Abstract
Steven Tudor defends the mitigation of criminal sentences in cases in which offenders are genuinely remorseful for their crimes. More than this, he takes the principle that such remorse-based sentence reductions are appropriate to be a ‘well-settled legal principle’—so well settled, in fact, that ‘it is among those deep-seated commitments which can serve to test general theories as much as they are tested by them’. However, his account of why remorse should reduce punishment is strongly philosophical in character. He sets to one side the many practical difficulties in implementing such reductions in the real world of criminal justice institutions so that he can focus on the question of whether a plausible account of sentencing can show that remorse should mitigate punishment. I contend that Tudor’s defense of such reductions is unpersuasive in certain respects. Yet even if it can be made more persuasive, I argue that the conditions that would have to be satisfied for remorse-based sentence reductions to be justifiably implemented are so many and various that they would likely exceed our abilities to responsibly grant them in real world legal contexts. I therefore claim that Tudor has failed to provide a defense of the ‘remorse principle’ that serves to explain or justify existing legal practices.
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Notes
See (Duff 1986, p. 246), where he claims that a ‘sincere repentance of my wrong-doing involves a sincere desire to reform myself.’ Tudor’s position on such reform seems unclear. In an earlier article, he argued that ‘lucid remorse’ naturally leads to ‘atoning acts’ of various kinds: ‘one might seek to apologize, confess, repent, undertake some sort of penance, make reparation, or simply accord one’s wrongful deed a certain solemn remembrance.’ See (Tudor 2001, pp. 588–589). Granted, there is nothing here that explicitly requires efforts at moral reform. But as the title of the article suggests, Tudor defends a view of punishment according to which it can be embraced by its recipient as a kind of meaningful suffering, an experience which, at the very least, must be gone through (to what purpose, one might ask, if not to strengthen one’s re-attachment to the moral norms one has transgressed?).
This is not intended to rule out the restraint of such offenders, where such restraint is either distinguished by retributivists from punishment proper, or justified by them on the basis of incorporation of a crime reduction element into a comprehensive theory of punishment.
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I am grateful to two anonymous reviewers for helpful comments on an earlier draft of this paper.
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Lippke, R.L. Response to Tudor: Remorse-based Sentence Reductions in Theory and Practice. Criminal Law, Philosophy 2, 259–268 (2008). https://doi.org/10.1007/s11572-008-9051-8
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DOI: https://doi.org/10.1007/s11572-008-9051-8