SILENCE AND REMORSELESSNESS.

• Author: Fountain, Caleb J.
• Position: Defendant's contrition during sentencing

LUCIUS Art thou not sorry for these heinous deeds? AARON Ay, that I had not done a thousand more. .... LUCIUS Bring down the devil; for he must not die So sweet a death as hanging presently. (1) I

A criminal defendant's expressions of remorse or remorselessness (2) play a consequential role in the sentencing process. (3) Whether a defendant receives a more or less severe sentence sometimes depends upon a sentencer's assessment of the credibility of the defendant's allocution of contrition. (4) This observation is not subject to reasonable dispute, (5) although it remains a pointed area of disagreement among scholars whether remorse or remorselessness should be considered at sentencing at all. (B) The lived experience of the courtroom in the United States affirms to criminal defendants every day that judges and juries "expect him to feel[] remorseful, ashamed, apologetic, or reformed." (7) If he does not, and the absence of his contrition is detected by the sentencer, he can expect to suffer the consequences. (8)

Shakespeare understood this. When Aaron, the cruel and unrepentant antagonist of the tragedy Titus Andronicus, is to be hanged, he refuses to express contrition, instead lamenting only that he had not committed more crimes. (9) His sentencer, Lucius, concludes that Aaron's punishment should consequently be enhanced, and Aaron was ultimately buried "breast-deep in the earth, and famish[ed]"--a far more humiliating execution. (10) Undeterred, Aaron's final words prove the failure of even this most awful death to bring him around: "If one good deed in all my life I did," he announces, "I do repent it from my very soul." (11) This basic formula--the expression of remorselessness and the resulting heightened sentence--has a long pedigree in the Anglo-American penological consciousness. (12)

The question posed by this essay concerns, not whether remorse is a valid consideration at sentencing, (13) but rather, what evidence is constitutionally permissible to be considered when determining whether a defendant is remorseless. Specifically, it asks whether the Fifth Amendment's self-incrimination clause prohibits the use of a defendant's silence at sentencing as evidence of the defendant's remorselessness, (14) a question on which the United States Courts of Appeals are currently divided. (15) This essay concludes that the self-incrimination clause prohibits such an inference by the sentencer, and demands that a jury be informed of this prohibition at the defendant's request where a jury makes the sentencing decision. (16) Its conclusion flows from historical considerations underpinning Griffin v. California, (11) the text of the self-incrimination clause, (18) and the reasonable interpretations of its scope advocated by the Supreme Court in the nineteenth century. (19) At a time when the self-incrimination clause is undergoing intense scrutiny and increasing limitation, (20) it is important to affirm its applicability to facts that can increase a punishment in the sentencing phase, including a finding of remorselessness.

This essay proceeds in four parts. This part states the issue concisely: does the self-incrimination clause prohibit the use of a defendant's silence as evidence against him at sentencing in determining his lack of remorse? Part II addresses the historical underpinnings of the rule in Griffin--that a prosecutor may not comment upon, and a juror may not draw any inferences from, a defendant's failure to testify at trial. (21) Any proposition that a defendant's silence at sentencing may not be held against him with regard to remorselessness must necessarily flow from the decision in Griffin. (22) If Griffin's integrity is unsound, or if it must otherwise be narrowly circumscribed, then the silent defendant will have little protection at sentencing with respect to contrition. (23) To make a complete argument in favor of Griffins applicability to findings of remorselessness at sentencing first requires Griffin to be defended. (24)

This essay thus proposes a different basis than the one on which the Court relied in Griffin. It will argue that Griffin's stated rationale--that the negative inference "is a penalty imposed by courts for exercising a constitutional privilege" (25)--is historically insufficient. Rather, the statutory abrogation of the common-law rule disqualifying the defendant from testifying transformed, by force and without the defendant's consent, a criminal defendant's silence from a legally imposed requirement to a form of in-court evidence. (26) Griffin was therefore a necessary step to restore criminal defendants to the position they were in before the marked shift in the law that permitted defendants to give sworn testimony on their own behalf. (27) The case essentially restored defendants to the position they were in at the time the Fifth Amendment was enacted, and was thus a constitutionally necessary corrective measure in the face of shifting laws of evidence. (28)

Part III turns to the issue of whether Griffin and its progeny should apply to determinations of remorselessness at sentencing. It begins by discussing Griffin's progress, leading up to the holding in Mitchell that a sentencer may not use a defendant's silence against her "in determining the facts of the offense at the sentencing hearing." (29) Then it will principally argue that the text of the self-incrimination clause itself leads to the conclusion advocated here--that the Fifth Amendment precludes the use of silence as evidence of remorselessness. The self-incrimination clause neither requires that the compelled testimony (in the case of a silent defendant, an adopted admission by silence) be literally criminating (that is, pertaining exactly and only to elements of the crime), nor that it be in only the trial section of a criminal proceeding. (30) Rather, it broadly prohibits a defendant from being compelled "to be a witness against himself in a "criminal case." (31) The Supreme Court has consistently held for over 100 years that testimony is protected if it "tend[s] to criminate him or subject him to fines, penalties or forfeitures," (32) and that a "criminal case" necessarily includes the sentencing phase. (33) A finding of remorselessness increases a defendant's penalty during the course of a criminal case. (34) The self-incrimination clause consequently applies. Part IV notes that silence is far less probative of remorselessness than it may appear, (35) and suggests that the best, and most constitutionally secure, solution is strictly to apply the self-incrimination clause to such silence. This essay will conclude by arguing that the Fifth Amendment ensures that, to the extent that courts continue to consider remorselessness relevant at sentencing at all, such enhancements must be reserved for those defendants who, like Shakespeare's Aaron, manifest through evidence--but not through silence--that they are remorseless. (36)

II

In relevant part, the Fifth Amendment to the United States Constitution provides that: "[n]o person... shall be compelled in any criminal case to be a witness against himself." (37) Edward Griffin was charged with the murder of Essie Mae in California, and he did not testify at his trial. (38) He was convicted after the prosecutor said to the jury in closing argument that "in the whole world, if anybody would know [who killed Essie Mae], this defendant would know. Essie Mae is dead, she can't tell you her side of the story. The defendant won't." (39) Griffin was sentenced to death. (40)

Using language that would become a commonplace of Fifth Amendment jurisprudence for years to come, (41) the Supreme Court reversed the conviction on the ground that the prosecutor's comment "is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." (42) The "penalty doctrine," (48) as this essay refers to it, consists of the idea that exacting a cost on the defendant for the exercise of the right amounts to compulsion of the defendant. (44) It has been the guiding principle of the post-Griffin cases, and remains the doctrinal framework within which adverse-inference issues are currently analyzed. (45)

The obvious problem, as opponents of Griffin have not grown tired of reiterating since it was first identified in Justice Stewart's opinion dissenting from Griffin, (46) is that a prosecutor's comment requesting an adverse inference is not analytically identical to "compulsion." (47)

Exactly what the penalty imposed consists of is not clear. It is not, as I understand the problem, that the jury becomes aware that the defendant has chosen not to testify in his own defense, for the jury will, of course, realize this quite evident fact, even though the choice goes unmentioned. Since comment by counsel and the court does not compel testimony by creating such an awareness, the Court must be saying that the California constitutional provision [permitting prosecutorial comment on silence] places some other compulsion upon the defendant to incriminate himself, some compulsion which the Court does not describe and which I cannot readily perceive. (48) The problem Justice Stewart identified poses a significant problem in contemporary constitutional adjudication. (49) The Warren Court may have been amenable to an outcome only tenuously moored to the text or history of the Fifth Amendment--the Court cites neither historical nor textual support for its penalty doctrine (50)--but the last thirty years of constitutional interpretation again and again affirms the centrality of textual and historical argument in the Supreme Court and below. (51) Its apparent lack of historical "pedigree" leaves Griffin vulnerable to erosion or even, some claim, to reversal. (52)

Justices Stewart and Scalia, both of whom argued that Griffin had no basis in the text or history of the self-incrimination clause, (53) fail to appreciate the...