Being and Doing: The Judicial Use of Remorse to Construct Character and Community
| Published date | 01 March 2009 |
| Author | Richard Weisman |
| DOI | 10.1177/0964663908100333 |
| Date | 01 March 2009 |
| Subject Matter | Articles |
BEING AND DOING: THE
JUDICIAL USE OF REMORSE TO
CONSTRUCT CHARACTER AND
COMMUNITY
RICHARD WEISMAN
York University, Canada
ABSTRACT
This article argues first that attributions of remorse are used in legal discourse to
distinguish those whose character is perceived as different from their wrongful act
(the remorseful) from those whose character is perceived as consistent with their
wrongful act (the remorseless). It then advances an explanation as to why courts
emphasize the showing of remorse more than the offering of an apology as the true
measure of the wrongdoer’s character. Next, using a population of Canadian judg-
ments rendered between 2002 and 2004, It proceeds to identify how judges consti-
tute the category of remorse through the criteria they use to decide which claims to
remorse are valid and which are not. Finally, building upon work in the sociology of
affect, the article looks at how judicial speech shapes the form that expressions of
remorse are expected to take.
KEY WORDS
apology; feeling rules; law and affect; mercy; remorse
INTRODUCTION
ON18 JUNE 2004, virtually all the major newspapers in Ontario
published a statement read by a man who had just pleaded guilty in
court to one of the most shocking transgressions in contemporary
Canada – the abduction, rape, murder, and desecration of the body of a 10-
year-old girl. The statement began –
SOCIAL &LEGAL STUDIES Copyright © 2009 SAGE Publications
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0964 6639, Vol. 18(1), 47–69
DOI: 10.1177/0964663908100333
Your Honor, I want to state that I fully recognize and acknowledge that the
crime which I am guilty of is simply the worst kind of crime a person can
commit. What I did was absolutely wrong. It was cruel. It cannot be justified.
It was done out of selfishness. It was the act of a coward. (Blatchford, 2004: A12)
The statement, we are informed, was read amidst tears and with voice breaking.
At the same time, readers were presented with the reactions of various
persons in official capacities to what were described as Mr B.’s expressions
of remorse. The prosecutor in the case was quoted as remarking that ‘I have
no doubt that Mr. B. is remorseful . . . I point out that it is remorse in the
face of the overwhelming case against him.’ A police inspector was also
quoted for his appraisal of Mr B.’s credibility – ‘I don’t buy it for a minute’
(Blatchford, 2004: A12).
It is the central premise of this article that these public occasions in which
there is both communal interest in and communal reaction to a purported
wrongdoer’s remorse or absence of remorse are significant events in the
moral regulation of social life. The public and official focus on the inner life
of the transgressor – whether it pertains to wrongs that have mobilized the
outrage of the whole community or less sensational transgressions – informs
us not just about the wrong itself but also about how someone who com-
mitted the wrong should feel about their own actions. It is these two features
of the public display of remorse – both the communication of an expectation
that remorse should be displayed and then the evaluation of that display –
that form the subject of the following analysis. What I hope to accomplish
below is to show how the emotion of remorse is constituted in one of the
primary sites for these public occasions – courts and tribunals – and how
through the characterization of persons as remorseful or unremorseful, the
larger community is instructed about when feelings of remorse are expected
and when they are not, as well as what form these feelings should take.
That expressions of remorse – when believed – mitigate punishment in law
and diminish the social disapproval of transgressors in more informal settings
is by now a commonplace observation amply documented both in legal and
criminological scholarship and in experiments in social psychology, respec-
tively (Robinson et al., 1994; Hogue and Peebles, 1997). A recent and highly
prolific ongoing study of jurors in cases involving capital punishment in the
United States (the National Capital Jury Project) has demonstrated through
interviews and questionnaires that jurors attach more importance to expres-
sions of remorse in deciding whether to vote for death or for life without
parole than all other enunciated factors except prior history of violent crime
and predictions of future dangerousness (Garvey, 1998: 1560–1.) Other recent
scholarly contributions have further shown that similar distinctions based on
the remorse of the transgressor are operative as well in non-English-speaking
jurisdictions such as China, Japan, and the Netherlands (Chang, 2001;
Johnson, 2002; and Komter, 1998, respectively). A starting point for contem-
porary research is the recognition that the division of wrongdoers into those
who are believed to feel remorse and those who are believed not to feel
48 SOCIAL & LEGAL STUDIES 18(1)
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