'Sincerely sorry' or playing to the public: courts don't know how to reliably assess offenders' remorse

It is the latter - whether the hero repents, asks for forgiveness or, on the contrary, enjoys the chaos he has caused - that determines how the viewer will remember him.

This pop culture trope reflects reality as well. The courts, the media and society all scrutinise the same thing: whether a person is truly sorry for what they have done.

For example, in Australian jurisdictions, remorse is recognised as a mitigating factor in sentencing, writes The Conversation.

Lack of remorse cannot formally increase the sentence, but a sincere confession of guilt, especially in conjunction with an early confession, can significantly reduce the sentence.

Two manslaughter cases heard by the New South Wales Supreme Court show well how this works.

• In the Zachary Fraser case (Darcy Shafer-Turner murder, 2023), Justice Nicholas Chan found the defendant to be "genuinely remorseful". Early guilty plea, for which there was a 25 per cent reduction in sentence, was also an additional attribute. As a result, Fraser received a four-year sentence and will be eligible for parole in July 2027.

• In the case of Robert Huber (Lindy Lucena's murder, also 2023), Judge Stephen Rothman bluntly stated: "I do not believe he is genuinely remorseful." Despite the fact that state law prohibits the lack of remorse from being used as an aggravating factor, the final sentence was 12 years in prison.

How do you know if a person is truly remorseful?

For the author of this article, speaking as a researcher and practitioner (past probation officer and criminal defence lawyer), the issue of assessing remorse has remained a mystery for many years.

A new research project analyses the role of pre-sentence report writers - professionals who write analytical reports on defendants for the court. They use surveys and interviews to examine how they "assemble" a picture of remorse.

Even with the new data, remorse eludes clear definition. One respondent admits: it is "more of an inner feeling or intuition".

Report authors often refer to the body language and facial expressions of the accused, while recognising that they may be "acting out" remorse. However, few people are able to consistently control nonverbal cues.

At the same time, there is little scientific evidence that behaviour and posture can be reliably 'read' - except perhaps by eye contact.

Even judges, traditionally regarded as the "chief barometers" of remorse, disagree among themselves about what it looks like. Many describe it as a "feeling," relying more on legal doctrines and personal experience than on objective criteria.

Class, race, culture and gender add further complexity.
Remorse is not only an emotion, but also a certain verbal and behavioural 'role' that is easier to play for people with a high level of education and a habit of public speaking. There are also racial distortions of perception: there is evidence that black people are more likely to be interpreted as "angry" or "aggressive" with the same facial expressions as white people.

Yet, systematic strategies on how to account for cultural, social, and gender differences in court when assessing emotions are almost entirely lacking.

How remorse affects sentencing in Ukraine

Remorse is explicitly mentioned in the Criminal Code as a mitigating circumstance

Article 66 of the Criminal Code of Ukraine contains a list of circumstances mitigating punishment. Among them:

п. 1 - "sincere remorse and active assistance in solving the offence"

If the court recognises sincere remorse, it is obliged to take it into account in the direction of reducing the punishment.

How does the court understand that the remorse is sincere?

Judges are guided by:

• behaviour after the crime

- confession
- co-operation with the investigation
- detailed testimony
- voluntary reparation

• written or oral expression of remorse in court

But formal "ready-made phrases" without action usually do not convince the court.

• personal characteristics

Job, marital status, no criminal record, and community involvement all support the sincerity of remorse.

How does remorse help?

Softer type and amount of punishment

The court may:

• impose the minimum term within the sanction

• commute the prison sentence to a fine or probation

• give a suspended sentence, if the article allows

• impose correctional/community service instead of imprisonment

Possibility to make a deal

In the presence of remorse is simplified:

• plea bargain (plebargain )

• possibility to receive a significantly shorter sentence

Chance for parole in the future

Sincere repentance is an important argument for the parole board.

Just saying "I repent" is not enough

If a person

• didn't help the investigation,

• did not compensate for damages,

• changed his testimony,

• tried to cover up evidence,
  - the court may recognise such "remorse" as formal and disregard it.

Lack of remorse does not increase the punishment

Just like in Australia: the law does not allow to recognise lack of remorse as an "aggravating" factor, but it does affect the sentence:

• Repentance recognised as sincere → lenient sentence
• Repentance found to be formal → upward sentence

A murky science with serious consequences

The sentencing process has become more complex, politicised and public in recent decades. Judges' workloads have grown and they have increasingly relied on outside experts in matters that used to lie entirely within their purview, including the assessment of remorse.

Reports and findings made at the first sentencing stage then 'travel' with the individual through the system:
they are taken into account in re-sentencing decisions as the sentence is served, risk assessments, classification of the prisoner, admission to rehabilitation programmes and, ultimately, parole decisions.

But people are complex. The way we speak, move and express emotion is influenced by:

• cultural norms,

• maturity level,

• socioeconomic status,

• disabilities,

• neurodiversity,

• congenital cognitive disorders (e.g., fetal alcohol spectrum disorders).

Therefore, emphasises the author of The Conversation, it is crucial to better understand exactly how the courts 'read' and assess remorse, and to develop fairer approaches. This directly affects people's rights, the fairness of sentences and public confidence in the judicial system.