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December 4, 2007

Should "lack of remorse" justify a higher sentence?

This piece from the Canadian Press provides the latest news in the run-up to next week's sentencing of Conrad Black.  Here are some details:

Conrad Black's lack of remorse following his conviction for fraud and obstruction of justice should be factored into next week's sentencing and possibly result in a harsher punishment, U.S. prosecutors said. "To this day, Black maintains his offences of conviction were 'rubbish' and 'nonsense,' and that the criminal justice system is 'essentially a substitute for a wealth-redistribution policy,"' lead prosecutor Eric Sussman said in a court filing late Monday....

Prosecutors said the judge should consider specific comments made in Men's Vogue and BBC Radio - where just last week Black said spending any time behind bars would "compound the injustice" of his criminal trial....

James Morton, president of the Ontario Bar Association, said he believed Judge Amy St. Eve "will be too smart to get really annoyed" on Black's comments, but cautioned making such statements "doesn't sing well."

Most participants and observers of sentencing realities will say that true remorse generally should, and typically will, mitigate an offender's punishment.  But there is more debate over whether a distinct lack of remorse ought to be an aggravating sentencing factor.

Also lurking in the Black sentencing are interesting post-Booker ex post facto issues.  The Seventh Circuit has held that, after Booker, courts should apply the most recent guidelines, but Black's lawyers seems to be fighting the application of harsher guidelines that post-date his criminal activity.

December 4, 2007 at 09:10 AM | Permalink

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Comments

I'm under the impression that part of the duty of Judges is also to protect society. If this guy has no remorse, he is bound to do it again, and i think that justifies a harsher sentence.

Posted by: EJ | Dec 4, 2007 9:29:02 AM

A criminal's attitude toward his offense -- be it genuine remorse or aggressive defiance -- obviously should play a role in sentencing. This is so for two reasons. First, his attitude is relevant to his moral blameworthiness, and second, it's even more relevant to the likelihood of recidivism. Both are key factors that any common sense sentencing system should consider.

There is no sound reason that such consideration should go only in one direction (namely, the mitigating direction). Suppose, for example, a sex offender says at allocution, "There's not a thing wrong with what I did. You people are just a bunch of repressed Puritans. Any truly enlightened person knows that having sex with an eight year-old is the Path of Libidinal Liberation. If you think you can bring me down with your fascist prosecution, I'll show you soon enough that you have another think coming."

Is there any even remotely plausible case that such a defendant should NOT receive a higher sentence than one who simply stands mute -- much less one who's remorseful?

Posted by: Bill Otis | Dec 4, 2007 10:11:36 AM

Remorse, unlike restitution, rehabilitation or isolation is quite easy to fake.

Posted by: S.cotus | Dec 4, 2007 10:44:44 AM

What if the defendant stands mute, based on his 5th Amendment privilege, or says he's not remorseful because he didn't do it? Why should someone be punished for refusing to admit guilt, particularly if he intends to appeal his conviction? Any pronouncement of "remorse" could be used against him upon retrial.

Posted by: Andrew Fine | Dec 4, 2007 10:47:16 AM

Bill,

Again you are using specific case to stir the feelings of the people. Most sex offenders are not pedophiles, so your example of an 8-year-old is not very ethical to me tied to sex offender is not very ethical to me. But of course, that is just my opinion.

Posted by: EJ | Dec 4, 2007 12:59:26 PM

EJ,

I am not using a "case" to "stir the feelings of the people." I am using a hypothetical to illustrate that there are clear instances in which it would be irrational for sentencing not to take account of a criminal's defiant attitude.

What, specifically, is "unethical" about that?

Bill

Posted by: Bill Otis | Dec 4, 2007 1:47:55 PM

Why should he give in and admit that he was wrong. if he does that what does he have to appeal.

The joke hear is the sentence the US attorney is seeking. He is the one that should show remorse.

Posted by: | Dec 4, 2007 1:56:15 PM

Bill,

I am sure that everyone in this blog is smart enough than to get themselves influene by this, but the normal person would have to take your side, because otherwise they would be taking the side a of a pedohile who preys on 8 year olds. Furthermore, you are promoting the illusion that sex offenders are pedophiles, when all studies and most cases I've read so far, prove otherwise.

In my opinion that is a bit unethical, but I'm probably the least educated person in this blog, so other poeple might not agree with me.

Posted by: EJ | Dec 4, 2007 6:31:24 PM

EJ -- are you more comfortable with these hypotheticals. Murderer stands up at sentencing and says the victim deserved to die because they were an awful human being (still some element of emotion, I know). Or - the guy convicted of drug trafficking who insists that the whole system is out of whack and that he should be allowed to sell drugs.

Don't those all support a harsher sentence -- primarily because they evidence a likelihood of recidivsm (i.e., a defendant who still thinks he did nothing wrong after a conviction is likely to reoffend).

Posted by: JustClerk | Dec 5, 2007 8:09:48 AM

JustClerk,

My concern was that she linked sex offenders to the rape of an 8 year old. Most sex offenders are not pedophiles and those kind of statements only add to the current hysteria going on. I'm doing a research right now, and what I'm finding out should make the parents fear the government more than they should fear sex offenders.

By the way, I'm more comfortable with your two other examples, and by the way, I also agreed at the begginign of this page, that lack of remors should justify longer sentences beause of the recidivism length.

Although, for the second case I would have to know what kind of drugs he was selling. If it was marijuana he should be given a break :D

Posted by: EJ | Dec 5, 2007 9:25:02 AM

This is a joke. What about people who'd expressed remorse and still get a draconian sentence.

Posted by: | Dec 8, 2007 12:01:21 PM

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