Sentencing Without Remorse: Bryan H. Ward

Sentencing Without Remorse
Bryan H. Ward∗
I. INTRODUCTION
State court judges in the United States have a great deal of discretion
in assessing punishments for criminal defendants. Over time, through
either statutory pronouncement or precedent, state courts have
considered a distinct group of factors in determining the proper
punishment for a convicted criminal defendant. One of these factors is
remorse.
Many state courts have found remorse to be an appropriate mitigating
factor to consider when assigning criminal punishment.1 However,
many states have found the absence of remorse to be an appropriate
aggravating factor when calculating an appropriate criminal punish-
ment.2 Unfortunately, remorse has proven to be an increasingly
ambiguous concept, which state court judges have had a great deal of
difficulty applying in any coherent or consistent manner. Rather,
reflecting the myriad definitions of remorse, state courts have found a
myriad of reasons to find remorse present or absent, many of which are
illogical at best.
Remorse presents problems for both prosecutors and defenders.
Prosecutors may confront a savvy criminal defendant who is not
remorseful, but who claims remorse in order to obtain a reduced
sentence and is proficient in saying the right things before a susceptible
judge. Defenders face a perceived lack of remorse, which may result in
a more lengthy sentence for the defendant who is inarticulate or fails to
behave or speak in the manner the judge believes indicates remorse.
∗
Director of Clinical Programs and Associate Professor of Law, Ohio Northern University
College of Law. B.A., 1983 Ohio Northern University; J.D., 1986, University of North Carolina
at Chapel Hill; Ph.D., The Ohio State University. The author would like to thank the law faculty
at Ohio Northern University for their useful comments. The author also wishes to thank Danielle
Groh, Elizabeth Harper, Theresa Von Sossan, and Mike Meehan for their research assistance.
1. Bryan H. Ward, A Plea Best Not Taken: Why Criminal Defendants Should Avoid the Alford
Plea, 68 MO. L. REV. 913, 921 n.43 (2003).
2. Id. at 922, n.44.
131
132 Loyola University Chicago Law Journal [Vol. 38
This article will argue that remorse should not be relevant in criminal
sentencing because its application is completely subjective. This
subjectivity has led to a multitude of different approaches for
determining the presence (or absence) of remorse, many of which are
illogical and prejudice either the criminal defendant or the prosecution.
Also, the application of remorse in criminal sentencing does not serve
the prominent theories of punishment.
For those who see punishment as a mechanism intended to remold
the defendant into an accepted and productive member of society, the
use of remorse for purposes of punishment is unfair and self-defeating.
Similarly, for those who view punishment from the retributivist
perspective,3 applying remorse makes little sense because remorse does
not assist in determining the severity of the sentence. Retributivist
theory is “forward looking” and primarily concerned with assigning
punishments that are “in proportion to the severity of the offense.”4
Feelings of remorse do not assist in determining the blameworthiness of
a defendant, nor do they repair the harm caused.5 Thus, remorse is
vague and ill defined for sentencing purposes—it is illogically applied
and does not necessarily advance any theories of punishment.6
As appellate review on a finding of remorse or lack of remorse is
nearly always based on objections made by the defendant, 7 this article,
3. See generally ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS:
REPORT OF THE COMMITTEE FOR THE STUDY OF INCARCERATION (1976); Robert A. Pugsley,
Retributivism: A Just Basis for Criminal Sentences, 7 HOFSTRA L. REV. 379 (1979).
4. See, e.g., Mirko Bagaric & Kumar Amarasekara, Feeling Sorry? - Tell Someone Who
Cares: The Irrelevance of Remorse in Sentencing, 40 THE HOWARD JOURNAL 364, 368 (2001).
5. Id.
6. The focus of this article is remorse and sentencing in state courts. For a discussion of the
manner in which the federal courts deal with remorse, see Michael M. O’Hear, Remorse,
Cooperation, and “Acceptance of Responsibility”: The Structure, Implementation, and Reform of
Section 3E1.1 of the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1507 (1997). An
interesting question, not discussed herein, is the effect that the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005), will have on the role of remorse in federal
sentencing. Prior to Booker, remorse was rarely considered. See, United States v. Fagan, 162
F.3d 1280 (10th Cir. 1998). However, in a post-Booker world, courts are no longer required to
impose a guidelines-based sentence, but rather are to consider all of the legislatively enumerated
factors included in § 3553(a) of the sentencing guidelines. These factors include “the history and
characteristics of the offender.” Surely, this would open the door to a consideration of the
presence or absence of remorse in the defender as a reflection of his or her “characteristics.”
7. The ability of the state to appeal sentencing decisions is fixed by statute. Twenty-nine
states have no statute affirmatively permitting the state to appeal a sentencing decision by the trial
court. Sixteen states authorize such appeals only when the sentence is viewed to be “illegal” or
contrary to the mandatory sentencing guidelines in the state. Only five states allow for a broader
review of the sentence, including review based on assertions by the state that the sentence is “too
lenient.” See ALASKA STAT. § 12.55.120 (Lexis 2004 & Supp. 2005); MINN. STAT. § 244.11
(2005); NEV. REV. STAT. § 177.015 (2006); PA. R. CRIM. P. 721 (West 2001 & Supp. 2006);
2006] Sentencing Without Remorse 133
by necessity, focuses on the improper use of remorse which accrues to

the detriment of the defendant. However, the theoretical arguments
against the use of remorse at sentencing are applicable for both defen-
dants and prosecutors. Part II of this article discusses the difficulties
inherent in both defining remorse and in identifying it in the criminal
defendant.8 Part III then explores the historical and contemporary
application of remorse as a factor in criminal sentencing and argues that
the motivations behind this application are chiefly subjective.9 Parts IV
through VII then look to the specific problems and inconsistencies that
the application of remorse as a sentencing element creates.10 These
problems arise from courts’ focus on and varying treatment of the object
of the criminal’s remorse (Part IV),11 the words used to express that
remorse (Part V),12 the actions that accompany that expression (Part
VI),13 and the defendant’s motivations for expressing remorse (Part
VII).14 Part VIII then explores the conflict with defendants’ Fifth
Amendment right against self-incrimination that arises when courts look
to postconviction expressions of remorse as a mitigating factor in sen-
tencing.15 Finally, Part IX concludes by recommending that remorse no
longer be a factor considered in assigning punishment for criminal
defendants.16
II. WHAT IS REMORSE?

The first obvious difficulty with remorse is our inability to precisely
define it for purposes of application at sentencing. The Oxford English
Dictionary defines remorse as “a feeling of compunction, or of deep
regret and repentance, for a sin or wrong committed.”17 This definition
TENN. CODE ANN. § 40-35-402 (Lexis 2003 & Supp. 2005).

8. See infra Part II (discussing various definitions of remorse as well as several factors which
make it difficult to assess the presence or absence of remorse).
9. See infra Part III (discussing remorse from a historical perspective as well as exploring
several justifications for the consideration of remorse in punishment).
10. See infra Parts IV–VII (discussing the presence or absence of objective indicators of
remorse, specific statements made by defendants to express remorse, tears and other nonverbal
expressions of remorse, and the defendant’s motivation for expressing remorse).
11. See infra Part IV (discussing objective indicators of remorse).
12. See infra Part V (discussing specific statements made by defendants to express remorse).
13. See infra Part VI (discussing nonverbal expressions of remorse).
14. See infra Part VII (discussing a defendant’s varying motivations for expressing remorse).
15. See infra Part VIII (discussing court attempts to reconcile the consideration of remorse
with a defendant’s Fifth Amendment right to remain silent or to continue to proclaim innocence
at sentencing).
16. See infra Part IX (concluding that remorse should not be considered when assigning
punishment for criminal defendants).
17. OXFORD ENGLISH DICTIONARY Vol. XIII, at 598 (2d. ed. 1989).
seems to place remorse within the individual as a “feeling” arising after

the commission of some wrong. Other definitions emphasize that
remorse can be identified through behavior. Michael A. Simons
observes:
Remorse begins—but does not end—with a felt sense of guilt. In an
ideal community, the wrongdoer will identify with the victim, and the
pain inflicted on the victim will, in the wrongdoer, become self-
directed anger that is guilt. Remorse takes guilt one step further.
Where guilt is passive and self-centered, remorse is active and other-
centered. The remorseful (as opposed to the merely guilty) wrongdoer
will seek to atone for his wrong.18
Yet other definitions go so far as to look for external symptoms of
that internal regret. Richard Weisman notes that “remorse is iconic
where apology is discursive . . . . The apology may refer to the anguish
and pain that the offender feels as a result of transgressing the norms of
the community, but, in remorse, the offender shows or expresses this
pain by making the suffering visible.”19
The significance to be found in these different definitions is the
varying expectations that could be applied to individual criminal
defendants. If remorse is an inwardly possessed feeling, as implied by
the dictionary definition, one might not expect any outward
manifestations of it from the criminal defendant. If Simons is correct,
remorse is only found when the defendant is actively attempting to
atone for his wrongdoing by putting the victim right.20 If Weisman is
right, the remorseful defendant would be expected to exhibit outward
signs of suffering.21 Thus, each implies a different standard for a
sentencing judge with varying results based upon the definition chosen
by a given judge.
The issue becomes even more complicated, irrespective of the
definition chosen, due to several factors which inherently make it more
difficult to assess the presence or absence of remorse: subjectivity,
deception, cultural values, developmental limitations, and psychological
problems.
18. Michael A. Simons, Retribution for Rats: Cooperation, Punishment, and Atonement, 56
VAND. L. REV. 1, 35 (2003).
19. Richard Weisman, Detecting Remorse and Its Absence in the Criminal Justice System, 19
STUD. LAW POL. & SOC’Y 121, 124 (1999).
20. Simons, supra note 18 at 33–34.
21. Weisman, supra note 19, at 127. Weisman goes further to imply that the more serious the
crime, the more significant the outward suffering should be. He notes that his observations of
court conduct indicate that “[t]here is at least some evidence here of moral economism in which
the more serious the offense, the more dramatic must be the offender’s suffering in order for it to
be validated.” Id.
The first factor is that determining the presence or absence of

remorse is a subjective endeavor. As Alan Tieger has observed:
Remorse presents a particularly compelling demand for clarity
because of its subjective nature. . . . Remorse . . . resides within the
perpetrator and can only be identified through circumstantial evidence
or reliance on the declaration of the accused. This subjectivity further
complicates a sentencing court’s effort to ensure that the basis for its
decision is understood.22
The second factor is the concern which plagues most prosecutors—
the deceptive defendant. Clearly, intelligent (and often repeat)
offenders understand the significance of demonstrating remorse at
sentencing.23 Even the unintelligent or uninitiated will be informed of
this fact by competent counsel.24 How then can the court tell if the
defendant is “truly” remorseful?25 Sentencing judges are certainly
cognizant of this problem as well. As one judge noted:
If you give too much consideration to it [remorse] then you are a
sitting duck, I suppose, for sham protestations of remorse and breast-
beating, and buckets of tears and appeals of sympathy. And you have
got to watch out for that and part of the sentencing process is
invariably making a value judgment on the genuineness of the appeals
you receive, both from the defendant, expressions of contrition or
remorse, and from the people who write in for him. And I have no
doubt that some are more genuine than others, but you have got to do
the best you can to evaluate those. To the extent that I feel I am able
to distinguish between genuinely repentant and the defiant defendant, I
will give it some consideration.26
Though findings of fact are always difficult to make, by judge or
jury, this particular “fact” is perhaps even more intractable insofar as, at
least based on some definitions, remorse is an entirely internal
phenomenon which may not be amenable to refutation by countervail-
22. Alan Tieger, Remorse and Mitigation in the International Criminal Tribunal for the
Former Yugoslavia, 16 LEIDEN J. INT’L L. 777, 778 (2003).
23. See, e.g., ANDREW ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 143 (3d ed. 2000).
24. “[D]efense counsels know well that pleas for mitigation need to begin with
acknowledgment of wrongdoing and the expression of ‘deep remorse’. The fact that most of the
actors realize that much of the time no remorse is felt does not detract from its importance in
allowing the sentencing procedure to continue as if it were true.” David Indermaur, Offender
Psychology and Sentencing, 31 Australian Psychologist 15, 18 (1996).
25. One commentator offered the following less-than-persuasive means of testing the veracity
of an ostensibly repentant person, “the affect of those who express remorse provides a clue: those
who fake it sound empty, rehearsed, and unconvincing, while those who are truly sorry seem
humbled.” REPENTANCE: A COMPARATIVE PERSPECTIVE 10 (Amitai Entzioni & David E. Carry
eds., 1977).
26. STANTON WHEELER ET. AL., SITTING IN JUDGMENT: THE SENTENCING OF WHITE-
COLLAR CRIMINALS 117 (1988).
ing external evidence. If remorse is a feeling, how can one prove that a
defendant is not feeling the way he says he is?
Additionally, attempts to establish the presence or absence of remorse
clash with cultural, developmental, and psychological factors which
may make the effort fruitless. For example, commentators have noted
that applying remorse as a sentencing factor for juveniles is
inappropriate given the developmental limitations inherent in such
offenders.27 Also, as Everett and Nienstedt have noted, “Cultural values
inculcated in certain racial/ethnic minorities may prohibit such required
displays of remorse, just as a judge’s cultural values may preclude him
or her from perceiving a valid expression of remorse from a member of
a different racial/ethnic group.”28 Everett and Nienstedt discuss a judge
from an area with a large Hispanic population who “commented on
Hispanic males’ difficulty in openly and publicly admitting guilt, ‘to
look you in the eye and say they’re sorry.’”29
Finally, psychological problems may limit a defendant’s ability to
express remorse at sentencing. As one commentator has noted:
Some criminal offenders simply don’t understand what they’ve done.
If they did, they wouldn’t have done it in the first place, or having
done it, would now feel remorse. The problem with these offenders is
not so much a lack of cognitive knowledge as it is affective
understanding. The offender knows he did wrong at the cognitive
level, but due to a lack of empathetic imagination, that cognitive
knowledge never really sinks in; it never reaches the level of affective
understanding.30
For each of these types of defendants, considering remorse as a factor
in calculating a criminal sentence may be unfair because his ability to
outwardly express remorse is inhibited by traits not commonly found
among the population as a whole. Therefore, even if every criminal
judge could agree on a consistent definition of remorse to apply at
sentencing, that definition would be necessarily insufficient because it
would still fail to identify remorse in many defendants who are truly
remorseful to the fullest extent of their capability.
27. See Martha Grace Duncan, So Young and So Untender: Remorseless Children and the
Expectations of the Law, 102 COLUM. L. REV. 1469, 1526 (2002) (concluding that our legal
system should “anticipate a certain amount of resistance to [remorse], especially in children and
adolescents, who . . . are more likely to use denial, to exhibit a short sadness span, to follow the
code of the street, and to engage in egotistical and non-empathic behavior”).
28. Ronald S. Everett & Barbara C. Nienstedt, Race, Remorse, and Sentence Reduction: Is
Saying You’re Sorry Enough?, 16 JUST. Q. 99, 117–18 (1999).
29. Id.
30. Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. REV. 1801, 1847 (1999)
(emphasis in original).
III. IS THE PRESENCE OF REMORSE RELEVANT TO ANYTHING?

Determining the relevance of remorse to sentencing is crucial in
analyzing its use. One way of making that determination is to assess
why remorse has been historically applied as a sentencing factor. Its
use can be traced back through colonial times. Colonists in New
England viewed remorse and repentance as key factors in securing the
spiritual well-being of the accused and expected such expressions by
defendants.31 Confession was an important part of the process because
the sentence of the defendant, particularly a death sentence, was used as
a means of impressing upon the general public the need to avoid sin and
crime. Minor sins were commonly punished, however, “severity was
not the point of punishing minor sins. The point was repentance and a
good swift lesson.”32
Remorse and repentance played a particular role for those defendants
sentenced to death for whom pardon or mitigation was not possible.
In the Puritan colonies, the practice developed of delivering a sermon
either before the executions or at the gallows. These took the form of
a recital of the confession of the condemned, usually a brief
autobiography that showed how small sins had progressed inevitably
to enormous crimes. The minister wove the appropriate scriptural text
and comment into the sermon.33
To achieve the appropriate effect, some form of confession, remorse,
and repentance was necessary. Thus, even though the presence of
remorse had no mitigating effect for the defendant, its presence was
expected for religious reasons and for reasons of general public order.
The moral aspect of remorse continued to play a role into the
twentieth century. Sentencing judges routinely asked the defendant at
sentencing if he was remorseful.34 However, the role for remorse at sen-
tencing seemed to shift as the overall theory of punishment shifted in
the early twentieth century. The revolution in criminal jurisprudence in
the early twentieth century can be viewed as “a revolt against natural
31. See generally DANIEL E. WILLIAMS, PILLARS OF SALT: AN ANTHOLOGY OF EARLY

AMERICAN CRIMINAL NARRATIVES (1993) (exploring a collection of thirty-two crime narratives
from the seventeenth and eighteenth centuries in the context of the public ritual of capital
punishment in colonial times). For a discussion of the concept’s relevance to Colonial Virginia,
see ARTHUR P. SCOTT, CRIMINAL LAW IN COLONIAL VIRGINIA 123–24 (1930) (giving several
accounts of eighteenth century executions from the Virginia Gazette and stating, “Particularly
penitent sinners might be allowed a few extra days in which to make their peace with God”).
32. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 37 (1993).
33. Bradley Chapin, CRIMINAL JUSTICE IN COLONIAL AMERICA, 1606–1660 55 (1983) (citing
WILLIAMS, supra note 31, for examples of execution sermons).
34. FRIEDMAN, supra note 32, at 409.
law or objective concepts of right and wrong.”35 Commencing in 1870,

at a meeting of National Conference on Penitentiary and Reformatory
Discipline, legislatures and courts began to view the purpose of
punishment to be reforming the offender rather than merely locking
them away.36 Indeterminate sentencing became a tool used by reform-
ers to affect this revolution in criminal jurisprudence. Indeterminate
sentencing was a regime
in which the judge, within very wide margins and with little guidance,
established a set of maximum and minimum terms of imprisonment.
Parole boards controlled ultimate release dates. The theory of
sentencing was utilitarian in concern for deterrence and incapacitation,
and was animated by what might be termed the rehabilitative ideal.37
Courts became concerned with remorse insofar as it assisted the
judge in determining what to do with a criminal defendant in an
indeterminate sentencing system. As one commentator observed,
“What he [the judge] was really looking for were clues to middle class
respectability. These proceedings were little morality dramas. . . . The
judge, after all, was going to recommend to the prison authority how to
handle prisoner X . . . .”38
As rehabilitation became the predominant objective of punishment,
judges sought indications that defendants were amenable to rehabilita-
tion, and one of the preferred indicators was remorse. Judges concluded
that the presence of remorse in a defendant meant he was more likely to
respond to attempts at rehabilitation, and the absence of remorse marked
a defendant as one unlikely to succeed in any rehabilitation effort.39
The difficulty in using rehabilitation as the basis for legitimizing the
consideration of remorse at sentencing, however, is that it is only appro-
35. Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on

the Century and Some Thoughts About the Next, 70 U. CHI. L. REV. 1, 2 (2003).
36. Id. at 2–4.
37. Robert P. Mosteller, New Dimensions in Sentencing Reform in the Twenty-First Century,
82 OR. L. REV. 1, 15 (2003).
38. FRIEDMAN, supra note 32, at 409–10.
39. See, e.g., People v. Barger, 624 N.E.2d 405, 468 (Ill. App. Ct. 1993); People v. Sprawls,
562 N.E.2d 1065, 1069 (Ill. App. Ct. 1990); State v. Bragg, 388 N.W.2d 187, 192 (Iowa Ct. App.
1986); State v. Constantine, 588 A.2d 294, 296 (Me. 1991); Jennings v. State, 664 A.2d 903, 908
(Md. 1995); People v. Steele, 434 N.W.2d 175, 177 (Mich. Ct. App. 1988); State v. Hickman,
666 N.W.2d 729, 732 (Minn. Ct. App. 2003); State v. Blake, 908 P.2d 676, 677 (Mont. 1995);
State v. Daniel, 354 S.E.2d 216, 219 (N.C. 1987); State v. Mollicone, 746 A.2d 135, 137–38 (R.I.
2000); State v. Purkey, No. E2000-00308-CCA-R3-CD, 2001 WL 120728 at *6 (Tenn. Crim.
App. July 20, 2001); State v. Sims, 608 A.2d 1149, 1158 (Vt. 1991); State v. Wickstrom, 348
N.W.2d 183, 192 (Wisc. Ct. App. 1984). See also Note, The Influence of the Defendant’s Plea on
Judicial Determination of Sentence, 66 YALE L. J. 204, 209–11 (1956) (“Judges feel that such a
confession of wrongdoing evinces a repentant attitude, and thus an important step toward
rehabilitation of the accused”).
priate if rehabilitation is the primary objective of punishment. Reha-

bilitation, though, seems hardly the current predominant theory of
criminal justice in the United States, given sentencing guidelines,
mandatory minimum sentences, and “life means life” sentencing. One
must suspect that, in terms of its justification, the utility of remorse as a
sentencing factor is not certain.
Commentators have offered other justifications for the consideration
of remorse. Stephanos Bibas contends that judges look to expressions
of remorse because “they indicate that an offender is not ‘lost,’ that he
has some self-transformative capacity that justifies (or requires) a lesser
punishment . . . . [T]he judges’ point is that the remorseful offender is in
some way changed, or likely to change.”40 Significantly, unlike
rehabilitation, this self-transformative capacity is actuated by the
defendant himself and is not dependent upon state efforts to effect his
change.41 Others claim expressions of remorse are important as part of
the overall process of dealing with victims and crime. As Pipes and
Alessi claim, “[I]t is a common belief that remorse is an integral part of
asking for forgiveness and that it is effective in reducing the anger
others may have about an injustice.”42 Other commentators view
remorse from the perspective of self-punishment43 or general criminal
punishment theory.44 In each case, however, one gets the sense that
scholars are grasping for a theoretical justification for a popular
sentencing factor that has become ingrained throughout the history of
the criminal sentencing process. Austin Sarat claims that remorse
retains its vitality in the twenty-first century simply because “popular
culture . . . still gives a central role to accepting responsibility and
expressing remorse in representations of crime and punishment.”45 As
40. Stephanos Bibas, Integrating Remorse and Apology into Criminal Procedure, 114 YALE
L. J. 87, 94–95 (2004).
41. See id. (discussing an “individual badness model [that] dominates the criminal law’s
current stance toward expressions of apology and remorse”).
42. Randolph B. Pipes & Marci Alessi, Remorse and a Previously Punished Offense in
Assignment of Punishment and Estimated Likelihood of a Repeated Offense, 85 PSYCHOL. REP.
246, 247 (1999).
43. Alan Tieger, Remorse and Mitigation in the International Criminal Tribunal for the
Former Yugoslavia, 16 LEIDEN J. INT’L. L. 777, 779 (2003) (noting that in many societies, “there
is almost an intuitive link between misconduct, punishment, and remorse,” and discussing
remorse’s role in the socialization of the young in a society); NIGEL WALKER, PUNISHMENT,
DANGER AND STIGMA, 129 (1980) (observing that remorse may be important because the
remorseful defendant may have already punished himself enough).
44. See Simons, supra note 18, at 38–40 (discussing how traditional punishment theories may
provide explanation for remorse’s use as a mitigating factor in sentencing).
45. Austin Sarat, Remorse, Responsibility, and Criminal Punishment: An Analysis of Popular
Culture, in THE PASSIONS OF LAW 170–71 (Susan A. Bandes ed., 1999).
Simons notes, “Regardless of the theoretical justifications for viewing

remorse as mitigation, the idea has undeniable popular resonance.”46
Sentencing courts have gone even further in attempting to justify
considerations of remorse at sentencing. A Washington trial court
stated that assessing the defendant’s remorse was necessary because
remorseful defendants “speed up the healing and closure process for
their victims.”47 An Oklahoma court held that remorse was “pertinent
to a finding that the defendant is a continuing threat to society.”48 Other
courts have found that the absence of remorse is indicative of “wanton
cruelty,”49 a propensity to act in a similar fashion “if confronted with
the situation in the future,”50 or the need for a prison sentence to deter
the defendant from similar conduct in the future.51 Finally, Louisiana
courts have held that an absence of remorse is relevant to the “character
and propensities” of the defendant.52
All of these justifications for the relevance of remorse at sentencing
are assumptions based on subjective conclusions reached by judges due,
in large part, to anecdotal information or suppositions. Courts routinely
fail to provide any substantive evidence that remorse or its absence can
be affirmatively correlated with any type of future conduct by the
defendant. Similarly, the presence or absence of remorse may or may
not be directly related to the “character” of the defendant in any
identifiable way. In essence, courts rely on remorse simply because,
historically, courts always have.
IV. IS THERE AN APPROPRIATE OBJECT OF REMORSE?

If one decides, as United States courts consistently have, that it is
appropriate to consider remorse in criminal sentencing, a key question is
whether there must be an object of the expression of remorse. Must the
defendant express remorse to the victim? The victim’s family? The
court? Or maybe his own family and loved ones? One could argue that
“true remorse” exists if the defendant expresses regret to any of those
46. Simons, supra note 18, at 40.

47. State v. Jones, Nos. 48152-5-I, 51738-4-I, 2003 WL 22230128, at *7 (Wash. Ct. App.
Sept. 29, 2003).
48. Pickens v. State, 850 P.2d 328, 337 (Okla. Crim. App. 1993). An Ohio court of appeals
came to a similar conclusion in State v. Ramos, No. 21286, 2003 WL 21186032, at *3 (Ohio Ct.
App. May 21, 2003).
49. People v. Gandy, 591 N.E.2d 45, 63 (Ill. App. Ct. 1992).
50. Linger v. State, 508 N.E.2d 56, 64 (Ind. Ct. App. 1987).
51. State v. Rivers, 599 A.2d 558, 564 (N.J. Super. Ct. App. Div. 1991).
52. State v. Summit, 454 So. 2d 1100, 1108 (La. 1984); State v. Hamiliton, 681 So. 2d 1217,
1225 (La. 1996).
mentioned. As one commentator has observed, “[T]he view of the

philosophical literati is that remorse is ongoing, relentless self-reproach,
an unsuccessful or slow-going attempt at seeking forgiveness, from
God, one’s self, or some significant other . . . .”53 One could just as
easily argue, however, that there need be no object of the expression of
remorse—remorse could be seen as a personal state for which no active
object is necessary.
Sentencing courts, however, take a dim view of defendants who
appear sorry only for how the situation affected them or their loved
ones.54 This reaction seems contradictory to some theoretical notions of
remorse. If remorse is present when the defendant is only sorry about
how the crime affected him, this type of remorse is indicative of a
defendant who is suffering because of what he has done.55 If one takes
a broad view of punishment, even the defendant who only regrets his
actions because of the impact they have had on him or his family is
being “punished” simply through his recognition of the likely
consequences of his actions.
Such punishment, however, is not deemed sufficient by some courts.
Rather, they expect a remorseful defendant to regret how he has affected
the victim and the victim’s family. Concern about oneself or one’s own
family garners the defendant little sympathy or mitigation of sentence,
as exemplified in People v. McDade.56 There, the Illinois Appellate
Court examined the sentence of a defendant who stated at the time of
his sentencing, “I would like to say due to the seriousness of the
charges, it’s forced me to look at myself, and I regret getting in the
situation that I got in, which all I want to do is just get through this and
return back to my family.”57 The sentencing court was singularly
dissatisfied with the defendant’s expression of remorse, noting, “I have
heard some expressions of remorse this morning, although frankly I
believe he was somewhat ambivalent. When the defendant says that he
was sorry, he’s sorry that he allowed himself to be in a position where
this could happen, that sounds almost as if he is simply sorry that he got
53. James E. Dublin, Remorse as Mental Dyspepsia, 5 THE PSYCHOTHERAPY PATIENT 161,
166 (1989).
54. People v. McDade, 579 N.E.2d 1173, 1183 (Ill. App. Ct. 1991); People v. Buckner, 561
N.E.2d 335, 343 (Ill. App. Ct. 1990); State v. Purkey, No. E2000-00308-CCA-R3-CD, 2001 WL
120728, at *4 (Tenn. Crim. App. Feb. 13, 2001); State v. Dillard, No. 03C01-9903-CR-00100,
1999 WL 1191518, at *2 (Tenn. Crim. App. Dec. 16, 1999).
55. As Nigel Walker has observed, it might be appropriate to give a lesser sentence to one
who has expressed remorse because “the remorseful offender is already punishing himself to
some extent.” NIGEL WALKER, PUNISHMENT, DANGER AND STIGMA 129 (1980).
56. McDade, 579 N.E.2d at 1183.
57. Id.
in the car with the young lady as opposed to being sorry for committing
the offenses that a jury has concluded beyond a reasonable doubt that he
committed.”58 The appellate court, focusing on the question of to
whom one should be sorry, observed, “Defendant’s statement indicated
he was not sorry for what he had done to the victim, but rather he was
sorry for what he had done to himself . . . .”59 It was this distinction
which permitted the sentencing court to impose a more severe sentence
than it would have had he expressed his remorse to the victims.60 It is
this focus on the victim that seems to dominate the notion of to whom
one must express remorse.61
The requirement by some courts that genuine remorse can only be
exhibited by a public expression of remorse to the victim or the victim’s
family illustrates the inherent arbitrary nature of the concept of remorse.
Whether one can be remorseful and not outwardly manifest it is
debatable; likewise, it is arguable whether an outward expression of
remorse by a defendant towards his or her own family and friends is
indicative of remorse. Courts, however, seem to equate remorse with an
apology to the victim and/or the victim’s family. Such a requirement is
fraught with danger—the court would need to evaluate the sincerity of
every apology or engage in an elaborate charade in which a defendant
makes an apology (which may or may not be sincere) and the court then
determines whether to factor it into the sentencing process. By equating
remorse with apology, courts are, in effect, penalizing defendants who
are not sophisticated enough to understand that when assessing remorse,
the court really wants an apology. The sophisticated (and perhaps
deceptive) criminal defendant will likely figure this out, while the
unsophisticated will be denied mitigation (or suffer aggravation) even
when he may be remorseful—but in a way not recognized by the court.
V. ARE THERE MAGIC WORDS?

The arbitrary manner in which remorse is considered at the time of
sentencing is further demonstrated when trial courts engage in an
58. Id.
59. Id. at 1184.
60. Id.
61. The Tennessee Court of Criminal Appeals in State v. Purkey, focused on the significance
of the victim when it observed, “The trial court found that the appellant demonstrated a lack of
remorse, specifically stating that the appellant exhibited no remorse to the victim or his family
following the accident.” State v. Purkey, No. E200 00308-CCA-R3-CD, 2001 WL 12078, at *4
(Tenn. Crim. App. Feb. 13, 2001). In People v. Buckner, the court observed, “The defendant did
make an apology to family and friends at his sentencing hearing, but this hardly qualifies as
‘substantial remorse.’” People v. Buckner, 561 N.E.2d 335, 343 (Ill. App. Ct. 1990).
excessively strict examination of the words used by defendants to

express their remorse. This is unfortunate because typical criminal
defendants are poorly educated,62 and as such they often prove to be
inarticulate in daily conversation. This tendency is exacerbated by the
stress of the moment, especially when attorneys advise the defendants
that what they say to the judge can greatly affect the sentence that they
receive. Despite this, many courts engage in a detailed “parsing” of
language when deciding whether the defendant’s statements reflect true
remorse.
One manner of expressing remorse seems almost always doomed to
failure—that of simply saying that one is sorry. Courts often view this
statement as per se inadequate and take offense to the notion that saying
“sorry” is enough.63 As a trial court judge in Alaska observed, “I’m not
going to let him [the defendant] get away with just saying I’m sorry,
that’s definite because I don’t think people can just say, I’m sorry, and
just walk away and think that, well, that’s it.”64
Other courts have elaborated on this position by drawing a distinction
between remorse and sorrow. By concluding that sorrow isn’t the same
thing as remorse, trial judges can easily avoid finding remorse when the
defendant was only “sorry.” This analysis is best illustrated by a
Florida Supreme Court decision in which the court concluded that were
a sentencing court to give credence to expressions of sorrow,
“defendants at sentencing could . . . enhance their position by
‘gratuitously expressing sorrow for the victim.’”65 Such a conclusion
exhibits a profound disregard for the limited abilities of criminal
defendants to express themselves in a way deemed acceptable by the
court. It is unlikely that many criminal defendants (or citizens in
general for that matter) would understand that “expressing sorrow for
the victim” was not demonstrative of remorse for the crime committed.
Courts also seem to evaluate statements made by criminal defendants
in an excessively exacting way. The results are often exasperating
examples of hypertextualism, with courts frequently finding distinctions
62. See, Note, Constitutional Law: Prison “No-Assistance” Regulations and the Jailhouse
Lawyer, 1968 DUKE L.J. 343, 360–61 (1968).
63. In fact, this perception is not unique to American courts. In the United Kingdom, Lord
Woolf, the Lord Chief Justice, when commenting on proposed revisions to British law which
would provide for shorter jail terms for those who admitted guilt, noted that it “was very easy for
someone to say sorry” but that this would not be enough to obtain the shorter sentence proposed.
Robert Verkaik, Criminals Offered Shorter Sentences in Return for Guilty Plea, THE
INDEPENDENT (LONDON), Sept. 21, 2004, at 16.
64. Christian v. State, 513 P.2d 664, 669–70 n.5 (Alaska 1973).
65. Beasley v. State, 774 So. 2d 649, 672 (Fla. 2000).
without substantive differences. Thus, an Ohio appellate court con-

cluded that “[t]he defendant’s expressions of remorse at the sentencing
hearing seemed superficial—more related to a recognition that his con-
duct was wrong rather than to deep feelings of shame and regret.” If
asked what remorse meant, it is likely that most criminal defendants
would answer that it meant “a recognition that his conduct was
wrong.”66
A trial court in Indiana concluded that the statement by the defendant
that “he knew how it felt to lose a loved one, because his own mother
died of natural causes, and that he was ‘very sorry about what
happened’” was “equivocal at best and ‘well short of a full acceptance
of responsibility.’”67 A Tennessee trial court concluded that the
apologies the defendant made to the victim and to the court could be
discounted as “hollow.”68 Similarly, a trial court in North Carolina
heard the following statement from the defendant:
I just want to apologize for my wrongdoing and whatever. I under-
stand how you feel and I know your mom will never be back with you
and I kind of feel the same way, that I will never be with my one[-]
year-old son again because of the actions that I took part in[,] and I
just wanted—just wanted to let you know that I am sorry for the part
that I took in it and I hope that you will forgive me.69
The court proceeded to parse the language and concluded that
“[w]hile Defendant in this case was remorseful at the sentencing
hearing and apologized for the ‘part’ that he had played in the crimes
committed . . . his statement does not lead to the sole inference that he
accepted he was answerable for the result of his criminal conduct.”70
One wonders how an inarticulate criminal defendant could ever
articulate his remorse in a manner that would be acceptable to this
sentencing court.
Finally, and lamentably, some courts seem to take offense to the
expressions of remorse made by criminal defendants and appear almost
vindictive in the manner in which they dismiss the claim. The Rhode
Island Supreme Court discounted the “alleged” remorse of a criminal
defendant by noting, “The trial justice apparently detected no salt in
66. State v. Millet, No. 80527, 2002 WL 31195405, at *3 (Ohio Ct. App. Oct. 3, 2002).
67. Price v. State, 765 N.E.2d 1245, 1253 (Ind. 2002).
68. State v. Oviedo, No. W2000-01003-CCA-R3-CD, 2001 WL 846052, at *6 (Tenn. Crim.
App. July 20, 2001).
69. State v. Norman, 564 S.E.2d 630, 632 (N.C. Ct. App. 2002).
70. Id. at 634. See also Payne v. State, 838 N.E.2d 503, 509 (Ind. Ct. App. 2005), where the
court concluded that statements made by the defendant that “I know I did wrong and messed up.
A lot of drinking led to a lot of silliness” and that what happened was a “mistake” did not
demonstrate a full acceptance of responsibility.
[defendant’s] tears, nor do we . . . .”71 Even harsher was the judgment

of an Arizona trial court judge. In State v. Schackart, the defendant
raped and then murdered an acquaintance by strangulation.72
Apparently, the defendant wrote to the trial court, stating, “[T]he
knowledge that Charlie is forever gone from this plane of existence is
made especially painful by the fact that her life literally passed through
my hands.”73 While it is true that this quotation does not fully express
remorse for the crimes committed, the court’s reaction to the words
used was extreme:
You may think that to have been a clever turn of phrase; I find that it
is a snide word game describing a foul murder perpetrated by you. It
speaks volumes not of remorse or of respect for Ms. Regan, but of a
mind so supercilious and full of self that it believes it is permissible to
be cute about this crime. It says that you committed these crimes with
a depraved mind and malignant heart.74
The court’s hostile reaction to the words used by the defendant in
Schackart illustrates the fundamental problem—courts may interpret
and misinterpret the intentions of a defendant based on word choice and
sentence structure. This is inherently arbitrary, particularly when those
attempting to articulate their feelings about an extremely traumatic
event are, in most cases, poorly educated and thus inarticulate.
Determining the presence or absence of a state of mind by the manner in
which the person in question expresses it renders the entire process
suspect to misinterpretation and misunderstanding. Courts appear to be
suspicious of remorse in the first place and thus make the task of
expressing “true remorse” that much more difficult for the criminal
defendant. Any ambiguity or inappropriate “turn of a phrase” seems to
result in the trial court reacting against the defendant.
VI. IT’S NOT WHAT YOU SAY BUT WHAT YOU DO

(AND WHEN YOU DO IT)
We have assumed so far that expressions of remorse by criminal
defendants are made verbally—the defendant telling the court or others
that he is sorry or regrets his conduct. However, courts often attempt to
assess the sincerity of the words by examining their accompanying
actions. How a defendant expresses remorse is important for trial court
judges. Tears or other expressions of emotion may validate the
71. State v. Thorton, 800 A.2d 1016, 1045 (R.I. 2002).

72. State v. Schackart, 947 P.2d 315, 325 (Ariz. 1997).
73. Id. at 330.
74. Id.
remorseful words spoken by a defendant just as laughter or sarcasm

may refute them.75 The sincerity of one’s expressions of remorse is
evaluated not just in terms of how one says he is sorry, but also in the
light of how one behaved prior to the crime, immediately after the
crime, during the trial, and even after conviction.
This approach is particularly troubling given that the conduct in
question is often completely unrelated in time or location to any
professions of remorse and appears to be irrelevant to an assessment of
the current mental state of a criminal defendant. This approach further
disregards the theoretical argument that remorse is a state of mind
reached by a defendant after a period of soul searching and reflection.76
It is illogical to contend that remorse that comes only after reflection
and self-examination is any less legitimate than remorse that is felt
immediately after the commission of an offense. As the North Carolina
Supreme Court noted:
For the state to prove lack of remorse as an aggravating circumstance,
it is not enough to show merely that there was no remorse at the very
time the crime was being committed. Rarely does a defendant have
remorse for a crime he is presently committing. Almost always
remorse occurs, if at all, sometime after the commission when the
defendant has had an opportunity to reflect on his criminal deed. If
after such time for reflection remorse does not come, and there is
75. See, e.g., State v. Brank, No. C2-01-242, 2001 WL 710590, at *1 (Minn. Ct. App. June 26,
2001) in which the court, evaluating a defendant’s apology, noted, “He appeared to be
remorseful. The record can show that he was crying as he made it, and for what my evaluation of
this is worth, it appeared to me to be genuine . . . .” See also State v. Krouch, No. C8-90-2225,
1991 WL 15398, at *2 (Minn. Ct. App. Feb. 12, 1991) in which the trial court inferred remorse on
the part of a Buddhist defendant who had shaved his head, noting that a shaved head
demonstrates remorse in the Buddhist religion.
76. The Scottish High Court of Justiciary noted the evolutionary nature of remorse in a
discussion of its potential relevance postsentencing as a factor to determine release date, etc. The
court observed:
Expressions of remorse and acceptance of guilt are, of course, factors that will be taken
into account by the trial judge when he is considering the issue of punishment. But it
would be wrong to assume that the book is closed on the day when the prisoner is
sentenced.
The short time that has elapsed between the date of the murder and the date of the
sentence . . . and the tension which results from the trial process left little time for
reflection and remorse to be encouraged and displayed before they were sentenced.
The time for full reflection and genuine appreciation of what has happened comes
afterwards. The encouragement of this process, and its reflection in the assessment of
what is needed for the purposes of punishment, is an important part of the management
of the sentence . . . . Flynn et al. v. Her Majesty’s Advocate, 2004 S.L.T. 863, 873
(2004).
evidence of this fact, then lack of remorse properly may be found by

the sentencing judge . . . [as an aggravating circumstance].77
Regrettably, many trial courts do not see it this way, and often the
trial court takes the position that if one fails to express remorse immedi-
ately after committing the crime, then later expressions of remorse are
merely a dodge to avoid a harsher sentence. Such assumptions are,
however, insupportable by the very nature of remorse. Remorse with-
out time for reflection is unlikely, yet courts still may punish more
severely those who have come to regret their offenses after the
necessary lapse of time.
A. Conduct Prior to the Crime

Some courts conclude that remorse is impossible for any defendant
with a checkered past. (One almost wonders if a recidivist could ever
be found to be remorseful under this logic.) But it is not only prior
criminal activity that courts consider sufficient to bar present remorse.
In New Mexico, a trial court concluded that a defendant lacked remorse
because he had exhibited a pattern over several years of “not taking
responsibility for his own actions and showing little remorse for the
effect of his actions on others.”78 Similarly, in Minnesota, a trial court
concluded that remorse was questionable when a defendant had a
history of blaming others for problems in his life, had lied, had not
followed the directions of doctors, missed therapy meetings, stopped
taking medication and “generally displayed what’s known as avoidance
and denial . . .”79 It is difficult to rationalize this approach. How can
one make any conclusions about a person’s attitude toward a given
event based on perceptions of his or her attitudes prior to the event’s
occurrence? If we believe that remorse is an epiphany in which the
defendant finally comes to grips with the reality of what he has done,
how can we focus on conduct that occurred prior to this life-changing
event?
Prior criminal conduct is even more likely to result in present
expressions of remorse being questioned. Courts have discounted
present expressions of remorse when the prior criminal conduct is
similar in nature to the current crime.80 Courts have also concluded that
the gravity of a prior offense and the consequences of that offense may
make expressions of remorse for new criminal conduct suspect; as the
77. State v. Parker, 337 S.E.2d 497, 502 (N.C. 1985).

78. State v. Wilson, 868 P.2d 656, 665 (N.M. Ct. App. 1993).
79. Brank, 2001 WL 710590, at *1.
80. See, e.g., Gray v. State, 790 N.E.2d 174, 177 (Ind. Ct. App. 2003).
Utah Supreme Court observed, “A prisoner serving a sentence for a first

degree felony has already been convicted of a serious crime and has
usually been given a long prison sentence. . . . [O]ne might presume that
such prisoner’s willingness to engage in further violent activity while
incarcerated indicates a lack of remorse . . . .”81
Courts are willing to allow the connection between past conduct and
current remorse to be even more attenuated than this. For example, a
trial court in Arizona concluded that a defendant charged with a drug
offense lacked remorse in part because he had been convicted fifteen
years earlier for a drug-related offense.82 In these cases of prior
conduct, both criminal and noncriminal, the courts assume that past
performance guarantees future conduct. Though such conduct may
speak to dangerousness and susceptibility to rehabilitation, there is no
evidence linking such previous conduct to whether a defendant is
currently truly remorseful.
B. Conduct Immediately Following the Crime
Courts have also expanded the universe of “relevant” actions to
include how a defendant acts immediately after committing the offense
in question, hoping that this will also give insight into whether the
defendant is truly remorseful. An Ohio trial court questioned the
sincerity of a defendant’s expression of remorse at sentencing in part
because he failed to surrender to the police until he was surrounded by
them.83 A trial court in Missouri found that a lack of remorse existed
when the defendant made efforts to destroy the evidence of his crime
and escape the scene.84 A Washington trial court focused much
attention on how a defendant behaved after the commission of the crime
as an indicator of lack of remorse by the defendant at the time of
sentencing. The court observed:
[T]he first part of lack of remorse is simply the fact that you sat on this
information for such a long period of time. Not only did you hide the
body a few days later but you just let it stay there in the woods leaving
all these things to happen that the family has talked about. I don’t see
any reason why if you did feel some remorse, some guilt, why you
wouldn’t have made a phone call . . . .85
81. State v. Gardner, 947 P.2d 630, 641–42 (Utah 1997).

82. State v. Calderon, 827 P.2d 473, 474–75 (Ariz. Ct. App. 1991).
83. State v. Campbell, 765 N.E.2d 334, 343 (Ohio 2002).
84. State v. Rodden, 728 S.W.2d 212, 222 (Mo. 1987).
85. State v. Stalkfleet, No. 99-1-00137-9, 2001 WL 629397, at *4 (Wash. Ct. App. June 7,
2001).
The North Carolina Supreme Court upheld a trial court which

questioned the remorse of a criminal defendant who claimed that his
remorse following his crime was evidenced by the fact that he rendered
aid to his victim and immediately took her to an urgent care center.86
The court concluded that the motivation for the defendant’s actions
could be interpreted as “selfish” and based on a “concern for his own
self-interest” because the defendant testified:
[O]nce I realized I hurt her that bad, I thought she was going to die
and I was scared for myself just as much as for her because, like I say,
I’m on probation, and I feel like she was going to die and I wouldn’t
be able to tell what my story was against her story . . . .87
The North Carolina Supreme Court concluded, “The defendant’s
testimony in this case unequivocally shows that remorse played little
role in his decision to aid [the victim] . . . and that his concern was for
his own self-interest.”88 Thus, even apparent instantaneous remorse
may be suspect in the eyes of some state courts.
Additional examples of postoffense conduct drawing into question a
defendant’s claim of remorse include a trial court in Alabama which
discounted the defendant’s remorse because “he was seen running from
the scene of [the] murder ‘clapping his hands with a big smile on his
face’ . . . .”89 In Illinois, a trial court rejected a defendant’s claim of
remorse for the killing of his wife based on the fact that when arrested,
the defendant remained calm and showed no emotion.90 Courts have
even focused on the most trivial conduct as an indicator of the
defendant’s remorsefulness. For instance, a trial court in Illinois
concluded that the fact that the defendant was drinking beer after a
criminal shooting demonstrated a lack of remorse at the time of
sentencing.91
Perhaps the most egregious expansion of the universe of relevant
conduct in determining the sincerity of a profession of remorse is found
in a Tennessee court decision. There, the trial court found that the
defendant lacked remorse because, at the time of her arrest for drunk
driving, the defendant refused to submit to a blood or breath test for
alcohol and “became loud and profane, screaming that the officers were
‘f——— up’ her life by arresting her.”92 Not only was the defendant
86. State v. Spears, 333 S.E.2d 242, 245 (N.C. 1985).

87. Id.
88. Id.
89. Ex parte Harrell, 470 So. 2d 1309, 1318 (Ala. 1985).
90. People v. Buckner, 561 N.E.2d 335, 343 (Ill. App. Ct. 1990).
91. People v. Thomas, 577 N.E.2d 831, 836 (Ill. App. Ct. 1991).
92. State v. Hagan, No. 01C01-9304-CC-00122, 1994 WL 65151, at *1, *3 (Tenn. Crim. App.
here obviously impaired, as evidenced by the charge against her, which

draws into question the relevance of anything she said, but what she
said does nothing to undermine the conclusion that she was remorseful,
perhaps even at the time of her arrest.
In each of these instances, the trial courts have so confused the notion
of remorse and its indicators as to render the concept useless. It defies
logic to insist that the presence or absence of remorse by a criminal
defendant at the time of his sentencing can be deduced by his or her
conduct weeks if not months earlier. One cannot reasonably expect any
criminal defendant to exhibit grave remorse in the immediate moments
after the commission of a crime. If remorse can only be felt after
thought and reflection on the gravity of the actions a defendant has
taken, one could never expect remorse to occur so rapidly. The actions
of the defendants described above were the natural results, in many
cases, of committing crime and trying to avoid detection. If we assume
that trying to avoid detection is evidence that defeats any latter
profession of remorse by a defendant, the mere fact that the crime was
committed would also indicate a lack of remorse, thereby rendering the
entire notion of remorse after reflection absurd.
C. Conduct During Trial
Another group of factors that courts have considered in criminal
sentencing is the defendant’s behavior during his or her trial.93 These
courts seem to believe that conduct during trial gives some sort of
insight into the sincerity of a defendant’s claim of remorse. Yet the
conduct in question is generally irrelevant to the issue of remorse
because the conduct occurred days, if not weeks, prior to the
defendant’s expression of remorse at sentencing.
One type of trial behavior that courts frequently focus on is
disrespectful or arrogant conduct by a defendant. A trial court in
Illinois enhanced a defendant’s sentence for lack of remorse by
observing that he always had a smirk or a smile on his face that only left
when he was confronted with a capital sentence.94 A Florida trial court
found a defendant to be not truly remorseful because he “appeared
March 3, 1994).
93. See Margareth Etienne, Remorse, Responsibility, and Regulating Advocacy: Making
Defendants Pay for the Sins of Their Lawyers, 78 N.Y.U. L. REV. 2103, 2104 (2003) (noting that
in addition to the trial behavior of the defendant, in federal courts, research has indicated that
overly zealous conduct on the part of defense counsel is viewed as being indicative of a lack of
remorse on the part of the defendant.)
94. People v. Johnson, 594 N.E.2d 253, 269–70 (Ill. 1992).
cavalier” throughout the proceedings.95 In Connecticut, a trial court

noted the absence of remorse at sentencing, stating, “I’ve had a lot of
opportunity to observe Mr. Anderson in this courtroom, his demeanor,
his actions and if there’s one thing that strikes me that’s been especially
impressed upon me is his complete lack of concern, his complete lack of
remorse for what transpired in this particular incident.”96 In Indiana, a
trial court found a lack of remorse based on the demeanor of the
defendant and his “state of disdain for the whole system.”97 A trial
court in Louisiana found a lack of remorse in the defendant based on the
fact that he “ma[de] faces and talk[ed] under his breath” while the
victims were testifying.98 In North Carolina, a trial court found a
defendant unremorseful because he laughed at statements read to the
court by the prosecutor which were contradictory to his version of
events.99
In each of these cases, the attitude and behavior of the defendant at
trial somehow indicated to the courts the defendants’ lack of remorse at
sentencing. Logically, behavior and remorse are not necessarily linked.
Who can say why a defendant seemed to smirk, or made disparaging
comments about the prosecutor? As the appellate court in State v.
Parker noted:
[W]hy [defendant] laughed is entirely speculative as far as the
evidence shows. Some of the many possibilities are that he laughed
out of mere nervousness or meanness, or because he was an immature
adolescent in the toils of the law for the first time, or because he had
no remorse for his crime. One thing is not speculative, though, but is
known to everyone that has spent time in court is that defendants and
other witnesses often laugh or smile at being contradicted.”100
Whatever the reason for the conduct, one cannot definitively say that
prior courtroom behavior means that the defendant has no remorse for
the crime that he or she committed.
Courts unfortunately have taken a defendant’s trial conduct one step
further and have imputed lack of remorse to defendants who have
pursued trial tactics of which the court disapproves. In one case the trial
court felt that “the rendition of a fanciful story of duress, indicated a
95. Stephens v. State, 787 So. 2d 747, 761 (Fla. 2001).

96. State v. Anderson, 561 A.2d 897, 905 (Conn. 1989).
97. Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001) (observing a lack of remorse based on the
defendant’s disrespect for the proceedings—specifically his reference to the prosecutor as a
“prick” in open court and his statement that he had been “persecuted” by the trial court.)
98. State v. Stamper, 615 So. 2d 1359, 1365 (La. Ct. App. 1993).
99. State v. Parker, 373 S.E.2d 558, 559 (N.C. Ct. App. 1988).
100. Id.
complete lack of remorse . . . .”101 Another state trial court noted,

“[A]ppellant had his attorney ask questions which were designed to
embarrass the witnesses and which were irrelevant insofar as whether or
not a crime was committed.”102 This court held that the defendant was
without remorse because he pursued a trial strategy of aggressive cross-
examination of witnesses.103 An Illinois court accepted the remarks of
a sentencing judge who stated that the defendant should be “taken out
and beaten” because he and his counsel had portrayed the defendant as a
victim104—the appellate court felt that it was “appropriate for the trial
court to consider both counsel’s comments and defendant’s own attitude
in focusing on the impact the offense had on him”105 when concluding
that such a tactic in trial was offensive and an indication of lack of
remorse. In addition, a state trial court went so far as to conclude that a
defendant was lacking remorse because he refused to testify against his
accomplice.106
In each of these instances, the court stretched the already tenuous link
between the conduct in question and the ultimate determination of the
presence or absence of remorse. What is particularly troubling is the
distinct possibility that criminal defendants are being punished for the
trial tactics they (and their attorneys) employ. It is certainly true that
criminal defendants often pay a price for an ill-chosen trial strategy and
that price is properly paid in the guilt or innocence phase of the
proceeding. What has been described above are examples of defendants
paying the price of ill-advised trial tactics at sentencing—a result which
discourages legitimate as well as illegitimate trial tactics out of the fear
of suffering adverse sentencing repercussions.
D. Conduct After Trial
Courts will occasionally look at postconviction behavior as relevant
conduct when assessing the sincerity of remorse at time of sentencing.
Though this conduct is certainly more proximate in time to the actual
sentencing process, and thus conceptually more relevant, courts often
fail to make the necessary logical connection between the post-
conviction conduct in question and the issue of the presence or absence
of remorse. For example, the fact that a defendant commented to a
probation officer that “the trial court ‘had it in for her’ and ‘probably
101. State v. Corrieri, 654 A.2d 419, 423 (Me. 1995).

102. State v. Schneider, 715 P.2d 297, 305 (Ariz. Ct. App. 1985).
103. Id.
104. People v. Borash, 820 N.E.2d 74, 84 (Ill. App. Ct. 2004).
105. Id. at 83.
106. Hogan v. State, 761 P.2d 908, 910 (Okla. Crim. App. 1988).
everybody else,’” may be revealing as to the defendant’s attitude toward

the court system, but it will tell us very little about how remorseful the
defendant was for the criminal conduct in question.107 Nevertheless,
these very comments were construed by a Louisiana appellate court as
evidence of a lack of remorse.108 Similarly, it is hard to justify an Ohio
trial court’s conclusion that the refusal of a defendant to submit to a pre-
sentence investigation was indicative of a lack of remorse for the
underlying criminal offense.109 In each instance, the trial court made
assumptions about a defendant’s state of mind at the time of sentencing
based on postconviction conduct that had no rational relationship to the
presence or absence of remorse.
Courts also challenge expressions of remorse made by criminal
defendants who have spent time in jail prior to their final sentencing. In
an astounding conceptual reversal, the North Carolina Supreme Court in
State v. Butler110 confronted a defendant who attempted to bolster his
claim of remorse with testimony by a pastor who had visited the
defendant in jail twice a month until his trial.111 Despite its reasoning
in State v. Parker,112 the North Carolina Supreme Court concluded that
such evidence of remorse was not persuasive, noting that “the fact that
the defendant showed remorse while in jail carries little weight with this
Court. It is relatively easy for one facing life behind bars to be
remorseful.”113 It would appear, then, that the sort of reflection spoken
of favorably in Parker cannot occur in jail. This apparent inconsistency
illustrates the inability of courts to set forth coherent standards for
assessing remorse and further demonstrates their inability to address
logically the concept of remorse as a cumulative process rather than a
factor which is present or absent at a particular time or place.
The cynical belief that expressions of remorse at sentencing are only
motivated by the desire to avoid punishment is the predominant theory
when assessing expressions of remorse that occur after a finding of
guilt. As an Illinois trial court observed, “Express[ing] remorse after
someone has been found guilty [is] not quite the same.”114 These
107. State v. Coutee, 545 So. 2d 571, 580 (La. Ct. App. 1989).
108. Id.
109. State v. Carnicom, No. 2003-CA-4, 2003 WL 22060583, at *2 (Ohio Ct. App. Sept. 5,
2003).
110. State v. Butler, 462 S.E.2d 485, 489 (N.C. 1995).
111. Id.
112. State v. Parker, 337 S.E.2d 497 (N.C. 1985).
113. Butler, 462 S.E.2d at 489.
114. People v. Thurmond, 741 N.E.2d 291, 300 (Ill. App. Ct. 2000) (quoting the Illinois trial
court).
sentiments were echoed by the Supreme Court of New Jersey, which

observed that the defendant “expressed remorse for the crime, albeit
belatedly. Waiting until allocution to express remorse when facing the
prospect of a death sentence diminishes the value of that remorse.”115
Other trial courts in Illinois and New York also adopted the position
that expressing remorse at the time of sentencing was too late to be
considered sincere.116 Similarly, a Kansas trial court refused to
consider the presence of remorse as a mitigating factor for a defendant
who had pled guilty pursuant to a plea agreement under the belief that
expressing remorse in this situation was “something that commonly
happens, it’s not exceptional. It’s not unusual.”117 An Indiana trial
court observed, “I really don’t consider remorse . . . a mitigating
circumstance. I mean, quite frankly, everyone when they get to this
point is going to be sorry. You are sorry for all sorts of reasons, you
know, most of all, probably, what’s going to happen to you, and that’s
only natural.”118
Remorse thus loses its meaning. No longer is it a state of mind
present or absent at the time of inquiry. Now, if not present at any
select time in the prosecution process, remorse cannot credibly exist at
the time of sentencing. Some courts believe remorse must be present at
the time of the commission of the offense, no matter how illogical that
may be. Others expect remorse at some undefined time prior to
sentencing, and if it is absent then, it can never exist thereafter.
Ultimately, courts consistently fail to accept the possibility that
defendants acquire remorse over time; by definition, then, it may not be
present at many “key points” during the prosecution. Trial courts fail
when they attempt to draw connections between pre-offense conduct
and legitimate remorse for the crime in question. Similarly, trial courts
have not been able to provide any causal link between conduct during
the offense, during trial, or even after conviction and the presence or
absence of remorse.
VII. BUT WHY ARE YOU SORRY?

Many courts attempt to evaluate the presence or absence of remorse
in criminal defendants by looking into the defendant’s motivations.
115. State v. Papasavvas, 790 A.2d 798, 810 (N.J. 2002).

116. See, e.g., People v. Washington, 587 N.E.2d 40, 43 (Ill. App. Ct. 1992) (holding that a
letter of apology written by defendant before sentencing was not sincere because it was the first
time he expressed any remorse); People v. Wilson, 511 N.Y.S.2d 746, 746 (App. Div. 1987)
(holding that defendant’s expression of remorse at time of sentencing was not sincere).
117. State v. Spain, 953 P.2d 1004, 1015 (Kan. 1998) (quoting Kansas trial court).
118. Wilkie v. State, 813 N.E.2d 794, 800 (Ind. Ct. App. 2004) (quoting Indiana trial court).
Courts often ask why a defendant is, or is not, demonstrating remorse

for the crime committed. As most would agree, this is an impossible
task in that the presence or absence of remorse is truly only to be found
within the mind and heart of the defendant. Why a defendant feels the
way he does is perhaps just as unknowable as whether he is remorseful
or not.
Unfortunately for many criminal defendants, courts seeking answers
to this question often have preconceived notions about expressions of
remorse. Many judges believe expressions of remorse are disingenuous
because they assume a defendant will say whatever is necessary to
lessen his or her sentence. It seems pointless to even attempt a showing
of remorse to a judge with that mind-set.
These skeptical judges take the position that defendants only claim to
be remorseful as a scam to get a lighter sentence. A North Carolina
appellate court genteelly expresses this concern by noting, “Defendant’s
apologetic statement, which he made after the return of the jury’s
verdict, is not so persuasive that Defendant’s acceptance of
responsibility for his conduct is the only reasonable inference that can
be drawn from the statement.”119 A clearer expression of this judicial
attitude is found in an Indiana trial court’s conclusion that a defendant’s
remorse was not legitimate because it “was an attempt to avoid
consequences rather than a true expression.”120 That remorse is used as
a scam to affect sentencing was accepted by a trial court in Minnesota
which commented to a defendant, on the record, “You profess remorse
now and at the time of your plea, but I think that’s simply to affect your
sentence . . . . Only now when he is worrying about his sentence does
he profess any concern regarding the victims of the crime.”121 A court
in Montana found that the remorse professed by the defendant was “that
of a man who had been caught.”122
Some courts go further and articulate a standard rule when it comes
to defendants and remorse. As a Tennessee criminal appellate court
observed, “[M]ost people facing a lengthy prison sentence feel or
express remorse for their actions.”123 Other courts express their
119. State v. Godley, 535 S.E.2d 566, 576 (N.C. Ct. App. 2000).
120. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002) (referencing the Indiana trial court’s
holding).
121. State v. Wilmoth, No. C3-01-1884, 2002 WL 1325613, at *3 (Minn. Ct. App. June 18,
2002) (quoting Minnesota trial court).
122. State v. Blake, 908 P.2d 676, 677–78 (Mont. 1995) (referencing the district court’s
holding).
123. State v. Garrison, No. 0LC0L-9407-CC-00236, 1995 WL 555067, at *4 (Tenn. Crim.
App. Sept. 20, 1995).
skepticism in a manner similar to a taunt. As a Tennessee trial court

observed, “I think you have remorse . . . that you’re here. That this
report states that you report feeling guilty, hopeless and helpless. I
think it’s probably brought on by the sentence that you face . . . .”124
An Arizona trial court expressed its skepticism by jokingly declining to
find remorse in the case of a defendant who had served several years in
prison on another charge prior to being sentenced for murder, noting,
“I’d get a little remorseful too, after spending a few years in prison.”125
These ingrained attitudes render expressions of remorse meaningless.
Oddly enough, however, just as courts are more than willing to
interpret the motivation of a defendant who is expressing remorse, they
are less open to trying to understand why a particular defendant is not
expressing remorse or is expressing it in an unusual way. In State v.
Campbell the defendant was diagnosed as having antisocial personality
disorder.126 The doctor in question claimed that such a disorder
precluded remorse and sufferers were incapable of “the kind of deep
feelings for someone else implied by the word remorse.”127 Based on
this evidence, the court concluded that the defendant lacked remorse
despite the same physician’s belief that the defendant’s remorse was
genuine for a person suffering such a disorder.128 An Indiana trial court
found the defendant’s lack of remorse to be a valid aggravating factor in
sentencing despite the fact that the jury had found the defendant to be
mentally ill.129 The Indiana Supreme Court concluded that because the
defendant’s illness was not severe enough to excuse him from
committing a crime, it was also not severe enough to excuse his lack of
124. State v. Dillard, No. 03C01-9903-CR-00100, 1999 WL 1191518, at *2 (Tenn. Crim.

App. Dec. 16, 1999) (quoting the Tennessee trial court).
125. State v. Smith, 687 P.2d 1265, 1267 (Ariz. 1984) (quoting the Arizona trial court).
126. State v. Campbell, 765 N.E.2d 334, 343 (Ohio 2002).
127. Id. (quoting the doctor who diagnosed the defendant as having antisocial personality
disorder).
128. Id. See also State v. Schweitzer, No. 2-05-03, 2005 WL 2709548, at *5 (Ohio Ct. App.
Oct. 24, 2005), where the court upheld a trial court’s finding of lack of remorse for a defendant
who was borderline psychotic and taking medication which made him appear “less remorseful.”
The appellate court held that the expert:
testified that as a result of Schweitzer’s illness, he was less likely to experience
remorse for his actions. Although that factor, which favors incarceration, may be the
result of circumstances beyond Schweitzer’s control, it is, nevertheless, pertinent to the
determination of Schweitzer’s likelihood of recidivism. The statute, for better or
worse, does not differentiate the weight to be given to recidivism factors that are
organically, or psychologically, inherent. Id.
129. Barnes v. State, 634 N.E.2d 46, 49–50 (Ind. 1994).
remorse.130 Such a ruling reveals a view of remorse so cynical as to

render the entire concept meaningless.
Clearly, attempting to assess the motivation underlying an expression
of remorse is fraught with difficulties. There are a variety of motiva-
tions that may explain a defendant’s conduct with respect to the issue of
remorse. As one federal court observed, “[A] colorable argument can
be made that a glib willingness to admit guilt in order to ‘secure some-
thing in return’ may indicate quite the opposite of repentance, and that a
reluctance to admit guilt may in fact reflect repentance.”131 The subjec-
tivity of this process illustrates the overriding problem with respect to
all remorse determinations—the inability of a court to correctly deter-
mine the state of mind of the criminal defendant and the myriad indica-
tors which courts rely upon in making this determination. If a court is
likely to disregard all expressions of remorse based on its underlying
belief that the motivation for such professions is simply an attempt to
get a lighter sentence, then why consider these professions at all?
VIII. THOSE WHO CLAIM INNOCENCE OR REMAIN SILENT

The problems with state court conceptions of remorse are most
starkly illustrated by the manner in which courts attempt to reconcile
their views of remorse with the conduct of those defendants who exer-
cise their constitutional right to remain silent or continue to proclaim
their innocence at sentencing. Frequently, a criminal defendant chooses
to exercise his Fifth Amendment right against self-incrimination not
only at trial, but also at sentencing by either remaining silent or
continuing to profess innocence. The reasoning is clear: in order to
maintain a viable appeal, a defendant must not render his claims moot
by acknowledging guilt and expressing remorse at the sentencing hear-
ing.132 Such conduct provides no evidence that the defendant feels any
personal remorse for the crime, but is constitutionally protected
nevertheless.
The United States Supreme Court confronted this dichotomy in
Mitchell v. United States.133 The Supreme Court addressed the
argument that a finding of guilt (either via a plea of guilty or a finding
of guilt by a jury or court) extinguishes the Fifth Amendment privilege
130. Id.
131. Scott v. United States, 419 F.2d 264, 271 n.33 (D.C. Cir. 1969).
132. See AM. BAR ASS’N STANDARDS FOR CRIMINAL JUSTICE: DEFENSE FUNCTION § 4-8.1
(1986) (discussing how a defendant’s admission of guilt could affect his appeal).
133. Mitchell v. United States, 526 U.S. 314 (1999).
against self-incrimination.134 The Court held that even though

criminality had been established, the privilege was not extinguished.135
The Court further held that a sentencing court could not draw negative
factual inferences from a defendant’s decision to remain silent at
sentencing.136
The problem arises when state courts interpret silence or a profession
of innocence as a “lack of remorse” and aggravate the defendant’s
sentence or refuse to mitigate the sentence based on this finding. Some
courts, when confronted with this obvious constitutional catch-22 have
held that considerations of remorse or “lack of remorse” are
inappropriate given the context.137 As an Arizona appellate court noted
in State v. Hardwick, “As contrition or remorse necessarily imply guilt,
it would be irrational or disingenuous to expect or require one who
maintains his innocence to express contrition or remorse.”138 In People
v. Leckrone, an Illinois appellate court addressed the interplay between
a continued assertion of innocence, the sentencing factor of remorse,
and the appellate rights of a criminal defendant, concluding that “[a]
convicted criminal defendant remains a litigant in an adversarial
proceeding. That he shows no remorse should be of no concern to the
134. Id. at 325–26.

135. Id.
136. Id. at 327–30.
137. See, e.g., State v. Hardwick, 905 P.2d 1384, 1391 (Ariz. Ct. App. 1995) (holding that the
sentencing court’s reliance on defendant’s lack of guilt violated defendant’s Fifth Amendment
privilege); People v. Young, 987 P.2d 889, 894 (Colo. Ct. App. 1999) (holding that the trial
court’s reliance on defendant’s lack of remorse was improper); Jackson v. State, 643 A.2d 1360,
1380 (Del. 1994) (holding that the defendant’s failure to testify does not indicate a lack of
remorse); State v. Kamanao, 82 P.3d 401, 410 (Haw. 2003) (holding that sentencing based on
defendant’s refusal to admit his guilt was unconstitutional); People v. Leckrone, 481 N.E.2d 343,
347 (Ill. App. Ct. 1985) (indicating that court would show dismay toward defendant’s “sermon of
innocence”); Ridenour v. State, 787 A.2d 815, 824 (Md. Ct. Spec. App. 2001) (holding that court
should not consider defendant’s silence as a sentencing factor); State v. Shreves, 60 P.3d 991, 996
(Mont. 2002) (holding that defendant’s refusal to admit guilt should not be used as a sentencing
factor); Bushnell v. State, 637 P.2d 529, 531 (Nev. 1981) (holding the trial court’s consideration
of defendant’s lack of remorse in sentencing was a violation of defendant’s privilege); Brown v.
State, 934 P.2d 235, 245 (Nev. 1997) (holding that the trial court violated Fifth Amendment
privilege by telling defendant to admit his guilt or he would receive a harsh sentence); Brake v.
State, 939 P.2d 1029, 1033 (Nev. 1997) (holding that harsher sentence given to defendant because
he would not incriminate himself was improper); State v. Williams, 389 S.E.2d 830, 834 (N.C.
Ct. App. 1990) (holding that the court should not use defendant’s plea of not guilty to impose a
harsher sentence); State v. Ramires, 37 P.3d 343, 352 (Wash. Ct. App. 2002) (holding that the
trial court’s consideration of defendant’s lack of remorse was improper in giving defendant harsh
sentence).
138. Hardwick, 905 P.2d at 1391.
court, since in theory defendant persists in his position until his right to
appeal has been exhausted.”139
Perhaps the best exposition of the interplay between the
constitutional issues, sentencing considerations, and common sense is
found in the Nevada Supreme Court’s ruling in Brown v. State.140
There, the court confronted a situation in which the defendant, Troy
Brown, had persistently declared his innocence, not only at trial, but
also at sentencing after the trial jury found him guilty of the offense.141
The sentencing judge concluded that the defendant was guilty and found
his professions of innocence to be evidence of a lack of remorse and,
accordingly, sentenced the defendant to the statutory maximum.142 The
Nevada Supreme Court overturned the sentence based on its belief that
the sentencing factor of remorse was utilized inappropriately. The court
noted:
The Fifth Amendment states that no person “shall be compelled in any
criminal case to be a witness against himself.” The district court
violated Troy’s Fifth Amendment rights by considering his “lack of
remorse” when he still had a constitutional right to maintain his
innocence and by threatening to impose a harsher sentence if Troy
refused to admit his guilt. Troy was unable to express remorse
sufficient to satisfy the judge without foregoing his right to not
incriminate himself, and the fact that he took the stand at trial does not
change this analysis because Troy maintained his innocence. As such,
requiring Troy to either express remorse or receive a harsher sentence
violated Troy’s Fifth Amendment rights and constituted an abuse of
discretion.143
Despite this compelling reasoning, courts in many states contend that
lack of remorse may be used as an aggravating factor (or as a reason not
to mitigate a sentence) even when the evidence of this “lack of remorse”
is either silence at sentencing or a consistent pattern of maintaining
innocence.144 Some courts, in considering “lack of remorse” in these
139. Leckrone, 481 N.E.2d at 347.

140. Brown, 934 P.2d at 245.
141. Id.
142. Id.
143. Id. at 245–46.
144. See, e.g., People v. Leung, 7 Cal. Rptr. 2d 290 (Cal. Ct. App. 1992); State v. Barnes, 637
A.2d 398 (Conn. App. Ct. 1994); Dupont v. State, 418 S.E.2d 803 (Ga. Ct. App. 1992); People v.
Ward, 499 N.E.2d 422 (Ill. 1986); Bacher v. State, 686 N.E.2d 791 (Ind. 1997); State v. Discher,
597 A.2d 1336 (Me. 1991); People v. Wesley, 411 N.W.2d 159 (Mich. 1987); State v. Moore,
458 N.W.2d 232 (Neb. 1990); State v. Jackson, No. CA2002-01-013, 2002 WL 31155122 (Ohio
Ct. App. Sept. 30, 2002); Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001); State v. Clegg,
635 N.W.2d 578 (S.D. 2001); State v. Muscari, 807 A.2d 407 (Vt. 2002); State v. Fuerst, 512
N.W.2d 243 (Wis. Ct. App. 1994).
types of cases, simply fail to recognize any sort of constitutional

dilemma. They take the view that the Hobson’s choice posed by these
situations is simply a risk defendants must take when remaining silent
or continuing to profess their innocence.145 A Georgia appellate court
in Dupont v. State held that, “entry of a harsher sentence . . . reflects
not unconstitutional vindictiveness but rather the risk inherent in
electing to go to trial instead of plea bargaining.”146 Similarly, an Ohio
appellate court, in a case decided after Mitchell, observed that a finding
of a “lack of remorse” on the part of a defendant who chose to remain
silent at sentencing was, in essence, the defendant’s fault. As the court
noted, “In choosing not to make a statement, appellant made a tactical
decision and must be expected to accept the consequences of that
decision.”147 This line of reasoning is contrary to a line of decisions
which hold that a defendant should never be put in the position of
having to sacrifice a constitutional right as a means of obtaining a lesser
sentence.148
Another line of cases disputes the propriety of claiming innocence at
sentencing after a finding of guilt. Though not directly arguing against
the principles of Mitchell and the continuance of a defendant’s Fifth
Amendment rights past trial through sentencing, they somehow try to
factually distinguish certain cases where the defendant’s claims of
innocence at sentencing are not credible.149 In California, aggravating a
defendant’s sentence based on lack of remorse as evidenced by a
continued denial of guilt is appropriate unless the evidence of guilt at
trial was “conflicting.”150 In People v. Leung, a California appellate
145. Bizarrely, in Smith v. Commonwealth, 499 S.E.2d 11, 14 (Va. Ct. App. 1998), a Virginia
court of appeals attempted to finesse this “Hobson’s choice” by arguing that it is not impossible
to claim innocence and also exhibit remorse, noting, “[A]n expression of remorse does not
presuppose acceptance of criminal responsibility.” One finds this hardly convincing. An Indiana
court in Mathews v. State, 824 N.E.2d 713, 733 (Ind. Ct. App. 2005), finessed the issue by simply
denying that there was an issue—denial of guilt and lack of remorse were found to be simply
different, and a defendant who denied his guilt could have his sentence aggravated if the trial
court just didn’t mention denial of guilt and only mentioned lack of remorse.
146. Dupont, 418 S.E.2d at 806.
147. Jackson, 2002 WL 31155122, at *7.
148. See United States v. Stockwell, 472 F.2d 1186 (9th Cir. 1973), cert. denied, 411 U.S. 948
(1973) (regarding exercise of right to jury trial); North Carolina v. Pearce, 395 U.S. 711 (1969)
(regarding vindictive sentencing following a successful appeal and new trial).
149. One subtle attempt at distinguishing Mitchell is found in Colorado v. Lopez, No.
03CA0049, 2005 WL 1773911, at *5–6 (Colo. App. Jul. 28, 2005). The court in Lopez claimed
that the protections afforded those proclaiming innocence at sentencing only applied to those who
expressed their innocence by remaining silent. Once a defendant testified and made statements at
the sentencing, his credibility could be questioned and a finding of lack of remorse was
appropriate.
150. People v. Holguin, 262 Cal. Rptr. 331, 337 (Cal. Ct. App. 1989).
court found a lack of remorse based on a claim of innocence because the

evidence of guilt at trial was “overwhelming.”151 This kind of
reasoning implies that the Fifth Amendment protections against self-
incrimination are only available to those whose guilt is not clear-cut, as
determined by the sentencing judge—a far cry from the universal
application clearly intended by the Constitution.
Other states take the view that, after a finding of guilt by a jury, a
defendant who still asserts his innocence does not deserve the
protections afforded by the Fifth Amendment; these decisions reflect a
belief in the nearly infallible judgment of the jury and thus fail to see
the need for a protection against self-incrimination at that stage of the
process. The Nebraska Supreme Court, in State v. Moore, found no
fault in the remarks of the sentencing court which seemed to link the
defendant’s assertions of innocence with a “lack of remorse” by noting
that the remarks “were not a criticism of the defendant’s maintaining
her innocence throughout the trial, but an observation that the defendant
failed to express any remorse for her actions even after having been
found guilty beyond a reasonable doubt.”152
The South Dakota Supreme Court also attempted to draw a
distinction between the assertion of Fifth Amendment rights during trial
and afterwards. It acknowledged in State v. Clegg, another post-
Mitchell case, that it was not proper to draw an inference of a “lack of
remorse” based only on a plea of not guilty.153 However, the court
observed that “after exercising the right to trial, a defendant’s continued
refusal to take accountability may be considered as a sign of lack of
remorse.”154 Thus, for these courts, the Fifth Amendment right against
self-incrimination is a pro forma right which is accepted prior to trial,
but is mere formalism after a finding of guilt.
A more sophisticated attempt to deal with the Fifth Amendment post-
trial is found in the Vermont Supreme Court’s decision in State v.
Muscari.155 In this case, the court attempted to distinguish the
mandates of the Mitchell decision by arguing that Mitchell only
precluded drawing adverse factual inferences from a defendant’s silence
at sentencing.156 It was, however, permissible to draw adverse conclu-
151. People v. Leung, 7 Cal. Rptr. 2d 290, 305 (Cal. Ct. App. 1992).
152. State v. Moore, 458 N.W.2d 232, 236 (Neb. 1990).
153. State v. Clegg, 635 N.W.2d 578, 580 (S.D. 2001).
154. Id.
155. State v. Muscari, 807 A.2d 407 (Vt. 2002).
156. Id. at 416; see also State v. Spencer, 70 P.3d 1226, 1228–29 (Kan. Ct. App. 2003)
(asserting that Mitchell precluded drawing “an adverse inference from a defendant’s silence” in
determining facts relating to the circumstances and details of the crime).
sions from the defendant’s silence when assessing whether he had

accepted responsibility for the offense and expressed remorse for his
conduct.157 This conclusion is troubling because it implicitly assumes
that the presence or absence of remorse is somehow not a factual
determination. If it is not based on facts, what is it based upon?
Hunches by sentencing judges? Conclusions unsupported by facts? If
Vermont is correct on this issue, one can think of no more damning
indictment of the use of remorse in the sentencing process than that it is
based on nonfactual conclusions and surmises.
A third line of cases attempts to justify the imputation of “lack of
remorse” by inserting a step in the analysis as a means of screening off
the constitutional problems. Specifically, these courts claim that the
inference of “lack of remorse” is only used to inform the judge as to the
rehabilitative potential of the defendant and not as a reason to increase
his sentence—in so doing, these courts attempt to finesse the
constitutional issue.
A Connecticut appellate court claimed in State v. Barnes158 that “the
sentencing judge properly related the defendant’s refusal to admit
responsibility and claims of innocence to the likelihood of his
rehabilitation, rather than imposing a harsher punishment for his
recalcitrant nature.”159 Similar reasoning is found in decisions by the
Michigan Supreme Court and a Wisconsin appellate court.160
Ridenour v. State illustrates how courts attempt to skirt the Fifth
Amendment.161 There the defendant’s attorney counseled him not to
say anything about the case to anyone. The sentencing judge, though,
reprimanded him for not approaching the victim of the theft case and
apologizing prior to sentencing:
Your explanations for the delay in coming clean are accepted as such
but they reveal to me a certain lack of compassion and understanding
that I don’t follow. It’s one thing while you’re on drugs but it’s
another when you come clean. There is nothing in the world that
would have prevented you from sending a letter to the State’s
Attorney’s office saying, “I don’t know how to do this without
violating my bond but please Mr. State’s Attorney or Deputy Baker or
whoever, would you please give this letter to the Harrisons telling
157. Muscari, 807 A.2d at 416.

158. State v. Barnes, 637 A.2d 398 (Conn. App. Ct. 1994).
159. Id. at 403.
160. See People v. Wesley, 411 N.W.2d 159, 162 (Mich. 1987) (asserting that a defendant’s
lack of remorse may be considered by a court in imposing a sentence as it bears upon defendant’s
potential for rehabilitation); State v. Fuerst, 512 N.W.2d 243, 247 (Wis. Ct. App. 1994).
161. Ridenour v. State, 787 A.2d 815 (Md. Ct. Spec. App. 2001).
them how genuinely sorry I am . . . . If a lawyer had told me, “You

mean it’s illegal for me to apologize to somebody? It may be illegal
but you ain’t my lawyer any more.”162
When defendant’s counsel objected to this statement by noting that
the defendant was only exercising his Fifth Amendment rights, the court
stated:
The right thing to do is not always the legal thing to do. You can
advise him whatever you want and he can take your advice but there
are consequences to it, many times. And a person who doesn’t show
remorse at the right time for the right reason should be a factor
considered at sentencing . . . . And if the Court of Appeals wants to
say on the record that Judges should not say that people should
apologize to victims then I want to be the first one in line at the polls
the next time one of those Court of Appeal’s [sic] Judges comes up.
And I want to give a Lay day sermon in churches on that. That’s
when we ought to hang up the law if it’s wrong, illegal or immoral to
apologize to a victim for the wrong you’ve done them.163
Fortunately for the defendant, the court of appeals in the Ridenour
case took up the sentencing judge’s challenge and overturned the
sentence.
Another justification for increasing the sentence of a defendant who
has been found to lack remorse due to his silence or professions of
innocence can be found in Commonwealth v. Begley.164 In Begley, a
post-Mitchell case, the Pennsylvania Supreme Court claimed that the
defendant’s “lack of contrition” and “lack of cooperation,” actions con-
sistent with a defendant’s choice to exercise his Fifth Amendment rights
and maintain his innocence, were indicative of his “social con-
science.”165 The court went on to find that consideration of this factor
was appropriate in aggravating his sentence because it was an aspect of
the defendant’s “character.”166 Thus, the Pennsylvania Supreme Court
also fell into the trap of ignoring the constitutional implications of an
enhanced sentence for a defendant due to the exercise of a constitutional
right by simply inserting a step into the process and claiming that the
enhanced sentence is based on concerns about “character” rather than an
imputed lack of remorse.
The problem with this reasoning in these cases is that they proclaim a
distinction without a difference. Whether a defendant’s sentence is
162. Id. at 820–21.

163. Id. at 821.
164. Commonwealth v. Begley, 780 A.2d 605, 644 (Pa. 2001).
165. Id.
166. Id.
enhanced because of lack of remorse for remaining silent or professing

innocence, or his sentence is enhanced because such conduct reflects a
poor potential for rehabilitation, the result is the same—his sentence is
increased and the underlying reason is because he has insisted on
exercising his Fifth Amendment rights. The courts’ reasoning in this
line of cases is similar to a situation in which a court gives a defendant
the maximum sentence after trial, not because he had insisted on a jury
trial, but because his insistence on a jury trial reflected disrespect for the
judicial system which indicated a poor potential for rehabilitation.
Surely no reviewing court would permit such an obvious subterfuge—
yet in the case of remorse, they do.
IX. CONCLUSIONS
Criminal defendants are not the only ones aggrieved and dissatisfied
with the manner in which remorse is treated at time of sentencing.
Prosecutors also have reason to be dissatisfied with how remorse may
be used by crafty criminal defendants to obtain unwarranted sentencing
reductions. Structurally, however, there is very little case law evidenc-
ing this dissatisfaction. This is due to two factors. First, many states do
not permit prosecutors to automatically appeal a criminal sentence that
they feel is too low.167 Second, even when an appeal may be possible, a
prosecutor must look long and hard at the cost associated with such an
appeal.
In such situations, it is likely that prosecutors will accept sentences
that are lower than expected merely to promote efficiency.
Additionally, many trial judges are uncomfortable with remorse as a
sentencing factor. They feel challenged in attempting to sort out the
truly remorseful defendant from the unrepentant but savvy defendant.168
The challenge may be all the more difficult when victim participation in
criminal sentencing is factored in169—one can imagine the dilemma
posed to a judge who must address the issue of remorse in the presence
of a victim or victim’s family who are crying for “justice” and are
offended by the claims of remorse expressed by the defendant. Does
the judge discount the self-professed remorse of the defendant and thus
167. See supra note 7 (discussing the fact that sixteen states allow a prosecutor to appeal a
sentence only when the sentence is “illegal” or contrary to the state’s mandatory sentencing
guidelines, and only five states allow for a broader review of the sentence).
168. See supra text accompanying notes 23–26.
169. All fifty states have enacted some variant of a Victims’ Bill of Rights, which often
includes the right to attend criminal proceedings and often the right to actively participate at time
of sentencing. See Jay M. Zitter, Annotation, Validity, Construction, and Application of State
Constitutional or Statutory Victims’ Bill of Rights, 91 A.L.R.5TH 343 (2001).
spare the victim of one last outrage, or does he credit the claim of
remorse, reduce the sentence accordingly, and face the wrath of the
victim or victim’s family? Judges would likely prefer to avoid the
problem altogether.
Nor should one conclude that judge-based sentencing is the source of
the problem. Judges do struggle to adequately assess the presence or
absence of remorse and create sometimes bizarre tests for determining
its presence or absence. Nevertheless, it is hard to believe that a jury-
based sentencing system would be any more effective in addressing the
problem. One judge, addressing the efficacy of jury sentencing in a
jurisdiction that still retains it, noted:
Judges, if there’s anything in the world judges learn, is that you cannot
judge by appearances. The appearance of the defendant—his facial
features, his expression, his mannerisms, his personal merits—have
more to do with jury sentencing than does anything else. And that is
just a totally unreliable basis for sentencing. A jury cannot help but
consider these things because really that’s all they know—they just
judge everybody by appearances.170
A different judge from the same jurisdiction, however, criticized jury
sentencing for being too lenient and too susceptible to influence based
on evidence of contrition by the defendant.171 Such concerns about
excessive leniency reflect the fears of many prosecutors with respect to
judicial sentencing. Some statistical studies, though, indicate that jury-
based sentencing tends to be harsher than judicial sentencing and also
tends to be more variable.172 Thus, it is fair to conclude that jury
sentencing is probably not the answer.
Whether undertaken by judges or juries, sentencing should be a
process in which facts are assessed by the sentencer for purposes of
reaching an appropriate punishment. Whether an indeterminate-
sentencing system or a guidelines-based system, the common
denominator is that facts must be weighed. As the United States
Supreme Court observed in Williams v. New York,173 a seminal case
addressing sentencing in indeterminate systems, one of the advantages
of having presentencing reports compiled by probation officers was to
assist “conscientious judges who want to sentence persons on the best
available information rather than on guesswork and inadequate
170. Robert A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study of El Paso
County, Texas, 45 WASH. U. J. URB. & CONTEMP. L. 3, 23 (1994).
171. Id. (stating that a sentence was “based entirely on emotion, appearances, and lawyer
ingenuity”).
172. Weninger, supra note 170 passim.
173. Williams v. New York, 337 U.S. 241 (1949).
information.”174 Information implies facts—not suppositions. By its

very nature, remorse cannot depend on a factual determination, but
rather relies upon guesswork and supposition.
The natural consequence of a process dependent to some degree on
guesswork is uncertainty. Uncertainty exists for the defendant and the
prosecution in terms of the actual sentence a defendant will receive for a
particular offense. Uncertainty is also anathema to the judicial system
in general and to criminal justice in particular.175 Some uncertainty is,
however, unavoidable. As one commentator noted, “What is called the
uncertainty of the law is, perhaps, most commonly the uncertainty of
facts, uncertainty of human testimony, uncertainty of memories.”176
Uncertainty can also result from the manner in which a judge (or jury)
applies the law.177 To the extent that we wish to minimize uncertainty,
one effective strategy is to eliminate those points at which the court (or
jury) could deviate from the known statutes and case precedents, and,
instead, resort to the unknowable—namely hunches, guesses, and
suppositions.178 Eliminating the consideration of remorse at the time of
criminal sentencing would be one step along this path.
Courts have ultimately failed to fairly and accurately consider the
concept of remorse during criminal sentencing—the attempt to
effectively and uniformly utilize this concept at sentencing has failed.
Often, remorse has been used as a justification for enhancing or
reducing a sentence based on the “gut instincts” of a judge, and nothing
more. Though the expertise that judges acquire over time should not be
minimized, this “skill” should not exclude other, more factually based,
methods of sentencing.
174. Id. at 249.

175. See Werner Z. Hirsch, Reducing Law’s Uncertainty and Complexity, 21 UCLA L. REV.
1233 (1974); Cass R. Sunstein, Daniel Kahneman, David Schkade & Ilana Ritov, Predictably
Incoherent Judgments, 54 STAN. L. REV. 1153 (2002). But see Tom Baker, Alon Harel & Tamar
Kugler, The Virtues of Uncertainty in Law: An Experimental Approach, 89 IOWA L. REV. 443
(2003).
176. Austin Abbott, Delay and Uncertainty in the Administration of Justice, 44 AM. L. REG.
349, 355 (1896).
177. This type of uncertainty can be further broken down into uncertainty created by the
language of the statute or the precedent or that created simply by the human element of a judge or
jury being involved in the process.
178. Jerome Frank and other legal realists would likely believe such an effort impossible.
Frank contends that we must accept that judges reach decisions by following their hunches and
that “[i]f the law consists of the decisions of the judges and if those decisions are based on the
judge’s hunches, then the way in which the judge gets his hunches is the key to the judicial
process. Whatever produces the judge’s hunches make the law.” JEROME FRANK, LAW AND THE
MODERN MIND 112 (Anchor Books ed. 1963).
The failure of remorse is simply the failure of men to be able to read

the innermost thoughts and feelings of other men—an age-old problem
which plagues many of mankind’s interpersonal relationships. No one
really knows what remorse is—and courts certainly don’t seem to know
it when they see it. Anything that is so intrinsically unknowable cannot
fairly be the basis for extended (or reduced) periods of incarceration in
any system of justice.

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Sentencing Without Remorse

by necessity, focuses on the improper use of remorse which accrues to

II. WHAT IS REMORSE?

TENN. CODE ANN. § 40-35-402 (Lexis 2003 & Supp. 2005).

seems to place remorse within the individual as a “feeling” arising after

The first factor is that determining the presence or absence of

III. IS THE PRESENCE OF REMORSE RELEVANT TO ANYTHING?

31. See generally DANIEL E. WILLIAMS, PILLARS OF SALT: AN ANTHOLOGY OF EARLY

law or objective concepts of right and wrong.”35 Commencing in 1870,

35. Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on

priate if rehabilitation is the primary objective of punishment. Reha-

Simons notes, “Regardless of the theoretical justifications for viewing

IV. IS THERE AN APPROPRIATE OBJECT OF REMORSE?

46. Simons, supra note 18, at 40.

mentioned. As one commentator has observed, “[T]he view of the

V. ARE THERE MAGIC WORDS?

excessively strict examination of the words used by defendants to

without substantive differences. Thus, an Ohio appellate court con-

[defendant’s] tears, nor do we . . . .”71 Even harsher was the judgment

VI. IT’S NOT WHAT YOU SAY BUT WHAT YOU DO

71. State v. Thorton, 800 A.2d 1016, 1045 (R.I. 2002).

remorseful words spoken by a defendant just as laughter or sarcasm

evidence of this fact, then lack of remorse properly may be found by

A. Conduct Prior to the Crime

77. State v. Parker, 337 S.E.2d 497, 502 (N.C. 1985).

Utah Supreme Court observed, “A prisoner serving a sentence for a first

81. State v. Gardner, 947 P.2d 630, 641–42 (Utah 1997).

The North Carolina Supreme Court upheld a trial court which

86. State v. Spears, 333 S.E.2d 242, 245 (N.C. 1985).

here obviously impaired, as evidenced by the charge against her, which

cavalier” throughout the proceedings.95 In Connecticut, a trial court

95. Stephens v. State, 787 So. 2d 747, 761 (Fla. 2001).

complete lack of remorse . . . .”101 Another state trial court noted,

101. State v. Corrieri, 654 A.2d 419, 423 (Me. 1995).

everybody else,’” may be revealing as to the defendant’s attitude toward

sentiments were echoed by the Supreme Court of New Jersey, which

VII. BUT WHY ARE YOU SORRY?

115. State v. Papasavvas, 790 A.2d 798, 810 (N.J. 2002).

Courts often ask why a defendant is, or is not, demonstrating remorse

skepticism in a manner similar to a taunt. As a Tennessee trial court

124. State v. Dillard, No. 03C01-9903-CR-00100, 1999 WL 1191518, at *2 (Tenn. Crim.

remorse.130 Such a ruling reveals a view of remorse so cynical as to

VIII. THOSE WHO CLAIM INNOCENCE OR REMAIN SILENT

against self-incrimination.134 The Court held that even though

134. Id. at 325–26.

139. Leckrone, 481 N.E.2d at 347.

types of cases, simply fail to recognize any sort of constitutional

court found a lack of remorse based on a claim of innocence because the

sions from the defendant’s silence when assessing whether he had

157. Muscari, 807 A.2d at 416.

them how genuinely sorry I am . . . . If a lawyer had told me, “You

162. Id. at 820–21.

enhanced because of lack of remorse for remaining silent or professing

information.”174 Information implies facts—not suppositions. By its

174. Id. at 249.

The failure of remorse is simply the failure of men to be able to read

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