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| Michael Crowley |
The question of remorse and its place in understanding risk for future offending is found in many cases seen by the board; especially those involving victim harm.
There is a traditional view about crime and its aftermath in Western literature and history. And that is the notion that if you do something wrong you should apologize and not do it again. There are many definitions for the term remorse, and it is a term that is both embedded deeply in law and legal proceedings and at the same time is difficult to assess accurately.
I think, based on definitions that can be found in various texts as well as my own experiences, that at the very least it is an expression of a deep regret or guilt for a wrong that has been committed.
In a religious sense remorse can lead to forgiveness. Implicit, I think, is the notion that following forgiveness, the individual should not commit the same wrong in the future, though if it occurs the path to forgiveness and salvation is still available.
There really seems to be no equivalent in a legal sense. That is, someone breaks the law and either feels guilty about it or not. In either case, if found guilty after a trial, a punishment is meted out. If there is forgiveness to be had it lies with the person wronged, regardless of the legal punishment. The hope, it seems, is similar to the religious context in that there is a desire that the individual, following the legal proceeding, will have learned a lesson and not commit the same wrong again. At least that is the hope.
Additionally, it appears evident that following a finding of guilt based on facts and evidence, a judge may well take their understanding of the offender’s level of remorse in establishing a sentence. This is more likely the case in those instances in which there is victim harm, whether physical, mental or financial. Expressions of remorse following a verdict must be assessed by a judge or panel of judges but in the absence of research and training, finding agreement on the value of such expressions remains a difficult prospect.
The same issue arises in parole decision-making, except that rather than establish the type or length of sentence to be served, the board members may want to assess expressions of remorse in assessing the likelihood of re-offending prior to warrant expiry.
But it also (or should) raise an important question: How important is remorse in assessing risk for future offending?
It certainly seems to be the right thing to do. I mean, it seems to make sense that if you commit a crime, get caught, convicted and sentenced and feel bad about it — that there should be a diminished likelihood that you would do the same (or similar) thing in the future. After all, why would anyone want to spend time in a prison?
And I would say, based on my experiences and observations, that the majority of people convicted of crimes and serving federal sentences really don’t want to return to prison in the future. Remorse may play a role in the decisions that they make when they contemplate what they have done and think about the future.
But the question of how to measure or quantify remorse is a difficult one, probably because it is such a subjective act to experience and to interpret. In addition, the value of remorse (even if genuinely felt) in desisting future criminal behaviour is equivocal at best. Determining the genuineness of remorse is also difficult at the best of times, and especially if one expects a board member to assess, analyze and weight it during a parole hearing. In my opinion there should be ample evidence in file information of ways in which an inmate has demonstrated their sense of guilt or shame for the harm that their crimes caused, and similar evidence of a change in attitude and behaviour over an extended period of time, demonstrating that.
Remorse or the lack of remorse is a factor to consider in assessing risk, but should not be a critical one. Robert Latimer has not demonstrated remorse for his actions in ending the life of his daughter; but at the same time, the likelihood of his reoffending in a similar or violent manner is nil.
On the other hand Wladyslaw Bilski was convicted in 2009 for driving while impaired causing death after he was responsible for driving with more than three times the legal limit of alcohol in his system and causing a head-on collision with a car carrying four elderly women from the Chatham area who were returning from church. These women were known as the “Pie Ladies of Chatham” because of their charitable activities.
At his parole hearing, in a room filled with relatives of the four women, he not only demonstrated no remorse, he denied having an alcohol problem and refuted the need for any programming that might reduce his likelihood for drinking in the future. In his case the Board felt that his lack of concern, care, guilt or remorse was an aggravating factor and denied his application for day parole.
I can recall another case in which an impaired driver crossed the median and crashed into an on-coming car, and killing both occupants. At his hearing he actually blamed the victims for being on the road.
In assessing risk for re-offending remorse may play a role but it is more important that both the Correctional Service of Canada (CSC) and the Board adequately assess the individual’s risk using their normal and wide-ranging risk assessment tools. If a person is assessed as a high risk for re-offending the question of remorse, in my view, becomes a less relevant issue.
As a final area of concern, the question of remorse often arises with regard to individuals (usually men) convicted of sexual offences, most often against children, especially their own or children over whom they exercise parental authority. From my experiences I can say with some certainty that the majority of offenders that I interviewed at parole hearings understood that what they had done caused significant harm to the victims and their families, and expressed sorrow and remorse. My sense on those occasions was that they genuinely did not intend to reoffend. But I also know that in their criminal histories there sometimes was evidence of previous offending, either within the same family setting or a previous one. Therefore I understood that remorse, in itself, was not a disinhibiting factor for the Board to consider in assessing risk.
My sense was that they had convinced themselves, and then others, that they were horrified by what they had done and could not contemplate ever committing any similar acts in the future. And yet they did; and when asked, the underlying risk factors, including sexual deviancy, proved to be the driving factors leading to their re-offending.
As a consequence I concluded that the lack of acceptance of guilt may be an aggravating factor but that it is one of many to be examined in assessing risk. Remorse seems more ambiguous and difficult to accurately assess – especially with respect to how much weight it should be given (if any) when analyzing an offender’s risk for future offending.
This is the second installment of a two-part series. Part one: How claims of innocence affect parole.
Michael Crowley has a BA from Syracuse University. He spent more than 40 years in various positions within the criminal justice system in Canada. Before retiring Crowley had been a member of the Parole Board of Canada for 21 years. Contact him via CrowleyMichael167@gmail.com
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