Fascinating Debate Club from Legal Affairs this week

Last fall, around the time Booker was to be argued before the Supreme Court, the fine folks at Legal Affairs were kind enough to invite me to participate with Professor Stephanos Bibas in their Debate Club focused on the question “Can the Court clean up its Blakely mess?”  That debate, which can still be read here, remains relvant six months later (and I must brag a bit by noting that Stephanos and I both suggested that Justice Breyer might have a central hand in creating the post-Booker world).

I bring up Legal Affairs’ Debate Club not (only) to toot my own horn, but rather to spotlight this week’s debate between Professors Richard Bierschbach and Michael O’Hear addressing “Will An Apology Save you From Jail?”  This is a great topic, which is set up at Legal Affairs with this introduction:

If a criminal apologizes for what he did wrong, a judge may shorten his sentence. But according to a recent Yale Law Journal article by Stephanos Bibas and Richard Bierschbach, the apology should play a role in more than just decisions about length of punishment.  A prosecutor perhaps shouldn’t press charges against a petty criminal who shows remorse, and the victims of more serious crimes should be brought face to face with a contrite perpetrator for potential reconciliation.  An apology, they argue, could teach a moral lesson to a criminal and help a community recover after an act of violence. 

No doubt remorse and apology can benefit victims and communities that have been hurt by crime.  But would it be a good idea to relieve a criminal of punishment if he’s willing to say he’s sorry?

In a post-Booker world in which federal and some state judges will have more sentencing discretion, the import and impact of remorse in the criminal justice system is that much more important.  I am very pleased to see Legal Affairs doing another sentencing-related topic, and I encourge everyone to follow this debate.