Nick Smith in Aeon (Photo by W Eugene Smith/Magnum):
Apologies interact with the law in strange ways. Let’s start with criminal law. The modern penitentiary originated in the 18th century as a place of penance: it was where society sent its outcasts to study their Bibles, experience quiet self-alienation, hear the word of Christ, and repent. Less has changed than you might think.
Between 90 and 95 per cent of all criminal convictions in the US result from guilty pleas rather than jury trials. In many if not all of the millions of cases in the US criminal justice system, courts determine punishments in part based on their sense of whether the offender is remorseful or not. We might wince at the idea of secular states engaging in the ‘soul crafting’ of the original penitentiaries, but we still expect state agents to divine the essence of the offender’s nature and offer a suitable punishment based on her badness. We are, in other words, still in the grip of old spiritual traditions. And that leaves us with an old problem.
Findings of remorse in criminal contexts typically occur in the star chambers of intuition. State officials consult their gut feelings, evaluate a few emotional cues and then render a (typically unappealable) decision about the offender’s character. On the whole, they do not explain why they find an offender’s remorse compelling. They do not disclose or defend their standards of contrition. The US Federal Sentencing Guidelines attempted to add some consistency to punishments by allowing reductions in sentences for those who ‘accept responsibility’, but, in practice, accepting responsibility has come to mean agreeing to a plea even while denying guilt. The US Supreme Court has ruled that remorse can determine whether an offender lives or dies, yet we entrust such determinations to ‘know it when I see it’ standards, as if judges and juries can look into the eyes of offenders, intuit the depths of their evil, and punish accordingly.
This discretionary latitude has predictable consequences. Regardless of their blameworthiness, rich offenders tend to get more credit for their remorse than poor ones, a generalisation that holds throughout the US criminal process. Police officers are more likely to let a warning suffice when the offender is rich. Parole boards are more likely to find that a rich inmate is sufficiently reformed. By contrast, the apologies of minorities, the poor and the mentally disabled often fail to convince.