Showing Remorse: Law and the Social Control of Emotion

158 Pages·2014·9.41 MB·English

by  Richard Weisman

Showing RemoRSe
whether or not wrongdoers show remorse and how they show remorse are matters
that attract great interest both in law and in popular culture. in capital trials in
the United States, it can be a question of life or death whether a jury believes
that a wrongdoer showed remorse. And in wrongdoings that capture the popular
imagination, public attention focuses not only on the act but on whether the
perpetrator feels remorse for what they did. But who decides when remorse should
be shown or not shown, and whether it is genuine or not genuine? in contrast to
previous academic studies on the subject, the primary focus of this work is not
on whether the wrongdoer meets these expectations over how and when remorse
should be shown, but on how the community reacts when these expectations are
met or not met.
This book will be of interest to those in the fields of sociology, law, socio-legal
studies, and criminology as well as to those readers with a general interest in the
topic of remorse.
While contemporary criminal justice is officially secular and fact-driven,
offenders are nevertheless expected to show remorse, and lack of visible remorse
can have a marked negative impact in parole and probation contexts as well as
in sentencing. in this innovative work, Richard weisman explores the complex
emotional, psychological, and legal issues raised by the criminal justice’s system
unwritten expectations about offending and remorse. The book will be of interest
to criminologists, sociolegal scholars, forensic psychologists, defence lawyers,
and judges, but it is also accessible to the general public.
Mariana Valverde, University of Toronto, Canada
For April
For Dan and Steve
Showing Remorse
Law and the Social Control of emotion
RiChARd weiSmAn
York University, Canada
First published 2014 by Ashgate Publishing
Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA
Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright © 2014 Richard weisman
Richard weisman has asserted his right under the Copyright, designs and Patents Act,
1988, to be identified as the author of this work.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any
form or by any electronic, mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information storage or retrieval system,
without permission in writing from the publishers.
Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only
for identification and explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
The Library of Congress has cataloged the printed edition as follows:
weisman, Richard.
Showing remorse : law and the social control of emotion / by Richard weisman.
pages cm. -- (Law, justice and power)
includes bibliographical references and index.
ISBN 978-0-7546-7398-9 (hbk. : alk. paper)
1. Law--Psychological aspects. 2. Remorse. I. Title.
K346.W45 2014
302.5’4--dc23
2013023953
ISBN: 978-0-7546-7398-9 (hbk)
ISBN: 978-1-3156-0908-9 (ebk)
Contents
Acknowledgments vii
1 Towards a Constructionist Approach to the Study of Remorse 1
2 Being and Doing: The Judicial Use of Remorse to Construct
Character and Community 23
3 Making Monsters: Contemporary Uses of the Pathological
Approach to Remorse 47
4 Defiance 75
5 Remorse and Social Transformation:Reflections on the
Truth and Reconciliation Commission of South Africa 103
6 The Social and Legal Regulation of Remorse 129
Bibliography 135
Index 147
This page has been left blank intentionally
Acknowledgments
This project grew as a residue from my earlier research. Some 30 years ago, I had
studied one of the most famous trials in American history—the Salem witchcraft
trials of 1692—and what had remained memorable for me years later was not
so much the moral panic that led to the execution of 19 innocent persons, as the
efforts by those who participated in the hangings to undo the harm that had been
caused. A decade later, I undertook to study an experiment involving psychiatric
offenders who had been classified as psychopaths and after interviewing them and
the persons who worked with them, I became aware how important it was to all
who were involved whether those who had offended experienced remorse and how
difficult it was to find agreement on the matter. When legal databases first became
available in the middle 1990s, I began to explore how the term “remorse” was
applied with a research tool far more powerful than any I had encountered before.
The more places I looked, whether in law, in trials that captured the attention of
the public, in news items, or in other public forums, the more I found. The result
was a vertiginous experience that took me from wrongful convictions to crimes
of obedience to societal shifts, such as what occurred in the Massachusetts Bay
Colony in 1692, to the depiction of persons as monsters and as heroes, as well as
to many other sites too numerous to mention. This book is the fruition of that long
germinating process that began in the 1990s and even now I am left with many
unanswered questions about a topic that still fascinates me.
A project of this length would simply have been impossible to sustain without
the support of family, friends, as well as my colleagues and students at York
University in Toronto. I am grateful for the continuing contact I have had in the past
20 years with the vibrant community of socio-legal scholars at my own university.
The dialogue I have had with the serious young scholars in my graduate seminars
on the Social Dimensions of Legal Discourse has been at least as enriching for
me as hopefully it has been for my students. I must mention my former student
and now professor Augustine Park for her work as research assistant for part of
this project as well as her many thoughtful insights. Thanks to Austin Sarat for his
support and encouragement to publish my research. I thank my dear colleagues in
the Law and Society Program, especially Annie Bunting, Kimberley White, Jane
McMillan, Allyson Lunny, and Dorathy Moore for their continuing appreciation
and interest in my work and for presenting me with opportunities to share my
ideas. I am indebted to Thomas, Joanne, Gabriel, and Paul for their openness in
sharing the experiences they had in their encounters with the Canadian criminal
justice system. I have been particularly fortunate to have the support of my
friend and colleague, Justice David Cole of the Ontario Court of Justice, for his
viii Showing Remorse
generosity, for his belief in and support for my research, and for his many helpful
suggestions. My good friend and former student, Chris Adamson, sociologist,
novelist, and short-story writer, has kindly read and offered wise and informed
commentary on the manuscript—any blunders or awkward passages remain of
course my responsibility. Chris and I have kept communion over the years on the
joys and agonies of the creative process.
I owe the deepest of thanks to my family. In the time that it has taken for me
to conceive of remorse as a researchable topic to the completion of this book, my
sons, Dan and Steve, have grown from young boys to intelligent young adults—
both have given me the priceless gift of goodwill and respect for my creative
process. My partner, April, has given me the equally priceless gift of believing in
me and in the value and importance of the project through the years it has taken to
get to this point. It is to April, Dan, and Steve that I dedicate this book.
Chapter 1
Towards a Constructionist
Approach to the Study of Remorse
In Albert Camus’s classic novel, The Outsider, Meursault, the protagonist, is
arrested and brought to court after he has shot and killed a man during an encounter
on a beach. After a few exchanges in which the magistrate has become increasingly
exasperated with Meursault, he asks him a final question: “Did (he) regret what
(he) had done?” To which “after thinking a bit,” (Meursault) replies that “what I felt
was less regret than a kind of vexation—I couldn’t find a better word for it (p. 74).”1
The episode closes with the observation that after this exchange, “the magistrate
seemed to have lost interest in me, and to have come to some sort of decision about
my case (p. 75).” Just before he is sentenced to death, the prosecutor offers in his
summation to the court other examples of Meursault’s character: the day after his
mother died, Meursault embarked on an affair and while at his mother’s funeral,
he lamented that he could have had a nice walk if only he hadn’t been obliged to
be present—evidence that, in the prosecutor’s opinion, shows that Meursault was
already a criminal at heart. But the most damning evidence is saved for last: “Has
he so much as expressed any remorse? Never gentleman. Not once in the course
of these proceedings did this man show the least contrition (p. 101).” Continuing
his summation, the prosecutor declares, “This man has, I repeat, no place in a
community whose basic principles he flouts without compunction. Nor, heartless
as he is, has he any claim to mercy (p. 102).” Finally, the prosecutor concludes
with this plea for the death penalty: “For if in the course of what has been a long
career I have had occasion to call for the death penalty, never as strongly as today
have I felt this painful duty made easier, lighter, clearer by the certain knowledge
of a sacred imperative and by the horror I feel when I look into a man’s face and
see a monster (p. 104).”
I have chosen to begin my book with this famous passage not just for the
obvious reason that it refers to the showing of remorse and is therefore a fitting
introduction to a book dedicated to the subject. I begin with this excerpt because
it is one of the very few among the many literary classics that touch upon remorse
to have called attention to a part of the phenomenon that has either been ignored
or unrecognized by everyone else.2 And it is what Camus tells us about remorse
1 All quotes taken from Albert Camus, The Stranger (trans. Matthew Ward, Alfred
Knopf, 1989).
2 The other most well-know exception is the passage in J.M. Coetzee’s Disgrace
(Secker and Warburg, 1999), in which the central character, David Lurie, is brought before