Monday, September 20, 2021


            By Phil Reizenstein

          Fall brings to my religion the unseasonal concept of atonement and renewal, something usually associated with spring. There is the new year, followed ten days later by Yom Kippur- the Day of Atonement. In between is a time of introspection. Atonement is what follows remorse for transgressions. 

Federal courts have no problem considering “lack of remorse” as a valid sentencing factor: “In the instant case, the district court did not err in considering Bryant's lack of remorse and her disrespect for the law evinced by her allocution, in sentencing her to a term of imprisonment at the higher end of the Guidelines range. United States v. Bryant, 618 Fed. Appx. 586, 590 (11th Cir. 2015).

While it has been black-letter law in Florida for decades that lack of remorse was not a permissible sentencing factor, the First District en banc has had enough of  that trifling concept, recently holding that since remorse means an expression of desire to rehabilitate, lack of remorse means that the defendant may continue with their criminal ways and should be sentenced accordingly: “ For these reasons, we can no longer embrace the blanket, judge-made rule that when it comes to sentencing lack of remorse or failure to accept responsibility may not be considered.” Davis v. State, 268 So. 3d 958, 965 (Fla. 1st DCA 2019), review granted, SC19-716, 2019 WL 2427789 (Fla. June 11, 2019). The Florida Supreme Court has yet to rule on this issue although the case is fully briefed and was argued in 2019.  Considering the Court’s  new-found enthusiasm for reversing precedent, it is not looking good.

We’ve been down this path before in our country: judges and legal systems punishing defendants for a perceived lack of remorse. In at least one famous instance, the legal system blinked first.

 In May of 1961, Freedom Riders from Alabama rode into Mississippi and entered the “Whites Only” waiting room of the bus station in Jackson and were arrested (after being beaten).

 Parchman State Prison in Mississippi was and is as notorious a prison as there is in the United States. In 1961 prisoners in Parchman  were forced to work on chain gangs.  A Jackson, Mississippi state judge had the bright idea to send the Freedom Riders to Parchman, believing Parchman would put the fear of g-d into the Riders and end the rides. The Freedom Riders had other ideas. They decided to fill up Parchman and sent more buses to Jackson. Once inside Parchman the Freedom Riders began to sing: “More buses are a coming oh yeah.  Better get you ready, oh yeah.  More buses are a coming, more buses are a coming, better get you ready, oh yeah.”

Eight and ten men were placed in cells built for two. The Riders would not keep quiet and kept singing, so the guards threatened to take away their mattresses, which caused the Freedom Riders to sing: “You’re  going to take our mattresses, oh yeah. You’re going to  our mattresses oh yeah. You’re going to take our mattresses, you’re going to take our mattresses, you’re going to take our mattresses, oh yeah.”

Over 300 Freedom Riders were arrested in Mississippi in 1961, and many of them were sent to Parchman, and they never stopped singing. Sometimes a lack of remorse is not a bad thing, even in this season of atonement.

Phil Reizenstein


Anonymous said...

Using the freedom riders as your example to argue against using lack of remorse in sentencing is an easy sell. They are viewed as heroes with a righteous cause. Its easy to "take a stand" with that as your example.

But if you really belive in the principle of taking "lack of remorse" off the table at sentencing, you have to walk the walk for unpopular defendants.

So Phil, you surely believe the January 6 rioters shouldn't be sentenced to a longer sentence if they show lack of remorse, right?

Same thing with the pretrial solitary confinement, right?

Phil Reizenstein said...

Fair comment. It was low hanging fruit. I think remorse and lack of remorse are ephemeral concepts that are hard to actualize in a sentencing process. As to January 6- if I was a judge sentencing a defendant - a scenario as likely as my boyhood dream to replace Roberto Clemente in right field for the Pirates - I would not be concerned about a defendant who did not express remorse for their political beliefs. I would respect that. I doubt I’d punish more severely someone who defended their act in entering the Capitol if I thought they truly believed they were protesting. I would severely punish people who used violence and threats to kill politicians. In other words I view some - just a few- of the people on January 6 as similar to others who have peacefully entered the Capitol and sat in offices and reused to leave. I would not punish those people more severely for lack or remorse. Full disclosure - I was consulted by several protesters in the case so I have a bit of a different/ semi-insider view.
I just finished a sentencing for perjury in Vero beach. In no uncertain terms because of the legality of the convictions I felt very comfortable telling the judge my client was not remorseful because she did nothing wrong. The judge understood the argument and pending appeal and issued a thoughtful sentence that I do not believe took into consideration lack of remorse. I am now fearful based on the 1st DCA case I will no longer be able to do that in the future.

Anonymous said...

My guess is that DOM has a fair bit of remorse about this new format.

Anonymous said...

Rump has taken over this forum. Call the Anti-trust department of the DOJ

Rumpole said...

Just why and how am I taking flak on this?

Anonymous said...

Of course there are cases where lack of remorse should not be considered. For example, beating a person that raped a family member.

Anonymous said...

If the first DCA ever says anything noteworthy on any subject, do you want us to post it to the blog?