Integrating remorse and apology into criminal procedure.

• Author: Bibas, Stephanos

CONTENTS INTRODUCTION I. REMORSE, APOLOGY, AND CURRENT CRIMINAL JUSTICE A. The Individual Badness Model B. Remorse and Apology in Criminal Procedure C. Remorse and Apology in the Literature II. THE BROADER VALUE OF REMORSE AND APOLOGY A. The Status Quo Revisited B. The Broader Value of Remorse and Apology 1. Crime as a Relational Concept 2. Remorse and Apology as Relational Concepts 3. Lessons from Noncriminal Contexts: Civil Mediation C. The Practical Import of the Relational Perspective III. IMPLEMENTING REMORSE AND APOLOGY A. At the Beginning of the Criminal Process B. Victim-Offender Mediation and Similar Mechanisms C. Cooperating Witnesses D. Extending Victims' Rights E. Fixing Plea Procedures F. Sentencing G. Costs and Difficulties of Implementing Remorse and Apology CONCLUSION INTRODUCTION

Remorse and apology are powerful forces in everyday life. Parents make their children apologize for everyday wrongs. "I'm sorry" is a common expression, and confession and forgiveness loom large in both religious rituals and secular reconciliation. When a politician does something wrong, "a simple, direct apology is often the one thing voters most want to hear." (1) Thus, political leaders either apologize for everything from sexual indiscretions to historic injustices or else are criticized for not apologizing enough. (2) People value remorse and apology because they heal psychic wounds, teach lessons, and reconcile damaged relationships.

Remorse and apology should also loom large in the criminal arena, where victims' wounds are the greatest and need the most healing. Victims and victimized communities have long viewed remorse and apology as essential elements of justice for crimes. For example, one victim who was sexually abused by a priest demanded expressions of remorse to help him find closure and heal. (3) Like so many others, however, he had to file a civil lawsuit to seek justice and apology, as he had received none from the criminal justice system. In another case, a driver ran over a man in a hit-and-run accident and left him in a coma. The driver's lawyer discouraged her from apologizing for fear of prejudicing her criminal case. Eight months after the accident, the driver said she was sorry for what had happened but did not acknowledge her role. The brief, belated non-apology left the victim's family dissatisfied and frustrated. (4)

When criminal justice does produce remorse, the effects can be profound. When victims' relatives confronted serial killer Gary Leon Ridgway at sentencing, they sobbed and poured out their anger and loss. The judge expressed the community's moral condemnation and spoke of bringing peace and closure. In return, Ridgway expressed sorrow and apologized, and at least one victim's relative forgave him and expressed a feeling of peace. (5) Ridgway's remorse and apology were no substitute for punishment, but they helped to begin the healing process.

Surprisingly, however, remorse and apology play little role in criminal procedure. Our criminal justice system works as a speedy assembly line: It plea bargains cases efficiently and maximizes punishment for the limited resources available. This assembly line leaves little room for remorse and apology. At most, they creep in interstitially, as indicators that individual defendants are less bad and so need less deterrence, incapacitation, or retribution. We will call this defendant-centered approach to remorse and apology the "individual badness model." As we show in Part I, this approach dominates existing judicial decisions, such as cases applying section 3E1.1 of the Federal Sentencing Guidelines, (6) as well as the academic literature. (7)

We dispute this conventional approach. Remorse and apology could do much more than serve as gauges of an individual defendant's need for punishment. Remorse and apology are fundamentally about social interactions and relationships. Serious wrongdoers sometimes apologize not only to the direct victim, but also to everyone who suffered indirect harm, such as members of the victim's family and community. Victims, in return, can air their sorrows while expressing forgiveness to the wrongdoer. Ideally, this interactive process teaches moral lessons, brings catharsis, and reconciles and heals offenders, victims, and society. We will call this multi-actor perspective the "relational approach" to distinguish it from the defendant-focused individual badness model. (8)

The individualism of the badness model parallels the criminal law's individualistic approach to punishment. Traditionally, criminal law has focused on deterring, incapacitating, rehabilitating, and inflicting retribution on individual defendants. This focus has come at the expense of the broader social dimension of punishment. Recently, academics have begun theorizing about incorporating moral education, healing, reconciliation, and victim vindication more directly into criminal law. (9) Unfortunately, criminal procedure is artificially divorced from these substantive values of the criminal law, focusing instead on accuracy, efficiency, and procedural fairness. (10) Thus, criminal procedure leaves little room for apology and remorse. What room exists is artificial, such as the more or less automatic sentencing discount for guilty pleas in federal court regardless of how contrite a defendant is. (11)

In short, criminal procedure neglects the power of remorse and apology. To remedy this neglect, we must focus not just on the individual defendant's supposed badness, but also on the social practices and norms of remorse and apology. Remorse and apology are useful as more than mere metrics for punishment. Apology, we argue, is a powerful ritual for offenders, victims, and communities, one that criminal procedure could facilitate by encouraging offenders to interact face to face with their victims. The focus would broaden beyond the individual offender's badness to constructive measures to heal offenders, victims, and communities. Remorse and apology would teach offenders lessons, vindicate victims, and encourage communities to welcome wrongdoers back into the fold. Of course, not all offenders or victims would be able and willing to take part. But the available empirical and anecdotal evidence shows that many would and that those who did might reap dramatic benefits. Thus, criminal procedure would serve the criminal law's substantive values instead of undercutting them.

Before continuing, we should explain briefly what we mean by expressions of remorse and apology. We use these terms broadly and generally, as the law does, to include offenders' expressions of contrition, sorrow, shame, repentance, and the like. While these other expressions are helpful, the core of an apology is "an expression of sorrow and regret." (12) The offender should both feel sorry and express this sorrow, (13) although, as Section III.F explains, even half-hearted or insincere apologies are better than nothing. At a minimum, apology is at least a dyadic relation and interaction, requiring an expression of sorrow by the offender to the victim or victims. (14) Subsection II.B.2 delves further into the psychological mechanisms that make remorse and apology powerful tools for healing relationships. Our aim is to show how the criminal justice system's ambivalent stance toward this cluster of practices obscures and undermines the key values that they serve.

In Part I, we explore the role that remorse and apology currently play in criminal law. As Section I.A explains, criminal law views remorse and apology through the lens of the individual badness model, primarily as proxies for how bad an individual defendant is and how much punishment he or she needs. Section I.B shows that criminal procedure emphasizes the procedural values of fairness, efficiency, and accuracy at the expense of the substantive values espoused by the criminal law. Section I.C notes that, while academics have recently shown interest in remorse and apology, most try to fit these values into the individual badness model. In addition, few discuss how to implement these values through real-world institutions, policies, and procedures.

Part II explains why we should value remorse and apology more broadly. Section II.A discusses why remorse and apology are poor proxies--both practically and theoretically--for individual badness and the need for deterrence and retribution. While deterrence and retribution are legitimate guideposts for sentencing, they do not exhaust the roles of remorse and apology. Section II.B notes that remorse and apology are valuable for broader reasons than the individual badness model recognizes. Crime is more than individual wrongdoing; it is relational. Crime creates moral imbalances and sends false moral messages. Remorse and apology can help right the moral balance, annul false moral messages by vindicating victims, and reconcile offenders to their victims and communities. Section II.C ties these insights together. Remorse and apology are not substitutes for punishment in most cases, as the restorative justice movement mistakenly contends. Nor are they simply cheap, cruel ways of inflicting humiliation, as advocates of shaming punishments imply. Rather, they should be integral to criminal justice, supplementing but not supplanting deterrence and retribution. Remorse and apology neither displace nor justify punishment, but, as functions of punishment, they can better complement and serve its goals.

Part III suggests how the law could translate these ideals into real-world procedures. Before and after arrest, and before and after charging decisions, offenders should have sufficient opportunities to resolve lower-level crimes informally by apologizing and making amends. From arrest through imprisonment, offenders and victims should have plenty of chances for court-supervised mediation. Prosecutors could make more use of remorse and apology to encourage offenders to cooperate...