Remorse, Relational Legal Consciousness, and the Reproduction of Carceral Logic

Abstract

One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole. But little is known about a key aspect of parole decision-making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person’s remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person’s past and present motivations, beliefs, and affective states. To understand how parole board members make sense of remorse, we draw on in-depth interviews with parole commissioners in California, the state with the largest proportion of parole-eligible lifers. We find that commissioners’ remorse assessments hinge on their perceptions of lifers’ relationships to law and carceral logic. In this way, relational legal consciousness—specifically, second-order legal consciousness—functions as a stand-in for the impossible task of knowing another person’s heart or mind. We distinguish relational from second-order legal consciousness and argue that understanding how they operate at parole hearings reveals the larger import of relational legal consciousness as a mechanism via which existing power relations are produced and reproduced, bridging the legal consciousness and law and emotion literatures.

Keywords: parole, legal consciousness, parole hearings, lifers, incarceration