The Implications Of Remorse In The Sentencing Stage Of A Death Penalty Case

Remorse, which is considered as a retractive emotion; an emotion which leads to withdrawal from one’s own actions, is not devoid of other emotions such as shame, guilt and contrition. ^[4] This essentially gives us the idea that the expression of remorse can be either: 1. Self-centered which arises out of the consequences of the crime committed or 2. Moral basis or victim-centered which is embedded in sympathy for the victim and the inability to meet the moral code of conduct by the accused.^[5] If remorse were to be made as a mitigating or aggravating factor, the inference of remorse should ideally be based on the latter reason. This is to incline it with the principles of punishment i.e., deterrence, rehabilitation and restitution. Moreover, from the studies conducted, it has been concluded that judges take remorse into consideration for two primary reasons which are seriousness of the crime and ability of the accused to reform.^[6] Considering all these factors, it can be said that it is important to consider remorse in isolation from other emotions which are a part of it. This becomes a difficult task and leads us to the first issue that is lack of any consensus regarding the definition of “remorse”.

This is considered an obstacle to making remorse a part of aggravating or mitigating factors as a lack of definition leaves the judges with no standard to evaluate remorse in a given case. In absence of a standard to evaluate remorse, demeanor evidence plays a vital role. From an empirical study conducted in the US, the judges claimed that they know about the presence of remorse when they “see” it. ^[7] Such an inference is usually drawn seeing the facial expressions of the accused, the tone in which he speaks in the court, his apparel etc. This is problematic as it assumes that every accused is capable of expressing remorse, that is, every offender has the “capacity” to show remorse. This assumption ignores people suffering from any sort of mental disability, insanity or the accused being doli incapax, out of its realm. Mental disability can be caused due to prolonged usage of drugs or other medications which makes the demeanor of the accused unreliable and there could be scenarios where the judge is unaware about such circumstances of the accused. The importance of capability to show remorse can also be seen in the fact scenario of Riggins v. Nevada, where the court ordered a retrial of the accused after they got to know that the accused was highly medicated to show any remorse during the trial. ^[8] In the Indian context, section 280 of the Code of Criminal Procedure, 1973 provides for demeanor evidence.^[9] It provides the judge with wide-discretion to note the demeanor during the course of thr trial and it can be used to determine the credibility of the person making a statement in the court. To bind this with the argument, it is possible that the judge, without any standard to infer remorse from the demeanor of the accused, can conclude his/her statements to be unreliable, making the entire process unfair and unjust for the accused and affecting his right to a fair-trial.

Along with this, such an inference of remorse ignores judge-based factors as well. These factors include judges’ bias towards a particular sect of people, their inclination towards sentencing an accused to death, the manner in which the case is presented to them, their ability to understand the demeanor of a particular class of people who they are more familiar with etc. ^[10] This leaves the interpretation of remorse in a gray area and makes it more crime-centric approach, ignoring the accused related reasons which are necessary to be considered at the sentencing stage.^[11]

It has to be duly noted here that various studies conducted on the relevancy of remorse as an aggravating or mitigating factor mention that there is no legally accepted empirical evidence to show that lack or presence of remorse shows the inability or ability to reform. ^[12] It is a wide-drawn assumption which punishes the accused over and above for his moral character as interpreted by the judges during the course of the trial in addition to the bad character for which he/she is already being punished according to the law of the land. ^[13]

In the Indian context, the court in Bachan Singh v. State of Punjab, while listing down guidelines for mitigating factors in para 221 of the judgement provides for an accused-centric approach which involves acknowledgement and recognition of the social setting, level of sensitization, economic background, mental or emotional disturbance and age of the accused. ^[14] It provides that the State shall prove that the accused is incapable of reformation and rehabilitation ‘with evidence’. If remorse were to be interpretated in accordance to these guidelines and the above-mentioned obstacles to considering remorse as a factor, the resultant effect would be evidence for remorse being provided by the State which are marinated with bias against the accused, his/her previous criminal records, ignorance of the capability of the accused to express etc. Thus, it can be unfairly prejudicial to the accused.

To reiterate here, lack of remorse is an assumption of lack of reformative and rehabilitative characteristics of an accused. The discretionary power of the judges to be flexible in their approach for awarding death sentence has been mentioned in sections 235 (2) r/w section 354 (3) of the Code of Criminal Procedure.^[15] It has also been held in the case of Santosh Bariyar v. State of Maharashtra, which cites Bachan Singh’s case, that due importance has to be given to the circumstances under which the accused has committed the crime along with the background of the accused. ^[16] It has also been duly mentioned that ‘clear evidence’ shall be given regarding the lack of any reformative and rehabilitative ability in the accused to meet the "alternative option is unquestionably foreclosed" standard and punish him with death. ^[17] Further, in the case of Md. Mannan v. State of Bihar it has been noted that the court shall give reasons not merely for convicting an accused with a crime but also the reasons for the court believing that the accused is not fit for reformation and rehabilitation.^[18] As mentioned, providing clear evidence for remorse is not feasible and difficult considering its highly subjective and diversely interpretative feature.

Making remorse a legally valid factor at the sentencing stage infringes the fundamental rights of the accused under Article 20 (3), which is the right against self-incrimination, and Article 21, right to life. ^[19] In Selvi v. State of Karnataka, the court reiterated the direct link between these two fundamental rights and held that compelling an accused to testify against himself will violate the presumption of innocence principle of a fair trial and unduly shift the burden of proof on the accused. ^[20] Considering this interpretation, when expression of remorse becomes one of the factors affecting the sentence given to the accused, it is compelling him to accept guilt by the way of remorse to make it a mitigating factor, absence of which shall be considered an aggravating factor. This shall become all the more problematic when remorse is expected to be shown in a verbal format. This will lead to infringing the fundamental right to remain silent of the accused under Article 21 of the Constitution as he shall be compelled to speak or else suffer from staying silent as it would be interpreted as lack of remorse.

Here, it is relevant to mention that this right can be waived off if there is no presence of ‘compulsion’ or ‘threat’ i.e., ‘testify’ but not ‘compelled to testify’. The safeguard provided for such waiver is that the accused must be aware of his/her right to remain silent; there must be a substantive waiver of the right. ^[21] Further, if there ‘seems’ or ‘appears’ to be any physical or mental torture inflicted on the accused, the waiver of such right should not be accepted. Applying these principles to the present argument, when remorse is accepted as a legally valid factor at the sentencing stage, it compels the accused to express remorse in order to reduce his sentence. It puts him/her under the mental compulsion to accept guilt by the way of expressing remorse. As already mentioned, this is a shaky ground as there might be convicts who are incapable of expressing remorse either due to mental or physical challenges or either because of lack of sensitization and their socio-economic background because of which they are unable to understand the nature of the crime committed. This was seen in the case of Surender Koli v. State of U.P. where in his confession, the accused revealed that he invoked sexual desires after being accustomed to noticing his employer calling various women to house on a regular basis and such desires did not exist when he used to live in his village.^[22]

Moreover, from the studies conducted, cases which involve highly-severe crime where death penalty is the maximum punishment that can be given, judges have not been influenced by the presence of remorse. ^[23] This makes the validity of remorse even more uncertain as if it does not make a difference, it essentially leads to acceptance of guilt without any positive effect to inclination towards awarding less severe punishment.

To conclude, making remorse as a legally valid factor during sentencing unfairly prejudices against the accused due to the high-levels of uncertainty involved in it. It suffers from; 1. Definitional issues; Lack of consensus as what constitutes remorse, 2. Lack of any standard to evaluate remorse, 3. Ignorance in determining the capability of the accused to express remorse, 4. Ignorance of judge-related factors which involves his/her preconceived notions about a crime, his/her prejudices against a particular sect of people, the ability to understand the demeanor of a particular sect of people better, influences from media trial etc, 5. The lack of substantive evidence which shows expressing remorse is indicative of reformative and rehabilitative characteristics of an accused and 6. Infringement of fundamental rights of the accused under Article 20 (3) and Article 21 of the Indian Constitution along with the right to fair trial which includes presumption of innocence until proven guilty and shifting of burden of proof on the accused. With these deficiencies and lack of any feasible solution to them as of now, remorse should not be considered as factor which can affect every case in a uniform fashion even if in future law provides a provision for it. This is because of the subjective nature of remorse and the factors taken into consideration while determining remorse (crime, judge and accused related factors).

Views are personal.