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Mass Incarceration and Remorse

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(photo: the governor's office)

Dallas Police Officer Amber Guyger faced up to 99 years for killing her neighbor, Botham Jean, in his own home. According to most observers, the forgiveness offered by Mr. Jean’s 18-year-old brother in his victim impact statement, capped by his request to hug Ms. Guyger, was the key reason why the jury settled on 10 years, a far lower number than even the 28 years urged by the prosecutor.

However important a role forgiveness played in the jury’s decision to spare Guyger decades behind bars, according to interviews with some of the jurors an even greater factor was Guyger’s expression of remorse during her trial testimony: “I’m so sorry,” she said. “I never wanted to take an innocent person’s life...I wish he was the one with the gun that killed me.”  

The role of remorse in sentencing and punishment was a central theme of the recent Parole Summit organized by the Lifers and Longtermers Organization at Otisville Correctional Facility in New York.

In years past, the Summit focused on the parole process itself -- the parole interview, the parole decision, and appeals from parole denials -- and yielded suggestions for reforming an unforgiving system. But this year, the lifers decided to look inward, and bring to the forefront conceptions of restorative justice, victim centered awareness, and individual transformation.

The overarching emphasis on healing led inexorably to exhortations for offenders to gain insight into what led them to their crimes; to reflect on the motivations for their behavior. Many of the day’s speakers stressed that the lifers had to accept responsibility for the harm they caused, and to develop and express authentic contrition in order to promote healing for themselves as well as for their victims.  

Criminal legal systems place a premium on remorse. Studies here and abroad have shown that remorse is the most commonly named mitigating factor for a reduced sentence, and perceived lack of remorse often leads to an enhanced sentence. Remorse is specifically and instrumentally relevant to the Parole Summit – most states allow parole boards to consider a person’s insight and remorse when deciding whether to grant parole, and parole boards typically probe those areas in depth at parole interviews. Many lifers have been denied parole based on a perceived lack of genuine or sufficient remorse.  

Many rationales explain the outsize role remorse plays in sentencing and punishment. Sincere remorse as a sign of moral improvement suggests that the person has been rehabilitated and no longer poses a danger. Expressions of remorse also have a confessional aspect and are preconditions to receiving understanding or forgiveness. Remorse also serves as an apology to the victims and restores a measure of dignity that the crime violated.  

But remorse is an emotion. Can anyone accurately evaluate whether a statement of remorse is genuine or self-serving? Typically, determinations of the authenticity of remorse are made by judges and members of parole boards who lack any training or special competence in assessing the complexities of human emotions. How do these evaluators distinguish remorse from guilt or from shame, or just generally decide whether a person is being sincere? Some people are better able to verbalize their feelings than are others, and cultural differences surely influence evaluations of remorse. How is remorse gauged when a person professes their innocence?  

Studies show judges disagree about indicators of remorse – behavior that indicated remorse to some suggested remorselessness to others. Research has debunked the notion that remorse can be evaluated by words used, non-verbal cues, attitudes, and demeanor.    

The many lifers denied parole for alleged inadequate contrition recognize that their words are necessary but not sufficient. It is too easy for words to be dismissed as uttered only in the hope of obtaining freedom. Instead, lifers want their remorse to be judged by their actions and deeds as well as by their words; by the affirmative steps they have taken while incarcerated to try to make amends for the harm they caused.  

The reality of the enduring impact of remorse revealed a fundamental irony as the lifers listened patiently and attentively to remarks from prosecutors, members of the parole board, elected officials and others. While all the speakers talked about their reforms and self-defined progressive policies, something was missing.

Seated silently next to me was a man serving 50 years to life as a high-ranking prosecutor from the office that prosecuted him talked about all his office is doing in progressive criminal justice. Another man at my table who has been denied parole six times listened stoically as a parole board member talked about the virtue of accepting responsibility and expressing concern for victims – something the man has done to no avail at every one of his six parole appearances

By now, most people agree that prosecutors and those connected with law enforcement were the primary architects of mass incarceration. Yet what was sorely lacking from the speakers extolling the righteousness of victim-centeredness and offender accountability was any acknowledgement and acceptance of their individual, or their office’s, responsibility for the blight of mass incarceration. There was nothing said that remotely resembled insight, remorse, or apology.  

And while words matter, in the end, just as lifers beg not to be judged solely by the words they utter in a brief and nerve-wracking parole interview but by their actions over the past many decades -- the things they have accomplished in prison and the men and women they have become -- law enforcement actors should be similarly judged.

Words matter, they are necessary if there is to be any reconciliation for past harms, but ultimately actions speak louder than words. If those who caused the crisis of mass incarceration and resultant decimation of families and communities cannot bring themselves to publicly accept responsibility and offer contrition to the tens of thousands of men and women serving life and massive long-term sentences, they can at the very least show their genuine and authentic remorse by taking every necessary step to secure their release.

Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.

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