in and of itself.” Oth- ing,” “acceptance of responsibility” (as in “I did it; I ers viewed an Alford plea as “the opposite of remorse, am sorry”), or articulations of “the beliefs and the a face-saving mechanism, a calculated way to mini- understanding of why an act is harmful or in what mize punishment driven principally by self-interest way you’ve really damaged or hurt somebody.” Apol- but [having] nothing to do with feeling sorry or re- ogies (letters or direct address in court) and empathic gret.” Notably, these judges did not acknowledge statements also fit within this category. Conversely, that an Alford plea might well be the result of defer- defendants may remain silent, make denials, or en- ence to a lawyer’s advice rather than reflective of the dorse their crimes. They may speak in a way that defendant’s actual feelings. “minimizes the consequences to themselves” or sug- Most of the judges agreed that sentencing “is the gests that they “do not care about the consequences Big Kahuna,” “the time when remorse comes into of their actions.” They could blame or threaten the play,” and “the best and most evident opportunity victim, witnesses, lawyers, or courtroom personnel. for someone to make a statement of remorse.” They could lie, recite “rote remorse” “in the language of [their] attorney” as if “looking ata3by5card in Expressions of Remorse: “More an Art Than a the sky.” One judge stated that greater levels of detail Science” were often indicative of greater levels of sincerity, and The judges varied in their level of confidence in another claimed that indirect statements (e.g., “I am assessing remorse, ranging from a high degree of con- sorry about what happened”) were less sincere than fidence to no confidence that genuine remorse can be those made in the active voice (e.g., “I am sorry for distinguished from that which is feigned. Those con- what I did”). fident in their abilities often cited their experience: Nonverbal cues are aspects of the defendant’s be- “I do not find it difficult to judge remorse. I get havior in court that judges may interpret. The par- people.” “After 40 years of dealing with people, it is ticipant judges assessed a defendant’s emotional state not hard for me to make a call about remorse. I am (e.g., being overwhelmed, breaking down, not pay- pretty good at picking out the fakers. I am in the ing attention, or being distant) as cues to the presence credibility business.” In contrast, other judges em- or absence of remorse. Some looked for specific be- phasized the difficulty of determining true remorse: haviors, such as crying, facial expression, leering, “[The signs of remorse] can all be faked. Go to the sneering, remaining expressionless, tone of voice, eye theater or the movies—people make a living out of contact, lack of eye contact, head hanging, putting it!” One judge strongly opposed the incorporation of one’s head down, looking up, looking down, looking remorse in judicial decisions, in part because of the around, and fidgeting. There was, however, little complexity of assessing it: consistency among the judges as to what a specific behavior could mean. For example, both the pres- [Assessment of remorse] is very difficult, especially for judges who are just seeing bits and slices when the person ence and absence of eye contact indicated remorse to appears in these very formalized, stylized settings. For different judges. judges to think, sitting up on the bench, that they can really Attitude or demeanor was perceived as a global figure out whether this guy is remorseful, is remorseful enough, and is it real, it is the height of arrogance. indicator of remorse. Respect (or lack thereof) for the judicial process and court personnel was often cited: In the assessment of remorse, the judges disagreed “Someone stands up straight during the proceedings, widely with regard to indicators of genuine remorse speaks respectfully, that means one thing. If you as opposed to insincere expressions or its absence. are standing with your head at a cocky angle, with a Many of the behaviors that indicated the presence of ‘let’s get this over with’ look on your face, that will remorse to some of the judges indicated the absence impact me.” The judges identified arrogance, narcis- of it to others. The responses can be classified into sism, belligerence, hostility, defiance, aggressiveness, six categories: statements, nonverbal cues, attitude and lack of interest or caring as unfavorable: “They or demeanor, actions or conduct, corroborating will stand there with one hand on the hip, looking at sources, and Gestalt. The judges ascribed various you like, ‘Why you are bothering me, judge, with meanings and degrees of reliability to each. these questions?’ That attitude that ‘I can’t be both-

Volume 42, Number 1, 2014 43 Role of Remorse in Criminal Law ered, I have places to go, I have things to do.’” In fact, strued as respectful or disrespectful. The judges had “criminals, especially at the higher level, understand particularly polarized views of letters of apology: the rules. If they are acting out in front of you— Being able to put yourself into the victim’s shoes is an negative body language, turning around in their important intellectual exercise. It is also useful if the of- chair, speaking out loud, getting aggressive—they fender expresses disappointment or regrets what he has done to his own family. are acting out in defiance of the rules.” Another judge I am very big on apologies because it is restorative justice. saw a “forthright disposition, calm, cold, cool, and Particularly in the juvenile delinquency setting, I will order collected” as being consistent with a remorseful defendants to write a sincere letter of apology so the victim stance. will know that he has manifested sorrow for what he did. Actions or conduct refers to behavior beyond the That might be of some solace to the victim. courtroom that indicated remorse or its absence. The I never order a person to write a letter of apology. Why would you ever order that? It makes no sense whatsoever. If judges examined past criminal records and how de- someone wants to apologize, they apologize. fendants “live their life”; compliance with or viola- Other things that may seem like remorse are not, like letters tion of current court orders; behavior in jail or lock- of apology to victims, which can be counterproductive. up; making restitution; enrollment in treatment for Those are frowned upon because victims find them to be intimidating. Sometimes they can be worded with meaning drug, alcohol, or psychiatric problems; community within meaning. service; and volunteering. Two judges exemplified this sentiment with the comment, “It is not just talk- Some of the judges doubted the veracity of ex- ing the talk; it is walking the walk.” pressed remorse when the defendant had an apparent Corroborating sources were recognized by some change of heart: “It is really timing. If they hang of the judges as offering useful information about tough through the whole thing, like at a trial, and then when they get convicted and all of a sudden they remorse. Surrogates, such as family members, sig- find God. They think that is going to make an im- nificant others, clergy, Alcoholics Anonymous or pression on me.” Furthermore, “sociopaths can very Narcotics Anonymous sponsors, or coaches, were easily change their demeanor to hopefully get a par- mentioned as potentially influencing the judge’s be- ticular outcome.” Other judges acknowledged that lief or disbelief in a defendant’s claims of remorse. people can genuinely reform while awaiting disposi- Finally, several of the judges relied on a Gestalt tion, often because their behavior improves with impression, described variously as: a “gut instinct, proper management: general feel for people”; “your intuition, your expe- People. Can. Change. If somebody has acted like a com- rience, your common sense”; a “holistic approach”; plete jerk every time he has been in front of me and then “looking at defendants from every possible point of suddenly changes into this incredibly polite, nice man, I view”; an examination of “all the facts and circum- have to think he might be acting. But it can also be because they are given the right medication, or they have been de- stances”; a “sense from the totality of the circum- toxed from alcohol and drugs, or they have had counseling. stances”; a “composite of what you say, how you say it, and the attitude you exemplify when you say it”; Remorse and Mental Illness and “you know it when you see it.” They alluded to Although one judge professed not to have “the the fact that “it’s more of an art than a science” or that slightest idea” about the nature of the relationship “it’s not a science,” and “there is no tool, no radar” between mental illness and remorse, most believed that can unerringly discern genuine remorse. that in the presence of mental illness, the consider- It is noteworthy that across the participants, the ation and relevance of remorse are essentially altered: same indicator could be interpreted in opposite di- “When you get into mental illness, it is a whole dif- rections. For instance, silence was perceived as an ferent ballgame.” “Your ability to be able to put your- indication of shyness, fear, poor public speaking self in someone else’s shoes is clouded by your mental skills, or mental illness on the one hand, or remorse- illness.” “If somebody is severely mentally ill, then lessness, disengagement, or distraction on the other. their thought processes might be skewed, and their Some of the judges believed that putting one’s head judgment, ability to understand, and differentiate down or hanging one’s head was a sign of respect. from reality and non-reality might be impaired.” Others said that it indicated an absence of remorse. Mental illness “will deeply affect someone’s ability to Similarly, eye contact or lack thereof could be con- communicate and may affect their whole world-

44 The Journal of the American Academy of Psychiatry and the Law Zhong et al. view.” A mentally unstable person is “not even going ity to detect “real versus unreal” remorse and the to be appreciating what is going on around them.” “genuineness of emotions.” Indeed, psychiatrists “are The judges tended to view mental illness as a cate- supposed to have good bullshit detectors,” and “they gorical factor—a person is either mentally ill or have heard it all.” Furthermore, unlike judges, psy- not—and once mental illness was present, neither its chiatrists have an opportunity to perform their eval- type nor its severity influenced the judges’ assessment uations “in a different, less confrontational setting.” of its effect. Therefore, remorse “would be a good thing to know Most commonly, the judges made statements to about in a psychiatric evaluation” because “remorse the effect that mental illness “almost neutralizes” re- clearly plays a role in terms of the stuff that a psychi- morse. That is, they would disregard or discount atric evaluator would want,” and “a psychiatrist both the presence and absence of remorse: “I would would deem remorse to be a factor in their analysis of almost throw remorse out the window.” “It becomes someone.” a non-issue.” Rather, mental illness requires a “whole Other judges did not value psychiatrists’ input different” approach, looking “through a different about remorse. Oftentimes, they viewed the role of lens,” and “changes the dynamics of the analysis” so psychiatrists as answering specific questions: “If I get that it becomes the dominant factor in decision- a psychiatric report, it is on the question of compe- making. The matter of psychiatric medications sim- tency to stand trial, and on that question, the pres- ilarly eclipsed other considerations: “I will first ask, ence or absence of remorse would have no bearing.” ‘What drugs are you on?’ and that is a powerful factor “In psychiatric evaluation reports, I give observations that takes precedence over remorse.” “You could be of remorse little or no consideration; I read them for medicated with side effects, in zombie-like states.” background information and psychiatric diagnosis Those judges who viewed remorse as relevant for a information, but I am not looking for remorse.” defendant who is mentally ill indicated that they ad- Other judges doubted whether psychiatrists’ training just their expectations: “Expecting them to act in a was of any use in determining remorse: “You do not certain way would be unfair; you have to have lesser need a professional degree to judge remorsefulness; it expectations for them to show remorse.” “If a person is more based on experience.” “Having a psychiatrist is so mentally impaired that he or she is incapable evaluate whether someone is remorseful is not some- of expressing remorse, I certainly cannot hold that thing that would really sway me; you really need to against an individual.” Nevertheless, if remorse was see it from someone’s actions and what they say expressed, some of the judges would regard it in the themselves.” Finally, some of the judges believed that same way as they would for a normal individual: “I a psychiatric interview is an inadequate setting for would not think, by virtue of the mental illness, that the assessment of remorse: “I would be a little un- the expression of remorse was more or less reliable.” comfortable with somebody saying, ‘I met this kid “I would not hold their mental illness against them if for an hour and I can tell you, he is really sorry, and they appeared to be genuine in their expression.” it is a deep-seated, sustained remorse.’” Meanwhile, others questioned the validity of remorse I look at expert testimony with a wary eye because they just in a person with mental illness: do not have that much time with these people; whether I Do they remember what they did? Do they have any real give weight to psychiatrists’ observations of remorse de- current understanding of what happened before to the pends on the neutrality of it, the nature of the observations, point where they can honestly show remorse? Or is it that how long [the observations] were, [and] when they were. they are sorry for what they did and they would not have done it if they have been well? I do not know. I do not know whether that is being feigned or if it is true because now Discussion they are better. The key finding in this study was that the judges The judges disagreed about whether psychiatrists did not express uniform views about remorse, its as- would be helpful in assessing remorse. Some believed sessment, or its relevance to the judicial process. Nev- that psychiatrists’ training and experience could be ertheless, they all had strong views about it, and all effectively leveraged in this regard: “Given psychia- recognized that the question of how it should affect trists’ training, they may have a better sense of legal decisions is a relevant one. The variation in their whether expressed remorse is the real McCoy.” These answers mirrors many of the controversies expressed judges credited psychiatrists with a heightened abil- in the literature.

Volume 42, Number 1, 2014 45 Role of Remorse in Criminal Law

Although the judges generally agreed with the def- dants are either mentally ill or not. If they are, then inition stated by Proeve and Tudor,8 they disagreed they merit a wholly different judicial approach, but if about whether remorse is relevant, why it is relevant, not, then they are treated in the usual manner. Few for what types of crimes and at what stages in the indicated that they recognize either a spectrum of process it is relevant, what constituted its genuine severity of mental illness or the differences in the expression, how mental illness affects it, and whether types of psychiatric disorders (e.g., mood, psychotic, psychiatrists have anything to offer. Ambiguous be- anxiety, personality, autism spectrum, etc.). The havior, such as eye contact, that one judge viewed as judges’ all-or-nothing representation of psychiatric a show of remorse might be deemed by another to disorders suggests that many defendants whose men- show the opposite. The judges also tended to view tal illness is not yet diagnosed or those who wish not the absence of signs of remorse as evidence of its to be identified as having a psychiatric disorder will absence. In other words, although a few recognized not be afforded a more lenient assessment of their that an expressionless person conveys no information expression of remorse and, therefore, their character. at all, many took the failure to endorse remorse as a Our results can inform the work of psychiatric sign that the person is not experiencing it internally. consultants and experts. Currently, unless specifi- Most of the judges expressed an effort, at some point cally requested, an assessment of remorse is not reg- in the proceedings, to look beyond the law and the ularly included in most forensic psychiatric reports. specifics of the crime to determine something about Indeed, some judges explicitly stated that they would the person before them. Consistent with previous ignore a psychiatric opinion about a defendant’s re- research, the judges often conflated remorse with morse, perhaps viewing that opinion as impinging on overall character.3 a type of personal ultimate question and therefore The relationship between remorse and character beyond the scope of psychiatry. Moreover, skeptics extended to other conclusions and predictions. Re- might wonder whether psychiatrists are any better morseless persons were seen to possess character than judges at making a determination of remorse. flaws, deserving greater punishment, not only to Without an agreed-on definition or structured ru- punish the intrinsic immorality of remorselessness, brics of measurement, psychiatrists could be subject but also because remorselessness suggests further to the same biases and peculiarities of personal expe- deficiencies that may predispose a person to future rience as other types of evaluators. Thus, any evalu- criminality. Conversely, remorseful people were seen ation would necessitate caution and careful review. to possess a virtuous character, meriting less punish- Nevertheless, many of the judges indicated that ment by the state. A remorseful person was fre- they welcome forensic psychiatric assessments. We quently construed as an otherwise normal individual believe that the present research helps to clarify what who has made a mistake and is therefore a candidate form these assessments should take. Psychiatrists for leniency and rehabilitation. In this way, remorse possess the skills and knowledge necessary to inform contributed to the classification of offenders into (ca- judges’ understanding of the defendant’s attitude to- reer) criminals versus unfortunate regular Joes. ward the offense. Psychiatrists’ training exposes them One surprising finding was that many of the to a wide range of human expression, as well as to the judges made scant reference to the impact of the legal effects of mental illness, and they must often judge process on the defendant’s behavior. In particular, truthfulness versus malingering, especially in forensic many held that an Alford plea is indicative of re- populations. Although remorse, with all of its atten- morselessness and might then be taken into account dant definitional and operational ambiguities, may in sentencing, despite the possibility in Connecticut remain difficult to address, psychiatrists can describe that an Alford plea may be strategic and pursued on a defendant’s mental condition and the manner in advice of counsel with minimal input from the which it may affect an expression of or feelings of defendant. remorse (e.g., its absence in someone who delusion- A relatively consistent finding was that the judges ally believes that the victim attacked him). Further- viewed the presence of mental illness as requiring an more, a psychiatrist can explicate the ways that a alteration of their usual assessments. They were will- person’s mental illness or condition affects his pre- ing to make allowances for mental illness, but their sentation. This focus on the influence of mental dis- responses suggest a categorical view; that is, defen- orders on presentation, as well as the effects of psy-

46 The Journal of the American Academy of Psychiatry and the Law Zhong et al. chotropic medications on demeanor, would enable together as a group to discuss the summaries. Finally, psychiatrists to assist judges while still allowing the generalizability of our research may be limited, courts to make the final assessment of whether these given that we sampled only one state, and our sample considerations merit recognition as remorse or size was limited. The judges, however, tended to ex- should affect the defendant’s disposition. press concepts central to criminal law that are most likely applicable to a wide range of jurisdictions.

Conclusion Future Research The results of this study allow us to conclude that Our study was designed to examine the range of judges are thoughtful about remorse. Most of our criminal judges’ views about remorse, and we were respondents considered it a relevant and even essen- able to identify a host of behaviors that judges deem tial factor in their decisions about sentencing; most important in their assessments. A next step may be expressed some doubts in their confidence in assess- to create quantitative survey instruments and system- ing genuine remorse; and most saw a role for forensic atically investigate the degree of agreement between psychiatric expertise. Although more research is judges. Such a study would require a much larger needed, one lesson from this study is that remorse is sample of judges, ideally taken from several an area of interest and relevance in the criminal jus- jurisdictions. tice system, and forensic psychiatry can contribute A second avenue of inquiry would be to probe the to its assessment. An improved dialogue about this use of remorse in civil courts, where injuries stem- topic can help defendants with and without mental ming from negligence or recklessness are common, illness obtain greater justice. and one would expect remorse to figure prominently. Indeed, one study has already shown that the timing Limitations of defendants’ expressed remorse in mock medical The present research implemented a qualitative malpractice cases can have an impact on the amount 18 interview method that relied on snowball sampling. of money awarded to plaintiffs. Any research on Several methodological limitations were inherent in the role of remorse in civil cases would have to take the study. First, the interviews were all conducted by into account differences between the civil and crim- one researcher and were heavily dependent on his inal contexts, such as the role of nonprofessional ju- interviewing skills. Furthermore, interviews, by their ries rather than judges as decision-makers. nature, rely on reflective self-report. Although the judges had much experience in detailing their own Acknowledgments decision-making process, they nonetheless remained This research would not have been possible without the gracious vulnerable to the biases of self-report. For example, assistance of our legal consultants, Mary Galvin, Linda Lager, Linda Meyer, Paul Thomas, and Stephen Wizner, as well as the they could not report unconscious influences, they State of Connecticut Judicial Branch. We also thank other mem- may have been reluctant to divulge inappropriate bers of the research group, including Josephine Buchanan, Mark thoughts, their responses were based on memory, Mercurio, and the Yale Law and Psychiatry Division. and their stated intentions and actions may have differed from actual practice. References The snowball sampling method also exposed the 1. Sundby SE: Capital jury and absolution: the intersection of trial study to bias. When relying on peer references, those strategy remorse and the death penalty. Cornell L Rev 83:1557, with opposing views could be systematically over- 1997 2. O’Hear MM: Remorse, cooperation, and acceptance of responsi- looked due to preferential selection of likeminded bility: the structure, implementation, and reform of Section 3E1.1 individuals. However, as the results showed, our of the Federal Sentencing Guidelines. Nw U L Rev 91:1507, 1996 sample of judges gave a wide range of responses that 3. Gold GJ, Weiner B: Remorse, confession, group identity, and expectancies about repeating a transgression. Basic Appl Soc Psy- were often in direct opposition with each other. In chol 22:291–300, 2000 generating the narrative summaries, the raters were 4. Proeve MJ, Howells K: Effects of remorse and shame and criminal not blinded to the study design. Also, the summaries justice experience on judgements about a sex offender. Psychol were subject to the particularities of each rater. Nev- Crime Law 12:145–61, 2006 5. Kleinke CL, Wallis R, Stalder K: Evaluation of a rapist as a func- ertheless, we attempted to minimize this problem by tion of expressed intent and remorse. J Soc Psychol 132:525–37, having everyone undergo the same training and meet 1992

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6. Eisenberg TG, Garvey SP, Wells MT: But was he sorry?—the role 13. Bibas S, Bierschbach RA: Integrating remorse and apology into of remorse in capital sentencing. Cornell L Rev 83:1599, 1997 criminal procedure. Yale L J 114:85, 2004 7. Garvey SP: Aggravation and mitigation in capital cases: what do 14. Ward BH: Sentencing without remorse. Loy U Chi L J 38:131, jurors think? Colum L Rev 98:1538–76, 1998 2006 8. Proeve M, Tudor S: Remorse: psychological and jurisprudential 15. Atkinson R, Flint J: Accessing hidden and hard-to-reach popu- perspectives. Burlington, VT: Ashgate, 2010 lations: snowball research strategies. Soc Res Update 33:1–4, 9. Shuman DW: The role of apology in tort law. Judicature 83:180, 2001 1999 16. Sells D, Topor A, Davidson L: Generating coherence out of chaos: 10. Duncan MG: So young and so untender: remorseless children and examples of the utility of empathic bridges in phenomenological the expectations of the law. Colum L Rev 102:1469, 2002 research. J Phenomenol Psychol 35:253–71, 2004 11. Bagaric M, Amarasekara K: Feeling sorry?—tell someone who 17. LaFave WR, Scott AW: Criminal Law (ed 4). St. Paul, MN: cares: the irrelevance of remorse in sentencing. Howard J Crim Thomson/West, 2003 Just 40:364–76, 2001 18. Bornstein BH, Rung LM, Miller MK: The effects of defendant 12. Tudor S: Why should remorse be a mitigating factor in sentenc- remorse on mock juror decisions in a malpractice case. Behav Sci ing? Crim L Philos 2:241–57, 2008 Law 20:393–409, 2002

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