The role of conscience of guilt, remorse and apologies in sentencing

• In Event: Judicial Discretion in the Sentencing Process 1.

Abstract

Criminal judges often have great freedom to individualise their sentences according to the concrete circumstances of the case, i.e. the facts and the person of the defendant. The defendant's attitude towards the committed acts and the victim, like his conscience of guilt, remorse or apologies, can be an important consideration. Yet in Belgium (and many other civil law jurisdictions), it is unclear how judges assess such an attitude and if and how they take it into account in their sentencing decisions. This may vary from judge to judge given their discretionary power and the subjective nature of concepts such as remorse. The current knowledge gap therefore poses a threat to the consistency of jurisprudence and legal certainty. Further research is also important to ensure the interests of the parties involved (such as the rights of defence).

The study focuses on Belgian case law to identify the role of concepts such as remorse in sentencing. This includes both case law of the Belgian highest court of cassation, which limits the judicial sentencing discretion, and factual case law. However, written court decisions often do not contain the full reasoning of the judge. Therefore, focus group interviews with former Belgian criminal judges were conducted to get a better understanding of the meaning of concepts such as remorse, on how judges assess these concepts in a judicial setting and on the role these concepts play in sentencing. The findings are compared to the analysis of the Belgian legal framework, social science literature and previous empirical studies in the context of other jurisdictions.

Author

• Maartje Verdickt, University of Antwerp