Courtroom contrition: how do judges know?^*

* This article is a revised version of a paper presented jointly by the authors at Emotions in Legal Practices: Historical and Modern Attitudes Compared, a conference organised by the Australian Research Council Centre for Excellence for the History of Emotions 1100–1800, at the University of Sydney, 26–28 September 2016. The authors would like to thank the conference organisers and participants.

ABSTRACT

In most common-law jurisdictions world-wide, an offender’s remorse is a well-settled mitigating factor in sentencing, with judges obliged to take it into account when formulating an offender’s sentence. However, the importance of remorse in sentencing is matched by its mystery. Given remorse’s central role in the moral drama of the criminal justice process, it is crucial to investigate how remorse is evaluated, and also to understand the limitations of those evaluations. The present article seeks to contribute to that effort by exploring what is involved in judges coming to know — and claiming to know — that ‘this offender is remorseful’. Drawing on in-depth original interviews with 20 magistrates and judges in New South Wales, Australia, we explore how judges themselves understand their own ways of knowing about remorse. We then look at two basic scenes of offender remorse: remorse in the courtroom and remorse outside the courtroom. Many judges want to see remorse in the courtroom, and are often confident that they know it when they see it. But, at the same time, as we shall see, many judges also want evidence of the offender’s remorse outside the courtroom.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Dr. Kate Rossmanith is a Senior Lecturer and Researcher in Cultural Studies at Macquarie University, Australia. She is also a creative nonfiction writer, and is the author of Small Wrongs: How we really say sorry in love, life and law (Hardie Grant Books, 2018), which investigates remorse in the criminal justice system and remorse in our everyday lives. Small Wrongs has been nominated for literary awards in the UK and Australia. Her essays have appeared in The Monthly and Best Australian Essays 2007. In 2018 her short documentary Unnatural Deaths was published by The Guardian as part of a series exploring archives on film. Kate is a co-editor of Remorse and Criminal Justice: Multi-Disciplinary Perspectives (Routledge, forthcoming).

Dr. Steven Tudor is a Senior Lecturer in the School of Law, La Trobe University, Melbourne, Australia. His research interests include law and emotions, freedom of conscience and philosophical issues raised by the criminal law. Among Steven’s publications are Compassion and Remorse: Acknowledging the Suffering Other (Leuven, 2001) and, with Michael Proeve, Remorse: Psychological and Jurisprudential Perspectives (Ashgate, 2010). He is a co-editor of Remorse and Criminal Justice: Multi-Disciplinary Perspectives (Routledge, forthcoming).

Dr. Michael Proeve is a Senior Lecturer in the School of Psychology at the University of Adelaide. He is a clinical and forensic psychologist with experience in forensic mental health and correctional settings. His research interests are in the areas of remorse and shame, mindfulness, and assessment and treatment of sexual offenders. He is the co-author of Remorse: Psychological and Jurisprudential Perspectives (Ashgate, 2010), and a co-editor of Remorse and Criminal Justice: Multi-Disciplinary Perspectives (Routledge, forthcoming).

Notes

* This article is a revised version of a paper presented jointly by the authors at Emotions in Legal Practices: Historical and Modern Attitudes Compared, a conference organised by the Australian Research Council Centre for Excellence for the History of Emotions 1100–1800, at the University of Sydney, 26–28 September 2016. The authors would like to thank the conference organisers and participants.

1 R v Phillips [2012] VSCA 140 at [101]–[102] per Harper JA.

2 Proeve and Tudor (2010).

3 See for example Costanzo and Costanzo (1992).

4 Rossmanith (2015), p 174.

5 Rossmanith (2015), p 174.

6 R v Phillips [2012] VSCA 140 at [101]–[102] per Harper JA.

7 Bagaric and Amarasekara (2001), Ward (2006), Duff (2001), Lippke 2008, Murphy (2006, 2007), Ward (2006), Bandes (2016).

8 Rossmanith (2018), p 8 ¹⁰ Weisman (2009), p 49.

9 Weisman (2009), p 66. For a discussion of the centrality of performances of remorse to processes of judges’ decision-making, see also Van Oorschot et al. (2017).

10 Bandes (2016).

11 Bandes (2016).

12 This research was approved on 19 August 2010 by Rossmanith’s Human Research Ethics Committee (reference number: 5201000889). This research was made possible because of a Macquarie University internal grant.

13 Jackson (1996), p 2.

14 For example, one of the tensions discussed during Rossmanith’s interviews concerned the question of biology. At the time of the interviews, scientists had recently discovered what has been termed ‘the warrior gene’. This gene supposedly affects levels of the brain chemicals ‘dopamine’ and ‘serotonin’, which in turn affect men’s behaviour and mood (reputedly not so for women). If you are male and have the gene, and if you’ve had an unstable upbringing as a child, you are more prone to violent outbursts. Rossmanith asked a judge if the gene was relevant when sentencing someone. The judge wondered: was he expected to lock up the offender for a shorter period (because a person can’t control his biology and therefore his actions are not entirely his free will), or for a longer time (because he presents more of a danger to society)? In the courts, this question has not yet been resolved (Rossmanith 2018, p 124).

15 For a discussion on how ethnographers code fieldnotes, see Madden (2010), pp 139–144.

16 Leader (2008).

17 Rossmanith (2018), p 8.

18 For example, research to date has turned to: how capital juries assess a person’s remorse (Sundby 1998); legal debates concerning the relevance of remorse in the sentencing process (Bagaric and Amarasekara 2001; Bibas and Bierschbach 2004; Tudor 2005, 2008a, 2008b; Ward 2006; Murphy 2006; Lippke 2008); the ways in which assessment of a defendant’s apparent remorse or remorselessness can disadvantage both the defendant and the prosecution (Ward 2006); the ways in which a defendant is expected to ‘show’ remorse (Weisman 2004); how judges constitute the category of remorse through the criteria they use to decide which claims to remorse are valid (Wood & MacMartin 2007; Weisman 2009); the role that remorse (in relation to religion) plays in the judiciary’s assessment of moral character, particularly in decisions to grant legal mercy (Murphy 2007); the necessity of guiding decision-makers on how to improve their abilities to evaluate remorse (Bandes 2011); and an extended examination of legal and psychological perspectives on remorse (Proeve & Tudor 2010). Scholars have looked at expectations, including remorse enactments, placed on prisoners (Hall 2017; Martel 2010). There have also been studies in the area of restorative justice, with attention paid to the role of remorse in restorative justice conferences. See also Tieger (2003), Weisman (2014), Bandes (2016).

19 Zhong et al (2014), Rossmanith (2014, 2015), Hall and Rossmanith (2016), van Oorshot et al (2017). See also Johansen (forthcoming).

20 Weisman (2014), p 8.

21 Van Oorschot et al (2017), p 361.

22 Wood and McMartin (2007), p 344.

23 Susan Bandes (2016) points out the necessity of turning to sources such as interviews with judges and jurors to further understand what exactly, in remorse assessment, is being evaluated, p 313.

24 Such evidence would be classified as evidence of an ‘admission’ under Australia’s uniform evidence laws. See Evidence Act 1995 (Cth); Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic).

25 See the High Court of Australia’s discussion of the role and nature of sentencing hearings in GAS v The Queen (2004) 219 CLR 198 and The Queen v Olbrich (1999) 199 CLR 270.

26 The Queen v Olbrich (1999) 199 CLR 270 at [1].

27 See e.g. Neal v The Queen (1982) 149 CLR 305 (Murphy J); Cameron v R (2002) 209 CLR 339 (McHugh J); Crimes Act 1914 (Cth) s 16A(2)(f); Crimes (Sentencing Procedure) Act 1999 (NSW) s 23A(3)(i); Sentencing Act 1991 (Vic) s 5(2C); Sentencing Act 2017 (SA) s 11(1)(g); Alvares v R (2011) 209 A Crim R 297; Windle v R [2011] NSWCCA 277; Roff v R [2017] NSWCCA 208.

28 Proeve, Smith and Niblo (1999). See also Zhong et al (2014).

29 All unattributed quotations are from Rossmanith’s original interviews.

30 Philosophical analyses include Thalberg’s (1963) and Tudor’s (2001) discussions of remorse, Taylor’s (1985) comparison of shame and guilt, Dilman’s (1999) comparison of shame, guilt and remorse. Conceptual analyses by psychologists include Baumeister, Stillwell and Heatherton (1994) who review the origin and nature of guilt; Crozier (1998) who discusses the conceptual nature of shame; Lewis (1971) contrasts shame and guilt; while Landman (1993) and Gilovich, Medvec and Kahneman (1998) discuss regret. Empirical studies of these emotions include contrasts of shame and guilt by Wicker, Payne and Morgan (1983), Lindsay-Hartz (1984), Roseman, Wiest and Swartz (1994), Tangney (1991) and exploration of regret by Zeelenberg, Van Dijk, Manstead and van der Pligt (1998).

31 See Proeve and Tudor (2010), p 96.

32 Rossmanith (2014).

33 van Oorschot et al (2017), p 360.

34 Rossmanith (2015).

35 Rossmanith (2015).

36 See Sherrard v Jacob [1965] NI 151 and Baltimore & Ohio Railroad Co v Schultz 43 Ohio 270; 1 NE 324 (1885).

37 See also Bandes (2016), Levenson (2008), Blumenthal, (1993), Wellborn III (1991).

38 For an account of this sentencing hearing, see Rossmanith (2018), pp 3–7.

39 See Barbaro and Zirilli v The Queen [2012] VSCA 288 at [29].

40 Butters v R [2010] NSW CCA 1.

41 Bandes (2016), p 326.

42 For some important research on judges’ views of remorse in other in other jurisdictions, see Zhong et al (2014) and Van Oorschot et al (2017). Zhong and colleagues conducted interviews with the judges in the U.S. state of Connecticut, while more recently Van Oorschot and colleagues conducted interviews with, and observation of, judges in the Netherlands. See also Johansen (forthcoming) with its focus on judges in Danish courtrooms.

43 See Weisman (2014), pp 12–18 on remorse and moral communities.

Additional information

Funding

This work was supported by Macquarie University [Grant Number 9201001805].