Feeling Sorry? – Tell Someone Who Cares: The Irrelevance of Remorse in Sentencing

Feeling Sorry? – Tell Someone WhoCares: The Irrelevance of Remorse in

Sentencing

MIRKO BAGARIC and KUMAR AMARASEKARASenior Lecturers, Faculty of Law, Monash University, Australia

Abstract: A fundamental moral proscription is that people should not violate the importantinterests of others, such as the right to life, physical integrity and property. Minimum standardsof human decency require that when people breach this important proscription by breaking thecriminal law, the least that is expected of them is that they show some contrition. It follows thatoffenders who are remorseful should not be treated more leniently. The purpose of this article isto debunk the widely held intuitive view that remorseful offenders should be dealt with lessharshly than other offenders. We argue that irrespective of which of the main theories ofpunishment one adopts, remorse is irrelevant to sentencing, and that it should henceforth bedisregarded as a sentencing consideration. Even in the context of restorative theories of justice,remorse only has a marginal role.

Remorse is the feeling of regret or sorrow for what one has done. In manyjurisdictions, it is an important sentencing consideration. The presence ofremorse can operate to reduce significantly the severity of the punishmentmeted out to an accused.

This article argues that there is no justifiable doctrinal basis for accord-ing a sentencing discount to offenders who evince regret for what they havedone. Criminal offenders have engaged in conduct which is prohibited bythe criminal law. Minimum standards of human decency demand that aperson should not unjustifiably encroach on legally protected interests ofothers. It follows that it is hardly too much to ask that offenders should showsome contrition when they violate this proscription. In no other humanactivity do agents get credit for doing the minimum that is expected ofthem. The surgeon who saves a patient’s life, the police office who effects anarrest, the plumber who fixes the broken pipe, all are merely doing what isexpected of them. Despite the enormous utility of their actions, they are notentitled to extra privileges and are not relieved to any extent of other soci-etal duties. The reason for this is simple: rewards are not handed out formerely doing what is expected – only for clearly going beyond one’s moraland/or legal obligations. Curiously, it is felt that this principle does notapply to criminals. The only possible rationale for this is the perverse logicthat the more rotten one is the less we can expect of them. In fact, the oppo-site ought to apply. The more of a scoundrel one has become, the more that

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The Howard Journal Vol 40 No 4. November 2001ISSN 0265–5527, pp. 364–376

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can rightly be expected of him or her in order to claw his or her way backinto the community.

Identifying remorse – the irrelevance of problems of proofIn seeking to deny the relevance of remorse, one argument that we will notseek to pursue is the obvious point that remorse is indistinguishable fromexpedience or self-pity. Offenders have a strong self interest in reducingtheir sentence and remorse is one of the easiest mitigating factors toallege, since it requires no tangible exertion or demonstrable behaviouralchange (apart from the saddened expression, and perhaps the occasionaltear or two), and being purely subjective it is almost impossible to rebut.The problems associated with ascertaining true expressions of remorse arenotorious, and led Asche CJ (Jabaltjari (1989) 64 NTR 1, 10) to remarkthat ‘the difference between being sorry for what one has done and sorryfor being caught is a difference which judges may not always wish to inves-tigate thoroughly’.

A recent paper by Proeve, Smith and Niblo (1999) highlights theimmense difficulties in distinguishing real from feigned remorse andsuggests that far more research is necessary to understand fully the natureof remorse and to identify when it is present. We contend that this wouldbe a waste of time, but not because of the difficulties in identifyingremorse.

The pragmatic difficulty in identifying genuine remorse, is not a basisfor impugning its relevance. If remorse is important, the existence ofevidential difficulties would simply be a reason for devoting more time andattention to the issue. Many legal issues, turn on the subjective mentalstates (such as ‘intention’ or ‘recklessness’) of at least one of the parties.The considerable evidential difficulties associated with ascertaining thesemental states have not resulted in ceasing to inquire into them. This isbecause there is a justifiable doctrinal basis for regarding the particularmental state as being legally relevant. For example, murder wouldnormally be far easier to establish if the requisite mens rea was an objectivestandard. However, given that culpability for such a serious offencerequires subjective wrong doing, difficulties of proof have not led to apush to abandon the subjective element of murder.

For remorse to be justifiable as a sentencing consideration, it must insome way relate to the purpose for punishing offenders in the first place.We argue that neither of the leading theories of punishment justifiesattributing weight to remorse. The only other possible reason for provid-ing a discount to remorseful offenders, stems from the broad virtue offorgiveness. We suggest that forgiveness is not a principle which ought tobe given legal recognition. Finally, we consider the relevance of remorsein the context of restorative theories of criminal justice.

Before discussing these issues, we first provide a brief overview of therole of remorse in sentencing. This article is normative, rather thandescriptive in nature; however, this brief interlude provides an ideal back-drop to the foregoing discussion and sheds light on some of the relevantissues.

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Overview of the Relevance of Remorse to Sentencing

Evidence of remorseIt has been suggested that ‘genuine remorse may be evidenced in a numberof ways:

(i) by a plea of guilty(ii) by co-operation with police(iii) by making reparation(iv) by apologising; and(v) by self-inflicted injuries or attempted suicide’. (New South Wales Law

Reform Commission 1996, p. 192)

As is noted by the New South Wales Law Reform Commission (1996, p. 193),the first three matters are mitigating factors in their own right, but they mayalso provide evidence of remorse. We are not suggesting that these threeconsiderations are necessarily irrelevant to sentencing, only that their rele-vance must be founded on a rationale other than remorse. The criminaljustice system would be stretched beyond breaking point if the large major-ity of offenders did not plead guilty. Accused who inform on other offend-ers should be encouraged because this assists in apprehending othercriminals. Reparation also seems to be desirable – the victim who has his orher property returned by the thief is likely to feel better than the one whoseloss is permanent. Thus, there may be good pragmatic reasons for discount-ing sentences in such circumstances. But in order to get to this point, thereis no need to dress these considerations as being indicative of remorse.Whether or not these considerations ultimately provide a defensible basisfor a sentencing discount is unclear. There are strong counters against eachof these matters being relevant. For example, discounts can be used tocoerce guilty pleas and wealthy offenders should not be able to buy them-selves out of prison by compensating the victim. These are issues for anotherday, but the important point to note is that the answer does not depend onconclusions reached concerning the relevance of remorse.

Remorse in the United KingdomIn the United Kingdom, there is no express statutory foundation forattributing weight to remorse in the sentencing calculus. However, it hasinsinuated itself into the sentencing inquiry in several different ways. Insome cases, the Court of Appeal appears simply to have assumed that it isinherently relevant. In Claydon ((1994) 15 Cr App Rep (S) 526, 528) theCourt of Appeal, stated that the accused who gave himself up showed greatcourage and ‘considerable remorse and repentance for what he had done’and as a result a significant penalty discount was given. In Norman ((1993)15 Cr App R (S) 165) the accused’s sentence was reduced from seven to fiveyears, largely as a result of remorse.

However, in other cases, the relevance of remorse has stemmed from itsparasitic association with other discrete relevant sentencing considerationsoutlined above. Section 48 of the Criminal Justice and Public Order Act1994 (UK), requires a sentencer to take a guilty plea into account in fixing


the sentence. The normal size of the discount is about one-third (Buffrey(1992) 14 Cr App Rep (S) 511). Numerous decisions have stated that thejustification for this is that a guilty plea is evidence of remorse (for example,Fraser (1982) 4 Cr App Rep (S) 254). The Court of Appeal has also acceptedthat assisting police to obtain evidence against other offenders may also beviewed as a sign of contrition (though commonly it is simply a last ditcheffort to gain a penalty reduction) and results in a penalty discount (see Roseand Sapiano (1980) 2 Cr App Rep (S) 239).

Remorse in AustraliaIn Australia, remorse is even a more weighty sentencing consideration:‘contrition, repentance and remorse after the offence are mitigating factorsleading in a proper case to some, perhaps considerable, reduction of thenormal sentence’ (Neal (1982) 149 CLR 305, 314). In many Australian juris-dictions it has express statutory foundation. For example, in the Common-wealth jurisdiction, Section 16A(2)(f) of the Crimes Act 1914 (Cth)expressly provides that a court in sentencing an offender should have regardto the degree to which the offender has shown contrition for the offence. InVictoria, the Sentencing Act 1991 (Vic), Sections 5(2C) and (2D) providethat a court may have regard to the conduct of the offender at trial as anindication of an absence of remorse.

Against this background, we consider the possible doctrinal basis forrecognising remorse in sentencing.

The Doctrinal Basis For Remorse

Despite the important role of remorse in sentencing, the foundation for itsrelevance is unclear. Intuitively it may seem appropriate to treat less harshlyoffenders who are sorry for their crimes. However, if this is where the appealof remorse as a sentence mitigating factor starts and ends, its role looksdecidedly tenuous. Admittedly we feel that we want to hurt the defiant andboastful offender more than the contrite one, but to justify this we need astronger basis than the mere impulse to do so – intuition is seldom a goodguide for the development of legal rules and principles.

As was alluded to above, there are several different rationales for attribut-ing weight to remorse in the sentencing calculus. However, in order forremorse to be justifiable as a sentencing consideration, it must in some wayrelate to the purpose for punishing offenders in the first place.

Theories of punishment – utilitarianism and retributivismThere are two broad justificatory theories of punishment – utilitarianismand retributivism. The utilitarian theory of punishment is merely an appli-cation of the general utilitarian theory of morality to the specific issue ofpunishment. Thus for the utilitarian, punishment is justified because thegood consequences it produces (which are traditionally thought to includeincapacitation, deterrence (general and specific), and rehabilitation)outweigh the bad consequences – in the form of the pain meted out to theoffender and the distress that this may cause to his or her family and friends.

Due to the wide diversity of retributive theories, it is questionable


whether there is a single unifying principle which they share. However, ahallmark of most retributive theories is that the justification of punishmentdoes not depend on the possible attainment of consequential goals. Retribu-tive theories are forward looking – punishment is an appropriate responseto a past offence, irrespective of any incidental effects of punishment. Thecornerstone of many retributive theories, especially Von Hirsch’s just desertstheory, is that the amount of punishment should be in proportion to theseverity of the offence (Von Hirsch 1993). It has proved remarkably difficultto identify exactly what factors are relevant to gauging offence severity. But,broadly there are two: the harm caused by the offence and the culpability ofthe offender (Von Hirsch and Jareborg 1991; Bagaric 2000d). Importantly,remorse is irrelevant to both of these considerations. Feelings of regret willnot mend the victim’s broken bones, nor compensate for the stolen prop-erty. Contrition after the event also does not affect the accused’s level ofblameworthiness at the time he or she committed the offence.

Retributivism (under the banner of just deserts) is the leading contem-porary theory of punishment, especially in the United States. This has coin-cided with a move to mandatory sentencing, which has been the mainconstant of sentencing reform in the United States over the past twodecades or so (Tonry 1996). Most mandatory sentencing schemes attributesignificant weight to only two variables: the seriousness of the offence andan offender’s prior convictions (Bagaric 2000a). Remorse is irrelevant.

A Retributivism – Duff’s TheoryHowever, there is one contemporary retributive theory where remorse has acentral role. According to Duff (1986), the main aim of punishment is ulti-mately to reconcile offenders back into the community: punishment aims toinduce repentance (the remorseful acceptance of guilt), self-reform, reparation(the repairing of damaged relationship with the rest of the community bygenuine recognition of the wrong) and, finally, reconciliation. Punishment,he argues, is a means through which we engage in a punitive dialogue with theoffender ‘which aims to persuade her to recognise and repent that wrong, andthus to restore her relationship with her victim and with the community’(Duff 1997, p. 28). Duff believes that criminal sanctions serve to bring ‘thecriminal to recognise the wrongfulness of her past conduct; to induce thekind of pain which flows from an understanding of the condemnation whichthey express’ (Duff 1986, p. 242). The criminal is then reconciled to the goodand other members of the community by expressing his or her repentantunderstanding through undergoing punishment.

If Duff’s theory is correct, it is clear that remorse is not only a central, butin fact the main consideration relevant to sentencing. If an offendersincerely regrets his or her conduct the offender is well on the way to self-reform and being reconciled back with the community. We have previouslyargued that Duff’s theory is untenable for a number of reasons (Bagaric andAmarasekara 2000). However, in the context of the debate concerningremorse there is one particularly relevant objection to this theory: it is inca-pable of justifying the imposition of hard treatment on offenders, especiallyin the case of contrite offenders.


Why hard treatment is necessaryAs stated above, Duff believes that the essential purpose of punishment is ‘tobring the criminal to recognise the wrongfulness of her past conduct; toinduce the kind of pain which flows from an understanding of the condem-nation which they express’ (Duff 1997, p. 28) and ultimately restore thecriminal to the community. To achieve this Duff claims that the ‘pain whichexpressive punishments aim to inflict or induce – the pain which wrong-doers deserve to suffer – must be mediated by the criminals own under-standing of the condemnation which they express’ (Duff 1986, p. 241).

However, if the aim of punishment is to reform offenders by communi-cating the wrongfulness of their conduct, it is difficult to understand whypunishment needs to be in the form of hard treatment (such as imprison-ment and fines): the verdict of the court already expresses the requisitecondemnation (Ten 1990). The process of subjecting offenders to trial,conviction and the associated moral blame would in most cases surely sufficeto focus the attention of offenders on the wrongness of their behaviour(Narayan 1993). Even if this is inadequate there are other (less draconian)ways to grasp their attention: ‘one can shout, ring a bell or ask him to standat attention’ (Ten 1990, p. 202). These may yet prove easier to ignore thanthe pain of hard treatment, but this does not mean that hard treatment ismore effective at inducing reform.

Duff’s response is that mere formal condemnation does not go farenough: only hard treatment can induce repentance, reform, reparation andreconciliation. Repentance and self-reform, he asserts, are unlikely to beinduced by merely formal condemnation, due to our fallible nature andreluctance to face up to our moral failings. ‘Punishment . . . aims to induceand strengthen . . . repentance, and to make its expression possible [byaccepting and undergoing punishment]’ (Duff 1997, p. 24). It is induced byconfronting the criminal with the consequences of his or her actions andstrengthened by keeping his or her attention on the wrong. Undergoinghard treatment, Duff continues, also achieves moral reparation and signifiesrepentant recognition of wrongdoing and an assurance of the offender’srespect for the victim and moral values by which they are bound. Reconcili-ation with the community, Duff claims, also requires more than simplyaccepting formal condemnation. Unlike purely symbolic punishment or thestigma of a conviction hard treatment cannot be readily ignored. ‘Punish-ment can thus be portrayed as a secular form of penance: as a way of induc-ing, strengthening and expressing penance. More precisely, it must beburdensome, if it is to effectively communicate the censure which thewrongdoing deserves; the pain involved in the repentant awareness of guilt’(Duff 1997, p. 17).

There seem to be three separate points that Duff makes here. First, inorder to promote repentance and self reform (compulsory) hard treatmentis necessary because human nature is such that we would not willinglyundergo it. Secondly, undergoing hard treatment provides a means throughwhich repentance can be expressed: it is a way of signifying regret for previ-ous misdeeds. Finally, the community will only accept tangible evidence ofrepentance before allowing the offender back into the community.


However, the first point entails that there are at least two sorts of offend-ers who should not be subjected to criminal sanctions: the already repentantand those who are beyond saving. But this is rejected by Duff. He refuses toaccept that a simple apology is enough from the genuinely repentant,despite the fact that they have already undergone the necessary internalreform. And as far as the utterly defiant are concerned, he thinks that ‘weowe it to every moral agent to treat him as one who can be brought toreform and redeem himself – and keep trying’ (Duff 1986, p. 266); weshould not give up on them since we have a duty to treat them with concernand respect and accordingly to impose punishment aimed to restore themto the community. Even the English Court of Appeal has accepted that insome circumstances incorrigibility is a reason for mitigation. In Thomas([1983] 3 ALL ER 756) the offender’s period of driving disqualification wasreduced from two years to one year, because the offender seemed to be inca-pable of obeying the disqualification for two years, thus increasing the like-lihood of his committing further offences. Duff’s determination to punishat all costs, evinces an inconsistency in his theory.

The second point made by Duff lacks empirical support. It has beensuggested that the opposite in fact is true – that hard treatment is morelikely to cause anger, frustration and a regress to one’s moral health ratherthan repentance and reform. ‘Deprivations often have the effect of focusingone’s attention on one’s own suffering. Being subject to hard treatment islikely to shift the agent’s attention from the nature of her previous wrong-doing to the nature of her current hardships. Hard treatment might be aslikely to deflect the agent’s attention from her wrongdoing as focus herattention on it!’ (Narayan 1993, p. 177).

As is discussed below, in fact there is no support for either of these posi-tions – recidivism rates do not vary irrespective of the form of punishmentthat is meted out.

Punishment and penanceDuff attempts to strengthen his claim that punishment provides a means forsignifying repentance by drawing an analogy with penance. He contendsthat punishment is akin to compulsory penance because it expresses aconcern for the offender, who through punishment is given an opportunityto atone for the injury his or her crime has caused the community. Hardtreatment makes the communicative aim more effective by forcing the crim-inal’s attention to the consequences of the crime, and it should also act aspenance which the criminal wills for himself or herself (Duff 1986, pp.255–61).

But this ignores the fact that penance, unlike punishment, is assumedvoluntarily. As Walker (1991) points out penance must ‘be preceded byconfession and contrition, and must be undertaken voluntarily, or at least inobedience to the instruction of the confessor. . . . [In contrast] many offend-ers never admit their guilt, and . . . many who do are unrepentant; or . . . donot enter prison voluntarily or with uncorked obedience’ (p. 79).

In relation to the third point, Duff cannot provide a coherent explana-tion of how hard treatment achieves reparation, and why reparation is


necessary for reconciliation, and further still, why it is a pre-condition forreconciliation. Duff believes that the criminal owes the victim a material signof repentant recognition: ‘some assurance that [the criminal] nowdisavow[s] the hostility, indifference or contempt toward [the victim] which[the] wrong-doing displayed’ (Duff 1997, p. 23) and that formal condem-nation cannot provide this. But the critical issue is why a sincere apologycannot provide the necessary reparation – especially since Duff concedesthat the type of reparation he is concerned with is moral; not material innature (Duff 1997, p. 24).

Thus, Duff’s theory of punishment does not justify ascribing weight toremorse in the sentencing calculus. Duff’s theory is not persuasive, becauseit cannot justify the imposition of pain on offenders generally. This is partic-ularly so in the case of remorseful offenders.

B Utilitarian Arguments – Specific Deterrence and RehabilitationThe utilitarian is able to provide a more coherent account of why remorse-ful offenders should be treated more leniently. Put simply, repentantoffenders accept that their behaviour was wrong and hence are, presumably,less likely to reoffend. Accordingly, there is a reduced need for specificdeterrence and rehabilitation and the absence of these on the punishmentside of scales necessarily leads to a reduced penalty.

While this argument is logically valid, it is devoid of empirical support.The evidence that is available suggests that neither specific deterrence norrehabilitation can be achieved through a system of state imposed sanctions.It follows that any sentencing factors which derive their relevance from theirassociation with these ideals, must also be disregarded.

Specific deterrenceIt is difficult to obtain information regarding the effectiveness of sanctionsin deterring offenders from committing offences at the expiry of a sanction.Offenders may not re-offend for numerous reasons, apart from the fear ofbeing subject to more punishment. The crime may have been a one off inany event; a suitable opportunity may not again present itself; rehabilitationmay have occurred; or the offender may get a job. It is also possible that anoffender may simply ‘grow up’. Empirical evidence strongly supports theview that criminal behaviour is a young man’s endeavour. Studies in theUnited States have shown that the peak age for violent offences is 18 yearsand the peak age for property offences is 16 years and the rate of offendingthen typically declines after the age of 30 years (see studies cited in Bagaric2000c).

The evidence that is available supports the view that severe punishment(namely imprisonment) does not deter offenders: the recidivism rate ofoffenders does not vary significantly regardless of the form of punishmentor treatment to which they are subjected.

On the specific point concerning whether contrite offenders have beenshown to reoffend less then other offenders, the answer is no. Following aretrospective study of convicted offenders, in which the influence ofremorse on sentencing or on future criminal behaviour was examined,


there was an indication of an association between remorse and reducedsentences (as one would expect) and better adjustment to probation, butcrucially there was no evidence of an association between contrition anddecreased recidivism (Proeve et al. 1999).

The increasing success of rehabilitationThe evidence concerning rehabilitation is more promising. Following arecent wide-ranging review of the published studies in rehabilitation –which compared the recidivism rate of offenders who were subject to reha-bilitative treatment to the recidivism rate of those who were not – Howellsand Day (1999) conclude that there has been a significant degree ofsuccess with cognitive-behavioural programmes. These programmes targetfactors that are (presumably) changeable, and are directed at the ‘crim-inogenic needs’ of offenders – this is, those factors which are directlyrelated to the offending, such as anti-social attitudes, self-control, andproblem-solving skills. Promising programmes have been developed in theareas of anger management, sexual offending and drug and alcohol use.These appear to be more successful than programmes based on confronta-tion or direct deterrence, physical challenge or vocational training(Howells and Day 1999).

Despite such developments, the most that can be confidently said at thispoint regarding the capacity of criminal punishment to reform is that thereis some evidence that it will work for a small portion of offenders and thatthere is no firm evidence that it cannot work for the majority of offenders.However, ‘treatments do not . . . exist . . . that can be relied upon to decidesentences routinely – that can inform the judge, when confronted with therun-of-the-mill robbery, burglary, or drug offence, what the appropriatesanction should be, and provide even a modicum of assurance that the sanc-tion will contribute to the offender’s desistance from crime’ (Von Hirschand Maher 1998, p. 27).

Inconsistency between rehabilitation and punishmentA more fundamental problem with invoking rehabilitation as an object ofpunishment is that rehabilitation (at least of the type which appears to behaving some success) and punishment may be inconsistent. Punishment byits very nature must hurt. There seems to be an inherent contradictionbetween deliberately subjecting one to pain and at the same time trying toget him or her to see things your way. The more tolerant, understandingand educative we are in trying to facilitate attitudinal change in others, thecloser we come to providing them with a social service. For example, cogni-tive-behavioural programmes focus on the needs of offenders and attempt tomeet these needs by education and counselling aimed to reshape offenders’beliefs, attitudes and values and improve their problem-solving capacity, inorder that they no longer engage in criminal behaviour (Howells and Day1999). Such programmes seem to work best in community settings ratherthan being delivered in institutions. There is very little difference betweensuch programmes and educational courses within the community (whichare enthusiastically undertaken by many law-abiding members of thecommunity). This is all the more so, given that it is a feature of many reha-


bilitative ‘sanctions’ that they cannot be ‘imposed’ unless the offenderconsents to them. By making the interests of the offender paramount,modern rehabilitative programmes are more akin to welfare services thanpunitive sanctions. In order that the goal of rehabilitation may justifypunishment, at the minimum, it must be shown that reform is attainable ina setting that is primarily directed to imposing unpleasantness on theoffender. There is no evidence in support of this. Whether this tensionbetween rehabilitation and punishment is irreconcilable remains to be seen,but one suspects that it will be.

This being the case, the aim of rehabilitation is misguided. When specificdeterrence is also cut loose as an appropriate sentencing objective, there issimply nothing for remorse to attach to in order to derive its relevance.

C ForgivenessAnother possible justification for remorse is the moral notion of forgive-ness. We often accord some level of forgiveness to those who infrequentlytransgress. The Court of Appeal has accepted that forgiveness can in somecircumstances serve to minimise a sentence. In Darvill ((1987) Cr App Rep(S) 223, 224) the Court of Appeal stated that ‘there is no doubt thatforgiveness [by the victim] can in many cases have an effect, albeit an indi-rect effect . . . It may reduce the possibility of reoffending, it may reducethe danger of public outrage which sometimes arises where a defendant hasbeen released . . . early, and it may enhance the evidence of provocation bythe victim’.

One of us has argued elsewhere that forgiveness is a virtue which shouldnot be accorded legal recognition (Bagaric 2000b). Briefly, there are severalreasons for this. First, forgiveness is a discretionary, not a mandatory moralpractice. People can seek forgiveness, but are never entitled to it. In orderfor a moral norm to form the foundation of a legal imperative (such as, allfirst offenders should get a discount), it must first have almost universalacceptance in the moral domain. ‘Virtues’ that can be disregarded with totalimpunity are hardly the stuff that demand legal recognition. This is evidentwhen forgiveness is compared to ideals such as respecting the property andfreedom of others.

Secondly, forgiveness is most commonly extended in relation to breachesof relatively minor proscriptions, as opposed to breaches of the importantinterests that are generally protected by the criminal law, such as the rightto life, liberty and property. In the social sphere, where a friend intrudes onthese rights he or she is unlikely to be showered with personal understand-ing.

Thirdly, forgiveness is often motivated by relational ties: the closer thepersonal ties we have with the wrongdoer the more likely that we are tomake allowance for his or her human frailty. A practice which is so depen-dent in its observance on personal ties has no place in a system governed bylaw. Here the rules must apply equally to all.

Accordingly, given that forgiveness is not a virtue that should be givenlegal recognition, there is no tenable foundation for discounting thesentences of remorseful offenders on this basis.


Restorative Theories of Criminal Justice

It may yet be asserted that remorse has an important role in the context ofrestorative theories of criminal justice, which represent an increasingly popu-lar proposed alternative to the traditional methods of punishment. It has beensuggested that the emphasis of the sentencing system should not be onpunishment, but rather on goals such as compensation, reconciliation andintegration (see, for example, Zedner 1994; Pettit and Braithwaite 1990,1993). One of the main advantages of restorative theories of criminal justiceis that they allow victims of crime, who are almost totally marginalised by thetraditional criminal justice process, a far more central role at the sentencingstage. Another advantage is that such theories provide a more effective meansof integrating the offender back into the community. Some restorative theo-ries view crime as a conflict between the victim and offender and urge that weshould resolve this conflict as a step toward reintegrating the offender into thecommunity.

Restorative justice schemes have been subject to several criticisms. First,they conflict with fundamental aspects of criminal law ideology. The criminallaw punishes behaviour that is (supposedly) so repugnant that it is an affrontto society as a whole, not merely the victim. It is for this reason that the statesteps in to conduct criminal prosecutions, rather than leaving enforcement tovictims. This breaks the nexus between the accused and victim. Secondly,restorative ‘justice’ is too arbitrary. As is noted by Wasik (1999): ‘reparationturns both upon the differing practical abilities of offenders, and the differingpredilections of victims . . . [and] allowing victims to influence the form thatreparation should take can lead to inconsistency and injustice’ (p. 478).

This was a point acknowledged by the Court of Appeal in Nunn ([1996] 2Cr App R (S) 136) where it was observed that the opinions of victims (in thiscase the relatives of the deceased asked for a reduction in sentence) cannotbe a guide to this appropriate sentence, as this would impair consistency insentencing.

Despite such criticisms, restorative justice initiatives are becoming part ofthe criminal justice process. For example, the advent of victim impact state-ments, which enable victims to detail the effects that the crime has had onthem, and victim compensation schemes have stemmed from a growingappreciation of the importance of the victim in the criminal justice system.The Crime and Disorder Act 1998 (UK) further expands the role of thevictim. Pursuant to Sections 67 and 68 of the Act, offenders under the age of18 years may be required to make direct practical reparation (such as a letterof apology or a defined period of practical activity that benefits the victim) totheir victims. Part 1 of the Youth Justice and Criminal Evidence Act 1999 (UK)also introduces a mandatory new sentence of referral to a youth offendingpanel for most young offenders pleading guilty on their first youth courtappearance.

While ostensibly the notion of remorse plays a central role in the restora-tive theories of justice, it does not necessarily entail that a contrite offendershould be spared the pain that is involved in repairing the damage caused byhis or crime. For example, according to the (consequentialist) restorative


theory advanced by Pettit and Braithwaite (1990, 1993) in sentencing, courtsshould seek the recognition by the offender of the wrong committed upon thevictim, recompense (which broadly amounts to compensation) by the offenderfor the damage he or she may have done, and reassurance (the infliction ofpunishment on the offender) to the community of the type which is capableof undoing the negative impact of the crime (Pettit and Braithwaite 1993, p.232).

Although, we do not subscribe to a restorative theory of justice (see Bagaric2001) the role of remorse within such a theory accords roughly with thatsuggested in this article. Remorse is relevant only to the first of the ‘three Rs’:recognition. Pettit and Braithwaite (1993, p. 8) state that recognition might‘involve an apology on the part of the offender . . . , a commitment not tooffend again, and some sort of reconciliation with the victim’. In other words,people who violate the important interests of others are expected as a minimallydecent gesture to show contrition. Against the background of such a restora-tive theory of criminal justice, the presence of remorse is a necessary, but notsufficient pre-condition for the integration of the offender back into society.The pain of recompense and reassurance must yet be incurred.

Conclusion

There are several possible rationales for giving weight to remorse in thesentencing calculus. However, an examination of these has shown that ulti-mately none of them is tenable. Duff’s theory of punishment does not lay afoundation for remorse, because his theory is itself flawed – being unable tojustify the infliction of state imposed punishment, especially on contriteoffenders. The traditional utilitarian sentencing objectives of rehabilitationand specific deterrence are also unable to justify remorse as being a mitigatorysentencing consideration. There is simply no empirical evidence to supportthe efficacy of sentencing to rehabilitate offenders in the context of sanctionswhich are at least primarily punitive. And there is no evidence to suggest thatcontrite offenders are less likely to reoffend. Finally, forgiveness should not beaccorded legal recognition, hence the relevance of remorse in sentencingcannot be derived from this virtue. Even in the context of restorative theoriesof criminal justice, the role of remorse is extremely limited.

Given that there is no doctrinal basis for treating remorseful offendersmore leniently than other offenders, remorse should henceforth be aban-doned as a sentencing consideration.

This may appear to be somewhat heavy handed, resulting in more severesanctions. However, this is unlikely to be the case if the methodologyemployed in this article (only recognising sentencing factors which can bejustified by reference to the purpose of punishment) is employed across theboard to all so called ‘relevant’ sentencing variables. To this end, the discountthat many offenders will lose as a result of disregarding remorse, is more thanlikely to be offset by gain in denouncing the relevance of aggravating factors,such as prior convictions (Bagaric 2000b).

It needs to be clarified that the foregoing critique of remorse and forgive-ness as being irrelevant to the sentencing calculus does not impugn the


undoubted morality and ethical validity of those notions. As one of us hasargued elsewhere, it is simply inappropriate to give legal recognition to thevirtue of forgiveness in the context of the sentencing inquiry (Bagaric2000b). The needs of an imperfect legal system of criminal justice are some-times dissonant with the highest ethical considerations.

References

Bagaric, M. (2000a) ‘Consistency and fairness in sentencing: the splendour of fixedpenalties’, California Criminal Law Review, 1, 1–32.

Bagaric, M. (2000b) ‘Double punishment and punishing character: the unfairness ofprior convictions’, Criminal Justice Ethics, 19, 10–28.

Bagaric, M. (2000c) ‘Incapacitation, deterrence and rehabilitation: flawed ideals orappropriate sentencing goals’, Criminal Law Journal, 24, 21–45.

Bagaric, M. (2000d) ‘Proportionality in sentencing: its justification, meaning androle’, Current Issues in Criminal Justice, 12, 142–65.

Bagaric, M. (2001) Punishment and Sentencing: A Rational Approach, London:Cavendish.

Bagaric, M. and Amarasekara, K. (2000) ‘The efforts of retributivism’, MelbourneUniversity Law Review, 24, 124–89.

Duff, R.A. (1986) Trials and Punishments, Cambridge: Cambridge University Press.Duff, R.A. (1997) ‘Punishment, citizenship and responsibility’, in: H. Tam (Ed.),

Punishment, Excuses and Moral Development, Aldershot: Avebury:Howells, K. and Day, A. (1999) ‘The rehabilitation of offenders: international

perspectives applied to Australian correctional systems’, Australian Institute of Crim-inology: Trends and Issues in Crime and Criminal Justice, 112, 1–6.

Narayan, U. (1993) ‘Appropriate responses and preventive benefits: justifyingcensure and hard treatment in legal punishment’, OJLS, 13, 166–82.

New South Wales Law Reform Commission (1996) Sentencing (Discussion Paper 33),New South Wales: Law Reform Commission.

Pettit, P. and Braithwaite, J. (1990) Not Just Deserts: A Republican Theory of CriminalJustice, Oxford: Clarendon Press.

Pettit, P. and Braithwaite, J. (1993) ‘Not just deserts, even in sentencing’, CurrentIssues in Criminal Justice, 4, 225–39.

Proeve, M., Smith, D. and Niblo, D. (1999) ‘Mitigation without definition: remorsein the criminal justice system’, Australian and New Zealand Journal of Criminology,31, 16–28.

Ten, C.L. (1990) ‘Positive retributivism’, Social Philosophy and Policy, 7, 194–208.Tonry, M. (1996) Sentencing Matters, New York: Oxford University Press.von Hirsch, A. (1993) Censure and Sanctions, Oxford: Clarendon Press.von Hirsch, A. and Jareborg, N. (1991) ‘Gauging criminal harm: a living standard

analysis’, Oxford Journal of Legal Studies, 11, 1–38.von Hirsch, A. and Maher, L. (1998) ‘Should penal rehabilitation be revived’, in: A.

von Hirsch and A. Ashworth (Eds.), Principled Sentencing, Oxford: Hart.Walker, N. (1991) Why Punish?, Oxford: Oxford University Press.Wasik, M. (1999) ‘Reparation: sentencing and the victim’, Criminal Law Review,

470–80.Zedner, L. (1994) ‘Reparation and retribution: are they reconcilable?’, Modern Law

Review, 57, 228–50.

Date submitted: September 2000Date accepted: December 2000


Documents

Feeling Sorry? – Tell Someone Who Cares: The Irrelevance of Remorse in Sentencing