John Fleming / JJIE
Martha Grace Duncan in her office at the Emory University School of Law in Atlanta
Sitting behind her strikingly barren desk, with the bright, mid-winter sunlight breaking through the trees and streaming through her office windows, Martha Grace Duncan, a professor at the Emory University School of Law, in Atlanta recounts the case of nine-year-old Cameron Kocher. As she speaks her small, compact frame remains nearly motionless, betraying no emotion. But her eyes tell the story, portraying the internal mix-up of sadness, passion and nerdy intensity that she feels about the topic. Duncan may not wear her heart on her sleeve, but if you pay attention it’s not hard to find.
In March 1989, on a cold, snowy day in the Pocono Mountains of northeastern Pennsylvania, Kocher fatally shot a seven-year-old playmate with a high-powered hunting rifle. He had been playing video games with the girl at her house when she told him that she was better at the game than he. Soon, the girl went outside to ride snowmobiles with other friends and Kocher, angry that his parents wouldn’t let him join them, retrieved the rifle from his father’s gun cabinet, loaded it and pointed it out the window of his home. Then, as the girl rode with a friend on a snowmobile, Kocher shot her in the back.
Minutes later, as the girl lay dying in her living room, Kocher returned to the girl’s house telling another playmate, “If you don’t think about it, you won’t be sad.”
As Kocher’s case progressed through the courts, many took the quote, coupled with the shooting, as evidence of a cold, remorseless child. Uttering that sentence would have severe repercussions for Kocher, beginning with the question of whether he would be treated as an adult by the courts.
In 2002, Duncan published a lengthy article for the Columbia Law Review that explored how expectations of displays of remorse affect how children are treated in the juvenile justice system, particularly in adjudication and sentencing. Duncan, who also holds a doctorate in political science, applied elements of psychology, sociology and literature to several case studies in the article.
As she explains in the article, “’So Young and So Untender’: Remorselessness and the Expectations of the Law,” in Pennsylvania, the State Criminal Court is responsible for all murder cases, even those involving children. However, if the suspect is a juvenile they may petition to have their case sent to juvenile court.
Kocher’s petition to be transferred to juvenile court was denied, in part, because of his quote after the murder. After Kocher’s appeal was denied, the Pennsylvania Supreme Court reviewed the case. In its opinion, the state’s high court declared, “He appeared to show no remorse for the crime.” (Cameron Kocher eventually pleaded no contest to felony criminal homicide and, as part of a plea agreement with the local district attorney, was convicted of misdemeanor involuntary manslaughter. He was placed on probation until he turned 21.)
Duncan said, when she read about Kocher’s case in The New York Times, she was startled that a child’s apparent lack of remorse would be used against him.
But in juvenile law, Duncan writes, remorse often figures prominently at a critical junction in the process called transfer—the decision whether to treat the child as an adult and send them to adult criminal court or keep them in the juvenile justice system.
Webster’s dictionary defines remorse as “a gnawing distress arising from a sense of guilt for past wrongs.” Contrition, similarly, is defined as “feeling or showing sorrow and remorse for a sin or shortcoming.”
Most adults can relate to that meaning—nobody’s perfect, after all—but at what age are we first capable of feeling remorse?
According to forensic psychiatrist Louis Kraus of the Rush Medical Center in Chicago, children do not develop a sense of remorse until they are five or six.
“Many kids have difficulty expressing a sense of remorse,” he said. “And many times that is because of trauma they have experienced.”
Kraus says the key is to understand brain development. The part of our brain that controls emotions does not finish growing until our early 20s. As a result, he says, teenagers may have a very difficult time understanding or expressing feelings of remorse.
“It is extremely important that a mental health professional examines any child that enters the court system,” Kraus said, particularly those who do not show remorse.
“Many kids would realize, if remorse plays a big role in their sentencing, to simply say how sorry they are and try to appear remorseful,” he said. “You have to ask yourself, when they don’t say that, what is going on with this kid? A comprehensive mental health assessment would help us understand.”
Kraus adds, “The reality is, a lot of these kids have difficulty with what they say and how they say it.”
Still, displays of contrition or remorse, Duncan writes, are a “legitimate argument” for leaving the child in the juvenile justice system. Children who appear to show remorse or guilt continue to be viewed as children. But children who show none of those emotions are seen as more sophisticated and mature. They may be transferred to the adult criminal justice system, a decision that could have monumental and long-lasting effects, including the possibility of life in prison without parole.
“Sometimes kids are expected to be innocents because of the romantic archetype of the child,” Duncan said.
She added, “In juvenile cases, and juvenile cases alone, sophistication is considered a bad thing. To the degree you [the child] are sophisticated, they [the juvenile justice system] are more likely to treat you as an adult.”
But Duncan contends children are not necessarily equipped to deal with feelings of guilt and remorse. They are particularly adept at using denial to bury strong feelings. The fact that they show no remorse is, in reality, a strong indicator of their immaturity.
She points to Cameron Kocher’s quote as an example.
“Even without any psychological training, one would think that could be an ambiguous comment,” she said. “For one thing, he seems to be trying to avoid feeling that.” It appeared to her, she said, as if Kocher was trying to bury the negative emotions he was feeling. It was a defense mechanism.
In the late 19th and early 20th centuries, juvenile courts were first created on the principle that children are inherently different than adults. Their brains are not fully developed, they are still learning and they are capable of rehabilitation.
Duncan explains children have a very difficult time showing remorse in cases of murder because of three undeveloped pieces of their development. The first is the “short sadness span,” a concept Martha Wolfenstein, the noted psychoanalyst and author, first put forth in the book, “Death of a Parent and Death of a President.” Wolfenstein said children are only able to endure painful emotions for very short periods of time.
“Just as their attention span is shorter than most adults,” Duncan said, “so their ability to remain in the painful affect of sadness or sorrow is not very long. When you start thinking about it, it’s kind of common sense.”
Once children cannot bear the feelings anymore, they use defense mechanisms to bury them. One of those defenses, and the second developmental piece Duncan discusses, is the tendency to use denial. Children are far more likely to use denial than adults, Duncan says. They push the painful feelings down and block them out because they are too much to bear, as Cameron Kocher seemingly did after fatally shooting his friend. His quote, “If you don’t think about it, you won’t be sad,” appears to indicate his use of denial to block whatever feelings he was experiencing, Duncan said.
The final piece of the puzzle is that children are not experienced enough to fully understand death. They may not think of it as permanent or irreversible and do not fully grasp what has happened.
“Researchers have not yet reached a definitive answer as to the age when most children comprehend death in these three sentences,” she writes.
When the three parts are combined, we often find a child acting cold or without compassion, maybe making jokes at inappropriate times as in the case of Gina Grant who Duncan also writes about. In 1990, when Grant was 14-years-old, she murdered her mother, a violent alcoholic who had recently threatened to kill her. That morning, Grant repeatedly bashed her mother over the head with a heavy candlestick. Later, as a police officer escorted Grant in handcuffs to the restroom she joked, “Don’t worry, I don’t have any body parts in my pocket.” When the sheriff caught wind of Grant’s joke, he concluded she was a “sociopath with no conscious.”
But for many children, the outward face of their emotion may be very different than what they feel inside. Still, society expects to see certain emotions at certain times. However, people, and children especially, are not always equipped to handle intense feelings of grief or remorse immediately. Funerals are an excellent example, Duncan says.
“I find it hard to believe that, in that hour, everyone is feeling grief,” she said. Some of the mourners may indeed feel sadness and grief at that moment, but many more will experience that at another time, in a more private way, she added.
Duncan says she can identify with the struggle to show the proper emotion. The day after her father’s death, she writes in her article, when she was still a young college student, she went to her classes at Columbia University just as she would any other day. Those who knew her and knew of her father’s death looked at her strangely because she showed no signs of grief.
“Actually, I showed no grief because I felt none, and did not for a long time,” she wrote. It was more than a year before she began to feel any strong emotions about her father’s death, and when she did they came forth like a flood.
But this was not the first time she had difficulty displaying the proper emotion.
“Growing up,” she said, “I was never quite having the right reactions, according to my family. They always wanted me to express more feeling. And at the time I was super-intellectual and super-analytical and so I wasn’t having the right reactions, according to them.”
Her experience rendered her uniquely capable of studying what happens to children caught up in the justice system who, like herself, didn’t show the “right reaction.” But for these kids, the consequences are far more serious than a few strange looks. And Duncan is very aware that had things gone horribly wrong early in her life, a judge or jury might have been taking silent note of her own emotionless countenance.
“Fortunately,” she wrote in her matter-of-fact style, “no legal ramifications flowed from my earlier failure to exhibit sadness.”
So, Duncan asks, is it fair to decide a child should be treated as an adult in the eyes of the court when they show no remorse in the days and hours after a death when they are likely incapable of displaying that emotion?
Reading about Kocher’s case started her thinking, she said. How many times has remorse played a role? With the help of a research assistant, Duncan searched for juvenile cases in which the word “remorse” showed up. The team came across more than 200. And there could be hundreds more, Duncan said, because the search didn’t include similar words such as “contrition” or “sorrow.”
More troubling still, how many times did innocent children, who could not show remorse for a crime they did not commit, have their emotions used against them?
“To what extent does the state have the right to demand that you share your interior space with the state?” Duncan asks. “Remorse is not a term of art like ‘malice aforethought’. We can’t just change the statutes, because there often aren’t any statutes.”
She added, “What’s particularly odd was that [the courts] never define remorse. They rarely explain why they got that impression [of the child].”
There is almost no way to know in how many cases remorse has been a determining factor. The internal rationale of judges and juries, Duncan says, is most often just that: internal. And in reality, it may be only one factor of many that contribute to a young person’s sentence.
Duncan is currently working on a book that will delve deeper into the question of remorse and the law. The new book will expand on what she has already written but will also tackle new areas, including how remorse is used in parole hearings.