April 15, 2011
Legal Department
Stalin In the Courtroom
Jamison Koehler takes on the topic of accepting responsibility. I read about it all the time in crime stories and legal blogs: The defendant is convicted, and the severity of his sentence depends on a number of factors, one of which is "accepting responsibility" for his crime. Jamison saw a case where it went like this:
During sentencing, the judge told Bruckheim that he was struggling with the fact that the defendant had not accepted responsibility for his actions. All I have seen, the judge said, is denial.
...
Bruckheim asked for a few minutes to consult with his client, and the court took a quick break. When the hearing reconvened, the defendant offered a convincing apology for the behavior that led to the charges.
Does anyone really believe that "accepting responsibility" is going to change a criminal's behavior? Who among us, if caught committing a crime, wouldn't be willing to apologize in as sincere-sounding a manner as we possibly can, if we're told it could knock months or even years off our sentence?
For that matter, do judges actually believe that just by watching and listening they can tell if an apology is sincere, even if it's the first time they've ever heard the defendent speak? If judges really believe they can do that, I urge them to get in touch with me right away, because I have a number of important real estate and precious metals investment opportunities I'd love to talk them about.
I'm pretty sure that lots of criminals can look you squarely in the eye and tell you very sincerely that they didn't do it, right up until the moment they're convicted and offered the chance to accept responsibility, at which point they can look you squarely in the eye and tell you very sincerely that they're sorry they did it.
You know who's going to have trouble accepting responsibility? People who are factually innocent. It's a lot harder to say you did it and you're sorry when you didn't do it at all, when you're not the type of person who habitually lies about everything, and when you're angry that you've been falsely convicted. Maybe you're hoping to win some sort of appeal that will vacate the guilty verdict. Wouldn't confessing to a crime you didn't commit make that a lot harder?
Requiring defendants to "accept responsibility" is a policy that rewards the truly guilty while punishing the truly innocent.
And then there's this problem:
In addition, a defendant who is found guilty after testifying in his own defense is in a double-bind. Accepting responsibility during sentencing would require him to admit he lied on the stand, thereby subjecting himself to perjury charges and enhanced punishment.
To me, it feels as if the courts are engaging in a policy of collective moral cowardice. It's as if judges don't really believe the system works. The jury has been told to trust the system, and they do, rendering their verdict of guilt based on what they saw and heard during the trial. For the judge, however, that's not good enough. He'd like to tie it up all neat with a confession just to be sure, even if the confession is coerced by a threat of a tougher sentence.
I can understand why police want to make a suspect confess. It's part of the investigative process, part of building a case. But this practice of pressuring a person to confess after conviction reminds me of nothing less than the Moscow show trials under Stalin, when those accused of crimes against the state were coerced into confessing to whatever crimes they had been convicted of in the rigged trials.
American trials really shouldn't borrow features from the Stalinist regime.
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And there's not supposed to be a penalty for exercising your constitutional right to trial. But if you insisted on going to trial, it's hard to say that you were accepting responsibility, so the sentence goes up. Not for going to trial, but for not pleading guilty.
Which is of course going to trial. No it's not; yes it is; no it's not; yes it . . . . Ah, the hell with it.
Nasty how that works.
Yeah, this seems to be an especially mean-spirited twist to the trial tax.