SANCTION AND THE STATE

Here it is that Hegel’s requirement that the State must come into play in sanction makes the most sense The state is (usually) the only authority which can claim one’s life or demand one’s death Only the state has power to forgive and renew and therefore to require one to forgive oneself Even the individual victim cannot do this unless the victim has the kind of deep union with the offender exemplified by Gene and Phineas, for the victim can only forgive for her own pain but cannot take away the offender’s self­loathing and self-disgust, or accept future risk for others Only the love of an Other can do that For Hegel, that Other is the State For the religious that Other is God In a personal setting that other may be a Phineas a close friend or relative who not only forgives but also loves and takes on the future risk of relationship

This is similar to the conclusion Austin Sarat comes to in his exploration of the film Dead Man Walking.

So back to the initial question: why do we care about remorse? What is its relation to sentencing? We may punish in hopes of generating remorse, because remorse is the truest retribution (Garvey 1999; Murphy 1997. But see note above.) Yet, we cannot leave an offender in eternal self-hatred That is hell. We must extend grace This steps outside of justice which has become impossible except as a hell and restores a clean slate by fiat not by desert In the end ironically it may be that we should not alleviate punish­ment because of remorse but sanction in order to alleviate remorse Sanc­tion would be seen no longer as the return of the crime the expression of community outrage or a payment in kind to the victim but as a settlement undeserved that sets the terms of reunion

The ‘‘sentencing reduction’’ for remorse then may be explained in this way Sentencing of the remorseful is no longer retribution at all for ret­ribution has already been achieved Sentencing of the remorseful becomes a settlement or sanction But for the offender who is not remorseful sen­tencing takes on the character of punishment - either as moral education pace Morris in an effort to achieve remorse sheer behavioristic deterrence or perhaps a form of preemptive self-defense The existence of remorse then is critical because it transforms the sentence from one of punishment (the infliction of pain for a purpose) to one of sanction (sanctification and settlement)

Not only the extent of the sentence but its nature may be changed For example community service may be far more appropriate than prison for a remorseful defendant, because it celebrates the defendant’s change of heart and gives the defendant a means of expressing gratitude for the grace of his crime being ‘‘settled’’ The ‘‘positive social meaning’’ of community service is here not muddied (Kalian.

Restitution would also be appropriate for healing the harm to the victim would be a recognition of union Treatment opportunities should be available, for a remorseful defendant may need help to change behavior patterns and become the ‘‘new person’’ she would want to be Also civil disabilities upon conviction would be less appropriate for a remorseful defendant If sanction is reunion there is little sense in a settlement that imposes life-long restrictions, for these deny the trust that can put an end to retribution and remorse

Remorseful defendants in short should be treated very differently than those who are not remorseful· But the problem remains at least in the public sphere how can we know?

Spontaneous apologies voluntary restitution to the victim compliance with treatment programs cooperation with law enforcement officials good behavior in jail, etc are all markers that are usually suggested by sentencing systems (see eg USSG 3E.1.1). The problem is they are only markers and it is quite possible for a remorseless defendant with a good lawyer to do all of these things In practice the markers themselves as in the Federal Sen­tencing Guidelines replace the search for remorse and may actually reward those who can cannily play the system be the first to betray their friends and are ultimately the least remorseful of all (O’Hear, 1997).

Juries are also very influenced by a defendant’s demeanor and emotional tone ‘‘Arrogant’’ defendants and defendants with apparently flat affect do not appear remorseful and may be sentenced accordingly (Sundby, 1998; Eisenberg et al., 1998) These demeanor cues however may be culturally determined and are not always accurate indicators of remorse especially in the case of young offenders from ‘‘tough’’ backgrounds (Duncan 2002).

Another look at A Separate Peace suggests what is really at the heart of true remorse Phineas forgives Gene not because Gene has helped him around campus or run endless laps at his command Phineas forgives Gene after Gene tells him two things First Gene has explained his coming to Phineas’ hospital room because he ‘‘felt he belonged’’ there Second Gene tells Phineas that Phineas would not have made a good soldier because he does not have the character to hate be jealous or have enemies In this exchange Gene shows that he knows Phineas better than Phineas knows himself and admires him Both of these statements for Phineas show that Gene does not hate him but on the contrary loves him like another self Gene’s crime was motivated by a malicious impulse borne of jealousy of Phineas, but that jealousy was always mingled with and finally crowded out by admiration love and solidarity Because Gene loves him Phineas for­gives him

Can this translate into the public realm? What would we look for? Though I can only sketch a suggestion here I believe it can to some extent, based on other factors we commonly take into account at sentencing: mil­itary service family responsibilities and community service These factors especially family responsibilities are very influential in the federal sentenc­ing practice and are even more influential in military sentencing (Meyer, 2004) though completely incomprehensible from the standpoint of tradi­tional retributive theory All of these factors evince strong ties to commu­nity a willingness to sacrifice one’s own interests for others and a capacity for attachment and love These traits make true remorse more likely for they demonstrate that the offender can identify with the victim at least where the victim is part of the community that the offender has previously served And unlike apologies restitution and demeanor these factors are based on precrime conduct that cannot be dramatically affected by good advocacy or savvy advice The factors can also be challenged and countered by hard evidence on the nature of the service or family ties

In sum remorseful defendants should be sanctioned not punished The traditional ‘‘repentance discount’’ recognizes this distinction and other tra­ditional mitigating factors like family and community service can be used to support the evidence of remorse

NOTES

1. Note however that Nietzsche at least, denies that inflicting pain usually has this effect, and if remorse is reached this way it is hard to unravel from submission and cringing abasement: “punishment makes men hard and cold..

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