Justice means having to say you're sorry

On December 5, Robert Latimer, the Saskatchewan farmer who killed his disabled daughter to spare her suffering, had his application for day parole rejected by the National Parole Board. A critical factor in the board’s decision: Latimer’s dogged insistence, even after seven years in jail, that he had done nothing wrong by asphyxiating his 12-year-old daughter Tracy -- that, in fact, he had done the right thing.... “The Board was struck by the lack of insight you have developed in your seven years of incarceration,” NPB vice-chairperson Kelly-Ann Speck told him at the conclusion of his hearing.

This will strike many as unjust. He has already been punished once for his acts; now it seems as if he is to be punished again for his thoughts. It’s enough that you have possession of his body, his supporters cry out: must you have possession of his soul as well? The Canadian Civil Liberties Association, among others, has petitioned the federal Justice and Public Safety ministers to appeal the decision, arguing there was little risk of Latimer committing the same crime again. “The board appears to require that he engage in a ritual of contrition,” CCLA general counsel Alan Borovoy wrote, arguing “its role is not to brainwash the prisoners but rather to assess whether they would pose a risk to the safety of society.”

But Latimer’s was hardly the only case where this principle applied. The following week saw the sentencing of Conrad Black to six and one-half years in jail on charges of fraud and obstruction of justice. Once again, the presence or absence of contrition on the part of the convicted man was a material factor in the decision, and once again the convicted man refused to offer it.

The cases are different in some ways. Latimer admits to the facts of his case, while denying that what he did was a crime, or at any rate that he should be punished for it. Black does not contest the validity of the crime or its punishment, only his conviction of it. What the two have in common is each man’s apparently sincere belief in his own blamelessness.

Moreover, although neither man deliberately seeks imprisonment, as a practitioner of civil disobedience might, each rejected the opportunity, when presented, to lessen his penalty by a display of remorse, for the simple reason that neither honestly feels any. It is greatly to both men's credit that they refused to apologize. And it is greatly to the law's credit that in both cases it held it against them.

The prisoner who confesses to a remorse he does not feel not only betrays his conscience, but shows contempt for the law, since he is in fact lying before it. By refusing the offer of cheap grace, both Latimer and Black do honour to the rule of law, even as they protest at the injustice, as they see it, of their particular cases.

But that does nothing to lessen the law’s obligation to take into account, when fixing the length of his sentence, the prisoner’s state of mind: whether he appreciaties the gravity of the offence of which he has been convicted, or indeed that he has committed any. The CCLA may call this brainwashing if it likes. Another word is “correction.”

It may be that a particular law is unjust, or that a particular court applied it unjustly. But it is not unjust merely because the prisoner himself believes it is. All prisoners believe themselves unjustly used, and 99% of them are wrong.

Conversely, if an injustice has occurred, it is certainly compounded by the imposition of harsher penalties on the prisoner who refuses to repent of crimes he did not commit. But that such penalties are imposed is not itself evidence of an injustice.

If, then, the courts feel that a law is just, and has been justly applied, they have a duty to impose the appropriate penalty. What is appropriate will depend, in part, on its effectiveness -- that is, on whether it leads to changes in behaviour, for which changes in attitudes are the usual prerequisite. We punish a man for having a “guilty mind” in the commission of a crime. But there are times also when we punish him for failing to have a guilty mind -- to impress upon him, and others, that what he did is in fact wrong.

The problem is particularly acute in Latimer’s case. Black’s strongest defenders would not pretend that the crimes of which he was convicted are not crimes. But it is clear that there are a great many people in this country who do not think that what Latimer did was a crime. It is the duty of the law to teach them otherwise. To release Latimer now, in the face of his impenitence, would put public safety at risk -- not because there is any danger of him reoffending, but to the extent that others might be inspired by his example.

Granted, this sounds a little like medieval witch trials. (Throw her in the pond: if she floats, she’s guilty; if she drowns...) But there is no getting around it. The prisoner who refuses to show sincere remorse for the crimes of which he has been duly convicted should be made to serve out the whole of his sentence. The prisoner who shows remorse he does not feel should have his sentence increased, for having perjured himself.