Remorse, Penal Theory and Sentencing

by Hannah Maslen

Overview

This monograph addresses a contested but under-discussed question in the field of criminal sentencing: should an offender's remorse affect the sentence he or she receives? Answering this question involves tackling a series of others: is it possible to justify mitigation for remorse within a retributive sentencing framework? Precisely how should remorse enter into the sentencing equation? How should the mitigating weight of remorse interact with other aggravating and mitigating factors? Are there some offence or offender characteristics that preclude remorse-based mitigation? Remorse is recognised as a legitimate mitigating factor in many sentencing regimes around the world, with powerful effects on sentence severity. Although there has been some discussion of whether this practice can be justified within the literature on sentencing and penal theory, this monograph provides the first comprehensive and in-depth study of possible theoretical justifications. Whilst the emphasis here is on theoretical justification, the monograph also offers analysis of how normative conclusions would play out in the broader context of sentencing decisions and the guidance intended to structure them. The conclusions reached have relevance for sentencing systems around the world.

Product Details

ISBN-13:	9781509915439
Publisher:	Bloomsbury Academic
Publication date:	06/29/2017
Pages:	232
Product dimensions:	6.14(w) x 9.21(h) x 0.48(d)

About the Author

Hannah Maslen is a Research Fellow in Ethics at the Uehiro Centre for Practical Ethics, University of Oxford, and a Junior Research Fellow at New College. She is also a James Martin Fellow at the Oxford Martin School.

Table of Contents

Preface vii

Acknowledgements ix

1 Remorse and its Relevance to Penal Theory 1

Overview of the Book 2

Part I Retributive Arguments 3

Part II Remorse and Sentencing Practice 4

Setting the Scene: Remorse 5

Gaita's Account of Remorse 6

Distinguishing Shame from Remorse 8

Distinguishing Guilt from Remorse 9

Distinguishing Regret from Remorse 10

Clarifying Remorse 10

Setting the Scene: Penal Theory 12

Classical Retributivism 13

Modern Retributivism 15

Benefits and Burdens Retributivism 16

The Penance Perspective on Retributivism 16

Censure and Sanction Retributivism 17

Contribution of the Book 17

Part I Retributive Arguments

2 The Changed Person Argument 21

Parallels with the Time Delay Argument 22

The Strong Thesis: Change and Personal Identity 23

Discontinuity of Identity 25

Remorse Presupposes an Enduring Self 28

The Weak Thesis: Change and Blameworthiness 30

Blameworthiness as the Attribution of Responsibility to the Offender 31

Blameworthiness as the Moral Assessment of the Offender 38

Conclusion 39

3 The Reduced Harm Argument 41

Criminal Harm and Wrongdoing 42

The Living Standard Analysis of Harm 44

How Might Remorse Repair a Victim's Living Standard? 45

The Living Standard Time Frame 46

Distinguishing Between Time Frames 48

Challenging the Set Harm View 49

Harm Reduction and Risked Harms 54

Humiliation on the Living Standard Account 55

The Harm of Wrongdoing 57

Summary and Conclusion 60

4 The Already Punished Argument 62

Natural Punishment 62

Punishment Proper 64

Subjective Versus Objective Metrics of Punishment 65

Theory One: Benefits and Burdens 68

The Benefit of Satisfaction 69

Remorse as Dissatisfaction 70

The Benefit of Freedom 72

Remorse Re-imposes Self-restraint 73

Theory Two: Duff and the Penance Perspective 75

State Punishment and Self-punishment 76

Eliciting Repentance 78

Expressing Repentance 79

Self-punishment can constitute some of the Deserved Punishment 81

Duff's Vacillation 83

Theory Three: von Hirsch and Ashworth-Censure and Sanction 84

Remorse as a Substitute for Sanction 84

Remorse as a Deterrent 85

Remorse as Delivering Censure 87

Remorse as Reattachment to Normative Reasons to Refrain 88

Conclusion 88

5 The Responsive Censure Argument 90

Overview 90

Blameworthiness and Blame 91

Affecting the Severity of the Blame Deserved 94

The Centrality of Censure to Communicative Retributive Theories 95

The Case for Responsive Censure 98

The Core Argument 100

Support from Communicative Retributive Theories: Rational Agency 101

Some Preliminary Concerns 102

Remorse is the Offender's Ideal, Relevant Contribution to the Dialogue 103

Quasi-retributive Grounds and von Hirsch and Ashworth's Time Delay Argument 104

Mitigation of Punishment is Necessitated by Responsive Censure 107

An Argument Against the Plausibility of Thinking of Punishment in Dialogical Terms 108

Conditions for Dialogue 109

The Problem of Offender Unwillingness 110

The Problem of the Performative Nature of Condemnation 111

Remorse and the 'Generic-script' Problem 114

Current Practice is Insensitive to Offenders' Attitudes 115

Summary 116

Conclusion 117

6 The Merciful Compassion Argument 119

Responsive Censure and the Exercise of Mercy 120

The Role of Mercy 122

A Closer Look at the Internal-External Distinction 123

Mercy and its Relationship to Retributive Justice 125

What Makes a Value Internal to a Conception of Justice? 125

What Makes Mercy Internal to Penal Justice? 126

Contrasting Mercy with Leniency 127

Does Tasioulas Succeed in Positioning Mercy Internally? 128

Problems with Tasioulas's Account 129

The Unique Nature of Remorse 130

Summary 131

Further Reasons to Prefer My Account 132

Why We Need a Principle Rather than Merciful Discretion 133

Could Mercy Constitute a Principle? 133

Conclusion 134

Part II Remorse and Sentencing Practice

7 From Murder to Marijuana: A Nuanced Approach to Remorse-based Mitigation 139

The Relevance of Offence Type 141

The Sentencing Council's Consultation on Sexual Offences 142

Offence Type and Responsive Censure 145

Offence Type and Merciful Compassion 146

Consequentialist Aims 147

The Relevance of Offence Seriousness 147

Offence Type, Seriousness and the Morally Sufficient Response 149

Mala Prohibita Offences and Civic Duty 150

'Victimless' Offences 155

Offences Causing Lesser Harm 156

Quantum of Mitigation 157

Current Levels of Guidance and Adding Nuance 159

Conclusion 160

8 The Remorseful Recidivist 161

The Mitigating Effect of Remorse 163

The Penal Relevance of Previous Convictions 165

Progressive Loss of Mitigation and the Lapse Theory 165

Remorse and Previous Convictions on the Lapse Theory 167

The Enhanced Culpability Model 169

The State of Mind of the Repeat Offender 170

Foresight and Culpability 171

Remorse and Previous Convictions on the Strong Culpability Model 173

Remorse and Previous Convictions on the Weak Culpability Model 175

Remorse, Previous Convictions and Attuned Censure 176

Summary of Consequences for Sentencing 176

Remorse and Recidivism in Practice 177

Implications for Sentencing Guidelines 178

9 Remorse in the Sentencing Guidelines 180

England and Wales 181

Remorse in the Sentencing Guidelines of England and Wales 182

Generic Guidelines: Offence Seriousness and Sentence Reductions for a Guilty Plea 182

Guidelines Limiting the Influence of Remorse 183

Guidelines Supporting a More Extensive Mitigating Role for Remorse 185

The Sentencing Council Guidelines 187

Remorse in Sentencing Practice in England and Wales 188

Remorse in Other Jurisdictions 190

The Victorian Sentencing Manual 190

The Nature of Remorse 192

Standard of Proof for Remorse 194

Stage at Which Remorse is Shown 194

Serious Violent Offences 195

New Zealand Sentencing Act 195

United States Sentencing Manual 197

Acceptance of Responsibility 199

Conclusion 202

10 Implications for Penal Theory and Sentencing 203

Index 207

Editorial Reviews

"[R]etributive scholars will no doubt relish and debate Maslen's highly sophisticated contribution to theory [...]." --Criminal Law Quarterly, 62

"[A] very readable book...one which summarises theoretical writings in ways which are very engaging...It is like eaves-dropping at a conference of penal philosophers, with a glass of wine in your hand." --The Cambridge Law Journal

"Remorse, Penal Theory and Sentencing is a clearly structured, well-written and carefully argued examination of retributive arguments for why offender remorse should be treated as a mitigating factor in sentencing. It should serve as a necessary reference point in future discussions of remorse and sentencing." --Journal of Applied Philosophy

"Having laid a convincing theoretical foundation for the justification of remorse as a mitigating factor for deserved censure, the second part of Maslen's monograph reads like a bucket of ice water in the face, as she shows the injustice of the current arbitrary, inconsistent, and often illogical consideration of remorse as mitigating factor in the sentencing practices of various jurisdictions." --New Journal of European Criminal Law

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