When people do bad things – especially when they cause a lot of harm to others – we usually hope that they will experience something like remorse: that they will feel horror at the thought of what they did to the person harmed, that they will resolve to avoid causing similar harm in the future, and that they will be motivated to apologise and offer reparation, where possible. Penal systems in some jurisdictions deem remorse so important that it is considered a valid reason to mitigate the amount of punishment the offender receives. But, what happens to our expectations for emotion if the person cannot remember committing the offence; if he feels so detached from it that it is as if he did not commit it? An interesting case from Poland raises this question.
Maciej Zientarski was a celebrity driver on a TV programme similar to our Top Gear. On the 27th February 2008, accompanied by his motor journalist friend, he was given a Ferrari to test drive. The test drive didn’t end well. CCTV cameras captured footage of the car being driven at speeds of between 140-150kph along a 50kph road, serial over-taking, and the eventual head-on smash into the pillar of a bridge above. The motor journalist died at the scene but the driver, remarkably, just about survived.
Following a month in a coma and a year and a half of rehabilitative treatment, Maciej Zientarski remembers none of this. In fact, he remembers nothing from the two years preceding the date of the crash. Following the crash, it was two years until Zientarski was declared fit to stand trial, having failed two psychiatric assessments in the intervening years due to his inability to follow multiple days of questioning. When the trial eventually went ahead, Zientarski was found guilty of an offence that corresponds closely to causing death by dangerous driving. He was sentenced this month to three years in prison.
Of particular interest in this case is the focus – of both the prosecution and of Zientarski himself – on the absence of remorse. The lack of emotional response exhibited by Zientarski to his wrongdoing raises interesting questions, particularly given his extensive memory loss. The prosecution argued that Zientarski’s lack of remorse was a significant aggravating factor in the case and so should be taken into account when determining the appropriate sentence. The prosecutor said what roughly translates as, ‘I can see no signs of remorse…it doesn’t look like what you did sits deep in you’.
Zientarski would agree, but this is not because he is defiant. Instead, his inability to remember the incident – and to even identify with the person who was driving the car – impedes the emotional moral response that we would usually expect. In a television interview Zientarski said that he really wants to feel remorseful but he just can’t. For him, it is like someone describes to him the plot of a film and then tells him ‘by the way, the bad guy was you’. Further, he struggles to reconcile the idea that he was the driver with what he remembers about himself from before the accident – the extreme risk-taking is incompatible with what is preserved of his self-image. But he knows that it was him, he says that he ‘just has to accept the word of others and the evidence presented’. Zientarski is troubled by his lack of remorse – his inability to feel the horror that accompanies the profound awareness that it was I that irreversibly harmed another. Zientarski reveals that he now has three pictures on his bedroom wall: one of the car before the accident, one of the car after the accident, and one of his journalist friend’s grave. He is trying to awaken his emotions.
Regardless of whether we think remorse should be relevant to an assessment of penal desert in this or any case, remorse is usually of great moral relevance. A person who responds remorsefully to significant wrongdoing is seen as morally better than the person who remains cold or even defiant. It demonstrates understanding of the nature of the wrong that was done and deep concern for the person harmed. We might even think that the person who already understands what he has done – the harm that he caused – deserves less censure.
So, should we, like the prosecutor, be concerned by Zientarski’s lack of remorse? Should we expect him to keep staring at those three pictures until he feels something? His lack of memory of the decisions he took on that drive and his difficulty in believing that he is a person who could take such risks mean that he lacks the connection to the event – and to the person involved in the event – that might be necessary for deep and profound remorse. There are undoubtedly questions raised about personal identity here – both in terms of connectedness and continuity.
A final point to consider is that people in general have different capacities for feeling emotions, including the emotion of remorse. Perhaps we shouldn’t expect an equal depth of response from everyone. It is possible that Zientarski’s accident and subsequent coma affected his capacity for emotion. Where a person is unable to feel the remorse that we might expect, perhaps a second-order moral response to the lack of emotional response is the most we can hope for. Zientarski is clearly upset by his lack of remorse, even remorseful about it in some ways: he apologises for it and stares at the three pictures almost penitentially. Where extreme memory loss and/or limited capacity for emotion preclude profound remorse, perhaps this ‘intellectual’ reflective response suffices.
This is a fascinating question. And I’m inclined to agree with your answer: ‘second-order remorse’ may be the best possibility here. And I wonder why it isn’t taken as fulfilling the role we would ordinarily expect of first-order remorse. Remorse is an agential attitude – it doesn’t make sense when directed toward events for which one cannot be considered the responsible agent. (I cannot feel remorse for the assassination of Abraham Lincoln, even if I can feel other forms of sadness about it.) This is, at best, a case where the identity of the responsible agent is problematic, at least to the agent himself.
Perhaps this case draws out something interesting about agential attitudes like remorse. From the outside, the conditions for possessing remorse seem fairly straightforward. So, ‘John Wilkes Booth felt remorse about assassinating Abraham Lincoln’ means only that JWB played some role in the assassination and then possessed some affective attitude toward this role. On this (outside) interpretation, it seems to make sense for Zientarski to be remorseful: it was Zientarski who did it, and he is (apparently) capable of having some affective attitudes. So when he fails to exhibit this specific attitude, we blame him.
But from the inside, the conditions for possessing remorse may be more demanding. For it to make sense for me to express remorse for some event, it needs to be not only the case that I played some agential role in the event and now feel a certain affective attitude toward it. It needs to be the case that I have a certain phenomenological or experiential sense of ownership toward my role in the event. It’s one thing to be informed that I happen to be the person who did such-and-such; it’s another to be able to remember (or at least imagine) from the inside doing such-and-such. Plausibly, it only makes sense to self-ascribe a sense of remorse when one has that sort of experiential access to the event.
This case is complicated by Zientarski’s brain injury. But we can imagine a more mundane case of forgetting. Imagine you are told the following: Remember when you visited Faraway City? (Yes, you remember this – you’ve only been there once.) While in Faraway City, you went to Fancy Restaurant. (You don’t remember going to Fancy Restaurant, but there’s no reason not to believe that you did – you certainly don’t remember every detail of the trip.) While at Fancy Restaurant, you nervously started fiddling with the salt shaker – you were unscrewing and screwing the cap. (You have no memory of this, nor would you expect to after three years. Still, there’s no reason to doubt that it happened.) You got distracted from fiddling with the salt shaker and unthinkingly left it on the table – as it happened, with the cap unscrewed. (Of course, you don’t remember this.) Later that night, another restaurant patron used that same salt shaker — and wound up with a plate full of salt. Most of it was hastily brushed off the entree of course, but unfortunately not enough. For that restaurant patron suffered from undiagnosed hypertension and various heart maladies, and subsequently died of cardiac arrest! Only now, three years later, have the police from Faraway City pieced all this together, tracked you down, and informed you of your role in killing that restaurant patron.
Supposing you were just now presented with the above scenario, how would you feel? How ought you feel? Sadness makes sense. Perhaps even regret, in the sense that you can (sincerely) say, ‘I regret having apparently done this thing you tell me I did’. But I don’t know how much sense it would make to say you can experience remorse. Per the case, you have no memory of this salt-shaker, anything you did to it, or even of being in that restaurant at all. Experientially, to you there is no difference between being told that you did this and being told that someone at the next table did this. In those circumstances, I’m not sure that remorse is a coherent attitude.
I’ve just tried to present this as a logical condition of self-ascription of remorse. Maybe I’m wrong about that. A more modest theory is psycho-causal: it might simply be that certain affective states are only triggered by first-personal memories. That is, it might be that the logic of remorse is the same from the outside and from the inside: it’s just a matter of who did what and what affective attitude it taken — but as a matter of psychology, it turns out that people tend not to enter into the right affective attitude unless they also have experiential ownership of the action in question (even if this isn’t itself a logical condition for remorse).
Whatever the story – logical condition or psychological prerequisite – it seems as if we ought not expect or demand remorse from people in circumstances where experiential ownership of the action is impossible. From the outside, the person’s relationship to their past action appears the same regardless. But from the inside, it looks dramatically different. And since remorse is intrinsically agential and self-regarding, the inside is what should count. What you’ve described as Zientarski’s ‘second order’ remorse is probably the most it is reasonable to expect in these circumstances.
Thanks for such a thought-provoking post!
The key fact of the present case (and to my mind the determinative fact) is that the individual has no memory of the two years preceding the event in which he recklessly caused a fatal auto accident.
The culpable mind has been slate-wiped, as it were. The present mind of the individual feels no remorse because for all intents and purposes, he (the present mind) did not commit the act. (How often do you feel remorse about crimes committed by someone else? “Oh I’m so remorseful that John Doe robbed that store!” Right.)
In effect, what we have here is equivalent to a new mind, an innocent mind , occupying the same body as was once occupied by the culpable mind that chose to commit the crime. The culpable mind arguably no longer exists.
Thus the question is, can we reasonably punish a body that was once occupied by a culpable mind and is now occupied by an innocent mind?
The answer to that question, where the medical facts are clearly and consistently established and malingering or deception are ruled out, is clearly No. We may as well be seeking to punish a criminal’s identical twin because their DNA matches the DNA found at a crime scene.
The court has fatally erred by insisting upon an emotionalistic display of the type that, when broadcast in the media, qualifies as “cry porn.” Emotionalism will not resurrect the victim or guarantee that the offender will become a law-abiding citizen. The insistence on emotionalism is as inapplicable to this case, and as much of an injustice, as an insistence upon athleticism on the part of someone who uses a wheel chair.
The only legitimate reason to sentence this defendant to prison is to seek to deter others in the future. However the circumstances of this case are so idiosyncratic that we can’t reasonably apply them to other cases that may arise in the future.
What the court should have done was issue a suspended prison sentence and a sentence of ten years’ probation with appropriate supervision to ensure that the defendant does not engage in hazardous driving. That probation by itself will ascertain whether the individual has truly reformed his behavior and is no longer a hazard to others. If he obeys the law going forward, he does not go to prison. If he repeats his past bad behavior, the suspended sentence goes into effect and he goes to prison.
Italics in previous posting are a formatting err0r. I had only intended to italicize the phrase “an innocent mind.”
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