remorse-detectingremorsepaper.doc

13 a number of commentators have pointed to the gap

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13. A number of commentators have pointed to the gap between the judicial interpretation of guilty pleas as indicators of remorse and the defendant’s awareness that a plea of not guilty creates the risk of a more severe sentence if convicted- see, for example, Bordens and Bassett(1985) which shows convincingly how far apart defendants’ actual reasons for pleading guilty are from how they are interpreted by the court. See also Bush (1985) for evidence of judicial recognition that a defendant’s plea of guilt may not originate from feelings of remorse and hence should be given no weight in sentencing. This still leaves open the question of whether the absence of a guilty plea should be viewed as an absence of remorse and hence be weighted as an aggravating factor. Either way, the result is that defendants who exercise their right to a trial are at risk of more severe sanctions if they are convicted than if they had pleaded guilty. More recently, McConville and Mirsky have suggested that the criminal justice system uses overcharging to induce guilty pleas from populations whose members if only by virtue of their criminal records are then subject to the surveillance of the state(McConville and Mirsky, 1993.) 14.This case is cited in the Canadian Sentencing Digest as an example of a demonstration of remorse that resulted in a substantial reduction in sentence- R. v. Martin (1984), 333. 15. An earlier case illustrates this demand for greater display in relation to certain offenses. Here, an offender who had been convicted of having sexual relations with his daughter is described as not
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showing enough regret- “We are not satisfied that (his) expressions of remorse arise from a genuine regret for the manifest harm he has done to the infant victims.When pressed about whether or not he believed that his actions caused harm to his young victims, he was defensive and evasive. He gave his evidence listlessly- in monotone... he seemed somewhat indifferent to whether he had done harm to the children.” P(D.M.)(Re) (1989) 16.This case is also cited in the Canadian Sentencing Digest as one of the judgments that define the meaning of remorse- R. v. Johnson (1976.) 17.Joseph Gusfield makes a similar point when he distinguishes among the repentant deviant, the sick deviant, and the enemy deviant- Gusfield(1967.) 18.So protean a thinker as Durkheim has been identified with interpretivist approaches to deviance and symbol systems as well as with the crassest forms of sociological scientism. In the present context, I acknowlege a debt to Durkheim for his vision of society as a moral order and for his analysis of social action as expressive and passionate rather than simply instrumental. At the same time, it is possible to draw from Durkheim’s insights without accepting his reified view of society as a monolith. See Alexander(1988) for a fuller discussion of Durkheim’s lasting contribution to a non-reductionist approach to the study of social action in relation to cultural symbols.
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