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Debate Club

Will An Apology Save you From Jail?

Richard Bierschbach and Michael O'Hear debate.

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If a criminal apologizes for what he did wrong, a judge may shorten his sentence. But according to a recent Yale Law Journal article by Stephanos Bibas and Richard Bierschbach, the apology should play a role in more than just decisions about length of punishment. A prosecutor perhaps shouldn't press charges against a petty criminal who shows remorse, and the victims of more serious crimes should be brought face to face with a contrite perpetrator for potential reconciliation. An apology, they argue, could teach a moral lesson to a criminal and help a community recover after an act of violence.

No doubt remorse and apology can benefit victims and communities that have been hurt by crime. But would it be a good idea to relieve a criminal of punishment if he's willing to say he's sorry?

Richard Bierschbach is Visiting Assistant Professor of Law at Benjamin N. Cardozo School of Law. Michael O'Hear is Associate Professor of Law at the Marquette University Law School.

Bierschbach: 4/4/05, 10:34 AM
Take a vandal. If he shows remorse and repairs the harm done, why lock him up anyway? We rightly punish even a petty criminal for a number of reasons—to inculcate respect for society's norms, to vindicate the victim, to deter similar acts in the future, to give him his "just deserts." In many cases, a swift face-to-face apology and prompt restitution will go much further toward serving these ends than will formal arrest and prosecution (keep in mind that many petty criminals are just kids, first-time offenders, or both). And it's cheaper, too.

Perceptive prosecutors and judges already know this. It's not uncommon for them to condition dismissal of minor charges on an offender's apologizing and making amends. Some jurisdictions have gone even further by establishing full-time, nonadversarial programs for (among other things) bringing offenders, victims, and others together to discuss their crimes and develop restitution plans. The Red Hook Community Justice Center, in my neighborhood, is one example.

By all accounts, these practices have done nothing to undermine the goals of punishment. The available evidence in fact suggests the opposite: victims who participate in programs like Red Hook feel less upset, more able to forgive and put the crime behind them, and more convinced that the offender has been held accountable. For offenders, participation helps them better appreciate the harms they've caused, overcome barriers to acceptance of responsibility, and visibly recommit to membership in the moral community. Both groups, moreover, come away feeling more respected by the system than they do when put through more traditional court proceedings—a perception which, according to social psychologists, can be an important determinant of compliance. Michael, do think this is a bad state of affairs?

If it isn't, then what about more serious crimes? The difference between the petty vandal and the murderer is, on one level, just a matter of degree. Should we bring the mugger or murderer face-to-face with his victim (or his victim's family) to apologize and express remorse? If he does, should we shorten his sentence?

This last question is a tricky one, and I hope I can say more about it in a later post. For now, let me just point out that the fact of the matter is that we do shorten sentences for contrite offenders—even serious ones—all the time. Interestingly, though, outside of the contexts that I just described, we do this while doing very little else to facilitate any meaningful apologetic discourse between offenders and their victims. Most apologies in serious criminal cases are stilted, one-sided affairs in which the offender says a few words to the judge at a hurried sentencing. But apologies aren't just "for" something. They're also "to" someone—the victim, the families, the community. And if they matter to us in petty cases, they matter even more in serious ones. That being the case, why not create procedural spaces in which these more robust exchanges can occur?

O'Hear: 4/4/05, 06:44 PM
You paint an attractive picture, Rick. Red Hook and similar programs address real deficiencies in the conventional criminal justice system. The system, by and large, treats victims poorly and does little to prepare offenders for successful reintegration into the community. Thus, I find much appeal in an alternative approach that brings together offenders and victims, as you put it, "to discuss their crimes and develop restitution plans." If victims and offenders are both better off in such a system, and no one is worse off, who could possibly object?

Let's not get too carried away, though, with the brave new world of restorative justice. However appealing it may be for some types of crime, this model runs into a host of difficulties elsewhere. What about victimless crimes? What about victims who are not interested in participating or who would be traumatized by confronting their victimizers? What about indigent or disabled offenders who are unable to provide any meaningful form of restitution? What about serious violent crimes, as to which remorse and restitution will always seem inadequate, if not downright insulting to victims? What about hardcore repeat offenders?

Despite the apparent successes of Red Hook, I would not jump to the conclusion that the criminal justice system should be broadly restructured around victim-offender encounters. In my view, the appropriate role of apology and remorse ought to be considered in a very context-specific fashion.

I suggest, Rick, that we focus for a bit on your "tricky" question: Should we shorten the sentence of convicted offenders who apologize? By "apology," I am assuming some sort of articulated acceptance of moral responsibility that goes beyond a mere guilty plea. For now, let's also assume that we are talking about a "naked" apology, i.e., a stand-alone apology during formal sentencing proceedings, and not a negotiated victim-offender restitution plan.

Given these understandings, I have reservations about any apology "discount" at sentencing. First, I doubt that the sincerity of an apology can be accurately gauged by a sentencing judge. Indeed, I suspect that the sincerity assessment may be infected by all sorts of troubling considerations, such as race, class, and the quality of the defendant's lawyer. Second, apology is only appropriate where there is moral guilt. Yet, in our system, moral guilt is not necessary to establish criminal liability. Indeed, it seems to me that our system is increasingly about the preventive detention of people who are believed to be dangerous. In this context, notions of moral responsibility seem out of place. In any event, we have another challenge for the sentencing judge: Not only must the judge try to determine whether an apology is genuine, but also whether an apology is really due, to whom the apology must be made, and what aspects of the offender's conduct the apology should cover. In some cases, these questions will be easy to answer, but in many others they will not. Think of possession, immigration, vice, public order, strict business regulatory, and imperfect self-defense crimes, not to mention the vast number of crimes in which intoxication, addiction, and mental illness have played an important role. Sorting out the scope of moral responsibility in these cases is a daunting task.

Do you find these difficulties troubling, Rick, or am I missing the forest for the trees?

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Bierschbach: 4/5/05, 10:01 AM
Yes, I do find these difficulties troubling—but no more troubling than I find any of the other difficulties that inhere in our system of prosecution and punishment. You rightly caution, for example, that assessments of an apology's sincerity at sentencing "may be infected by all sorts of troubling considerations." But so might assessments of peacefulness, blame, virtue, credibility, and a host of other things that judges (and juries) consider every day in adjudicating guilt and meting out sentences. Should we take these considerations out of their hands as well? If not, what makes an apology different?

Let's make sure we distinguish between two very different types of problems: those that are unique to, or caused by, apology, and those that already exist in the criminal justice system regardless of it. For instance, while I share your concern that apology is only appropriate where there is "moral guilt"—if, that is, by moral guilt, you mean simply "responsible wrongdoing"—it's much less clear to me that this is a good reason to fret over taking apologies into account at sentencing. For one thing, I'm not so sure that many of the examples you give don't involve the sort of responsible wrongdoing for which an apology could be appropriate. Crimes involving addiction or intoxication usually aren't completely without culpability and they inflict real physical and psychological harm on their victims. Even inchoate, diffuse, and "victimless" crimes have palpable effects on neighborhoods and communities, the representatives of which (say, in the form of a jury or a "community reparative board") might well be proper objects of apologies and expressions of contrition.

For another thing, to the extent that we're properly concerned that some "crimes" involve very little harm (or risk of harm) and that some "criminals" bear very little true responsibility for their acts, then my biggest worry isn't with when, how, or if they should apologize. My biggest worry is that a liberal criminal law shouldn't be punishing them in the first place. But to say that this provides a good reason to reject an increased emphasis on apology is to complain about the bathwater when the real problem is the baby (to maul a metaphor, I will readily admit).

To my mind, what makes the "discount" question a tricky one doesn't turn so much on the practical difficulties that might be involved in administering the discount. What makes it tricky is whether a "naked" apology (as opposed to, say, a guilty plea, which saves time and money), offered in a formal sentencing proceeding and induced by the hope of a sentencing discount, is what we should focus on encouraging in the first place.

Now, don't get me wrong. A naked apology of the sort you describe certainly isn't meaningless. But, as a window into the offender's soul, it probably carries its greatest meaning when the offender apologizes for apology's sake rather than out of a mercenary desire to reap a lower sentence. If apologies are valuable only as free, unprompted expressions of conscience, one might plausibly argue that criminal law shouldn't be in the business of watering them down. After all, what better way to address your sincerity concern than by eliminating any possibility of a sentencing credit?

But, as should be apparent from my earlier post, I think the value of expressions of remorse and apology goes well beyond what they might say about an individual offender. Indeed, particularly in the messy context of crime and punishment, I think a great part of the value of these expressions lies in their essential function as social mechanisms of healing, reconciliation, moral education, and reintegration. To serve those functions, they need to be more than mere verbal acts at sentencing. They need to be part of a more nuanced apologetic discourse that contextualizes the crime and the harm done. And a good way to encourage that discourse—which often can be difficult and painful—might be to offer some discount at sentencing for offenders willing to participate.

What do you think, Michael? Is it wrong to use a discount to encourage this sort of interaction?

O'Hear: 4/5/05, 07:27 PM
Rick, I am glad that you raise the question of what purpose an apology discount would serve. I think, first, of the benefit to victims. As you know, victims often express anger at offenders for failing to apologize. Apology—including an acknowledgement that the victim has suffered an undeserved harm, an acceptance of moral responsibility for causing the harm, and a commitment to avoid similar conduct in the future—may help the victim to feel reaffirmed as a human being whose well-being matters as much as anyone else's, and to see his or her suffering as something worthwhile that will produce some ultimate good.

I don't see how these healing benefits can arise, though, unless the victim actually believes that the apology is genuine. Moreover, if a victim perceives an apology to be phony and self-serving, and then the "system" credits the apology and gives the offender a reduced sentence on that basis, I think the victim would feel insulted, devalued, and revictimized. I know I would.

Now, what is the likelihood that a victim will perceive a naked apology at sentencing as genuine? To return to a theme from my first post: context is everything. If we think carefully about the context of a naked apology, there are already two strikes against it before we even reach the effect of a sentencing benefit. First, sentencing occurs at the end of the criminal justice process, by which time the victim has probably already accumulated a host of grievances against the system: pushy lawyers, arcane procedures, too many rights for defendants, too few rights for victims, little or no input into the plea bargain, and so forth. Our victim's sense of trust in the system is wearing thin. Second, the apology is offered, not just by anyone, but by the victimizer—the very person the victim has the least reason to trust. And, remember, this is not an apology right after the crime occurred, but several months later at sentencing. During that period of time, the offender, on the advice of counsel, has likely said nothing to the victim and nothing publicly about the crime (other than perhaps a well-coached statement at a plea hearing). Months of stone-faced silence, and then an apology? This is not likely to impress anyone.

Then, we have strike three: the sentencing benefit. If the victim understands there is a substantial sentence reduction at stake, I can't imagine why any victim would take a naked apology seriously.

I haven't even said anything yet about the profound divisions of race, ethnicity, class, education, sex, and age that separate many victims from their offenders. Effective communication across these divides can be difficult in the best of circumstances. Where these divides exist, an offender may find it almost impossible to convince a victim of his or her sincerity in a brief statement in the formal confines of the sentencing process.

Rick, you have suggested—quite correctly—that the criminal justice system must make determinations about the true state of mind of defendants all the time. But I think there is something uniquely problematic in this context. First, when we make state-of-mind determinations—recognizing the inherent untrustworthiness of a defendant's own self-interested testimony—we normally rely on circumstantial evidence: What can we infer about the defendant's true attitude based on the defendant's objectively determinable conduct? But where is the circumstantial evidence that can help us to verify the honesty of an offender's expression of remorse? Second, the key audience here is not a neutral judge or jury, but a victim who (for reasons suggested above) is apt to be predisposed against believing the defendant.

In this post, I have concentrated on the benefits of apology to victims. I also have a few things to say about the benefit of apology to offenders. I suspect I will have an opportunity to return to that topic. Back to you, Rick.

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Bierschbach: 4/6/05, 12:02 PM
Excellent points, Michael—I think we may not be too far apart on this one. We both agree that naked apologies, offered at sentencing and induced by a discount, may not be the best way of furthering the values that apologies serve. We also both agree that context matters a great deal in this game.

Expressions of remorse and contrition involve more than mere words. They are often conveyed with body language and facial expressions in face-to-face, give-and-take interactions. These interactions humanize the transgression and its consequences. They break down barriers to acceptance of responsibility and frustrate an offender's attempts to neutralize the offense. They allow victims to learn why the crime happened, overcome resentment, recapture self-worth, and come to see offenders as real-life human beings. It's hard to see how any of this can even begin to take place in the formal context of a sentencing proceeding in which, among other things, the victim doesn't even have a legal right to participate (aside from reading a brief victim impact statement in those jurisdictions that allow them).

Are you with me so far? If so, then it seems to me that we need to grapple with a couple of additional questions: First, should we simply eliminate sentencing discounts for naked apologies, including even those accompanied by other evidence of contrition throughout the process? Second, how should we go about encouraging the more nuanced, contextualized, interactive apologetic discourse between victims and offenders that you and I both seem to think carries the greatest promise?

As to the first question, the jury is still out with me. I and most other people, I think, would agree with you that in the ideal world all apologies would be perfectly genuine. But even insincere, ritualistic apologies can have value—why else would victims insist on precisely these types of pro forma apologies as conditions of plea bargains or (in civil cases) settlements, which they in fact often do? Then there's the even tougher theoretical issue: Do genuinely remorseful and apologetic offenders simply "deserve" (whatever that means) a lower sentence than unremorseful and unapologetic ones? If they do, should we nevertheless make discounts unavailable as a matter of law because of more global concerns about gauging sincerity in general? Doing so, I note, would require a radical change in existing law: Judges and (in capital cases) sentencing juries overwhelmingly believe that offenders who are sincerely contrite deserve less punishment than those who aren't, and they adjust their sentences accordingly. But should they?

As to the second question, let me just toss out a few alternatives. Alternative (1): We could create some sort of procedural space as an adjunct to the formal punishment process, such as a victim-offender mediation program, in which these interactions could take place, and leave it up to victims and offenders to participate as they desire. Alternative (2): We could create the space, and incentivize at least offenders to participate by holding out the possibility of a sentencing discount if they do. Alternative (3): We could order offenders to participate in such programs as part of their "punishment." Do any of these (or some other alternative) strike you as a good idea, Michael?

O'Hear: 4/6/05, 06:52 PM
I think you have identified some important common ground, Rick, and the questions you pose seem a good way to proceed. First, you ask, "Should we simply eliminate sentencing discounts for naked apologies, including even those accompanied by other evidence of contrition throughout the process?" Let's break this question down, and distinguish between the true naked apology and the apology "accompanied by other evidence of contrition."

As to the true naked apology, I say no discount should be offered. This sort of apology is profoundly unreliable, especially when there is an expectation of a sentencing benefit. Because the offender's sincerity cannot be meaningfully assessed by reference to any objective criteria, an apology discount in this context is not likely to be administered in an honest, evenhanded fashion. Moreover, as I suggested in my previous post, when the apology discount is granted, I think the victim is about as likely to feel insulted as affirmed. And, as for moral education, what is the lesson conveyed here: Empty words count more than real conduct? Judges are easily hoodwinked? Lenience is won by good coaching from a good lawyer?

As you point out, Rick, judges, juries, and victims often say that they care about apologies. But, even taking their statements at face value, surely what they have in mind is a credible apology. Moreover, when judges purportedly base a sentence on a defendant's remorse (or lack thereof), I wonder how often this is actually a cover (conscious or not) for a different sort of decision. For instance, the Federal Sentencing Guidelines offer a sentence reduction for "acceptance of responsibility." Sounds like our apology discount, right? Not really. As you know, Rick, "acceptance of responsibility" actually operates as an incentive for plea-bargaining: if the defendant merely enters a guilty plea, the defendant will almost always be found to have accepted responsibility for the crime. Thus, what might pass at first blush for an apology discount is really all about the quite different policy decision to expedite case-processing by encouraging prompt guilty pleas. How often is the apology discount used similarly as a cover for accomplishing other objectives that we are not entirely comfortable articulating in an explicit fashion?

The closer question is sentence discounts for not-quite-naked apologies. I'll go out on a limb and answer: maybe sometimes, but with great caution. If there is really some additional conduct to validate the sincerity of the apology delivered at sentencing, then my objections to the apology discount are considerably weakened. Here are my concerns. First, the defendant who is incarcerated between the time of arrest and sentencing (say, because of a financial inability to post bond) may not have a fair opportunity to do anything but offer a naked apology at sentencing. Second, defendants with financial resources will have opportunities to make voluntary restitution that poor defendants lack, and voluntary restitution may be seen as the most compelling support for the genuineness of an apology. Third, to the extent that the apology discount requires the defendant to demonstrate acceptance of responsibility before formal conviction, there may be some tension with constitutional rights like the privilege against self-incrimination. Fourth, I am still troubled by the prospect of a judge accepting an apology that the victim rejects.

Next, you ask, "How should we go about encouraging the more nuanced, contextualized, interactive apologetic discourse between victims and offenders that you and I both seem to think carries the greatest promise?" I think we would agree that your "alternative 1" (voluntary victim-offender mediation) is a good idea. Not surprisingly, I have reservations about the more coercive alternatives. That said, I am not entirely opposed to requiring (or incentivizing) "participation" in a mediation program; I might see a difference between a coerced meeting (process) and a coerced apology (outcome). These things need to be handled with great care, though, so that victims neither waste their time nor are traumatized by encountering their victimizers in a poorly managed way. I wonder if the benefits of a mandatory program are worth the costs and the risks.

Your turn, Rick.

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Bierschbach: 4/7/05, 02:06 PM
I share some of your remaining concerns about discounting even for "not-quite-naked" apologies, as you call them. But it's not clear to me that those concerns are wholly beyond the reach of potential reforms. For instance, we could provide incarcerated defendants with an opportunity to meet with their victims between the time of arrest and sentencing. (Some mediation programs already do this.) To the extent we have Fifth Amendment worries, we could prohibit the use of any pre-conviction evidence of contrition until the sentencing phase of the proceedings. (In the civil context, several states have recently amended their evidentiary rules to provide "safe harbors" for efforts at apology.) We could admonish judges not to equate an inability to pay restitution (and similarly inappropriate considerations) with a lack of remorse or contrition, especially where they see other evidence to the contrary.

Of course, other worries of the sort you identify will still remain. And none of this speaks to my earlier question of whether even genuinely apologetic offenders "deserve" a discount to begin with. We don't (or at least we're not supposed to) punish offenders for having bad characters. We punish them for past wrongdoing. How do after-the-fact expressions of contrition or apology affect the wrongfulness of conduct that occurred earlier in time?

Now, I know that this question assumes a particular conception of desert, and that even then it's a vast oversimplification. But I'm raising it anyway to highlight a point that neither of us has explicitly articulated yet: If sentencing discounts for apology and contrition are primarily about anything, it seems to me that what they are about are the forward-looking benefits of encouraging (or rewarding) the kind of apologetic discourse we've been discussing, and not about any backward-looking benefits tied to properly gauging the inherent "goodness" or "badness" of the offender.

Which brings me back to the question from my last post: Why not just use discounts, then, to encourage offenders to participate directly in mediation programs that help to capture those benefits? For that matter, why not just call a spade a spade and make participation mandatory?

I myself am highly skeptical of mandatory programs, for at least a couple of reasons. First, we just don't have much empirical evidence about whether their benefits are worth their costs and risks, as you're right to ask. Virtually every significant program of which I'm aware allows some kind of opt-out for offenders who absolutely aren't interested.

Second, it's not clear to me how we could implement a truly mandatory program without offending many of the values that we're trying to promote. Forced apologies, denunciation rituals, and other "shaming" sanctions have been making a comeback for a while now, and there is reason to believe that, for at least certain classes of offenders and crimes, they more efficiently deter and better vindicate victims than do the available alternatives. In that sense, their "benefits" clearly outweigh their "costs." But would either of us advocate these? I'm pretty sure you wouldn't, and I know I wouldn't. To be sure, no mandatory "mediation" program need go this far. If the offender were truly unwilling, however, I'm not sure the result would be much different (to say nothing of the risks of re-victimization that would go along with it).

Where does this leave us, Michael?

O'Hear: 4/7/05, 07:29 PM
It has not escaped my attention, Rick, that you have invited me several times this week to take a strict just deserts position. As you suggest, this position may be fundamentally inconsistent with any sort of apology discount. This, however, is not my position. I am a pragmatist and my objective is a criminal justice system that takes dangerous people off the streets, deters harmful misconduct in an efficient manner, contributes to the recovery of victims, and generally operates with sufficient rigor and evenhandedness such that its judgments deserve (and receive) the respect of victims, offenders, and the public at large. While the just deserts approach to sentencing strikes me as a pretty good starting point towards the advancement of these goals in most cases, I would not make a fetish of desert.

Thus, assuming an apology discount that (1) is administered in a rigorous and evenhanded manner, (2) embodies respect for victims, and (3) is not so indiscriminately generous as to undermine crime control, I have no particular objection. I just don't think we've yet come up with an apology discount that really satisfies all of these criteria.

Where are we then?

First, I would give no discount ever for a truly naked apology.

Second, I am reserving judgment on the discount for a not-quite-naked apology, but I am skeptical. I agree that your proposed reforms (e.g., ensuring an opportunity for privileged, pretrial mediation sessions) would help to address my concerns. I'm still not confident, though, that this system would operate in a manner that participants really perceive as fair. There are, I think, many difficult questions. What about the defendant who makes every effort to engage in good-faith mediation, but who has an uninterested or unreasonable victim? How do we handle disagreements between the victim, prosecutor, and judge over whether the offender's acts and expressions of remorse have been adequate to qualify for the discount? What do we say to the victim when the offender admits to the crime during mediation, but then goes to trial and subjects the victim to brutal cross-examination? (And, remember, going to trial is not inconsistent with a sincere apology. A defendant may have a good legal defense to the crime, or fear the application of an unreasonable mandatory minimum sentence, or want to preserve challenges to illegal police conduct.)

I do not mean to hold the system to impossible ideals of uniformity and fairness. (This wouldn't be very pragmatic.) But, at some point, the risks grow unacceptable of making a lot of decisions that are perceived to be inconsistent, unprincipled, or insulting.

All of this may counsel in favor of limiting the discount to low-level crimes. There is less at stake for everyone in the resolution of these cases and I suspect that participants accordingly have somewhat lower expectations of strict procedural regularity. The discount is unlikely to compromise serious public safety concerns. Victims and offenders are more likely to come up with mutually satisfactory restitution plans. If we can figure out how to handle the fairness problems in small cases, I would be open to experimenting with bigger cases.

In any event, note that what I am now referring to as the not-quite-naked apology has morphed into "alternative 2" from your post of two days ago. Moreover, I think you are right to suggest that we should call a spade a spade: creating a sentencing "incentive" to participate in mediation really is no different than making mediation mandatory in most cases. And neither of us is very comfortable that outcome.

Are you ready to abandon the project? Shall we keep apology where it most obviously belongs: a purely voluntary interaction that occurs outside the formal criminal justice system?

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Bierschbach: 4/8/05, 01:17 PM
I'm not ready to throw in the towel just yet. Let me start by laying out where I think things are. I'd agree with you that, at this point, discounts for naked apologies aren't looking so hot. I'd also agree with you that, in the best of worlds, purely voluntary victim-offender mediations represent the ideal (of course, we'd still want to integrate these programs with our formal processes much better than we currently do). Some offenders, no doubt, will certainly participate in mediation programs regardless of any discount. But many more, I think, will be wiling to do so if participation at least carries with it some possibility—maybe the more opaque, the better—of being factored into their sentencing, through a discount or otherwise.

Quite a carrot, I know. But I'm actually not sure that this is really "no different" than simply ordering offenders to participate. Keep in mind that the vast majority of existing victim-offender mediation programs, though they often classify themselves as "voluntary," aren't actually so in the purest sense of the word. To be sure, offenders who participate, are given a clear choice to do so. But they virtually always make that choice against the backdrop of some coercive alternative: formal conviction and sentencing (a common one), a fine, community service, you name it. This kind of "encouragement" to participate, without more, doesn't seem to have corrupted these programs by turning them into forced shaming regimes. It's not clear to me that a discount of the type we've been discussing wouldn't operate in the same way.

But can the discount be fairly administered? What about the offender whose victim has no interest in participating? What if the victim rejects an apology or feels insulted? Here, I think you've hit upon a tough issue that we haven't yet discussed. It boils down to this: How much, if at all, should the victim's views regarding the offender's apology (or attempted apology) substantively affect the offender's sentence?

My very short—and somewhat tentative—answer is, not much. Promoting apologetic discourse between victims and offenders to further substantive criminal law goals is one thing. Ceding a veto power to victims, which moves quite a ways toward converting punishment into a matter of private redress between individuals, is another. Obviously, a bit of balancing is required here. Victims and offenders, for instance, should have some room to negotiate over restitution and perhaps even other aspects of sentence. But we'll want them to do so against the background of monitoring and review mechanisms that establish guidelines and take some options off the table. We'll also want to screen victims and offenders pre-mediation (as is commonly done) to guard against dangers of traumatization, re-victimization, or outright revenge. (Empirically, by the way, most victims are a lot less vengeful than people think. It's only the outliers that make the news.) If a victim doesn't want to participate, an offender could do so anyway (and still be eligible for the discount) by meeting with a community reparative board or similar body instead.

What's the upshot of all of this? I think I'd still hold out the possibility of some sentencing discount for offenders who are willing to participate. But the more specific—and, I think, even more difficult—issues turn on how far we can take this idea for different types of victims, offenders, and crimes. Michael, I think you're right that we should start with low-level crimes and, I would add, with juvenile offenders. Those areas are the sources of much (although not all) of the existing empirical work. As I've said, that evidence so far looks very promising. But, if we're going to move forward with this (and I think we should), much more empirical work and many more tough questions are in order. And, Michael, in light of the conversation we've just had, I hope you're one of the questioners.

O'Hear: 4/8/05, 05:23 PM
I'm glad you've focused attention on the significance of the victim's response to an apology. This is one of my big concerns about the apology discount: a judge effectively assumes the power to "accept" an apology on behalf of the victim. This practice strikes me as insulting to the victim. It also strikes me as counterproductive, if our goal is to encourage acts and expressions of remorse that are genuinely meaningful and healing to victims. If the judge decides, then the judge is the offender's real audience, and the offender has little incentive to tailor his or her apology to the particular needs of the victim. In short, my instincts differ from yours on this point: If apology is going to be relevant at sentencing, then the victim should have a lot to say about exactly how relevant it will be.

But how do we include victims in the sentencing process in a way that is fair to everyone concerned and that does not unduly "privatize" criminal justice? Let me suggest an approach that is somewhat different than the apology discount we have been discussing: the negotiated sentence. (Sorry to spring a proposal on you, Rick, after you have made your last post, but I think this may be where you were headed in some of your final comments anyway.) Here's what I have in mind. Sentencing becomes a two-stage process. First, the judge establishes the parameters within which negotiation will take place. This preliminary sentence would include (1) the minimum sentence that is absolutely necessary to satisfy the public's interest in deterrence (e.g., six months in jail followed by three years of supervised release), and (2) a menu of additional options that are within the range of what could be considered a reasonable sentence in light of public crime control needs and financial constraints (e.g., an additional three months in jail, an additional two years of supervised release, a $1000 fine, financial restitution to the victim, public apology to the victim, community service). Second, victim and offender negotiate (with the aid of a trained facilitator) to find a mutually agreeable package of options from the menu created by the judge. If they are unable to agree, then the judge decides.

If you think about it, the negotiation process in and of itself is capable of accomplishing many of the things that you hope apology will do: it forces victims and offenders to confront one another as real human beings with unique needs and desires to which attention must be paid; it sends the message that victims and offenders alike are autonomous and accountable moral agents free to make choices that really matter; and it sends the message that they must live with the consequences of those choices. In short, negotiated sentencing treats victims and offenders as subjects, not as objects—the typical mode in which our dysfunctional criminal justice system operates.

This is, of course, a recipe for wildly inconsistent sentences. (But, if the outcomes are freely agreed to by the participants, I'm not sure there is any need to be concerned about inconsistency per se.) Doing it right would also be expensive: those mediators will have to be really good and have lots of resources to prevent abuse and help people come to agreement who have every reason to distrust one another. There are a host of other practical challenges. As you suggest, Rick, this sort of thing has already been tried in certain limited classes of cases, particularly juvenile cases, and there may or may not be fair, cost-effective ways to roll out the concept more broadly.

In any event, I think we've come a long way from a simple apology. Indeed, the course of our discussion may suggest an important lesson: what we really care about is not apology per se, but a criminal justice system that is less bureaucratic and more attuned to the real human needs of victims and offenders. At the risk of oversimplifying our conversation this week, our differences may largely come down to this: you see the apology discount as a useful component within a broader, humanizing reform agenda, whereas I see the apology discount as more reinforcing of the old bureaucratic paradigm, with the judge exercising broad discretion in an opaque fashion and the victim ultimately reduced to the role of a passive bystander.

I enjoyed the conversation, Rick, and I look forward to future dialogue.

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