NCJ Number
192359
Journal
Howard Journal of Criminal Justice Volume: 40 Issue: 4 Dated: November 2001 Pages: 364-376
Date Published
November 2001
Length
13 pages
Annotation
This article attempts to debunk the widely held view that remorseful offenders should be dealt with less harshly than other offenders.
Abstract
Remorse is the feeling of regret or sorrow for what one has done. In many jurisdictions, it is an important sentencing consideration. The presence of remorse can operate to reduce significantly the severity of the punishment meted out to an accused. There is no justifiable basis for a sentencing discount to offenders who express regret for what they have done. An examination of several possible rationales for giving weight to remorse shows that none of them is tenable. Duff’s theory of punishment does not lay a foundation for remorse because his theory is itself flawed and unable to justify the infliction of state imposed punishment, especially on contrite offenders. The traditional utilitarian sentencing objectives of rehabilitation and specific deterrence are also unable to justify remorse as being a mitigatory sentencing consideration. There is no evidence to support the efficacy of sentencing to rehabilitate offenders in the context of sanctions that are at least primarily punitive. There is no evidence to suggest that contrite offenders are less likely to re-offend. Forgiveness should not be accorded legal recognition; the relevance of remorse in sentencing cannot be derived from this virtue. The role of remorse is extremely limited, even in the context of restorative theories of criminal justice. The conclusion is that remorse should be abandoned as a sentencing consideration because there is no doctrinal basis for treating remorseful offenders more leniently than other offenders. This may result in more severe sanctions but it is suggested that recognizing sentencing factors that can be justified by reference to the purpose of punishment across the board is one remedy. The discount that many offenders will lose as a result of disregarding remorse, is more than likely to be offset by gain in denouncing the relevance of aggravating factors, such as prior convictions. 22 references