criminal ethics lesson 4 HWlesson4

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CHAPTER 6:

Discretion and Dilemmas

Lecture Slides prepared by Cheryn Rowell

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  • Frequent and unavoidable
  • Not academic
  • Always unpopular with some groups
  • Usually resolved quickly
  • Dealt with alone
  • Involves complex criteria

Moral Dilemmas of

Law Enforcement Officers

Klockars’ Types of Control

  • Authority and power-police officers generally tells us what to do and we respond.

  • Persuasion-authority that officers use in order to coerce in a nonphysical manner.

  • Physical force-officers use whatever physical methods to control the situation.

Discrimination

Occurs when a discretionary decision-maker treats a group or individual differently from others for no justifiable reason.

  • Sexual orientation
  • Race
  • National origin
  • Other?

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Forms of Discrimination

  • Enforcing the law differentially

  • Withholding the protection of the law

Greater disrespect

Greater use of force

Racial profiling

Greater use of pretext stops

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Racial Profiling

Occurs when an officer uses a “profile” to stop a driver usually to obtain a consent to search for a vehicle. Minorities are highly targeted based on the assumption that they are more likely to commit criminal acts.

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Complete fragments, flesh out points

Law and Racial Profiling

US v. Martinez-Fuerte, 425 U.S. 931 (1976)

Legitimized the use of race as a criterion in profiles.

Wren v. US 517 U.S. 806 (1996)

Pretext stops upheld.

The law allows race to be considered as only one element in deciding to stop an individual.

Reactive Investigation

  • Attempts to reconstruct a crime after it occurs
  • Consists of gathering evidence to identify and prosecute the offender
  • Investigator(s) may develop early prejudice about likely perpetrator, which might cause them to:

- be tempted to engage in noble-cause corruption to obtain a conviction;

- ignore or conceal evidence that contradicts their beliefs;

- overstate existing evidence; and/or

- manufacture or alter evidence.

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Proactive Investigation

  • Attempts to document crime as it occurs
  • Requires a more active police role
  • Often involves deception by police
  • Requires “targeting” based on reasonable suspicion
  • Changes police role from discovering who has committed a crime to discovering who might commit a crime

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Typology of Lies

  • Klockars:

- Placebos, such as lying to a person about how a loved one was killed

- Blue lies, used to control a person and make the police officer’s job easier

  • Barker and Carter:

- Accepted lies, such as those used during undercover investigations or sting operations

- Tolerated lies, “necessary evils” such as lying during interrogations

- Deviant lies, such as false testimony in court to make a case, or covering up police wrongdoing

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Informants

Individuals who are not police officers but assist police by providing information about criminal activity.

They are:

  • Motivated by monetary profit, revenge, dementia, kicks, a need for attention, repentance (guilt), and coercion.

  • Able to operate under fewer restrictions than police.

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  • Becoming too intimate with informants
  • Overestimating the veracity of information provided
  • Potential for being duped by informant
  • Using informants to entrap people (“creating” crimes)
  • Engaging in unethical or illegal behaviors on behalf of the informant
  • Using coercion and intimidation to force informant’s cooperation
  • Protecting informants who continue to commit crime

Ethical Issues

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  • Undercover officers deceive suspects and others
  • Difficult for officer and his or her family

Undercover Operations

Short Term

Non-intimate relations

(Buy/bust)

Long Term

Intimate relations

(“Donnie Brasco”)

Continuum of privacy concerns

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Entrapment

When police encourage or entice a person to commit an illegal act.

Approaches:

  • Subjective—Focuses on the defendant and his/her predisposition to crime.

  • Objective—Focuses on the government and whether it provided “essential element” to the crime.

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Criticisms (Stitt & James):

  • Allows police to tempt former offenders who might otherwise not have been tempted
  • May rely on hearsay and rumor
  • May stigmatize the individual charged
  • Allows police to choose their own targets
  • Degrades the criminal justice system through the use of deceit

Entrapment

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Suggested limitations:

  • Require a probable cause–based warrant for any interaction longer than 24 hours

  • Ban officers’ engagement in intimate relationships

  • Evidence obtained by violating the first two limitations should be excluded at trial

Objections to Limits:

  • There is no need for an undercover operation if probable cause exists

  • It is often impossible to get a warrant

  • Most undercover operations exceed 24 hours

Undercover Operations

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Interrogation

Cannot involve physical force (the “third degree”)

Techniques of deception (Skolnick & Leo):

  • Calling an interrogation an “interview”

  • Negating the effectiveness of the Miranda warnings by method of presentation

  • Misrepresenting the seriousness of the offense

  • Manipulative appeals to suspect’s conscience

  • Making leniency promises beyond the interrogator’s power to offer

  • Interrogator misrepresenting his/her identity

  • Using fabricated evidence to make suspect think case against him/her is strong

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“Dirty Harry” Problem

  • Should torture be used to gain confessions?
  • Is there a difference between information to save a victim and information to prosecute the suspect?
  • Do innocent people confess to crimes they did not commit because of mental or physical coercion?

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Thinking Point

In August of 2010, Jerry Hobbs of Waukegan, IL was released after spending five years behind bars for the murder of his 8 year old daughter. Hobbs eventually recanted his confession saying that he was coerced into saying he murdered his daughter and her friend. DNA evidence exonerated Hobbs as the possible murderer linking the crime to a neighbor who is now in custody.

Should law enforcement be held accountable

for the alleged coerced confession?

What policies could have prevented this, if any?

Excessive Force

Lawful force is force that is reasonably necessary for lawful purpose.

  • One of the most serious and divisive human rights violations in the U.S.

  • Continuum of force (escalation because of resistance).

  • Use of force depends on discretion of the individual officer.

  • Individuals who question or refuse to recognize police authority become vulnerable to the use of force.

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Culture of Force

  • L.A.P.D. policy was to use escalating force proportional to a

suspect's "offensive" behavior.

  • This policy justified all but the most blatant abuse of police power.

  • L.A.P.D. culture tolerated, even encouraged, a high level of

violence.

  • Leadership did not actively discourage excessive force.

  • L.A.P.D. management was responsible, to some extent, for the brutality of the Rodney King incident.

The Los Angeles Police Department

and the Rodney King Incident

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The Research on Excessive Force

  • The true number of excessive force incidents is difficult to detect.

  • Few encounters end in the use of any force, much less excessive force.

  • A small percentage of officers are responsible for most excessive force incidents.

  • Race and socioeconomic status are associated with excessive force.

  • But other factors (such as demeanor) are more influential.

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Who Uses Excessive Force?

Certain characteristics associated with

officers who use excessive force:

  • Lack of empathy

  • Antisocial and paranoid tendencies

  • Proclivity toward abusive behavior

  • Inability to learn from experience

  • Tendency to not take responsibility for own actions

  • Cynicism
  • Strong identification with the police subculture

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Factors in the use of excessive force

Suspect being male

Suspect's race

Suspect's demeanor

Suspect agitation/emotionality

Suspect intoxication

Suspect’s use of force

Suspect having a weapon

Socioeconomic status of suspect

Gang involvement

Officer being male

Officer’s race

Age of officer (younger)

Officer having prior injuries

Encounter involving a car chase

Number of citizens present

Number of police officers present

Knowledge suspect committed

prior (especially violent) crimes

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Determining Excessive Force

  • Use of official documents in incident reports.
  • Asking police officers about their actions and those of their peers.
  • Civil rights complaints or public opinion surveys.
  • Observers in police cars who record interactions between police and citizens.

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Complete fragments, flesh out points

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