Remorse and sentencing in a world of plea bargaining

That the presence or absence of remorse is felt to be central to sentencing decision-making is now well established. Most scholarship has focused on normative questions of whether and how remorse ought to influence sentencing decisions. More recently, research is exposing the difficulties and dangers faced by judicial sentencers seeking to evaluate the authenticity of expressions of remorse. Distinctively, this paper asks why, despite its apparent irrationality, judges and lawyers seem compelled to focus on the attitude of the person to be sentenced. Illustrated by recent research into sentencing and guilty pleas, we reveal how a perception of ‘zero-sum gamesmanship’ appears to defendants and judges and lawyers to pervade the daily workings of the courts, most especially in plea bargaining practices. It argues that the inability of these court professionals to know, and confidently to believe they know, the ‘real’ attitude of the defendant is intensified by the very practices court professionals feel obligated to pursue.