remorse-detectingremorsepaper.doc

Approaches to culpability and punishmenthaley 1995

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approaches to culpability and punishment(Haley, 1995; Massaro, 1991; Wagatsuma and Rosett,1986) This focus on representation differs from previous research on the role of remorse in law in that it -4-
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emphasizes the symbolic significance of remorse rather than its instrumental character in predicting or eliciting particular behaviors. Thus, for example, remorse has been studied for its possible correlation with renunciation or successful rehabilitation. The work of Robert Hare and others who include remorse as one among several factors that predict anti-social behavior is illustrative of this approach(Hare, 1993;Pollock et.al.,1991). 3 Or remorse has been identified in jury simulations as a major factor in reducing or amplifying sanctions towards various types of criminal conduct(Robinson et. al., 1994; Taylor and Kleinke, 1992.) Such studies have suggested that a claim of remorse that is validated will result in jurors recommending less severe sentences than if the offender had displayed no remorse. In contrast to these approaches, this paper begins with a question that is prior to how remorse affects conduct or social response-namely, how the category of remorse -5-
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itself is shaped through the social practices of legal discourse and how these practices provide a window into the ideological assumptions underlying our conceptions of the relationship between the individual and the community. WHY LAW? I have chosen law as a site for studying the construction of remorse as a social category for several reasons. For one, it is surprisingly under- examined given its centrality in the different phases of the official response towards criminal misconduct. Most obviously, remorse is an explicit component of sentencing guidelines in both Canada and the United States (Canadian Sentencing Digest,1980, Federal Sentencing and Law Practice, 1989, O’Hear, 1997). Even where it is not mandated as a factor to be weighed in sentencing deliberations, assessments of remorse -6-
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nevertheless figure as a part of other categories such as dangerousness, heinousness, and brutality that in turn bear upon decisions relating to dangerous offender legislation in Canada and to capital punishment in the United States(Marquart, Ekland-Olson, and Sorenson, 1989,pp. 457-459.) 4 Moreover, the few articles that have looked at jurors’ deliberations in capital cases suggest that remorse is one of the issues that weigh heavily in their decisions about sentencing(Costanzo and Costanzo,1992,especially pp.198-199;Costanzo and Peterson, 1994, pp.137-138). 5 Of course, issues of remorse are even more ubiquitous in decisions affecting parole where parole boards in Canada and the United States routinely request information from parole officers about whether the offender feels or shows remorse for their misconduct.
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