So You're Sorry? the Role of Remorse in Criminal Law

Abstract

The role of remorse in judicial decisions in the criminal justice system has been addressed in scholarship and remains controversial. The purpose of this qualitative research was to examine the views of sitting criminal judges on remorse, its assessment, and its relevance in their decision-making. After approval of the study design by the institutional review board, 23 judges were interviewed in an open-ended format. Transcriptions of these audio-recorded sessions were analyzed phenomenologically by the research team, using the method of narrative summary. The results showed that the judges varied widely in their opinions on the way remorse should be assessed and its relevance in judicial decision-making. They agreed that the relevance of remorse varied by type of crime and the stage of the proceedings. The indicators of remorse for some judges were the same as those that indicated the lack of remorse for others. All the judges recognized that assessment of remorse, as well as judicial decision-making in general, must be altered for defendants with mental illness. The judges varied in their views of the relevance of psychiatric assessments in determining remorse, although most acknowledged a role for forensic psychiatrists.

Keywords: remorse, sentencing, criminal law, judges