Remorse in Parole Hearings: An Elusive Concept with Concrete Consequences.

• Author: Bronnimann, Nicole

TABLE OF CONTENTS ABSTRACT 321 I. INTRODUCTION: WHAT IS REMORSE? 323 II. WHY IS REMORSE RELEVANT TO PAROLE DECISIONS? 327 A. Remorse May Decrease Recidivism 328 B. Remorse Makes Retribution Less Necessary 331 C. Remorse Serves the Aims of Restorative Justice 331 D. Remorse is a Ritual with Important Communicative Value to Society 332 III. ASSESSMENT IN THE PAROLE PROCESS: WHO EVALUATES REMORSE, WHEN, AND UNDER WHAT AUTHORITY? 333 A. Parole Statutes and Regulations 334 B. Inmate Testimony and Demeanor at Hearing 337 C. Psychological Evaluations, Risk Assessments, and Institutional Programming 338 IV. HOW MUCH DOES REMORSE MATTER IN PAROLE HEARINGS? 340 V. JUDGING REMORSE 344 A. Accuracy: What Does Genuine Remorse Look Like? 344 B. Fairness: Impermissible Factors Influencing the Perception of Remorse 347 1. Race 348 2. Culture 349 3. Gender 350 4. Class 351 5. Mental Impairment 352 VI. CONCLUSION AND RECOMMENDATIONS 352 A. Eliminate Remorse 353 B. Assess Remorse Better 355 I. INTRODUCTION: WHAT IS REMORSE?

When Timothy McVeigh was executed for his 1995 bombing of the Oklahoma federal building, many headlines shared a common theme: No remorse. (1)

Reporters described McVeigh as "stone-faced," (2) and his written statement, a copy of a nineteenth century poem, conveyed defiance rather than regret. (3) Paul Howell, who lost his twenty-seven-year-old daughter Karan in the bombing, expressed disappointment: "I was hoping we could see something like 'I'm sorry,' but we didn't get anything from the man." (4)

In the eyes of the community, McVeigh committed two unforgivable offenses: The first was on April 19, 1995, when he killed 168 people. The second was June 12, 2001, when he missed his last opportunity to demonstrate remorse for his actions.

Remorse is evaluated from the beginning to the end of the criminal justice process. An offender's remorse can persuade a prosecutor not to press charges. A judge may weigh remorse in her decision whether to transfer a juvenile to adult court, (5) how much bond to set, (6) or what kind of sentence to impose. (7) Capital jurors sometimes base their decision whether to vote for death on whether the defendant appears sorrowful. (8) Remorse may even affect the outcomes in civil matters such as fines for speeding violations, (9) school boards' decisions whether to expel students, (10) and bar admission committees' leniency in approving applications by would-be lawyers whose "character and fitness" investigations are unsatisfactory. (11)

Remorse pervades how we conceive of and deliver justice -and yet, what is it?

Remorse derives from the Latin remord-ere, "to bite again." (12) The etymology speaks to the experience of remorse; it is painful, it resurfaces, it gnaws. Dictionary definitions provide helpful synonyms but are too succinct to develop a thorough or nuanced understanding. (13) Recognizing the need for greater clarity, clinical psychologist Michael Proeve, along with legal scholar Steven Tudor, analyzed philosophical literature on remorse to come up with a descriptive breakdown of its principal characteristics.

According to Proeve and Tudor, a remorseful person displays most of the following characteristics in some combination:

* recognition that she has wronged and harmed another person

* recognition that she was responsible for her action, which was voluntary

* a sense that her life has changed in some way as a consequence of her action

* various feelings of internal pricking, vexation or turmoil

* a desire to atone or to make reparation, for example by expressing remorse, apologizing, making restitution to the person harmed, undergoing penance, and/or behaving differently in the future

* a desire to be forgiven

* some form or forms of having acted upon the desires to atone, to make reparation, or to be forgiven. (14)

That definition has since been referenced or adopted by other researchers in this area. (15) However, even that list leaves questions relevant to parole hearings unanswered, or open at least to multiple reasonable interpretations. Among those that have been raised by scholars or commissioners are: Is genuine remorse present immediately or does it develop over time? (16) Is it possible to be remorseful and still seek a reduction of punishment or does it require humble submission to any judgment? (17) What is the proper balance in remorse between grief for one's lost opportunities, acknowledgement of one's wrongdoing, and empathy for the victim? (18) How is remorse different from shame? (19) What does genuine remorse look like? (20)

The concept of remorse blurs as we interrogate it. Despite its importance throughout criminal justice proceedings, there is no legal consensus as to the definition or indicia of remorse. (21) The vagueness of the term invites legal decision-makers to import their own conceptions of this complex and varied emotion.

This Article, while drawing upon the scholarly research on remorse in various stages of criminal justice, focuses primarily on its use in the discretionary parole release decision. Discretionary parole is where a parole board has an opportunity to determine whether to conditionally release an individual from prison based on the board's assessment of the individual's characteristics and preparedness. At one point in American history, nearly three-quarters of all releases from prison occurred as a result of discretionary parole, and every state and the federal government operated a parole system. (22)

The 1970s saw a shift in thinking. Many jurisdictions began to move away from indeterminate sentences and parole release for "rehabilitated" offenders. The rehabilitative ideal of punishment lost popularity in the wake of studies showing that rehabilitative efforts appeared unsuccessful in reducing recidivism. (23) Critics also raised concerns that discretionary decisions were biased along racial, class, or other impermissible lines and argued that the psychological effects of not having an approximate release date were detrimental to prisoners' wellbeing. (24) By 2000, sixteen states had abolished discretionary parole for all offenders and another four had abolished parole for certain violent offenders. (25)

Discretionary parole, however, never disappeared and is again gaining attention as a potential tool in the decarceration agenda. (26) States facing prison overpopulation may see parole as a controlled release valve, as demonstrated most recently by the passage of Proposition 57 in California in 2016. That voter proposition, which was in part a response to a federal court order to reduce the prison population, amended the state constitution to allow parole consideration for nonviolent offenders. (27) Then-Governor Jerry Brown, who spearheaded the campaign for the proposition, had also long voiced regret for signing the determinate sentencing bill of 1977, which he believed reduced the incentive for inmates to use their time in prison productively. (28)

With renewed interest in discretionary parole, the criteria used in the parole decision should also come under review. The goal of such critical evaluation is not to derail efforts to return to a more discretionary system; rather, the goal is to continue a decades-long effort to professionalize the practice of paroling by determining which criteria are most relevant to parole's purposes and what the best practices are for applying those criteria. Part II of this Article explains the arguments justifying the use of remorse in parole hearings, Part III examines the ways in which the evaluation of remorse is incorporated into a typical parole hearing, Part IV discusses the effect that the perception of remorse has on human judgment, and Part V addresses the challenges that arise in assessing remorse and provides potential recommendations for how to either eliminate it from consideration or evaluate it more consistently.

2. WHY IS REMORSE RELEVANT TO PAROLE DECISIONS?

   Besides popular fascination with the emotion, remorse persists in the legal system in part because it aligns with almost all theories of punishment. Indeed, countries as disparate in their approaches to criminal justice as Sweden, the Netherlands, China, Japan, and the common law countries of Canada, England, Australia, and the United States incorporate evaluations of remorse into their legal systems. (29) There are at least four reasons for why that is so, as listed in Sections A-D below.

   1. Remorse May Decrease Recidivism

      By far the most pressing and relevant concern for a parole board is an offender's likelihood to recidivate. In every state where parole exists, evaluating the risk posed by the offender's release is essential; high or unreasonable risk means certain denial. (30)

      The perception that remorse correlates with decreased recidivism is widespread among judges and parole officers. (31) Moreover, a focus on recidivism aligns with the utilitarian theory of punishment -that it is a means to another end, commonly deterrence of future criminal conduct, incapacitation, or rehabilitation. (32) Because of the perception that an offender's remorse accomplishes some of the work needed to secure any of those ends, remorse may make some portion of a sentence unnecessary. (33) The pain of remorse acts as a deterrent of future criminal behavior. By inducing the acknowledgement of one's wrongdoing and the motivation to make amends, remorse makes it more likely that offenders will rehabilitate by taking the steps necessary to address the destructive behaviors and attitudes that led to their crime. (34) Finally, less incapacitation is necessary if remorse has successfully accomplished this work. As phrased succinctly by Judge Posner in United States v. Beserra,

      A person who is conscious of having done wrong, and who feels genuine remorse for his wrong... is on the way to developing those internal checks that would keep many people from committing crimes even if the expected costs of criminal punishment were...