kanBARoo Court. 33rd Installment. Remorselessness

Criminal law has regressed in the past thirty years, retreating toward the quasi-religious weighing of a defendant's virtue. In the federal courts, for example, sentencing guidelines include mitigation for "taking responsibility" for one's crime, the seventeenth century idea of remorse expressed in nineteenth century jargon. As in most legal matters where doctrinal asphyxiation effects oppression, the State Bar establishment is in the forefront, remorselessly pushing aggravated discipline for remorselessness to curtail the respondent’s right to argue the merits.

The legal problem in aggravating or mitigating sentences based on the defendant’s degree of remorsefulness is its irrelevance to any reasonable purpose for imposing punishment, despite the U.S. Constitution's requirement that the means of allocating punishment have some rational justification. California justifies using remorse because courts universally use it as a factor in sentencing. (See People v. Hinton (2006) 38 Cal.4th 389 ["The presence or absence of remorse is a factor universally deemed relevant to the jury's penalty determination."].) Universality, however, does not entail rationality; other legal practices are universal yet transparently irrational, an example being the universal practice of punishing the successful commission of crime more than an attempt. Other common arguments favoring factoring the court's appraisal of a defendant's remorsefulness into sentencing rest on psychological theories that would never survive a Kelly-Frye hearing. Moralists contend encouraging remorse furthers rehabilitation, a two-step argument that fails at both points — guilt following wrongdoing relates but weakly to conduct; extrinsic rewards and punishments produce paradoxical effects on motivational state.

Problematically for the universality argument, courts differ profoundly on how to incorporate remorse into sentencing. Courts disagree, for example, on when a defendant should display remorse to obtain redemption. If a defendant delays the display of remorse, does the delay prove genuine remorsefulness, because it followed a period of reflection, or does it express insufficient remorsefulness, because defendant had already shown himself remorseless? Such variance suggests conflicting theories of remorse's induction and its relation to conduct, rendering universality as little consolation to moralists as the cultural universal of belief in God or gods imparts to any specific faith. The jurisdictional differences in conceptualizing remorse suggest using remorse judicially rests on commonality of sentiment or psychological press rather than a judicial or folk-psychological concensus on remorse.

Remorse-based sentencing, unscathed by its scientific irrationality, is embedded in our criminal justice system. Judicial controversy arises only when remorse's use as a sentencing factor adversely affects the exercise of trial rights, such as penalizing a defendant who fails to show remorse while claiming innocence.The jurisdictions, including the federal circuit courts, have split on whether failing to show remorse counts against a defendant before a contested verdict's finality; this practical disagreement concerns whether the courts can hold a defendant pleading not guilty to its standards for remorsefulness. Several federal circuits allow the court to withhold points for acknowledgement of responsibility from the defendant protesting innocence, and according to commentators, the usual practice in such jurisdictions is simply to award or deny points in mitigation based on the plea. (See for example, O'Hear, M. (1997) Remorse, cooperation, and 'acceptance of responsibility': the structure, implementation, and reform of section 3E1.1 of the federal sentencing guidelines. Northwestern Univ. L. Rev. 91, 1507.) The most common argument from courts endorsing these practices is to distinguish these lost points for remorse from a true penalty, because they merely fail to offer a benefit. As the Third Circuit pointed out, no court has shown a principled distinction between withholding a benefit and imposing a penalty, and the U.S. Supreme Court holds that opportunity losses, such as denial of a Government job, are tantamount to penalties, undermining the more moralistic jurisdictions’ perversely formalistic reasoning. (See U.S. v. Frierson (3d Cir. 1991) 945 F.2d 650; Roberts v. United States (1980) 445 U.S. 552, 557 n. 4 ["We doubt that a principled distinction may be drawn between 'enhancing' the punishment imposed upon the petitioner and denying him the 'leniency' he claims would be appropriate if he had cooperated."].)

Because most cases that uphold using alleged remorselessness against defendants contesting charges rest on formal-distinction-without-a-difference subterfuge, the best-reasoned case for using remorse as a sentencing factor, even when it stacks the incentives against the exercise of constitutional rights to trial and against self-incrimination, draws on a line of Supreme Court cases distinct from the penalties cases. In the plea bargaining cases, where defendants contested the validity of plea-bargaining inducements to forgo trial, the Supreme Court found plea bargaining imposed no penalty on defendants exercising their rights. The Fourth Circuit reconciled the apparently contradictory cases by distinguishing the conditions under which loss of a reward was not tantamount to a penalty. The court termed the reward for pleading guilty, offered through plea bargaining, incidental to another purpose: to offer leniency for remorsefulness. (See United States v. Frazier (4th Cir. 1992) 971 F.2d 1076.) But the Fourth Circuit mischaracterizes plea-bargaining, since demanding trial is not a peripheral consequence of judicially-conceived remorselessness but operationally forms its principal component. Demanding trial in many jurisdictions is presumptive and almost conclusive evidence of lack of remorse. (See for example, United States v. Beserra (7th Cir. 1992) 967 F.2d 254, 255 [Guilty plea normally a necessary condition for the reduction.].)

Plea bargaining has been lauded for showing leniency to the remorseful, but the argument for judicial cognizance of defendants’ remorsefulness is weaker than the practice defended. The market for plea bargains is a bilateral monopoly, with the prosecutor enjoying disproportionate bargaining power, and prosecutors will threaten with their draconian options in the name of remorse and personal responsibility. Plea-bargaining, however, can be distinguished from the use of remorse as a sentencing factor by the former's allowing settlement based on the state of the evidence before trial. A prosecutor’s plea-bargaining offer should be a reasonable estimate of the punishment multiplied by its likelihood of imposition, not whatever sentence the prosecutor can coerce a defendant to accept.

You get a sense of how the State Bar plays its remorse card from the prosecutrix's document, “State Bar’s Opposition to Respondent’s Motion for reconsideration and for Immediate Stay,” published in the 21st Installment, where the prosecutrix contends, prior to any determination of guilt, “Aggravating factors include a member’s indifference toward rectification of or atonement for the consequences of his misconduct.” Even under California’s flawed laws on using remorsefulness in sentencing (see People v. Holguin (1989) 213 Cal. App. 3d 1308, 1319 ["Lack of remorse may be used as a factor to aggravate under California Rules of Court, rule 408 unless the defendant has denied guilt and the evidence of guilt is conflicting"]), California has recognized the prosecutrix’s machinations as an impropriety of constitutional dimension, since the California Supreme Court held in People v. Coleman that a prosecutor could not draw inferences for lack of remorse from a defendant’s failure to admit guilt. (People v. Coleman (1969) 71 Cal.2d 1159, 1169 ["We conclude that any argument that failure to confess should be deemed evidence of lack of remorse is not permissible."].)

The remorse factor functions openly in the State Bar Court as a litigation weapon wielded by the prosecution, expressing with less camouflage and sophistication the appetite driving criminal law's moralistic relapse. The conflicts with basic trial rights are not incidental but central to the motives driving the new moralism. The moralists recouped in the sentencing phase what they lost in the guilt phase, when the courts prohibited punishment for asserting the right to trial.

(See also 63rd Installment. Review Department: Remorseless Demagogues Lamenting Remorse's Absence.)