Apology in the criminal justice setting: evidence for including apology as an additional component in the legal system

Abstract

The criminal justice system has reached unprecedented scope in the United States, with over 6.4 million people under some type of supervision. Remedies that have the potential to reduce this number are continually being sought. This article analyzes an innovative strategy currently being reconsidered in criminal justice: the apology. Despite a legal system that only sporadically acknowledges it, evidence for the use of apology is supported by social science research, current criminal justice theories, case law, and empirical studies. Social psychological, sociological and socio-legal studies pinpoint the elements and function of apology, what makes apologies effective, and concerns about apology if it were implemented in the criminal justice system. Theoretical evidence is examined (including restorative justice, therapeutic jurisprudence, crime, shame, and reintegration) to explore the process of apology in the criminal justice context. Attribution theory and social conduct theory are used to explain the apology process specifically for victims and offenders. A brief examination of case law reveals that though apology has no formal place in criminal law, it has surfaced recently under the federal sentencing guidelines. Finally, empirical evidence in criminal justice settings reveals that offenders want to apologize and victims desire an apology. Moreover, by directly addressing the harmful act, apology may be the link to reduced recidivism for offenders, as well as empowerment for victims. This evidence combined suggests that apology is worthy of further study as a potentially valuable addition to the criminal justice process.

Laboratory Experiments: A Meaningful Contribution to Restorative Justice Research?

“…Instrumental apologies serve as a means to an end while noninstrumental apologies serve as an end in and of themselves. Apologies that are offered for instrumental means are argued to be less effective as meaningful interactions and may therefore, be less likely to yield outcome benefits for apologisers (Petrucci 2002;Taft 2000). Requiring that an apology be given as a legal obligation encourages offenders to offer apologies for instrumental reasons.…”

“…Apology is often used as a means to resolve conflict because sincere apologies serve important functions for both offenders and victims (Petrucci 2002). For apologisers, sincere apologies have consistently been associated with feelings of accountability and remorse for the harm done as well as empathy for the victim's experience (Brown 2003;Choi and Steverson 2009;Coombs and Holladay 2008;O'Hara and Yam 2002;Petrucci 2002;Regehr and Gutheil 2002). Despite the intuitive appeal of employing procedures that prompt or encourage apology to address harm caused, the formal criminal justice system has yet to fully integrate the use of apology (Davila 2004;McPherson Frantz and Bennigson 2005).…”

“…Apologies serve as a means to confirm truth, suggest restoration strategies and clarify blame (Petrucci 2002). Apology is often used as a means to resolve conflict because sincere apologies serve important functions for both offenders and victims (Petrucci 2002).…”

Restorative Justice and Sexual Assault: Outcome Appraisal Through Textual Analysis

“…In extreme forms such as sexual assault, harm affecting the victim is prolonged [46,78] and forgiveness can shift the way that a victim feels and/or behaves toward an offender [79,80]. Because it was not well-established in the literature on assault and violence [79,81,82; compare 83] 'forgiveness' was excluded as an observation exemplar in the conferencing checklist.…”

Offer and Acceptance of Apology in Victim-Offender Mediation

“…Apology has been explored in legal contexts including both criminal and civil law (e.g., Cohen, 2002;Petrucci, 2002;Robbennolt, 2003;2006;Shuman, 2000;Taft, 2000). In an empirical study, Robbennolt (2003) compared experimental participants' responses to apologies in a mock injury case.…”