Dr. Colleen Berryessa of Rutgers University writes…

The ways that people show remorse, including apologizing, crying, or “giving back” to others affected by their actions, have been thought to tell us about people’s character, whether they are truly sorry, and if they will change. This is true both inside and outside the criminal justice system, with even little kids learning to show and express contrition to their friends when they have done something wrong. Yet for those charged and convicted for criminal offenses, remorse is often thought to mean much more and tell us about whether they will commit further offenses, be rehabilitated, or deserve a second chance – and this can dictate how judges, and other legal actors and victims involved in the sentencing process in a court of law believe they should be punished.

Indeed, remorse has been considered by different legal movements, including Therapeutic Jurisprudence, as a broad positive, long–term force that can be harnessed by the criminal justice system to fuel a defendant’s rehabilitation, reconciliation with victims, and reintegration into the community. For Therapeutic Jurisprudence, remorse has been thought to be particularly impactful for sentencing, as a tool for bettering therapeutic outcomes for defendants, victims, and society at large. First, remorse can act as “therapeutic guilt” which allows defendants to move from the denial of, to the responsibility for, their bad acts – increasing the likelihood that they will be rehabilitated and reintegrate back into their communities. Second, remorse, and the acts or expressions that come along with it, help to reestablish relationships between a defendant being criminally sentenced and those that have been harmed by his actions, including his larger community.

There is quite a bit of research to suggest that, if a defendant shows remorse, such expressions commonly have positive influences on how he is sentenced, including leniency, less prison time, or alternative sentences. Yet, although remorse has been conceptualized as this two-part therapeutic tool for sentencing in prior work within Therapeutic Jurisprudence, this idea has not been empirically tested – and we still do not know if legal decision-makers in the sentencing process think about a defendant’s expressions of remorse in these ways and whether these views could positively impact their sentencing decisions. I was interested in asking – do decision-makers already draw from principles of Therapeutic Jurisprudence when making their recommendations for more lenient outcomes during sentencing?

 At the same time, although judges are often the legal decision-makers that are “front and center” when we think about sentencing a defendant in court, there are actually many more people involved in making sentencing decisions. Judges, in most cases, actually spend very little time with defendants before or during sentencing. They instead rely on the work of others to learn valuable information about defendants in order to make their sentencing dispositions. Probation officers may be considered one of the biggest unsung heroes in the sentencing process, as they meet with defendants several times, evaluate them, and learn about their cases, in order to write pre-sentencing reports that relay recommendations for judges on what factors should be considered during sentencing. In fact, research shows that judges rely heavily on the recommendations of probation officers during sentencing and that this information is instrumental to them during sentencing.

Building from all of these strands, I was interested in examining whether probation officers consider remorse as a way to achieve therapeutic outcomes during sentencing. I conducted interviews with 151 probation officers from across the United States and wanted to use them to qualitatively develop a process to show the extent to, and ways in which, some probation officers may draw from Therapeutic Jurisprudence when making their recommendations for a defendant’s criminal sentence. This paper was published in the journal Criminal Justice and Behavior.

My work ultimately showed that a significant number of probation officers seek to act as “therapeutic agents” during sentencing in order to improve the outcomes and well–being of those being sentenced, victims, and society. Specifically, they conveyed that when they observe a defendant’s remorse during their meetings, it signals the potential for his rehabilitation (remorse shows “therapeutic guilt” through which a defendant acknowledges wrongdoings, exerts responsibility and shows behavioral change) and potential for his reconciliation (remorse is a device for “rebalancing power” by shifting responsibility for bad acts away from victims and the community to the defendant, who then seeks and receives forgiveness). Both of these factors, they argued, are exceedingly important when considering their recommendations for sentencing. They also fall in line with what Therapeutic Jurisprudence has said about remorse.

Officers said that, in their sentencing reports to the court, they do generally draw from these principles to inform recommendations for sentencing plans that best allow for a defendant’s community reintegration. In fact, they said that, for sentencing to achieve reintegration, a defendant must be given an opportunity to exhibit the rehabilitation fostered via his remorse and also be able to interact with the community he has harmed. Interestingly, officers thought this can often be most effectively done through basic terms of probation that allow defendants to stay, as well as instill reparation and restore social bonds, within and surrounded by their communities as those harmed by his actions. This is some of the first evidence to suggest the ways in which legal decision-makers believe that therapeutic objectives can be achieved within more traditional sentences.

Ultimately, due to their continued contact and interaction with defendants before sentencing, probation officers appear to be in a special position to use remorse as a therapeutic device to shape sentencing recommendations and outcomes. Based on this, and previous work, I argue that types of training or workshops may be a way forward to help officers learn to assess for and track remorse in their clients, in order to better therapeutically integrate it into their day-to-day duties and influential practices for sentencing. This will help foster the potential adoption of Therapeutic Jurisprudence approaches in sentencing as we move forward.

Dr Berryessa’s full paper can be accessed here.

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