Introduction
Suppose a 27-year-old man got drunk, stole a car, and hit a pedestrian, killing her and injuring her child. He was sentenced to 15 years to life in prison. Now in his early 40s, he attends his first parole hearing, and you and a colleague must determine whether he is suitable for release. A crucial component of your evaluation involves deciding whether the parole candidate is genuinely remorseful. A range of factors might influence your determination: his demeanor, the frequency and nature of his communications with the victims' family, what he says at the hearing, letters from his acquaintances, evidence of actions he has taken in prison, and more. But no matter how much information you take in, or how carefully you observe him, your task is literally impossible: you cannot read another person's heart and mind. At best, your assessment will be an educated guess.
In California, parole board members who sit on hearings for “lifers”—people sentenced to life in prison with the possibility of parole—make such determinations up to 12 times per week. And although quantitative evaluations can tell us which factors correlate with parole release (e.g., Reference Huebner and BynumHuebner & Bynum, 2008; Reference Matejkowski, Draine, Solomon and SalzerMatejkowski et al., 2011) and observations or transcript analyses can tell us about the social dynamics of parole hearings (e.g., Reference AviramAviram, 2020; Reference ParatoreParatore, 2016; Reference ShammasShammas, 2019), how parole board members assess remorse remains largely unknown. Parole board members are notoriously difficult to access, and only a handful of scholars have examined parole decision-making from their perspective (Reference ReamerReamer, 2017; Reference RuhlandRuhland, 2020).
Remorse is implicated in numerous stages of criminal justice processing, including guilt determinations, sentencing, probation officer decision-making, and parole hearings (Reference BandesBandes, 2014; Reference BandesBandes, 2016; Reference BronnimannBronnimann, 2020; Reference Gold and WeinerGold & Weiner, 2000; Reference Jehle, Miller and KemmelmeierJehle et al., 2009; Reference WardWard, 2006; Reference WeismanWeisman, 2016; Reference ZhongZhong, 2015). But little agreement exists across disciplinary contexts, methodologies, scholars, or legal regimes about precisely what remorse is and how people evaluate it. Studies suggest that perceptions of remorse influence legal judgments; the belief that an offender is remorseful is correlated with more positive character assessments, more lenient sentences, and lower predicted risks of recidivism (Reference Gold and WeinerGold & Weiner, 2000; Reference Jacobson and BergerJacobson & Berger, 1974; Reference Pipes and AlessiPipes & Alessi, 1999; Reference Proeve and HowellsProeve & Howells, 2006; Reference Robinson, Smith-Lovin and TsoudisRobinson et al., 1994; Reference RumseyRumsey, 1976; Reference Tsoudis and Smith-LovinTsoudis & Smith-Lovin, 1998). But much of this research relies on assumptions that particular factors, then experimentally manipulated, telegraph remorse. Few scholars have tried to understand what remorse means from the perspective of those who are supposed to evaluate others' remorsefulness (see Reference ParatoreParatore, 2016, pp. 121–22; Reference ShammasShammas, 2019; Reference RossmanithRossmanith, 2015).
This article considers remorse as a sociolegal puzzle. Parole board members cannot read candidates' minds, so what do they do instead? We investigate decision-makers' perceptions of remorse in the context of lifer parole hearings.
Lifers and Remorse in California
One out of every seven people in prison in the US is serving a life sentence (Reference NellisNellis, 2017), and three-quarters of these group will eventually be eligible for parole. Lifer parole decisions affect tens of thousands of people in prison each year, with reverberations for their families, their victims' families, and their home communities. A third of US lifers are housed in California, where they become eligible for a parole hearing 1 year before their minimum eligible release date.Footnote * The state penal code says parole shall “normally” be granted at a candidate's first hearing (§ 3041.2), although most hearings result in denials (Reference Weisberg, Mukamal and SegallWeisberg et al., 2011). If parole is not granted, the parole board sets a period of 3, 5, 7, 10, or 15 years until the person's next hearing.Footnote †
The California Code of Regulations (CCR) lists nine criteria indicating suitability for release. Of these, “signs of remorse” is arguably the most subjective. The CCR defines remorse as having “performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or the prisoner has given indications that he understands the nature and magnitude of the offense” (15 CCR § 2281). The description is notably vague: Performed acts when? According to whom? How should the parole board assess the purity of a candidate's intentions? What “indications” signify understanding?
Between 2002 and 2011, three California Supreme Court cases—In re Rosenkrantz, In re Lawrence, and In re Shaputis—heightened the importance of remorse and insight in lifer parole decisions. Rosenkrantz held that the Board's decisions and Governor's review were subject to judicial oversight. The court applied the “some evidence” standard, resulting in a limited review process: “the court may inquire only whether some evidence in the record… supports the decision to deny parole, based on factors specified by statute and regulation” (29 Cal. 4th 616, 2002; see also Reference HempelHempel, 2010). Denials that relied wholly on the circumstances of the commitment offense violated due process.
Rosenkrantz became more central to remorse determinations when the California Supreme Court found an unconstitutional violation of due process in Governor Schwarzenegger's denial of parole to Sandra Davis Lawrence, who was serving an indeterminate life sentence (44 Cal. 4th 1181, 190). Lawrence held that denials by the Board or Governor were unconstitutional if based solely on the egregiousness of a commitment offense. A crime could not “have independent weight as an unsuitability factor without an articulated nexus” between the original offense and the parole candidate's current dangerousness. The emphasis on current dangerousness refocused suitability determinations to rehabilitative, rather than retributive, concerns. Still, the Court wrote, the commitment offense may serve as grounds for establishing the requisite nexus if no rehabilitative efforts have been made, or if the person “has shown a lack of insight or remorse” (190 P.3d 535 [Cal. 2008], emphasis added). In so holding, the California Supreme Court made remorse a cornerstone of lifer hearings and rendered assessing remorse a more crucial task for the parole board.
In Shaputis, the Court recognized the subjectivity inherent in decision-makers' interpretations of insight, which the court described in the same breath as remorse:
We note that expressions of insight and remorse will vary from prisoner to prisoner and that there is no special formula for a prisoner to articulate in order to communicate that he or she has gained insight into, and formed a commitment to ending, a previous pattern of violent behavior (44 Cal. 4th 1260).
By 2011, the Board and Governor's increased reliance on “lack of insight” as grounds for denial was staggering. Before Shaputis, the Governor cited “lack of insight” in 12% of his decisions to reverse parole grants; the following year, this jumped to 78%. Lack of insight was cited in twice as many appellate opinions that year as it was throughout the 31 years prior to Shaputis (Reference WattleyWattley, 2013; see also Reference ParatoreParatore, 2016).
In response to concerns that assessments of insight are subjective, and the fact that “insight” was not explicitly listed as a suitability factor, the court held that insight was already within the purview of the CCR, which “direct[ed] the Board to consider the inmate's ‘past and present attitude toward the crime’ (Regs., § 2402, subd. (b)) and “‘the presence of remorse,’ expressly including indications that the inmate ‘understands the nature and magnitude of the offense’” (Regs., § 2402, subd. (d)(3)). Here, the court tethered insight to remorse and confirmed its comfort with the centrality of remorse in lifer hearings. Moreover, the court underscored its trust in commissioners' judgment by acknowledging that there was “no special formula” for determining remorse. Since Lawrence and Shaputis, remorse has played an instrumental role in lifer hearings, and members of the parole board have largely been left to their own devices to decide whether candidates' words and actions constitute remorse.Footnote ‡ In the section that follows, we consider the definitional imprecision that characterizes remorse and the approaches used to study remorse perception and related phenomena.
Defining Remorse
Remorse, like shame and guilt, is considered a retractive emotion involving withdrawal from one's action, omission, or state of being (Reference Proeve and TudorProeve & Tudor, 2010). The distinctions between shame and guilt are well established (Reference Barrett, Tangney and FischerBarrett, 1995; Reference Baumeister, Stillwell and HeathertonBaumeister et al., 1994; Reference Tangney, Dalgleish and PowerTangney, 1999), but the unique features of remorse remain unclear in the literature. Remorse has been described as moral or emotional distress stemming from a wrongdoing for which one takes responsibility (Reference Proeve and TudorProeve & Tudor, 2010; Reference RumseyRumsey, 1976), and tends to be characterized by internal suffering, the desire to atone and be forgiven, and action-taking toward these goals (Reference Proeve and TudorProeve & Tudor, 2010; Reference WeismanWeisman, 2009). Remorse is a dynamic internal state rather than a discrete emotion, and unfolds over time (Reference BandesBandes, 2014). Within legal processes, “remorse” has come to represent a constellation of emotions and behaviors that signify moral character and a lack of future dangerousness (Reference BandesBandes, 2016; Reference Gold and WeinerGold & Weiner, 2000; Reference ZhongZhong, 2015).
In legal institutions, emotions are variously restricted, encouraged, and ritualized. Remorse is unusual in that it is characteristically welcomed and rewarded within the criminal legal system (Reference Sarat and BandesSarat, 1999). Sarat offers one explanation for the system's embrace of remorse: “remorse, unlike some emotions, does not challenge reason but seems instead to be a reasonable/rational response to transgression” (1999, p. 169). Proeve and Tudor summarize the cognitive content of remorse to be “I have wronged another person” (2010, p. 37), such that remorse necessitates recognition of voluntary wrongdoing, of oneself as wrongdoer, and awareness of the person one has harmed. These cognitions imply that a remorseful individual has internalized responsibility for harming an identified victim. The direct interpersonal relationship between transgression and victimhood reflects a view of harm and blame that Carter calls “bilateral individualism,” which “emphasizes the notion of individual responsibility based on the bilateral relationship—what one individual does to another” (Reference CarterCarter, 1987, p. 422). In this sense, the cognitive basis of remorse aligns with straightforward, decontextualized notions of crime, blame, and punishment. Such cognitions are thought to prompt desires to rectify wrongdoing through “expression of remorse, reparation, expiation, healing, or forgiveness” (Reference Proeve and TudorProeve & Tudor, 2010, p. 44). These indicia are reflected in the CCR's explication of remorse.
The legal significance of remorse rests on two assumptions. The first assumption is that remorse inhibits future criminal behavior—a proposition that has rarely been tested. The closest research examines guilt and shame, finding that guilt is associated with lower levels of recidivism, and shame with either higher (Reference Hosser, Windzio and GreveHosser et al., 2008) or identical levels (Reference Tangney, Stuewig, Mashek and HastingsTangney et al., 2011; Reference Tangney, Stuewig and MartinezTangney et al., 2014). The second assumption, more pertinent here, is that people can recognize remorse when they see it. The assumption of recognizability lacks empirical support, and there is reason to doubt that people share a common understanding of how a remorseful person appears and behaves (Reference Zhong, Baranoski, Feigenson, Davidson, Buchanan and ZonanaZhong et al., 2014). Authentic remorse is difficult for observers to discern, subjecting remorse assessments to particular scrutiny. As Weisman has described, the demand for genuineness is one of the central paradoxes of factoring remorse into punishment decisions; the expresser has every incentive to appear remorseful, which automatically calls the sincerity of remorse into question (2009, p. 53; see also Reference BandesBandes, 2014).
The limitations of the psychological literature on remorse detection may further owe to the complexity of remorse itself. It falls squarely into neither the lie detection literature nor the literature on identifying emotional expressions, although both are relevant. The lie detection literature focuses on testing the speech patterns, facial expressions, and body language present when people lie versus tell the truth. For example, deception may be associated with fewer illustrative gestures, increased self-manipulations (i.e., touching one's face or body), slower speech rates, decreased detail, and repeated words and phrases (Reference DePaulo, Lindsay, Malone, Muhlenbruck, Charlton and CooperDePaulo et al., 2003; Reference Porter, Doucette, Woodworth, Earle and MacNeilPorter et al., 2008; Reference VrijVrij, 2008). However, these studies typically yield small effect sizes, and meta-analyses demonstrate no clear evidence of cues consistently related to deceit (Reference Masip, Sporer, Garrido and HerreroMasip et al., 2005; Reference Sporer and SchwandtSporer & Schwandt, 2006; Reference VrijVrij, 2005). Moreover, inauthentic remorse is different from deceit. Although some statements related to remorse could be definitively true or untrue (e.g., “I think every day about the pain I have caused”), detecting inauthentic remorse is more complex than catching someone in a lie. Remorse encapsulates not just the truth or falsehood of an objective fact, but acceptance of personal responsibility, expression of internal distress, and a specific relationship between past and present affective states.
The emotion detection literature on remorse is also limited in its ability to explain how legal decision-makers think about remorse. Remorseful facial expressions have been described as sharing characteristics with other expressions of unhappiness, including sadness, shame, and guilt (Reference EkmanEkman, 1993), and facial expressions akin to sadness are perceived as remorseful (Reference Funk, Walker and TodorovFunk et al., 2017). However, emotion perception is highly contingent on social context, including situation-specific norms, characteristics of the expresser, and the perceiver's emotional state and motivations (Thibault et al. 2006; Reference Ickes, Simpson, Brewer and HewstonIckes & Simpson, 2001; Reference Masuda, Ellsworth, Mesquita, Leu, Tanida and Van de VeerdonkMasuda et al., 2008). Moreover, judges evaluating remorse report interpreting the same behavioral cues (e.g., eye contact, slouched posture) in contradictory ways (Reference Zhong, Baranoski, Feigenson, Davidson, Buchanan and ZonanaZhong et al., 2014). Amid ongoing debates as to whether any emotion can be consistently identified by external markers across cultures and contexts (see, e.g., Reference EkmanEkman, 1992), the emotion detection literature provides little guidance on how decision-makers try to detect falsified remorse displays or how successful these detection efforts are.
Certainly, legal decision-makers attend to facial expressions, body language, tone of voice, and speech content. However, neither the lie detection nor the emotion detection literature sheds light decision-makers' holistic assessments of remorse. After all, expressing remorse goes beyond confessing to an event stored in one's memory and cannot be reduced to an apology or a feeling of sadness. In addition, as we discussed above, experimental investigations focused on remorse assume that certain indicators embody remorse, then test whether these conditions affect outcomes. But the conscious processes through which decision-makers actually interpret remorse remains largely unknown. To broaden our inquiry of remorse to include legal decision-makers' understandings, we turn to the literature on legal consciousness, a sociolegal literature concerned with how people think about various aspects of law.
Legal Consciousness and Emotion
Silbey defines legal consciousness as “the way in which law is experienced and interpreted by specific individuals as they engage, avoid, or resist the law or legal meanings” (Reference Silbey, Smelser and BaltesSilbey, 2001, p. 8626; see also Reference NielsenNielsen, 2000). As a conceptual lens, legal consciousness can elucidate the ways state authority is maintained (Reference SilbeySilbey, 2005)—identifying the “pixels of perception” (Reference SilbeySilbey, 2005, p. 358) that comprise legal hegemony. Legal consciousness is not a staid cognitive state, but a set of social processes that comprise a person's attitudes, perceptions, feelings, and beliefs about law, legal actors, and legal structures.
Sociolegal scholars have long acknowledged that legal consciousness cannot exist in a vacuum. The production and reproduction of legal consciousness necessarily involves relationality, because a person's legal consciousness will be influenced by social context—what the person thinks other people think and feel about the law: what others believe, heed, and know. But even though “legal consciousness research is and always has been relational” (Reference Chua and EngelChua & Engel, 2019, p. 344), relational legal consciousness is not well-developed as a theoretical construct.
The relationality of legal consciousness was first made explicit in the first author's examination of Hawaiian cockfighting. Young used the terms “relational legal consciousness” and “second-order legal consciousness” to describe the ways one person's legal consciousness is shaped by their perceptions of others. But although she introduced both terms to the legal consciousness lexicon, Young did not distinguish between “relational” and “second-order” (2014). Since then, scholars who have written explicitly about legal consciousness and relationality have oscillated between the terms “second-order” (e.g., Reference HeadworthHeadworth, 2020) and “relational” legal consciousness (e.g., Reference AbregoAbrego, 2019; Reference Chua and EngelChua & Engel, 2019; Reference WangWang, 2019). Whether the two concepts are discrete has been unclear.
To build a more comprehensive understanding of the perceptual and interpersonal processes that influence legal consciousness, it is first useful to disaggregate the two directions in which scholars have taken relational and second-order legal consciousness since 2014. We can think about relational legal consciousness as an umbrella term referring to any way that Person A's legal consciousness is shaped by their relationships to another person or group. This might include group membership, family dynamics, culturally constructed beliefs, and so on. In contrast, second-order legal consciousness can be understood as a more specific term that refers to how Person A's legal consciousness is shaped by Person A's perceptions of Person B's or Group B's legal consciousness—not simply by Person A's relationships to a person or group generally. In other words, second-order legal consciousness refers to the processes via which Person A's legal consciousness is shaped by Person A's beliefs or impressions about the beliefs, attitudes, impressions, and inclinations of Person B (or any group) with regard to law.
To illustrate the distinction between relational and second-order legal consciousness, consider a friendship between Amir and Barbara. If Amir's relationship with Barbara makes Amir more likely to jaywalk because he believes that Barbara thinks jaywalking laws are silly, this would be an example of both second-order legal consciousness (specifically) and relational legal consciousness (more generally). On the other, if Amir's friendship with Barbara makes Amir more likely to jaywalk because Amir is happy and this affective state leads him to jaywalk, this would only be an example of relational legal consciousness. Understood this way, both “second-order legal consciousness” and “relational legal consciousness” are useful as discrete terms. The former is a subset of the latter.
Legal consciousness is continuous and iterative, produced and reproduced via interdependent social processes. In this way, its function in perceptions and decision-making bears similarity to the function of emotion itself. Bandes and Blumenthal describe emotion's role in decision-making (Reference Bandes and BlumenthalBandes & Blumenthal, 2012, pp. 163–4):
Emotions are a set of evaluative and motivational processes… that assist us in appraising and reacting to stimuli and that are formed, interpreted, and communicated in social and cultural context. They influence the way we screen, categorize, and interpret information; influence our evaluations of the intentions or credibility of others; and help us decide what is important or valuable.
If this excerpt substituted “legal consciousness” for “emotions,” it would be just as accurate. Legal consciousness is narrower since it comprises appraisals, reactions, interpretations, and evaluations with regard to law. But its function as a set of inherently relational processes is strikingly similar.
Reference WangWang's 2019 case study of a Taiwanese family offers one example of how scholars investigating relational legal consciousness might think about emotion. Detailing how family members' emotional relationships and cultural commitments shaped their legal consciousness around issues of elder care and inheritance, Wang argues that a greater focus on emotionality is key to understanding legal consciousness: “The case study of the Lee family conflict… demonstrates that legal consciousness is dependent on emotions that are deeply connected to one's perception of the self-other relationship, the level of affinity shared with others, and the life objectives of all those involved” (Reference WangWang, 2019, p. 784). While Wang's construction of relationality is somewhat general—to employ the distinction above, the legal consciousness Wang depicts is relational, but not second-order—it illustrates the capacity of law and emotion scholarship as a conceptual lever for thinking in new ways about the co-constitutive nature of legal consciousness.
Previous work on relational and second-order legal consciousness has spanned a variety of substantive settings. Reference YoungYoung (2014) and Reference HeadworthHeadworth (2020) each examined opposite sides of the enforcement coin, looking at how the legal consciousness of enforcer/subject is influenced by each group's beliefs about the other group's legal consciousness. Reference AbregoAbrego (2019) and Reference WangWang (2019) show the manifold relational ways that legal consciousness (specifically, understandings of citizenship in Abrego's analysis; disputes over eldercare and inheritance in Wang's) are produced and shaped within families. All of these scholars, as well as Reference Chua and EngelChua and Engel (2019), have called for additional work focusing more systematically on legal consciousness's relational aspects. Silbey, too, has argued for greater focus on relationality to develop a comprehensive social scientific understanding of law. She writes, “We need to get beyond conceptions of compartmentalized social action by depicting the relational interdependence that may be elided in efforts to produce reliable and valid depictions of ‘social facts as things’” (Reference SilbeySilbey, 2019, p. 16).
Our investigation of parole hearings bridges the relational legal consciousness literature and the literature on law and emotion, putting these two veins of sociolegal research into conversation to investigate what parole board members believe they are doing when they assess remorse. How do decision-makers understand the mandate to assess another person's affective state? Like Headworth, we are interested in how the second-order legal consciousness of legally empowered actors may “provide insights into how people with legal power believe people subject to their authority understand the law” (2020, p. 328). In a sense, parole commissioners' legal gatekeeping function per se implicates second-order legal consciousness, because they are tasked with determining whether another person possesses remorse and insight, two complex affective states endowed with legal meaning. The process through which they translate these abstract concepts into legal determinations is the central puzzle this article seeks to solve.
Data and Methodology
As Gomez has argued, qualitative methods are well-suited for “illuminat[ing] the process of meaning making” to understand legal consciousness (2016, p. 1075). We draw primarily on 25 in-depth interviews with parole commissioners, who fall into two categories: Deputy Commissioners and Commissioners. Deputy Commissioners are civil servants hired by the California Department of Corrections and Rehabilitation (CDCR). They usually have experience in corrections, enforcement, or criminal legal practice.Footnote § Commissioners, appointed by the Governor, are subject to confirmation from the Senate Rules Committee and serve renewable three-year terms. We refer to Deputy Commissioners and Commissioners collectively as “commissioners.” Nearly all California lifer hearings are conducted by one Deputy Commissioner and one Commissioner.
Our semi-structured interviews took place with the permission and assistance of the California Board of Parole Hearings (BPH), and focused on commissioners' conduct of lifer parole hearings, preparation for hearings, and decision-making process. Sixteen interviews were conducted by the first author, and the remaining nine were conducted by a trained research assistant. We interviewed 10 Commissioners and 15 Deputy Commissioners. At the time the interviews were conducted, this subpopulation comprised a third of the state's parole commissioners.
A great deal of flexibility was built into the interview structure to follow commissioners' lines of thought. Most interviews were one to two and a half hours in length. For commissioners' convenience, interviews were held near prisons where commissioners were conducting hearings. Before or after a commissioner's work day, we would typically meet them at a coffee shop or diner. Interviews were audio-recorded and transcribed into ~350 single-spaced pages. All commissioners were promised confidentiality; we use pseudonyms herein.
Several other sources of data informed and contextualized our interviews and analyses, including attendance at lifer parole hearings, in-person visits to support groups for lifers, review of commissioner training materials, visits to BPH headquarters in Sacramento, attendance at trainings for attorneys representing lifers at hearings, informal interviews with six of these attorneys, informal conversations with numerous BPH and California Department of Corrections and Rehabilitation (CDCR) employees, and reviews of newsletters and support group materials written for family members of people serving life terms in prison with the possibility of parole.
We used open coding to identify topics related to any and all aspects of parole hearings. The purpose of using an open coding process, as opposed to determining codes ahead of time, was to allow prominent codes to arise from the data. Examples include commitment offense, VNOKs (victims' next of kin), demeanor, remorse, governor review, BPH politics, psychological evaluations, prison discipline, commissioner preparation, and dozens more. Next, we grouped codes thematically into code families such as “assessing rehabilitation and dangerousness” and “nature of the job.” Commissioners' discussion of remorse and insight emerged as a prevalent theme and comprised 70 single-spaced pages of field notes and interview transcripts.
Within the “remorse and insight” code family, we conducted a new round of open coding. We did so to develop a more granular understanding of themes within commissioners' discussions of remorse and insight. This phase of coding was conducted separately by each author for the entirety of the data from this code family. We then discussed the thematic trends we found, reaching full intercoder agreement (Reference Campbell, Quincy, Osserman and PedersenCampbell et al., 2013) over several weeks of in-depth discussion.
Results
Four key themes emerged in commissioners' descriptions of remorse and explanations of how they determined whether a parole candidate was remorseful. As they understood it, a remorseful person: (1) attested implicitly and/or explicitly to the truth finding function of the criminal justice system; (2) viewed the cause of their commitment offense as a deficit within themselves; (3) described the state as playing a key role in their transformation into a “new” person; and (4) demonstrated that they had internalized the moral logic of the carceral apparatus. We discuss each finding in turn.
Attestation to the criminal justice system as truth-finder
Candidates for parole are not required to discuss their life crimes, and they might refuse to do so for any number of reasons, including discomfort, shame, factual innocence of the crime for which they are serving time, lack of memory about the incident, or following the advice of an attorney. While commissioners acknowledged that these possibilities existed, most explained that even so, refusing to discuss the commitment offense harmed a person's chance of parole. As DC Patricia Berry put it, “The crime is always going to make a difference.” DC Gibson explained that without hearing a person discuss hisFootnote ¶ crime, it was difficult to render a decision because the omission stymied commissioners' capacity to assess remorse. Other commissioners felt similarly. Commissioner David Boseman said, “A lot of times they say, I'm not going to talk…. [And] it does affect [my] decision.” We asked how he assessed remorse when a parole candidate refused to discuss the crime, and he nodded and said, “That's the issue.” Indeed, DC Denise Rivera said that her “number one” piece of advice for prospective parolees would be to “answer any questions, even if it relates to the commitment offense. Because sometimes it makes a clearer path to defining or to realizing remorse.”
In addition to whether a candidate discusses the commitment offense, how he talks about it influences commissioners' remorse assessment. First, he must corroborate the version of the case presented at trial. Contradicting a prosecutor, police report, or another official state source is problematic. For example, Commissioner dePaola described a candidate who recounted firing one gunshot, whereas the autopsy report documented two bullets. This meant that the person “couldn't wrap his head around the fact that he had shot the victim twice in the head.”
A candidate's contradiction of his own, previous statements gives commissioners pause as well. “I usually dig into prior transcripts to see if we've got inconsistencies, to see if the inmate is lacking insight,” said DC Dennis Douglas. DC Ronnie Gibson did the same: “If you [the parole candidate] give us a version and change that version down the road, you'll find yourself in trouble because we're looking to see whether you understand your crime and accept responsibility for it.” In these examples, commissioners interpreted changes in people's stories not as evidence that memory is fallible, but as evidence that a person lacks remorse.
Commissioners also preferred that parole candidates' descriptions of the commitment offense contain extensive detail. Conclusory statements about remorse, absent details about the crime, were interpreted as a sign that a parole candidate had not “internalized” that he committed the offense, and thus was incapable of true remorse.Footnote ** For many commissioners, remorse entails accepting not just responsibility for the crime, but for its grisly constituent parts—again, attesting to those parts as told in the state's accounts. DC Denise Rivera recounted a hearing for a candidate whose in-prison record was excellent, but who only discussed the commitment offense in vague, conclusory terms:
He had done everything imaginable in custody. I think he came in with a binder this thick [holding thumb and forefinger a few inches apart] of all of his accomplishments. Including, I think, a four-year degree. He had lots of support letters, three or four employment offers, just a marvelous plan for parole. He would seem like the ideal candidate. And when you asked him about this or that, part of the commitment offense included [an unusual and brutal form of suffocating someone]. It was very very bad. And we kept asking him, without going into specifics, how did you react when the victim was screaming… And the only thing he kept saying over and over again was ‘I just made a bad judgment.’ Well, you know what? A lot of people make a bad judgment. …[P]erhaps they'll get into a car and drive drunk. That's a bad judgment. But doing what he did goes a little further than a ‘bad judgment.’
Despite being suitable for parole in every other way, the candidate's refusal to delve into details convinced commissioners he was unreflective, and they found him unsuitable for release. Although she did not expect to “retry the case,” DC Rivera said, equating an extreme moral wrong with bad judgment showed that this candidate had not internalized his crime and could not be remorseful. She emphasized that she did not deny parole for his refusal to talk about the crime, but for the disconnection between the crime itself and the way he talked about it—a thin distinction, to be sure. As DC Lyon told us, “Our job is to assess dangerousness, so if they don't want to discuss the nature of the crime, and what was really going on, and how they felt about it, how they feel about it now, and how they would prevent it from happening again, then we're missing a piece of the pie.”
The supremacy of the criminal justice system's official account is underscored by the presence of a prosecutor from the county where the crime was committed. Not all commissioners supported prosecutors' attendance at hearings, but those who did say that they appreciated having an “expert” on the crimeFootnote ** who could hold candidates accountable to the state's version of the facts. DC Marion Lyon said:
[W]e're really happy to hear [from the prosecutor], like, ‘That's not what he said in court, and I'll just read that you said right here. Would you please ask the prisoner if this is really what he said at that time versus what he said today?’ And all of a sudden we think, ‘Wait a minute.’ That [conflict] weighs heavily on if we think that the inmate is lying to us whether or not he has really come to terms with the crime.
Commissioners also reported paying special attention to lifers' discussion of the direct personal harm they caused the victim or VNOKs. The kind of empathy commissioners associated with remorse was specific rather than general, and the harm was to an individual person rather than the violation of a social contract. No commissioners mentioned hoping that candidates would acknowledge the financial toll of their incarceration on the state budget, or describe how their actions had deprived a community of a store clerk or a teacher. Rather, remorse meant understanding harm in direct interpersonal terms. Several commissioners cited a parole candidate's not knowing a victim's name as betraying a lack of remorse. DC Gibson explained: “[I ask,] Do you know anything about the clerk [you shot]? What's the clerk's name? You went to trial for however long, and this person was supposed to have impacted your life. You're supposed to have an understanding, and you don't even know their name.”
Commissioners also expected lifers to talk about victims in respectful, uncomplicated terms. Saying anything disparaging about a victim could count heavily against release. For example, DC Seaver said, some lifers say things like, “Oh, everyone's saying the victim was perfect, but really she was a drug dealer.” DC Seaver interpreted such statements as a lack of insight; by criticizing a victim, a parole candidate was minimizing the crime's impact, which suggested a lack of remorse. Other minimizing behaviors that indicated remorselessness included lifers' explanations of why they committed a crime, or why they committed it in a particular way. DC Lyon explained her reaction to this kind of “self-justification”:
[I]t's like, why did you dispose of the body that way instead of that way? They will say, I really didn't want to watch him suffer anymore, so I shot him in the head. In their own criminal mind, they're actually doing the victim a favor. So as they talk about the crime, you begin to get a sense of how they're thinking, how they are justifying what they did in their mind and how they might then justify another bad act in the community… the spirit must be able to come to terms with what it does. And they do that by lying to themselves, denying, and justifying. I did my best under the circumstances, or I had to do it.… Why didn't you just walk away? Why didn't you just leave the house? Well, because she was manipulating me. She was lying to me. I know she was sleeping with my cousin. See? So he's justifying.
Blaming others is tantamount to failure to accept the crime's “true” cause—which, as we will detail in the next section, must be explained as a flaw in the parole candidate himself. Most commissioners explained that pointing to someone else as even a partial cause of the crime indicated a dearth of remorse. Their examples included: “The court screwed me” (Deputy Commissioner Ethel Teng-hui); “I [only] took a gun for protection, or I had to shoot him, or I wish the victim would have acted differently” (DC Do); “This lady was this, this lady was that, this guy was gay, this guy was this… [a lifer who says things like that is] going to be in prison for probably the rest of his life” (DC McNally). Whether technically accurate or not, commissioners interpreted these statements as self-justification—and self-justification is viewed as incompatible with remorse. Again, we see that commissioners prefer crimes to be discussed in black-and-white terms—terms akin to the criminal justice system's verdict—not in terms that bespeak a more textured story.
Commissioners were also attentive to parole candidates' demeanor toward victims and VNOKs. In California, victims and VNOKs are permitted to speak at lifer hearings with virtually no restrictions (Reference ApplebyAppleby, 2013). DC Douglas said, “I kind of watch their facial features. How they—how their demeanor is, how they handle themselves.” Disrespect or insensitivity toward the victim undercuts expressions of remorse. DC Merry described her dismay at one candidate's reaction to the determination that he was suitable for parole: “[H]is demeanor while we read [the decision] made me feel like we made a mistake. High fiving his attorney when the VNOK was right there! That, to me, showed he wasn't remorseful. If I could have changed my mind at that point, I would have.” For DC Merry, expressing joy about a parole grant in front of a victim's family member disrespected the victim and convinced DC Merry she had made the wrong decision.
Parole candidates were also viewed unfavorably if they pointed out that they, themselves, were affected by the crime. “What I like to hear is, ‘It affected the victim, the victim's family, my family,’” DC William Do said. “What you don't want to hear is, ‘I was affected by it.’” A person who says he regrets his crime because prison is terrible, or because it took him away from his family, conforms inadequately to commissioners' understanding of remorsefulness. DC Seaver explained, “One way to get at remorse is to ask, ‘Who's the victim?’ A lot of them will name themselves [along with the victim and VNOKs]…” Parole candidates who included themselves on the victim list, he said, were not ready for release.
Individual deficits as causes of crime
As commissioners understand it, a large part of a lifer's rehabilitative task involves understanding why he committed the crime and working to remedy that cause; without understanding his own motivations for committing the crime, remorse is unattainable. But there is an important caveat: the stated causes need to be individual, not systemic. Parole candidates are not rewarded for suggesting that crime is rooted in social or structural causes, only for explaining it as the product of individual deficits—deficits that were, and continue to be, within the person's control. The parole candidate might discuss his alcoholism or anger management problem, then explain how it has been remedied—as DC Neal put it, “changing yourself so it never happens again.” Commissioner Merrick Horn explained this process in more detail:
[I ask,] have they changed whatever behavior appears to have led them on the path that brought them to commit the crime, and what that might be—have they addressed their substance abuse, have they addressed their gang violence, have they addressed their mental illness with treatment. If those were present… have they addressed those. That can be an expression of remorse because it may reflect that the inmate has developed some insight into what caused them to malfunction and if they've decided that I don't want to malfunction like this anymore, I'm going to have to change and if they make that conscious decision to change, it suggests, perhaps, that they recognize that what they did before was destructive and harmed people and that they no longer wish to do that.
Commissioner Kramer echoed this: “What I want to know is, what was in them that allowed that to happen? Number one is, have they addressed that?” Addressing a “malfunction”—something “in them” that caused the crime—is an essential part of articulating remorse. Note, too, that a parole candidate need not just recognize a deficit, but must also perceive himself as having agency over it. This distinction was illustrated by commissioners who explained that some lifers discussed disabilities, abuse, or misfortune as a source of their problems and framed these characteristics or experiences as beyond their control. For example, DC Gibson explained of a person who was denied parole:
He claims to have a learning disability, and he can't learn to read. So he's not been able to get a vocation either. And he told me right to my face, ‘You have to let me go because I have a disability.’ …[But] I don't care if you have a disability. I really, really don't. Because you make no effort to do anything else around it. I mean, with a disability, there are things you can do instead of sit around here and bitch about having a disability. And frankly, they always do that. You know, ‘I've got a disability, I've got anger issues.’ Well, my job is primarily public safety. And if you are an unreasonable risk to society, you're not going anywhere. And so, disability or not, I don't play by excuses.
Here, “playing by excuses” means seeing one's self as nonagentic. Commissioners look favorably upon parole candidates who recognize problems and work on them, but have little patience for parole candidates who frame problems as permanent obstacles. “I tell them, you got yourself into this mess; you need to get yourself out,” Commissioner Kramer said.
Commissioners often talk about the idea of releasing a “different person” from the one who entered prison. Transformation and remorse are closely connected. Deputy Commissioner Alexander Babcock said:
[When] that person, the life prisoner, is being interviewed or examined and he and his attorney and the board can say this is what he has been doing, he's not the same person that had no job skills and hadn't finished high school and had a substance abuse problem. And you look at this person today, there's apples and oranges. That's how you show remorse.
In the next section, we will detail these narratives of transformation. But for now, it is worth noting that successful narratives describe a process of change over years or decades, as opposed to a single epiphany. Several commissioners mentioned distrusting epiphanies as evidence that a person had changed. As DC Vivian said, “Some prisoners… they've got religion. I mean, ‘I found religion while I was in prison, you should give me a parole date because I found religion, I found the Lord.’ Well, you know, sometimes the Lord stays at the gate when they walk out and they leave him behind.” There could be “value to an epiphany,” Commissioner dePaola said, but only when it was part of a longer narrative that explained how the parole candidate had become a different person from the one who committed the crime. Similarly, DC Babcock said:
I've had a couple of guys tell me that they're Buddhists…Well, if you think about that, somebody who's a Buddhist at age 46 or 50 years old, that wasn't a Buddhist when he committed the crime. He sure didn't have any reverence for life at that point. So, how do you—how does that happen? That's the question I'm going to be asking [the parole candidate]… Tell me how you went from having no reverence for life to complete reverence for life.
In DC Babcock's formulation, the parole candidate is not an essentially good person who acted in a moment of weakness or anger, but rather someone who, when he committed the crime, possessed “no reverence for life.” By the time of the hearing, as DC Babcock understood it, the parole candidate was not simply a person who could control violent impulses, but a person who possessed “complete reverence for life.” In this narrative, the person is transformed so thoroughly that the core internal deficits that caused the crime no longer exist.
Personal transformation via the carceral apparatus
While parole candidates are rewarded for framing the source of the crime as a personal deficit or malfunction, they are rewarded for crediting the carceral state with their redemption. Lifers are expected to avail themselves of in-prison programs (usually referred to as “programming”) and to be transformed through them. DC Douglas described the connection to remorse:
I am really looking at, does the inmate have a sense of true remorse. Have they made efforts to program and to look into themselves… and if they do it fairly consistently. What I find sometimes is that they'll take a course and then drop out. And I'll say, ‘Why did you drop out, how come [you programmed for two years] and then nothing?’ Oh yeah, I was busy working. No, that [explanation] is not going to work, because those three years that you are not [programming], you haven't dealt with the violence that was taking place during the murder.
Failing to participate in prison programs is equated with making no progress toward transformation. Commissioner Melford Bryant described the programming-insight relationship:
[W]hen they're ready and they program… [you can see parole candidates'] insight and understanding… With these heinous crimes they've had to address it every day of their life and they're actually working towards it. It's impressive, so once you see that, you know the system's working right… the system's set up so that if you want to work, it'll work for you.
For commissioners, a person's transformation via incarceration means that “the system's working right.” As Commissioner Elaine Cohen put it, “It's nice to see offenders' evolution, that the process can work.” A candidate's transformation entails his acceptance and use of the carceral system as the source of his change.
At hearings, commissioners sometimes directed parole candidates to take advantage of specific programs. Lifers who do not follow these recommendations are, according to commissioners, likely to be deemed unsuitable for release at the next hearing. DC McNally said, “You come in here and you're crying in the hearing, and you know what? That's good, but there's things that the last Board… I'll go back to the last five hearings. They told you to do self-help and you didn't.” He explained that parole candidates' failure to follow Board recommendations was one way he could tell that remorse was not “genuine.” Conversely, commissioners rewarded people who followed recommendations. With a broad smile, Commissioner Kramer recounted a grant he had given a few hours before we spoke: “This guy in today's decision was doing exactly what he said he was going to do. He's involved in AA, he's trying to work with at-risk youth, is continuing his education. All the things we told him to do before.”
Of course, program availability hinges partly on where a person is housed—which, itself, is based partly on chance. Yet parole candidates who pointed this out were seen as fabricating excuses. “A guy might say there aren't any programs. But you know what? There's programs,” DC McNally said. We asked DC Gibson whether he took into account the amount of programming available at each institution. He responded, “…I don't believe you deserve anything. When I see those commercials—‘you deserve this’ and ‘you deserve that’—no you don't.” That is, the commissioner responded to the assertion that programming is limited by suggesting that people are not “entitled” to programs. He said lifers who claimed that they could not get into appropriate programs were wasting their time “catching a tan on the yard.”
The few commissioners who did not expect programming if no suitable formal programs were available expected lifers to create their own rehabilitative tools. Commissioner Kramer said:
I want them to be reading about their substance abuse. Book reports are good for me. If they can tell me that they, you know, if they read a book on how to deal with… If you have a question about something, you're going to read about [it], you're going to want to know something about it, right? So I want to make sure that they can do that too. None of us got all the answers, but in today's society, most of us can very easily get the answers.
In other words, if lifers gain insight through programming, commissioners attribute it to the success of the carceral state; prison programming has enabled people to remedy their deficits. But if this does not happen, it is not a failure of the carceral system, but a parole candidate's individual failure.
In addition to participating in programming, successful parole candidates must demonstrate that the programs have changed their outlook. Commissioners looked for evidence not just of participation, but of resultant changes in consciousness. Commissioners often talked about this in terms of “internalization”—that, as Commissioner Bennie Hull put it, a lifer “gets it.” Commissioners were highly attuned to the possibility that transformation was feigned. For example, DC Cordero tried to ensure that parole candidates were not simply reciting rehearsed statements: “Some of them come in with appearances that they are [suitable], but then when you start delving in and asking questions, you find out that it's superficial and they really just want to say what they think you want to hear.”
Other commissioners were also skeptical of candidates who seemed “too rehearsed.” DC Merry asked questions designed to elicit unprepared responses. “Especially lately, I feel like someone's helping them prepare too much,” she said. “They come in with the buzzwords. It makes my job a little harder, actually. They've got reentry classes. And they're almost preparing too much. Because they're able to answer some questions [with answers] that aren't from the heart…. It's all the right words but too often it's not believable.” Commissioner Bryant said that “[Some]times this guy looks really good on paper, he's got good things, but when he comes in, in person the feel you get is that he's superficial. He's just reciting. His ‘remorse’ is a dissertation that he's memorized for two weeks.”
The balance between preparation and spontaneity is tricky. Commissioners wanted parole candidates to speak “from the heart” and avoid “buzzwords,” yet they valued preparation, as long as it was not “too much.” DC Babcock said she preferred lifers who seemed unrehearsed, but also said, “I like to see inmates that are prepared, because—think about it for a second—if a person prepares for their lifer hearing, that means that they're probably going to be prepared for a job interview, they're probably going to be prepared to meet, you know, other challenges.” DC Merry said that parole candidates should go “over and over” their statements, yet not “sound rehearsed.” Commissioner Clara Connery explained how she determined whether a person had internalized change:
One guy said, ‘I don't speak well,’ but he had a piece of paper that he had written on. He wrote the buzzwords. You know, he had been coached by another inmate and I saw that. And I go, ‘Why do you keep on looking at that yellow piece of paper?’ And he goes, ‘Well I don't speak well.’ I said, ‘But you're just, you're looking at number two now, aren't you?’ I mean, I saw him. I go, ‘You're just going to give me the buzzwords.’ And he didn't get it.
Similarly, DC Gibson used questioning to distinguish real remorse from feigned remorse:
So I guess it's more with exploring questions to really get to remorse. Because these guys can—and it's getting to be an art form—with the attorneys whipping up [prepared] remorse statements. But those fall apart pretty quickly when you start getting underneath it with the inmates. And a lot of it's through the questioning.
Commissioners needed to “get past the buzzwords and try to understand if [parole candidates] know what the heck they're saying,” or whether they are “con men,” DC Cordero explained.
In these examples, commissioners not only look for remediation of personal crime-causing deficiencies via the carceral apparatus, but for evidence that this is also how the candidate understands his rehabilitative process. Participation in prison programs is generally seen as necessary but insufficient; it must correlate with a change in a candidate's outlook that commissioners deem genuine. In the modal transformation narrative, a lifer arrives in prison with a personal failing that is remedied over time by the carceral state. If lifers appropriately internalize this understanding, they are rewarded; if they do not, they may be seen as unremorseful.
Internalization of the system's moral logic
In the previous section, we explained how parole candidates demonstrate personal transformation via the carceral apparatus. In this section, we detail a related process—one through which a remorseful lifer demonstrates adherence to the carceral system's rules and moral logic.
The clearest indicia of candidates' rule-breaking was their receipt of disciplinary citations. DC Lyon explained:
Their behavior in the prison is very reflective of we could expect from them on the outside. And we actually tell him that. If you cannot follow the rules in an extremely restrictive environment like a prison when people are watching you, counting you, documenting everything you do, good and bad, and you can't function here, you certainly cannot function on the outside.
At first, this explanation seems obvious: if you cannot follow prison rules, you will not follow the law. But it is also worth considering that prison is an unusually restrictive environment, with many more rules to break. Disciplinary citations can be given for a wide range of behaviors, from nonviolent offenses that would be permissible outside prison, such as calling a family member on a cell phone, to violent offenses such as assault. Corrections personnel also have enormous discretion about whether and when to issue citations, and prison watchdog groups have alleged that they are sometimes issued inappropriately, in retaliation for acts of political protests, such as hunger strikes (Reference LawLaw, 2014). Quantitative analyses suggest that the citations in a parole candidate's file have a significant effect on his chances of receiving a grant (Reference Young and PearlmanYoung & Pearlman, 2021). And although commissioners sometimes distinguished between varieties of disciplinary citations, they often pointed to the presence of any citations as evidence of unsuitability. For example, DC Connery said that all rule violations, especially recent ones, were important “because it shows you still lack impulse control.” Disciplinary infractions were evidence that the person has not “disassociated themselves from their criminal behaviors,” Commissioner Kramer told us.
Parole candidates were also deemed unsuitable if commissioners believed that they demonstrated a propensity for manipulative behavior, or a tendency toward a thought pattern that commissioners called “criminal thinking.” Criminal thinking was a telltale sign that a person was not ready to rejoin society—a litmus test that indicated he might commit another “failure of the human condition.”
To illustrate criminal thinking, Commissioner Motoko Takada recounted a lifer who had committed a violent offense on behalf of his gang. When he entered prison, the man's right arm had been covered in gang tattoos. At his most recent hearing, when commissioners asked if he was still associating with the gang, he said no, and pushed up his right sleeve to reveal an enormous prison tattoo of a cross, which now covered up his gang tattoos. He said that when people asked about his affiliation, he showed them the cross and said that his only affiliation now was his religion. Commissioner Takada looked at the first author, who was conducting the interview, in a way that seemed to convey that this was evidence the candidate should not be released. Young confessed that she did not understand; wasn't covering gang tattoos evidence that the man had repudiated his gang affiliation? The commissioner replied that since it was against prison rules to get tattoos, the cross proved that this lifer was unsuitable for release. “There is no right reason to do the wrong thing. That's criminal thinking,” Commissioner Takada said. He gave another example of a lifer who had flagrantly committed a small rule violation—possession of a lighter—so that as “punishment,” he would be put into a cell with just one cellmate. This man had done so in order to escape the crowded triple-bunk dormitory in which he was housed. “That's manipulation. That's criminal thinking,” Commissioner Takada said.
A similar theme arose with other commissioners. Commissioner Kramer said people who “think like a criminal” could not rehabilitate. He recounted a hearing at which a parole candidate tried to illustrate his newfound capacity to deescalate violence. The candidate proudly described talking a fellow prisoner out of stabbing someone in the prison yard. Commissioners asked the parole candidate if he reported the incident to prison staff. He said he had not, because he was “not a rat.” Commissioner Kramer was incredulous:
Well, then, guess what? You are still a criminal. I mean, you haven't learned anything… You still have criminal thinking… [W]hat's going to happen in the community if we let you out? If you see somebody with a gun, you don't call the police, because you're ‘not a rat’?
It is not enough for a person to be nonviolent, or to prevent violence, on one's own. As commissioners saw it, a parole candidate who was suitable for release would have involved state authority. Even though his failure to do so was not technically against prison rules, it was against the moral logic of the carceral system.
Commissioner dePaola's example of criminal thinking involved a parole candidate who claimed that although he was friends with gang members, he had not joined a gang. This man had no disciplinary citations, tattoos, or gang paraphernalia, but there were two videos of prison riots in which fighting broke out between gangs. The tapes showed the man defending his friends when they were attacked. Someone who was unaffiliated with the gang, Commissioner dePaola said, would have stayed out of the fighting altogether.
One interpretation of the actions that commissioners categorized as “criminal thinking”—defending one's friends, escaping a crowded living environment, or avoiding being labeled a snitch—might be that prison is a difficult place to survive, and that sometimes people in prison act for reasons of self-preservation. The commissioners, though, took a more absolute stance. DC Neal explained that she wanted to release the kinds of people who stopped at a stop sign even if they were in the middle of nowhere and no one was coming from either direction—someone who adhered to the law, regardless of circumstance.
Another way parole candidates could evidence failure to internalize the proper consciousness with respect to the carceral system was to challenge its hierarchies. Candidates who sounded entitled or arrogant were likely to be found unsuitable. DC Gibson said:
[S]ome of the worst things I've seen [at hearings] is more of the subtle stuff. I've had guys who are arrogant and want to be basically at the same level as the panel. Kind of like we're all gonna go golfing later… but that's a horrific mistake. Because they're asking for something, to be in camaraderie with us, and the big thing that's in the courts all the time now is the insight. They wanna talk about insight but they don't have any.
A lifer who saw himself as the commissioners' social equal failed to mirror the system's construction of him as a subject in need of reform. A parole candidate who thought he was entitled to rejoin society had a problematically unhumbled view of himself. DC Lyon described a person who exemplified this:
[He h]ad an attitude of real entitlement… an attitude of, ‘I'm one of you, I'm not really a bad guy, I just had a bad day.’ And he's got some arrogance… he's like, ‘You know, I know what to do when I get out, you know, I'm probably going to try to be a security guard.’ It's the disconnect there.
A parole candidate who perceives himself as a regular member of society, as opposed to someone who is still rightfully subject to the system's control, is seen as “arrogant,” particularly if he puts himself on the “same level” as the commissioners. To commissioners, challenging the carceral hierarchy suggests a lack of insight. An “insightful” lifer views himself the way the system views him. He has internalized the social hierarchy as constructed by the criminal justice system, and he relates to the commissioners accordingly.
Discussion
Considering the task of remorse assessment from commissioners' perspective reveals that legal consciousness, particularly second-order legal consciousness, is a cornerstone of their decision-making calculus. Although commissioners attended to some physical indicia, such as facial expressions and body language, these were not their primary means of assessing remorse. Instead, they described trying to ascertain parole candidates' cognitive and affective states by looking for expressions of particular attitudes, feelings, and beliefs—often about law, incarceration, and rehabilitation. Indeed, some even developed questioning strategies to catch people off guard, which commissioners believed increased the likelihood of receiving authentic answers to their questions about remorse.
Our data demonstrate that second-order legal consciousness can become a stand-in for having the “right” subjective emotional state. An ideally remorseful parole candidate: (1) attests to the criminal justice system's truth-finding function; (2) explains the crime's cause in terms of his own personal deficit(s); (3) describes how he has used the carceral apparatus to transform into a “different” person; (4) mirrors the moral logic of the carceral system. Conversely, lifers who view their offense as precipitated by circumstance, or who challenge the system's assumptions and hierarchies, are seen as unremorseful. That is, commissioners considered not only whether a parole candidate exhibited appropriate emotional responses, but how thoroughly he has internalized the norms, structures, hierarchies, and values of the criminal justice system—the degree to which he demonstrates the development of a legal consciousness that incorporates acceptance of the social logic and moral logic of the system that has incarcerated him.
Drawing on the legal consciousness literature, Sexton uses the term “penal consciousness” to describe the subjective meanings people derive from incarceration (Reference SextonSexton, 2015). Her work highlights the differences between how punished people understand punishment versus how government actors understand it. These perspectives are related, but the penal consciousness of imprisoned people is distinct. Although Sexton focused specifically on imprisoned people's perceptions of punishment, our data suggest an analogous perceptual rift. Consider the lifer who proudly showed commissioners his cover-up tattoo, or the lifer who explained his violence de-escalation tactics on the prison yard. For these men, their actions were triumphs—examples they shared to demonstrate that they were changing for the better. But commissioners received this information as examples of “criminal thinking” and saw them as deviations from the carceral logic they wanted lifers to internalize. The processes of relational legal consciousness that take place at parole hearings implicitly reject a penal consciousness lens. Commissioners scrutinize parole candidates' perspective not to understand candidates' unique subjectivities, but to assess those subjectivities' alignment with the system's values. Successful candidates discuss their punishment in the same way lawmakers and criminal justice officials understand it. This alignment is key to decision-makers' assessments of how remorse is represented in parole hearings.
Thus, second-order legal consciousness is part of a system of mechanisms wherein “The dominated apply categories constructed from the point of view of the dominant to the relations of domination” (Reference BourdieuBourdieu, 1998, p. 35; see also Reference Menjívar and AbregoMenjívar & Abrego, 2012). From a Durkheimian perspective, demanding sincere remorse as a condition of release highlights the expressive function of the penal institution. It is not simply that violations of collective values and sentiments rouse impassioned or punitive reactions among commissioners. They sometimes did, such as the commissioner who declared that a lifer had committed a “failure of the human condition.” But our results demonstrate something subtler: commissioners expect parole candidates to exhibit reparative expressions of remorse that reinforce the criminal justice system's integrity and affirm values inherent in the carceral system. A parole candidate who describes the causes of crime as structural or environmental, rather than pointing to his own deficits, is suspect. So is a parole candidate who uses the system's rules for his own purposes, such as provoking a minor behavioral citation to get out of a crowded housing situation. A remorseful parole candidate articulates an understanding of the criminal justice system that echoes the way the criminal justice system understands itself. He also articulates an understanding of himself that echoes the way he is understood by the system. These requirements constitute the prescriptive and proscriptive norms for expressing the complex emotion of remorse during hearings. A parole candidate's description of the victim, the crime, his rehabilitation, and his incarceration must create an impression of his attitudes and beliefs about law and the carceral system that leads commissioners to understand him as suitable for release. Second-order legal consciousness, then, operates as an ongoing, interactive set of social processes through which existing power relations are produced and reproduced.
Authenticity is key for the system's moral logic to work. Weisman and Bandes each describe the demand for genuine remorse as a central paradox of factoring remorse into punishment decisions; the expresser's strong incentive to appear remorseful automatically calls the sincerity of the remorse into question. Our results echo this. Parole candidates are scrutinized for signs that their remorse is genuine, versus following a script. This finding echoes Headworth's description of welfare fraud enforcers, who expressed frustration that welfare recipients shared advice with each other about what to say or how to act to ensure that they would receive food stamps (Reference HeadworthHeadworth, 2020, p. 332). Headworth found that the enforcers he studied do not want to reward people who “game” the system or do not truly “buy into it.” So, too, parole commissioners sought signs that a parole candidate was not so rehearsed that his remorse appeared artificial. This finding has been echoed in recent work on parole board members in other jurisdictions (Reference RuhlandRuhland, 2020, p. 652). A candidate must appear prepared enough to be taking the process seriously, but not too prepared—not, as one commissioner put it, as though “his ‘remorse’ is a dissertation that he's memorized for two weeks.”
Striking a balance between preparedness and spontaneity likely requires some degree of cultural capital (i.e., education, linguistic competence, and access to lawyers or other advisors) on the part of a parole candidate to facilitate an in-depth understanding of the interactional rules governing expressions of remorse. Drawing on observations of 20 lifer parole hearings, Shammas suggested that adequate preparation for hearings “demands a particular linguistic and scholastic competence that is quite often thoroughly lacking among inmates” (2019, p. 156). Although we found no evidence that commissioners would agree with this statement, the characteristics they sought in successful parole candidates do tend to require a certain level of perceptual agency and skill at self-expression (see Reference SchwartzapfelSchwartzapfel, 2016). In other contexts, cultural capital has been found to shape interactions between criminal defendants and their attorneys (Reference ClairClair, 2020), and between lay citizens and police officers (Reference Young and BillingsYoung & Billings, 2020). Documented racial bias in basic emotion perception (Reference HugenbergHugenberg, 2005; Reference Wang, Chen, Wang, Hu, Xiaoqing and GenyueWang et al., 2014) also suggests potential for parole candidates' characteristics to shape the way their descriptions of emotion are received.
For a lifer parole candidate to appear remorseful, it is insufficient to recognize the error of his ways and vow not to cause future harm. Instead, a suitable candidate is a “new person”—one for whom it would be virtually impossible to commit the crime for which he is incarcerated. Goffman's work on remedial exchange—a process by which apologies signify “a splitting of the self into a blameworthy part and a part that stands back and sympathizes with the blame giving” (Reference GoffmanGoffman, 1971, p. 113)—offers a helpful framework. Through expressions of remorse, a transgressor effectively “splits” the self between the blameworthy actor who committed a wrongdoing, and a “true” stable self that condemns the violation. The remorseful parole candidate sympathizes with blame-giving such that “the separation between act and being is concretized as the offender sheds the self that perpetrated the transgressive act by embarking on a project of self-transformation” (Reference WeismanWeisman, 2016, p. 36). Drawing from Goffman's splitting of self and Tavuchis's notion of moral community (Reference TavuchisTavuchis, 1991), Weisman describes remorse as a process of moral performance, after which “the attribution of remorse serves to attach or detach the perpetrator from the deed and to qualify or disqualify the doer as a member of the moral community” (Reference GomezWeisman, 2016, p. 25). As DC Babcock said, a remorseful lifer is “not the same person” who entered prison. Remorse means that the split has been successful, and “serves as a signal to others that the crime confirms or disconfirms the offender's fundamental identity” (Reference Proeve and TudorProeve & Tudor, 2010, p. 76).
The split self is consistent with commissioners' expectations of how remorseful lifers will explain the causes of their commitment offense. “Remorse affects determinations of an individual's moral character and, thus, in all likelihood, perceived internalization of the group's moral code” (Reference Gold and WeinerGold & Weiner, 2000, p. 299). An important part of the “moral code” at work here is carceral logic. As the data demonstrate, commissioners perceive remorse not just as accepting personal responsibility, but accepting it at the exclusion of other causes. Remorse means describing a crime's cause as a personal deficit, not as a product of complex interactional processes or problematic social structures. This idea of dispositional flaws as the cause of crime is echoed throughout many other sociological studies of crime and penalty, such as Lynch's in-depth ethnography of parole agents' perception of parolees, wherein the situational realities of parolees' lives were disregarded by agents (2000). Similarly, our findings echo Fox's ethnographic examination of cognitive-based prison program discourse that discounted sociological explanations of crime as further evidence of “criminal thinking” in a way that imparted individual pathology to imprisoned people, serving “the sustenance of organizational logic” (Reference FoxFox, 1999, p. 436; Reference YoungYoung, 1995). Our data suggest that remorseful parole candidates are expected to adopt an enforcer's lens, understanding the carceral system as a crime prevention tool. This can only work if the root cause of crime is individual, not structural—a belief in psychological individualism (Reference HaneyHaney, 1982; Reference LynchLynch, 2000).
Attribution theory offers a related framework for examining perceptions of causal responsibility. Attributions refer to individuals' perceptions of causality, or causal explanations, of outcomes or behavior (Reference HeiderHeider, 1958). Reference WeinerWeiner (1980) argued that judgments of controllability determine the extent to which we ascribe responsibility for misdeeds. Our findings speak to a flip side: commissioners were unwilling to consider causes of the crime beyond a person's control and responded with frustration when parole candidates mentioned situational or external forces that precipitated it. This interpretation, too, aligns with a split-self framework: if the “old” person was the cause of crime, the transformation into a new self removes the cause. In contrast, if crime is understood as owing to random, unfair, or socially complex external forces, parole hearings would be rendered futile as crime-fighting tools, which would fracture the carceral logic. We see this in commissioners' discussion of parole candidates who were suitable for release. Lifers' commitment offenses were not conceptualized by commissioners as the product of complicated social and structural sources, but rather as having individual causes, such as a person's possessing “no reverence for life.” Thus, only by becoming a “new” person can a parole candidate demonstrate rehabilitation.
Although commissioners tended to attribute lifers' crimes to internal character flaws and look for evidence that lifers shared this attributional outlook, many lifers discussed their commitment offenses by providing situational context. This tension reflects a classic social cognitive bias: the fundamental attribution error is the tendency to over-attribute other peoples' behavior to dispositional qualities rather than situational circumstances (Reference HeiderHeider, 1958; Ross, 1977). In the context of parole decision-making, we find a similar insistence on the part of commissioners that criminal actions be decontextualized and attributed to internal factors. People are even more likely to make the fundamental attribution error when judging someone from a social “outgroup” (Pettigrew, 1979); the greater similarity someone perceives themselves as having to a perpetrator, the less responsibility they attribute to the perpetrator as the severity of the consequences increases (Shaver, 1970; see Hanan, 2018 [discussing these biases' implications in the context of racially disparate remorse assessments]).
One danger in insisting that lifers attribute their crime to an internal deficit lies in the possibility that attributing one's crime to external, unstable, and/or uncontrollable sources less central to one's core sense of self may be an adaptive, and even prosocial, response. In other contexts, excusing one's self for past mistakes by attributing their causes to unstable, external sources can have beneficial effects on self-esteem, health, emotions, performance, and personal sense of control (Snyder & Higgins, 1988; Reference Peterson, Seligman and VaillantPeterson et al., 1988; Reference Seligman and SchulmanSeligman & Schulman, 1986; Reference WortmanWortman, 1976). For lifers, the same self-serving attributions disfavored by commissioners may protect lifers against stigmatization and shame—and may even signal an alignment to social and moral norms (Reference Maruna and MannMaruna & Mann, 2006). As Maruna points out, “The deviant who feels no compulsion to make excuses for illegal behavior… may be the least likely to reform” (2001, p. 144). This dovetails with previous findings that suggest that people in prison who are labeled by others as “deniers,” or judged as “defensive” are the least likely to reoffend (Reference Hood, Shute, Feilzer and WilcoxHood et al., 2002; Reference Smith and MonasterskySmith & Monastersky, 1986). Indeed, in a comparison of formerly incarcerated individuals' attribution styles, Reference MarunaMaruna (2001) found that persistent offenders' narratives tended to reflect a belief that they had little personal control over their lives and were “doomed to deviance” (2001, p. 74). Those who continued to desist were more likely to make external, unstable attributions when explaining past offenses. Viewing their crimes in this light allowed them “to rewrite a shameful past into a necessary prelude to a productive and worthy life” (Reference MarunaMaruna, 2001, p. 86).
Finally, by crediting the system with their transformation, parole candidates are required to evince carceral logic. If commissioners believe that lifers see imprisonment not just as a punishment to endure, but as an opportunity to change into a socially palatable member of society, then from commissioners' perspective, lifers' legal consciousness aligns with their own. But a parole candidate's suggestion that programs are not working or that no suitable programs are available creates a misalignment of legal consciousness, and a failure of the “emotion-state” learnable through programming (Reference ParatoreParatore, 2016). As Commissioner Bryant said, “the system's set up so that if you want to work, it'll work for you.” People for whom it does not work are suspected of “playing by excuses.” These attributional processes all paint incarceration in a morally justifiable light. If a lifer transforms, the system worked by making him a new person; if he does not transform, the system worked by keeping a flawed individual behind bars. And note that these transformations require a carefully balanced presentation. A parole candidate must appear to be a new person whose legal consciousness aligns with commissioners', but at the same time, he must not project a sense of entitlement. As DC Gibson said, it is a “horrific mistake” for a parole candidate to “want to be basically at the same level as the panel.” Showing remorse means that an imprisoned person must internalize the hierarchies the system prescribes. Remorse entails reflecting the carceral system's values, goals, attribution of blame, and moral logic—such that the parole candidate's legal consciousness, as perceived by the commissioners, aligns with their own.
Conclusion
It is impossible to know whether a person truly possesses remorse. Second-order legal consciousness specifically, and relational legal consciousness more generally, function as important processes via which parole board members judge parole candidates as best they can with the training they have. Just as schools and teachers reward students based on their ability to participate in elite culture—mirroring the values of the educational system to reap its symbolic benefits of the educational system (Reference EgglestonBourdieu 1974)—lifers are expected to mirror the values embodied by the criminal justice system. It is not simply that parole candidates are expected to prostrate themselves before parole commissioners, but that they are expected to authentically internalize the values and moral logic of the carceral system. In this way, the system's integrity is performed and reinforced; second-order legal consciousness is part of the social processes that underpin existing relationships of power. As Silbey writes, “The standards that legal institutions announce, even though they fail to realize them completely, are part of how legal institutions create their own power and authority” (2019, p. 8). Remorse is something the legal institution of parole claims to discern, and it does so via processes that uphold legal hegemony.
It is tempting, perhaps, to conclude that this article counsels in favor of abandoning impressionistic criteria like “remorse” and “insight.” Here, though, we would exercise caution. It is easier to critique the application of a criterion than to suggest a better one, and the two opposites of flexible criteria are either no criteria (determinate sentencing) or inflexible criteria (rigid decision-making formulae that tend to come with problems of their own). Instead, we hope readers will see our work as a call to put the legal consciousness and law and emotion literatures into further conversation. Looking at remorse through the lens of legal consciousness reveals interactive social processes crucial to the way the emotion is understood by legal actors. And looking at legal consciousness through the lens of emotion offers a clearer, more granular example of how sociolegal scholars might analyze the mechanisms that constitute the production of relational legal consciousness.
Acknowledgments
Our deepest thanks go to Mary Rose, whose thoughtful feedback was critical to this paper's development. We are also grateful to the Stanford Criminal Justice Center, particularly Debbie Mukamal, Bob Weisberg, and the late Joan Petersilia; participants of the 2021 Virtual Workshop on Contemporary Parole Research, particularly Dirk van Zyl Smit and Hadar Aviram; California Board of Parole Hearings Executive Officer Jennifer Shaffer; participants of workshops and presentations at Cornell Law School, the George Washington University Law School, UC Hastings College of the Law, University of Georgia School of Law, and the University of Texas, Austin Department of Sociology; and the anonymous reviewers of Law & Society Review.
