Remorse and Punishment: Approaches, Problems, and New Ideas

Abstract: Prisoners’ rights advocates justifiably seek to combat the seemingly ever growing institutions of punishment and increasing incarceration rates in the United States specifically, and the modern state more generally. Any policy with even the modest appearance of potential to reduce punishment is embraced, sometimes uncritically. One such practice is dangling the possibility of less punishment for criminal offenders than they might otherwise deserve if those offenders publicly express remorse for their crimes. I argue that this practice places all criminal offenders under pressure to become remorseful or at the very least express performative remorse. This pressure is enhanced with a threat of violence such that it is theoretically indistinguishable from coercion. Coercion of criminal offenders into adopting a political or moral stance is an assault on their basic human dignity and constitutes a harm that is distinct from punishment itself; one that the state may not justifiably impose. This practice may also have the unintended or unacknowledged effect of increasing the palatability of punishment overall. From this framework flow contentions about the criminal law more generally, including: the inherently political nature of the criminal law; limitations on its legitimate reach due to that nature; the way the criminal law works to maintain existing power dynamics and/or mask inequalities; and whether principles of restorative justice might point to a different approach to remorse in the criminal law context. Finally, I distinguish my approach from a similar call to limit considerations of remorse in the context of punishment. The distinction between sincere remorse and performative remorse has attracted the attention of cognitive scientists who question whether judges and juries are capable of distinguishing the two. Some argue in favor of supplementing or even replacing judges and/or jurors with emerging technology (e.g. fMRI examinations) and expert interpretation thereof. I argue these calls are misguided. Concepts like remorse, sincerity, and deception should not be reduced to what is measurable, determinate, and generalizable in the context of the criminal law where the norms are created by communities and are necessarily reinterpreted collectively and subjectively on a case by case basis