64 Pages Posted: 15 Jul 2004 Last revised: 3 Apr 2009
Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substantive moral values. Likewise, most legal scholars either ignore remorse and apology or squeeze them into the individual badness model, neglecting the broader roles that they can play in reconciling and educating offenders and healing victims and communities.
The narrow focus on individual badness slights the broader value of remorse and apology and misses a crucial point. Crime is more than just individual wrongdoing; it harms social relationships. Currently, remorse and apology serve only as poor gauges of how much deterrence and retribution individual offenders need. Ideally, these tools would play much larger roles in mending the social, relational harms from crime. Remorse and apology are valuable ways to heal wounded relationships, vindicate victims, and educate, reconcile, and reintegrate offenders into the community.
Criminal procedure should encourage and use remorse and apology to serve these substantive values at every stage, from before arrest through charging to pleas and sentences. The broader aim is twofold: to recognize the social dimension of criminal wrongdoing and punishment, and to break down the artificial separation between substantive values and criminal procedure by harnessing procedure to serve the criminal law's substantive moral goals.
Suggested Citation: Suggested Citation
Bibas, Stephanos and Bierschbach, Richard A., Integrating Remorse and Apology into Criminal Procedure. Yale Law Journal, Vol. 114, p. 85, 2004; Cardozo Legal Studies Research Paper No. 89. Available at SSRN: https://ssrn.com/abstract=564584