Therapeutic Approaches to Remorse in Sentencing Recommendations: A Qualitative Study of Probation Officers

• Author: Colleen M. Berryessa
• DOI: http://doi.org/10.1177/00938548221139846
• Published date: 01 April 2023
• Date: 01 April 2023
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 4, April 2023, 497 –520.

DOI: https://doi.org/10.1177/00938548221139846

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© 2022 International Association for Correctional and Forensic Psychology

497

THERAPEUTIC APPROACHES TO REMORSE IN

SENTENCING RECOMMENDATIONS

A Qualitative Study of Probation Officers

COLLEEN M. BERRYESSA

Rutgers University

Stemming from interviews with 151 probation officers in the United States, this study produces a qualitative model that

illuminates the extent to and ways in which probation officers draw from principles of Therapeutic Jurisprudence to consider

remorse as evidence of a client’s potential for rehabilitation (remorse shows “therapeutic guilt” through which an individual

being sentenced acknowledges wrongdoings, takes responsibility, and shows behavioral changes) and reconciliation (remorse

is a device for “rebalancing power” by shifting responsibility for bad acts away from victims and community, as well as

allows the individual being sentenced to seek and receive forgiveness via apologies and “payback”) during sentencing.

Correspondingly, the model further suggests how these officers use their therapeutic views of remorse to inform their presen-

tencing recommendations for sentencing plans that prioritize community reintegration. Finally, this article discusses the

model’s implications and the potential adoption of Therapeutic Jurisprudence approaches in sentencing.

Keywords: remorse; therapeutic jurisprudence; sentencing; probation officers; qualitative

Expressions of remorse, which can convey the extent to which a person appreciates and

denounces the consequences of his bad acts, have long been argued to have prolonged

consequences for the well-being and healing of individuals facing criminal charges, vic-

tims, and the larger community after a criminal offense has occurred (Daicoff, 2013; Etienne

& Robbennolt, 2007). As such, the Therapeutic Jurisprudence approach has suggested that

legal decision-makers should use remorse, as evidence of a person’s rehabilitation potential,

likelihood for reconciliation with victims and the community, and subsequent community

reintegration, as a tool in determining how he should be punished and how sentencing can

be used to achieve more therapeutic outcomes (Berryessa & Balavender, 2021; Erez, 2004;

Wexler, 2004).

AUTHOR’S NOTE: The author would like to thank Stephanie Kaufman for her excellent research assistance

for this study. Correspondence concerning this article should be addressed to Colleen M. Berryessa, School of

Criminal Justice, Rutgers University, 123 Washington Street Room 579G, Newark, NJ 07102; e-mail: colleen.

berrryessa@rutgers.edu.

1139846CJBXXX10.1177/00938548221139846Criminal Justice and BehaviorBerryessa / Therapeutic Jurisprudence in Remorse Assessments

research-article2022

498 CRIMINAL JUSTICE AND BEHAVIOR

Yet, although this approach also reconsiders the roles of decision makers involved in

sentencing as those of “therapeutic agents” (Birgden, 2004; Dewhurst, 2012; Evans &

King, 2012; Wexler, 2006), to date there has been no empirical work to examine whether

legal actors may already draw from the Therapeutic Jurisprudence approach to inform

their perspectives and choices during the sentencing of individuals who have shown

remorse. This study, using a grounded theory approach with probation officers, produces

a qualitative model that illuminates the extent to and ways in which officers recognize the

remorse of a person being sentenced as therapeutic for the sentencing process and how

they draw from principles of Therapeutic Jurisprudence when making sentencing recom-

mendations. Ultimately, implications of these findings and the adoption of these

approaches toward remorse in sentencing are discussed.

REMORSE IN CRIMINAL–LEGAL CONTEXTS

Remorse is a feeling of recognition and acknowledgment that shows accountability for

causing damage to another person (Zhong, 2015). Normative ways of how people most

often express or display remorse fall into two categories (Corwin et al., 2012). First, cues of

remorse can be non-verbal, most commonly via emotional displays of body language,

including crying, frowning, not making eye contact, or hunched shoulders. However, pay-

ing forms of financial or material restitution to victims to replace destroyed property, mak-

ing donations to those that have been affected by one’s bad actions, volunteering in the

community, or other similar behavioral gestures have also been considered key non-verbal

displays of remorse (Weisman, 2009, 2014). Second, cues of remorse can be verbal, includ-

ing direct apologies to and requests for forgiveness from those that have been affected,

indirect apologies about one’s behavior and feelings of regret to a third party or verbal

offers of aid to makeup for one’s bad acts (Corwin et al., 2012).

In the context of the criminal–legal system, by exhibiting remorse displays like these, a

person facing criminal charges is said to denounce his actions and, correspondingly, indi-

cate the potential for change and long-term positive outcomes (Weisman, 2009, 2014).

Remorse also indicates genuine atonement toward those harmed; when those that have been

affected by wrongdoing acknowledge an individual’s expressions of remorse for those

actions, they may choose to forgive him (Van Stokkom, 2002). Scheff and Retzinger (2000)

suggest that forms of remorse and forgiveness are a two-step process that helps to success-

fully resolve conflicts in the criminal–legal system and allows amends to be made between

a wrongdoer and his victims. Amends may be material, but nonmaterial reparation is often

considered more important to reductions in recidivism, reconciliation, and restoring moral–

social ties (McAlinden, 2021). Particularly, remorse can suggest that the person being sen-

tenced has a positive moral orientation such that he is not lost and possesses the ability to

transform himself in ways that rationalize, or even necessitate, a lesser or alternative pun-

ishment (Bibas & Bierschbach, 2004).

Although potentially having great utility for the court, victims, and those individuals

being sentenced if expressions are real or heart-felt, the notion of using remorse to ensure

later sentencing discounts has been discussed as potentially muddying more positive effects

of remorse, such as achieving forgiveness and mending relationships (Bibas & Bierschbach,

2004). Etzioni (2000) notes that the nature of sentencing can be performative and coercive,

in that it can teach individuals to misuse or fabricate remorse as a self-serving attempt to