Bioethics Blogs

Should remorseful offenders be punished less harshly?

New Book: ‘Remorse, Penal Theory and Sentencing’ (Oxford: Hart Publishing)

If an offender is genuinely remorseful about the crime she committed, should she receive some small-but-non-trivial mitigation of her sentence? – i.e. should she be punished a little bit less than she would have been had she not been remorseful? In many jurisdictions, including England and Wales, this practice is written into the sentencing guidelines that judges have to follow. However, it is difficult to see how this practice can be justified, and intuitions about the relevance of remorse to criminal sentencing seem to vary wildly.

One first obvious concern is that it can be difficult to know whether an offender’s remorse is genuine: is she just pretending in the hope that her sentence will consequently be somewhat lighter than it would otherwise have been? Whilst the possibility of simulation indeed presents a practical challenge, the prior question is whether an offender’s genuine remorse should matter at all. Should judges try to determine whether an offender is remorseful and, if so, with what consequences?

The relevance of remorse is most difficult to reconcile with retributive penal theories. Such theories are said to be ‘backwards-looking’; they look at the gravity of the offence committed to establish the proportionate quantum of punishment deserved by the offender. Occurring after the event, the offender’s remorse does not seem to have any bearing on this assessment. The offence cannot be undone by the offender’s remorse. ‘Forwards-looking’ Consequentialist justifications of punishment might, in contrast, more easily account for the relevance of remorse.

The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.