Integrating Remorse and Apology into Criminal Procedure

Source: (2004) Yale Law Journal. 114: 85-148.

As Stephanos Bibas and Richard Bierschbach observe, remorse and apology are powerful forces in everyday life. Expressions of remorse and apology are required or ritualized in many spheres of life xe2x80x93 family, religion, and politics, to name but a few. People value remorse and apology because they promote healing of emotional wounds, teach moral lessons, and foster repair of damaged relationships. Bibas and Bierschbach also note how significant these expressions can be in the criminal arena. Victims and victimized communities often experience remorse and apology as essential elements of justice in the aftermath of crime. Yet, the authors point out, remorse and apology play little role in criminal procedure. In the assembly line approach to criminal justice, these expressions figure in at most as indicators that individual defendants are less bad and hence deserving of less deterrence, incapacitation, or retribution. Bibas and Bierschbach characterize this defendant-centered approach to remorse and apology as the xe2x80x9cindividual badness model.xe2x80x9d The authors criticize this approach and argue instead for remorse and apology as fundamental to social interactions and relationships. Referring to this as a multi-actor perspective on remorse and apology, they term it the xe2x80x9crelational approach.xe2x80x9d In this paper then, Bibas and Bierschbach explore remorse and apology as powerful rituals for offenders, victims, and communities xe2x80x93 rituals that should be incorporated into criminal procedure.