Remorse Is a Terrible Way to Decide How Long Someone Should Go to Jail

So why do we think it says anything about guilt, shame and whether or not the defendant will commit another crime?

Last November, convicted serial rapist Bill Cosby granted an exclusive interview with Black Press USA. As you can imagine, much was said, little of which was of any consequence save for one quote that always strikes a nerve in the grand human conscience. “I have eight years and nine months left,” Cosby told Black Press USA. “When I come up for parole, they’re not going to hear me say that I have remorse.”

In other words, Cosby — accused by more than 60 women of rape, sexual assault, sexual battery and other sexual misconduct — isn’t sorry. As a result, any hope Cosby might have had for lessening his 10-year prison sentence for drugging and sexually assaulting Temple University director of basketball operations Andrea Constand at his home in 2004, is pretty much dead. Which is fine — even for the best. But it raises the question: How much does remorse really factor in to the scope of criminal justice?

According to Rocksheng Zhong, a lecturer in psychiatry at Yale who has studied the role of remorse in criminal law, its application has a long history, dating back to the early days of British common law. “It’s more a legal tradition than explicitly stipulated in state or federal statutes,” he says. In fact, in the entire scope of federal sentencing guidelines, the only place that the concept of “remorse” is so much as alluded to is in the section on “acceptance of responsibility.” “Acceptance of responsibility gets you a few points toward mitigation,” says Zhong. “Sometimes judges will put remorse in that category. When you show remorse, that’s an indication that you’ve accepted responsibility. And so, if they’re going to use the federal sentencing guidelines, you might get credit for that.” 

To be clear, getting “credit” for accepting responsibility — showing remorse — is a major factor for getting a lesser sentence, says Susan Bandes, a scholar in the areas of federal jurisdiction, criminal procedure and civil rights, and more recently, a pioneer in the emerging study of the role of emotion in law. The obvious benefit of showing remorse for your alleged crimes, then, is that it could help you spend less time in jail. The major issue with this — besides the fact that you obviously have to plead guilty in the first place — is that since there are no legal statutes specifically stipulating how a judge should evaluate remorse during sentencing, the decision is largely left to the judge’s discretion, which inevitably results in an inherently uneven assessment of remorse between cases. 

For example, in Zhong’s study, 23 sitting judges in the Connecticut State Superior Court Criminal Docket were interviewed on the subject of remorse. The participants were “asked a series of open-ended questions regarding their experiences with remorse in their legal practice, the role remorse plays in court cases and the courtroom setting and how they assess and use remorse at various stages of the legal process,” according to the study. “The interview concluded with questions regarding the evaluation of genuine versus feigned remorse and the possible effect of mental illness on defendants’ ability to experience and express it.”

The extremely disquieting results determined that “the judges expressed no uniform view about remorse or about the nature and extent of its role in judicial decisions,” per the study. According to Zhong, some judges responded that they may be looking for specific words: “One judge said that he wants to hear, ‘I understand the pain I’ve inflicted,’” says Zhong. “While another judge wants to see something that actually convinces him that you feel the pain yourself. There’s a whole lot of different formulations that individual judges were looking for.”

Perhaps more worrisome, the study found that judges believe they can “see it [remorse] in people’s faces and body language,” says Zhong. “Our study found that, for example, half the judges said I can tell if someone is remorseful if he’ll look me straight in the eye. The other half said, I can tell who’s remorseful if he looks down at the floor and doesn’t look at me arrogantly.”

If both of these approaches seem like bullshit to you, then congratulations — you’re indeed a better judge of human behavior than the average superior court judge. Bandes, who has actually scoured all the studies to do with reading emotion from demeanor, tells me that it’s “not at all clear how many emotions you could accurately read from demeanor in the first place. But there’s absolutely no evidence that you can read remorse from demeanor.”

Despite this, Bandes says there’s a great deal of evidence to suggest that in capital cases, remorse is one of the top three factors that determines whether somebody is sentenced to death. “What you have to understand here that’s really interesting is that capital defendants generally don’t testify at all,” she says. “So what we’re talking about now is a judge and jury basing their decision on watching the face and body language [of a defendant].” 

This unmonitored judicial discretion further subjects an already overtly racist (or in the absolute best-case scenario, unconsciously biased) legal system to even greater instances of racial inequity, according to Bandes. “There was one study where a Black juror and a white juror, looking at the same Black defendant, had completely different reads on whether he was remorseful,” she says. “The Black juror thought he was [remorseful], and the white juror thought he was arrogant and cold. There’s just a lot of studies that show that when we’re with people who we feel are a lot like us, it’s easier for us to pay attention to subtle differences than when they’re not.” Case in point: A 2017 U.S. Sentencing Commission found that “Black men serve sentences that are on average 19.1 percent longer than those for white men for similar crimes,” reports ABC News

But it’s not just race that has an unfair influence on the way remorse affects federal sentencing. According to Bandes, subconscious feelings of class solidarity can also influence the way in which a judge assesses the extent to which a person is remorseful. “If you’re a white judge who went to Stanford and you have a white Stanford swimmer in front of you, you might be very sensitive to what he’s going to lose,” says Bandes, citing the case of convicted rapist Brock Turner, who received a six-month sentence in county jail in 2016 — far less than the six years prosecutors had asked for — because the judge felt that a longer sentence would have “a severe impact” and “adverse collateral consequences” on Turner. “My friend Nicole Gonzalez Van Cleve, who wrote a wonderful book called Crook County: Racism and Injustice in America’s Largest Criminal Court, about the Cook County Court [in Chicago], talks about this idea that a lot of the Black defendants aren’t perceived as having a bright future,” Bandes continues. “That seems to be connected to this idea of how remorse is assessed.”

With so many clear and present failures in issuing sentences based on perceptions of remorse, why, then, do judges continue to assess individuals based on their emotional inclinations? Bandes believes there’s basically two things going on here. “One is that they believe that remorse is connected to lower recidivism,” she says. “They believe that a remorseful person is less likely to commit another crime.”

The issue with that explanation, says Zhong, is that it’s been largely proven to be false, particularly in the realm of domestic violence. “The classic pattern for domestic violence is that the offender — usually it’s a guy, usually the victim is a woman — attacks his or her spouse or a loved one and after the attack feels very remorseful, and genuinely so,” says Zhong. “He says, ‘I’ll never do it again. This is going to be the last time. I’ll make it up to you.’ And at that moment, they 100 percent mean what they say. But a few days or weeks down the road, they attack their spouse or loved one again, even though they were remorseful two weeks ago. So remorse in that situation isn’t at all predictive of whether or not they’ll attack their spouse again.”

To that end, Zhong says that while there are some studies investigating how effectively people can detect remorse, specifically looking at whether people can detect between feelings of guilt and shame, there was no evidence in any of those studies that people could consistently detect the difference between the two feelings. “The problem there is that guilt and shame are predictive in opposite directions of re-offending,” says Zhong. “Shame being a predictor of re-offending and guilt being a predictor of less likelihood of re-offending.” Which is to say that using remorse — especially such an unscientific reading of it — to anticipate recidivism is patently absurd. 

The second reason judges continue to assess remorse during the sentencing phase of a trial, according to Bandes, is that most everyone wants to believe that accepting responsibility in a remorseful way “is a kind of statement that this is not who I really am.” “If I did this thing, it was an aberration,” says Bandes. “I think that’s a very deeply held human feeling — that we want to hear remorse, in part, as a way of being reassured that people understand that they deviated from a norm, and that they’re going to try to be better.”

But if that’s the case, Bandes wonders why we stop thinking about remorse after sentencing. She cites the case of Karla Faye Tucker, who was sentenced to death for killing two people with a pickax during a burglary.She was on death row for 10 years,” says Bandes. “To the extent that we can tell, she was extremely remorseful and had really turned her life around. But that didn’t count. The fact that we have 10 years of evidence of what happened to her on death row, when she actually had time to come to terms with her crime, doesn’t count toward remorse. So if we really care about remorse, we’d understand that remorse unfolds slowly. So why say it only counts at the time of sentencing?”

One time this does come up, of course, is during parole hearings. Bandes explains that parole boards do offer an opportunity to re-examine a person’s values, but even then, there are limits as to how much a parole board will take remorse into account. “In a lot of cases, someone might be genuinely remorseful, but since the parole board will hear from victims again during the parole hearing, they may decide that it doesn’t matter how remorseful the person is, their crimes are unforgivable,” says Bandes. “And all the things that could go wrong with sentencing, like evaluating facial expressions and all the implicit and explicit biases, are also true of parole hearings.  

To her point, just last year, Robert Dennison — who was appointed to the parole board in New York in 2000 and went on to serve as the board’s chairman from 2004 to 2007 — admitted to the New Yorker just how complicated it can be to interpret remorse.  “We’re supposed to measure remorse, but it’s kind of hard to do that,” he said. “So you try to see if they’re really sorry for what they did, or if they just think they’re a victim being caught up in the system, or they just want to tell you what they think you want to hear. It’s certainly not a science. It’s very subjective, and sometimes we make mistakes.”

Zhong, meanwhile, doesn’t believe that an apparent absence of remorse should be a consideration in the criminal justice system because, amongst the various racial inequities it helps proliferate, it also doesn’t take mental illness into account.  “Somebody with a serious mental illness, like schizophrenia or major depressive disorder, or a neural developmental problem like autism or intellectual disability, may show remorse very differently as compared to how someone in the general population might show remorse,” says Zhong. “And if you don’t adequately account for those problems, you might misunderstand that person, and thereby, judge them more harshly than you should.”

Though Zhong doesn’t have specific data on such cases, he does tell me that there’s a lot of literature showing that persons with mental illness are overrepresented in the prison population. “People with mental illness end up in the criminal justice system disproportionately,” he says. “Some people call this transinstitutionalization.” He’s referring to the concept whereby people with mental illness were, in the 1960s and 1970s, removed from psych wards in an effort to improve the treatment and quality of life for the mentally ill — also known as the deinstitutionalization effort. But because they didn’t receive the community care that people with mental illness were supposed to get, they largely ended up in prisons.

The irony with the whole idea of being able to spot genuine remorse in offenders, says Zhong, is that sociopaths and people with antisocial personality disorders are often very effective at feigning emotion. “So the one group of people who almost certainly have very little remorse might be the one group that’s very effective at faking it,” he explains.

So is there any hope for remedying the vast inequalities caused by the current approach? According to Bandes, there used to be. “A number of years ago there was a lot more indeterminate sentencing — sentence ranges where people would revisit how long a sentence would be, more often,” she says. According to a 2011 paper by Michael M. O’Hear, a nationally recognized authority on criminal punishment, indeterminate sentencing “fell into disrepute among theorists and policymakers in the last three decades of the 20th century.” Predictably, per, this occurred because determinate sentencing became seen as a “tough-on-crime” system due to its mandatory minimum sentences, a popular policy amongst lawmakers throughout the 1970s and 1980s. 

Additionally, O’Hear notes in his paper that the reduction in indeterminate sentencing “had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970s.” In other words, the system became less concerned with rehabilitating convicted felons than it was with keeping them in cages. 

For that reason, Bandes believes that until we take rehabilitation more seriously, “and take more seriously a person wanting to atone for actions,” remorse will continue to be both gauged and utilized incorrectly. And those who legitimately deserve a second chance will continue to be denied it.