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August 27, 2011

Should guidelines actually call for a sentence increase if a defendant apologizes?

The provocative question in the title of this post is prompted by this provicative new paper available via SSRN by Professor Murat Mungan.  The paper is titled "Don't Say You're Sorry Unless You Mean it," and here is the abstract:

Remorse and apologies by offenders have not been rigorously analyzed in the law and economics literature.  This is perhaps because apologies are regarded as 'cheap talk' and are deemed to be non-informative of an individual's conscious state.  In this paper, I develop a formal framework in which one can analyze remorse and apologies.

I argue that legal procedures can be designed to price apologies, such that only truly remorseful individuals apologize. Hence, apologies would not be mere 'cheap talk' and could send correct signals regarding an offender's true conscious state, making them credible.  This will lead victims, upon receiving apologies, to forgive offenders more frequently.  Moreover, pricing apologies does not negatively impact the possibility of achieving optimal deterrence.  An (arguably negative) effect of pricing apologies is its elimination of insincere apologies.  If it is assumed that apologies, even if insincere, carry rehabilitative and/or palliative benefits, than the optimality of pricing apologies depends on a trade-off between achieving credibility and increasing such rehabilitative and palliative benefits.

August 27, 2011 at 04:34 PM | Permalink

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Comments

I couldn't read more than the abstract but methinks Doug has to refrain from boosting everything that emanates from SSRN as "provocative" or "thoughtful."

Apologies have long been "priced" in the federal system-up to a three level reduction in the offense level.

Posted by: mjs | Aug 27, 2011 7:16:57 PM

Apologies should be allowed only those who have turned themselves in out of remorse. All confessions must be verified by physical evidence or else they come from mental illness, or the implantation of false memories by irresponsible police interrogators.

Otherwise, the sole regret of the typical criminal is of being caught.

Posted by: Supremacy Claus | Aug 27, 2011 9:39:56 PM

"... methinks Doug has to refrain from boosting everything that emanates from SSRN as "provocative" or "thoughtful.""

There is a rebuttable presumption that anything from law academia is idiotic, a reflection of the mentally crippling effects of law school. The cult indoctrination of law school has forced modern, intelligent student to believe in core supernatural doctrines, the reading of minds, the forecasting of the future, standards of conduct based on fictional characters. These students' have been made so stupid, they fail to realize the fictional character is Jesus Christ, and that "reason" is the ability to perceive God. 10th Grade World History reviews of Medieval philosophy have been erased.

Beyond the idiocy of law academia, judges have complained, it is useless and irrelevant to solving any of their problems. These mental cripple judges have derided law academia publications as worthless garbage. That is bad.

Lastly, imagine surgery journals, bridge engineering journals, plumbing supply journals, edited by third year med students, master degree students, or high school students in plumbing Vo Tech. They know nothing. If they knew anything, they wouldn't have to be students.

Prof. Berman is leading a little. I do not think his journal is edited by students, and we appreciate it. It is a left wing, biased, pro-criminal piece of Commie propaganda, but at least it shows evidence of professionalism. It would never publish an article proposing that 10,000 repeat violent offenders be executed a year to end crime by attrition.

Posted by: Supremacy Claus | Aug 27, 2011 9:53:10 PM

An apology implies recognition of a moral debt. I apologize to someone because I have betrayed their trust, or taken advantage of their weakness, or stolen something from them, or injured or insulted them without justification. But a lot of crimes in federal court don't involve moral failings. There is nothing inherently immoral about driving a car with marijuana. There is nothing inherently immoral about coming to the United States illegally to make money to support your family. They are illegal acts and we have the right to expect illegal acts to be punished, but I don't see the sense in expecting people to apologize for them. As Supremacy Claus points out, the defendant may feel remorse for getting caught, but I doubt any of these defendants feel remorse for having done the illegal act. They should recognize they broke the law and take their punishment, but that's different than feeling sorry.

On the other hand, there is a place for insincere apologies. I apologize if I turn the corner and bump into someone walking the other way. I didn't do anything wrong, but the apology keeps the peace. It says, "I'm willing to take the blame for this, so if you're angry, you can feel justified in your anger. We can now move on with our lives." Or I tell someone I'm sorry if a loved one does something insensitive: "On behalf of my brother, I'd like to apologize for his behavior. It was inexcusable, and I'll talk to him about it." Again, I didn't do anything wrong, but I'm validating the other person's feelings and, again, I'm trying to keep the peace. Presumably, an apology during allocution should fill a similar function, where the defendant recognizes that she has done something society frowns upon and that society is justified in punishing her.

But perversely, in my experience judges don't really care if a defendant expresses remorse, except when the defendant fails to do so. Expressions of remorse are presumed to be insincere, but failure to express remorse is treated as bad manners.

Posted by: Anonymous | Aug 28, 2011 4:08:31 AM

Methinks mjs ought to read more than an abstract before commenting on a paper: this paper uses the term "priced" to describe a sentence INCREASE to punish an apology (under the theory that this "pricing" will reduce insincere apologies but not preclude sincere ones). I do think this is a "provocative" idea, though I also do readily concede that I find a lot of stuff "provocative" and/or "thoughtful" and/or "notable." Indeed, that part of the reason I blog: I find a lot of stuff worthy of adjectives and it is fun to type those adjective rather than just think them... ;-)

Posted by: Doug B. | Aug 28, 2011 9:07:07 PM

That's the truth is "Don't Say You're Sorry Unless You Mean it" and Apologies only for those who worth for it.
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therapist nyc

Posted by: psychologists nyc | Jul 21, 2012 5:04:36 AM

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