Case Study

Copyright Information (bibliographic) Document Type: Book Chapter

Title of Book: Ethical Dilemmas and Decisions in Criminal Justice (11th edition)

Author(s) of Book: Joycelyn M. Pollock

Chapter Title: Chapter 2 Determining Moral Behavior

Author(s) of Chapter: Joycelyn M. Pollock

Year: 2022

Publisher: Cengage Learning, Inc.

Place of Publishing: the United States of America

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Determining Moral Behavior

Define deontological and teleological ethical systems, and explain ethical formalism and utilitarianism.

2. Describe how other ethical systems define what is moral-specifically, ethics of virtue, natural law, religion, and care.

3. Discuss the argument as to whether egoism is an ethical system.

4. Explain the controversy between relativism and absolutism (or universalism).

5. Identify what is good according to each of the ethical systems discussed in the chapter.

Socrates was one of the earliest "ethicists," along with Plato and Aristotle.

O ur principles of right and wrong form a framework for the way we live our lives. But where do these principles come from? Before you read on, answer the following question: if you believe that stealing is wrong, why do you believe this to be so?You probably said: "Because my parents taught me" or

"Because my religion forbids it;' or maybe "Because society cannot tolerate people harming one another:' Your answer to this question is an indication of your ethical system. Ethical systems provide the answer to the question of why something is wrong or right.

C. E. Harris (1986: 33) used the term moral theories or moral philosophies instead of ethical systems and defined them as a systematic ordering of moral principles. To be accepted as an ethical system, the system of principles must be internally consistent, must be consistent with generally held beliefs, and must possess a type of "moral common sense:' Baelz (1977: 19) further described ethical systems as having the following characteristics:

• They are prescriptive. Certain behavior is demanded or proscribed. They are not just abstract principles of good and bad but have substantial impact on what we do.

• They are authoritative. They are not ordinarily subject to debate. Once an ethical framework has been developed, it is usually beyond question.

• They are logically impartial or universal. Moral considerations arising from ethical systems are not rela­ tive. The same rule applies in all cases and for everyone.

20

Chapter 2 Determining Moral Behavior 21

• They are not self-serving. They are directed toward others; what is good is good for everyone, not just for the individual.

We do not consciously think of ethical systems, but we use them to make judgments. For instance, we might say that a woman who leaves her children alone to go out drink­ ing has committed an immoral act. That would be a moral judgment. Consider that the moral judgment in any discussion is only the tip of a pyramid. If forced to defend our judgment, we would probably come up with some rules of behavior that underlie the judgment. Moral rules in this case might be as follows:

"Children should be looked after:' "One shouldn't drink to excess:' "Mothers should be good role models for their children:'

But these moral rules are not the final argument; they can be considered the body of the pyramid. How would you answer if someone forced you to defend the rules by asking "Why?" For instance, "Why should children be looked after?" In answering the "why" question, one eventually comes to some form of ethical system. For instance, we might answer, "Because society benefits if all parents watch out for their children:' This would be a utilitarian ethical system. We might have answered the question, "Because every parent's duty is to take care of their children:'This is ethical formalism or any duty­ based ethical system. Ethical systems form the base of the pyramid. They are the founda­ tion for the moral rules that we live by.

Ethical Systems The ethical pyramid is a visual representation of how ethical systems support ethical judgments. In Figure 2.1, the moral judgment is the tip of the pyramid, supported by moral rules on which the judgment is based. The moral rules, in turn, rest upon a base, which is one's ethical system. We will discuss the ethical systems in roughly chronologi­ cal order, beginning with Aristotle and the ethics of virtue.

H@lmfj ■ The Ethical Pyramid

Moral Judgment

A woman who goes out drinking

leaving her children at home is bad.

Moral Rules People should not drink to excess. Children should come before self.

Women should take care of their children. One should do one's duty.

Ethical System This could be ethical formalism

or utilitarianism or religion or ethics of care. The rules are logically inconsistent with egoism.

ethical system Astructured set of principles that defines what is moral.

22 PART I Ethics and the Criminal Justice System

ethics of virtue The ethical system that bases ethics largely upon character and possession of virtues.

eudalmonla The Greek term denoting perfect happiness or flourishing, related to the way to live a "good life."

prlnciple of the Golden Mean Aristotle's concept of moderation, in which one should not err toward excess or deficiency; this principle is associated with the ethics of virtue.

The Ethics of Virtue The question of what it means to be a good person is an ancient one. We will begin our discussion of ethical systems with Aristotle. As you read in Chapter 1, Socrates associated virtue with knowledge. Ignorance leads to bad behavior, because rational and wise peo­ ple know what virtue is and behave accordingly. Socrates and Plato identified four virtues: wisdom, fortitude, temperance, and justice. Recall that Plato associated these virtues with the three classes of citizens: leaders {wisdom), soldiers {fortitude or courage), and all oth­ ers {temperance). Justice was the virtue associated with one doing the duties of one's role. Aristotle disagreed with Socrates' idea that bad behavior occurred only through ignorance and argued that there were people who chose to behave in ways that were not virtuous. In Nicomachean Ethics, he answers the ethics of virtue question, "What is a good person?" Aristotle believed that to be good, one must do good. Virtues that a good person possesses include thriftiness, temperance, humility, industriousness, and honesty. Aristotle believed that eudaimonia was the goal of life. The word is simply translated as "happiness:' but a better translation is "flourishing:'The meaning of this word does not mean simply having pleasure, but also living a good life, reaching achievements, and attaining moral excellence.

Aristotle defined virtues as "excellences:• He distinguished intellectual virtues {wis­ dom, understanding) from moral virtues {generosity, self-control). To possess the moral virtues is not sufficient for "the good life"; one must also have the intellectual virtues, primarily "practical reason:' Aristotle believed that we are, by nature, neither good nor evil , but become so through training and the acquisition of habits: "[T]he virtues are implanted in us neither by nature nor contrary to nature: we are by nature equipped with the ability to receive them and habit brings this ability to completion and fulfillment:' {Aristotle, quoted in Prior, 1991: 156-157).

Habits of moral virtue are developed by following the example of a moral exem­ plar; that is, a parent or a virtuous role model. These habits are also more easily instilled when "right" or just laws also exist. Moral virtue is a state of character in which behav­ ior is consistent with the principle of the Golden Mean. This principle states that virtue is always the median between two extremes of character. For instance, proper pride is the balance between empty vanity and undue humility. Courage is the balance between cowardice and foolhardiness, and so on.The Catalog ofVirtues derived from the writings of Aristotle appears in Box 2.1. It should be noted that it is difficult to understand some of Aristotle's virtues because of the passage of time and the problems of translation. Gen­ erally, however, the idea is that the right way to behave is a balance between an excess and a deficiency of any element of character.

Moral virtue comes from habit, which is why this system emphasizes character. The idea is that one does not do good because of reason; rather, one does good because

Selected Virtues

Deficit Virtue Excessive

Cowardice Courage Foolhardiness

Self-indulgence Temperance Asceticism

Meanness Liberality Too generous

Stinginess Munificence Profligate

Vain Magnanimity Petty

Laziness Proper ambition Excessive ambition

Quick to anger Good temper Passivity

Unkind truthfulness Truthfulness Dishonesty

Source: Nicomachean Ethics, Aristotle. Adapted from: www.cwu.edu/-warren/Unit1/aristotles_virtues_and_vices.htm.

Chapter 2 Determining Moral Behavior 23

of the patterns of a lifetime. Those with good character will do the right thing, and those with bad character usually will choose the immoral path. Every day we are confronted with numerous opportunities to lie, cheat, and steal. When a cashier looks the other way, we could probably filch a $20 bill from the cash drawer, or when a clerk gives us a $10 bill instead of a $1 bill by mistake, we could keep it instead of handing it back. Gener­ ally, it does not even occur to us to steal. We do not have to go through any deep ethical analysis in most instances when we can do bad things, because our habits of a lifetime dictate our actions.

Somewhat related to the ethics-of-virtue ethical system are the Six Pillars of Character promulgated by the Josephson Institute of Ethics (2008). The Six Pillars of Character echo Aristotle's virtues. They include the following:

1. Trustworthiness. This concept encompasses honesty and meeting one's obligations.

2. Respect. The concept admonishes us to treat each person with respect and not as a means to an end.

3. Responsibility. This means standing up for one's choices and being accountable.

4. Fairness. This concept involves issues of equality, impartiality, and due process.

5. Caring. This pillar encompasses the ideas of altruism and benevolence.

6. Citizenship. This requires us to fulfill the duties of every citizen; e.g., voting.

One difficulty with the ethics of virtue is in judging the primacy of moral virtues. For instance, in professional ethics there are often conflicts that involve honesty and loyalty. If both are virtues, how does one resolve a dilemma in which one virtue must be sacri­ ficed? Another difficulty is that it is not a system that provides an analysis of what to do in each dilemma. When faced with a true dilemma-that is, a choice where the "right" decision is unclear-the ethics of virtue does not provide any equation or approach to find the right answer.

Aristotelian virtue ethics certainly influenced later thinkers, but as the timeline dis­ played in Box 2.2 shows, other ethical systems eclipsed this older system for centuries. More recently, Alasdair MacIntyre (1991, 1999), a contemporary philosopher, defines vir­ tues as those dispositions that will sustain us in a quest to live a good life. MacIntyre also seems to endorse an ethics-of-care approach, as he sees life as an exchange of reciprocal indebtedness and emphasizes networks of relationships. This language is like that of the ethics of care, which will be discussed in a later section of this chapter.

Faced with the ethical dilemma presented in Situation 1 at the end of this chapter, how will the ethics of virtue help you decide what to do when a friend steals from the store you manage? One would determine what choice was consistent with the virtues of trustworthiness, respect, responsibility, fairness, caring, and citizenship. It seems clear that these virtues are more consistent with stopping the theft and firing the friend. One cannot be trustworthy or responsible and allow theft to occur.

Natural Law The natural law ethical system holds that there is a universal set of rights and wrongs, akin to many religious beliefs but without reference to a specific supernatural figure. No difference is recognized between physical laws-such as the law of gravity-and moral laws. Morality is part of the natural order of the universe. Further, this morality is the same across cultures and times. In this view, Christians simply added God as a source of law (as other religions added their own prophets and gods), but there is no intrinsic need to resort to a supernatural figure, because these universal laws exist quite apart from any religion (Buckle, 1993; Maestri, 1982).

The natural law ethical system presupposes that what is good is what is natural, and what is natural is what is good. The essence of morality is that which conforms to the natural world; thus, there are basic inclinations that form the core of moral princi­ ples. For instance, the preservation of one's own being is a natural inclination and thus a basic principle of morality. Actions consistent with this natural inclination would be those that preserve one's own life, such as acting in self-defense, but also those that

natural law The idea that principles of morals and rights are inherent in nature and not human­ made; such laws are discovered by reason, but exist apart from humankind.

24 PART I Ethics and the Criminal Justice System

■ :t•J:fJj Timeline of Ethics

Socrates (469-399 BCE)

Plato (429-34 7 BCE)

Aristotle (384-322 BCE)

St. Augustine (354-430)

St. Thomas Aquinas (1225-1274)

John Locke (1632-1704)

Adam Smith (1723-1790)

Immanuel Kant (1724-1804)

Jeremy Bentham (1748-1832)

John Stuart Mill (1806-1873)

Ayn Rand (1905-1932)

John Rawls (1921-2002)

Alasdair MacIntyre (1929-)

Nel Noddings (1929-)

Virtue theory

Natural law

Religion

Religion

Social contract

Egoism

Ethical formalism

Utilitarianism

Utilitarianism

Egoism

Ethical formalism+ Utilitarianism

Neo-virtue theory

Ethics of care

preserve or maintain the species, such as the prohibition against murder. Other inclina­ tions are peculiar to one's species-for instance, humans are social animals; thus, socia­ bility is a natural inclination that leads to altruism and generosity. These are natural and thus moral. The pursuit of knowledge or understanding of the universe might also be recognized as a natural inclination of humans; thus, actions that conform to this natural inclination are moral.

The Greek philosophers recognized natural law, but we also see it clearly in later writ­ ings, such as those of St. Augustine, who is attributed with a famous quote: "An unjust law is no law at all:'This concept refers to the idea that if man's law contradicts the law of nature, then not only is it wrong, it may not even be considered law. St. Thomas Aquinas, in Summa Theologiae, distinguished natural law from God's law, and placed reason at the epicenter of the natural law system: "Whatever is contrary to the order of reason is contrary to the nature of human beings as such; and what is reasonable is in accordance with human nature as such" (Aquinas as cited in Buckle, 1993: 165).

Natural law theory defines good as that which is natural. The difficulty of this sys­ tem is identifying what is consistent and congruent with the natural inclinations of humankind. How do we know which acts are in accordance with the natural order of things? Natural law has been employed to restrict the rights and liberties of groups of people; for instance, historically, the so-called "natural superiority" of whites was used to support and justify slavery, and the "natural" role of women as child-bearers restricted their employment opportunities. Today, natural law is sometimes employed to

Chapter 2 Determining Moral Behavior 25

oppose same-sex marriage with the argument that the only natural marriage is between heterosexuals for procreation. Proponents of same-sex marriage argue that there is a natural human need for bonding, noting that many heterosexual marriages exist for rea­ sons other than procreation, but that does not make them unnatural. The fundamental problem with this ethical system is: how does one know whether a moral rule is based upon a true natural law or a mistaken human perception of natural law?

Applying natural law to the ethical dilemma of a friend stealing from an employer (Situation 1 at the end of this chapter), the natural need for sociability is why loyalty to friends is such a strong force, even when they do wrong. In this case, this natural law of sociability explains why we feel torn between our friend and our employer, but reason dictates that social relationships are bound by trust. Therefore, honesty and fair dealings are always prioritized over other values, even loyalty.

Religion St. Augustine and St. Thomas Aquinas described natural laws, but they were also Christian theologians who placed morality and ethics within the discussion of sin. Religion pro­ vides moral guidelines and directions on how to live one's life. For instance, Christians and Jews are taught the Ten Commandments, which prohibit certain behaviors defined as wrong. The authority of religious ethics, in particular Judea-Christian ethics, stems from a willful and rational God. For believers, the authority of God is beyond question, and there is no need for further examination because of His perfection. The only possible controversy comes from human interpretation of God's commands. Indeed, these differ­ ences in interpretation are the source of most religious strife.

Religious ethics is, of course, much broader than simply Judea-Christian ethics. Religions such as Buddhism, Confucianism, and Islam also provide a basis for ethics because they offer explanations of how to live a "good life:' Pantheistic religions-such as those of primitive hunter-gatherer societies-promote the belief that there is a living spirit in all things and tend not to be judgmental. A religion must have a dogma that defines right and wrong to be a basis for an ethical system.

It is also true that many of the religions we might discuss have similar basic moral principles. Many have a version of the Ten Commandments. In this regard, Islam is not too different from Judaism, which is not too different from Christianity. What Christians recognize as the Golden Rule predates Christianity, and the principle can be found in all the major religions, as well as offered by ancient philosophers:

• Christianity: "Do unto others as you would have them do unto you:'

• Hinduism: "Do naught to others which, if done to thee, would cause thee pain: this is the sum of duty:'

• Buddhism: "In five ways should a clansman minister to his friends and familiars ... by treating them as he treats himself:'

• Confucianism: "What you do not want done to yourself, do not do unto others:'

• Judaism: "Whatsoever thou wouldst that men should not do unto thee, do not do that to them:'

• lsocrates: "Do not do to others what would anger you if done to you by others:'

• Diogenes Laertius, Lives of the Philosophers: "The question was once put to Aristotle how we ought to behave to our friends; and his answer was, 'As we should wish them to behave to us."'

• The Mahabharata: "This is the sum of all true righteousness, deal with others as thou wouldst thyself be dealt by. Do nothing to thy neighbor which thou wouldst not have him do to thee hereafter:' (Reiman, 1990/2004: 147; Shermer, 2004: 25)

A fundamental question discussed by philosophers and Christian religious scholars is whether God commands us not to commit an act because it is inherently wrong (e.g., "Thou shalt not kill"), or whether an act acquires its "badness" or "goodness" solely from God's definition of it. Some believe that God is inviolable and that positions on

religious ethics The ethical system that is based on religious beliefs of good and evil; what is good is that which is God's will.

26 PART I Ethics and the Criminal Justice System

ethical formalism The ethical system espoused by Kant that focuses on duty; holds that the only thing truly good is a good will, and that what is good is that which conforms to the categorical imperative.

deontologlcal ethical system The study of duty or moral obligation emphasizing the intent of the actor as the element of morality, without regard to the consequences of acts.

moral questions are absolute. This is a legalist position. Others believe that God's will varies by time and place-the situationalist position. In this position, situational factors are important in determining the rightness of any action. Something may be right or wrong depending on the circumstances (Borchert and Stewart, 1986: 157). For instance, lying may be wrong unless it is to protect an innocent, or stealing may be wrong unless it is to protest injustice and to help unfortunates.

Another issue in Western religious ethics is how to determine God's will. Some would say that it is impossible to have an a priori knowledge of God's will, because that would put us above God's law: we ourselves cannot be "all-knowing:'Thus, for any decision, we look for the right course of action by understanding God's will. Human beings can "know" God's will in three ways: individual conscience or faith, religious authorities (priests, ministers, Rabbis, lmans), and holy scriptures (e.g., Bible, Quran, orTorah) (Barry, 1985: 51-54).

Strong doubts exist as to whether any of these methods are true indicators of divine command. Our consciences may be no more than the products of our psychological development, influenced by our environment. Religious authorities are, after all, only human, with human failings. Even the Bible seems to support contradictory principles. For instance, advocates of capital punishment can find passages in the Bible that support it (such as Genesis 9:6: "Whoever sheds the blood of man, by man shall his blood be shed"), but opponents of capital punishment argue that the NewTestament offers little direct support for execution and has many more passages that direct one to forgive, such as Matthew 5:38-40: "Offer no resistance to injury. When a person strikes you on the right cheek, turn and offer him the other:'

The question of whether people can ever know God's will has been explored through the ages. St.Thomas Aquinas (1225-1274) believed that human reason was sufficient not only to prove the existence of God but also to discover God's divine commands. Others believe that reason is not sufficient to know God, and that it comes down to unques­ tioning belief, so reason and knowledge must always be separate from faith. These peo­ ple believe that one can know whether an action is consistent with God's will only if it contributes to general happiness, because God intends for us to be happy, or when the action is done through the Holy Spirit-that is, when someone performs the action under the influence of true faith (Borchert and Stewart, 1986: 159-171 ). This discussion has focused on Christianity; therefore, Box 2.3 briefly describes some of the other major world religions.

To summarize, the religious ethics system is widely used and accepted. The authority of the god figure is the root of all morality; basic conceptions of good and evil or right and wrong come from interpretations of the god figure's will. In the dilemma of whether to go along with a friend who steals, using Christianity as an ethical system, one need look no further than the Eighth Commandment to see clear direction that stealing is wrong. Letting someone do it under your supervision would make you complicit.

Ethical Formalism Ethical formalism is a deontological system. A deontological ethical system is one that is concerned solely with the inherent nature of the act being judged. If an act or intent is inher­ ently good (coming from a good will), it is still considered a good act even if it results in adverse consequences. The philosopher Immanuel Kant (1724-1804) wrote that the only thing that is intrinsically good is a good will. On the one hand, if someone does an action from a good will, it can be considered a moral action even if it results in adverse conse­ quences. On the other hand, if someone performs some activity that looks on the surface to be altruistic but does it with an ulterior motive-for instance, to curry favor or gain benefit­ that act is not judged as "good" just because it results in good consequences.

Kant believed that moral worth comes from doing one's duty. Just as there is the law of the family (father's rule), the law of the state and country, and the law of interna­ tional relations, there is also a universal law of right and wrong. Morality arises from the fact that humans, as rational beings, impose these laws and strictures of behavior upon themselves (Kant, trans. Beck, 1949: 76). Kant was a Christian, but he also believed that what is good could be discovered through pure reason.

Chapter 2 Determining Moral Behavior 27

■:J•►=tll Overview of Major World Religions

Judaism Judaism is older than Christianity or Islam, with the Torah, rather than the Bible, as its foundational text. As with Christianity and Islam, there are various movements or divisions under Judaism, but, generally, Judaism incorporates a monotheistic belief in God, with recognized prophets including Abraham and Moses. Judaism teaches that Jesus was not the Messiah or son of God (like Islam), nor a prophet (unlike Islam), because of disagreements with Jewish teachings. The definition of what is good in Judaism comes from the Torah, the Talmud, and religious authorities. Judaism's definitions of goodness lie in virtues and religious faith. Believers are exhorted to lead a righteous life that includes helping the needy. Virtues include benevolence, faith, and compassion. The Jewish version of the Golden Rule is: "What is hateful to you, do not do unto others~ False­ hoods, unkind actions, stealing, and revenge are wrong. Shalom {peace), the path by which one should live one's life, could equate to pleasantness and kindness in dealings with others.

Islam One of the newest, yet largest, religions is Islam. Like Christianity, this religion recognizes one god, Allah. Jesus and other religious figures are recognized as prophets, as is Muhammad, who is the last and great­ est prophet. Islam is based on the Quran, which is taken much more literally as the word of Allah than the Bible is taken by most Christians. There is a great deal of fatalism in Islam: inshal/ah, meaning, "If God wills it; is a prevalent theme in Muslim societies, but there is recognition that if people choose evil, they do so freely. The five pillars of Islam are (1) repetition of the creed (shahada), (2) daily prayer (sa/ah), (3) almsgiving (zakat), (4) fasting (sawm), and (5) pilgrimage (hajj).

Another feature of Islam is the idea of the holy war. In this concept, the faithful who die defending Islam against infidels will be rewarded in the afterlife (Hopfe, 1983). This is not to say that Islam provides a legitimate justification for terroristic acts. Devout Muslims protest that terrorists have subverted the teachings of Islam and do not follow its precepts, one of which is never to harm innocents.

Buddhism Siddhartha Gautama (Buddha) attained enlightenment and preached to others how to do the same and achieve release from suffering. He taught that good behavior is that which follows the "middle path" between asceticism and hedonistic pursuit of sensual pleasure. Essentials of Buddhist teachings are eth­ ical conduct, mental discipline, and wisdom. Ethical conduct is based on universal love and compassion for all living beings. Compassion and wisdom are needed in equal measures. Ethical conduct can be bro­ ken into right speech (refraining from lies, slander, enmity, and rude speech), right action (abstaining from destroying life, stealing, and dishonest dealings, and helping others lead peaceful, honorable lives), and right livelihood (abstaining from occupations that bring harm to others, such as arms dealing and killing animals). To follow the "middle path," one must abide by these guidelines (Kessler, 1992).

Confucianism Confucius taught a humanistic social philosophy that included central concepts such as ren, which is human virtue and humanity at its best, as well as the source of moral principles; Ii, which is traditional order, ritual, or custom; xiao, which is familial love; and yi, which is rightness, both a virtue and a principle of behavior-that is, one should do what is right because it is right. The doctrine of the mean exemplifies one aspect of Confucianism that emphasizes a cosmic or natural order. Humans are a part of nature and are included in the scheme of life. Practicing moderation in one's life is part of this natural order and reflects a "way to Heaven" (Kessler, 1992).

Hinduism In Hinduism, the central concept of karma can be understood as consequence. Specifically, what one does in one's present life will determine what happens in a future life. The goal is to escape the eternal birth/rebirth cycle by living one's life in a moral manner so that no bad karma will occur (Kessler, 1992). People start out life in the lowest caste, but if they live a good life, they will be reborn as members of a higher caste, until they reach the highest Brahman caste, and at that point, the cycle can end. An early source for Hinduism was the Code of Manu. In this code are found the ethical ideals of Hinduism, which include pleasantness, patience, control of mind, refraining from stealing, purity, control of the senses, intelligence, knowledge, truthfulness, and nonirritability (Hopfe, 1983).

28 PART I Ethics and the Criminal Justice System

hypothetical imperatives Statements of contingent demand known as if-then statements (if I want something, then I must work for it); usually contrasted with categorical imperatives (statements of "must" with no "ifs").

categorical Imperative The concept that some things just must be, with no need for further justification, explanation, or rationalization for why they exist (Kant's categorical imperative refers to the imperative that you should do your duty, act in a way you want everyone else to act, and don't use people).

To understand Kant's categorical imperative, first you must understand the differ­ ence between hypothetical and categorical imperatives. Hypothetical imperatives are commands that designate certain actions to attain certain ends. Examples are" If I want to be a success, then I must do well in college" or "If I want people to like me, then I must be friendly:' By contrast, a categorical imperative commands action that is neces­ sary without any reference to intended purposes or consequences. The "imperative of morality" needs no further justification (Kant, trans. Beck, 1949: 76). The following consti­ tute the principles of Kant's categorical imperative of morality (Bowie, 1985: 157):

• Act only on that maxim through which you can at the same time will that it should become a universal law. In other words, for any decision of behavior to be made, examine whether that behavior would be acceptable if it were a universal law to be followed by everyone. For instance, a student might decide to cheat on a test, but for this action to be moral, the student would have to agree that everyone should be able to cheat on tests.

• Act in such a way that you always treat humanity, whether in your own person or that of any other, never simply as a means but always at the same time as an end. In other words, one should not use people for one's own purposes. For instance, being friendly to someone only to obtain a favor is using that person. Even otherwise moral actions, such as giving to charity or doing charitable acts for others, would be consid­ ered immoral if done for ulterior motives such as self-aggrandizement.

• Act as if you were, through your maxims, a lawmaking member of a kingdom of ends. This principle directs that the individual's actions should contribute to and be con­ sistent with universal law. However, the good act must be done freely. If one is com­ pelled to do a good act, the compulsion removes the moral nature of the act. Only when we freely choose to abide by moral law without coercion are good acts a reflec­ tion of the higher nature of humans.

Ethical formalism is an absolutist system-if something is wrong, it is wrong all the time, such as murder or lying. To assassinate evil tyrants such as Adolf Hitler, Saddam Hussein, or Osama Bin Laden might be considered moral under a teleological system which weighs goodness by the consequences of actions, because ridding the world of dangerous, evil people is a good end. However, in the deontological view, if the act and intent of killing are wrong, then killing is always wrong; thus, assassination must be considered immoral in all cases, regardless of the good consequences that might result.

The absolutism of ethical formalism is criticized by those who argue that there are sometimes exceptions to any moral rule, such as "one should not lie." In a well­ known hypothetical, Kant argued that if someone asked to be hidden from an attacker in close pursuit, and then the attacker asked where the potential victim was hiding, it would be immoral to lie about the victim's location. This seems wrong to many of us. However, Kant argued that an individual cannot control consequences, only actions; therefore, one must act in a moral fashion without regard to potential consequences. In the example, the attacker may not kill the potential victim, the victim may still get away, or the attacker may be justified. The victim may have even left the place you saw them hide and move to the very place you offer to the attacker as a lie. Also, to not say anything is always an option to lying. The point is that a person cannot control what happens in life, so the only thing that makes sense is to live by the categorical impera­ tive, which does not justify lying.

Kant defended his position with semantics-distinguishing untruths from lies with the explanation that a lie is a lie only when the recipient is led to believe or has a right to believe that he or she is being told the truth. The attacker in the previous scenario, or an attacker who has one "by the throat:' demanding one's money, has no right to expect the truth; thus, it would not be immoral not to tell this person the truth. Only if one led the attacker to believe that one was going to tell the truth and then did not would one violate the categorical imperative. To not tell the truth when the attacker doesn't deserve the truth is not a lie, but if one intentionally and deliberately sets out to deceive, then that is a lie-even if it is being told to a person who doesn't deserve the truth (Kant, ed. Infield, 1981 ).

Chapter 2 Determining Moral Behavior 29

Criticisms of ethical formalism include the following (Maestri, 1982: 910):

• Ethical formalism seems to be unresponsive to extreme circumstances. If something is wrong in every circumstance regardless of the good that results or good reasons for the action, good people might be judged immoral or unethical.

• Morality is limited to duty. One might argue that duty is the baseline of morality, not the highest aspiration of it. Further, it is not always clear where one's duty lies. At times one might face a dilemma where two duties conflict with each other.

• The priority of motive and intent over result is problematic in some instances. Many would argue that the consequences of an action and the actual result must be evalu­ ated to determine morality.

Other writers present variations of deontological ethics that do not depend so heav­ ily on Kant (Braswell, McCarthy, and McCarthy, 2007). The core elements of any deonto­ logical or duty-based ethical system are the importance placed on intention and the use of a predetermined set of principles to judge morality, rather than an evaluation of the consequences of an act.

We can apply ethical formalism to our dilemma of the friend who steals by deter­ mining one's duty. Your duty as a manager certainly would include stopping your friend from stealing and, perhaps, firing her because of her dishonesty. Applying the categori­ cal imperative, the first premise states that your desired action should be acceptable as a universal law. Allowing employees to steal surely cannot be a universal law; therefore, it would be unjustifiable to allow it to happen. The second part of the categorical impera­ tive is to not use people. In this case, it seems as if she is using you much more than you would be using her by stopping her from stealing. The third premise of the categorical imperative states that your action must be done because of its inherent morality, not some ulterior purpose. To be considered moral, you would have to stop her because it is the right thing to do, not because you are afraid of being caught.

Utilitarianism Utilitarianism is a teleological ethical system. A teleological ethical system judges the utilitarianism The consequences of an act. Even a bad act, if it results in good consequences, can be defined ethical system that as good under a teleological system. The saying "the end justifies the means" is a tele­ claims that the ological statement. Jeremy Bentham (1748-1832), a major proponent of utilitarianism, greatest good is that

believed that the morality of an action should be determined by how much it contributes which results in the greatest happiness forto the good of the majority. Bentham argued that human nature seeks to maximize plea­ the greatest number;sure and avoid pain, and a moral system must be consistent with this natural fact. major proponents areThe "utilitarian doctrine asserts that if one can show that an action significantly con­ Bentham and Mill.tributes to the general good, then it is good, even if it results in negative effects for individ­

uals" (Barry, 1985: 65). This is because the utility or good derived from that action for the teleological ethical majority generally outweighs the small amount of harm done to the individual (because system An ethicalthe harm is done only to one, whereas the good is multiplied by the many). For instance, system that considersif it could be shown that punishing an innocent person would be an effective deterrent to the consequences orcrime, the wrong done to that person by this unjust punishment would be outweighed ends of an action inby the good resulting for society. This example shows how the individual sometimes is order to determine its

sacrificed for the good of the many. However, if citizens found out about the injustice and goodness.

lost respect for the authority of the legal system, that would be a negative effect for all con­ cerned, illustrating the problem of trying to predict outcomes in utilitarianism.

Recall from the first chapter that some people argued against closure and stay-at­ home orders that were issued by state and local authorities to reduce the spread of the pandemic. The protesters' utilitarian argument was that the harm from closing busi­ nesses affected many more people economically than the harm from the number of peo­ ple who might ultimately die or become seriously ill from the virus. However, like in the example above, a utilitarian argument that weighs costs and benefits presumes to know the future, when, in reality, in most situations, we cannot know, just as no one in March or April of 2020 would have known that there would be over 500,000 deaths by the end of February 2021, even with the closure orders in place in some states.

30 PART I Ethics and the Criminal Justice System

IWALKING THE WALK

Captain Brett Crozier, former commanding officer of the aircraft carrier USS Theodore Roosevelt, made a decision that cost him his 30-year naval career. Crozier began his naval career flying helicopters, then transferred to fixed-wing aircraft, was promoted to command an F/A-18 Hornet fighter squadron, and eventually rose to command an aircraft carrier.

In March 2020, the ship made a port call to Danang, Viet Nam where, evidently, the COVID-19 virus came aboard with one or more sailors who had taken shore leave. After the first case was diagnosed, Crozier began testing the entire crew and evacuated crew members who tested positive to shore hospitals. As the ship made its way to Guam, the number of afflicted increased. Crozier pressed his superiors to allow the majority of crew to leave the ship and be quarantined in hotels, but they did not want to take the carrier out of action, and the prospect of finding room to quarantine most of the 4,000 crew members in Guam was no doubt part of their decision to reject his pleas.

On March 30, he sent an unclassified, four-page email to 10 people, including three admirals in his chain of command, and seven captains who were assistants to admirals. The memo pleaded for permission to get people off the ship because "the spread of the disease is ongoing and accelerating.• He argued that "We are not at war," and that "Sailors do not need to die. If we do not act now, we are failing to properly take care of our most trusted asset - our sailors." The memo was leaked to the press. One day after it was leaked, arrangements were made for crew members to be moved to quarantine on shore.

On April 2, three days after the memo was leaked to the press, Acting Secretary of the Navy Thomas Madly relieved Crozier of his command, against advice from some of his staff, including Adm. Michael Gilday, who had earlier stated he would not "fire the messenger."

When Crozier left the ship, a widely disseminated video showed the sailors giving him a standing ovation. Many par­ ents of the sailors publicly thanked him. Arguably because of this public support, Madly, traveled to the ship and, in an

Soun:es: Schmitt and Ismay, 2020; Korb, 2020; Welna, 2020.

expletive-laced rant over the public address system, scolded the crew for their support and said Crozier was too "stupid" or "na'ive" to command a ship because he didn't know or care that his email would be leaked to the press. In short order, an audio of Medley's rant was leaked to the press and he resigned.

Then Gilday announced that he would investigate the in­ cident. After a month-long investigation, he recommended that Crozier be given back command of the ship; however, the Secre­ tary of Defense, Mark Esper, did not endorse the recommenda­ tion, and the new acting secretary of the Navy ordered another investigation. On June 19, Kenneth Braithwaite, the Secretary of the Navy, and Gilday announced the results of that investigation, which included the finding that Crozier did not do enough soon enough to prevent the disease from spreading on his ship. The Navy announced that Crozier would not be returned to his com­ mand. They did not say his memo was the reason for his firing.

Rear Adm. Stuart Baker, the commander of the aircraft carrier's strike group, who was also on the Roosevelt and had rebuffed Crozier's requests to evacuate most of the crew, also faced punishment by having his promotion put on hold. How­ ever, critics argued that the commander of the Inda-Pacific Com­ mand, Adm. Philip Davidson, should also be held accountable for ordering the port stop in Danang even though COVID-19 had already been detected, and for not agreeing to Crozier's requests.

Chief Petty Officer Charles Robert Thacker Jr., 41, died April 13, and 1,100 crewmembers tested positive, including Crozier himself. Family of crewmembers believe that more might have died but for Crozier's memo.

Crozier has been silent on the matter, but his friends and colleagues have explained to the media that the decision that cost him his career was not made in haste or because he was overwhelmed. Protecting his crew above all was in keeping with his character. Crozier, known as "Chopper" after his stint flying helicopters, was described by a former colleague: "Chopper is one of the best people I have ever known, both professionally and personally."

Although utilitarianism is quite prevalent in ethical reasoning, there are some seri­ ous criticisms of it:

• All "pleasures" or benefits are not equal. Bentham did not judge the relative weight of utility. He considered pleasure to be a good, whether it derived from vice such as avarice or greed, or from virtue such as charity and kindness. Later utilitarians, primar­ ily John Stuart Mill (1806-1873), believed that utilities (benefits) had different weights or values. In other words, some were better than others. For instance, art offers more utility for society than alcohol - even though both may bring utility or benefit to indi­ viduals, altruism carries more benefit than pleasure, and so on.

Chapter 2 Determining Moral Behavior 31

• The system presumes that one can predict the consequences of one's actions. In the well-known "lifeboat" dilemma, five people are in a lifeboat with enough food and water only for four. It is certain that they will survive if there are only four; it is also certain that they will all perish if one does not go overboard. What should be done? Under ethical formalism, it would be unthinkable to sacrifice an innocent, even if it means that all will die. Under utilitarian ethics, it is conceivable that the murder of one might be justified to save the others. But this hypothetical situation points out the fal­ lacy of the utilitarian argument. In real life, it would not be known whether any would survive regardless of the decision. The fifth might be murdered and five minutes later a rescue ship appears on the horizon. The fifth might be murdered, but then the remaining four eventually perish as well. Only in unrealistic hypothetical situations does one absolutely know the consequences of one's action. In real life, one never knows if an action will result in a greater good or ultimate harm. Recall that assassi­ nating Hitler might be considered good under utilitarianism. One presumes that kill­ ing Hitler would avoid the Holocaust; however it could be that a different leader of the Nazi party would have been more successful, and Germany might have won the war with even more deaths occurring because of Hitler's assassination. The point is that one cannot ever be sure of the effects of one's actions.

• There is little concern for individual rights in utilitarianism. Ethical formalism demands that everyone must be treated with respect and not be used as a means to an end. However, under utilitarianism, the rights of one individual may be sacrificed for the good of many.

Utilitarianism has two forms: act utilitarianism and rule utilitarianism. The basic dif­ ference between the two can be summarized as follows: in act utilitarianism, only the basic utility derived from one action is examined. We look at the consequences of an action for all involved and weigh the units of utility accordingly. In rule utilitarianism, one judges that action by the precedent it sets and the long-term utility of the rule set by that action.

On the one hand, act utilitarianism might support stealing food when one is hun­ gry with no other way to eat, because the utility of survival would outweigh the loss to the victim of the theft. On the other hand, rule utilitarianism would be concerned with the effect that the action would have if made into a rule for behavior: "Any time an individual cannot afford food, he or she can steal it" would contribute to a state of lawlessness and a general disrespect for the law. Such a rule would probably not result in the greatest utility for the greatest number. With rule utilitarianism, then, we are concerned not only with the immediate utility of the action but also with the long-term utility or harm if the action were to be a rule for all similar circumstances. Note the similarity between rule utilitarianism and the first principle of the categori­ cal imperative. In both approaches, one must judge as good only those actions that can be universalized.

In summary, utilitarianism holds that morality must be determined by the conse­ quences of an action. Society and the survival and benefit of all are more important than any individual. An act is moral if it benefits the continuance and good health of society. Rule utilitarianism may be closer to the principles of ethical formalism, because it weighs the utility of such actions after they have been made into general laws of behavior, and this premise is very similar to "act in such a way as to will it to become a universal law;' the first part of Kant's categorical imperative. The difference between ethical formalism and rule utilitarianism is that actions are judged right or wrong depending on the motives behind them under ethical formalism, whereas util­ itarianism looks to the long-term consequences of the prescribed rules to determine their morality.

Returning to the dilemma of the friend who steals, you must consider every poten­ tial consequence, including your own feelings of guilt. The benefit to her by ignoring her actions would be counterweighed by the loss to your employer, and, therefore, act (and rule) utilitarianism would not support letting her take the items. Weighing the benefit of firing her or not is a bit more equivocal. Firing her would be a disutility (negative) to

act utilitarianism The type of utilitarianism that determines the @odness of a particular act by measuring the utility (@od) for all, but only for that specific act and without regard for future actions.

rule utilitarianism The type of utilitarianism that determines the @odness of an action by measuring the utility of that action when it is made into a rule for behavior.

32 PART I Ethics and the Criminal Justice System

ethics of care The ethical system that defines good as meeting the needs of others and preserving and enriching relationships.

peacemaking justice An ancient approach to justice that includes the concepts of compassion and care, connectedness, and mindfulness.

her, a benefit to your employer, and probably to you as well in that you wouldn't have to worry about her stealing again, but there is also the negative consequence to you in that you'll probably lose a friend. Applying rule utilitarianism would result in firing her {because the long-term rule of firing thieves is more palatable than the alternative), but act utilitarianism might support warning her and letting her continue in the job if the loss of her friendship was more negative than the positive of not having to worry about her stealing again. Act utilitarianism can sometimes justify things for this one person, this one time, that could not be justified if made into a rule for the future. Note that such concepts as duty do not play into this ethical reasoning-only the positive and negative consequences of each behavior choice.

The Ethics of Care The ethics of care is based on human relationships and needs. It has been described as a feminine morality, because women in all societies are the child bearers and conse­ quently seem to have a greater sensitivity to issues of care. Noddings (1986: 1) points out that the "mother's voice" has been silent in Western, masculine analysis: "One is tempted to say that ethics has so far been guided by Logos, the masculine spirit, whereas the more natural and perhaps stronger approach would be through Eros, the feminine spirit:'

The ethical systems we have discussed thus far have been rooted in reason­ humans' ability to weigh the consequences of their actions and analyze them. The ethics of care is founded in emotion-the natural human response to care for a new­ born child, the ill, and the hurt. There are similarities in the ethics of ca re's idea that morals derive from natural human impulses of compassion and Jean-Jacques Rous­ seau's (1712-1778) argument that morality is based in emotion rather than rational­ ity: "What I feel is right is right, what I feel is wrong is wrong" {Rousseau, as cited by Ruggiero, 2001: 28).

Carol Gilligan's work on moral development in psychology identified a feminine approach to ethical decision making that focused on relationships and needs instead of rights and universal laws. The most interesting feature of this approach is that while a relatively small number of women emphasized needs over rights, no men did. She attributed this to Western society, in which men and women are both socialized to Western ethics, which are primarily concerned with issues of rights, laws, and universalism {Gilligan, 1982).

Applying the ethics of care does not necessarily lead to different solutions, but per­ haps to different questions. In an ethical system based on care, we would be concerned with issues of needs rather than rights. Other writers point to Eastern religions such as Taoism as illustrations of the ethics of care {Braswell and Gold, 2002; Larrabee, 1993). In these religions, a rigid, formal, rule-based ethics is rejected in favor of gently lead­ ing the individual to follow a path of caring for others. In criminal justice, the ethics of care is represented to some extent by the rehabilitative ethic rather than the just-deserts model. Certainly, the "restorative justice" movement is consistent with the ethics of care because of its emphasis on the motives and needs of all concerned, rather than simply retribution.

A concept called peacemaking justice includes the possibility of mercy and compas­ sion within the framework of justice. It is composed of three parts: connectedness {with each other), caring {as a natural inclination), and mindfulness {of others in all decisions) {Braswell and Gold, 2002: 25-37).

To summarize, the ethics-of-care approach identifies the needs of all individuals in any ethical situation and attempts to maximize them. It differs from utilitarianism, how­ ever, in that one person can never be sacrificed for others. Also, there is an attempt to resolve situations through human relationships, and a sense that decisions should come from compassion rather than attention to rights or duties.

The ethics of care would support not seeing the dilemma of the thieving friend as a binary choice of stopping her or not, and/or firing her or not. Caring for one's friend

Chapter 2 Determining Moral Behavior 33

would certainly involve not allowing her to make such a bad choice; but the ethical thing to do might involve doing more; for example, showing her why what she wanted to do is harmful and helping her learn from the experience. There would also be atten­ tion to need: does she need the clothes because of poverty? If so, the resolution would be different than if the theft were just due to greed. You still would not let her steal, but you would try to help her meet her needs in some other way.

I Egoism: Ethical System or Not?

QUOTE&QU ERY Greed is good!

Source: Gordon Gekkco, character in the 1987 movie Wall Street.

(t;'l ls this statement consistent with egoism? ~ Do you believe that we are, by nature,

selfish?

Egoism postulates that what is good for one's survival and personal happiness is moral. The extreme of this position is that all people should operate on the assumption that they can do whatever benefits themselves. Others become solely the means to ensure happiness; there is no recognition of the rights of others under this system. For this reason, some have rejected egoism as an ethical system entirely, arguing that it is fun­ damentally inconsistent with the element that an ethical system cannot be "self-serving" (Baelz, 1977).

Psychological egoism refers to the belief that humans are naturally egoists and that it would be unnatural for them to be any other way. All species have instincts for sur­ vival, and self-preservation and self-interest are merely part of that instinct. Therefore, it is not only moral to be egoistic - it is the only way we can be, and any other explanations of behavior are mere rationalizations. In behaviors that appear to be altruistic, such as giving to charity or volunteering, the argument goes that these acts provide psychic and emotional pleasure to the individual, and that motivates them, not altruism. Even though acts such as running into a burning building or jumping into a river to save victims seem altruistic, psychological egoists believe that these acts occur because of the personality makeup of individuals who derive greater pleasure from being considered heroes, or enjoy the adrenalin rush of the dangerous act, more than the feeling of security derived from staying on the sidelines.

Enlightened egoism is a slight revision of this basic principle, adding that each per­ son's objective is long-term welfare. This may mean that we should treat others as we would want them to treat us to ensure cooperative relations. Even seemingly selfless and altruistic acts are consistent with egoism, because these acts benefit the individual by ensuring reciprocal assistance. For instance, if you help your friend move when he asks you to, it is only because you expect that he will help you when you need some future favor. An enlightened egoist would do favors for people, but only because of the potential for benefit. Because long-term interests often dictate meeting obligations and helping others, enlightened egoists might look like altruists.

Adam Smith (1723-1790), the "father" of free enterprise, promoted a type of prac­ tical egoism, arguing that individuals pursuing their own personal good would lead to nations prospering as well. Capitalism is based on the premise that everyone pursuing self-interest will create a healthy economy: workers will work harder to get more pay; owners will not exploit workers too badly, because they might quit; merchants will try to get the highest price for items, whereas consumers will shop for the lowest price; and so on. When government or liberal do-gooders manipulate the market, capitalism works less optimally. Nietzsche is associated with egoism, as is Ayn Rand (1905-1982), who is perhaps the best-known modern writer/philosopher associated with egoism. She pro­ moted both psychological egoism (that humans are naturally selfish) and ethical egoism (that humans should be self-interested). Libertarians utilize Rand's writings to support their view of limited government and fierce individualism.

Most philosophers reject egoism because it violates the basic tenets of an ethical system. Universalism is inconsistent with egoism, because to approve of all people act­ ing in their own self-interest is not a logical or feasible position. It cannot be right for both you and me to maximize our own self-interests, because it would inevitably lead to conflict. Egoism would support exploitative actions by the strong against the weak,

egoism The ethical system that defines the pursuit of self-interest as a moral good.

psychological egoism The concept that humans naturally and inherently seek self-interest, and that we can do nothing else because it is our nature.

enlightened egoism The concept that egoism may appear to be altruistic because it is in one's long-term best interest to help others in order to receive help in return.

34 PART I Ethics and the Criminal Justice System

which seems wrong under all other ethical systems. One thing seems clear: when indi­ viduals are caught doing illegal acts, or acts that violate their professional codes of eth­ ics, or acts that harm others, it is usually only egoism that can justify their behavior.

I Other Methods of Ethical Decision Making

imperative principle The concept that all decisions should be made according to absolute rules.

utllltarian principle The principle that all decisions should be made according to what is best for the greatest number.

generalization principle The principle that all decisions should be made assuming that the decision would be applied to everyone else in similar circumstances.

Some modern writers present approaches to applied ethics that do not directly include the ethical systems discussed thus far. For instance, Krogstand and Robertson (1979) described three principles of ethical decision making:

• The imperative principle directs a decision maker to act according to a specific, unbending rule. (This is like ethical formalism.)

• The utilitarian principle determines the ethics of conduct by the good or bad conse­ quences of the action. (This is clearly utilitarianism.)

• The generalization principle is based on this question: "What would happen if all sim­ ilar persons acted this way under similar circumstances?" (This is the first premise of the categorical imperative and rule utilitarianism.)

Ruggiero (2001) proposes that ethical dilemmas be evaluated using three basic cri­ teria. The first principle is to examine one's obligations and duties, and what one has promised to do by contract or by taking on a role (this is like ethical formalism's focus on duty). The second principle is to examine moral ideals, such as how one's decision squares with prudence, temperance, justice, honesty, compassion, and other ideals (this is like Aristotle's ethics of virtue). The third principle is to evaluate the act to determine if it would result in good consequences (this is utilitarianism).

Close and Meier (1995: 130) provide a set of questions more specific to criminal jus­ tice professionals and sensitive to the due-process protections that are often discarded in a decision to commit an unethical act. They propose that the individual decision maker should ask the following questions that seem to be a combination of the ethical systems we have discussed:

1. Does the action violate another person's constitutional rights, including the right of due process?

2. Does the action involve treating another person only as a means to an end?

3. Is the action illegal?

ILP IN THE NEWS IEthical Exemplars

In the spring of 2020, in the wake of massive economic dis­ ruption and health risks due to the pandemic, many compa­ nies stepped up to model behavior that exemplified the virtues of charity, generosity, and caring. Some examples include:

• Jose Andres used his restaurants as community kitchens and provided free meals to those who lost their jobs and/ or were homeless;

• Venmo and Cashapp created virtual tip jars for restaurant workers around the country who were laid off from their jobs;

• Metropolitan Opera provided a series of free opera streams; • Uber Eats offered free delivery for a time and committed

to donating 300,000 meals to healthcare workers and first responders;

Source: Compliance Week, 2020.

• Some distilleries stopped production of bourbon or other spirits and began producing hand sanitizer and giving it away to first responders, healthcare workers, and nursing homes;

• Scholastic offered free virtual learning tools to educators; • Intel sourced and donated over one million personal

protective items like masks and gloves for those on the frontlines;

• Apple, Tesla, Nike, Gap, and other large companies used their supply chains to source PPE, ventilators and other equipment needed to fight the virus.

Many other examples exist of companies putting profits behind helping those fighting against or impacted by the COVID 19 pandemic.

Chapter 2 Determining Moral Behavior 35

4. Do you predict that your action will produce more bad than good for all persons affected?

5. Does the action violate department procedure or professional duty?

The simplest test is the "front-page" test. This ethical check asks us to evaluate our decision by whether we would be comfortable if it was on the front page of the newspa­ per. Public disclosure is often a good litmus test for whether something is ethical or not.

Using Ethical Systems to Resolve Dilemmas As discussed in Chapter 1, if confronted with an ethical dilemma, one can follow a series of steps to come to an ethical resolution:

1. Identify the facts.

2. Identify relevant values and concepts.

3. Identify all possible moral dilemmas for each party involved.

4. Decide what is the most immediate moral or ethical issue facing the individual.

5. Resolve the ethical or moral dilemma by using an ethical system or some other means of decision making.

ETHICAL DILEMMAS Detective Russell Poole was a Robbery-Homicide Division in­ vestigator with the Los Angeles Police Department (LAPD). In 1998, he was assigned an investigation regarding the alleged beating of Ismael Jimenez, a reputed gang member, by LAPD officers, and a suspected cover-up of the incident. In his inves­ tigation, he uncovered a pattern of complaints of violence by the antigang task force in the Ramparts Division. Gang mem­ bers told Poole and his partners that several officers harassed them, assaulted them, and pressured them to provide untrace­ able guns. The beating occurred because Jimenez would not provide the officers with a gun. An investigation of Officer Rafael Perez, a member of the antigang task force, led to Poole con­ cluding that several officers in the division were "vigilante cops." He requested that the investigation proceed further.

After Poole informed his superiors of what his investigation had uncovered, Bernard Parks, the LAPD chief at the time, or­ dered Poole to limit his investigation solely to the Jimenez beat­ ing. Poole prepared a 4O-page report on the Jimenez case for the district attorney's office, detailing the pattern of complaints, alleged assaults, and other allegations of serious wrongdoing on the part of the Rampart officers. Poole's report never reached the district attorney's office because his lieutenant, enforcing the chiefs orders, replaced his detailed report with a two-page re­ port written by the lieutenant and another supervisor. Poole knew that in not providing the district attorney's office with all the in­ formation he uncovered, he could be charged with obstruction of justice, and the report provided so little information that the officer probably would not even be charged. Poole's lieutenant then asked him to put his name on the report.

Law Although unlikely, Poole could be charged with obstruction of justice if he was found to have intentionally misled prosecutors as to the amount and quality of evidence against any suspect. Officers can be guilty of perjury if they testify or attest to un­ truths, but in this case, Poole was not being asked to lie, except by omission.

Polley It is important in a hierarchical organization for subordinates to follow the orders of superiors. However, it is also important that any organization reward and not punish those who live up to high ideals of honesty and mission. Obviously, Poole would be following formal policies to cooperate with the district at­ torney's office to pursue criminal convictions when warranted. Often in organizations there are formal and informal policies. Informal policies may act to obstruct the formal goals of the organization; in this case, there was a concerted effort to sup­ press the Rampart Division investigative findings.

Ethics Following the steps of analysis above, the first step is to de­ termine the relevant facts. For instance, if his superiors were telling him to avoid exposing the other wrongdoing because of an ongoing larger federal investigation, that would be an im­ portant fact to know. Other relevant facts include the findings of his investigation-how serious were the acts of the suspected officers? The second step is to identify concepts and values-in this case, duty, loyalty, legality, and integrity. Regarding the third step of identifying all the relevant dilemmas, Poole's dilemma

(continued)

36 PART I Ethics and the Criminal Justice System

was created by the unethical/illegal acts of the police officers and the acts of his superiors. They put him in the position of his immediate dilemma whether to sign the misleading report. Now we turn to applying the ethical systems.

Poole reported that he never considered putting his name on a report he knew was wrong. His superiors, coworkers, and colleagues described him as "professional," "hardworking,• "loyal, productive, thorough, and reliable," "diligent," "honest," and "extremely credible." He was known as a first-rate inves­ tigator and trusted by the district attorney's office to provide thorough and credible testimony. In other words, his habits in his professional life were directly contrary to participating in a cover-up. From all accounts, Poole represented many of Aristotle's virtues.

Natural law and religious ethics do not give us clear answers to Poole's dilemma. However, ethical formalism does, in that Kant's categorical imperative can be applied to his choice to sign or not sign the report. This dilemma illustrates that some­ times duties conflict: in this case, Poole's duty to follow the law conflicted with his duty to obey his superiors. The first part of the categorical imperative is to act in such a way that you would agree should be universal. Not exposing or pursuing evi­ dence of corruption would not be an action that we would want universalized, so signing the doctored report fails the first part of the categorical imperative. The second part of the imperative is to not treat others as a means to an end. It seems clear that Poole's superiors were attempting to use him to further their goals. Their behavior, then, violates this part of the imperative. If Poole does mislead the prosecutor by signing, then he is violat­ ing this imperative as well. The last portion of the imperative is that to be moral, behavior must be autonomous and freely cho­ sen. If Poole were frightened or pressured into doing something, then the action would not be moral regardless of what it was.

Soun:e: Boyer, 2001; Golab, 2000.

If, for instance, he believed that the district attorney would find out and come after him for falsifying a legal document, then he might not sign it, but it would not be because of a good will and, therefore, could not be considered a moral act.

Applying the utilitarian ethical system to Poole's dilemma requires determining which choice (to sign or not to sign) re­ sults in the greatest benefit to all (society, the department, his peers, and Poole himself). Did the greatest benefit lie in exposing the corruption or trying to hide it? Poole's superiors probably thought they were doing what was best for the LAPD. They did not want a scandal, especially considering that it had not been that long since the Rodney King incident. How­ ever, the attempt to suppress the actions of the Ramparts Division officers was unsuccessful anyway. A year after Poole refused to sign the report that protected Officer Rafael Perez, Perez was prosecuted for stealing a large amount of cocaine from the evidence room. In a plea arrangement, he told inves­ tigators from the district attorney's office the whole story of the Ramparts Division officers, leading to the biggest scan­ dal in LAPD's history. This illustrates one of the problems with utilitarianism: if people sacrifice their integrity for what they consider is a good cause, the result may be that they lose their integrity and fail to achieve their goal.

Under the ethics of care, individual needs should be con­ sidered to determine the best course of action. Unfortunately, sometimes individuals' needs are not met even when they do the right thing. Detective Poole knew what the right course of action was. He also knew that he would pay a price for doing it. In fact, after he refused to sign the report, he was transferred to a less prestigious position and denied a promotion. He was vilified and treated as a traitor by some officers when he went public with his evidence of a cover-up. Ultimately, he resigned from the LAPD.

cultural relativism The Idea that values and behaviors differ from culture to culture and are functional in the culture that holds them.

I Relativism and Universalism Ethical relativism describes the position that what is good or bad changes depending on the individual or group, and that there are no moral absolutes. Relativists believe that what is right is determined by culture and/or individual belief and that there are no universal laws. Absolutism, as previously discussed, is the position that, if something is wrong, it is always wrong. Universalism is a similar concept in that it is the position that what is considered wrong is wrong for all people for all time and if one wants to perform a certain act, one would have to agree that anyone else should be able to do it as well.

One may look to anthropology and the rise of social science to explain the popularity of moral relativism. Over the course of studying different societies-past and present, primitive and sophisticated-anthropologists have found that there are very few univer­ sals across cultures. Even those behaviors often believed to be universally condemned, such as incest, have been institutionalized and encouraged in some societies (Kottak, 1974: 307) . Basically, cultural relativism defines good as that which contributes to the health and survival of society. Hunting and gathering societies that must contend with harsh environments may hold beliefs allowing for the euthanasia of burdensome elderly,

Chapter 2 Determining Moral Behavior 37

whereas agricultural societies that depend on knowledge passed down through genera­ tions may revere their elderly and accord them an honored place in society.

Cultural relativists recognize that cultures have very different definitions of right and wrong, and moral relativists argue that there are no fundamental or absolute definitions of right and wrong. In opposition to this position, absolutists argue that just because there may be or have been cultural norms endorsing such things as cannibalism, slav­ ery, or having sex with six-year-olds, the norms do not make these acts moral and there are absolute rights and absolute wrongs whether or not certain societies at certain times recognized them.

Although cultural relativism holds that different societies may have different moral standards, it also dictates that individuals within a culture conform to the standards of their culture. Therein lays a fundamental flaw in the cultural relativist approach: if there are no universal norms, why should individuals be required to conform to their own societal or cultural norms? If their actions are not accepted today, it might be argued, they could be accepted tomorrow-if not by their society, perhaps by some other. But if individuals are not expected to abide by even their own cultural norms, there is no such thing as society itself.

An additional inconsistency in cultural relativism as a support for moral relativism is the prohibition against interfering in another culture's norms. The argument goes as follows: because every culture is correct in its definitions of morality, another culture should not step in to change those definitions. However, if what is right is determined by which culture one happens to belong to, why then, if that culture happens to be imperi­ alistic, would it be wrong to force cultural norms on other cultures? Cultural relativism attempts to combine an absolute (no interference) with a relativistic "truth" (there are no absolutes). This is logically inconsistent (Foot, 1982).

Cultural relativism usually concerns behaviors that are always right in one soci­ ety and always wrong in another. Of course, what is more common is behavior that is judged to be wrong most of the time, but acceptable in certain instances. As examples: torture is wrong except possibly against terrorism; lying is wrong except when one lies to protect another.

Even absolutist systems recognize exceptions. The principle of forfeiture associated with deontological ethical systems holds that people who treat others as means to an end or take away or inhibit their freedom and well-being forfeit the right to protection of their own freedom and well-being (Harris, 1986: 136). Therefore, people who aggress first forfeit their own right to be protected from harm. This could permit self-defense (despite the moral proscription against taking life) and possibly provide justification for lying to a person who threatens harm. Critics of an absolutist system see this exception as a rationalization and a fatal weakness to the approach; in effect, moral rules are absolute except for exceptions.

Relativism allows for different rules and different judgments about what is good. Proponents argue that it promotes tolerance. Critics argue it leads to egoistic (and nationalistic) rationalizations. Horrible acts like the Holocaust, slavery, the slaughter of Native American Indians, the Armenian genocide, Japanese-American internment, the Bataan Death March, and torture in Abu Ghraib and Guantanamo happen because peo­ ple promoting what they consider to be a good end (security or progress) do not apply absolute rules of morality and ethics and, instead, utilize relativism: "it is okay for me to do this to you, at this time, because of what I consider to be a good reason, but it would be wrong if you did it to me:'

Toward a Resolution: Situational Ethics Situational ethics is often used as a synonym for relativism; however, if we clarify the term to include certain fundamental, absolute elements, it might serve as a resolution to the problems inherent in both an absolutist and a relativist approach to ethics. Recall that relativism, on the one hand, is criticized because it must allow any practice to be considered "good" if it is considered good by some people; therefore, even human sac­ rifice and cannibalism would have to be considered moral-a thoroughly unpalatable

principle of forfeiture The idea that one gives up one's right to be treated under the principles of respect for persons to the extent that one has abrogated someone else's rights; for instance, self-defense is acceptable according to the principle of forfeiture.

situational ethics The philosophical position that although there are a few universal truths, different situations call for different responses; therefore, some action can be right or wrong depending on situational factors.

38 PART I Ethics and the Criminal Justice System

moral pluralism The concept that there are fundamental truths that may dictate different definitions of what is moral in different situations.

consequence of accepting the doctrine. Absolutism, on the other hand, is also less than satisfactory because we all can think of examples when the "rule" must be broken. Even Kant declined to be purely absolutist in his argument that lying is not really lying if told to a person who doesn't deserve the truth. What is needed, then, is an approach that resolves both problems.

Hinman (1998) resolves this debate by defining the balance between absolutism and relativism as moral pluralism. He stops short of an "anything goes" rationale and recog­ nizes multicultural "truths" that affect moral perceptions.

The solution that we will offer here, whether one calls it situational ethics or some other term, is as follows:

1. There are basic principles of right and wrong.

2. These principles can be applied to ethical dilemmas and issues.

3. These principles may call for different results in different situations, depending on the needs, concerns, relationships, resources, weaknesses, and strengths of the indi­ vidual actors.

This conception of situational ethics differs from relativism in that absolute laws are recognized. What absolute laws can be identified as transcendent? Natural law, the Golden Rule, and the ethics of care could help us fashion a set of moral absolutes that might be general enough to ensure universal agreement. For instance, we could start with the following propositions:

• Treat each person with respect and care as you would like to be treated.

• Do one's duty or duties in such a way that one does not violate the first principle.

These principles would not have anything to say about dancing (as immoral or moral}, but they would condemn human sacrifice, child molestation, slavery, and a host of other practices that have been part of human society. Practices could be good in one society and bad in another. For instance, if polygamy contributed to the survival of soci­ ety, it might be acceptable; but if it served the pleasure of some by using and treating others as mere objects, it would be immoral. Selling daughters into marriage to enrich the family would never be acceptable, because that is not treating them with respect and care; however, arranged marriages might be acceptable if all parties agree and the motives are consistent with care.

This system is not too different from a flexible interpretation of Kant's categorical imperative, a strict interpretation of rule-based utilitarianism, or an inclusive application of the Golden Rule. It is also entirely consistent with the ethics of care. All ethical sys­ tems struggle with objectivity and subjectivity, along with respect for the individual and concern for society. Note that egoism does not pursue these goals, and that is why some believe it cannot be accepted as a legitimate ethical system.

Conclusion

Ethical systems provide the guidelines or principles to make moral decisions. Box 2.4 summarizes the key principles of these ethical systems. It can happen that moral ques­ tions are decided in different ways under the same ethical system. For instance, if facts are in dispute, two people using utilitarianism may weigh the utility of an act differ­ ently. Capital punishment is supported by some because of a belief that it is a deterrent to people who might commit murder, whereas others argue it is wrong because it does not deter (this is an argument about facts between two utilitarians}. Others believe that capital punishment is wrong regardless of its ability to deter (this would be an argu­ ment by those following a religious ethics system or ethics of care}. Most arguments about capital punishment get confused during the factual argument about the effec­ tiveness of deterrence. "Is capital punishment wrong or right?" is a different question than "Does capital punishment deter?"

Chapter 2 Determining Moral Behavior 39

i=t•J=tll The Major Ethical Systems

Ethics of virtue. What is good is that which conforms to the principle of the Golden Mean. Natural law. What is good is that which conforms to the natural laws of the universe. Religion. What is good is that which conforms to God's will. Ethical formalism. What is good is that which conforms to the categorical imperative. Utilitarianism. What is good is that which results in the greatest utility for the greatest number. Ethics of care. What is good is that which meets the needs of those concerned. Egoism. What is good is that which benefits me.

Another thing to consider is that none of us is perfect; we all have committed immoral or unethical acts that we know were wrong. Ethical systems help us to understand or analyze morality, but knowing what is right is no guarantee that we will always do the right thing. Few people follow such strong moral codes that they never lie or never cause other people harm. The point is that just because some behaviors are understandable-and perhaps even excusable-does not make them moral or ethical.

Another point is that few people consistently use just one ethical system in making moral decisions. Some of us are fundamentally utilitarian and some predominantly re­ ligious, but we may make decisions using other ethical frameworks as well.

Finally, it should be noted that while philosophical discussions typically empha­ size the differences between these ethical systems, in most cases where individuals face a dilemma about the right thing to do, the ethical systems agree. Recall that the ethical systems agreed for the most part regarding the dilemma about your friend stealing. Aristotle said that a friend who is a scoundrel and refuses to change his or her behavior is then more scoundrel than friend and deserves no loyalty. Under nat­ ural law, theft violates trust, which is one of the building blocks of society; therefore, it is unnatural to steal (except perhaps in life-threatening circumstances) and unnat­ ural to condone stealing. Religion would obviously condemn the act and encourage stopping itbecause we are "our brother's keepers." Ethical formalism would look to your duty as a manager and apply universalism to determine that it was necessary to stop the stealing by reporting it. Utilitarianism would weigh the benefits and de­ termine that it was not beneficial to anyone except your friend to allow her to get away with the theft. Ethics of care would be concerned for your friend as well, and would perhaps arrive at a solution where she might be persuaded to return the item and quit the job without undergoing public retribution. Only egoism might support keeping quiet if it meant losing a friend; however, even enlightened egoism might support reporting the friend, because she might turn around and use the incident against you later.

Ethical systems are easier to explain than to apply. For instance, utilitarianism is easy to understand, but the measurement of utility for any given act is often quite difficult. Ethical formalism instructs to "do one's duty;' but it does not help us when there are conflicting duties. The ethics of care emphasizes relationships but is vague in providing the steps necessary to resolve ethical dilemmas. More applied approaches utilize steps one can take to resolve ethical dilemmas, such as the "front-page" test (exposing the decision to outside scrutiny). Whether morals are relative or absolute has been debated throughout time. The concept of situational ethics is offered to rec­ oncile the question as to whether ethics are universal or not, and it is true that in many ethical dilemmas, these systems arrive at the same answer to the question of what is the right thing to do.

40 PART I Ethics and the Criminal Justice System

Chapter Review

1. Define deontological and teleological ethical systems and explain ethical formalism and utilitarianism.

A deontological ethical system, like ethical formalism, is concerned solely with the inherent nature of the act being judged. If an act or intent is inherently good (com­ ing from a good will), it is still considered a good act even if it results in bad conse­ quences. A teleological ethical system, like utilitarianism, judges the consequences of an act. The saying "the end justifies the means" is a teleological statement. Kant's ethical formalism defines good as that which conforms to the categorical impera­ tive, which includes the universalism principle, the idea that we shouldn't use peo­ ple, and the stricture that we must do our duty through a free will to be considered moral. Utilitarianism, associated with Jeremy Bentham, defines good as that which contributes to the greatest utility for the greatest number.

2. Describe how other ethical systems define what is moral-specifically, ethics of vir­ tue, natural law, religion, and the ethics of care.

Under the ethics of virtue, goodness is determined by the virtues. Those who pos­ sess such virtues will make the right decision when faced with a moral dilemma. Under natural law, good is determined by what is natural or consistent with natural inclinations, e.g., self preservation and sociability. Under religion, what is good is de­ termined by that religion through reference to conscience/faith, religious leaders, or religious doctrine, e.g., the Bible. Ethics of care is based on caring, and what is good is a decision that considers the needs of everyone.

3. Discuss the argument as to whether egoism is an ethical system.

Egoism is not considered by many to be an ethical system because it is self-serving and logically inconsistent. Proponents of ethical egoism also believe in psychologi­ cal egoism-the idea that we are, by nature, purely self-interested.

4. Explain the controversy between relativism and absolutism (or universalism).

Absolutist ethics allow no exceptions to moral rules for special circumstances, although the principle of forfeiture is accepted. Relativism seems to allow individuals to define anything as morally acceptable, even abhorrent acts like slavery. The com­ promise is situational ethics, which propose a very few absolute rules that will sup­ port different decisions in different circumstances.

5. Identify what is good according to each of the ethical systems discussed in the chapter.

Under ethics of virtue, what is good is that which conforms to the principles of the Golden Mean. Under natural law, what is good is that which conforms to the natural laws of the universe. Under religion, what is good is that which conforms to God's will. Under ethical formalism, what is good is that which conforms to the categorical imperative. Under utilitarianism, what is good is that which results in the greatest utility for the greatest number. Under ethics of care, what is good is that which meets the needs of those concerned. Under egoism, what is good is that which benefits me.

Study Questions

1. What are the elements of any ethical system, according to Baelz? What are the three parts of the ethical pyramid?

2. What are the three parts of the categorical imperative? What is the difference be­ tween act and rule utilitarianism?

Chapter 2 Determining Moral Behavior 41

3. What are the three ways to know God's will?What are the Six Pillars of Character?

4. Explain the differences between situational ethics and relativism.

Writing/Discussion Exercises

1. Write an essay on (or discuss) the ethical systems applied to the following situations:

a. In the movie Sophie's Choice, a woman is forced to choose one of her children to send to the gas chamber. If she does not decide, both will be killed. How would ethical formalism resolve this dilemma? How would utilitarianism resolve it?

b. There is a continuing debate over whether the United States had to bomb Hiroshima and Nagasaki at the end of World War II. Present the arguments on both sides. Now consider this: are they utilitarian arguments, ethical formalist arguments, or some other?

c. In the early days of the 2020 pandemic, overrun hospitals in some locales strug­ gled to make decisions about who should have ventilators because there were not enough of them. If you were a hospital administrator and you had to make a choice that some individuals who could not breathe would not be put on a venti­ lator and some would, how would you make that choice?

2. Write an essay on (or discuss) the basic nature of humans. Are we basically altruistic? Basically egoistic? Include in this essay responses to the following and examples to support your answers: What are the "natural" inclinations of human beings? Do you think most people do the right thing out of habit or out of reason?

3. Write an essay on (or discuss) whether ethics and morals are relative or absolute. Are there absolute moral truths, or is morality simply an individual's definition of right and wrong? Should everyone have the right to decide which behaviors are ac­ ceptable for them? Should all cultures have the right to decide what is right? If you believe there are absolute definitions of right and wrong, what are they?

Key Terms

act utilitarianism ethics of virtue principle of the Golden Mean categorical imperative eudaimonia psychological egoism cultural relativism generalization principle religious ethics deontological ethical system hypothetical imperatives rule utilitarianism egoism imperative principle situational ethics enlightened egoism moral pluralism teleological ethical system ethical formalism natural law utilitarianism ethical system peacemaking justice utilitarian principle ethics of care principle of forfeiture

ETHICAL DILEMMAS Situation 1 You are the manager of a retail store. The owner of the store gives you permission to hire a fellow classmate to help out. One day, you see the classmate take some clothing from the store. When confronted by you, the peer laughs it off and says the owner is insured, no one is hurt, and it was under $100. "Besides;' says your acquaintance, "friends stick together, right?" What would you do?

Situation 2 You are in a lifeboat along with four others. You have enough food and water to keep only four people alive for the several weeks you expect to be adrift until you float into a shipping lane and can be discovered and rescued. You will all perish if the five of you consume all the food and water. There is the suggestion that one of you should die so the other four can live. Would you volunteer to commit suicide? Would you vote to have one

I

42 PART I Ethics and the Criminal Justice System

go overboard if you choose by straws? Would you vote to throw overboard the weakest and least healthy of the five? If you were on a jury judging the behavior of four who did murder a fifth to stay alive, would you acquit them or convict them of murder? Would your answer be different if the murdered victim was your son or daughter?

Situation 3 You aspire to be a police officer and are about to graduate from a criminal justice depart­ ment. Your best friend has just been hired by a local law enforcement agency, and you are applying as well. When you were freshmen, you were both caught with marijuana in your dorm room. Although you were arrested, the charges were dismissed because it turned out that the search was illegal. The application form includes a question that asks if you have ever been arrested. Your friend told you that he answered no, because he knew this agency did not use polygraphs as part of the hiring process. You must now decide whether to also lie on the form. If you lie, you may be found out eventually, but there is a good chance that the long-ago arrest will never come to light. If you don't lie, you will be asked to explain the circumstances of the arrest, and your friend will be im­ plicated as well. What should you do?

Situation 4 You have a best friend who has confessed a terrible secret to you. The man is married and has two children. He has a good family, has a good life, and is a good citizen. How­ ever, 14 years earlier, he killed a woman. A homeless person was accused of the crime but died before he could be tried and punished. Nothing good can come of this man's confession. His family will suffer, and no one is at risk of being mistaken as the murderer. What would you advise him to do? (Some may recognize this dilemma as coming from Dostoyevsky's The Brothers Karamazov.)

Situation 5 You are working as a police commander in a protest. Police officers are holding the line against demonstrators who are pushing forward to obtain access to a police precinct station. Some protesters are in black and protected with helmets and gas masks; others have umbrellas, which became ubiquitous in the Hong Kong protests against Chinese authorities and have migrated to be a common sight in BLM protests as well. However, other protesters are in regular clothes, and some even have children with them. The numbers clearly are not in favor of the police, with several thousand against barely a hundred officers. Several sergeants are advising that tear gas is necessary to disperse the crowd. What would be your decision? What factors should be considered before making that decision?