3.2

Leadership If there is a culture of impropriety or a pattern of transgressions in any organization, we look to the leader for fault. The In the News box describes what sometimes hap- pens when public servant leaders are perceived as deficient in running an ethical organization. There are thousands of articles and books about leadership. Researchers identify, typologize, and deconstruct different types of leadership styles, for example, task- versus people-oriented leadership; participative, authoritarian, technocratic and char- ismatic leadership, and so on. We cannot do justice to leadership studies here, but it is important to note that the concepts of “authentic leadership” and “transformational leadership” seem to be very relevant to this discussion of ethical organizations. These leadership styles involve less social distance between leaders and employees, greater participation of employees, fairness, consistency and integrity, taking responsibility for one’s actions, promoting ethical conduct, being concerned for others, and reward- ing ethical conduct. Research has shown that leadership styles that incorporate these elements are associated with higher levels of job satisfaction and organizational com- mitment, satisfaction with supervision, extra effort, lower turnover intention, orga- nizational citizenship behaviors, better overall employee performance, and reduction in cynicism toward organization (Bommer, Rich, and Rubin, 2005; Onorato and Zhu, 2015; Podsakoff, MacKenzie, and Bommer, 1996). In one study, it was found that transformational leadership was correlated with higher stage moral reasoning (universality) of the leaders; however, “pseudo-trans- formational leadership” was not. Pseudo-transformational leaders were those who “talked the talk” but didn’t “walk the walk” of transformational leadership—they did not fully invest in the principles of worker participation and empowerment. These leaders scored high in motivation but low in idealism; their motivation for leading workers was ego (Barling, Christie, and Turner, 2008). Pages 100

In one study of leadership, the relationship between ethical leadership and worker helping behavior was moderated by the moral awareness of workers. The statistical relationship between individual and group-level perceptions of ethical leadership and measures of helping behavior was stronger when the moral awareness of workers was low. The relationship weakened when moral awareness of workers was higher. Thus, although ethical leadership relates positively to follower helping and courtesy, the strength of this relationship differs depending on the level of moral awareness in the work group (Kalshoven, Den Hartog, and De Hoogh, 2013). The first thing to note is that for a leader to influence ethical behavior among employees, he or she, first, must act ethically. If a leader engages in unethical behavior, it is highly unlikely that ethical behavior of employees will be the result. Research has shown that the correlates of leaders who make unethical decisions include the following: • They are very proactive and goal-oriented but not concerned about potential problems. • They are self-directed and make their own decisions; not prone to take advice or seek input from others. • They want to be in charge and have a high achievement orientation. • They are likely to have their own rules and are willing to tell others to follow them or, they do not care about others or about rules at all. • They have a low interest filter for people (Harshman and Harshman, 2008, p. 185). Organizational leaders must not only act ethically themselves, they must also cre- ate an environment that encourages ethical behavior from everyone. This can be done by promoting ethical workers, rewarding morally courageous behavior, and providing clear and powerful organizational policies that emphasize worthwhile goals and hon- est means. Issues that could be examined in a discussion of ethical leadership include the practice of recruitment, training, discipline and reward structures, and evaluation of performance. Souryal (1992: 307) offers advice to leaders who would like to advance ethical decision making and emphasizes the importance of organizational support for ethical actions. Ethical leaders should do the following: 1. Create an environment that is conducive to dignified treatment on the job. 2. Increase ethical awareness among the ranks through formal and informal socialization. 3. Avoid deception and manipulation in the way officers are assigned, rewarded, or promoted. 4. Allow for openness and the free flow of unclassified information. 5. Foster a sense of shared values and incorporate such values in the subculture of the agency. 6. Demonstrate an obligation to honesty, fairness, and decency by example. 7. Discuss the issue of corruption publicly, expose corrupt behavior, and reward eth- ical behavior. Metz (1990) offers a similar advice. He proposes that ethical administrators follow these steps: 1. Establish realistic goals and objectives. 2. Provide ethical leadership (meaning, set a moral tone by actions). Pages 101

Ethics and the Criminal Justice System 3. Establish formal written codes of ethics. 4. Provide a whistleblowing mechanism. 5. Discipline violators of ethical standards. 6. Train all personnel in ethics. When top leaders take responsibility for their subordinates’ behavior, they will lead and administer with greater awareness, interaction, and responsibility. Because of this responsibility, a supervisor or administrator must be concerned with how the workplace treats the worker, how the worker views the mission, and how the public views the organization. A strong ethical leader would have a personal relationship with subordinates—without showing favoritism. This personal relationship is the founda- tion of modeling, identification, and persuasive authority. Strong leadership involves caring and commitment to the organization. A strong leader is connected with others, but also has a larger vision, if you will, of goals and mission. A contrary environment would be what Trautman (2008) describes as the “Cor- ruption Continuum,” which details how organizations can become corrupt through the actions of its leaders; specifically, (1) administrative indifference toward integrity, (2) ignoring obvious ethical problems, (3) creating a hypocrisy- and fear-dominated culture; all leading to (4) a survival-of-the-fittest approach by individual employees (who will commit unethical acts to protect themselves). Schafer’s (2010a, 2010b) research on police leadership supports these concepts. In a survey of police managers attending an FBI national academy career develop- ment course, survey respondents identified ineffective leaders as possessing five acts of commission: a focus on self, ego/arrogance, closed-mindedness, micromanage- ment, and capriciousness; and five acts of omission: poor work ethic, failure to act, ineffective communication, lack of interpersonal skills, and a lack of integrity (Schafer, 2010a). He also looked at what was considered effective leadership. The strongest fac- tor emerged as honesty and integrity (37 percent identified that as the first element of good leadership; 2010b: 651). Integrity, along with a work ethic, communication skills, and caring for the needs of employees were the most commonly agreed elements of good leadership. Finally, leaders must never lose sight of the organizational mission; for public servants, the mission is public service. Other researchers, in studies with correctional workers, conclude that training workers in procedural justice concepts so that they will interact more positively with clients/inmates is unlikely to be successful if organizational leaders do not practice procedural/organizational justice within the organization. Correctional workers who perceived their leaders as transformational were more likely to perceive the organi- zation as having procedural (organizational) justice. The elements of organizational justice that was identified as important in perceptions were the ability to appeal griev- ances and have their voices heard. These researchers found that procedural justice ele- ments needed constant reinforcement, and older officers were less likely to perceive procedural justice in the organization (Baker, Gordon, and Taxman, 2015). Societal and cultural Influences Organizational culture is subject to external influences. External influences are both objective (e.g., laws and regulations that constrain the organization) and norma- tive (public belief systems). We see these external influences operating in for-profit page 102

organizations as well as public service organizations such as those in criminal justice. Messages filter from the public to the organization in terms of what will be tolerated and what will not be; for instance, our popular media glorified the Wall Street val- ues of money as the sole measure of success until the bankruptcy of Enron, at which time public pressure on Congress led to the Sarbanes–Oxley Act, which placed more accountability on CEOs, which, in turn, affected the internal culture of organizations. The crash of 2008 led to public pressure for banking regulations, and there was a new Consumer Protection Agency created (although the future of this agency is in doubt today). In April 2017, when a passenger was injured while being dragged off an airplane by airport security personnel at the request of United Airlines personnel, the cellphone videos of the event went viral. At first the CEO of United Airlines excused the event, saying the passenger was belligerent and he stated that he stood behind his employees and their actions. However, as public sentiment grew more virulent, and other videos emerged, he changed his message and apologized. When social media began sharing other examples of poor treatment by United Airlines passengers in other circum- stances, the organization had a public relations crisis. Eventually, United Airlines com- pensated all passengers on the airplane by refunding the price of their tickets. A lawsuit filed by the injured passenger will no doubt take longer to resolve. The CEO swore that no passenger would ever again be removed from an airplane because of overbooking. Industry observers noted that organizational culture does affect how employees treat customers/clients, and this incident may have been the trigger that will generate a con- certed effort of cultural change in the organization. It’s also clear that if change does occur, it was due to external pressure brought on by a media firestorm over one event. The ethical issue box illustrates how law enforcement organizations are influenced by and must respond to larger social events, for instance, the immigration issue. The Michael Brown shooting in Ferguson, Missouri, in 2014 and the Freddy Gray death in Baltimore, Maryland, shortly afterward sparked a strong public backlash against police use of force, especially against minority men. The backlash took a violent turn when several police officers were ambushed and killed, supposedly in retaliation for the police killings of black men. The Walking the Walk box that follows highlights one chief who was hailed as a hero for his handling of the Dallas. This external pressure on police organizations spurred leaders to improve train- ing, tighten up use-of-force policies, and improve discipline systems. Public pres- sure has also spurred discussion of body cameras, citizen review panels, and special prosecutors. The Department of Justice began or continued numerous investigations that lead to consent orders or agreements with cities across the country designed to improve police policies. Outside legal actions and oversight do impact organizational culture and behavior, and, in turn, affect the individual behaviors of the professionals in the organization. More recently, Attorney General Sessions has signaled that the Department of Justice is drawing back “pattern and practice investigations” and will be less likely to scrutinize individual police departments. The DOJ has even requested a federal court to not enforce an existing consent order that had already been agreed to by the city and police department (Baltimore). The external message now seems to be that police departments do not need to worry about the DOJ oversight over use-of-force policies or other issues. Attorney General Sessions has stated that he believes there has been too much interference in police matters and that there should be a priority on address- ing violent crime increases in central cities rather than police practices. Interestingly, page 103

With the election of President Trump, the conflict over what to do with this nation’s estimated 11 million immigrants who are here illegally has created ethical issues for law enforce- ment leaders. Many city council members across the country have espoused their allegiance to and sometimes have voted to declare their identity as sanctuary cities. Federal leaders, in turn, have vowed to withhold federal funds from jurisdic- tions that profess to be sanctuary cities and, indeed, Attor- ney General Sessions has stated he may attempt to rescind federal grant money already disbursed to some cities. How- ever, no one seems to agree on what being a sanctuary city means, and many do not seem to understand the legal pow- ers of sheriffs or police chiefs. Before we can analyze the ethical issue, we must be clear on terms. In this discussion, the definition of sanctuary city may not be equivalent to how your jurisdiction and news media have defined it. Generally, there is a clear distinction between federal powers and state powers. Only the federal government has the right to enforce immigration law. Indeed, when Arizona attempted to pass a law several years ago that required their police officers to inquire as to immigration status and arrest illegal immigrants; this portion of the law was rejected by the Supreme Court as usurping federal powers (Arizona v. United States, 567 U.S. 387, 2012). Of course, state and local law enforcement can hold someone who has an outstanding federal warrant, just as they can hold a suspect for other jurisdictions when there is an outstanding arrest warrant. Warrants are issued by judges after probable cause has been established, so there is some degree of due process that has occurred. During President G.W. Bush’s administration, the Secure Communities program was established. This was a voluntary program whereby local law enforcement who arrested individuals on other grounds would hold those suspected of being in the United States illegally with only a detainer from immigration authorities. Detainers do not have the same legal authority as warrants and are not issued by judges; they are simply administrative requests from Immigration and Customs Enforcement (ICE) to hold the individual. During President Obama’s administration, the Secure Communities program was rolled back because of concerns about due process. The Priority Enforcement Program, instead, targeted only indi- viduals who were involved in significant criminal offenses. In most of these cases, the individual would not have been released anyway, because of the seriousness of the charge. President Trump, however, has revived the Secure Communities program, prompting some cities and juris- dictions to declare themselves sanctuary cities; in effect, saying they will not participate and will not hold individu- als on merely detainer requests. Cities who have declared sanctuary city status promise not to allow police to question suspects, witnesses, or vic- tims about their immigration status, nor contact ICE when they encounter someone here illegally. Some cities also incorporate promises to not withhold city services based on immigration status. As noted above, local police have never had the power to arrest someone on suspicion of an immi- gration violation; however, the main issue is what to do about individuals who are arrested for some other offense. Should the sheriff (who is typically the authority in charge of the jail, not the police chief) hold the individual past the time he or she would have released for the offense? For example, if a group of three men were arrested for public drunken- ness and ordinarily would be released the next morning after posting bail or paying a fine; the issue becomes whether to hold one of them because he has no driver’s license, cannot produce a social security card, and speaks Spanish. When jurisdictions proclaim themselves to be sanctuary cities, it typically means they will not hold that individual, nor contact ICE, nor (if ICE somehow finds out about the person and issues a detainer) hold the person on a detainer. Law Police chiefs serve at the pleasure of a mayor or city coun- cil so, as an executive, he or she is duty bound to carry out legal orders. A sheriff, on the other hand, is typically elected. He or she, as an elected official, has discretion to determine the nature of their duties if the decision does not run afoul of existing law. However, there is unsettled law in this area. A federal magistrate judge in Oregon concluded that county officials violated a woman’s Fourth Amendment rights when they kept her in custody solely based on an immi- gration detainer (Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, slip op., D. Or. April 11, 2014). In this page104

case, the woman was arrested for violating a restraining order, the judge granted bail, but ICE had issued a detainer, so she was kept in jail. She was finally released roughly two weeks after she was judged guilty for the misdemeanor with a two-day jail sentence; evidently ICE never did initiate proceedings for removal. Other cases have also determined that detainers are mere requests, not lawful orders, for example, Galarza v. Szalczyk, No. 12-3991, slip op., 3d Cir. March 4, 2014. The Supreme Court has also determined that the Tenth Amendment’s anti-commandeering principle prohibits the federal government from enlisting local police officials to help enforce federal law (Printz v. United States, 521 U.S. 898, 1997). Because they are mere requests and not lawful orders, counties may be liable for unlawful confinement. In the Miranda-Olivares case, the court held that the county was authorized to hold Miranda-Olivares while her criminal proceedings were ongoing, but hold- ing her longer violated the Fourth Amendment. Sheriffs in several jurisdictions have pointed to these case decisions as a reason for refusing to honor detainer requests from ICE. For instance, Sheriff Sally Hernandez in Travis County, Texas (Austin) refused to honor detainer requests and, in response, Governor Abbott cancelled about $1.5 million in criminal justice grants to the county. Thus, law enforcement officials face either being sued for unlawful imprisonment or lose state or federal monies. San Francisco has filed a lawsuit against the federal government alleging there is no legal authority to rescind or refuse federal funds and other jurisdictions have joined the lawsuit. The legal argument is basically that the federal government cannot force jurisdic- tions to enforce unconstitutional detainers. There is a lot of money at stake. The Edward Byrne Memorial Justice Assis- tance Grant Program, administered by the Department of Justice, alone allocated $274.9 million in 2016 (Kopan, 2017; Ratcliffe, 2017). Policy Police chiefs typically are not in charge of jails, although in a few jurisdictions there is a county–city overlap so they might be. Generally, however, the sanctuary city conflict presented above lies with sheriffs. Sheriffs may take advice from city councils or county commissioners, but because they are elected officials, there is independence in decision making over this issue. County Commissioners have control over a sheriff’s budget, but not over his or her decision to honor detainers. Ethics A sheriff or locality facing this issue often employs utilitarian- ism to support their decision to honor or not honor detain- ers. Utilitarianism supports actions that benefit the majority. One side would argue that it is to the benefit of most of us for immigration laws to be enforced. This side often points to the idea that illegal immigrants commit crimes and absorb resources that could be used for native-born or legal immi- grant residents. While illegal immigrants lose in this equation, there are fewer of them than the rest of us, so the math is in favor of the majority. Utilitarianism would also justify partici- pation by pointing to the threat of the loss of federal and/ or state monies. Losing such funds hurts the jurisdiction and the many residents outweigh the few illegal immigrants who might suffer under the program, and even the few legal residents who might be held with no just cause because of error. Utilitarianism also is used as the ethical justification for sanctuary city policies by law enforcement. Many major chiefs and sheriffs argue that their primary role is to enforce criminal law and if they become agents for ICE, witnesses and victims will be less likely to talk to them.That hurts every- one because they are hampered in their ability to investigate and solve crimes. They also note that jail space is not free and ICE often does not come and pick people up, thereby taking up valuable jail cell space without reimbursing the county. Finally, they note that if the jurisdiction loses a civil rights lawsuit, as the jurisdiction did in the case described above, already stretched budgets must be decimated to pay damages and county residents receive fewer services. Ethical formalism is dependent on one’s perception of duty. If the duty of local law enforcement is perceived as protecting and serving and local crime control, then immi- gration enforcement does not fall within that purview; if there is a more generalized perception of “law” as includ- ing immigration law, then the duty extends to enforcement. Religion has also been used to support the sanctuary posi- tion, and, in fact, the idea of sanctuary (protection from civil law) historically comes from religion: think of the right of sanctuary in The Hunchback of Notre Dame. If someone stayed within the walls of the cathedral, they were protected from the king’s law. Recall that under religion and ethics of care there is less emphasis on man’s law and more univer- sal principles of care. Ultimately, like many of the issues discussed in this text, well-meaning, reasonable people can apply ethical reasoning and reach different conclusions. Page 105