by Casey J. Bastian
Probation officials play a critical role in the criminal justice process. These officials create pre-­sentencing reports containing both legal and extralegal information about the offender. This information is used to fashion sentencing recommendations. One factor considered is remorse. If the offender shows remorse, more lenient sentencing alternatives may be recommended. But a psychiatric diagnosis may inhibit “normative or conventional remorse displays.” Do we punish someone more harshly because their psychiatric disorder makes their remorse less evident? One researcher is working to find out.
Historically, there has been little research considering the impact of defendants with one or more psychiatric diagnoses on remorse assessments and subsequent sentencing recommendations. There is very limited data as to whether a perceived absence of remorse is an indication of possible recidivism or, as important, rehabilitative potential. For those with a psychiatric diagnosis, alternatives to incarceration, frequently referred to as “sentencing diversions,” may not be recommended if their post-­offense conduct is viewed as incompatible with such programs. How significant of a problem is this? Probation officials with little to no specific training may misconstrue non-­normative demeanor as callousness or indifference. Grave legal consequences for those with psychiatric disorders can follow.
Study: Impact of Remorse on Sentencing Recommendation
Researcher Colleen M. Berryessa is an assistant professor at the Rutgers University School of Criminal Justice. Berryessa focuses on psychological and societal issues that particularly affect courts, sentencing, and punishments within the criminal justice system. In 2023, Berryessa published a groundbreaking study entitled: “Exploring the Impact of Remorse on Recommendations for Sentencing Diversion for Defendants with Psychiatric Diagnoses” (“Study”).
There are two essential inquiries within the Study. The first research question asks: When making presentence evaluations of a defendant’s remorse, do probation officials “consider and involve defendants’ psychiatric diagnoses?” And if so, how?
The second question asks: Do probation officials create pre-­sentencing reports using remorse to “support recommendations for the sentencing diversion of defendants with psychiatric diagnoses”? And if they do, in what ways?
The Study focused on responses from members of the American Probation and Parole Association (“APPA”). The APPA is the primary organization for probation officials with approximately 90,000 parole and probation officer (“PO”) members. In response to an invitation, 151 POs consented to be interviewed, sharing their perspectives and experiences. The demographics are interesting. Of the 151 POs: 101 were aged 31-­50; 91 had a bachelor’s degree; and 81 were female. Regarding race, 60 declined to identify followed by white (40), Black (24), Hispanic (21), and Asian (6). Nebraska (20), Texas (19), and California (18) were the states that contributed the most responses; only 28 states were represented (including Washington, D.C.).
These POs “were probed in five areas of question.” Similar questions about defendants convicted of violent crimes and those supervised or evaluated more generally were posed to each PO. The interviews lasted 30-­45 minutes. The answers to the five questions were extrapolated to satisfy the purposes of the two essential inquiries. These five questions were: (1) How do the POs assess remorse; (2) What factors or characteristics (i.e., personality, background, socio-­economic, etc.) do they feel are essential to remorse assessments; (3) What remorse assessment information is included in sentencing recommendations within presentence reports; (4) How are remorse assessments used in creating sentencing recommendations, including desired outcomes relative to defendants with varying characteristics (i.e., effect on sentencing, correctional placement, and sentencing diversion); and (5) Voluntary demographics.
Having established an expansive scope of inquiry, what answers would the research questions reveal? Berryessa identified “four axial coding categories” that emerged from the data. For analytical purposes, the four categories are: (1) Difficulties Showing and Reading Remorse; (2) Defendant’s Difficulties “Feeling” Remorse; (3) Stigmas Towards Psychiatric Diagnoses; and (4) Recommendations for Sentencing Diversion for Defendants with Psychiatric Diagnoses.
Displays of Remorse
As it pertains to impacts during the criminal justice process, displays of remorse are perceived as demonstrations of “acceptance of personal responsibility for an act of harm.” Remorse suggests to sentencing decisionmakers that the defendant is capable of redemption and rehabilitation, that the criminal behavior is inconsistent with the defendant’s “true character,” and that the defendant will likely be responsive to treatment. Notably, behaviors that fall within the term “remorse displays” are broader than just emotional acts.
Remorse can be displayed through verbal apologies, community service, and restitution, but it is most commonly by acts such as crying or other affective body language. Remorse is also a cultural mechanism. Inferences of the offender’s “character within contexts involving bad or immoral acts” are reached through perceived contrition or lack thereof. If there is no showing or appearance of remorse, that person may have his character questioned. The implication then becomes that the defendant is “risky” and “apt to reoffend,” i.e., one “more likely to benefit from harsher sentences.”
Yet for defendants with psychiatric diagnoses, being judged on expressions of remorse as accurate “gauges of character or future acts” can be “exceedingly complex.” In fact, there is almost no data that establishes a lack of remorse to be an accurate measure of future recidivism for any offender.
There is a broad spectrum of disorders that can result in a psychiatric diagnosis. A psychiatric diagnosis results from a mental disorder that can “affect or impact a person’s mood, behavior, and/or thoughts.” Such disorders can include “developmental, mood, anxiety, personality, and substance-­related” conditions. Some of these disorders were mentioned first by the POs during the interviews. The most prevalent psychiatric diagnoses discussed were “Autism, Schizophrenia, Attention Deficit Hyperactive Disorder (ADHD), Bipolar Depression, and Addiction.”
Even without extensive training to effectively assess remorse while also remaining cognizant of a defendant’s inherent emotional limitations, the POs seem to have a tacit understanding of these concerns. The Study indicates that “143 probation officers at least mentioned mental illness as a potential consideration in assessing the remorse of defendants they have supervised or evaluated.” This was often in relation to the recall of general experiences with offenders and their diagnosed disorders, not concerning the impact of specific diagnoses.
It is routine practice for POs to assess remorse during pre-­sentencing meetings. For this, POs “attempt to correctly read a defendant’s speech, related tone and cadence, non-­verbal demeanor, and other behaviors….” The “symptomatic presentation of a defendant’s psychiatric disorder” can negatively affect the remorse assessment. The PO can mitigate these effects if the psychiatric disorder is actually diagnosed, but there are certainly circumstances where the behavior is unattributed to a disorder because the disorder is undiagnosed.
A total of 117 POs described observations of difficulty in evaluating remorse demonstrations in “normative or conventional methods because of a disorder’s symptomatic presentation.” One PO expressed understanding that some defendants “may not know how” to express remorse; they “can’t show or display” remorse if they “have some pretty serious and persistent mental health” symptomatic presentations.
Presented symptoms were observed to possibly “blunt verbal and non-­verbal emotional expressions.” These blunted expressions can be misunderstood as “insensitive or cold-­hearted responses to their offending.” One PO referenced her interactions with a defendant with autism. Describing that offender as “definitely more frank” when discussing the offense conduct and that this “lack of [a] filter” may “potentially hurt them” as it comes off as “callous even when they are remorseful.”
Other POs described emotional displays that seem “exaggerated and do not appear real because of their mental illness.” Many POs described symptomatic presentation as an impediment to observing or assessing remorse. Others related that “mentally ill or cognitively impaired” defendants are unable to express remorse “in a way that [POs] can understand.” Some defendants “can become frustrated” when they are “not able to communicate the way other people can.” It was observed that both “blunted and exaggerated displays of remorse” impede accurate assessments.
Psychiatric Diagnoses and Remorse
The comorbidity of multiple psychiatric diagnoses creates its own exacerbated challenges. Coalescing symptoms impact “defendant-­officer interactions,” causing POs to “doubt their abilities to effectively assess” remorse in the presentence process. One PO described a defendant with autism, anxiety, depression, and substance-­use disorder, calling it a “challenging case.” The PO found the defendant to be truthful about his drug use, relaying that he was “self-­medicating” so that he “doesn’t feel all the negative things” from the other psychological disorders.
While obviously desiring to have the defendant “stop using drugs,” it made the PO feel “like a bad guy” and “not compassionate enough.” The PO concluded the study interview by saying, “There’s no precedent for this case. So when we’re thinking about mental health … there’s no protocol….” The PO recognized that the defendant exhibited remorse, but he also couldn’t readily control his behavior. If there is no protocol for such a situation, how then does the PO make the correct sentencing recommendation?
There were 111 POs who described the difficulty of a person with a psychiatric condition to “feel” another person’s remorse. Some symptoms can “mitigate the emotional cues and behaviors” used to even develop remorse. As one PO stated, “I believe their psychiatric illnesses would obscure some of their emotional capabilities for remorse, but I think they would still be capable of remorse.” According to the Study, most POs hold similar views. A psychiatric diagnosis doesn’t necessarily eliminate a capacity for remorse, but conditions can act as a “barrier,” preventing a defendant to “fully, emotionally engage” with remorse. This can limit the appearance of remorse because it is “filtered through so many other challenges” experienced daily.
The Study questions revealed that POs focus on two primary ways a defendant’s “emotional depth” is affected by a psychiatric diagnosis. First, certain symptoms can “hinder empathy, including the ability to read others’ emotional signals.” These forms of emotional intelligence are “crucial in developing remorse.” As one PO succinctly observed, “If they can’t read the emotional cues properly, they’re not going to fully understand how their crimes affected victims.” This may cause a defendant to appear remorseless, but doesn’t that also lessen their culpability? You wouldn’t know your conduct is wrong. This apparent paradox was also discussed by the POs.
POs have reported the effect of psychotropic medication in regards to hindering the “emotional depth of defendants when developing remorse.” These medications also render full understanding of the consequences resulting from their conduct unlikely. A PO observed that when a defendant is taking a psychotropic drug like Xanax, even a deceased victim may not elicit a reaction—normal or otherwise. As the PO said, “You would expect some sort of emotional reaction from someone. But if they’re medicated, they may not feel it like you or I, and so that may or may not be the case.”
As with the conclusions reached above, POs note that psychiatric diagnoses can hinder recognition by the defendant of their “bad actions or the criminal offense itself.” Symptoms can “muddy the lines” of what is perceived by the defendant to be right or wrong. “You’ve got to know what you’re doing, you got to know right from wrong. And if you can’t do that because of some form of mental illness, then you can’t really be remorseful,” believes one PO. If a defendant has “problems understanding the weight of what they have done,” or even “how or why” they are in the criminal justice process in the first place, there may never be a feeling of remorse adequately expressed.
If a PO believes that an inability to demonstrate remorse means a defendant is undeserving of leniency, or that rehabilitative efforts would be futile, how much greater is such a belief if it is compounded by stigmas and biases? The Study revealed that 71 POs made “at least some type of supposition” about defendants with a psychiatric diagnosis. These acknowledged suppositions concerned the “symptoms, qualities, or characteristics” of the defendants and how those perceived traits can negatively impact the perception of their remorse displays. Research uncovered that the suppositions were manifested through “three common forms of stigmatization.” This increased the likelihood of a PO “being critical” of demonstrations of remorse.
Effects of Stigmatization
When a particular group of persons, like those with a psychiatric condition, is stigmatized, it creates a belief system wherein (as relevant here) all defendants are “expected to be a certain way, show specific behaviors, or be deficient or dysfunctional in the same ways.” Stigmatization facilitates these beliefs being applied to most or all members of the particular group, i.e., defendants with psychiatric diagnoses. The stigmas discussed in the Study convey that some of the suppositions exhibited by the POs are “attitudes or assumptions about all or most defendants with psychiatric diagnoses, rather than specific defendants.”
One identified stigma about the defendants was that their condition makes them “unpredictable or impulsive.” One PO intimated that if a defendant “has mental issues, they are more volatile when we are dealing with them” during presentence interviews.
A second stigma is that symptoms of these conditions are “unlikely to abate, change, and may continue to cause future issues,” e.g., recidivist behavior. This supposition “appeared to bear on” a PO’s belief that appropriate remorse displays can predict “future prosocial behavior.” As one PO declared, “They just can’t stop that type of stuff.” The perceived inability to accept responsibility, due to a psychiatric condition or otherwise, suggests a “higher likelihood of recidivism” to some POs. A second PO admitted that he believed “those with mental illness keep offending because they can’t stop, symptoms don’t stop.”
A third stigma was that a defendant’s psychiatric disorder will make them “incapable of many normal behaviors” due to their condition, and this implication encompasses genuine remorse displays. One PO even suggested that defendants may blame their conditions for their criminal behavior and then “malinger” remorse. The PO might do well to remember that reasons are not excuses, and if someone is unwell, it may indeed create behavior society deems criminal.
For example, if a person with autism continues to “steal” because he does not understand the concept of payment, or if a schizophrenic person has violent outbursts that endanger people due to the “voices in their head,” these are potentially “criminal acts.” And each person could “blame” their condition. Would they be wrong for that? And, if each of these hypothetical persons realized later that what they did was “wrong” and wanted to be remorseful as may be expected of them (even if they don’t truly “feel” the remorse), is that “malingering?”
A few POs addressed concerns that “malingering could affect future outcomes” if the remorse is not genuine, but then the disingenuous remorse is still “positively considered in their sentencing processes.” One PO claimed that a defendant “may believe cognitively that they are remorseful” but are actually “incapable of it and when I look into their eyes, I don’t see remorse.” Such a perspective would make it unlikely a defendant with a psychiatric diagnosis would ever get a supportive sentencing diversion recommendation.
There was a general consensus among the POs that they “think about sentencing of defendants with psychiatric disorders quite differently” from other defendants. Further, this “certainly impacts” the POs considerations and recommendations in presentence reports.
Defendants with psychiatric conditions have historically “faced great difficulties in legal processes.” Stimulation, anxiety, and stress can “negatively exacerbate their symptoms” and often increase antisocial behaviors. It is well-­documented that one’s psychiatric conditions can cause behavior that results in contact with the criminal justice system. Issues such as substance abuse, homelessness, or quality of life crimes often stem from their disorder’s symptoms. Traditional criminal justice processes are ill-­equipped to address these situations.
Sentencing Diversion
Defendants with psychiatric disorders are better served by sentencing options that aren’t limited to periods of incarceration. And evidence suggests that perceived expressions of genuine remorse are considered by all decision-­makers when anticipating a potential sentence, “particularly concerning the availability or potential use of sentencing alternatives or diversion.” This is true whether the defendant has a psychiatric condition or is a “cookie-­cutter” offender.
Sentencing diversion is appropriate when the “extent of a defendant’s culpability is unclear, treatment or intervention may seem more appropriate, and sustaining collaborations across multiple systems of care” is more likely to reduce recidivism and future criminal justice system interventions. While diversion can be implemented at any stage of the process, when implemented during post-­conviction and sentencing, it represents “a less traditional means of ensuring responsibility by enabling rehabilitation rather than retribution.”
Multiple POs iterated a desire to “provide the court a glimpse of a defendant’s psychiatric diagnosis” in their pre-­sentencing reports. The reports seek to describe if and how the psychiatric diagnosis affected remorse displays presented by the defendant. The reports also provide descriptions as to whether the defendant can “fully understand the weight or wrongfulness” of the offense conduct, “verbally or affectively has shown remorse,” or that “remorse has or could be shown over time.”
The POs clarified that because “it’s going to be pretty hard” for the court to understand that “mentally ill people have a different view of what may have occurred,” it is important for their reports to explain that to the court during sentencing. Many of the POs “openly discussed” feeling “limited in their own experience.” One PO explained this limitation by saying, “We’re not clinicians.” This can make it common to “feel uncomfortable expressing how” a defendant’s condition can affect their “ability to emotionally develop remorse or verbally or non-­verbally express it in ways commonly recognized by the court.”
Many POs stated it is better to “rely on professionals that have training and experience” when making remorse assessments. Other POs acknowledged that they “sometimes have access” to counselors or therapists. These professionals may work in the PO’s office or through court system-­related services. Without these professionals, some POs expressed fear that either they or their peers could “make mistakes or rely on inaccurate information” or suggest a defendant is “full of baloney” when evaluating psychiatric diagnoses and their potential impact on remorse displays. Turning to mental health professionals is the best practice. Multiple POs suggested that presentence reports pertaining to those defendants with a psychiatric diagnosis should rely on or stem from a professional opinion.
These professional opinions are ultimately used to “craft reports that commonly support” sentencing diversion recommendations for such defendants. Juxtaposing reports created for a neurotypical defendant, POs were asked if a report for defendants with a psychiatric diagnosis was looked at or considered differently. Most POs “expressed overwhelming support for seeking out and providing recommendations for available sentencing options that could be good alternatives to incarceration or even probation.”
One PO stated that it “wouldn’t be professional or appropriate” for a remorse assessment derived from observations of a defendant with a psychiatric condition who is unable to project normative remorse displays to be “used as a foundation to recommend a period of incarceration.” As to his caseload, such a defendant “would be diverted for services.” The two primary diversionary options available for many offenders are “outpatient mental health and substance abuse programs.”
Another PO referred to a multi-­faceted approach for these defendants, and it does necessarily involve the implementation of treatment programs over incarceration. That PO insisted that the “counseling piece, the medical services, and the pharmaceutical services” must be “in play for sentencing in contexts involving mental health.”
There was little mention of professional training from those POs interviewed. But that same PO did mention that they’d “gone to a couple of conferences” where speakers discussed the importance of defendant’s taking medications and avoiding illicit substances. These are two primary means for improving symptomatic presentations. The offender must recognize his or her value as a human being. This is difficult in the depths of a psychiatric episode.
As the PO noted, if the defendant doesn’t feel self-­worth, they probably can’t feel remorse, and “incarceration isn’t going to help.” Under these circumstances, traditional punishments will not provide an “appropriate goal or framework” for responding to their criminal behavior. The POs as a whole seem to be aware of this. They are also aware of concerns that incarceration as the punishment will produce “negative psychological and emotional impacts” for defendants with psychological diagnoses.
The Study indicates POs are driven by these issues to seek out “potential options for sentencing diversion” and relay these recommendations to the court via the presentence report. One PO discussed a defendant with “extreme ADHD.” The PO described the defendant as being young and that he “truly didn’t remember and he truly did not think there was anything wrong….” And he didn’t show remorse at all because of these circumstances. The PO said he made sure the court understood and helped the court impose an appropriate sentence. “He’s young, so sentencing should be about trying to help guide him to make sure he understands his actions were not right,” said the PO.
What is apparent is that defendants with psychiatric diagnoses are faced with a “host of tremendous challenges within the entire trajectory of their contact with the criminal justice system.” And inaccurate or skewed remorse assessments can “compound and exacerbate their already complex and challenging experiences,” especially during the sentencing phase. There is no correct way to signal remorse by any offender. It is vital to be cognizant of the fact that defendants with “disparate mental health backgrounds” may express genuine remorse in “unique ways.” Awareness of this may facilitate reducing “misunderstandings and stereotypes” arising from PO-­defendant interactions.
The sample size was “large and diverse” for quantitative research methods like that used in the Study. There are limitations in the research, as it consists of only 151 out of over 90,000 APPA members nationwide, because “these data cannot be generalized” to other POs or POs in specific states.
Overall, the Study suggests that the interviewed POs “appeared to be cognizant” of how psychiatric diagnoses, and even related medications, influence remorse displays. The POs do appear to “consider and involve defendant’s psychiatric diagnoses” in fashioning presentence reports. Many work to involve mental health professionals, using these expert opinions to inform the court when sentencing diversion is appropriate. The appearance, or lack thereof, of normative remorse displays by these defendants does not seem to translate into sentencing recommendations fashioned with the intention of basing punishments on those observations.
Conclusion
It is unsurprising that judges and other court officials misread the conduct or demeanor of these defendants. Additional training for POs should not just involve the interpretation of remorse displays, however manifested, but on effective presentence report creation. Well-­written reports may be “exceedingly helpful,” perhaps imperative, in “explaining or contextualizing odd or non-­neurotypical remorse-­related behaviors observed during the legal process,” according to the Study.
The gravity of these issues is treated with empathy and poignancy by one PO. Her interview is laden with insight. She expressed concern that quite often a person with a psychiatric diagnosis is “criminalized for their actions” and then “institutionalized into the justice system.” These offenders cannot “feel” remorse because they don’t possess “enough mental understanding.” They’re not like you or me she argues, and that means “they shouldn’t be punished like you or me.” She added, “Therefore, we are adding fuel to the fire in a sense if we incarcerate them.” This PO’s understanding of these issues should serve as the foundational tenets of future training that addresses how we as a society sentence offenders with psychiatric diagnoses.  

Source: Berryessa, Colleen, Exploring the Impact of Remorse on Recommendations for Sentencing Diversion for Defendants With Psychiatric Diagnoses (2023). Berryessa, C. M. (2023). Exploring the Impact of Remorse on Recommendations for Sentencing Diversion for Defendants With Psychiatric Diagnoses. Journal of Contemporary Criminal Justice. https://doi.org/10.1177/10439862231189416, Available at SSRN: https://ssrn.com/abstract=4518502 or http://dx.doi.org/10.2139/ssrn.4518502

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