Does saying “I’m sorry” matter when federal judges sentence?

Photo Credit: "National apology day" in Australia from X per Creative Commons license.

Photo Credit:  In recognition of the pain inflicted upon aboriginal peoples, “National apology day” in Australia from Butpa per Creative Commons license.

As the earlier posts on “gut instinct” and sentencing revealed, many of us are interested in knowing what motivates a judge to select a particular sentence in a criminal case. Magistrate Judge Andrew J. Wistrich, from the Central District of California, Professor Jeffrey J. Rachlinski, from Cornell Law School, and Chris Guthrie, Dean at Vanderbilt Law School, have published a fascinating and ground breaking empirical study entitled Contrition in the Courtroom: Do Apologies Affect Adjudication, 98 Cornell Law Review 1189 (July 2013).

Judge Wistrich was kind enough to send me a copy of the article. For a variety of reasons, I am blown away by it. The article looks at the impact of apologies in the context of civil and criminal litigation. Any advocate who has clients who screw up (and in my practice that was the great bulk of them) ought to read the study and digest its findings.

For today, I want to concentrate on the criminal law side of things. Among a lot of other empirical work, the authors conducted a study of 34 federal magistrate judges and asked how these judges would sentence someone under the Sentencing Guidelines when an apology was in play. With footnotes numbers included but with the contents of footnotes omitted, here is what the authors found:

We asked the thirty-four federal [magistrate] judges to sentence the defendant according to the U.S. Sentencing Guidelines. For them, the underlying charge consisted of violating 18 U.S.C. § 876(c), which makes it unlawful to mail a threatening communication to a federal judge.158 We provided the base offense level for the crime, which was 12, as well as the defendant’s criminal history level, which was I. Based on these factors, the appropriate sentencing range under the guidelines was ten to sixteen months. We also asked the judges to decide whether
the offense “involved any conduct evidencing an intent to carry out
such threat,”159 which would increase the offense level to 18,160
thereby producing a sentencing range of twenty-seven to thirty-three
months.161 After the judges made this determination we asked them,
“Based on the facts of this case, what sentence would you impose?”162

The apology had no effect on the federal judges.163 Among the
control group judges, 23.5% (4) raised the offense level and among
the apology group judges, 29.4% (5) of the judges raised the offense
level. This difference was not significant.164 Among the judges who
chose the lower offense level, the control group judges imposed an
average sentence of 13.8 months while judges in the apology group
imposed an average sentence of 14.2 months. Again, this difference
was not statistically significant.165 Among the judges who chose the
higher offense level, the control group judges imposed an average
sentence of 27 months as compared to 28.2 months for those judges in the apology group. This difference was also not statistically significant.166

Id. at 1221-1222.

While an apology did not matter to the federal magistrate  judges sentencing under the Guidelines, the apology did matter to Ohio judges on the state bench, Canadian judges and newly appointed (and presumably state) judges in a jurisdiction that was not identified at the request of those judges.  Id. at 1222-1224.

What are my thoughts? First, there is a serious question about whether federal magistrate judges are a good proxy for federal district judges who do most of the sentencing. Also, the sample size was small thus indicating that one should be cautious about extrapolation. Second, with the foregoing caveats noted, the study suggests, at least to me, that the Guidelines are likely to “water down” to the point of irrelevancy apologies in most criminal cases. In other words, at least in the federal system where complex rules guide a judge’s sentencing discretion, most of the time an advocate can advise his or her client that saying “I’m sorry” will not help.

In any event, the article is an example of a great use of the empirical method to study “real life” questions of significance to the bench and bar. (More please!) The authors should be proud of themselves.

RGK

10 responses

  1. A few thoughts. My impression is that a magistrate is directly answerable to someone in his/her proximity and are less likely to risk “exceeding” what they perceive to be their Federal Judge’s expectations. The Federal District Judge’s concerns are likely less directly affected by a psychologically-more-remote Court of Appeals.

    More importantly, the choice of offense in this study is likely relevant and was more likely to produce a more aggressive response from a Magistrate than some other offenses.

    Similarly, and perhaps more generally, wouldn’t the Court’s emotional response to the nature of the charge determine what magnitude of proof would be required to convince the court that the sincerity was genuine? Like anything else, words alone “are cheap” and are on the sentencing checklist of counsel. The magic words are expected in order to take advantage of the guidelines providing for such advantage. Any bozo counsel is going to have “I’m sorry” in the presentation at sentencing even in cases of total insincerity. What’s important is if there are actions that would “speak” more loudly than mere words. A study should address that. Dean Nasser

  2. Dean,

    All great point! Thanks.

    Regarding “bozo” counsel and rote “I’m sorry,” I hope to have more on that in subsequent posts. One can argue persuasively, I think, that insincere or, at least, reflexive apologies, hurt more than they help. If so, and depending upon the client, counsel might be better advised to advise his or her client to shut up.

    All the best.

    RGK

  3. I have been a defense attorney for 21 years, 12 of which have been spent as an assistant federal defender. Over that time, I have had lots of clients sentenced. I agree with your point about insincere or reflexive apologies. My experience, however, suggests to me that a client who can give a truly genuine and heartfelt apology, that demonstrates real contrition and an understanding of the harm caused by their conduct usually does better than one who can’t do that. The problem is, not many are able to really truly apologize, so judges hear an awful lot of meaningless “apologies.”

  4. Mike,

    Thanks for your comment. I hope to be able to report upon another, more detailed, law review article about whether allocution matters, in the not too distant future. It is based upon a ton of empirical data.

    All the best.

    RGK

  5. As a Systems Engineer and a legal layman, I’ll answer the OP question directly: it depends.

    Apologies, as it happens, have become a pet peeve of mine over the last couple of years. Whether an apology should matter at sentencing needs to be considered against the backdrop in which it’s offered. Its sincerity is an open question, coming as it does with sentence to be determined/announced. It’s hard to discriminate the most tearful, contrite apology from good acting.

    Another thing to be considered is what exactly is being said. If it’s a string of caveats, excuses, and/or clarifications, it’s useless as an apology.

    A third thing is what is being apologized for. Is the miscreant apologizing for the ruckus his behavior caused, or is he apologizing for his actual (mis)behavior?

    How to interpret those last two isn’t straightforward, either. Is the apologist lying in masquerading those words as an apology, or is he really that appallingly ignorant?

    Finally, what about how he says what he says: does he sound coached, or are they more clearly his own words? Interpreting this isn’t straightforward, either: the coaching could legitimately have been aimed at correcting those previous two items in order to make the words a straightforward apology for the actual misbehavior.

    Y’all have a gud time interpreting an apology, y’hear?

    Eric Hines

  6. Interestingly, this conversation makes me question whether, since no one can know with certainty whether an apology is insincere, the finding of a lack of a sincere apology ought to result in an more punishment than a finding that one exists. A lot of sincerely apologetic inarticulate convicts must be being treated far more harshly than they should be. Dean

  7. Not so much. We don’t even know with certainty that the miscreant is even guilty–beyond reasonable doubt isn’t beyond doubt.

    And there’s more to an apology than just the words. There’s the surrounding circumstance, not just in the court, but in the community in which he did his deed and what he did there since getting caught (assuming he was allowed to do anything). There’s also the court circumstance: how did the miscreant behave through the course of his trial?

    And there’s body language, which is very hard to disguise, even by a skilled actor, from a careful observer (my remarks above notwithstanding)–which most judges (and prosecutors and defense lawyers, if they’ve been paying attention and not gotten jaded; as well as most laymen, if they’ve been paying attention) can read. There’s a difference, for instance, between a defiantly defiant stance and attitude, and a defiance born of fear, and a defiance born of hopeless regret, and….

    I might note the absence of an apology vs the presence even of a pro forma one, but not very much–that could be as much the lawyer’s doing as the miscreant’s.

    As to those inarticulate convicts, they may not come to a sincere regret (for their deed, not their incarceration) until they’ve been locked up for awhile. That’s one of the things parole review boards check, in an ideal world.

    No system is perfect. Neither are we angels, nor ruled by any. But we do what we can.

    Eric Hines

  8. Rich, thank heavens. For a moment when I read the title I thought (irrationally) that it referred to judges saying they were sorry for the sentences that they were imposing, which would be an impossibility. Perhaps it happens with Magistrate Judges who don’t have life tenure, though; they perhaps have to say “I’m sorry” for not holding the door for Article III judges or some other heinous action. Best, Pat.

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