Contrition in the courtroom: Do apologies affect adjudication?

Cornell Law Review

Volumn 98, Issue 5, 2013, Pages 1189-1243

  Rachlinski, Jeffrey J ^a   Guthrie, Chris ^b   Wistrich, Andrew J ^c  

^a MIT Sloan School of Management   (United States)

^b VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

^c NORTHWESTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 84884510189     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (151)

1. See ARTHUR W. CAMPBELL, LAW OF SENTENCING § 13:21, at 553 (3d ed. 2004) ("[F]our words said sincerely can have a powerful impact: 'Your Honor, I'm sorry.'");
2. Aaron Lazare, ON APOLOGY 1 (2004) ("Apologies have the power to heal humiliations and grudges, remove the desire for vengeance, and generate forgiveness on the part of the offended parties.");
3. Mark Bennett & Deborah Earwaker, Victims' Responses to Apologies: The Effects of Offender Responsibility and Offense Severity, 134 J. SOC. PSYCHOL. 457, 462 (1994); (Pubitemid 24825547)
4. Margareth Etienne & Jennifer K. Robbennolt, Apologies and Plea Bargaining, 91 MARQ. L. REV. 295, 302 (2007) ("Judges tend to use their discretion to impose lighter sentences on remorseful defendants.");
5. Gregg J. Gold & Bernard Weiner, Remorse, Confession, Group Identity, and Expectancies About Repeating a Transgression, 22 BASIC & APPLIED SOC. PSYCHOL. 291, 291-92 (2000);
6. Ken-ichi Ohbuchi, Masuyo Kameda & Nariyuki Agarie, Apology as Aggression Control: Its Role in Mediating Appraisal of and Response to Harm, 56 J. PERSONALITY & SOC. PSYCHOL. 219, 219-20 (1989);
7. Paul H. Robinson, Sean E. Jackowitz & Daniel M. Bartels, Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment, 65 VAND. L. REV. 737, 746 (2012) ("A simple expression of apology from the offender to the victim of a crime is often thought to be worthy of consideration as a mitigating factor.");
8. Bernard Weiner, Sandra Graham, Orli Peter & Mary Zmuidinas, Public Confession and Forgiveness, 59 J. PERSONALITY 281, 291 (1991).
9. See State v. Neidlinger, 498 So. 2d 189, 192 (La. Ct. App. 1986) (noting that the prosecutor argued to the jury in rebuttal that "[t]hey don't even get up here and say they're sorry they did this" (emphasis omitted));
10. ALFRED L. BROPHY, REPARATIONS: PRO & CON 11 (2006) ("[A] sincere apology may be more valuable and meaningful to some victims than money.");
11. Mandeep K. Dhami, Offer and Acceptance of Apology in Victim-Offender Mediation, 20 CRITICAL CRIMINOLOGY 45, 54 (2012) (reporting a study of victim-offender mediations in the United Kingdom in which 91.67% of the victims accepted apologies when offered);
12. Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Restorative Justice, 2003 UTAH L. REV. 15, 22-23 (observing that in the context of "interactions between victims and their offenders when they are unmediated by formal criminal justice processing. the offer and acceptance of a sincere apology seems the most natural thing imaginable and almost always vital to the successful resolution of the offence and the restoration of the participants").
13. See Riggins v. Nevada, 504 U. S. 127, 144 (1992) (Kennedy, J., concurring) ("In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies.");
14. United States v. Landeros-Lopez, 615 F.3d 1260, 1267 n. 7 (10th Cir. 2010) ("We note that there are additional benefits to defendant allocution. It gives the defendant an opportunity to apologize and express remorse.");
15. United States v. Clark, 918 F.2d 843, 848 (9th Cir. 1990) (affirming imposition of a public apology as a condition of supervised release because "[t]he record supports the conclusion that the judge imposed the requirement of a public apology for rehabilitation")
16. overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir. 1998) (en banc).
17. See Coleman v. Moore, 87 S. W.2d 300, 302 (Tex. Civ. App. 1935) ("The Court (interrupting [an attorney]):. Now I want an apology from each of you and I want it now.");
18. see also Brent T. White, Say You're Sorry: Court-Ordered Apologies as a Civil Rights Remedy, 91 CORNELL L. REV. 1261, 1268-69 (2006) ("Reports abound in the media of judges requiring defendants to apologize as a condition of receiving probation rather than incarceration. Examples range from judges ordering drunk drivers to take out newspaper ads with an apology to the community, to requiring batterers to apologize to their spouses before women's groups, to ordering corporate polluters to write letters of apology for their environmental crimes and pay for newspaper advertisements detailing their conduct." (footnotes omitted)).
19. Groppi v. Leslie, 404 U. S. 496, 506 n. 11 (1972);
20. see also In re Coe, 903 S. W.2d 916, 918-20 (Mo. 1995) (after two justices indicated that they would change their votes if a criminal defense lawyer apologized for her professional misconduct, she complied and her punishment was reduced to a public reprimand rather than a suspension).
21. But see State v. Hudson, No. 10 MA 157, 2011 WL 6231215, at *2-3 (Ohio Ct. App. Dec. 9, 2011) (finding attorney in contempt despite apology).
22. See W. Jonathan Cardi, Damages as Reconciliation, 42 LOY. L. A. L. REV. 5, 14 (2008) ("Apology also serves the wrongdoer by helping to assuage guilt and restore self-image, and by opening the door to social reacceptance.");
23. See Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 YALE L. J. 85, 138 (2004) ("When offenders accept responsibility, express remorse, and apologize, victims can more easily heal, reconcile, and forgive.");
24. Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 HARV. NEGOT. L. REV. 349, 350 (2008) [hereinafter Robbennolt, Attorneys] ("Many have begun to argue that advising legal clients to apologize may reap important benefits - including increasing the possibility of reaching an out-of-court settlement.");
25. Marshall H. Tanick & Teresa J. Ayling, Alternative Dispute Resolution by Apology: Settlement by Saying "I'm Sorry", HENNEPIN LAWYER, July-Aug. 1996, at 22, 25 ("Lawyers, litigants, and prospective litigants all should be aware, however, of the utility of contrition. Apologies should be part of the arsenal of resources brought to bear in addressing and resolving legal disputes.").
26. See Erin Ann O'Hara & Douglas Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121, 1122 (2002) ("An apology can prevent litigation.");
27. Kathleen M. Mazor et al., Health Plan Members' Views About Disclosure of Medical Errors, 140 ANNALS INTERNAL MED. 409, 413 (2004) (reporting that patients who received apologies for medical errors were less likely to seek legal advice);
28. John Soloski, The Study and the Libel Plaintiff: Who Sues for Libel?, 71 IOWA L. REV. 217, 220 (1985) (reporting that many libel plaintiffs sought "retraction, correction, or apology" before filing suit);
29. Charles Vincent, Magi Young & Angela Phillips, Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 LANCET 1609, 1612 (1994) (reporting that approximately 20% of medical malpractice claimants believe that they would not have filed suit had the medical provider offered an explanation and apologized).
30. See Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009, 1010 (1999) ("If a lawyer contemplates an apology, it may well be with a skeptical eye: Don't risk apology, it will just create liability.");
31. See United States v. Fonner, 920 F.2d 1330, 1335 (7th Cir. 1990) (describing a defendant's "last-minute apology" as a "deceitful little show");
32. Bryan H. Ward, Sentencing Without Remorse, 38 LOY. U. CHI. L. J. 131, 131 (2006) ("Prosecutors may confront a savvy criminal defendant who is not remorseful, but who claims remorse in order to obtain a reduced sentence and is proficient in saying the right things before a susceptible judge.").
33. See Albert Pepitone, Social Psychological Perspectives on Crime and Punishment, 31 J. SOC. ISSUES 197, 211 (1975) ("[W]hen a remorseful offender. is judged to be faking, he is likely to be punished more severely than if he were unrepentant or at least silent.");
34. See Oberwise v. Sec'y, Dep't of Corr., No. 8:11-CV-1124-T-30TGW, 2012 WL 527173, at *5 (M. D. Fla. Feb. 17, 2012).
35. See D. Brock Hornby, Speaking in Sentences, 14 GREEN BAG 2D 147, 156 (2011) ("[D]efendants often apologize to their victims, present or not, sometimes turning to address them directly. Defendants apologize to parents, children, spouse, or siblings, seeking forgiveness. Occasionally, defendants apologize to the prosecutor, the community, or the United States for their destructive behavior.").
36. See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 4 n. 13 (2007) ("In addition to presiding over jury trials, trial judges facilitate settlements, resolve cases on motion, and decide more cases in bench trials than there are jury trials." (internal citations omitted));
37. Brian J. Ostrom, Shauna M. Strickland & Paula L. Hannaford-Agor, Examining Trial Trends in State Courts: 1976-2002, 1 J. EMPIRICAL LEGAL STUD. 755, 773-74 (2004).
38. See Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L. J. 951, 953 (2003) (stating that once a defendant "is tried and convicted of a noncapital crime, in all federal courts, and in almost all state courts, his jury will have no role in his sentencing").
39. See ROBERT FULGHUM, ALL I REALLY NEED TO KNOW I LEARNED IN KINDERGARTEN 2 (2003) ("Say you're sorry when you hurt somebody.");
40. Lee Taft, Apology Subverted: The Commodification of Apology, 109 YALE L. J. 1135, 1135 (2000) (describing the level of apologizing as an "apology mania"
41. (quoting Barbara Amiel, Saying Sorry Is Fine, but Only to a Point, MACLEAN'S, May 25, 1998, at 11);
42. Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Culture in Japan and the United States, 20 LAW & SOC'Y REV. 461, 461 (1986) ("People constantly utter words of apology in both Japan and the United States, most often to seek indulgence for a minor social breach, to ask for permission to violate conventional rules, or to express sympathetic regret for a mishap. ").
43. See Erin O'Hara O'Connor, Organizational Apologies: BP as a Case Study, 64 VAND. L. REV. 1959, 1977 (2011) ("There is ample evidence that organizations can use apologies to produce some of the same benefits that individual transgressors produce when they apologize.");
44. Ken Ritter, O. J. Simpson Sentenced to at Least 15 Years, ASSOCIATED PRESS, Dec. 5, 2008 (quoting Simpson at his sentencing hearing on armed robbery charges as stating, "I didn't want to steal anything from anyone. I'm sorry, sorry." (omission in original));
45. Paul Slansky, Arleen Sorkin & Helicopter, Mistakes Were Made, N. Y. TIMES, May 28, 2006, at C11 (collecting various apologies).
46. See Gini Kopecky, How to Say You're Sorry When You Don't Really Mean It and He Started It Anyway, REDBOOK, Nov. 1991, at 52, 58.
47. See Connie Cass, It's Not Easy for Presidents to Say 'I'm Sorry', ASSOCIATED PRESS, Feb. 25, 2012 (discussing presidential apologies).
48. See Chris Johnston, Saying Sorry: Hollingsworth Comforts Findlay After Olympic Disappointment, HUFFINGTON POST CAN. (Aug. 5, 2012, 4:00 AM), http://www.huffingtonpost.ca/2012/08/05/saying-sorry-hollingsworth-comforts- findlay-n-1743183.html (discussing some recent examples).
49. Seiji Takaku, The Effects of Apology and Perspective Taking on Interpersonal Forgiveness: A Dissonance-Attribution Model of Interpersonal Forgiveness, 141 J. SOC. PSYCHOL. 494, 495 (2001) (stating that after an apology, "the offense and the intention that produced it are less likely to be perceived as corresponding to some underlying trait of the offender").
50. See Jeffrie G. Murphy, Repentance, Punishment, and Mercy, in REPENTANCE: A COMPARATIVE PERSPECTIVE 143, 157 (Amitai Etzioni & David E. Carney eds., 1997) ("The repentant person has a better character than the unrepentant person.");
51. Steven J. Scher & John M. Darley, How Effective Are the Things People Say to Apologize? Effects of the Realization of the Apology Speech Act, 26 J. PSYCHOLINGUISTIC RES. 127, 137-38 (1997) (reporting results of a study showing that "[w]hen expression of speaker responsibility, offer of repair, and promise of forbearance were all absent, subjects indicated that the apology was least appropriate. and that they blamed the speaker more and wanted to sanction him more").
52. Jonathan R. Cohen, The Culture of Legal Denial, 84 NEB. L. REV. 247, 253-54 (2005);
53. (quoting BARRY R. SCHLENKER, IMPRESSION MANAGEMENT: THE SELF-CONCEPT, SOCIAL IDENTITY, AND INTERPERSONAL RELATIONS 154 (1980))).
54. See Benjamin Ho, Apologies as Signals: With Evidence from a Trust Game, 58 MGMT. SCI. 141, 143-47 (2012) (describing an effective apology as a communication that sends a costly signal). 40 For example, in describing his role in the Holocaust, Albert Speer reportedly stated, "[t]here is no apology or excuse I can ever make. The blood is on my hands. I have not tried to wash it off-only to see it"
55. Tim Page, 'World Walk', Albert Speer at Spandau, ND. Y. TIMES, Aug. 5, 1986, at C14.
56. See Dale T. Miller, Disrespect and the Experience of Injustice, 52 ANN. REV. PSYCHOL. 527, 538 (2001) ("When victims perceive apologies to be insincere and designed simply to 'cool them out', they often react with more rather than less indignation. ");
57. Jennifer K. Robbennolt, Apologies and Settlement, 45 CT. REV. 90, 93 (2008) ("[I]nsincere apologies may actually cause people to react negatively.");
58. Daniel P. Skarlicki, Robert Folger & Julie Gee, When Social Accounts Backfire: The Exacerbating Effects of a Polite Message or an Apology on Reactions to an Unfair Outcome, 34 J. APPLIED SOC. PSYCHOL. 322, 336 (2004) ("Manipulative intention mediated the effect of the apology and the polite message on both fairness perceptions and the extent to which participants reacted in a spiteful way toward the alleged offerer."). 43 See id. at 8 ("When an acquaintance says to you, 'I apologize for whatever I may have done', he or she has failed to apologize adequately, because he or she has not acknowledged the offense and may not even believe an offense was committed."). 44 See id. at 8-9;
59. Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 MICH. L. REV. 460, 498 (2003) [hereinafter Robbennolt, Legal Settlement] (reporting research indicating that "an offender who failed to take responsibility in the apology (i.e., offered a partial apology) in the face of strong evidence of responsibility was seen as less likely to be careful in the future than those offering either a full or no apology").
60. See ERVING GOFFMAN, RELATIONS IN PUBLIC: MICROSTUDIES OF THE PUBLIC ORDER 113 (1971) (stating that a full apology includes "expression of embarrassment and chagrin; clarification that one knows what conduct had been expected and sympathizes with the application of negative sanction; verbal rejection, repudiation, and disavowal of the wrong way of behaving along with vilification of the self that so behaved; espousal of the right way and an avowal henceforth to pursue that course; performance of penance and the volunteering of restitution"); of forbearance, sincerity, and honesty"; "explanations"; and "reparations");
61. NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 3 (1991) (identifying three elements of an apology: "acknowledgement of the legitimacy of the violated rule, admission of fault and responsibility for its violation, and the expression of genuine regret and remorse for the harm done");
62. See MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 115 (1998) ("Full acceptance of responsibility by the wrongdoer is the hallmark of an apology.");
63. Bruce W. Darby & Barry R. Schlenker, Children's Reactions to Apologies, 43 J. PERSONALITY & SOC. PSYCHOL. 742, 742 (1982) ("Apologies are admissions of blameworthiness and regret for an undesirable event, for example, a transgression, a harmful act, an embarrassing incident.");
64. Gary S. Schwartz, Thomas R. Kane, Joanne M. Joseph & James T. Tedeschi, The Effects of Post-Transgression Remorse on Perceived Aggression, Attributions of Intent, and Level of Punishment, 17 BRIT. J. SOC. CLINICAL PSYCHOL. 293, 296-97 (1978);
65. Jennifer F. Orleans & Michael B. Gurtman, Effects of Physical Attractiveness and Remorse on Evaluations of Transgressors, ACAD. PSYCHOL. BULL., Mar. 1984, at 49, 54;
66. Ken-ichi Ohbuchi & Kobun Sato, Children's Reactions to Mitigating Accounts: Apologies, Excuses, and Intentionality of Harm, 134 J. SOC. PSYCHOL. 5, 12 (1994); (Pubitemid 24769349)
67. Austin Sarat, Remorse, Responsibility, and Criminal Punishment: An Analysis of Popular Culture, in THE PASSIONS OF LAW 168, 169 (Susan A. Bandes ed., 1999) ("[R]emorse at least seems to call for mitigation of punishment.").
68. Erik Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003 UTAH L. REV. 205, 293-94 (2003) (arguing that an offender's expression of remorse demonstrates respect for his or her victim).
69. Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1698 (1992) ("[B]y apologizing, we deny the diminishment of the victim, and our relative elevation, expressed by our wrongful action. ");
70. See Max Bolstad, Learning from Japan: The Case for Increased Use of Apology in Mediation, 48 CLEV. ST. L. REV. 545, 548 (2000) ("Studies conducted on criminal-victim mediation programs in the United States reveal that offering an apology to the victim is an important issue for 90% of the offenders who voluntarily choose to participate in such a program. Thus, there may be an innate desire on the part of some offenders to apologize for their injurious acts even in the absence of forgiveness." (footnote omitted));
71. Elizabeth Latif, Note, Apologetic Justice: Evaluating Apologies Tailored Toward Legal Solutions, 81 B. U. L. REV. 289, 311-20 (2001) (arguing for reforms that facilitate apologies, such as court-ordered apologies and apologies insulated from legal liability, in order to promote the resolution of legal disputes).
72. Deborah L. Levi, Note, The Role of Apology in Mediation, 72 N. Y. U. L. REV. 1165, 1186 (1997) ("Even when individual parties are suited to the apology ritual, the possibility for apology may never arise if their lawyers are present.").
73. Thomas H. Gallagher, Amy D. Waterman, Alison G. Ebers, Victoria J. Fraser & Wendy Levinson, Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors, 289 J. AM. MED. ASS'N 1001, 1004 (2003) (finding that patients want to receive apologies for medical errors);
74. Daniel W. Shuman, The Role of Apology in Tort Law, 83 JUDICATURE 180, 180 (2000) ("Tort plaintiffs often claim that what they really wanted was an apology and brought suit only when it was not forthcoming or, that when they received an apology it 'was the most valuable part of the settlement.'");
75. Amy B. Witman, Deric M. Park & Steven B. Hardin, How Do Patients Want Physicians to Handle Mistakes? A Survey of Internal Medicine Patients in an Academic Setting, 156 ARCHIVES INTERNAL MED. 2565, 2566 (1996) (reporting a survey of patients evaluating hypothetical cases of injury and finding that "[n]early all respondents (98%) desired or expected the physician's active acknowledgement of an error" which could "range[] from a simple acknowledgement of the error to various forms of apology").
76. See Jeffrey S. Helmreich, Does 'Sorry' Incriminate? Evidence, Harm and the Protection of Apology, 21 CORNELL J. L. & PUB. POL'Y 567, 569 (2012) ("Beginning in 1986, a growing number of states have adopted what have been called 'apology laws'-protective measures designed to encourage injurers to apologize by expressly ensuring that at least some types of apologies cannot be used against them in litigation. ");
77. William K. Bartels, Note, The Stormy Seas of Apologies: California Evidence Code Section 1160 Provides a Safe Harbor for Apologies Made After Accidents, 28 W. ST. U. L. REV. 141, 151 (2001).
78. See FED. R. EVID. 408 (making settlement discussions inadmissible for many purposes).
79. See FED. R. EVID. 408 advisory committee's note (justifying the inadmissibility of settlement or compromise offers because "the offer may be motivated by a desire for peace rather than from any concession of weakness of position").
80. See, e.g., Benjamin Ho & Elaine Liu, Does Sorry Work? The Impact of Apology Laws on Medical Malpractice, 43 J. RISK & UNCERTAINTY 141, 162 (2011) ("We see that the apology laws reduce the total number of the insignificant injury cases that tend to settle quickly as well as reducing the payment size and increasing the settlement speed of cases involving major injuries/death.").
81. See Richard Weisman, Being and Doing: The Judicial Use of Remorse to Construct Character and Community, 18 SOC. & LEGAL STUD. 47, 51 (2009) ("Moral performances in law are affected by their proximity to law's own coerciveness, that is, the power of the court to confer benefits or to impose punishments. [T]here is always the possibility that expressions of self-condemnation will be more strategic than authentic, more calculated and ulterior than spontaneous.").
82. See U. S. SENTENCING GUIDELINES MANUAL § 3E1. 1 (a) (2012) (providing for a twolevel reduction in offense level for an offender who "clearly demonstrates acceptance of responsibility for his offense");
83. see also Michael M. O'Hear, Remorse, Cooperation, and "Acceptance of Responsibility": The Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1507, 1515-21 (1997) (asserting that the system actually functions to reward guilty pleas rather than true expressions of remorse).
84. See Scott v. United States, 419 F.2d 264, 271 n. 33 (D. C. Cir. 1969) ("[A] glib willingness to admit guilt in order to 'secure something in return' may indicate quite the opposite of repentance.").
85. see also Jeffrie G. Murphy, Remorse, Apology, and Mercy, 4 OHIO ST. J. CRIM. L. 423, 446-47 (2007) (suggesting that some apologies offered in public settings are more likely to be viewed merely as a "public linguistic performance" that raises suspicion about the apologizer's remorse or repentance).
86. Mitchell A. Stephens, I'm Sorry: Exploring the Reasons Behind the Differing Roles of Apology in American and Japanese Civil Cases, 14 WIDENER L. REV. 185, 192 (2008) ("[T]he law is replete with examples in which an apology, or lack thereof, affected the proceedings of both civil and criminal cases. Apology has played a role in the assessment of damages, and has been specifically noted in cases of contempt and libel." (footnotes omitted));
87. See, e.g., Riggins v. Nevada, 504 U. S. 127, 144 (1992) (Kennedy, J., concurring) ("In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies.");
88. State v. Harrison, No. 10-1545, 2011 WL 2149761, at *1 (La. Ct. App. June 1, 2011) (noting that the sentencing judge had accepted defendant's "sincere apology" for his crime);
89. People v. Sanchez, No. 284987, 2009 WL 3103831, at *5 (Mich. Ct. App. Sept. 29, 2009) (same).
90. See Brian H. Bornstein, Lahna M. Rung & Monica K. Miller, The Effects of Defendant Remorse on Mock Juror Decisions in a Malpractice Case, 20 BEHAV. SCI. & L. 393, 399-400 (2002) (reporting results of mock jury studies in which jurors assigned lower demands to defendants who expressed remorse than to defendants who did not express remorse).
91. See Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach, 93 MICH. L. REV. 107, 148 (1994) (reporting that in an experiment where research participants evaluated a settlement offer, "[a]pology subjects were more inclined to accept the settlement offer.");
92. Jennifer K. Robbennolt, Apologies and Settlement Levers, 3 J. EMPIRICAL LEGAL STUD. 333, 358-67 (2006) [hereinafter Robbennolt, Settlement Levers] (finding in an experimental study that both "full" and "partial" apologies influenced settlement behavior).
93. See Robbennolt, Settlement Levers, supra note 92, at 363-64.
94. See Robbennolt, Legal Settlement, supra note 44, at 486;
95. Robbennolt, Settlement Levers, supra note 92, at 364 (noting that when fault was clear, recipients of either full or partial apologies accepted lower settlement offers than participants who did not receive apologies).
96. See Robbennolt, Settlement Levers, supra note 92, at 362-64.
97. See Robbennolt, Attorneys, supra note 10, at 376 (reporting that "attorneys tended to set higher values for the settlement levers when full responsibility-accepting apologies were offered than they did when no apology was offered").
98. Alayna Jehle, Monica K. Miller & Markus Kemmelmeier, The Influence of Accounts and Remorse on Mock Jurors' Judgments of Offenders, 33 LAW & HUM. BEHAV. 393, 398-99 (2009) (finding that expressing remorse reduced recommended punishments in a mock jury study);
99. Chris L. Kleinke, Robert Wallis & Kevin Stalder, Evaluation of a Rapist as a Function of Expressed Intent and Remorse, 132 J. SOC. PSYCHOL. 525, 528-29 (1992) (reporting a mock jury experiment in which expression of remorse reduced sentence recommendations);
100. Michael N. O'Malley & Jerald Greenberg, Sex Differences in Restoring Justice: The Down Payment Effect, 17 J. RES. PERSONALITY 174, 183-84 (1983) (finding that female, but not male, study participants are influenced by the remorsefulness of the defendant when it comes to sentencing);
101. Michael G. Rumsey, Effects of Defendant Background and Remorse on Sentencing Judgments, 6 J. APPLIED SOC. PSYCHOL. 64, 67 (1976) (reporting a mock jury experiment in which expression of remorse reduced juror sentences).
102. But see Christy Taylor & Chris L. Kleinke, Effects of Severity of Accident, History of Drunk Driving, Intent, and Remorse on Judgments of a Drunk Driver, 22 J. APPLIED SOC. PSYCHOL. 1641, 1648-49 (1992) (finding that an expression of remorse produced more favorable ratings but did not alter the recommended sentence).
103. Keith E. Niedermeier, Irwin A. Horowitz & Norbert L. Kerr, Exceptions to the Rule: The Effects of Remorse, Status, and Gender on Decision Making, 31 J. APPLIED SOC. PSYCHOL. 604, 617 (2001) (reporting that mock jurors were more likely to convict remorseless defendants than remorseful defendants);
104. Randolph B. Pipes & Marci Alessi, Remorse and a Previously Punished Offense in Assignment of Punishment and Estimated Likelihood of a Repeated Offense, 85 PSYCHOL. REP. 246, 248 (1999);
105. Michael J. Proeve & Kevin Howells, Effects of Remorse and Shame and Criminal Justice Experience on Judgements [sic] About a Sex Offender, 12 PSYCHOL., CRIME & L. 145, 157-58 (2006).
106. See Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells, But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 CORNELL L. REV. 1599, 1633-36 (1998); (Pubitemid 128443748)
107. Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 COLUM. L. REV. 1538, 1560-61 (1998). (Pubitemid 128439797)
108. Daniel J. Kaspar & Lamont E. Stallworth, The Impact of a Greivant's Offer of Apology and the Decision-Making Process of Labor Arbitrators: A Case Analysis, 17 HARV. NEGOT. L. REV. 1, 53-55 (2012) (reporting that greivants offered apologies in 30 of 69 cases retrieved from the BNA arbitration database, and concluding that "a grievants' [sic] offer of an apology had a mitigating impact on the decision-making process of the labor arbitrator" more often than not).
109. See Jennifer K. Robbennolt & Robert M. Lawless, Bankrupt Apologies, 10 J. EMPIRICAL LEGAL STUD. (forthcoming 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=2208811.
110. See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 816-19 (2001) (describing our methodological approach). We have previously reported research on judges in a series of papers
111. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, The "Hidden Judiciary": An Empirical Examination of Executive Branch Justice, 58 DUKE L. J. 1477 (2009);
112. Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich & Chris Guthrie, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195 (2009);
113. Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Inside the Bankruptcy Judge's Mind, 86 B. U. L. REV. 1227 (2006) [hereinafter Rachlinski et al., Bankruptcy Judges];
114. Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Probable Cause, Probability, and Hindsight, 8 J. EMPIRICAL LEGAL STUD. 72 (2011);
115. Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information?: The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251 (2005) [hereinafter Wistrich et al., Deliberately Disregarding].
116. See ROBERT M. LAWLESS, JENNIFER K. ROBBENNOLT & THOMAS S. ULEN, EMPIRICAL METHODS IN LAW 104 (2010) (describing "between-subjects" experimental designs).
117. See Robbennolt, Legal Settlement, supra note 44, at 484-91.
118. See Robbennolt, Attorneys, supra note 10, at 379.
119. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (a) (1998).
120. See C. Ward Struthers et al., The Effects of Attributions of Intent and Apology on Forgiveness: When Saying Sorry May Not Help the Story, 44 J. EXPERIMENTAL SOC. PSYCHOL. 983, 990 (2008) ("Across three studies we showed that an apology hindered forgiveness when there was an attribution of intent.").
121. See 11 U. S. C. § 523 (a) (2) (C) (2006).
122. See Martin V. Day & Michael Ross, The Value of Remorse: How Drivers' Response to Police Predict Fines for Speeding, 35 L. & HUM. BEHAV. 221, 227-28, 231 (2010) (reporting that in a survey conducted in Canada, "apologies were associated with a reduction in fines" by police officers who issued the ticket and reporting that similar results occurred in the United States). 1
123. See ROBERT B. CIALDINI, INFLUENCE: SCIENCE AND PRACTICE 146-48 (5th ed. 2009) (discussing "the halo of physical attractiveness");
124. Sidney Katz, The Importance of Being Beautiful, in DOWN TO EARTH SOCIOLOGY: INTRODUCTORY READINGS 307, 308 (James M. Henslin ed., 9th ed., 1996) (asserting that beauty creates a "halo effect" that positively influences ratings on traits other than physical attractiveness).
125. See generally Judith H. Langlois et al., Maxims or Myths of Beauty? A Meta-Analytic and Theoretical Review, 126 PSYCHOL. BULL. 390, t390-92 (2000) (reviewing the literature on attractiveness).
126. See Joel D. Lieberman, Head over the Heart or Heart over the Head? Cognitive Experiential Self-Theory and Extralegal Heuristics in Juror Decision Making, 32 J. APPLIED SOC. PSYCHOL. 2526, 2538-39 (2002) (finding that mock jurors award less in a civil case when the defendant is attractive);
127. John E. Stewart, II, Defendant's Attractiveness as a Factor in the Outcome of Criminal Trials: An Observational Study, 10 J. APPLIED SOC. PSYCHOL. 348, 358 (1980) (finding correlation between the defendant's attractiveness and his or her sentence).
128. See A. Chris Downs & Phillip M. Lyons, Natural Observations of the Links Between Attractiveness and Initial Legal Judgments, 17 PERSONALITY & SOC. PSYCHOL. BULL. 541, 545-46 (1991) (reporting a study of misdemeanor cases in which attractive defendants received lower bail and fines than unattractive defendants received).
129. See Harold Sigall & Nancy Ostrove, Beautiful but Dangerous: Effects of Offender Attractiveness and Nature of the Crime on Juridic Judgment, 31 J. PERSONALITY & SOC. PSYCHOL. 410, 412-13 (1975).
130. See ROBERT SATTER, DOING JUSTICE: A TRIAL JUDGE AT WORK 185 (2005) ("For me, the act of sentencing is an interpersonal experience between the convicted and me. He looks up at me, awaiting my judgment. I look down at him, conscious of my responsibility to be just to him as well as to the society I represent.");
131. TOM BINGHAM, Judicial Ethics, in THE BUSINESS OF JUDGING: SELECTED ESSAYS AND SPEECHES 69, 69-82 (2000) ("In passing sentence in a difficult case, a criminal judge is often wise to take account, among many other considerations, of how a proposed sentence will be perceived by the public at large, or the community to which the defendant belongs, or the victim. This is not a surrender to the clamour of the mob; it is realistic recognition that a sentence widely seen as unjustifiably lenient may ultimately be damaging to the defendant himself and even, unless and until corrected, to the administration of criminal justice.").
132. In Ohio, this crime would be charged as retaliation against a public official. OHIO REV. CODE ANN. § 2921. 05 (A) (LexisNexis 2010). "Retaliation" is a "felony of the third degree." 156 Under the Canadian Criminal Code, the appropriate crime is threatening death, which carries a maximum sentence of five years. Canada Criminal Code, R. S. C. 1985, c. C-46, §§ C-264.1 (1) (a), C-264.1 (2). Unlike the other three jurisdictions, Canada does not have a separate crime for threatening a public official or a judge (unless the threat is made so as to induce the judge to make a favorable ruling). 157 We cannot identify the statute without also identifying the jurisdiction.
133. 18 U. S. C. § 876 (c) (2006) (doubling the maximum sentence for mailed threats to "United States judge[s]" or "[f]ederal law enforcement officer[s]").
134. See U. S. Sentencing Guidelines Manual § 2A6.1 (2012).
135. See U. S. Sentencing Guidelines Manual § 5A (2012) (USSG Sentencing Table).
136. See Canada Criminal Code, R. S. C. 1985, c. C-46, § C-718 (f).
137. See Erin Sheley, Reverberations of the Victim's "Voice": Victim Impact Statements and the Cultural Project of Punishment, 87 IND. L. J. 1247, 1247 (2012) ("Ever since the victims' rights movement swept the country in the 1970s, leading to the addition of victims' rights amendments to the constitutions of thirty-two states starting in the 1980s, the victim's 'voice' has been a source of great anxiety in debates about criminal sentencing.").
138. See MINN. STAT. ANN. § 609.24 (West 2009) (defining simple robbery).
139. This would produce a severity level of five. MINN. SENTENCING GUIDELINES & COMMENTARY § 4. A (2012).
140. See MINN. STAT. ANN. § 611A. 038 (a) (West 2009).
141. See Robbenn-olt, Legal Settlement, supra note 44, at 475-76.
142. See Etienne Mullet, Michelle Girard & Parul Bakhshi, Conceptualizations of Forgiveness, 9 EUR. PSYCHOLOGIST 78, 84 ("One person out of four in our sample seems to believe that forgiving is only possible between a known offender and a known offended. These people would experience trouble considering as a credible option forgiving an institution, or third-party forgiving."); see also Etienne & Robbennolt, supra note 1, at 316 (noting that prosecutors might suffer from a similar detachment).
143. But see Jeffrey D. Green, Jeni L. Burnette & Jody L. Davis, Third-Party Forgiveness: (Not) Forgiving Your Close Other's Betrayer, 34 PERSONALITY & SOC. PSYCHOL. BULL. 407, 408, 415 (2008) (observing that "forgiveness often takes place in a broader social milieu that involves third parties" and finding in their research that "apologies to the victim had a greater impact on third-party forgiveness relative to first-party forgiveness" where the third parties were close to the first parties).
144. See Wistrich et al., Deliberately Disregarding, supra note 111, at 1259 (reporting results of a series of studies showing "that some types of highly relevant, but inadmissible, evidence influenced the judges' decisions").
145. See Russell Korobkin & Chris Guthrie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 TEX. L. REV. 77, 87 (1997) (arguing that applicants to law schools "must demonstrate a higherthan-average ability to think analytically");
146. See Julie Juola Exline et al., Not So Innocent: Does Seeing One's Own Capability for Wrongdoing Predict Forgiveness?, 94 J. PERSONALITY & SOC. PSYCHOL. 495, 512 (2008) (finding that "[i]f people see themselves as capable of a similar wrongdoing, this belief is linked with greater empathic understanding and a sense of being similar to the offender" and that "[b]oth of these perceptions, in turn, predict greater forgiveness").
147. Jane L. Risen & Thomas Gilovich, Target and Observer Differences in the Acceptance of Questionable Apologies, 92 J. PERSONALITY & SOC. PSYCHOL. 418, 432 (2007). Risen and Gilovich find that observers or third parties are better able to differentiate between sincere and insincere apologies.
148. But see Margareth Etienne, Remorse, Responsibility, and Regulating Advocacy: Making Defendants Pay for the Sins of Their Lawyers, 78 N. Y. U. L. REV. 2103, 2162 (2003) (arguing that it is nearly impossible to "tell what is in another's heart or mind").
149. See LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION: PERSPECTIVES OF SOCIAL PSYCHOLOGY 4 (1991) ("People's inflated belief in the importance of personality traits and dispositions, together with their failure to recognize the importance of situational factors in affecting behavior, has been termed the 'fundamental attribution error.'").
150. G. K. CHESTERTON, The Twelve Men, in TREMENDOUS TRIFLES 54, 57-58 (Sheed & Ward eds., 1955).
151. See, e.g., Ellen M. Bryant, Comment, Section 3E1.1 of the Federal Sentencing Guidelines: Bargaining with the Guilty, 44 CATH. U. L. REV. 1269, 1296-97 (1995) (proposing to amend the "acceptance of responsibility" provision to include automatic reduction for guilty pleas without consideration of factors like remorse);