When Gavin Newsom refused to parole Sirhan Sirhan this month — the 16th time the convicted killer of Sen. Robert F. Kennedy has been rejected for release — California's governor hung his decision heavily on one central argument: Sirhan lacked "insight" into his crime, refusing to acknowledge guilt or accept responsibility for his acts.
"It is abundantly clear that, because of Sirhan's lack of insight, his release on parole would pose a threat to public safety," the governor wrote in an op-ed for The Times, noting that Sirhan, who has served 53 years behind bars, claims he doesn't even remember committing the crime.
Newsom's decision was in line with law, tradition and, presumably, public opinion. Most Americans probably agree that if we're going to let murderers go free, they at the very least ought to own up to their crimes, admit wrongdoing and express regret.
"This guy cannot get out of jail," Kerry Kennedy said about her father's killer, the day after Sirhan's parole was denied. "He has no remorse. He has no regret. He has not been rehabilitated."
Acknowledging guilt and saying you're sorry have long been viewed as indispensable prerequisites for forgiveness and leniency. They have roots in ancient Jewish law and in Catholic confession. It's something we ask of misbehaving children, so why not murderers as well?
But in fact there are serious problems with it, at least when it comes to decisions about parole.
For one thing, although a chief goal of the parole process is to decide whether an offender can be safely released, it hasn't been proved that there's a direct relationship between remorse, or "insight," and an unlikeliness to reoffend. For years it was simply assumed that repentant people were less likely to commit new crimes. But as Susan A. Bandes, a law professor emeritus at DePaul University, puts it, definitive evidence is "simply not there."
Second, admitting guilt and showing remorse in parole hearings has become part of a performance demanded by the system. Lawyers routinely coach their imprisoned clients that displaying both are essential.There are even online sites explaining "how to write a letter of remorse" for the parole board. ("Write 'I killed my victim,' instead of 'my victim was killed,'" says one. "Using active rather than passive words helps show the Board that you are not minimizing your role or deflecting blame.")
What's the value of insincere, coached or scripted penitence?
A third, and related, problem is that with no objective way to assess the sincerity of an inmate's remorse, parole boards, judges and even governors can end up relying on their gut feelings — and therefore their biases. Remember Brock Turner, the Stanford student who sexually assaulted an unconscious schoolmate, but who was sentenced to only six months, at least partly because the judge's gut told him Turner felt "a genuine feeling of remorse."
And yet, discerning sincerity is tricky. Schizophrenic people, autistic people and depressed people may show remorse unusually or not at all, even if they are remorseful. Some psychopaths are believed to have a special facility for appearing remorseful when they're not. Young people often feign a tough exterior. Less educated people may not express remorse convincingly. Overall, facial expressions and body language have been found to be ineffective ways to judge sincere remorse.
"Do we really want to have a litmus test that involves looking into people's souls, which the law is not equipped to do?" Bandes asked.
Perhaps the most troubling problem of all is that requiring confession and remorse is unfair to those who are innocent.
These days we know that tens of thousands of people locked away in prison are not actually guilty. (Just to be clear: Sirhan Sirhan is not one of them.) There have been a torrent of post-conviction exonerations.
Wrongfully convicted people have to decide: Will they admit guilt falsely and claim to feel remorse for crimes they did not commit? Or will they proclaim their innocence at the risk of being denied parole?
This Catch-22 is not merely hypothetical. Consider the Central Park 5 — the five teenagers convicted of assaulting and raping a jogger in Central Park in 1989 but subsequently exonerated when another person confessed a decade later. While they were in prison, three of the five insisted to parole boards that they were innocent. Records unearthed by the New York Times showed that those statements cost them their best chance of reducing their prison terms.
Or Joseph Gordon, convicted of the murder of a doctor three decades ago in New York. Last year he received his fifth parole refusal, based yet again on one insurmountable transgression: He says he is innocent. Yet full reports of the crime he was convicted of suggest that there's reason to believe Gordon may have been wrongfully convicted.
Some offenders who long proclaimed their innocence have acknowledged switching their stories.
"I just admitted it," John Ramsey, who served 33 years for murder and who had been rejected six times by the parole board, told the New York Times. "I was never getting out if I say it wasn't me."
(After being released, Ramsey tried to get his original conviction overturned. His confession to the board complicated that effort.)
It's unlikely that remorse will be removed from consideration in parole decisions. It's too deeply ingrained in the system. And don't get me wrong: Genuine remorse is a good thing in those who've committed a crime. It can be a sign of humanity, of empathy, of growth — qualities that can point toward rehabilitation.
But at the very least, its weight in the parole equation ought to be reduced. And an unwillingness to admit guilt or express remorse shouldn't be a dispositive reason for rejection.
The key issue in parole decisions should be whether an inmate is likely to re-offend or is safe for release. There are plenty of ways to get at that, including looking at inmates' good behavior and infractions in prison, their age, their criminal history, their substance abuse history and their psychological evaluations by professionals, among other things.
But we need to be very careful when evaluating a person's subjective, emotional, perhaps unknowable state of mind.
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