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Justice Through Apologies: Remorse, Reform, and Punishment

by nick smith

cambridge, 413 pages, $33

For decades, American Christians have worried about the dwindling room for religion and religiously inspired morals in public life. The church–state debates in which they engage often focus on hot-button issues, such as graduation prayers and holiday displays—things that indeed matter, but more symbolically than practically. They largely slight criminal justice, which matters far more in practice.

Every year, American police make 13 million arrests, of which about two million are for violent crimes, and almost as many are for property crimes (such as burglary and theft). These crimes tear apart victims’ bodies and possessions, but they also attack victims’ and neighbors’ sense of security. And because most crime is committed against friends, relatives, coworkers, or neighbors, it also rends the social fabric. Repairing that fabric requires not only mere punishment but also the moral drama of apology, forgiveness, and reintegration.

The law does not seem to care. In practice, our criminal justice system is an amoral crime-control machine. And it is run not by the victims or locals directly affected but by detached professionals, especially lawyers. For the most part, police and prosecutors treat crimes as occasions to detect, arrest, and lock up dangerous ­menaces to public safety. Prosecutors bring cases in the name of the people of the state where the crime was committed, not in the name of victims, and victims have little say. There is little overt morality, let alone religion. The system is coldly professional.

It was not always so. In the colonial era, criminal justice was fundamentally a cathartic morality play, healing and reconciling wrongdoers, victims, and communities. Colonists believed that crime was sin, as the wrongdoer succumbed to temptations that preyed on all of us. Victims told their stories themselves in court; defendants explained, excused, or pleaded for mercy; and local residents sat in judgment as jurors and spectators. Punishment was directed at making victims, wrongdoers, and communities whole. Victims received compensation, vindication, and apologies. Wrongdoers were humbled and apologized, learning lessons and paving the way for forgiveness and reintegration. And communities reconciled their members, finding closure and moving on.

Reformers, following Cesare ­Beccaria and Jeremy Bentham, reoriented criminal justice, changing it from an educational social theater to a professionalized system for preventing crime. Criminals were rationally selfish, they thought, so the point of punishment was to ensure that crime did not pay. On this mechanistic approach, there was little room for remorse, apology, mercy, and forgiveness. These Christian virtues seemed outmoded, as they clouded punishment’s predictability and so its ability to deter rational crime. Even reformers who hoped to promote rehabilitation understood it not as moral or spiritual reform but as therapy for social pathologies and bad habits.

We are heirs to the nineteenth century’s mechanized justice. Rather than a public morality play, a hidden, plea-bargaining assembly line dispenses punishment as cheaply and quickly as possible. By short-­circuiting trials, it maximizes the number of cases and so the amount of crime control. But in its haste, the plea-bargaining machine does violence to the many softer values that constitute a just rule of law.

Plea-bargaining cares little for apologies. Professional prosecutors have displaced the victims who once confronted defendants face to face, and defense lawyers have silenced their clients lest they say anything incriminating. The plea-bargaining arena is a marketplace in which each side dickers to get the going rate or a better deal. There is little inducement to go beyond a guilty plea to apologize as well. Judges award virtually automatic sentence discounts for “acceptance of responsibility”; in practice, almost any guilty plea qualifies, no matter how terse or insincere.

Apology is poor currency in this marketplace of punishment. Part of the problem is that commodifying apologies cheapens them. The temptation to fake apologies is also very great. But more deeply, we have lost the religious and moral vocabulary for understanding how the cycle of remorse, apology, forgiveness, and reintegration heal us all. And part is that modernity’s discomfort with religion and morality has led lawyers to exile or diminish apology’s historic role in criminal justice.

Nick Smith’s Justice Through Apologies: Remorse, Reform, and Punishment is a welcome effort to revive apology’s roles in both criminal and civil justice. A philosopher and lawyer by training, Smith adroitly navigates between the ideal of a categorical apology and the sausage factory that is the American legal system.

Ideally, he explains, a wrongdoer apologizes by categorically admitting blame and guilt, repudiating his wrong, making amends, and committing himself to changing his ways. By doing so, he not only offers the victim compensation and closure but also transforms himself and heals his relationship with the victim, who is often a friend, relative, or neighbor. One of Smith’s key insights is that “apologies are treatments not cures,” processes of reformation and transformation rather than one-time statements. Christian believers may understand this spiritual healing as metanoia, a process of reorienting one’s heart and mind away from evil and toward the Good.

These deeply moral values fit ­uneasily into the zero-sum, profit-driven legal system. Our adversarial mind-set pushes wrongdoers to brazenly deny their wrongs instead of coming clean. Categorical apologies expose wrongdoers to liability, so defense lawyers silence their ­clients. To cash in on apology’s value, defense lawyers offer up scripted ­non-­apologies that express sympathy without accepting blame. But that debases the currency, as accepting blame is the mark of a true apology.

Unfortunately, Smith’s book is hobbled by his secular vocabulary and concepts. Apology makes more sense when viewed from a Christian perspective, as part of a process of remorse, forgiveness, and reconciliation with our errant brethren. Each of us is weak and sinful, but no one is beyond redemption. We are made in the image and likeness of a loving and forgiving God, and we viscerally feel the need to apologize and forgive. Just as God the Father forgives us, we must apologize when we err, and stand willing to forgive our prodigal sons.

This broader Christian perspective casts stronger light on how criminal justice could better heal and reconcile us all. In terms of remorse, faith-based programs such as the late Chuck Colson’s Prison Fellowship Ministries help inmates confront their sinfulness. Repentance requires facing up to one’s fallenness and sordid past, just as Alcoholics Anonymous and other twelve-step programs require addicts to admit they have a problem.

Judges could help elicit remorse. For instance, they could address defendants in more overtly moral (though not sectarian) language. They could make their sentences depend more on how candidly and completely a defendant admits guilt and expresses contrition. (Plenty of defendants feign remorse, but judges are experienced at detecting fakery.) Non-lawyers find it hard to believe that judges routinely let defendants plead guilty whether they refuse to admit guilt or even affirmatively protest their innocence! These so-called Alford and no-contest pleas are the most blatant examples of how criminal justice is unconcerned with truth or blame.

Expressions of remorse should, one hopes, give rise to apologies. Remorse followed by apology is the secular analogue of a confession before God, humbling oneself and vowing to sin no more. Yet our criminal justice system does little to encourage apologizing, and indeed actively impedes it. Victims are rarely present at guilty pleas or sentencing hearings, and defendants do not speak to them. Wrongdoers are often too embarrassed or ashamed to admit their wrongs in all their gory detail and apologize for them. Yet that temporary shame is stiff medicine, a turning point in repudiating a past wrong and putting it behind oneself.

After apology should come forgiveness. A weakness in Smith’s book is that he largely overlooks forgiveness, closure, and reintegration. Without forgiveness, both victim and wrongdoer remain trapped in the wrong done unto and by them. Unfortunately, American criminal justice has grown remarkably unforgiving and unmerciful. A released prisoner is forever stigmatized as an ex-con, regardless of whether his conviction demonstrates any continuing threat or malice. There is no public ritual to forgive or welcome him back once he has paid his debt to society and to his victim. America long had a tradition of clemency, in which presidents and governors would routinely pardon convicts or commute their sentences. But in recent decades, fear of being soft on crime has led to a withdrawal of that bit of mercy.

Both sides of the American political spectrum deserve some of the blame. Those on the left often dislike the idea of punishment, refusing to blame wrongdoers for abusing their free will. In reaction, those on the right belittle forgiveness and mercy as coddling criminals and endangering the public. We have lost sight of the religious imperative to treat both victims and wrongdoers as persons who deserve respect.

America’s Christian heritage retains the seeds of a way forward, a synthesis of justice and mercy. We can start by prodding defendants to express remorse and apologize; applauding President Obama’s efforts to reinvigorate pardons and commutations; reconnecting inmates with their wives, girlfriends, and children to encourage responsible fatherhood; making inmates work (or even serve in the military) and make restitution to their victims; greatly expanding prison ministries; welcoming back ex-cons with jobs, housing, friendship, and church outreach; and promoting victim–offender mediation before or after conviction. Through such steps, we can begin the long work of reform.  

Stephanos Bibas is professor of law and criminology at the University of Pennsylvania and author of The Machinery of Criminal Justice.