Mitigation without Definition: Remorse in the Criminal Justice System
| Date | 01 April 1999 |
| Author | David I. Smith,Diane Mead Niblo,Michael J. Proeve |
| DOI | 10.1177/000486589903200103 |
| Published date | 01 April 1999 |
16
Mitigation without Definition:
Remorse in the Criminal Justice System
Michael
J.
Proeve, David I. Smith, and Diane Mead
Niblo
RMIT
University
The influence
of
remorse
as a
mitigating
factor
in sentencing is
discussed
from
legal and psychological perspectives. Statute and
common law in Australia relevant
to
remorse
or
contrition as a mitigat-
ing factor is described. Inconsistencies in case law regarding definitions of
remorse and
contrition
are discussed. The reliance on responses by
offenders
following
an offence, such as pleading guilty,
to
indicate
remorse is criticised. Retrospective studies
of
convicted offenders, in
which the influence
of
remorse
or
contrition on sentencing
or
on future
criminal behaviour is examined, are described. There are indications
of
an
association between remorse
or
contrition and reduced sentences and
better
adjustment
to
probation,
but
no evidence
of
an association
between contrition and decreased recidivism.
Finally,
it is suggested that
thorough elucidation of the concept
of
remorse is necessary, in
order
to
assist research
into
the influence
of
remorse on sentencing, and on
future criminal behaviour.The discernment
of
genuine remorse would
also be assisted by a greater understanding
of
the nature
of
remorse. For
this
to
occur, the relationship
of
remorse
to
other moral emotions of
shame,regret, and guilt should be investigated.
Newspaper reports of criminal trials frequently provide some reference to the defen
...
dant's remorse. In court proceedings, a plea for mitigation delivered by a barrister will
often
begin
with
aformal expression of
guilt
and
remorse
(Indermaur
1996a).
References to remorse are also found in many reports submitted by applicants for
parole. It seems surprising, then,
that
remorse has received little research attention.
In this article, statute and common law
pertinent
to remorse is discussed. In common
law, definitions of remorse have been inconsistent. It is also argued
that
behaviour
exhibited by defendants, from whence
the
presence of remorse has
been
inferred, is of
unknown validity as evidence of remorse.
The
small body of research regarding
the
influence of remorse
on
sentencing and
on
future criminal behaviour is also discussed.
Research studies in which the effects of remorse on sentencing and
on
the
behaviour
of convicted offenders have been investigated have differed with regard to the defini
...
tions
and
measures of remorse employed. It is argued
that
the
understanding of
the
effects of remorse
on
sentencing and
the
behaviour of convicted offenders, and
the
Address
for
correspondence:
Michael
Proeve,
Department
of
Psychology
and
IntellectUlll
Disability
Studies,
RMIT University,
Bendoora
Campus, PO Box 71,
Bundoora
VIC 3083, Australia.
THEAUSTRALIAN
AND
NEW
ZEALANDJOURNAL OF CRIMINOLOGY
VOLUME
32
NUMBER
I 1999
PP.
16-26
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