Roger Goodell Is The American Justice System

On Tuesday, Roger Goodell suspended Adrian Peterson for beating his four-year-old child with a switch. Peterson has been on the exempt list—the NFL's version of paid purgatory—since Week 2, which effectively makes the punishment a 15-game suspension. Nary an article can report on Peterson's suspension without referencing the Ray Rice case, as both featured Goodell supplementing a legal system he found to be lacking by issuing his own lengthy punishments.

Mosthypothesize Peterson's harsh suspension is a byproduct of the Rice backlash, which led to a two-game ban being extended indefinitely. But this comparison misses the role of remorse in Goodell's decision-making, and the role remorse plays in all this makes it abundantly clear that Goodell hasn't actually learned anything from the Ray Rice debacle.

In both cases, Goodell met with the players to assess their regret. Goodell judged Rice to be sufficiently remorseful for knocking his fiance unconscious in an elevator, which led to the original, misguided two-game suspension. "I was also very impressed with Ray in the sense that Ray is not only accepting this issue but he's saying, 'I was wrong,'" Goodell told the press after announcing the two-game suspension. "I want to see people, when they make a mistake, I want to see them take responsibility and be accountable for it."

In Goodell's view, this is precisely what Peterson didn't do, which is a primary reason why he received a far greater initial punishment than Rice. "You have shown no meaningful remorse for your conduct," Goodell wrote in a letter to Peterson Tuesday morning. He went on to elaborate:

"When indicted, you acknowledged what you did but said that you would not 'eliminate whooping my kids' and defended your conduct in numerous published text messages to the child's mother. You also said that you felt 'very confident with my actions because I know my intent.' These comments raise the serious concern that you do not fully appreciate the seriousness of your conduct, or even worse, that you may feel free to engage in similar conduct in the future."

Here, we see Goodell assessing a criminal's moral fiber, by measuring their words, actions, and emotions after conviction. Regardless of whether you believe this particular suspension is appropriate, Goodell's heavy reliance on remorse is just as problematic for him as it is for actual judges.

Goodell is adhering to a dubious judicial practice that has been problematic for centuries, and in recent years has finally come under criticism. As associate dean and professor of law at Ohio Northern University Bryan Ward wrote in Sentencing Without Remorse, in Colonial times the defendant's remorse and confession had no effect on the punishment, but was "expected for religious reasons and for reasons of general public order." A defendant should be remorseful for the sake of the community, not for himself.

Beginning in the late 19th Century, remorse became a factor in both the deterrent and rehabilitative aspects of sentencing. Naturally, perceived remorse quickly morphed into a shorthand for thinly-veiled judgments on the defendant's personality, race, and class. As Lawrence Friedman detailed in Crime And Punishment In American History, "What he [the judge] was really looking for were clues to middle class respectability. These proceedings were little morality dramas."

Little has changed. According to Ward, "Remorse has proven to be an increasingly ambiguous concept, which state court judges have had a great deal of difficulty applying in any coherent or consistent manner." In practice, remorse is a more accurate reflection of the judge than the perpetrator.

Judges have found it difficult to codify precisely what remorse entails and therefore often rely on their own sensibilities to guide them. Saying "sorry" has often proved insufficient in sentencing, as defendants have to say it the right way to the right people at the right time—and every judge has a different notion of what exactly that is. In a particularly egregious case, Ridenour v. State, a defendant convicted of theft was told by his lawyer not to say anything to the victim's family prior to sentencing. The sentencing judge later reprimanded the defendant for not sending a letter anyways, and not firing his lawyer: "If a lawyer had told me, 'You mean it's illegal for me to apologize to somebody? It may be illegal but you ain't my lawyer any more.'" (Thankfully, the sentence was overturned on appeal.)

A judge may find fault in a defendant's demeanor or word choice when expressing remorse, and then decide to enact a stricter sentence. In a cruel paradox, some defendants find that if they don't say the proper words they're assumed to be unremorseful, but if they say the right words the wrong way, the judge interprets their words as disingenuous, sees them as pleading simply to avoid a harsh sentence, and labels them unremorseful, perhaps even devious, anyway.

Even if there was a solid legal definition of remorse, the interpretation of remorse is subject to extenuating factors such as "similarity, familiarity, and sympathy," as DePaul University Law Professor Susan Bandes explained in Remorse and Demeanor in the Courtroom: the Consequences of Misinterpretation. "It is influenced by pre-existing conceptions about how a blameworthy or trustworthy person acts, and how such a person appears. It is, therefore, likely influenced by attractiveness, likeability, class, gender, ethnicity or race."

Indeed, class and race play particularly important roles in interpreting the remorsefulness of a defendant. In Race, Remorse, And Sentence Reduction: Is Saying You're Sorry Enough, sociologists Ronald Everett and Barbara Nienstedt concluded, "Cultural values inculcated in certain racial/ethnic minorities may prohibit such required displays of remorse, just as a judge's cultural values may preclude him or her from perceiving a valid expression of remorse from a member of a different racial/ethnic group." That is, one man's "I'm sorry" may not be good enough for somebody else, even if he means it.

If you think back on your childhood, you may remember a parent or authority figure castigating you for giving an insincere apology. Ultimately, whether or not you're deemed to be "remorseful" depends upon what you have been told remorsefulness looks like, which varies from culture to culture. It's unlikely a young, poor, black man will have the same definition of remorse as an old, wealthy, white woman. This is problematic for judges and juries alike, but when the judge is the jury, as is the case with Goodell—an old, rich, white man who is often called upon to assess the remorsefulness of young, black men from impoverished backgrounds—it is particularly concerning.

The ultimate irony here is that Goodell is using the judicial system's arbitrary, antiquated values to supplement his perceived shortcomings of that very same judicial system. Goodell believed Ray Rice to be sufficiently remorseful because he came to his office, told his story, attended couple's counseling, and prayed with the team chaplain. None of these details changed the fact that Ray Rice punched his wife in the face, but they changed Goodell's perception of it, which became massively controversial when the entire world saw video of Ray Rice punching his wife in the face without remorse.

Likewise, nothing Adrian Peterson could say would mitigate the cruelty he displayed towards his son. Given his history with corporal punishment, any remorse he did express would likely be perceived as insincere. This is why remorse is a nebulous and ultimately useless concept in judging a person's character: people lie, deceive, and mislead when their future is in the balance. "A savvy defendant may say all the right things at sentencing and mean none of them," Professor Ward told me via email. "Thus, remorse becomes a bit of a game rather than a meaningful process."

"Sentencing should be a process of in which facts are assessed by the sentencer for purposes of reaching an appropriate punishment," Ward wrote in what should be a terribly obvious statement but is nevertheless completely divorced from our current system and the NFL's Personal Conduct Policy. Ward concludes by offering the following call to abolish remorse as a consideration in sentencing:

"The failure of remorse is simply the failure of men to be able to read the innermost thoughts and feelings of other men—an age-old problem which plagues many of mankind's interpersonal relationships. No one really knows what remorse is—and courts certainly don't seem to know it when they see it. Anything that is so intrinsically unknowable cannot fairly be the basis for extended (or reduced) periods of incarceration in any system of justice."

This "intrinsically unknowable" basis is how Goodell makes his decisions, exemplifying how far removed he is from simply sentencing for the crime. In the end, Goodell is punishing Peterson for not feeling the right things, while believing Ray Rice did. Ray Rice played the game well, and Adrian Peterson did not. It's a shitty way to decide NFL suspensions, and an even worse way to decide a jail sentence.