Penal theory

Should remorseful offenders be punished less harshly?

New Book: ‘Remorse, Penal Theory and Sentencing’ (Oxford: Hart Publishing)

If an offender is genuinely remorseful about the crime she committed, should she receive some small-but-non-trivial mitigation of her sentence? – i.e. should she be punished a little bit less than she would have been had she not been remorseful? In many jurisdictions, including England and Wales, this practice is written into the sentencing guidelines that judges have to follow. However, it is difficult to see how this practice can be justified, and intuitions about the relevance of remorse to criminal sentencing seem to vary wildly.

One first obvious concern is that it can be difficult to know whether an offender’s remorse is genuine: is she just pretending in the hope that her sentence will consequently be somewhat lighter than it would otherwise have been? Whilst the possibility of simulation indeed presents a practical challenge, the prior question is whether an offender’s genuine remorse should matter at all. Should judges try to determine whether an offender is remorseful and, if so, with what consequences? Continue reading

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