12/19/2012 12:20 pm ET Updated Feb 18, 2013

'Remorse' for Crime: Must It Be Sincere?

Truth is the North Star of criminal justice, isn't it? Maybe not. Maybe, rather, it is akin to teaching kids that George Washington never told a lie. Deep down, we want kids to believe it, but every adult knows in his heart that it's a myth, something like the Bible's maxim that "the truth will set thee free": also nice but largely untrue -- except maybe in an upcoming world.

The New York Post is not typically known for its incisive, fair or even balanced thinking, but nonetheless it inspires this essay. Alan Hevesi, the former New York State Comptroller, and his campaign manager Hank Morris had each been sentenced in 2011 to four years in prison for their respective roles in a "pay for play" plot, a scheme whereby financial entities were awarded significant amounts of New York state pension funds to invest, basically in exchange for contributing to Hevesi's reelection campaign. Hevesi (full disclosure: he's a former client) was granted parole and released after 20 months. Morris, however, was denied parole, at least for now.

The Post was factually incorrect in reporting the parole board's rationale for denying Morris a quicker get-out-of-jail card (to match Hevesi's). As the Post put it, Morris, during his board hearing, showed insufficient "remorse." In fact, the board's decision actually said that it had accepted Morris' "sincere expression of remorse" but remained disturbed by his "inability to understand his state of mind during his criminal conduct."

Really? You kind of wonder whether the board itself was insincere: It purported to accept Morris' remorse while, at the same time, it inextricably challenged his inability to have understood his conduct in real time, and presumably now. Maybe the Post did get it right, then: The board actually concluded that Morris did lack remorse, meaning that although at the surface Morris did utter the right stuff, the board didn't want to present itself like God at Sinai, thereby rejecting the sincerity of his utterances. How can one be truthful with a parole board if he can't expect truth from it, particularly when the board chooses, for whatever reason, to airbrush its true thinking?

But here's the real thing: The Post took it up a notch, wondering aloud whether Hevesi was simply a "better liar," meaning Hevesi was better able to "communicate" remorse at crunch time, whereas Morris couldn't. And in having used the word "liar" rather than "actor," let's just remember the Post's own tabloid-like biases! We all have biases of some sort, and that's true of the writer, who believes that Hevesi got it right precisely because his statement of remorse was sincere, nothing less.

Or maybe, just maybe, the Post's brain (or is it conscience?) MRI examinations notwithstanding, perhaps Morris didn't truly believe that there was actually something about which to show remorse at all (although that's somewhat hard to believe, given his earlier guilty plea). Assuming remorse was out of the cards for Morris, given that it would have been false for him to express it, in a perfect world Morris probably shouldn't have even tried to show it -- that is, if Shakespeare was the least bit right ("To thine own self..."). Don't we want would-be parolees to speak the truth?

Now there's a thought. It's the same kind of thought expressed in the new Ken Burns documentary, The Central Park Five, where one of the five trial-convicted defendants, Kevin Richardson, claims he spent significant extra time in jail because, although he was later declared innocent by the District Attorney's office itself, he declined to show remorse at the parole board. To him, one supposes, it simply would have been false, much like his (false) confession to the police that landed him in jail in the first place. Maybe, interestingly, given Richardson's earlier experience, he was flatly afraid to express "false remorse." (False remorse -- sort of like "if you can fake sincerity, you've got it made"!)

This discussion is all very nice but highly impractical, no? Wouldn't any lawyer with half a brain counsel a client facing parole, particularly after his appeals had failed, to suck it up and simply profess full-out remorse, despite the client's inner voice that might, in the dark night of his soul, say to him, "I didn't really do anything wrong to warrant my conviction anyway"? However, it is a serious ethical conundrum for a lawyer to so counsel a client, particular if he believes in his client's innocence.

Still, if this is so -- that is, if any worthwhile lawyer, or clergyman or moral advisor of any kind would rightly (and it is probably right) counsel the communication of remorse to one holding the keys to his own cell in his back pocket despite his private protestations of a clear conscience -- what ever happened to the justice system's North Star? Truth, indeed!

Notably, it is not only in the parole hearing context that a false expression of guilt recognition can help "liberate" a defendant. The Supreme Court of the United States has actually approved a defendant pleading guilty while simultaneously protesting his innocence, if pleading guilty, for example, is the only means to escape a death penalty. Likewise, in a number of cases defendants have served substantial stretches of their jail sentences only to then have their convictions overturned on appeal for trial error. They were then allowed to plead guilty, almost as if crossing their fingers while doing so. In exchange they gained a ticket to exit the jailhouse door where, once having passed its threshold on the way out, they publicly proclaimed their innocence with no reprisal. Hasn't the North Star in this circumstance concealed itself once again behind a dark cloud?

So where does all this take us? Would the world look any more favorably on O.J. Simpson if he had flagellated himself with an unrelenting remorse founded upon a punctilio of sincerity for having killed Nicole and Ron? Not a chance (it's still too raw), any more than if Bernie Madoff shined a sincerity flashlight on his own soul and condemned himself to an eternal mantra of "my conduct was inexcusable," wearing a hair shirt while walking on shards of broken glass for the rest of his miserable life for what he managed to do.

While it may seem cynical to say so, at the end of the day, sincere remorse is usually about the personal benefit one gains from giving voice, usually internally, to one's expression of it. However, in the justice system, I'm sorry to say, it's rather about what the remorse -- whether or not one expresses it to courts, parole boards or the like -- accomplishes strategically. Perhaps priests or other clergyman can convince their penitents to be truly remorseful. Lawyers, though, cannot similarly persuade clients; it's not in their job description or capacity. And, frankly, they shouldn't even bother trying. At the end of the day, it simply won't work.

Of course, lawyers can sometimes persuade their clients to be better "actors." And if the "act" makes those clients better people more deserving of the justice system's indulgence, that's all well and good, too, not really because, as a result, they will then become better people, but because their jail terms will likely be shorter.

And that indeed is the North Star -- at least for the lawyer!