63rd Installment. State Bar Court Review Department: Remorseless Demagogues Lamenting Remorse’s Absence
The California State Bar Court's Review Department is prone to apply a remarkably totalitarian standard in assigning aggravations to offenses: it assigns an aggravation for lack of remorse if respondent denies his culpability. (See Rules Proc. State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.2(b)(v) [standards for aggravation].) The Review Department is apt to play this mean trick when it wants to affirm the Hearing Department's discipline but can't justify it fairly. The Review Department may further contend that respondent's theory of the case shows respondent is apt to re-offend. Aspersions on the political motives of judges — who, as elected officials, no doubt have political motives — the Review Department receives clinically, as symptoms enhancing the likelihood of repeating. These holdings ignore California law, as California prohibits using a not-guilty plea as evidence of absence of remorse. (People v. Coleman (1969) 71 Cal.2d 1159, 1168.) California law, unfortunately, allows using absence of remorse as a sentencing factor. The hypocritical attitude toward remorse is one of the worst examples of the rampant formalism in criminal law. Remorse is well suited as entry point for the bleakest expressions of the State Bar's show-trial mentality.
The nearly universal practice of using remorse for sentencing intrudes an unctuous sentimentalism into the courtroom. Where is respect for truth when the criminal court punishes honesty and rewards hypocrisy? This regressive parentalism infantilizes participants. Absence of remorse is said to predict recidivism, but defenders of remorse-based sentencing don't present data to support this claim. In natural settings the truly remorseful prove themselves free of that developmental absence of morality termed psychopathy, but psychopaths are often skilled actors. A persuasive show of remorse is too ambiguous for assessing defendants' intractability.
Criminal defendants who plead not guilty, as opposed to those who show their lack of remorse despite a guilty plea, are more likely to repeat and are harder to rehabilitate, but just where remorse is predictive, its use is illegitimate. To require remorse of a defendant who claims innocence violates due process at its foundation, the right to be heard. A defendant doesn't exercise this right when the state puts gun to his head and tells him what to say.
Some courts hold that, after the court convicts him, it can penalize the defendant for lack of remorse if he still denies guilt. But even in the sentencing phase, a defendant can maintain that the high likelihood his conviction was error mitigates the offense, and as it is illegitimate to demand that a respondent claiming innocence show remorse, it is also illegitimate to demand that one admitting guilt acquiesce to the state's view of his offense. Either restriction fetters defendants' arguments.
Sentencing based on whether defendant shows remorse is a common-law inheritance that should be invalidated on constitutional grounds. Criminal-court jurisprudence bases controlling distinctions on where in the trial sequence the court applies a standard, but only in the mind of a formalist lawyer (or a nonprofessional who accepts folk ideology as truth) is there a difference in principle between charging a person for a thought crime or increasinng a sentence for a subsequent thought crime.
Any constraint besides persuasiveness on the content of a defendant's courtroom speech limits persuasiveness by penalizing its straightforward pursuit. A constraint on defendants' and respondents' persuasiveness in the courtroom violates their right to be heard.
(See also 33rd Installment. Remorselessness.)