BACKGROUND: THE THEORIES OF PUNISHMENT AND THE REMORSE DISCOUNT

From a traditional retributivist viewpoint, remorse seems irrelevant It sim­ply has nothing to do with the extent of culpability of the offender at the time of the crime At most it suggests that the offender once her debt is paid will not reoffend which is all for the best but not relevant to pun­ishment for this crime Jeffrie Murphy has suggested that the pain of remorse might be the appropriate kind of pain to count as partial retributive punishment, an idea fleshed out below but even he believes that remorse should affect sentencing only at the margins (Murphy 1997, pp.

Character retributivism. the view that one should base a punishment on the extent of a defendant’s bad character at least in park rather than simply on the extent of culpability for the particular crime would take remorse into account as a sign of good character (Robbins 2001) But again, such adjustments are at the margins for most agree that punishing solely on the basis of bad character would distort the penalty structure (small crimes done by bad actors would receive longer sentences than greater crimes) and that judging character is a perilous business both because we cannot know what secrets lie in others’ hearts and because we may not fully understand them in light of our own flawed moral and cultural vision.

From the perspective of (simple) deterrence remorse suggests a dispo­sition not to reoffend lessening perhaps the need for specific deterrence. A painful emotional state may take the place of painful punishment in making future criminal conduct seem less attractive to an offender But, tempering punishment for remorseful defendants may defeat the aims of general deterrence to the extent that other offenders believe they can fake remorse (even if that belief is mistaken) and also receive the lower punish­ment So even if we could accurately determine who is remorseful and who is not and that is itself a contested issue a deterrence theory would likely not mitigate punishment for remorse for fear of weakening general deterrence

A more sophisticated deterrence theory might wish to factor in the sociological fact that most people believe remorse should matter to pun­ishment Such a theory might wish to take this sociological fact into account in order to ensure that the justice system seem just, thereby encouraging voluntary compliance (Robinson & Darley, 1997) But even so, the theory would allow remorse a role to play only so far as necessary to prevent dissatisfaction with the system that would undermine voluntary compliance not for its own sake

From the perspective of a victim-oriented theory of punishment remorse may be relevant insofar as it involves ‘‘self-abasement and humiliation” and ‘‘a kind of alienation from oneself” (Brown 1997, p.

With respect to ‘‘expressive theories’’ of punishment, the place of remorse is puzzling If the communication involved in punishment is for the purpose of making the defendant understand the seriousness of the crime as in Herbert Morris’ paternalistic theory of punishment, then the remorseful defendant already knows this and needs no further punishment-as- communication (Morris 1981) Hence remorse would discount or even eliminate the need for punishment in such a system Morris’s paternalistic account of punishment, then is one of the few that would justify mitigation of punishment when the defendant is remorseful· Most expressive theories of punishment however consider the social meaning of the punishment as well as its communication to the offender. If as in Durkheim, the punish- ment-as-communication is directed to the community as well as the offend­er, and the publicity of restating the norm through punishment is essential to the community’s self-definition and self-understanding then punishment is necessary regardless of whether the offender already feels and understands the gravity of the crime

The only other concept of punishment that seems to have remorse at its center is punishment as atonement (Garvey 1990) Here remorse is the essential first step to expiation and reconciliation with the victim and the community so the ‘‘repentance discount’’ of traditional sentencing practice seems at first glance ‘‘easy to explain’’ (Garvey 1990, p.

It follows that the wrongdoer because he identifies with the victim whom he has insulted and diminished will himself feel insulted and diminished And just as his victim will feel legitimate anger and its accompanying urge to strike back so too will the wrongdoer feel legitimate anger and the urge to strike back - only at himself This self-directed anger is guilt.

Guilt is thus a product of empathic self-identification that manifests itself as a form of self-directed anger If a wrongdoer identifies with the victim of his wrongdoing he will experience all that his victim experiences as a consequence of that wrong He will feel smaller than before just as he has made his victim feel smaller He will experience anger and resentment toward himself just as his victim feels resentment and anger toward him Moreover just as his victim’s moral worth cannot be restored unless the wrongdoer is punished so too the wrongdoer cannot restore his own moral standing unless he submits to punishment (Garvey 1990, pp. 1822-1823).

But if atonement is the object, why is it necessary for the remorseful defendant to be punished at all? Garvey suggests that punishment restores the wrongdoer’s ‘‘moral standing’’ Garvey might explain punishment as an expressive fix along the lines suggested above sending the ‘‘right’’ message about the relative worth of the victim and defendant I have disputed that view elsewhere (Meyer 2003) Is there another explanation? And if Garvey is right that punishment is still necessary why the ‘‘punishment discount’’ for the repentant offender? If punishment is needed to restore ‘‘moral worth” then the punishment discount seems not to be so ‘‘easy to explain” after all.

The answers to these questions depend critically on the nature of remorse. What is it about remorse that leads to the intuition that the remorseful should receive a lesser punishment than the remorseless other things being equal? The next section using both philosophical and literary sources tries to understand the emotion/cognition of remorse and its power for us Only then can we decide why a sentencing system jury or judge might think it matters

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