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?

The relevance of remorse is most difficult to reconcile with retributive penal theories. Such theories are said to be ‘backwards-looking’; they look at the gravity of the offence committed to establish the proportionate quantum of punishment deserved by the offender. Occurring after the event, the offender’s remorse does not seem to have any bearing on this assessment. The offence cannot be undone by the offender’s remorse. ‘Forwards-looking’ consequentialist justifications of punishment might, in contrast, more easily account for the relevance of remorse. Although an empirical question, if the remorseful offender is less likely to reoffend than the non-remorseful offender, then remorse might indicate a reduced need for specific deterrence, or perhaps amenability to rehabilitation and reform.

My book, which has just been published by Hart Publishing (Oxford), examines possible retributive justifications for the mitigating role of remorse at sentencing. Drawing on arguments implicit in judicial remarks and sentencing guidelines, I consider five possible justifications: Is the remorseful offender so changed that it doesn’t make sense to punish her for what her ‘old’ self did? Does the offender’s remorse somehow reduce the harm of the offence, through lessening the psychological harm borne by the victim? Is the offender to some extent already punished by her gnawing remorse and the spectre of the harm that she caused? Does the offender’s appreciation of the wrongfulness of what she did give the state reason to censure her differently in response to the moral understanding that remorse entails? Does an offender’s remorse provide legitimate grounds for the judge to show mercy to her?

Engaging with the work of some of the leading proponents of modern retributive penal theories, I argue that the most convincing argument is one that appeals to the idea of responsive censure. Communicative legitimacy is maximized when it attends to the recipient of the message, attuning the content of this message to the recipient’s prior understanding. If punishment is supposed to communicate a message of censure to the offender, in the hope that she will come to appreciate the wrongfulness of her criminal conduct, it must be responsive to the prior understanding that remorse entails. Indeed, I argue that those who defend communicative theories of punishment are committed to accepting this conclusion. However, the success of this justification is contingent on a communicative penal theory being the correct justification of punishment. If it is not, then the justification for remorse-based mitigation will be difficult to find, as I show.

Which justification (if any) is the right one matters not only because a justification is needed to undergird current practice, but also because different justifications have different implications for practice. In the second section of the book, I examine what answer the responsive censure argument must give to questions such as whether some offences are so serious that remorse ceases to be relevant, whether some offences might not be serious enough, and how the remorseful offender with previous convictions should be sentenced. I also provide an overview of the way in which remorse features in official sentencing guidelines in various jurisdictions.

People’s intuitions abut the relevance of remorse are often very strong; some see any mitigation on its basis as ‘soft’ or ‘irrational’, whilst others have the intuition that there has to be some difference in the quantum of punishment two offenders deserve if one is genuinely remorseful but the other is not, when their offences are identical in all other respects. The Crown Court Sentencing Survey (2012) revealed that remorse was the most frequently applied mitigating factor for six out of eight offences (for the other two it was the second most frequently applied mitigating factor). Remorse is highly salient in public discussions of crime and punishment and is clearly influential in judicial decision-making. The lack of explicit justification for this salience and influence in the criminal justice context is striking. Whilst I am sure that my book will be far from the last word on the topic – indeed, my own views continue to develop – I hope that it puts something on the table to stimulate further discussion about the role of remorse at sentencing and its place in a good and moral life.