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December 29, 2022

"Remorse, Relational Legal Consciousness, and the Reproduction of Carceral Logic"

The title of this post is the title of this paper authored by Kathryne M. Young and Hannah Chimowitz now available via SSRN. Here is its abstract:

One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole.  But little is known about a key aspect of parole decision-making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person’s remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person’s past and present motivations, beliefs, and affective states.

To understand how parole board members make sense of remorse, we draw on in-depth interviews with parole commissioners in California, the state with the largest proportion of parole-eligible lifers.  We find that commissioners’ remorse assessments hinge on their perceptions of lifers’ relationships to law and carceral logic.  In this way, relational legal consciousness — specifically, second-order legal consciousness — functions as a stand-in for the impossible task of knowing another person’s heart or mind.  We distinguish relational from second-order legal consciousness and argue that understanding how they operate at parole hearings reveals the larger import of relational legal consciousness as a mechanism via which existing power relations are produced and reproduced, bridging the legal consciousness and law and emotion literatures.

December 29, 2022 at 11:55 PM | Permalink


Given that a large proportion of people serving a life sentence are guilty only of trusting the justice system, i.e. of refusing to plead guilty to a crime they didn't commit, I modestly propose that classes in acting be made a mandatory high school subject, so that someday the student can convince a parole board that they're really truly sorry for committing such a horrible and unforgivable crime, and are not at all angry about being in prison.

I am lucky that when I was up for parole 43 years ago, they only asked me what my plans were, not about my alleged crime or whether I admitted guilt. They granted me parole and I've never been in legal trouble since.

Posted by: Keith Lynch | Dec 30, 2022 7:59:49 AM

Keith - how long were you in prison and what crime were you in for?

Posted by: Brett Miler | Dec 30, 2022 11:56:45 AM


What is that percentage of people who were “not guilty” but rolled by the justice system and got life?

Not “estimates” and vagueness. Actual numbers.

Of course, you cannot know this and are blowing smoke up our collective arses.

And who gets to determine who was “not guilty?” Let me guess, a left wing “prison reform” organization?

Posted by: TarlsQtr | Dec 30, 2022 12:12:35 PM


If you are truly remorseful, there is no need for acting lessons or to “act” remorseful at the board.

In fact, I’d say that as much subjectivity as possible should be removed from the process. I’ll learn a lot more about an inmate’s remorse by his behavioral record in prison than some crocodile tears in front of a board.

Posted by: Tarlsqtr | Dec 30, 2022 12:20:02 PM

Brett Miler asks: "how long were you in prison and what crime were you in for?"

I served 19 months of a six year sentence for office burglary, followed by two years on parole. Fortunately this was before Virginia abolished parole. For more details on my case, see my last comment in https://sentencing.typepad.com/sentencing_law_and_policy/2022/01/no-justice-no-pleas-subverting-mass-incarceration-through-defendant-collective-action.html

Posted by: Keith Lynch | Dec 30, 2022 9:46:09 PM

TarlsQtr asks: "What is that percentage of people who were 'not
guilty' but rolled by the justice system and got life? Not
'estimates' and vagueness. Actual numbers."

I don't know. You don't know either. What I do know is that
thousands of Americans have been exonerated in recent decades, and
that in nearly every such case, the cause of the wrongful conviction
was as common as dirt, but the cause of the exoneration was freakishly
unusual, relying on unlikely chance.

Between that, my personal experience, the similar experiences of lots
of others who have confided in me, and the fact that the methods used
to convict people have little correlation with guilt, I conclude that
the number of never-exonerated innocent convicts is at least a hundred
times greater than the number of exonerated people. So the number you
ask for is almost certainly in the hundreds of thousands.

But even if it's only one, why should that one innocent convict
be rewarded for successfully simulating remorse, or punished for
truthfully claiming to be innocent? People should be punished
for what they allegedly did, not for whether they admit it or not.

"And who gets to determine who was 'not guilty?' Let me guess, a left
wing 'prison reform' organization?"

In my case, it was the crime victim, who had proof of my innocence,
proof that courts rejected solely because it was untimely. And it
was the federal government, which granted me a high-level security
clearance after I gave the details of my wrongful conviction on my
SF-86 form under penalty of perjury.

"If you are truly remorseful, there is no need for acting lessons or
to 'act' remorseful at the board."

How remorseful are you about assassinating President Kennedy? I would
guess not very, given that you're as innocent of that crime as I am of
the office burglary I was convicted of.

"I'll learn a lot more about an inmate's remorse by his behavioral
record in prison than some crocodile tears in front of a board."

I've never said otherwise. I don't ask that people believe I'm
innocent just because I claim to be, but because my record is
otherwise perfectly clean before and since the 11 days 45 years ago
that I had a particular roommate, who went on to get a long criminal
record, and who finally committed suicide 18 years ago. I had never
even been sent to the principal's office in school, nor have I ever
been fired from any job, been sued, or had anyone seek a restraining
order, protective order, or civil commitment order against me.

The methods used to convict people include:

* The Reid Technique. When used on people stupid enough to trust the
police, this gaslighting method can get a confession from about a
third of guilty people about about two thirds of innocent people,
who are left believing they're criminally insane as they have no
memory of the crime the cops claim they have "overwhelming proof"
they committed.

* Coercive plea bargains. Plead guilty and get a few years, or go to
trial and unless you can afford a million-dollar defense, get life
without the possibility of parole.

* Prisoner's Dilemma. Falsely accuse someone else to get your charges
reduced or eliminated, or risk that someone else will do this to you
first. This was already ancient when used in the Salem Witch Trials.

* Reverse Prisoner's Dilemma. Nice wife (or parent, or adult child)
you have there. It would be a shame if something happened to them.
Something like being charged for your crime if you don't confess.

* Prosecutors tampering with defense witnesses, threatening to charge
them with perjury if they provide you with an alibi.

* Bogus Forensic Science. Not a crackpot theory, but the conclusion
of The President's Council of Advisors on Science and Technology's
recent report, "Forensic Science in Criminal Courts: Ensuring
Scientific Validity of Feature-Comparison Methods."

I could go on and on. They system is not designed to seek truth,
but to seek and maintain convictions. It completely lacks both the
religious/humanist virtue of humility and the scientific virtue of
falsifiability. For these they substitute the bogus virtues of
"finality" and "closure."

Posted by: Keith Lynch | Dec 30, 2022 10:46:06 PM

Keith - congratulations on leading a crime-free life after release. I believe that we only hear one side of the crime situation (a parolee commits a new crime after release) and a success story of parole such as yours doesn't get told often enough thus leading the public to support tough and tougher on crime policies because the public believes that all parolees will commit new crimes. Brett Miler

Posted by: Brett Miler | Dec 31, 2022 10:57:07 AM

Brett Miller: "Keith - congratulations on leading a crime-free life after release."

I'm not sure whether to thank you or to be offended. I've lived a crime-free life my whole life. I certainly wouldn't give any credit to the parole system, other than for releasing me and for not interfering with my life. It's not as if they had somehow reformed me.

Similarly, I congratulate you for not using heroin since age 20.

To get the recidivism rate down, all they have to do is lock up lots of innocent people. And to get the cure rate of a medical treatment up, all they have to do is give the treatment to lots of people who don't have the disease.

Posted by: Keith Lynch | Dec 31, 2022 1:34:15 PM

Keith - I meant that your general story (leading a crime free life after release on parole) should be told more often instead of the typical narrative (a prisoner released early commits another crime - e.g. Willie Horton). I'm sorry if you were offended by my comments. Brett Miler

Posted by: Brett Miler | Dec 31, 2022 3:09:45 PM

Mr. Miller, if the issue is whether criminals should be freed on parole, no number of stories about non-criminals not turning into criminals when they were released on parole have any relevance. It's as if you were to take a purported cancer cure, after which you were found to be free of cancer. That says nothing about whether the treatment is useful unless you actually had cancer.

Posted by: Keith Lynch | Dec 31, 2022 5:04:41 PM


Herein lies the dilemma. I’m sorry, but people you know and have spoken to tells us little. I am sure I have spoken to more convicted felons than you have and I can tell you they are ALL innocent. Just ask them.

You are also confusing “exoneration” and “factually innocent.” Many, many of those are procedural issues that required a retrial. Witnesses who have passed since the previous trial, foggy memories of incidents, prosecutors who do not want to bother doing a retrial on someone who has done 15 of a 20 year sentence gets counted as exoneration when it is nothing of the sort.

You start with an unproven, faulty premise, and then make your argument based on it.

Posted by: TarlsQtr | Jan 2, 2023 9:45:36 PM

"I am sure I have spoken to more convicted felons than you have"

That's certainly possible, but I'm far from sure of it. There were rather a lot of them in the Virginia prison where I spent more than a year.

"and I can tell you they are ALL innocent. Just ask them."

I did, and at least half admitted committing either the crime they were in for or other equally serious crimes. It's a myth that everyone claims to be innocent, especially after they were convicted. The fact that you believe that myth makes me doubt that you've met many felons, except perhaps before they were convicted. Interestingly, they nearly all knew I was innocent even when I didn't make that claim, as I had none of the usual correlates of criminality, such as lying, cheating, stealing, smoking, drinking, gambling, lack of education, boasting about crimes, planning crimes, or frequent cursing. At least one thought I might be in for Watergate, not realizing that those people were all federal, and were all older than me.

As for confusing "exoneration" with "factually innocent," most so-called technicalities are defects in the trial that are so severe that, while their innocence isn't absolutely proven, there's no particular reason to believe they are guilty. For instance they could have raped the victim and left no DNA, and another rapist then left their DNA in the same victim. It could happen. "No reasonable jury, knowing all the facts, could have found them guilty" is a very high bar.

You don't address my argument that most of the methods used to gain convictions have little correlation with truth or justice.

And finally, given that the overwhelming majority of exonerees go on to live crime-free lives, if they are guilty (which I strongly doubt) then maybe more guilty people should be exonerated, given that the goal is to reduce recidivism. I do believe that the record of anyone who lives a crime-free life for several years after being released should be expunged, even if they are guilty, just as all debts are expunged after seven years even if there's no doubt that they were owed but never paid.

Posted by: Keith Lynch | Jan 3, 2023 11:38:23 PM

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