In the United States v. Grayson case of 1977, the Supreme Court ruled that a judge could consider a defendant's lack of remorse during sentencing. The defendant, Grayson, had been convicted for robbery and murder but showed no regret or remorse for his actions during trial. He even went as far as to claim that he was justified in committing these crimes because he believed his victims were involved in illegal activities themselves. During sentencing, the trial judge stated on record that one reason for imposing life imprisonment was due to Grayson’s lack of remorse over his violent acts and apparent readiness to commit similar offenses again if released into society. On appeal, it was argued this consideration violated due process rights by punishing thoughts rather than conduct; however, the Supreme Court disagreed with this argument stating there is no constitutional bar against considering all relevant information about an individual when determining appropriate punishment within statutory limits.

In the dissenting opinion for United States v. Grayson, Justice Marshall argued that it was inappropriate and unconstitutional to increase a defendant's sentence based on their perceived lack of remorse. He contended that such an approach violated the Fifth Amendment's protection against self-incrimination because defendants may choose not to express remorse in order to avoid making statements that could be used against them in future proceedings. Furthermore, he pointed out that there is no reliable way for courts to measure genuine remorse; therefore, using it as a factor in sentencing could lead to arbitrary and inconsistent results. Finally, he suggested this practice might disproportionately affect certain groups who are less likely or able due cultural or personal reasons to express regret in ways recognized by court officials.