How often do judges and juries make
“high stakes” decisions about punishment based on “faulty perceptions” about
remorse? Slate, the online current affairs and culture
magazine, recently asked this question of Professor Susan Bandes, a nationally
recognized expert on emotion and the law. Her answer: Too often. “Emotion pervades the law,” she told
Slate. “We’re so used to it that we
often don’t even see it.” She said people think they know what a
defendant’s remorse looks like because they read his facial expressions or body
language. She is convinced that those
observations, based on faulty impressions, taint sentencing decisions. In capital cases, for instance, “there is
substantial evidence that whether or not a defendant looks remorseful is one of
the main factors in determining” if a jury will sentence him to death.
Professor Bandes believes that judges
and juries often “read a defendant’s facial expressions or body language wrong,”
and that affects sentencing outcomes. “There’s
really no evidence at all to support the notion that we actually can evaluate”
a defendant’s remorse by looking at him.
In response to this interview, a number
of prosecutors, defense attorneys and judges reached out to Professor Bandes to
express their interest in this topic. At
least one judge, in fact, will be recommending continuing legal education on it
in his jurisdiction.
Read Professor Bandes's interview with Slate here.