The role of remorse in court convictions

The missing passport helped. When Conrad Black was granted bail by a Chicago court two weeks ago, the fact that he lacked the papers to leave the US for his native Canada may have boosted his case; it might even have had Americans warming to him. It’s hard to reconcile the image of a man with nothing but the ID card issued to him by the Federal Bureau of Prisons with that of the defiant and widely reviled high-flying media tycoon who in 2007 was convicted of defrauding investors in his companies out of millions of dollars.

Throughout his 2007 trial, Lord Black was much criticised for the way he vociferously asserted his innocence. Following his conviction, prosecutors requested the harshest sentence available – imprisonment for 24-30 years – in part, they claimed, because his media interviews indicated a “stunning lack of remorse”. “Out of all the defendants,” they argued, “Black has been the most vocal in his lack of remorse and his refusal to recognise the offence … [and this] makes clear that he would engage in the very same conduct again if given the opportunity.”

Black was given a six-and-a-half year sentence, but the focus on his remorse puts him on a similar footing not just to other convicted criminals such as Bernard Madoff and Enron’s Jeffrey Skilling, but to a parade of Wall Street bankers, corporate chief executives and even central bankers who have been hauled before government panels, if not judge and jury, over the past few years. In the wake of the credit crunch and global ­recession, the world wants contrition – and it had better be sincere.

In the Puritan colonies of 18th-century America, public hangings were accompanied by an execution sermon, delivered by a minister who would call on the offender to repent. The repentance, if it came, had no impact on the individual’s certain fate, but was expected primarily for religious reasons and to deter the public from a life of sin and crime. Today that desire, with its religious origins, has become ingrained in justice systems around the world, including Britain’s, but most especially in the US.

In the autumn of 2000, Robert Bierenbaum sat motionless and silent at his trial for the murder of his wife, Gail Katz-Bierenbaum. She had disappeared from the couple’s New York apartment in the summer of 1985, though no body has ever been recovered. With no physical evidence pointing to the accused – an affluent, well-respected plastic surgeon – the case had seemed an uphill battle for prosecutors; but in 2000, Bierenbaum was convicted of murder. Now, at his sentencing, Bierenbaum faced a conundrum: he had maintained his innocence at trial, but in doing so, had shut down the possibility of demonstrating any remorse. “I can only look at the defendant’s cold-blooded behaviour after the fact,” the judge said. “He is not rehabilitated – which means accepting, admitting and expressing remorse. Only then can one expiate guilt.” Instead of the minimum sentence sought by his lawyers, Bierenbaum was imprisoned for 20 years to life.

Bierenbaum’s trial judge was not unique. In the late 1990s, a US group called the Capital Jury Project (CJP) interviewed close to 1,200 people who had served as jurors in death penalty cases, and found that a vast majority of those who had voted in favour of execution said the defendant’s lack of remorse was one of the most important factors in his or her decision. Law professor Scott Sundby of Washington and Lee University, who headed the California portion of the study, says: “Time and time again they would say, ‘Gee, if the defendant had only shown the slightest bit of remorse, we would never have given him the death penalty.’”

Pleading not guilty in a criminal trial can be fraught with risk, then: judges and jurors are more likely to hand down tougher sentences if the offender fails to show remorse, even if they have maintained their innocence. William Bowers, director of the CJP, points out that in a case involving the death penalty, if a defendant maintains his innocence, he has lost his strongest mitigating factor for a life sentence. “To pursue a not guilty verdict and failing means almost certain death.” This amounts to what Sundby calls a “classic damned if you do, damned if you don’t scenario”.

Even in cases where criminals have admitted guilt, remorse still plays a role in sentencing. Andy Fastow, Enron’s chief financial officer at the time of its collapse, pleaded guilty in a plea-bargain with prosecutors and received six years in prison. Jeffrey Skilling, the energy group’s chief executive, faced fewer charges; he pleaded innocent but attempted to demonstrate remorse for the failure of his company (“remorse without wrongdoing”, as he put it during his 2006 trial). The judge appeared unconvinced: he was sentenced to a maximum of 24 years in prison.

It was in the late 19th century, with the move from fixed to indeterminate sentencing, that criminal defendants began to use remorse as a form of currency within the justice system. According to Bryan Ward, a law professor at Ohio Northern University, “legislatures and courts began to view the purpose of punishment to be reforming the offender rather than merely locking them away”. As judges became responsible for setting minimum and maximum prison terms, remorse became a preferred indicator of an offender’s potential for rehabilitation – although more than a century later, no link between remorse and rehabilitation has ever been established.

What does that missing link say about society’s current craving for remorse from its white-collar criminals – or, more tellingly perhaps, from leaders whose companies or institutions may have made mistakes that lead to economic or environmental turmoil? Do apologies for the banking crisis, made by the former heads of UK banks before the Treasury Select Committee, mean that the banks will never make mistakes again? Did Tony Hayward’s perceived failure to express real contrition before a similar committee mean BP will fail to address the safety measures that led to the recent disaster in the Gulf? The answer to both questions must be “no”.

Remorse itself is a slippery concept to pin down, of course. The question as to whether someone genuinely feels regret and contrition is a highly subjective one. The most remorseful of defendants may not be skilled at articulating their emotions, for instance; or they may feel remorse but find it undignified to talk about the fact; or they may, as many speculated was the case with Tony Hayward, run up against cultural barriers and misunderstandings. Race, age and background can also have profound effects on self-presentation.

Richard Nygaard, a US appeals judge based in Pennsylvania, spent eight years on the bench overseeing criminal trials. The accused were often young black men who appeared sullen and arrogant. “I’d think: ‘Who are you, to look on this court in this way?’” he recalls. But he later realised that these were often instances of a “person trying desperately to maintain his own dignity, his ‘personhood’, perhaps willing to risk the wrath of the court to maintain it”. According to the CJP’s review of 74 capital cases involving a black defendant and a white victim, black jurors were more likely to believe that a black defendant was remorseful and white jurors were more likely to say that a black defendant had “not even pretended” to be sorry.

According to John Harding, former chief probation officer of the Inner London Probation Service (now the London Probation Area), a demonstration of remorse at trial can often depend on the defendant’s mental state. In the UK, most murders are committed by youths under 21 years old and, he says, “remorse is not necessarily an emotion that is very evolved with these individuals”.

This might help explain the much commented-upon behaviour of Amanda Knox, the young American student convicted by an Italian court last year of murdering her roommate, Meredith Kercher, in 2007, when Knox was 20 years old. Knox was widely criticised for her lack of remorse, a lack that was proven – so the argument goes – by her performing cartwheels at the police station after being brought in for questioning. Although Knox maintained her innocence at trial, her failure to appear sufficiently contrite was frequently cited. Prosecutors have now filed an appeal against the 26-year jail term she received, arguing it is too lenient, reportedly in part because she showed no remorse.

White-collar criminals present a whole host of other problems. Scott Greenfield, the lawyer who defended Robert Bierenbaum, says that these offenders are often the most difficult to defend because, for so-called masters of the universe, expressing emotions such as remorse means losing “the last vestige of dignity they have control over”.

And Richard Weisman, a sociologist at York University in Toronto, says that in his research of different legal systems, he frequently encountered the view that “remorse is weakness”. Expecting a defendant to show remorse, he says, amounts to “a ritual of humiliation”.

Of course, there may be crimes so violent or vicious that remorse shown by the defendant has little or no impact on punishment: recent research by the CJP reveals that this is the only situation in which remorse has little effect on a jury’s decision to vote for a death sentence.

In the context of white-collar crime, Bernard Madoff’s $65bn Ponzi fraud might be an equivalent. Despite Madoff’s expressions of regret and remorse he received a 150-year prison sentence – a sentence whose duration was in part influenced by the extraordinary volume of letters and e-mails that Madoff’s victims sent the judge.

In Britain, even though the Sentencing Guidelines recognise defendant remorse as a potential mitigating factor, individuals working within the system say that it receives relatively little emphasis in trials. A study published in June last year for the Sentencing Advisory Panel found that more people think a defendant’s remorse should never result in greater leniency than think it always should.

It is at the probation stage that an offender’s remorse becomes more important. Prisoners can participate in a number of programmes in jail – such as anger management and drug addiction treatment – aimed at getting them to think about what they have done, why, and the impact of their actions on their victims.

John Harding believes that once a prisoner has been through this ­process, a demonstration of remorse at a parole hearing or at any point during incarceration is a “strong predictor” of a prisoner’s ability to reintegrate into society. A prisoner who maintains his innocence while serving his sentence, and who does not demonstrate remorse, is probably going to spend more time in jail. “Remorse,” says Harding, “is a key trigger to change.”

If legal practitioners recognise that concentrating on wrong-doers’ remorse is problematic, why is society fixated on it? The Financial Services Authority has started citing an individual’s remorse in enforcement notices. Prior to 2009, the concept rarely came up. And that mirrors the bigger picture – of a society eager not just for inquiries and investigations following bankruptcies, oil spills and economic meltdowns, but for public contrition on the part of the people responsible.

“The law mirrors what goes on in more informal social groups and remorse is part of all relationships across a multitude of situations,” according to Weisman. “Emotions are not just individual. They are closely monitored by society. If we don’t show remorse, we are [seen as] ­betraying the community.”

But just as some people in the world of criminal justice are pushing for less emphasis on remorse, perhaps political and social leaders should, too. Less attention spent on whether the Conrad Blacks and Tony ­Haywards of the world feel remorse might help us focus on developing meaningful safeguards against the next fraudulent – or merely foolish – debacle. In other words, it may be time for society to insist on a change: for its most powerful citizens to stop asking for forgiveness – and to start asking permission.

Julia Apostle is the FT’s senior legal counsel

Copyright The Financial Times Limited 2017. All rights reserved. You may share using our article tools. Please don't cut articles from and redistribute by email or post to the web.