Apology in the criminal justice setting: evidence for including apology as an additional component...

Behavioral Sciences and the Law

Behav. Sci. Law 20: 337–362 (2002)

Published online in Wiley Interscience (www.interscience.wiley.com). DOI: 10.1002/bsl.495

Apology in the Criminal JusticeSetting: Evidence for IncludingApology as an AdditionalComponent in the Legal System

Carrie J. Petrucci, Ph.D.*

The criminal justice system has reached unprecedented

scope in the United States, with over 6.4 million people

under some type of supervision. Remedies that have the

potential to reduce this number are continually being

sought. This article analyzes an innovative strategy cur-

rently being reconsidered in criminal justice: the apology.

Despite a legal system that only sporadically acknowledges

it, evidence for the use of apology is supported by social

science research, current criminal justice theories, case

law, and empirical studies. Social psychological, socio-

logical and socio-legal studies pinpoint the elements and

function of apology, what makes apologies effective, and

concerns about apology if it were implemented in the

criminal justice system. Theoretical evidence is examined

(including restorative justice, therapeutic jurisprudence,

crime, shame, and reintegration) to explore the process of

apology in the criminal justice context. Attribution theory

and social conduct theory are used to explain the apology

process specifically for victims and offenders. A brief

examination of case law reveals that though apology has

no formal place in criminal law, it has surfaced recently

under the federal sentencing guidelines. Finally, empirical

evidence in criminal justice settings reveals that offenders

want to apologize and victims desire an apology. More-

over, by directly addressing the harmful act, apology may

be the link to reduced recidivism for offenders, as well as

empowerment for victims. This evidence combined sug-

gests that apology is worthy of further study as a potentially

valuable addition to the criminal justice process. Copy-

right # 2002 John Wiley & Sons, Ltd.

Copyright # 2002 John Wiley & Sons, Ltd.

*Correspondence to: Carrie J. Petrucci, Ph.D., California State University, Long Beach, Department ofSocial Work, 1250 Bellflower Boulevard, Long Beach, CA 90840-0902, U.S.A.E-mail: [email protected] Petrucci is an assistant professor of social work at California State University, Long Beach. This articlewas prepared while the author was a doctoral student at UCLA’s Department of Social Welfare.The author would like to thank the following people for their generous contributions to drafts of thismanuscript: Stuart Kirk, Bernard Weiner, Wendy Belcher, Dan Shuman, Richard Abel, Alfreda Iglehart,Don Hartsock, David Wexler, Bruce Winick, Joe Nunn, and two anonymous reviewers.

Whether one believes that the crime rate is up or down, one fact cannot be denied:

the scope of the criminal justice system in the United States is immense and

growing. There are over 6.4 million people under the purview of the criminal justice

system (BJS, 2001), equivalent to the entire population of New Zealand (or Israel,

Singapore, or Finland, to name a few).1 Approximately 2 million of this 6.4 million

are incarcerated in prisons and jails across the nation (Beck & Harrison, 2001; Beck,

Karberg, & Harrison, 2002), at an annual cost to states of 30 billion dollars

nationwide (Gifford, 2002). Worldwide, the U.S. has the second highest incarcera-

tion rate of any nation, second only to Russia (Mauer, 1997). California alone

incarcerates over 160 000 adults (CDC Facts, 1999). This is more than all those

incarcerated in England, France, and Italy combined.2

It is not necessarily problematic to have an ever-increasing population within

criminal justice if gains were being made; stated simply, is the incarceration rate

leading to lower rates of crime? If so, perhaps public safety is worth the high cost. A

look at trends in crime rates and incarceration rates, however, does not substantiate

this relationship between higher incarceration and lower crime (Blumstein, 1998;

Mauer, 1997; Tonry, 1999). If this were the case, the steady increase in incarcera-

tion would be matched by a steady decrease in crime. Instead, crime rates have gone

down, then up, then down again, and this cannot be explained by a ‘lag time’ behind

incarceration (Blumstein, 1998). Incarceration, meanwhile, has steadily increased.3

A decreasing crime index since 1992 might suggest a relationship between incar-

ceration and crime. This is somewhat misleading, however, because crime reached

an all-time high in 1992, so a decrease must be considered in that context; and the

scope of crime in sheer numbers remains at an all-time high (BJS, 1998; Beck &

Harrison, 2001; Snell, 1995).4 It is unclear, at best, how increased incarceration has

impacted crime.

These astronomical numbers of offenders and budgets in criminal justice have

fueled two opposing trends. One is more severe sanctions—as demonstrated by the

‘get tough on crime’ legislation such as ‘three strikes’. The other is an environment

ripe for testing innovative strategies (or in some cases, reintroducing strategies that

have been around for years). This article will address one such strategy: the apology.5

The impetus for this analysis began by way of a serendipitous finding in a

1More nations than could be listed here have total populations less than the criminal justice population in theU.S. (population figures taken from the U.S. Bureau of the Census, 1998).2The total number of people incarcerated per country are as follows: England/Wales: 51 265; France:53 697, and Italy, 47 323 (Mauer, 1997). Other comparisons can be made. California alone incarceratesmore than South Africa (110 120 inmates) Thailand (106 676 inmates), Canada (33 882 inmates), andJapan (46 622) (Mauer, 1997).3For an in-depth discussion of the lack of relationship between incarceration and crime rates, seeBlumstein (1998), Mauer (1997), and Tonry (1999). A simple analysis of this lack of relationship issuggested by the following: the number of inmates in state and federal prisons almost doubled between1980 and 1987, during a decrease in the violent crime index. This is expected. However, inmate totalscontinued to increase until they doubled again from 1987 to 1997. This occurred simultaneously with firstan increase and then a decrease in the violent crime index (Maguire & Pastore, 1998, p. 490). The lack ofa consistent correlation between incarceration and crime rate suggests either a more complex relationship,or perhaps no relationship at all, between incarceration and crime rates.4From 1980 to 1997, the total correctional population tripled from 1.8 million to 5.6 million nationwide(BJS, 1998; Snell, 1995.) The number of people incarcerated nationwide has increased every year since1972 (Beck et al., 2002; Langan, Fundis, Greenfeld, & Schneider, 1988).5Apology is a topic of interest in several literatures, several of which will be included here. Not included inthis discussion will be apology as a component of political theories of redress. For discussions of apologyin this context, see books by Brooks (1999) and deHaan (1990).

338 C. J. Petrucci

Copyright # 2002 John Wiley & Sons, Ltd. Behav. Sci. Law 20: 337–362 (2002)

New Zealand evaluation study of family group conferences (Maxwell & Morris,

1993). Youthful offenders who did not apologize during the process of a family group

conference were found to be three times more likely to reoffend in a three-year follow-

up than youth who did apologize (Morris & Maxwell, 1997). Apology was not the

primary focus of this study, so no further information is available. Still, it leads one to

wonder how important the apology may have been in later outcomes.

Additional evidence exists that suggests the utility of apology. Haley (1998)

conducted an extensive comparative review of the crime rate in Japan and the

United States, and argues that it is the importance of apology and pardon that

differentiate the two criminal justice systems. While the crime rates have tripled in

the United States between 1960 and 1988, Japan’s crime rate has decreased, as has

the number of actual offenders. While cultural, economic, and institutional factors

are generally cited as the cause for Japan’s lower crime rates, Haley argues that other

industrialized nations are similar among most or all of these fronts and still have

increasing rates of crime. What explains Japan’s success? Haley cites the use of

apology and confession as integral parts of Japanese law and practice as key. Rather

than increasing the number of lawsuits due to apology, in Japan, just the opposite

has occurred: lawsuits are not filed. Apology is an informal sanction, and reduces the

likelihood that a dispute will be taken to court (Haley, 1998, p. 851). How do

recidivism rates stand up? Studies have found that the more lenient the punishment,

the less likely the offender is to commit another crime in three years (Haley, 1998).

This, together with a decreasing number of offenders in Japan, is powerful evidence

of the effectiveness of their criminal justice approach.

Are youth that apologized in the New Zealand study substantively different than

those who did not, suggesting apology as a proxy variable, or did the apology itself

contribute to lowered recidivism? Is it possible that lowered recidivism could result

when offenders who do not want to apologize do so? The questions arising from

findings in the New Zealand study as well as Haley’s thesis served as the catalyst to

investigate apology further. As the remainder of this article will show, interest in

apology has been developing steadily across several disciplines. Given the high cost

in human capital and public budgets concomitant with criminal justice today,

apology seems a worthy subject for further exploration.

The purpose of this article is to synthesize the existing theoretical and empirical

evidence for apology to assess what, if anything, apology has to offer in the criminal

justice setting. Social science research will be used to describe what we know about

apology, including the elements and function of apology, what makes an apology

effective, and areas of concern. Next, the process of apology from a theoretical

perspective will be explored to explain the process of apology. How apology is

emerging within criminal law will then be briefly discussed. The final section will use

the empirical evidence available to examine two factors that support the use of

apology in the criminal justice setting.

Before proceeding any further, four caveats are in order. First, it is not being

suggested here that apology replace the existing criminal justice process, but only to

consider the inclusion of apology in addition to established court procedures.

Secondly, any consideration of apology in criminal justice assumes that there are

circumstances under which apology may not be appropriate, such as in the case of

murder. Voluntary participation of all parties involved (particularly victims and

offenders) would likely determine if and when apology could be pursued. Third, a

Apology in the criminal justice setting 339


detailed discussion of how apology could be further integrated into criminal justice

is beyond the scope of this article, except to the extent that current methods are

discussed in the literature, as in the case of the federal sentencing guidelines. Finally,

though the primary area of concern is the criminal justice setting, research dealing

with civil proceedings will be discussed to the extent that both civil and criminal law

exist in an adversarial setting and have some common ground.

RESEARCH EVIDENCE: WHAT WE KNOW

ABOUT APOLOGY

The Elements and Function of Apology

Scholars from social psychology, sociology, and socio-legal studies have all taken a

careful look at apology. This discussion will borrow from their work. Apologies are

described in several ways related to their function: as a form of remedial work

(Goffman, 1971), as a type of account (Gonzalez, Haugen, & Manning, 1994), or as

a ‘ceremonial exchange of respect’ (Abel, 1998, p. 265). Goffman’s view is

consistently cited, though disagreement exists as to apology’s function, specifically

relating to the presence of responsibility. The purpose of remedial work, according

to Goffman, is to alter the meaning of an act from harmful to acceptable. He

identifies three ways in which to do this: ‘accounts,’ in which a harmdoer provides an

explanation but generally does not accept responsibility for the act; ‘apologies,’ in

which a harmdoer does accept responsibility for the act; and ‘requests,’ in which a

person requests permission from another before committing an act that may be

viewed as harmful (Goffman, 1971).

This separation of ‘apologies’ from ‘accounts’ differs from Gonzalez and collea-

gues (1994), who view concessions (which includes apology), excuses, justifications,

and refusals all as types of ‘account.’ Acceptance of responsibility is present only in

concessions. A justification includes a simple ‘I’m sorry’ but without acceptance of

responsibility.6 However, Tavuchis (1991) sides with Goffman’s view, regarding

apologies as separate from accounts. Due to their function, apologies are exactly

what other types of account are not: apologies are most useful and needed when an

excuse, explanation, or justification is simply not sufficient. Abel (1998) also

identifies apologies as separate from accounts, and goes on to explain that apologies

are a means for the offender to express ‘moral inferiority’, leaving it to the victim to

accept the apology and thereby equalize the status between them, or reject the

apology, allowing the imbalance to remain. Either way, the process is controlled by

the victim (Abel, 1998). For purposes here, apology will be seen as separate from an

account, and we shall assume that taking responsibility is a necessary element.

Experts across several disciplines agree that the core elements of apology are as

follows:

6Weiner, Graham, Orli, and Zmuidinas (1991) use a similar taxonomy, citing Schonbach (unpublishedmanuscript). The four categories of accounts are denial, excuse, justification, and concession (whichincludes apology, and is also referred to as confession). In line with this discussion, the first three types donot include the concept of personal blame or responsibility, and concession (or apology) does. Thus, thedifference in whether apology is an account or not becomes a semantic issue given agreement on thepresence of responsibility with apology.

340 C. J. Petrucci


(i) an expression of remorse or regret, such as ‘I’m sorry’;

(ii) an overt acceptance of responsibility for the harmful act;

(iii) some type of offer of compensation, repair, or restitution; and

(iv) a promise to avoid such behavior in the future (Goffman, 1971; Scher &

Darley, 1997; Wagatsuma & Rosett, 1986).

Additional elements stressed by some social scientists include

(i) hope for an improved relationship in the future (Wagatsuma & Rosett, 1985) and

(ii) the expression of emotion by the offender, including feelings of sorrow, sadness,

and visible shame (Scheff, 1998).

Moreover, these elements may have an additive effect. One study found that the

more complete the apology, the less blameworthy the offender was viewed as, and

the less negative feeling towards the offender. With each additional apology strategy,

the apology was seen as more appropriate, with the offender being progressively

blamed and sanctioned less. Perhaps most interesting was that the simple ‘I’m sorry’

versus no apology showed the most improvements in the victim’s response to the

offender. Apologies without expressed responsibility and a repair offer were seen as

less appropriate, and brought more blame and punishment (Scher & Darley, 1997).

Apology is seen as part of an interaction and as a three-step process: the call for

apology, the apology, and forgiveness (Abel, 1998; Tavuchis, 1991). In the call

for apology, an offender must name the offense, which allows mutual recognition

that it is an apologizable offense. Next, the offender communicates an expression of

sorrow and regret through the actual apology. Last, the person injured responds,

which can vary from rejecting the offender’s apology to accepting it. For this reason,

socio-lingusts define apology as a speech act (Tavuchis, 1991).

At their most basic level, then, apologies are ‘utterances . . . that are appropriately

offered when an individual has violated a social norm’ (Scher & Darley, 1997,

p. 127). Thus, apologies acknowledge that a rule or social norm has been violated

and express regret (Abel, 1998; Tavuchis, 1991). People are moved to apologize

because they realize they have broken an accepted rule, and they fear the breach of a

valued relationship. One function of apology, then, is acknowledging the impor-

tance of an agreed-upon rule (Abel, 1998; Tavuchis, 1991).

A second function is the repair of one’s social identity (Ohbuchi & Sato, 1994), or

deflection of negative personality judgments (Ohbuchi & Sato, 1994; Weiner

et al.,1991). Apologies are needed when a harm becomes a reflection on the

harmdoer’s identity (Tavuchis, 1991). The following oft-cited sentence explains

Goffman’s (1971) view:

An apology is a gesture through which an individual splits himself into two parts, thepart that is guilty of an offense and the part that dissociates itself from the delict andaffirms a belief in the offended rule (p. 113).

In this view, the offender has a ‘blameworthy’ self and a ‘sympathizing’ self. The

harmdoer can then be seen to have a portion of the self that is worth forgiving

(Goffman, 1971). A similar concept of ‘multiple identities’ is espoused by crimin-

ologist John Braithwaite, but for a slightly different purpose. In Braithwaite’s view,

the harmful act is condemned without condemning the good character of the

offender (Braithwaite & Mugford, 1994). Other scholars disagree with Goffman’s



analysis of the ‘split self.’ In the opposing view, accounts, such as excuses or

explanations, separate offenders from the act. The powerful nature of apologies,

however, springs from a lack of separation. Those who oppose Goffman’s view posit

that apologies necessitate the acceptance of the harmful act as a part of oneself and

from this acceptance comes the sorrow and regret that is the ‘heart of apology.’ The

harmful act reflects the identity of the person who committed it and the offender

must recognize this part of the self (Tavuchis, 1991). In the final analysis, this

scholarly difference in opinion is probably inconsequential, since both views agree

that responsibility is necessary, and that the harmdoer is capable of changing future

behavior and can be viewed in a more positive light. The function of restoring social

identity then is accomplished through acknowledgement of the act as part of the self,

which precipitates the acceptance of responsibility.

By acknowledging the social norm, an offender’s identity is restored by the third

function of apology: accepting responsibility and the expression of regret (Abel,

1998; Scher & Darley, 1997; Tavuchis, 1991; Weiner et al., 1991). Admittedly, this

acknowledgement of responsibility walks a careful balance between a person who

apologizes being labeled as a bad person for admitting the harmful act as opposed to

being seen as someone who will avoid the offensive act again because of accepting

responsibility by apologizing (Tavuchis, 1991).

The fourth function of apology is for the victim to forgive (Ohbuchi & Sato, 1994;

Weiner et al., 1991). The study by Scher and Darley (1997) would suggest that a

simple apology reduces blameworthiness and negative feelings toward the offender,

with progressively more gains made as more complex apologies are offered.

Forgiveness is closely tied to a fifth function of apology, conflict resolution.

Various scholars refer to this function of apology, highlighting its importance. The

goals of apology synonymous with conflict resolution have been stated as reducing

conflict (Levi, 1997), improving the relationship (Wagatsuma & Rosett, 1986),

reaching a mutual resolution, equalizing status among groups and restoring respect

(Abel, 1998; Levi, 1997) and restoring social harmony (Tavuchis, 1991).

Tavuchis suggests three additional functions of apology. An apology (i) confirms

what is believed to be true, (ii) suggests the need for compensation, and (iii) clarifies

who is to blame. In the legal setting, Tavuchis (1991) adds that if an apology is

offered merely as a legal requirement (for instrumental means), and not as a

meaningful interaction (for moral purposes), it will have no worth or value, because

it will not contain these three important elements.

Lessening punishment is a final function of apology noted from social psycho-

logical studies (Darby & Schlenker, 1989; Weiner et al., 1991). In a vignette study

using 2nd and 5th graders as subjects, less punishment was given when the offender

had a ‘good reputation’ and showed remorse. However, all offenders who apol-

ogized received less punishment, regardless of reputation or remorse (Darby &

Schlenker, 1989). Another study found that when offenders apologized, anger was

reduced and sympathy increased for observers, which resulted in less punishment

for offenders (Weiner et al., 1991).

What Makes Apologies Effective

Playground norms of childhood tell us that an apology is effective only when it is

believable. A believable apology leads to acceptance, which then can result in

342 C. J. Petrucci


forgiveness. Acceptance of an apology and forgiveness restores the relationship

between the parties involved. This believability–acceptance–forgiveness–restoration

process is what describes the most effective apology. Social scientists have defined

effective apologies using a variety of terms: the genuine apology (Scheff, 1998);

the meaningful apology (Wagatsuma & Rosett, 1986); the full-blown apology

(Holtgraves, 1989); and the authentic apology (Tavuchis, 1991). Three concepts

surface as central to effective apologies: communicating emotion (such as remorse

or sadness), a face-to-face interaction, and the timing of the apology. Severity of the

offense is an additional consideration that influences how these components are

executed. Each of these will be discussed in turn.

Scheff (1998) focuses with the most detail on the communication of emotion

between the two parties involved. He believes that the ‘genuine apology’ is the key to

a shaming process that heals both victim and offender. When the offender exhibits

shame,7 this visible shame allows the victim to see the ‘human’ side of the offender.

Victims also feel shame as a result of the harmful act, and seeing the offender express

shame allows the victim to acknowledge his or her own shame, creating a bond

between the victim and the offender. This social bond is a necessary precursor to

forgiveness, or symbolic reparation (Scheff, 1998). Wagatsuma and Rosett (1986)

describe a ‘meaningful apology,’ emphasizing that apology is an ‘expression of the

self.’ This expression of emotion is an important element in the apology process

that leads to forgiveness. They measure the ultimate sincerity of an apology by

whether the offended party grants forgiveness. Holtgraves (1989) describes a

‘full-blown apology’ as including self-castigation. Tavuchis (1991) adds that an

‘authentic apology’ has two components: the harmdoer must be sorry, and must say

so. All these researchers see the communication of emotion as central to effective

apology.

An apology that occurs in a face-to-face interaction provides the most expedient

means to communicate emotion, thus leading to effective apology being offered.

Most agree that more is gained from apology when it occurs in a face-to-face

interaction (Levi, 1997; Scheff, 1998; Tavuchis, 1991). This ‘interpersonal

orientation’ is seen as a key ingredient, and also stresses a concern for the

relationship between the victim and offender (Levi, 1997). The communication

of sorrow, so central to apology acceptance, can only occur in a face-to-face

interaction in the presence of the harmed person (Tavuchis, 1991). The face-to-

face interaction has two purposes: the offender expresses shame and remorse for the

act, thereby accepting responsibility; this then allows the victim to no longer feel

shame because the victim sees in this interaction that it is the offender who is

responsible for the harmful act, and not the victim (Scheff, 1998). Face-to-face

interaction then, is a key ingredient to the communication of emotion in effective

apologies.

7Scheff (1998) distinguishes between normative definitions of shame in Western cultures and non-Western or Asian cultures. He acknowledges the Western tradition of shame referring to a host of verynegative emotions that are often hidden. He calls for a healthier use of the concept of shame, or ‘normalshame.’ This type of shame is defined in the manner of non-Western cultures, and refers to a range offeelings from embarrassment, to inadequacy, rejection, and humiliation. The expression of ‘normalshame’ is what he recommends in the process of apology, as opposed to ‘pathological shame’, which isintensely negative feelings, and not helpful to the apology process. Scheff borrows from Braithwaite’s(1989) definition of shame as reintegrative. For an opposing view of shame, see an article by Massaro(1997). For a critique of shame penalties, including apology, see an article by Karp (1998).



How long someone waits before offering an apology also affects its effectiveness

as does the severity of the offense. Typically, the longer one waits to apologize, the

less likely the apology will be accepted. However, various studies have produced

counterintuitive but revealing results, suggesting that effectiveness is shaped by the

amount of time that passes from the event to the apology, and whether the apology

comes before or after an accusation of guilt is made. In most cases, the longer one

waits to apologize, the more harm may be done as a result, and the less chance the

apology will be accepted (Tavuchis, 1991). For instance, apologies that occur after

the adjudication stage may be less well received. In situations where the accused

person was clearly guilty, Weiner and colleagues (1991) found that a confession,

including an apology, was less beneficial if it came after the accusation was made.

Confessions (which included apology) were found to be the most beneficial under

four conditions: (i) when the accused was seen as having done something wrong; (ii)

when an accusation had not been made; (iii) when attributions were ambiguous; and

(iv) when judgments were based on something other than the act itself, such as the

personality of the wrongdoer (p. 308). This need for timeliness could have negative

implications for apology in the criminal justice process, as legal proceedings can

absorb weeks, months, or even years.

However, a recent finding in participation studies in victim–offender mediation

suggests the opposite. As the severity of an offense increased (from property offenses

to personal offenses such as assault), it was found that waiting to approach victims to

participate in mediation with the offender resulted in more victims being willing to

participate. This effect was linked to the victim’s emotional and psychological

processes after a harmful act has occurred (Wyrick & Costanzo, 1999). Thus, based

on the severity of the offense, there may be cases where waiting to apologize could

result in the apology being more likely to be accepted. Likewise, victim–offender

mediation studies, all of which occur at the post-conviction stage, indicate that

apologies are still well accepted, even several months after adjudication (Umbreit &

Coates, 1992; Umbreit & Fercello, 1997; Umbreit & Greenwood, 1999).

Concerns about the Use of Apology

in the Criminal Justice Setting

Concerns about apology in the criminal justice setting spring from various points of

view, are numerous, but are essentially untested.8 The dearth of empirical research

and the plethora of a priori assumptions regarding apology highlight the need for

further research before addressing the effectiveness of apology, much less making a

decision about how to integrate apology into criminal justice. Future studies need to

directly address the issues and concerns of apology as they occur in the criminal

justice setting, rather than solely in experimental designs using the ubiquitous

college student. Research findings thus far suggest at least three areas of concern,

including gender effects, possible sources of bias toward the offender, and how a

public setting could enhance negative perceptions of apology.

8Except for the few studies noted in this article, which included apology as one of many variables, and notas the primary focus, no field studies could be found that specifically analyze apology in a criminal justicesetting.

344 C. J. Petrucci


Gender Effects on Apology

With well over 90% of offenders being male, how gender might affect apology seems

warranted. The gender studies on emotion and apology thus far provide somewhat

predictable results. Women may be more inclined to apologize than men if it repairs

the relationship. Women are more likely to express positive emotion than men,

particularly toward others, including sadness, fear, and disappointment. Men might

be motivated to apologize if apology is viewed as a means of controlling the situation

(Stoppard & Gruchy, 1993; Timmers, Fischer, & Manstead, 1998).

Women and men may expect different types of apology when they have different

views of blameworthiness. In an experimental setting that looked at blameworthiness

and different accounts, including apology, differences were found among men and

women. For negligent acts, women had more positive reactions to concessions (which

include apology), and reacted negatively toward refusals (an offender says, ‘I’m sorry’

but is not taking responsibility for the act), whereas men’s responses were the same for

all types of account given (Gonzales et al., 1994). This suggests that men may not

expect nor value apologies beyond a simple ‘I’m sorry’ for negligent acts. For

accidental incidents, however, it was men who had a positive reaction to concessions

(includes apology) and excuses and a negative reaction to justifications and refusals,

and women did not differentiate across the types of account (Gonzales et al., 1994).

In a criminal justice setting of predominantly male offenders, but more equal

gender distribution in terms of victims and professional personnel, this suggests that

expectations of when an apology is necessary and what type of apology is required

may be quite different. Arguably, there are also likely to be more negligent acts than

accidents, placing a possible barrier for men in terms of their desire to apologize or to

see apology as necessary.

The Possible Influence of Bias

Additional areas of concern for the use of apology in criminal justice are highlighted

by two studies that have explored possible bias in how apology is perceived. In a

study of how children responded to apology, offenders were judged on whether they

showed remorse when they apologized, and how a good or bad reputation influ-

enced acceptance of the apology. Those that showed remorse and had a good

reputation were given less punishment. The offender’s reputation determined how

the apology was interpreted. If the offender’s reputation was bad, the children

assumed that the apology was given as a way to manipulate the situation. If the

offender’s reputation was good, however, the apology was seen as a form of regret.

Still, all offenders who apologized, compared to those who did not, made some gains

in how they were perceived; those who apologized were seen as more likable, more

sorry, and received less punishment than those who did not (Darby & Schlenker,

1989). This speaks to concerns about apology being used as a means of manipula-

tion for a lesser punishment. Clearly an attempt would be made by any defense

attorney to portray the defendant with a ‘good reputation’, while opposing counsel

would attempt just the opposite. The danger would be that how a defendant is

ultimately judged might lie in the perceived reputation of the offender, rather than

other sources of evidence, much less an apology.



Bias as a result of perceived language style and socioeconomic status might also

occur. Offenders who genuinely apologize but who use a different language style

than the observer may be more likely to be seen as unconvincing. Further, offenders

convicted of ‘blue-collar’ versus ‘white-collar’ crime may be at a disadvantage as

well, if they offer apology, as it may be less likely to be believed. In a South African

study in which students listened to a tape-recording of an offender claim his

innocence using either ‘convergent’ (similar to the English-speaking language style

of the students) or ‘divergent’ (dissimilar to the English-speaking language style of

the students) language styles, offenders using divergent language styles were found

guilty more often. ‘White-collar’ versus ‘blue-collar’ crime was also included as a

variable, with those offenders accused of a ‘blue-collar’ crime found guilty more

often then offenders accused of a ‘white-collar’ crime (Dixon, Tredoux, Durrheim,

& Foster, 1994). These findings suggest socio-economic and class biases could

occur based on language style of the defendant and type of offense.

The Effects of a Public Setting on Apology

Apology in a public setting could also have deleterious effects. In his sociological

analysis, Tavuchis (1991) puts forth that a more public forum for apology leads to

more anger, moral indignation, self-righteousness, and harsher punishment.

Further, honor, shame, pride, and social membership come to the forefront more

than if the interaction were private. The interaction also becomes less flexible. The

act itself is more likely to be seen as part of the offender’s character, rather than

simply as an event that occurred. In light of this harsher judgment of others, the

offender is more likely to deny the act to save face or avoid being stigmatized. This

points to questions regarding where an apology might take place in the criminal

justice setting: on a one-on-one basis between the victim and offender, or in the

more public courtroom setting, with the judge, attorneys, and perhaps even a jury

present, along with the victim (Tavuchis, 1991). This analysis brings to mind one of

the primary functions of apology, repairing one’s social identity by presenting the act

as not part of one’s identity, and how a public setting could undo this function.

THEORETICAL EVIDENCE: EXPLAINING

THE PROCESS OF APOLOGY

Restorative Justice

Restorative justice theories and practices have emerged in criminal justice in the last

decade in various forms and from a multitude of sources. As such, a specific

definition is difficult to come by. In what is one of the most comprehensive analyses

to date, Daly and Immarigeon (1998) explain restorative justice as follows:

The concept may refer to an alternative process for resolving disputes, to alternativesanctioning options, or to a distinctively different, ‘new’ mode of criminal justiceorganized around principles of restoration to victims, offenders, and the communitiesin which they live (p. 21).

346 C. J. Petrucci


This definition of restorative justice contains two interesting points that will be

familiar based on the earlier discussion of apology. First, the notion of conflict

resolution is suggested. Second is the inclusion of victims as well as offenders in the

process of criminal justice. These principles of restorative justice parallel the goals of

apology.

To explain how the focus on victims and conflict resolution came to predominate,

Daly and Immarigeon (1998) trace the origins of restorative justice to three

simultaneous processes, often unknown to each other at the time: social movements,

criminal justice system practices, and academia. Social movements included the civil

rights and women’s movements of the 1960s, and the indigenous movements for

sovereignty including the Native Americans in the U.S., the Maori in New Zealand,

and the First Nation in Canada. Taken together, these groups identified the

importance of the victim, heretofore left out of the criminal justice process, and

highlighted over-incarceration. Programs and practices that eventually became

known as restorative justice practices included victim–offender mediation, conflict

resolution strategies such as neighborhood justice centers, sentencing circles, and

most recently, family group conferences. Meanwhile, academics across several

disciplines were developing theories that were synchronous with restorative justice

principles, although considerable variation exists (Daly & Immarigeon, 1998).

What these practices, movements, and scholars can agree upon is that restorative

justice focuses on the harm caused because of the crime that occurred, with an

emphasis on reparation or resolution of the harm. Equally important is a focus on

the relationships of those persons involved in the harm. This assumes a broader

interpretation of players than traditional criminal justice has permitted, widening

the scope to include victims, offenders, their families, and their communities (Daly

& Immarigeon, 1998).

With its focus on the resolution of harm through the restoration of relationships,

then, restorative justice implicitly relies on the importance of emotional processes

that could accommodate the expression of regret, remorse, and forgiveness. Apology

seems an easy fit as a means to forward these processes. Sociologist Thomas Scheff

(1998) merges the theories of restorative justice and a recent legal theory, ther-

apeutic jurisprudence, discussed in the next sections.

Therapeutic Jurisprudence

Therapeutic jurisprudence developed out of mental health law and emphasizes ‘the

law’s impact on emotional life and psychological well-being’ (Wexler, 1998, p. 317),

primarily on behalf of the defendant. Four aspects of the legal process are identified

as key instruments of a therapeutic (or anti-therapeutic) agent in the legal system:

legal procedures, legal rules, the roles of legal actors, and iatrogenic effects of the

process itself (Wexler, 1991).9 Therapeutic jurisprudence, then, puts a value on

the psychological processes experienced by defendants, and how this can impact the

defendant’s experience and outcomes in the legal process. This produces an easy fit

with the apology process.

9For a comprehensive review and analysis of the application of therapeutic jurisprudence, see Wexler andWinick (1996).



For criminal defendants, therapeutic jurisprudence discussions have emerged on

how a defendant’s denial, minimization, and rationalization can work against them

not only in the legal processing of their case, but also in the context of broader

rehabilitation issues.10 Links have also been made with cognitive–behavior relapse

prevention programs that emphasize offenders developing empathy toward victims

and development of problem-solving skills as a primary means of avoidance of future

criminal behavior.11 Therapeutic jurisprudence is one of several complementary

approaches12 that emphasizes the psychological processes of the defendant, as well

as the lawyer’s role in how to integrate a defendant’s emotional considerations in the

legal setting. The process of a meaningful apology, if appropriately handled, fits

easily within the tenets of the therapeutic jurisprudence approach, and could be a

pivotal structure for defendants at the plea stage as well as the post-conviction

rehabilitation stage.

How defendants plead can be central to later sentence reductions (Winick,

1999). Defendants who are willing to demonstrate acceptance of responsibility

can have the combined gain of the possibility of a reduced sentence, and minimizing

their future involvement in a similar crime by directly addressing ostensibly causal

factors. Convincing participation in a rehabilitation program and apology are both

ways that offenders can show acceptance of responsibility (Winick, 1999). Con-

tinued denial on the part of defendants, however, effectively eliminates any chance

appropriate defendants may have for this sentence reduction. A genuine face-to-face

apology has the potential to work through this denial, as an important first step

toward offenders taking responsibility for their actions.

Scheff’s Theory (RTJ): Merging Restorative Justice

and Therapeutic Jurisprudence

Scheff (1998) expands his theory of emotions, posits that therapeutic jurisprudence

can provide a much-needed model to restorative justice, and refers to the combina-

tion as RTJ (p. 97), with apology as a primary component.

Through his observation and analysis of community conferences in Australia,

Scheff (1998) identifies two types of reparation: material and symbolic. Materialreparation is the result of a negotiated agreement between the victim and the

offender. Symbolic reparation, clearly the more important of the two, occurs as a

10For a discussion of the psychological impact on domestic violence offenders, see Simon (1995); for sexoffenders, see Wexler (1993) and Winick (1998). For an in depth discussion of the role of criminaldefense attorneys and use of post-offense rehabilitation as a means to sentence reduction, see Winick(1999).11For a discussion of relapse prevention planning in the context of therapeutic jurisprudence, see Shiffand Wexler (1996) and Wexler (1999).12Preventive law is an example and is being merged with therapeutic jurisprudence (for a discussion ofpreventive law, see Hardaway, 1997; for a discussion of the merging of preventive law and therapeuticjurisprudence, see Stolle, Wexler, Winick, & Dauer, 1997). Preventive law is similar to preventivemedicine in that lawyers are encouraged to conduct ‘legal check-ups’ with the purpose of minimizinglitigation by planning ahead. A therapeutic jurisprudence approach within preventive law furtherencourages lawyers to consider the psychological and emotional well-being of clients during this planningprocess. While lawyers are not expected to be therapists, skills such as acknowledging a defendant’s denialand its affect on the defendant’s later choices are encouraged (Stolle et al., 1997; Wexler, 1998; Winick,1999).

348 C. J. Petrucci


result of the direct communication between the victim and the offender and hinges

on social rituals of respect, courtesy, apology, and forgiveness. The core sequence is

the mechanism by which symbolic reparation occurs. During the core sequence, the

offender must genuinely express shame and remorse (and this includes an apology),

which then allows the victim to forgive the offender. Scheff (1998) goes on to

argue that this core sequence assures that the offender will accept responsibility,

which leads to the community’s acceptance of the offender. This reacceptance by

the community is hypothesized to lead to decreased chances of recidivism

(Scheff, 1998). This analysis relies heavily on social bond theory (Scheff, 1997).

Through his merging of sociological and criminal justice theories, and observation

of criminal justice practices, Scheff has probably the most carefully constructed

theoretical approach that incorporates apology as a key element that also has a basis

in practice.

Braithwaite’s Theory of Crime, Shame, and Reintegration

Australian criminologist John Braithwaite believes that juveniles can be turned

around from a life of crime through involvement in carefully orchestrated ‘reinte-

gration ceremonies’ that foster occurrence of ‘reintegrative shaming.’ Apology is a

critical piece within the shaming process. Braithwaite’s concern is that stigmatiza-

tion becomes a cause for continued involvement in crime. The foundation of his

theory is that shaming the harmful act while respecting the individual will foster

reintegration and avoid stigmatization. With reintegration, offenders have an

opportunity to simultaneously take responsibility for their behavior, experience

and express their shame in the presence of the victim(s) if possible, often in the form

of apology, and also have sufficient social support present while doing so. These

factors combine to allow the offender’s reintegration to occur through the emotional

and cognitive processes of shame and forgiveness, as well as more tangible elements

of restitution, compensation, or appropriate services (Braithwaite, 1998;

Braithwaite & Mugford, 1994). Braithwaite discusses the use of apology as part of

reintegration but no studies using his theory that focus specifically on apology are

available (Braithwaite, 1989).

The Process of Apology for Offenders—Acceptance

of Responsibility

Acceptance of responsibility has been shown to be central to the process of apology for

offenders as well as being of paramount interest at the sentencing stage. This warrants

a closer look at how acceptance of responsibility occurs and possible results. Goffman

(1971) hedges somewhat on inclusion of responsibility in apology, and emphasizes

‘embarrassment’, ‘chagrin’, ‘self-vilification’, and an understanding of the proper

conduct. More recently, however, scholars require an acceptance of responsibility for

apology to be viewed as effective enough to elicit forgiveness (Abel, 1998; Scher &

Darley, 1997; Schlenker & Darby, 1981; Tavuchis, 1991; Wagatsuma & Rosett,

1986). This concern for responsibility is balanced against concerns for liability issues,

as practitioners and social scientists’ focus on the potential for repaired relationships

and conflict resolution (Tavuchis, 1991; Wagatsuma & Rosett, 1986).



For legal actors, this acceptance of guilt has been one of the leading objections to

the use of apology at pre- as well as post-disposition stages because it could

circumvent current procedures such as assumed innocence and plea bargaining

(Tavuchis, 1991; Wagatsuma & Rosett, 1986) and, outside the purview of federal

sentencing guidelines, could result in harsher punishment. A similar concern in

product liability cases is an increase in punitive damages if responsibility is clearly

stated (Wagatsuma & Rosett, 1986). A second concern for the use of apology is that

it would be used by defendants solely as a manipulation for a lesser sentence

(Tavuchis, 1991; Wagatsuma & Rosett, 1986). How is it that concerns for

responsibility simultaneously lead to contradictory assumptions of more punish-

ment and less punishment?

These issues suggest two things about apology: first, that the effects of apology

must be considered separately as part of a process and as an influence on outcomes;

and second, that apology can mean very different things depending on where one is

located in the setting (defendant or victim), and whether the one apologizing is an

individual or a representative of a larger entity. The theory of social conduct

(Weiner, 1995) can explain the role of responsibility in the process of apology as

well as its influence on outcomes.

Social conduct theory (Weiner, 1995) takes a careful look at responsibility from

an inter-personal perspective. According to the theory, the sequence of the judg-

ment process is thought–affect–action. For purposes here, what a jury or judge

thinks about the offender (whether the cause of the crime is perceived as controllable

and whether the offender is inferred as responsible) influences how one feels toward

the offender (affect), which then influences an outcome (i.e., punishment). The

more controllable the cause is perceived to be, the greater the responsibility that is

attributed to the offender. Higher levels of responsibility determine more negative

affect by the judge, which then results in greater punishment. This would suggest

that accepting responsibility would result in more punishment, yet research findings

suggest just the opposite: accepting responsibility often results in less punishment.

How can this be explained? Several experimental studies have found that by

accepting responsibility through an apology, anger is lessened, while responsibility

may be held constant. Less anger results in less punishment (Bennett & Earwaker,

1994; Darby & Schlenker, 1989; Gonzales et al., 1994; Holtgraves, 1989; Scher &

Darley, 1997). This points out what is most interesting about social conduct theory:

that affect or emotion is a more proximal determinant of action than cognitions

(e.g., perceived controllability and responsibility inference) (Rodrigues & Lloyd,

1998; Weiner, 1995), rendering how responsible a person is judged to be as a

secondary influence on punishment. A fear of the powerful influence of emotion is

likely a partial explanation of legal critics’ view that apology is a manipulative device.

In the case of a lack of acceptance of responsibility or the absence of apology, the

anger experienced by a judge or jury could result in harsher punishment. Yet, in the

case of acceptance of responsibility through apology, anger could be lessened,

resulting in less punishment. A further complexity is revealed in another study,

which found that subjects who were more angry exhibited more punitive attribu-

tions; however, being accountable to some outside source attenuated punitive

responses, regardless of anger (Lerner et al., 1998). Thus, a judge having to answer

to someone, as some judges must eventually do through election, acts as a regulator

on severity of punishment. This may explain the more severe punishments called for

350 C. J. Petrucci


by politicians, who are not directly accountable to anyone, and the more moderate

punishments determined by the judiciary, who are more directly accountable.

The theory of social conduct, then, explains how acceptance of responsibility can

lower punishment, as well as keeping the severity of punishment in check. An

additional dimension of an individual versus an organization accepting responsi-

bility through apology is offered in a study of the Navy Tailhook scandal (McGraw,

unpublished paper on file with author). Perceptions of responsibility did influence

punishment; however, individuals who accepted responsibility were viewed more

positively than when an organization accepted responsibility. In fact, negative effects

were evident when an organization accepted responsibility. This collective view of

organizational responsibility resulted in a greater perceived responsibility, and

greater punishment was levied upon organizations versus individuals (McGraw,

unpublished). When the offender accepting responsibility was an individual, those

who apologized were found to be equally responsible for the harmful act as before

their apology, but were still given less punishment13 (Bennett & Earwaker, 1994;

Darby & Schlenker, 1989; Gonzales et al., 1994; Holtgraves, 1989; Scher & Darley,

1997). Thus, whether the person apologizing is an individual or a representative of

an organization could impact how apology is viewed.

The Process of Apology for Victims

In the context of criminal justice and apology, attribution theory (Weiner, 1992) has

potentially valuable applications for understanding the process and benefits of

apology for victims. A victim of a crime is very likely to go on a causal search to

understand ‘why this happened to me.’ Attribution theory attempts to explain why

an event occurred, and to link the cause (or attributions) to one’s later expectations

of behavior. It is considered a theory of motivation in that how one attributes the

causes of one’s behavior can affect one’s later motivation in similar circumstances.

The heart of the theory lies in its three causal dimensions: locus (internal/external),

stability, and controllability, and their relationship to expectancy of success, emo-

tions, and actions. For example, in the case of locus, if one attributes failure to an

internal cause (versus external causes), this has been found to lead to lowered self-

esteem and less pride. Stability has been found to have a direct effect on one’s future

expectancy of success (or failure) for a particular task, and has been linked to one’s

hopefulness or hopelessness. Controllability has been linked to feelings of shame,

guilt, anger, and pity and to issues of responsibility (Weiner, 1992, 1995).

Attribution theory then provides a possible explanation of the cognitive and

emotional processes that are triggered for victims through the process of apology,

moving them from negative self-attributions to positive ones. Initially, a victim may

make negative attributions through self-blame. Victims may misattribute the cause,

feeling responsible (or believing that one had control) for the crime happening, or

the victim may see the cause of the crime as characterological, or internal and stable.

13To explain this, Weiner uses correspondence inference theory (Jones & Davis, 1965), which states thatthe negative act committed is linked with the perception of the person who committed the act. In otherwords, a harmdoer is viewed negatively by the person harmed because the negative act is attributed to thedisposition or personality of the harmdoer. By apologizing, the person harmed no longer makes this link aseasily about the harmdoer. The harmdoer then can be viewed as behaving less intentionally and can beseen in a more positive light (Weiner et al., 1991).



A face-to-face apology by the offender could potentially alter these self-attributions

to a more positive or neutral stance by clearly explaining why the event occurred.

For example, a victim learning that it was not within their control, thus, they are not

to blame (controllability and locus); that the cause was by chance (unstable), so they

do not have to expect that it will happen again in the future, could enable the victim

to avoid feelings of hopelessness and increase their self-esteem (Weiner, 1992). In

other words, an apology would place the responsibility of the act on the shoulders of

the offender.

Victims may also have natural feelings of aggression toward their offenders.

Referring back to the theory of social conduct, an apology could potentially reduce

aggression by lessening anger, and in so doing could assist victims in moving on from

the negative feelings associated with the criminal incident. It was found that as harm

increased, victims felt more strongly that an apology was necessary. A more complex

apology was also required with more severe harm. For the victim, an increase in

harm also created more aggressive feelings towards the offender. An apology

reduced these aggressive feelings in victims, and improved their general impressions

of offenders (Ohbuchi, Agarie, & Kameda, 1989).

Putting apology in context, the process allows the victim to see ‘the truth or an

accurate view of social reality’ (Tavuchis, 1991, p. 57) that affirms that the offender

understands the wrong that occurred, so that the person offended can then believe

that the offender is sorry and offer forgiveness (Tavuchis, 1991). Socio-legal studies

posit that victims are seen to be in control of the process of apology as well as the

final outcome by their ability to withhold or render forgiveness. It is up to them

whether to allow offenders back into the ‘moral community.’ Victims are thus

empowered by apology through their ability to control the remedial process as well

as its outcome (Abel, 1998).

CASE LAW EVIDENCE: APOLOGY IN THE

CRIMINAL JUSTICE SETTING

Apology is not a familiar concept in the law.14 As much has been written on what an

apology cannot accomplish in the legal setting as what it can.15 For example, an

apology cannot be used as a defense after an assault and battery has occurred.16 It is

interesting to note, however, that in civil law, legal analyses are emerging that

14For example, the 1998 edition of Words and Phrases has no listing under the word ‘apology,’ although itdoes list ‘excuses’ and ‘justifications’.15On the civil side, apology cannot be considered as an affirmative remedy in civil rights actions because itis not believed to provide a sufficient remedy to the situation (Tussey, 1978). In fact, an apology is seen as‘humiliating’ and ‘punitive’ to the harmdoer, and meaningless to the victim because it does not providedirect compensation. An apology cannot be used as evidence of liability unless a clear statement ofnegligence is made (Rehm & Beatty, 1996). Where apology can be used is in defamation cases where itcan have a role as a form of retraction, and as evidence of mitigating circumstances. For example, in thecase of defamatory statements, an apology can be used to reduce or eliminate punitive damages because itsuggests the reduction of malice (Wagatsuma & Rosett, 1986) (50 Am.Jur.2d, Libel and Slander, § 407,specifically Chretien v. F.W.Woolworth Co., 1964), in which an apology during the incident did not reduceresponsibility, but did reduce damages). Shuman (2000) argues for the use of apology in a jury’sdetermination of punitive damages in defamation cases because an apology is normative and ought to beconsidered on a case-by-case basis, depending on the sincerity of the apology offered.166 Am.Jur.2d, Assault and Battery, § 146; see Seigel v. Long (1912), in which an apology offered after anassault and battery occurred did not reduce or excuse the assault and battery in a civil case.

352 C. J. Petrucci


advocate the use of apology as a means to reduce the occurrence of litigation (see

Cohen, 1999, and Shuman, 2000, for examples of this).

Apology has surfaced in criminal law under two sections of the federal sentencing

guidelines: to establish ‘acceptance of responsibility’ and ‘mitigating circumstances.’

If either of these is established, a defendant’s sentence can be reduced. This then

influences the severity of the sentence, for example, the amount of required prison

time can be reduced. While an in-depth analysis of case law is beyond the scope of

this article, brief mention will be made of cases involving apology under these two

components of the sentencing guidelines. It is notable that, again, most demonstrate

how apology cannot be used rather than how it can.

Acceptance of responsibility can reduce a sentence by up to three ‘levels,’ and has

been carefully defined in the guidelines. Most notably, a defendant must admit guilt

early in the process of investigation and must cooperate with the investigation.17 An

apology without admitting guilt does not constitute acceptance of responsibility

(U.S. v.Williams, 199118). Moreover, the timing of apology intertwined with when a

defendant admits guilt has emerged in a handful of cases. Acceptance of responsi-

bility was not deemed appropriate under the following circumstances: when a

defendant apologized immediately upon arrest, but did not show sufficient remorse

and ‘moral responsibility’ in the apology (U.S. v. Gallant, 1998); in the case of a

defendant who absconded prior to apology and a timely guilty plea (U.S. v.Thompson, 1996); when a defendant apologized after the pre-sentencing investiga-

tion report had been prepared (pre-conviction) (U.S. v. Easter, 1995); when a

defendant submitted a written apology immediately upon his conviction (U.S. v.Otis, 1997); following an apology in open court at his second sentencing hearing,

and with a recommendation for reduction based on acceptance of responsibility in

the presentence report, the defendant still did not receive the reduction because he

did not plead guilty until three months into the investigation (U.S. v. Sawyer, 1999);

and, when the apology occurred at the defendant’s second trial, but he claimed

innocence throughout his first trial (U.S. v. Griffin, 1998). Conversely, a defendant

who apologized in open court, expressed remorse, and admitted his criminal

activity, despite it being at the ‘eleventh hour’, was given the reduction, ostensibly

due to showing remorse (U.S. v. Hill, 1991).

The use of apology as a means to prove mitigating circumstances19 is present in

even fewer cases. In a case in which a police officer sexually abused what turned out

to be the ‘wrong’ person (i.e., not the person who had struck the police officer), the

police officer argued for mitigating circumstances because he apologized to

the victim upon learning of the mistaken identity. The police officer did not receive

the downward departure (U.S. v. Volpe, 1999).

This indirect approach to apology within the criminal justice setting is not always

the case. For instance, in Japan, an acceptance of responsibility and an apology are

expected at the arrest phase, largely because there is not an assumption of

17Acceptance of responsibility is determined by one or more of the following: a defendant ‘truthfullyadmitting’ and not denying the offense; voluntary termination from the criminal act; voluntary payment ofrestitution prior to conviction; prompt surrender to authorities; voluntary resignation from an office orposition held; rehabilitative efforts prior to conviction; timeliness in accepting responsibility; see 18U.S.C.S. Appendix § 3E1.1 (1999).18In this case, a written apology without admitting to the offense was admitted into evidence. The apologyinitially served as sufficient to establish acceptance of responsibility, but was overturned on appeal.19See 18 U.S.C.S. Appendix § 5K2.0 (1999) for definition and explanation of mitigating circumstances.



innocence. Concomitant with this is a much lower rate of cases adjudicated in court.

Some have linked the early acceptance of responsibility through apology as an

important contributor to Japan’s markedly lower crime index (Castberg, 1990;

Haley, 1998).

EMPIRICAL EVIDENCE: WHY APOLOGY SHOULD

BE CONSIDERED AS AN ADDITIONAL COMPONENT

IN THE CRIMINAL JUSTICE SETTING

This inquiry began based on a New Zealand study and studies in Japan that

suggested that recidivism might be reduced for offenders who apologize. An analysis

of the elements of apology suggest factors to explore that explain how this might

happen: expressing remorse, accepting responsibility, offering compensation, pro-

mising to avoid the same behavior, and a visible display of other emotions such as

shame and sadness, all of which might contribute to improved relationships and

forgiveness. An effective apology accomplishes several things: an accepted social

norm that has been broken is identified; the social identities of the actors involved

are repaired; acceptance of responsibility and an expression of regret have been

clearly communicated; forgiveness has occurred; a step toward conflict resolution

has been made; and often punishment has been reduced, ostensibly because harsher

punishment may not be deemed necessary.

Restorative justice theories, therapeutic jurisprudence, and Scheff’s (1998)

theory merging restorative justice and therapeutic jurisprudence place apology in

a position of paramount importance, as does Braithwaite’s (1989) theory of crime,

shame, and reintegration. Moreover, apology has the potential to benefit both

victims and offenders. The theory of social conduct posits how offenders who accept

responsibility will likely receive less punishment rather than more. Attribution

theory explains how apology could help victims make more positive self-attributions

after the experience of crime. Finally, despite no formal place for apology in the legal

environment, it emerges in the courtroom (usually unsuccessfully) as a means to

reduce sentences, and is a topic across criminal justice theories and models.

Therapeutic jurisprudence provides a framework within the legal setting that out-

lines how lawyers and defendants could integrate apology at the plea and post-

conviction phases. With this background in place, the discussion will now turn to

further evidence for why apology ought to be considered as an additional component

in the criminal justice system.

Offenders Want to Apologize, and Victims Desire Apology

The entire discussion of apology is meaningless if victims and offenders are

unwilling to participate in it. This does not appear to be the case, however. Several

studies have found that offenders are interested in apologizing. With an increased

sense of responsibility and when the victim experiences serious consequences,

offenders may be more motivated to apologize to the victim (Schlenker & Darby,

1981). This suggests that if offenders realize the harm they have caused, and feel

responsible for it, they may be motivated to apologize to the victim.

354 C. J. Petrucci


The desire to apologize on the part of the offender is further supported by an

unusual study in Amsterdam that analyzed apologies given on a television show

entitled I Am Sorry. People who desired to apologize to someone were brought on

the show, with the process of apology performed on camera. The study found that

the desire to apologize for regretted actions (as opposed to a regretted inaction)

occurred early on—often the same day (Zeelenberg, van der Plight, & Manstead,

1998). While these real life scenarios probably did not deal with issues concerning

the law, they did deal with a regretted action, or something that someone did, which

is generally the case in criminal justice. At the least, this study highlights a strong

desire to apologize on the part of the person committing a regretted act.

In the U.S., however, it is only recently that offenders have been given a venue to

speak directly to the victims within the criminal justice process itself, and then only

after a conviction has been made. In their national survey, Umbreit and Greenwood

identified 289 such victim–offender mediation programs in the United States. The

offenses most commonly referred to victim–offender mediation were vandalism,

minor assaults, theft, and burglary (Umbreit & Greenwood, 1999). It is also

interesting to note that often offenders have taken this opportunity to apologize,

though an apology is not required. In an analysis of victim–offender mediation

programs in three states, Umbreit and Coates (1992) found that 9 out of 10

offenders listed ‘apologizing to the victim’ as one of the four most important issues

in the mediation process. The other three areas were negotiating restitution, paying

restitution, and telling the victim what happened.

Both victims and offenders valued apology in an evaluation of family group

conferences (FGCs) in twelve districts in Minnesota. Youth offenders had to admit

to the incident in order to be eligible for an FGC. The types of crime committed

included primarily shoplifting (62%), other property crimes, and assault (Fercello &

Umbreit, 1998). Based on 455 interviews conducted up to 90 days after the FGC

with victims, offenders, and supporters who were present, apology emerged as an

important element within the FGC process. When asked why they chose to

participate in an FGC, offenders cited apology as the most common reason

(30%), followed by taking responsibility (26%). Another interesting finding invol-

ving apology resulted from analysis of pre- and post-test surveys of victims and

offenders. Of note, both victims and offenders felt an apology was important before

the FGC (80% and 91% respectively), with a greater number of victims and

offenders stressing the importance of apology when asked after they attended the

FGC (88.6% and 99.7%, respectively). Once they attended an FGC, almost 100%

of the offenders believed that an apology was ‘important’ or ‘very important’

(Fercello & Umbreit, 1998). This is strong evidence that apology has a place of

importance in the criminal justice process from the perspective of victims and

offenders.

Will victims reject apologies? Studies suggest that they will not, except in rare

cases (Bennett & Dewberry, 1994; Bennett & Earwaker, 1994). An offender’s

responsibility and severity of the incident were found to influence the desire to reject

an apology (Bennett & Earwaker, 1994). Two reasons for victims not rejecting

apology were that victims who rejected an apology had more negative attributions

toward themselves than those who did not, and victims were found to be concerned

about damage to the relationship, and accepting an apology, even if it was viewed as

insincere, was seen as a means to maintain the relationship. Thus, though victims



might desire to reject an apology, they seldom did (Bennett & Dewberry, 1994).

This study suggests a strong social norm that encourages victims to accept an

apology, even if it is not a convincing apology. The question then becomes, is the

victim who accepts apology, regardless of its strength, better off personally than

the victim who rejects an apology? Bennett and Earwaker (1994) suggest that anger

in victims is dissipated even when the offender was viewed as responsible. So if

victims desire to be less angry, there may be more to be gained by an apology then

not. Severity of the outcome, however, did have a differential impact on the anger of

the victim, with anger dissipating less with increasing severity of an incident

(Bennett & Earwaker, 1994). Clearly, not all victims will desire an apology, nor

see any benefits to it. In these circumstances, or when a victim–offender pairing

cannot be made for any reason, the offender apologizing to a surrogate victim may

be worth pursuing.20

Directly Addressing the Harmful Act

as the Link to Reduced Recidivism

The concept of allowing offenders to directly address the harmful act they

committed at some point during the adjudication of their case might seem ridiculous

to mention, except that in most instances, it does not occur.21 Offenders do not have

to testify, seldom face their victims, and can proceed through the entire adjudication

process without discussion of their actions or motivations except in private com-

munications with their attorneys. Whatever punishment is ordered is equally

distanced from the crime committed. It is interesting to note that in direct contra-

diction to this, restorative justice, therapeutic jurisprudence, Scheff’s RTJ, and

crime, shame, and reintegration theories all share an emphasis on specifically

addressing the harm that occurred from the perspective of offenders and victims,

and it is through this direct process that each moves toward the goal of attitude and

behavior change. Based on this direct connection between those involved in a

criminal act and the criminal act itself, each of these theories postulate that future

crime will be deterred because the specifics around the harmful act such as

responsibility, identity, and conflict resolution, have been made known and handled

in some way. In theory at least, apology is an easy fit within these theories, allowing

this direct connection to occur between offenders and victims specifically about the

harmful act. From a specific deterrence perspective, this seems an effective means to

avoid the particular behavior of the harmful act by exposing it somehow, as opposed

20An offshoot of victim–offender mediation are programs in which victims share their experiences withinmates in a classroom setting. See Stassen-Berger (1993) for description of this type of program at RikersIsland, New York. Other victim–offender mediation programs conduct surrogate pairings. Offenderswhose victims are unwilling to participate are paired up with trained counselors acting as victims. This isdone as a means to role-play an exchange between the offender and a ‘victim.’ Victims who do not havethe benefit of knowing who the offender was may also be paired up with a trained counselor acting as theoffender for a similar type of role-play. In one innovative program, victims who did not know theiroffenders were paired up with offenders who did not know their victims, each acting as the ‘surrogate’ forthe other. Pairings were made based on similar types of crime; that is, a victim who had a loved onemurdered was matched up with an offender who committed murder. Trained counselors were presentthroughout the process.21The recent trend of drug courts, domestic violence courts, and community courts are an exception.

356 C. J. Petrucci


to interventions based on the broader sociological theories of crime, such as socio-

economic status, or merely inhibiting someone’s freedom through incarceration,

with no attention given to the harmful act itself. While the logic in these three

theories is enticing, studies are needed to make any substantive conclusions.

To that end, the very act of apology based on its elements and accomplishments,

if they occurred, potentially provide a more satisfying experience at the least than the

existing criminal justice procedure might, and could potentially reduce later

criminal activity if a link between dealing directly with a harmful act and later

behavior change is drawn. While no direct evidence of this exists, indirect evidence

suggests hopeful results. The absence of apology was looked at in one study, and it

found that negative feelings for both victims and offenders continued, as did a sense

of hostility, when apology was not offered (Gonzales et al., 1994). When compared

with situations in which no apology was given, dealing directly with a harmful act

through apology resulted in the offender being perceived more positively. The

harmdoer’s social identity was restored due to more positive moral evaluations and

being perceived as behaving with less intentionality (Ohbuchi & Sato, 1994). The

question remains as to what impact, if any, this may have on the offender’s

cognitions and behavior. One study suggests that the act of communicating a

message to a listener can alter the speaker’s thoughts to conform to what he says

(Higgins & Rhodes, 1977). Applying this to apology, an offender who does not want

to apologize but who does may ultimately ‘believe’ what he says by the act of saying

it.

Legal theorists also emphasize that it is a combination of the components of

apology that makes it meaningful. Acceptance of responsibility through an apology,

as well as an offering of compensation, are considered key components leading to

forgiveness; and it is forgiveness that acts as the link to an offender’s lowered

recidivism (Wagatsuma & Rosett, 1986). Scheff (1998) refers to this as the process

of symbolic reparation.

New Zealand’s use of family group conferences as a means to sentence juvenile

offenders suggests that apology has the potential to be as effective as the social

psychology literature might propose. As previously mentioned, after 3 years youth

who did not apologize were three times more likely to be reconvicted than offending

youth who did apologize (Morris & Maxwell, 1997). Apologies were given by

youth that committed serious crimes, so this is not merely a reflection of type of

crime. Further, for youth that were persistent recidivists, victim satisfaction was

least likely to have been reported. While this study does not conclusively address the

role of apology, it suggests that sincere apologies may be one component in a

powerful mechanism in later behavior of offenders. Also suggested is the importance

of how the apology is viewed by the victim. What is not known is the cognitive and

emotional process that links an apology with an offender’s later reduced recidivism.

It may be that the apology is a proxy for a cognitive or emotional change within the

offender, with a complex trigger mechanism, like that suggested by attribution

theory. Attribution theory (Weiner, 1992) will be used to suggest how an apology

might affect an offender’s cognitions and emotions.

The quandary in applying attribution theory to offenders is the question of an

offender initiating the causal search to start out with; a causal search is only begun if

a person asks ‘why’. Many offenders do not embark on this search. A critical

juncture then is to initiate this causal search for offenders. Studies suggest that if



offenders realize the harm they have caused, they are motivated to apologize.

Anecdotal evidence suggests that when offenders are confronted by victims in a

face-to-face interaction, they come to realize the harm they have caused, often for

the first time. With this realization of harm caused comes the question ‘why did I do

this?’, initiating the causal search (a causal search is initiated when an event is

important, negative, or unexpected) (Weiner, 1992). When an offender is con-

fronted by the victim’s story, as may occur in an apology interaction, this causal

search would likely be initiated for any of these reasons. An offender might then

make similar negative self-attributions as the victim did prior to apology. At its

simplest level, an offender might see himself as a ‘bad person’ for having caused this

act.22 This suggests a stable attribution being made, which is linked to hopelessness.

The offender may also feel shame regarding the act, which is linked to self-

attributions of uncontrollability.

The emotional exchange postulated in apology may help the offender feel less

negative towards himself, and may help him separate the harmful act from his

permanent identity. This may reverse the stable self-attribution to an unstable one,

allowing the offender to be hopeful about his own abilities to participate in some-

thing other than harmful acts. This hopefulness may also be tied to an offender

seeing his acts as controllable. Controllability has been linked to feelings of guilt,23

which can act as a motivator to do better next time, and thus acts as an inhibitor

toward later criminal activity. Herein may lie the key to reduced recidivism: the

offender’s self-attributions.

This analysis makes several theoretical jumps, the most obvious being that how

an offender feels or thinks will directly influence his behavior. Clearly, other

important factors contribute to criminal activity. Apology may indeed be a proxy

for a host of other perhaps more important variables; the question becomes which of

these variables can be measured within the means of social science. Future research

may find that offenders who apologize may be inherently different than those who do

not, and it may be this unknown ‘third variable’ that contributes more to reduced

recidivism than apology. Nor is it being suggested here that apology, in and of itself,

is the primary mechanism in behavior change, or that apology should be made a

mandatory component in criminal law. Still, the evidence presented here suggests

that apology may be a prudent starting point that can be observed and researched,

and ultimately provide further insights into useful intervention strategies in criminal

justice.

CONCLUSION

Restorative justice, therapeutic jurisprudence, and shame and reintegration theory

all share several key concepts crucial to apology. Each values the importance of

shared emotion, face-to-face interaction between victims and offenders, and the

inclusion of victims in the criminal justice process; and each directly addresses the

22In this context, it is being suggested that the emotions may precede the cognitions in the attributionprocess, much as appears to be the case in social conduct theory. This order requires further study.23The differences in how Weiner and Scheff define shame and guilt is beyond the scope of this article.Note that Weiner’s use of guilt and not shame does not contradict the prominent position Scheff gives toshame.

358 C. J. Petrucci


harmful act which brought the offender to the attention of criminal justice in the first

place. Typically, the corrections process has essentially ignored the criminal act

itself, except to the extent that it is used for sentencing (i.e., offenders are not

required to apologize, make amends, replace the stolen item, etc.). If the corrections

process becomes one in which offenders are specifically accountable for their

harmful acts, gains might be made in reducing future criminal behavior by virtue

of offenders becoming aware of their own role and responsibility in these acts.

These goals mirror the elements and functions of apology. The key components

of apology—an expression or remorse or regret, acceptance of responsibility,

compensation, and a promise to avoid the behavior in the future—if performed

through a face-to-face interaction that is believable and communicates emotion—

could provide what Scheff refers to as the core sequence that allows the victim to heal

and the offender to take responsibility for the harmful act, be accepted back into the

community, and to thus have less reason to commit future crimes. Theories aside,

how different might the experience of victims be if they could have their feelings

validated by an offender genuinely accepting responsibility, and acknowledging the

harm caused? How might some offenders feel to be given the opportunity to offer a

genuine apology in the presence of the person they have harmed?

What is compelling is that when given the opportunity, and ostensibly without

provocation, offenders are apologizing to victims, and victims are valuing apology.

By directly addressing the harmful act, apology may help offenders to more

immediately realize the harm they have caused. This seemingly simple realization

may be a key factor inhibiting later participation in criminal activity. Benefits of

apology to victims include being empowered by the process of apology, as well as

dealing with the negative feelings concomitant with the experience of a harmful act.

For offenders, besides the inherent value of realizing one’s responsibility for the act,

offenders may be perceived and may perceive themselves more positively if they

apologize. Finally, the process of apology, as explained through attribution theory,

may be a critical link for offenders as they realize the harm they have caused, make

negative self-attributions, then, through an apology, reverse these attributions to

positive self-attributions. This could in turn contribute to a motivation to ‘succeed’

(not offend) rather than ‘fail’ (reoffend).

Still, we cannot blindly go forward, without consideration of the possible

deleterious effects of apology, particularly in the criminal justice setting. An

offender’s good or bad reputation, bias based on language style and ‘blue-collar’

versus ‘white collar’ crime, and apology in a public forum could all undermine the

effectiveness of apology. Gender effects may also exist, with women being more

willing to apologize as a means to repair the relationship, and men being motivated

to apologize in order to control the situation. The possible misuse of apology as a

means of manipulation in the court process must also be considered, although in the

cases presented here this has not occurred. These concerns must be kept in mind in

future studies of apology.

Apology is in its infancy as far as actually being applied in criminal justice and civil

settings. Therapeutic jurisprudence analyses provide a framework for how lawyers

can integrate apology, if sentencing conditions permit it. As our understanding of

apology develops, studies must test and refine theories supporting apology in

naturalistic designs. It is only by examining apology in its actual context that we

will be able to determine its relationship to reduced offending (or not). The next task



will be to determine whether it is apology itself or some other closely related variable

that is associated or causally linked with reduced recidivism. Preliminary findings

suggest that there is much to be gained and little to be lost by providing a forum in

which face-to-face apology could occur within the criminal justice process. The

stakes are high in criminal justice, in terms of human costs as well as fiscal demands.

There is much to lose if more effective means are not incorporated into criminal

justice interventions. This article argues that the research evidence suggests that

apology is an important method that has the potential to lead to reduced recidivism

among offenders, and empower victims.

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