In an article titled, Remorse & the Criminal Justice System, Susan A. Bandes of DePaul University College of Law argues the need for more studies on whether and how a defendant’s remorse can be accurately evaluated.
Picture this: a defendant facing heinous criminal charges silently sits in the courtroom next to his attorney while victim after victim sobs their way through testimony on how their lives are forever ruined by his actions. It happens every day in courts across the United States.
We think, “How can he be so cruel? Look at him! He shows no emotion! Why isn’t he remorseful?
Law professor Susan A. Bandes examines this very question in her very powerful article. She acknowledges that although a defendant’s failure to show remorse is one of the most powerful factors in criminal sentencing, including capital sentencing, there is currently no evidence that their remorse can be accurately evaluated in a courtroom.
“Remorse, if it is to continue to play an influential role in criminal justice, must advance some legally legitimate purpose,” she argues. “It must be capable of being identified with reasonable accuracy.” Furthermore, she argues, if a criteria for measuring remorse cannot be given, remorse should be banished from the deliberative process altogether.
At the same time, however, Professor Bandes argues that the notion of banishing remorse from the deliberative process carries its own problems.
Professor Bandes concludes that reforms should consist of educating and guiding decision-makers about how to evaluate remorse:
“If it is established that remorse cannot be reliably read via facial expression and body language, judges can so instruct juries, and expert witnesses can testify to that effect. For example, experts could testify about what we know—and do not know—about using facial expression to evaluate various emotions. In addition, experts could testify about particular barriers to evaluating remorse, such as race, ethnicity, cultural assumptions, juvenile status, and mental disability. Judges can also be educated by expert witnesses and in judicial conferences.”
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.