Affect and the Judicial Assessment of Offenders

Abstract

In most common law jurisdictions worldwide, an offender’s remorse is a mitigating factor in sentencing. It matters whether or not a person who has committed a crime is truly sorry for what they have done. And yet how judges evaluate such expressions is unclear. Drawing on 18 interviews with judges in the New South Wales criminal justice system in Australia, this article examines the status of offenders’ live, sworn evidence in the judiciary’s assessment of offenders’ remorse. These interviews with the judiciary reveal that remorse assessment often operates beyond semiotic, representational paradigms (such as ‘demeanour assessment’) and instead works, in experiential terms, as a feeling. When it comes to offenders getting into the witness box and speaking of their remorse, it seems that sometimes something gets felt by judges at the level of embodied affect that then enables them to declare: ‘This person is remorseful.’

Locating the Judge within Sentencing Research

“…Several socio-legal scholars have investigated such interactive moments, likening the courtroom to a theatre (Ball 1975;Friedman 2001;Grunwald 2012), and legal proceedings to 'a spectacle of legal performance art' (Abrams 1999: 908;see also Peters 2008;Rossmanith 2015;Tait 2002). Within the rubric of theatre, emotions are viewed as routinely contested (Rossner and Tait 2011) and central to judicial decision making.…”

“…This includes investigations of professional/occupational subcultures (Eisenstein et al 1988;Fielding 2011;Huck and Lee 2014;Hutton 2006;Ulmer 1997); the rules, policies, administrative and legal frameworks operating within courtrooms that constrain judges (Beyens and Scheirs 2010;Phoenix 2010); social interactions with other participants (Martyn and Levine 1998; Travers 2007); defendant-related factors (Bouhours and Daly 2007;Ulmer 1997); how other courtroom participants experience the judge in court (Jacobson et al 2015); how the judge experiences other participants (Rossmanith 2015); and the possible impact of public opinion, however identified or perceived (Mackenzie et al 2012;Roberts 2008 These studies contribute to a narrative about the complex social world of sentencing and its constituent parts. They specify the social role of the sentencing judge as a core (and human) actor, and map active engagement through social interactions that negotiate these conditions (Hutton 2006;see also Bourdieu 1987;Hawkins 2003).…”

Imposed Stories: Prisoner Self-narratives in the Criminal Justice System in New South Wales, Australia

“…For more than two decades, it has been increasingly acknowledged that judicial decision-making can no longer be properly constructed in terms of a 'rational' and 'emotional' binary, as if those were separate domains (see Bandes and Blumenthal 2012). In particular, our work builds on the growing scholarship concerned with examining the range of factors influencing judges' judgments, including the affective dimension of human exchanges (see Bandes 2009;Rossmanith 2015), and the ways in which narratives affect reasoning at a neurological level (Barraza and Romero 2014). In so doing, we show how offender self-narratives are critical factors when it comes to authorities making decisions about those offenders.…”

“…She has also shown how the process of segmenting or fragmenting the narrative by questioning begins in the police interview (Eades 2008: 210). Weisman (2004), Hall (2014 and Rossmanith (2015) have similarly illustrated how sentencing and other criminal justice processes contain implicit expectations of offenders to act and speak in certain ways (including, for instance, the construction of an acceptable remorse narrative).…”

“…And what are the qualities that resonate with the feelings of judges (Rossmanith 2015) in matters such as remorse or attitudes towards the offence? We argue that, when it comes to authorities making decisions about offenders, those offenders' own stories and story-telling tactics are crucial factors.…”