NEW YORK Gov. Andrew Cuomo – apologies …
It seems everyone is apologizing these days, Cuomo, Trudeau, Ford, The Queen, save Trump. Are these true apologies or simply passing responsibility to the victim, saying; “sorry if you took it the wrong way?” What is the significance of ‘sorry’?
Generally, we are a forgiving people. The apology indicates remorse. In Law, it’s key to leniency. We frown on revenge. Forgiveness and rehabilitation are an essential to our culture and ‘Canadianism.’ It is part of our genetic makeup – empathy (see You Tube, CBS 60 minutes, Baby Morality). As Canadians we tend to focus on it. It requires ownership of one’s mistake and its damage.
Psychologically, Carl Smith, in a 2008 concluded that people erroneously believe revenge will make them feel better and help them gain closure, but actuality punishers ruminate on their deed and feel worse than those who cannot avenge the wrong. It costs money to go to jail.
It’s cheaper to rehabilitate. However, there are cases where absolute isolation is necessary.
The principles of Sentencing include: 1, gravity of the offence; 2, protection of the community by deterring further crimes by either offender or others; 3, rehabilitation, making the person better at sentence’s end than before; 4, character, the trial has limitations but in sentencing, past actions, records relate to rehabilitation; 5, reparation, restoring the victim’s losses; 6, proportionality of the penalty to similar cases and finally, 7, public respect for the administration of justice.
It does not mean reflecting public opinion — that can change quickly — rather, it looks to the opinions of reasonable and informed persons.
“Sorry” is a key ingredient to character, reparation and rehabilitations.
An early Plea of Guilt is significant. It doesn’t reduce the sentence from the appropriate range for that crime. It allows a Court to sentence in the lower part of the range. The benefit saves the victim from testifying. It saves society the cost of trials. About 90% of those charged, plead guilty. The public purse couldn’t afford trials for everyone.
It’s an incentive to plead. Importantly, if sincere, it should offer to repair any damage. It begins the accused’s rehabilitation, hopefully, returning him to society as a responsible taxpayer and reducing the risk of re-offending; thus, protecting society.
My experience was a man , 63-year- old, charged with Incest with his daughter 30 years ago. His daughter developed serious drug troubles related to this trauma. She had two sons in the care of Children’s Aid.
The normal sentence in these circumstances was two to five years in prison. A two-year term was important to him since he could seek a Conditional Sentence which uses ‘house arrest’ rather than jail — meaning a confinement to his home except for work. That level of leniency was uncommon for this case. It sounded self-serving.
The lawyer suggested that his client would plead guilty; accept full responsibility for his breach of trust and his daughter’s problems – no excuses!
The defendant conceded that, he could never make amends but if allowed ‘house arrest’ he could continue working and qualify for his pension. With those monies, he would establish a trust fund, managed by his lawyer, paying $10,000 a year to his daughter for the counselling she required. If she didn’t use it, the remaining funds would be given to her children. It was a precise plan that attempted to repair, some of the harm he caused.
Here, I had to weigh the seriousness of the crime and the potential to help the victim. What would you do? Find out next month…..
So, what are the ingredients of a genuine apology and remorse? Researchers suggest it requires pure ownership of the mistake without excuse. It is the mistake and the harm to the victim that is being compensated rather than an attempt to excuse the wrongdoer or make him look better.
It must express an empathy for the nature of the harm to the victim – a validation of the harm and removal of fault from the victim. It must present a convincing plan, to prevent repetition; ensure the victim’s or community’s future safety; rather, than, a mere promise to be good. Lastly, it needs an appreciation of the social debt to the victim or community and proposes an action to restore the damage done.
Apologies are never straight forward, but by expressing remorse, complete ownership of the mistake, and actively providing a solution, one might deter revenge thinking, encourage forgiveness and minimize any penalty.
In my opinion, sentencing is the most difficult task a Judge has. Next time I will provide several more examples and you can be the Judge!
