Remorse Bias.

Author:Hanan, M. Eve

    "Because Mr. Turner came before us today and said he was genuinely sorry for all the pain that he has caused to [Jane] and her family And I think that is a genuine feeling of remorse. " (1)

    When a California judge sentenced Brock Turner, the Stanford student convicted of sexually assaulting an unconscious woman, to serve six months in prison followed by a probationary term, his decision was met with public outcry over the perceived leniency of the sentence. Within weeks, an online petition to remove the judge from the bench garnered over one million names. (2) Debate has continued for more than a year regarding whether the sentence was based on a fair assessment of the relevant sentencing factors (3) or whether, instead, it was infected by either sanguinity toward sexual assault or bias in favor of a privileged, white defendant.(4)

    Lost in the noise of debate about the judge's decision is the role of remorse. (5) Over ten percent of the judge's in-court explanation of the sentence was devoted to crediting Turner's expression of remorse, (6) captured in a statement that Turner read during his sentencing hearing. (7) It mattered to the judge that Turner expressed remorse. In the eyes of the court, Turner was a young man who was not defined by his crime but by his regret and shame about the crime.

    This is not an article about the Brock Turner case. It is an article that addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants' displays of remorse and how we can lessen the effects of that bias.

    This article focuses exclusively on the relationship between racial bias against African Americans (8)--primarily men--and remorse assessment. Much more can and should be said about how implicit biases relating to gender, class, and other social groupings might affect judges when they assess defendant remorse. (9) Gender, for example, probably plays a significant role in how remorse is expressed by defendants and interpreted by judges. (10) While taking a multidimensional approach to the intersections of race, gender, class, and other variables yields important insights, (11) this article focuses on bias against African American men for two reasons. First, sentencing disparity is clearest between black male and white male defendants. (12) Second, the implicit--and sometimes explicit--association of African Americans with criminality may directly cause judges to discredit remorse displays.

    A remorse display, broadly defined, can include any verbal or nonverbal expression of regret for committing a crime. (13) Although this definition captures a wide range of behaviors, all remorse displays must convey "a distressing emotion that arises from acceptance of personal responsibility for an act of harm against another person." (14) Remorse thus stands in contrast to apologies, which are verbal constructs that can be offered without an emotional display of regret or contrition. (15) While remorse can be communicated in the context of an apology, a remorse display can be completely nonverbal, conveyed through facial expressions, gestures, and postures. (16)

    While legal scholars have long debated whether remorse affects punishment decisions, (17) whether remorse should affect punishment decisions, (18) and whether judges can accurately assess remorse, (19) little attention has been given to how implicit biases may cause judicial remorse assessments to deviate in systematically racist ways. (20) This article lays out a side-by-side analysis of remorse scholarship and implicit bias research to demonstrate what can be called "remorse bias." Because the decision whether to believe a defendant's expression of remorse is profoundly subjective, it is a fertile area in which implicit bias can flourish and lead to sentencing disparity.

    The article concludes that two currently favored remedies for reducing sentencing disparity--cabining discretion through sentencing guidelines and sanitizing racial content--will not reduce remorse bias. As discussed below, cabining sentencing discretion has not cured racially disparate sentencing. Nor has approaching sentencing with the intent to be race-neutral, or color-blind, cured racially disparate sentencing. A more promising remedy for remorse bias may lie in "making race salient" by explicitly raising the issue of racism to trigger conscious awareness of unconscious bias so that it can be observed and controlled. (21) This would require more than implicit bias training for judges. It would require judges to sentence defendants within an environment that repeatedly prompts them to consider the effects of implicit racism during every punishment decision, coupled with a system of oversight and feedback.

    Despite data showing patterns of racial disparity in sentencing, (22) it is difficult to isolate judicial bias as a contributing factor in individual cases. (23) In its 2012 to 2016 analysis of federal sentencing practices, the U.S. Sentencing Commission found that black male offenders continued to receive longer sentences than similarly situated white male offenders. (24) The Commission attributed the difference to variations and departures from the Federal Sentencing Guidelines. (25) In other words, the Commission found racial disparity in sentence length that seemed to derive specifically from the exercise of judicial discretion.

    Moreover, studies show that Afrocentric features are correlated with harsher sentences, suggesting that Afrocentric features trigger implicit bias even if the fact of a racial designation, standing alone, does not result in a harsher sentence. (26) A judge, then, may be careful not to sentence black defendants more harshly than white defendants while, at the same time, unconsciously allowing variables like "darker skin tone, wider noses, coarser hair, darker eyes, and fuller lips [to] influence the length of a criminal sentence." (27) In their comprehensive review of studies examining the relationship between sentencing practices, skin tone, and Afrocentric features, the Honorable Mark W. Bennett and Professor Victoria Plaut note that most of the studies demonstrate that darker skin tone and Afrocentric features correlate with higher rates of incarceration and longer sentences. (28)

    When we look to individual cases that seem to be exemplars of sentencing disparity, however, they perplex because we cannot know with certainty whether implicit racial bias played a role in their outcome. In the Turner case, for example, the judge considered permissible factors under the relevant court rule, yet the result gave rise to concerns that the court exercised leniency because Turner was a white male. (29) Even when judges consider only permissible factors, unconscious biases may alter how they resolve an ambiguity in assigning value to a factor like remorse. We are thus left with a conundrum described by Professor Michelle Alexander in The New Jim Crow. Overwhelmed with data on patterns of discrimination, we cannot show exactly how "a formally color-blind criminal justice system achieve[s] such racially discriminatory results" in individual cases. (30)

    All is not lost, however. While criminal courts have largely eschewed responsibility for racial disparity in sentencing through their unwillingness to apply statistical evidence of sentencing trends to individual cases, (31) social scientists continue to examine the phenomenon and develop ways to test how unconscious biases skew decisions. In the laboratory setting, social scientists employ implicit association tests ("IATs") to measure participants' levels of implicit bias and then test the effect of implicit bias in mock criminal justice scenarios. (32) By isolating the variable of race, researchers can measure the impact of racial bias on punishment decisions. Other social scientists have conducted field studies, such as Nicole Gonzalez Van Cleve's analysis of more than one thousand hours of courtroom behavior data to determine how, through the process of "colorblind racism," courtroom actors turn "central sites of due process into central sites of racialized punishment." (33) Qualitative and quantitative social science research that sheds light on judicial bias is thus available to shape future sentencing practices and policy.

    In order to understand how judges, who intend to make fair, race-neutral sentencing decisions, may unconsciously contribute to racially disparate sentencing, we must identify the specific points of judicial decision-making most vulnerable to implicit racial bias. Remorse bias is a useful touchstone for examining unconscious bias in sentencing for three reasons. As discussed infra, Part II, remorse plays a significant role in punishment decisions in which the judge has a broad statutory range of sentencing options or in the informal context of parole release decisions in which parole authorities assess the defendant's potential for rehabilitation. (34)

    Second, assessing remorse is a subjective process that provides fertile ground for cognitive bias. In assessing remorse, the judge must accurately read the defendant's countenance, demeanor, tone of voice, and style of speech and do so free from cultural assumptions. Even under circumstances unlikely to trigger implicit biases (where age, race, gender, and class differences between the judge and the defendant are minimal) the judge will unconsciously filter remorse displays through a lens of assumptions about how someone should act after committing a crime. (35)

    Third, because remorse functions as a "proxy for overall character," (36) it is easy for the remorse assessment to degrade into a mutually reinforcing circle of cognitive errors based on the well-established unconscious bias associating African Americans with criminality. (37) Rather than crediting a remorse display, as the court did in Turner's case, the implicit bias association of black-criminality works to discount African...

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