Showing remorse: reflections on the gap between expression and attribution in cases of wrongful conviction.

• Author: Weisman, Richard

In a recent news item, which reports on the sentencing of two men who were convicted of the sexual abuse of young male hockey fans at Maple Leaf Gardens, the judge is quoted as drawing a distinction: "Mr. S. expressed remorse, began work on his rehabilitation while in custody before sentencing, and pleaded guilty. Mr. R., on the other hand, continues to protest his innocence on every single charge, calls his victims liars and denies ever having had sex, or even a sex drive" (Gadd 2000: A 19).

I cite this vignette because it is so transparent in its dichotomizing of those who have been found guilty. It illustrates the way in which the courts and the media establish a moral hierarchy that defines those who have violated the norms of the Criminal Code. Those who are believed to regret their actions are viewed as more worthy, more deserving of compassion, and more entitled to mitigation than those who have violated these norms but are perceived as not regretting their actions.

Long before their vindication, if vindication ever occurs, the wrongfully convicted are designated as persons who lack remorse and are differentiated from those characterized as having remorse. This paper looks at the impact of this designation on the identity and disposition of those who have been wrongfully convicted--or what Erving Goffman meant, some 40 years ago, when he introduced the concept of the "moral career" (Goffman 1961: 128). In effect, my focus is on how inclusion in the category of the unremorseful affects how the wrongfully convicted are regarded and how they are treated. For purposes of this analysis, I will draw on both Canadian and American data.

The impact of this designation (as remorseful or unremorseful) derives from both its scope--the extent of its use--and its content--what it comes to signify about the persons to whom it is applied. It has been recognized for some time, although the phenomenon is surprisingly under-researched and unexplored, that attributions of remorse or its absence play an important role in decisions affecting sentencing and parole In both Canada and the United States (O'Hear 1997). Recent developments have increased its significance and have also attracted greater scholarly interest. (2) It is now understood that attributions of remorse weigh heavily in jurors' decisions over whether or not to impose the death penalty in U.S. capital cases. Moreover, these attributions may be the most important factor in how jurors, in the bifurcated capital trial, decide who among the convicted should be executed. (3) A continuing research project set up in 1993, the National Capital Jury Project (using a sample of 1,155 real jurors from 340 capital trials in 14 states), has been investigating how, among other considerations, jurors determine whether or not someone is remorseful (Bowers 1995; Sundby 1998). Given that there is so much at stake in whether or not remorse is present, it should not be surprising that the process by which expressions of remorse are validated or invalidated has been the subject of frequent and intense legal contestation.

A search on LexisNexis reveals over 1,000 legal actions in the death penalty phase between 1995 and 2002 in which the convicted person's remorsefulness or its absence was an issue. Perhaps the most conspicuous acknowledgement of the crucial role of remorse in death penalty decisions occurred in a U.S. Supreme Court Decision in 1992, Riggins v. Nevada. In this case, a man who had been sentenced to death was allowed a retrial, due, in part, to the fact that the medication he received for his depression may have hampered his ability to express remorse. As Justice Anthony Kennedy observed in a concurring opinion, "... as any trial attorney can attest, serious prejudice could result if medication inhibits the defendant's capacity to react to proceedings and to demonstrate remorse or compassion. The prejudice can be acute during the sentencing phase of the proceedings, when the sentencers must attempt to know the heart and mind of the offender" (Riggins at 1824).

In the Canadian context, the recent impetus for increased concern over the impact of attributions of remorse has come from two sources. The first reflects a partial shift in the language of sentencing practices. In this instance, a retributive approach has given way to a model of restorative justice, where expressions of remorse play a role in whether to impose conditional sentences (R. v. Proulx (4)). The second is the recently mandated inclusion of a pre-sentence report under s. 721(3)(a) of the Criminal Code, to assist the court in imposing an appropriate sentence: It prescribes that the "willingness to make amends" be included in the report unless specified otherwise--this phrase has now been interpreted as "tantamount" to requiring an evaluation of whether or not the offender shows remorse (Comment, R. v. J.M. 1998). This represents an expansion in the use of these reports beyond what was provided for in the earlier section that s. 721(3)(a) replaced, which had mandated these reports only if required by the court. (5)

Equally important, imputations of remorse play an indirect role as components of other types of attributions that also contribute to the moral ordering of convicted offenders. The absence of remorse has been widely viewed as one of the diagnostic indicators of both psychopathy and antisocial personality disorder. Given that remorse now constitutes one of the items on the increasingly used Hare psychopathy checklist (Harris, Skilling, and Rice 2001), many of the decisions premised on the classification of the offender as having these disorders are, in part, judgements about the offender's remorsefulness. Specifically, this occurs in cases where determinations regarding dangerous offender status are made or the offender is considered for parole eligibility at such major events as section 745 hearings, so-called "faint hope" hearings. (6) A canvassing of Canadian case law through LexisNexis shows that, of 558 references to psychopathy or antisocial personality from 1995 to 2001, 203 also made reference to the defendant's remorse or its absence. Hence, a full evaluation of the scope of the attribution of remorse must necessarily include its indirect as well as its direct bearing on decisions affecting those who have been convicted of crimes.

However, even an appreciation of the indirect use of attributions of remorse fails to reveal the breadth of its full application in law. Legal discourse incorporates other specialized discourses that are similarly focused on the remorse of the offender, albeit from different, if complementary, perspectives. From the standpoint of various psychotherapeutic approaches, experiencing remorse is viewed as a necessary stage towards behavioural change (Greenberg and FitzPatrick 1989: 35). From the standpoint of Christian theology and other faiths, expressions of remorse in the form of contrition or repentance may constitute a precondition for forgiveness or even salvation. While an analysis of the sources of this institutional convergence is beyond the scope of this paper, what is important to understand for present purposes is that once a person has been convicted of a crime, multiple pressures can be brought to bear on the purported offender regarding attributions of remorse. Such attributions are used to establish not only whether the person is at risk of reoffending, but also whether they are psychologically fit, or even whether they are deserving members of their faiths.

To understand the impact of this designation, it is even more important to consider what it signifies and how it is imputed. On the one hand, the works of Erving Goffman and Nicholas Tavushis suggest that expressions of remorse are similar to apologies, in that they both constitute what Goffman refers to as remedial exchanges. These exchanges are said to re-establish relations between a person who offends and a person who might otherwise remain offended (Goffman 1972: 113-118). Both forms of communication entail a splitting of the self into a part that has offended and a part that agrees that the offending act was morally unacceptable. This joining with the other in mutual rejection of the offending act helps to re-establish the offending party as a member of a common moral community (Tavuchis 1991: 7-8). For present purposes, it follows that people who are believed to have offended but who refrain from expressing remorse or offering an apology fail to re-establish themselves as members of the moral community and fail also to invite the victims' forgiving responses, responses that may, in turn, lead to reconciliation.

On the other hand, the fact that legal discourse claims, contests, and scrutinizes remorse, rather than...