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Ethical Dilemmas and Decisions in

Criminal Justice Tenth Edition

Chapter 14 Making Ethical

Choices

Learning Objectives

1. Identify the basic themes of the book.

2. Describe the basic elements of the “just war” debate

and the “just means” discussion.

3. Describe the responses to 9/11.

4. Explain the human rights model of policing.

5. Present a method to resolve ethical dilemmas.

Review of Major Themes

• Presence of authority, power, force, and discretion.

• Informal subcultures that sometimes are contrary to

formal codes of ethics.

• The importance of ethical leadership.

• Tension between deontological ethical systems and

teleological or “means-end” ethical analysis.

Just Wars and Just Means

• September 11, 2001 traumatized a city, affected the

American psyche, led to American military engagement

on foreign soil in two countries, and spurred the

dramatic restructuring of federal agencies.

• The “War on Terror” affects not only the military and

federal agencies; every law enforcement and justice

agency in the land is involved.

Terrorism

• Defined as the “deliberate, negligent, or reckless use of

force against noncombatants, by state or non-state

actors for ideological ends and in the absence of a

substantively just legal process.”

• Terrorism has led to new questions:

– What is appropriate or ethical in investigative

techniques?

– Individual privacy rights vis-à-vis the government,

– What is legal and ethical in the detention and treatment

of prisoners?

Justifications for War

• Philosophers have debated the idea of “just” wars

since the time of Cicero (c. 106–43 B.C.)

• Natural Law – “War is acceptable”:

1. To uphold the good of the community.

2. When unjust injuries are inflicted on others.

3. To protect the state.

• Positivist Law: man-made law

1. The violations must be knowable to all.

2. The violations must be widespread and systematic.

3. The force used must save more lives than it injures.

Other Justifications for War

• Crank and Gregor:

– The threat must be grave, lasting, and certain.

– There are no other means to avert the threat.

– There must be a good probability of success.

– The means must not create a greater evil than the threat

responded to.

Just Means Different Question from Just

War

• Ethical formalism does not look at the consequences of

an action to justify it.

• Principle of double effect: if one undertakes an action

that is a good, but that also results in a negative end, if

the negative end was not the intent of the actor, the

good action and the good end can be considered a

good.

The Response to 9/11

• There has been a fundamental shift in the goals and

mission of law enforcement and public safety.

• New goals include more national law enforcement and

a reduction of civil liberties.

• There is a greater emphasis on surveillance and crime

control.

• There are increasing links between local law

enforcement and immigration services and federal law

enforcement.

Different Forms of the Response

• Detainments

• Renditions and secret prisons

• Guantanamo and the military commissions

• The use of torture

• Governmental secrecy

• Wiretapping and threats to privacy

• Undercover operations

Detainments

• Immediately after 9/11, hundreds of non-citizens were

detained on either immigration charges or material

witness warrants.

• The Patriot Act required that all individuals on visas

report to immigration offices. Many were detained on

minor violations of their visa and held for months in

federal facilities and county jails without hearings.

• Names and even the number of detainees were

withheld for months.

• Deportation hearings were closed to the media and

public.

Renditions and Secret Prisons

• Renditions—kidnapping suspects in Canada, Sweden,

Germany, and Italy sometimes without knowledge or

approval of governments

• Secret prisons—subjects of renditions taken to

countries to be tortured or to secret prisons (closed in

2006?)

Guantanamo and the Military Commissions

Act

• Hamdi v. Rumsfeld (2004)—U.S. citizens could not be held indefinitely without charges even if they were labled “enemy combatants.”

• Rasul v. Bush (2004)—Detainees in Guantanamo could challenge their detention in U.S. federal courts.

• Clark v. Martinez (2005)—Government may not indefinitely detain even illegal immigrants without some due process.

• Hamdan v. Rumsfeld (2005)—“Military commissions,” set up as a type of due process for the detainees, were outside the President’s power to create and were, therefore, invalid.

Military Commissions Act

• Congress passed the act after Hamdan v. Rumsfeld

invalidated presidential decree.

• Widespread criticism that the act ignored ancient right

of habeas corpus.

• Boumediene v. Bush (No. 06-1195, Decided June 12,

2008)—the Supreme Court rejected the military

commissions as a due process substitute for federal

courts and habeas corpus; also, Detainee Treatment

Act was not a substitute for habeas corpus rights.

Torture (1 of 2)

• Deliberate infliction of violence and, through violence, severe mental and/or physical suffering upon individuals:

– Subjected to loud noises and extreme heat and cold

– Deprived of sleep, light, food, and water

– Bound or forced to stand in painful positions for long periods of time

– Kept naked and hooded

– Sexually humiliated

– Threatened with attack dogs

– Shackled to the ceiling or kept in small containers

– Waterboarding

Torture (2 of 2)

• Justification:

– Utilitarianism (doctrine of necessity)

– Does torture result in the truth?

– Does it matter?

• Where?

– Guantanamo

– Secret prisons

– Bagram prison—Afghanistan

– Abu Ghraib—Iraq

Governmental Secrecy

• Less openness in governmental activities

• President Obama promised to roll back the pattern of

secrecy, but continued the pattern, using executive

privilege and classifying as state secrets.

• The Justice Department has also been accused of

using double standards when going after “leakers” who

expose governmental wrongdoing.

• Others argue that opponents of secrecy are naïve and

that the published reports of U.S. activities against

terrorists provided by WikiLeaks and other anonymous

sources make it more difficult to protect America.

Wiretapping and Threats to Privacy

• Patriot Act—“sneak and peek,” “national security

letters,” pen registers

• National security letters

• “Data mining” programs

• Presidential secret warrantless wiretappings

• DNA data banks

The Patriot Act

• Authorizes federal agents to spy on Americans without

probable cause or reasonable suspicion.

• Allows authorities to share with state prosecutors

information obtained via FISA search warrants which

do not require probable cause.

• Authorizes deportation of anyone who financially

supports a terrorist organization.

• Requires all Arab-born citizens to register under the

National Security Entry-Exit Registration system.

• The Act was extended in 2006 (to 2009), with

modifications.

Undercover Operations

• Close to 500 prosecutions for terrorist-related activities,

mostly for “material support” and conspiracy.

• Critics argue many would-be terrorists would never

have been able to accomplish the tasks without

government involvement.

• Sting operations have long been used in drug and other

criminal investigations and the legal test is whether the

target has a predisposition to commit the crime.

• A sea change within law enforcement that has been

described as a move toward “intelligence-led” policing.

Utilitarianism vs. Human Rights-Based

Policing

• Discussions since 9/11 have been a forced choice

between safety and liberty.

• Major problem of utilitarianism (means-end thinking) is

we are unable to know the outcome of our actions.

• Human-rights based policing recognizes that some

acts are never justified.

UK Police Standards

• To fulfill the duties imposed on them by law

• To respect human dignity and uphold human rights

• To act with integrity, dignity, and impartiality

• To use force only when strictly necessary, and then

proportionately

• To maintain confidentiality

• Not to use torture or use ill-treatment

• To protect the health of those in custody

• Not to commit any act of corruption

• To respect the law and code of conduct and oppose violations of

them

• To be personally liable for their acts

Ethical Dilemmas and Decisions

• War on terror is greatest challenge facing this country

today

• Ultimately ethics is about facing a dilemma and making

a decision

• My Lai incident in Vietnam

• Abu Ghraib prison scandal

• Sometimes ethics simply means doing one’s job.

Discussion Questions

1. Do you think renditions still occur? Do you think our

government has the authority/right to conduct

renditions?

2. Could the argument be made that if we utilize torture

methods, then we are no better than our adversaries?

3. When do you think torture would be appropriate?

4. Do you agree with the Patriot Act, or do you think it

gives the government too much power?