Make Amends: Remorseful Confessions and Justice

The confession of evil works is the first beginning of good works. -Saint Augustine

Literature blesses us with sympathetic criminals and history gives us great confessors allowing compassion to overwhelm us with forgiveness.  Yet, when life presents the sympathetic, confessing actor, somehow we stumble.

Two cases recently reported in the press call into question ideas about crime and punishment:

In Massachusetts, a heartbreaking case covered headlines years ago condemning a young man in the press for his rash actions behind the wheel of a car causing devastating injuries to a State Trooper.  She was left with permanent, severe brain damage and she never recovered.  Because he thought it was the right thing to do, the man confessed to his offense and spent more than two years behind bars.  He has since led an admirable life, starting a business and employing 20 people.  After years in a long-term facility for the severely disabled, the Trooper died in 2011.  Despite the earlier guilty plea and jail sentence, the DA has decided to press charges related to homicide.  If convicted, the man will face a possible additional 15 years in prison.

In Florida, another heartbreaking case led to a far different approach and result.  There, a young man, about the same age as the Massachusetts man, killed his girlfriend.  This was not an accident.  Yet, it was not a homicidal rampage either.  Immediately after the shooting, the young man turned himself in to the police, tearfully explaining his actions.  In that case, both families worked to get some level of justice for all involved.  They hired an expert in restorative justice, they pleaded for mercy with the prosecutor, they managed to reconcile an impossible-to-understand death of a young woman and the potential of life in prison for her killer.  In a remarkable meeting where nothing said could ever be used against him in court, the young man explained everything that happened, essentially telling her parents that she begged him not to shoot and for reasons that no one will ever comprehend, he did anyway.  He thought to commit suicide but could not pull the trigger again.  He is serving 20 years in prison.  Her family visits him once a month.

In both cases, the young men - both teenagers barely old enough to be called men at all - stepped up, admitted their crimes, and faced the penalty like, well, men.  In Florida, the state reluctantly went along with a lower sentence - the families have incredibly come to a place of forgiveness and some modicum of peace.  In Massachusetts, the state is seeking to reopen wounds that will never really heal anyway for the Trooper's beloved and devoted companion and her devastated daughter, yet the impetus is the state's, not the family's.  It is hard to fathom, especially in a cash-strapped court system, and a penitent defendant who has done everything right after a horrible wrong, why this case should be re-prosecuted.

As an old story of poverty and crime and promises and redemption - where the protagonist serves 20 years for stealing a loaf of bread and then, after being shown kindness and love, seeks to live virtuously (including a confession that can return him to prison for life) - haunts current cinemas, these cases call confessions within our justice system into question.

The Supreme Court of the United States has declared that, "confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Maryland v. Shatzer, 130 S.Ct. 1213, 1222 (2011)(internal citations and quotation marks omitted).  The Court's announcement indicates that the legal community wants people to confess in order to punish them.  But, this has not been our tradition since those accused of witchcraft would be put to death upon confession (and put to death without confession).

Voluntary confessions serve a purpose, but the purpose must be more meaningful than identification and punishment in a criminal justice world fiercely protective of the right not to be compelled to self-incriminate.  The system manages to obtain more than 95% of convictions through guilty pleas.  But, those who plead have already been identified as potentially involved in an offense; and, there is a notion that confession may lead to a discount in punishment.  So, the purpose must be something other than finding and punishing.

In the Florida case, the confession seems to have allowed those affected to move forward in their lives, as broken as they may be, but only because it also limited the full extent of the law's reach.  First degree murder can lead to death in Florida; if not death then life without parole.  But, this confessed killer will serve the same amount of time as Victor Hugo's bread thief.  He is, by all accounts, remorseful and, apparently still somewhat bewildered at his own capacity for violence.  Those involved in that restorative format of justice seem confident that, once released, this man will lead a life tinged with regret and sorrow, but one deserving of the second chance he has been given. 

In the Massachusetts case, the second chance has proven fruitful.  The confessed offender now wears holes in his shoes walking everywhere, never having driven again after that fateful crash.  His life forever changed, he seeks to live worthy of the opportunity provided to him.  Even on the outside chance that the Commonwealth could meet its burden of proving causality a decade after the event, the difference between the Trooper's severe brain injury and her death, while significant, does not alter the reality of the initial crash or the remorse or the penance or the value of the defendant's life.  If not an actual violation of double jeopardy, using his confession and guilty plea against him a decade later hardly seems to reflect any kind of good, let alone an unmitigated good.

Why exactly does the justice system crave confessions?  Is it really to find, convict and punish offenders?  And to what end this punishment?  What of the restorative value to the family who heard, in naked, brutal terms, the last moments of their daughter's life?  Like the kind Bishop in Victor Hugo's story, their ability - and indeed the state's ability in that case - to find forgiveness, compassion and love has value as well.  Giving that offender a chance to live a life of redemption has social worth, too, not only for him and his family but for the greater good as well.  Enforcing laws reeking of retribution and vengeance does not always reflect the best interest of the community, whether or not the offender confesses. Indeed, the muscle of harsh sentencing laws may obtain weak, illusory confessions while putting aside the potential of the sentence may result in heartfelt absolution.

As the criminal justice community observes the anniversary year of Gideon v. Wainwright, an admittedly historic decision, the Court rendered another monumental case 50 years ago in Wong Sun v. United States.  Remembered as a the "fruit of the poison tree" case, the actual decision reaches much further.  Indeed, it extended the exclusionary rule to verbal evidence (where previously it applied to tangible evidence).  Neutral declarations unlawfully obtained gained protection of the exclusionary rule.  And, it confirmed both that conviction cannot rest upon uncorroborated admission of the accused and that a tainted confession of a co-defendant or items unlawfully seized from a co-defendant carry no corroborative weight for the confession.  In that matter, the confession was a mirage, not contrition.  But, it was the confession that the government fought to include at trial.

For, juries are persuaded by confessions - even false confessions - just as they are persuaded by eyewitness testimony and jailhouse informants even though this type of evidence is the least reliable in ascertaining guilt.  Hollow confessions serve little benefit to either finding or punishing the offender.  Query the post-conviction admissions of Emmett Till's murderers, Roy Bryant and J.W. Milam, free of remorse confessing their brutal crime once out of reach of the law.  Contrast that heartlessness with Isaac Turnbaugh, acquitted of murder but desperate to be punished for his actions. Or even the reluctant but complete confession of Kenneth Bianchi resulting in life in prison but solving the Hillside Strangler cases.  Or, the death row inmates who confess to more offenses as they face execution.  Certainly, some confessions fail to fulfill the stated purpose of the Court: to find and punish the accused.

We know that what's done cannot be undone.  But, before we place stock in confessions, truly remorseful and questionably obtained alike, it is incumbent upon us to determine their purpose: punishment or forgiveness or some combination thereof?  Mustn't we determine why confessions are important before we obtain them and use them in the restraint of liberty? 

Lawyers cannot advise a client to remain silent or to unburden his soul without guidance as to the consequences of either action.  Forcing the government to prove every element of an offense protects us from a police state; granting the offender the opportunity to begin a healing process lays the groundwork for amazing grace.  Both have benefits.  It is the role of counsel to get directions before sending the client down either road.