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Review Questions

Answer the study questions numbered 1-5 on page 407. (Minimum 2-pages, typed, and double spaced)

1. What are some actions the federal government has taken in response to terrorism?

2. What are the arguments in support of torture? What are the arguments against torture?

3. What are some rights recognized by the United Nations and the European Union?

4. Explain why “means–end” thinking leads to criminal actions.

5. What are the two justifications for a just war?

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Ethical Dilemmas and Decisions in Criminal Justice

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7th E D I T I O N

Joycelyn M. Pollock Texas State University—San Marcos

Ethical Dilemmas and Decisions in Criminal Justice

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• vi •

About the Author Joycelyn M. Pollock received her Ph.D. in Criminal Justice at

the State University of New York at Albany. She also obtained

a J.D. at the University of Houston, and passed the Texas Bar

in 1991.

The fi rst edition of Ethics in Crime and Justice: Dilemmas

and Decisions was published in 1986 and continues to be one

of the leading texts in the field. Dr. Pollock has also pub-

lished Crime and Justice in America: An Introduction (2008);

Criminal Law, 8th Ed. (2009); Morality Stories, 2nd Ed. (with

Michael Braswell and Scott Braswell, 2007); Prisons and

Prison Life: Costs and Consequences (2003); Women, Prison

and Crime, 2nd Ed. (2002); Sex and Supervision: Guarding

Male and Female Inmates (1986); Counseling Women Prisoners

(1999); Criminal Women (2000); Prison: An American Institution, 2nd Ed. (Editor, 2006);

and is co- editor with Alida Merlo of Women, Law and Social Control, 2nd Ed. (2004).

In addition to publishing these texts, she maintains an active research agenda, primarily in

the areas of police ethics and women’s prisons. Most recently she has worked with Barbara

Owen, James Wells, and Bernadette Muscat on an NIJ- funded research project exploring

the nature of violent victimization in women’s prisons.

In addition to teaching at Texas State University (formerly Southwest Texas State

University), Dr. Pollock has delivered training to police offi cers, probation offi cers, parole

offi cers, constables, and other groups in the areas of sexual harassment, ethics, criminology,

and other subjects. She has taught at the Houston Police Academy and the Bill Blackwood

Law Enforcement Management Institute, and has been a guest speaker for the Interna-

tional Association of Policewomen, the Texas Juvenile Justice Association, and the South-

west Legal Institute, among other groups. In 1998, she was awarded a Fulbright Teaching

Fellowship to Turku School of Law in Turku, Finland. She was also a recipient of a Senior

Scholar Justice award from the Open Society Institute. She has served as president of

the Southwest Association of Criminal Justice and a trustee- at- large for the Academy of

Criminal Justice Sciences. In 2007, she was awarded the Bruce Smith Award from ACJS

for outstanding contributions to the fi eld of criminology, and in 2008, she was awarded

the Distinguished Alumni award from the State University at Albany, School of Criminal

Justice.

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T O G R E G A N D E R I C , A S A L W A Y S

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• vii •

Preface | xiv

P A R T I ETHICS AND THE CRIMINAL JUSTICE SYSTEM | 1

C H A P T E R 1 MORALITY, ETHICS, AND HUMAN BEHAVIOR | 3

C H A P T E R 2 DETERMINING MORAL BEHAVIOR | 23

C H A P T E R 3 JUSTICE AND LAW | 51

C H A P T E R 4 BECOMING AN ETHICAL PROFESSIONAL | 75

P A R T I I POLICE | 99

C H A P T E R 5 THE POLICE ROLE IN SOCIETY | 101

C H A P T E R 6 POLICE DISCRETION AND DILEMMAS | 133

C H A P T E R 7 POLICE CORRUPTION AND MISCONDUCT | 173

P A R T I I I LAW | 215

C H A P T E R 8 LAW AND LEGAL PROFESSIONALS | 217

C H A P T E R 9 DISCRETION AND DILEMMAS IN THE LEGAL PROFESSION | 247

C H A P T E R 1 0 ETHICAL MISCONDUCT IN THE COURTS AND RESPONSES | 283

P A R T I V CORRECTIONS | 313

C H A P T E R 1 1 THE ETHICS OF PUNISHMENT AND CORRECTIONS | 315

C H A P T E R 1 2 DISCRETION AND DILEMMAS IN CORRECTIONS | 347

C H A P T E R 1 3 CORRECTIONAL PROFESSIONALS: MISCONDUCT AND RESPONSES | 371

C H A P T E R 1 4 MAKING ETHICAL CHOICES | 391

Glossary | 409

Bibliography | 413

Name Index | 436

Subject Index | 442

Case Index | 449

Brief Contents

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• ix •

Why Study Ethics? 4

Defi ning Terms 8 Morals and Ethics 8

Duties 9

Values 9

Making Moral Judgments 10

Morality and Behavior 13

Analyzing Ethical Dilemmas 14

Conclusion 17

Chapter Review 18

Key Terms 19

Study Questions 19

Writing/Discussion Exercises 19

Ethical Dilemmas 19

Preface xiv

P A R T I ETHICS AND THE CRIMINAL JUSTICE SYSTEM 1

C H A P T E R 1 Morality, Ethics, and Human Behavior 3

Ethical Systems 24

Deontological and Teleological Ethical

Systems 25 Ethical Formalism 26

Utilitarianism 28

Other Ethical Systems 30 Religion 32

Natural Law 35

The Ethics of Virtue 36

The Ethics of Care 38

Egoism: Ethical System or Not? 39

Other Methods of Ethical Decision Making 41

Relativism and Absolutism 42

Toward a Resolution: Situational Ethics 44

Resulting Concerns 45

Conclusion 46

Chapter Review 47

Key Terms 48

Study Questions 48

Writing/Discussion Exercises 48

Ethical Dilemmas 49

C H A P T E R 2 Determining Moral Behavior 23

Origins of the Concept of Justice 53

DIstributive Justice 54

Corrective Justice 58 Substantive Justice 59

Procedural Justice 62

Immoral Laws and the Moral Person 64

Restorative Justice 68

Conclusion 71

Chapter Review 71

Key Terms 72

Study Questions 72

Writing/Discussion Exercises 72

Ethical Dilemmas 73

C H A P T E R 3 Justice and Law 51

Contents

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x C O N T E N T S

C H A P T E R 4 Becoming an Ethical Professional 75

Theories of Moral Development 78 Biological Factors 78

Learning Theory 80

Kohlberg’s Moral Stage Theory 82

Ethics Teaching/Ethics Training 85

Leadership and the Ethical Organization 88

The Criminal Justice Professional 90 Avoiding Cynicism and Burnout 94

Conclusion 94

Chapter Review 95

Key Terms 96

Study Questions 96

Writing/Discussion Exercises 97

Ethical Dilemmas 97

P A R T I I POLICE 99

C H A P T E R 5 The Police Role in Society 101

Crime Fighter or Public Servant? 102 Crime Fighter 102

Public Servant 103

History of Policing: From Public Servant

to Crime Fighter 104

Future of Policing: The End of Community

Policing? 107

Power and Discretion 108 Discretion and Duty 110

Formal Ethics for Police Offi cers 112 The Law Enforcement Code of Ethics 113

The Police Subculture 114 Themes and Value Systems 115

The Cop Code 116

Police Culture and “Noble Cause” 117

Police Culture and the Blue Curtain

of Secrecy 119

Police Culture Today 124

Crime Fighter and Public Servant? 127

Conclusion 129

Chapter Review 130

Key Terms 131

Study Questions 131

Writing/Discussion Exercises 131

Ethical Dilemmas 131

C H A P T E R 6 Police Discretion and Dilemmas 133

Discretion and Discrimination 134 Racial Profi ling 138

Discretion and Criminal Investigations 141 Proactive Investigations 141

Reactive Investigations 150

Discretion and the Use of Force 157 Use of Tasers (CEDs) 161

Culture of Force 163

Excessive Force 164

Deadly Force 166

Conclusion 168

Chapter Review 169

Key Terms 170

Study Questions 170

Writing/Discussion Exercises 170

Ethical Dilemmas 170

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C O N T E N T S x i

Ethical Issues for Defense Attorneys 248 Responsibility to the Client 249

Confl icts of Interest 251

Zealous Defense 252

Confi dentiality 253

Ethical Issues for Prosecutors 258 Use of Discretion 258

Confl icts of Interest 261

Plea Bargaining 263

Media Relations 264

Expert Witnesses 266

Zealous Prosecution 271

Ethical Issues for Judges 273 Use of Discretion 274

Conclusion 278

Chapter Review 278

Key Terms 279

Study Questions 279

Writing/Discussion Exercises 279

Ethical Dilemmas 280

C H A P T E R 9 Discretion and Dilemmas in the Legal Profession 247

A Worldwide Problem 175 International Measures of Corruption 176

Types of Corruption 178 Gratuities 180

Professional Courtesy 184

On- Duty Use of Drugs and Alcohol 186

Graft 187

Sexual Misconduct 187

Criminal Cops 190

Explanations of Deviance 195 Individual Explanations 197

Organizational Explanations 200

Societal Explanations 202

Reducing Police Corruption 203 “Rotten Apple” Responses 204

“Rotten Barrel” Responses 207

New York 210

Los Angeles 210

The Scandal 211

Conclusion 211

Chapter Review 212

Key Terms 212

Study Questions 213

Writing/Discussion Exercises 213

Ethical Dilemmas 213

C H A P T E R 7 Police Corruption and Misconduct 173

P A R T I I I LAW 215

C H A P T E R 8 Law and Legal Professionals 217

The Role of Law 219

Justifi cations for Law 221 Preventing Harm to Others 221

Preventing Offensive Behavior 221

Preventing Harm to Self (Legal

Paternalism) 222

Preventing Harm to Societal Morals (Legal

Moralism) 223

Paradigms of Law 224 The Consensus Paradigm 225

The Confl ict Paradigm 226

The Pluralist Paradigm 228

Law and the Legal Professional 230

Legal Agent or Moral Agent? 233

Ethics for Legal Professionals 236 Ethical Guidelines for Judges 240

Culture and Ethics 240

Conclusion 242

Chapter Review 242

Key Terms 244

Study Questions 244

Writing/Discussion Exercises 244

Ethical Dilemmas 244

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x i i C O N T E N T S

C H A P T E R 1 2 Discretion and Dilemmas in Corrections 347

Correctional Offi cers 348 Relationships with Inmates 350

Use of Force 353

Maintaining Morality in Prison 355

Jail Offi cers 355

Treatment Staff 357

Probation and Parole Offi cers 361 Caseload Supervision 363

Parole 364

Avoiding Burnout and Disillusionment 365

Conclusion 367

Chapter Review 367

Key Terms 368

Study Questions 368

Writing/Discussion Exercises 368

Ethical Dilemmas 369

First, Let’s Kill All the Lawyers 284

Ethical Misconduct 286 Defense Attorney Misconduct 287

Prosecutorial Misconduct 288

Judicial Misconduct 292

Justice on Trial? 295

Explanations for Misconduct 300

Responding to Misconduct 301

Judicial Independence and the Constitution 305 Judicial Activism 307

Conclusion 309

Chapter Review 310

Key Terms 310

Study Questions 311

Writing/Discussion Exercises 311

Ethical Dilemmas 311

C H A P T E R 1 0 Ethical Misconduct in the Courts and Responses 283

P A R T I V CORRECTIONS 313

C H A P T E R 1 1 The Ethics of Punishment and Corrections 315

Rationales for Punishment and

Corrections 317 Retribution 318

Prevention 320

Ethical Frameworks for Corrections 324 Utilitarianism 324

Ethical Formalism 325

Ethics of Care 326

Rawlsian Ethics 326

Punishments 327 Supermax Prisons 329

Private Prisons 330

Capital Punishment 332

Community Corrections 334

Formal Ethics for Correctional

Professionals 335

Occupational Subcultures in Corrections 337 The Correctional Offi cer Subculture 338

Treatment Professionals 341

The Probation/Parole Offi cer

Subculture 341

Conclusion 342

Chapter Review 342

Key Terms 343

Study Questions 344

Writing/Discussion Exercises 344

Ethical Dilemmas 344

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C O N T E N T S x i i i

Just Wars and Just Means 391 The Response to 9/11 394

Crime Control versus Rights -Based Law

Enforcement 401

Ethical Dilemmas and Decisions 404

Conclusion 406

Chapter Review 407

Key Terms 407

Study Questions 407

Writing/Discussion Exercises 408

Ethical Dilemmas 408

C H A P T E R 1 4 Making Ethical Choices 391

Misconduct and Corruption 372 Treatment Professionals 380

Corruption in the Community 380

Explanations for Misconduct 381

Responses to Corruption? 382 Restorative Justice 385

Conclusion 388

Chapter Review 388

Key Term 389

Study Questions 389

Writing/Discussion Exercises 389

Ethical Dilemmas 389

C H A P T E R 1 3 Correctional Professionals: Misconduct and Responses 371

Glossary 409

Bibliography 413

Name Index 436

Subject Index 442

Case Index 449

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• xiv •

The fi rst edition of this book was published in 1986, when there were very few texts for a

course covering criminal justice ethics. Over the many years and editions, the book has

been shaped by current events, reviewers’ comments, and the many individuals who have

read the book and provided feedback. I want to thank each and every person who has con-

tacted me through e- mail, letters, or personally at conferences. I welcome and appreciate

all feedback. Please continue to let me know what you think and help me make the book

better and more accurate.

This text provides a balance between the philosophical material necessary to ana-

lyze ethical dilemmas and a discussion of research and current events relevant to ethics in

the criminal justice fi eld. While balancing philosophical background and current issues,

Ethical Dilemmas and Decisions in Criminal Justice remains a highly applied text in that the

major focus is on how individuals perceive and resolve ethical dilemmas. The book is de-

signed to be used in undergraduate criminal justice ethics courses; however, it would not

be inappropriate for a graduate level course as well. It has also been used in law enforce-

ment training academies.

One of the central features of this book is the inclusion of current news events to show

that these are not simply “ivory tower” discussions. In this edition, some of the news sto-

ries are continuing to unfold as the book goes to press; therefore, instructors will need to

update these stories. In addition to real- life examples of misconduct, the book discusses

the effects of misconduct, academic research, and the ethical implications of various pol-

icy issues in criminal justice. The book also identifi es themes, such as discretion and due

process, that run through the entire criminal justice system.

I N T H I S E D I T I O N In this edition, I have reworked the chapters to provide a more organized and symmetri-

cal presentation of each of the sub- areas of criminal justice (police, courts, corrections).

In response to reviewers’ requests, there are now 14 chapters—a better fi t for most classes

today. Even more important, there are also fewer introductory chapters, so students get to

the more concrete, applied material sooner; the book’s section on law enforcement profes-

sionals, for instance, now starts with Chapter 5 instead of Chapter 7.

As noted, there are three chapters each allocated to law enforcement profession-

als, legal professionals, and correctional professionals. These chapters follow the

same general organization with the first chapter presenting general background issues

relevant to that professional field (i.e., the role of law enforcement in Chapter 5, the

function of law in Chapter 8, and the rationale for corrections in Chapter 11). Also

included in each of the first chapters is a discussion of the formal codes of ethics, and

a discussion of the occupational subculture and how it may conflict with the formal

code of ethics. The second chapter in each set discusses issues that create dilemmas

for the professional (i.e., use of the taser in Chapter 6, attorney–client privilege in

Chapter 9, and the tension between treatment and custody in Chapter 12). Echoing

the title of the book, there are several highlighted dilemmas in these chapters that

Preface

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P R E F A C E x v

receive an extended analysis. The third chapter in each set of three provides defini-

tions and examples of misconduct (i.e., the latest police scandals in cities such as

Tulsa and Philadelphia in Chapter 7, the prosecutorial misconduct in the Ted Ste-

vens case in Chapter 10, and the indictments of correctional officers affiliated with

criminal gangs in Baltimore in Chapter 13). Also included in these chapters are the

explanations for and suggestions on how to reduce misconduct in each professional

field. As in the 6th edition, the final chapter uses the war on terror as a backdrop

to discuss ethical reasoning, concluding with some final thoughts on how to resolve

ethical dilemmas.

F E A T U R E S

There are several boxed features found in Ethical Dilemmas and Decisions in Criminal Jus-

tice, 7th Edition, which highlight and provide real- world examples of key concepts and

issues.

IN THE NEWS This feature has been present since the earliest editions of this book. Each chapter presents news items that relate to the discussion. In every edition, some

of the news stories are kept, but most are cycled out to make room for current events.

Examples include:

Pact with the Devil?

Conduct Unbecoming?

In His Heart, There Is Forgiveness

QUOTE AND QUERY Another long- time feature of the book, the quote and query boxes offer some classic and current quotes meant to illustrate a point or issue from the

chapter’s discussion. There is a query following the quote that spurs the reader to think

about the quote in the context of the discussion.

POLICY These boxes provide an overview of a current debate as well as a discussion centered on the law, policy, and ethics of the topic. Many of these topics have foreshad-

owed changes in the law or new developments, such as the policy box offered in the last

edition on racial profi ling, which has been updated to include a discussion of Arizona’s

new law requiring police offi cers to investigate the citizenship of anyone they have reason-

able cause to believe is an illegal alien. Examples include:

The Future of Affi rmative Action

Medical Use of Marijuana

Racial Profi ling

WHITE COLLAR CRIME The white collar crime boxes were introduced in the 5th edition and their number has been increased in this 7th edition. The boxes focus the issues

discussed in some chapters to white collar crime. For instance, the discussion of justice in

Chapter 3 is supplemented with a box that discusses what justice means for white collar

offenders. In later chapters, a white collar crime box shows the punishments received by

notorious white collar offenders. Other chapters also are enriched with white collar crime

boxes where relevant.

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x v i P R E F A C E

WALKING THE WALK Introduced in the last edition, these boxes describe individu- als who display ethical courage. This has become a popular feature of the book, and in

this edition there is a Walking the Walk box for each chapter. Readers are invited to con-

tact the author and offer suggestions of individuals for these boxes for future editions of

the book.

CHAPTER DILEMMAS A new feature to this edition is a number of highlighted dilem- mas in Chapters 6, 9, and 11. The dilemmas are followed by an extended analysis under

law, policy and ethics. The feature makes more explicit the focus of the book, illustrated by

its title, “Dilemmas and Decisions.”

P E D O G O G I C A L A I D S In addition to the boxed features, Ethical Dilemmas and Decisions in Criminal Justice,

7th Edition, has several pedagogical aids designed to enhance student learning and

comprehension.

KEY TERMS As in previous editions, key terms are highlighted and defined. In this edition, the defi nitions are provided within the chapter rather than at the end of the chapter.

STUDY QUESTIONS These questions identify important points and concepts in the chapter and can be used for test reviews or test questions.

WRITING/DISCUSSION QUESTIONS These questions cover more abstract concepts and are designed to provide an opportunity to employ critical thinking skills in a writing or

discussion exercise.

ETHICAL DILEMMAS Since the fi rst edition of this book, dilemmas have been pro- vided at the back of each chapter that are designed to be representative of what crimi-

nal justice professionals might face in the fi eld. Many of the dilemmas describe true

incidents and have been provided by police offi cers, probation offi cers, lawyers, and

other criminal justice professionals. Others have been gleaned from news events or

the media.

N E W T O T H I S E D I T I O N CHAPTER OBJECTIVES New to the 7th edition are chapter objectives that preview the key content in each chapter for the reader.

CHAPTER REVIEW At the end of each chapter, the chapter objectives are presented again, but there is also a short summary of content. These reviews summarize the key con-

tent of the chapter for the reader.

C H A P T E R - B Y - C H A P T E R C H A N G E S Chapter 1, Morality, Ethics, and Human Behavior: • Chapter 1 provides the in- troduction to the study of ethics, with defi nitions and a discussion of the parameters

of ethical analysis. For the most part, this chapter has remained the same as previous

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P R E F A C E x v i i

editions, with slight modifi cations, such as new In the News boxes, and the addition

of Chapter Objectives and Review.

Chapter 2, Determining Moral Behavior: • This chapter presents the major ethical systems (utilitarianism, ethical formalism, religion, ethics of care, virtue ethics) and

remains relatively unchanged, except that, in response to reviewers’ concerns, egoism

has been given its own section, and some topics have been slightly shortened. There

is a new In the News box on Pat Robertson’s comments regarding Haiti’s “pact with

the devil.”

Chapter 3, Justice and the Law: • This chapter begins a major restructuring of chapters. I have combined Chapter 4 (justice) and part of Chapter 5 (law) from the last

edition to form this new chapter on justice and law. The remainder of the old Chapter 5

on law has been moved to become the introductory chapter on legal professionals

(Chapter 8). The discussion of distributive justice has been reduced, as have issues

of culpability and other purely legal topics in order to accommodate new informa-

tion in more directly relevant areas. The chapter order was changed so that justice

and law now come before the discussion of how individuals develop their moral sense

and how they decide moral issues (old Chapter 3) so that these topics can serve as the

lead- in chapter to the remainder of the book. There is a new white collar crime box

focused on justice issues, new In the News boxes, a new Walking the Walk box on

Nelson Mandela, and the discussion of restorative justice has been moved here.

Chapter 4, Becoming an Ethical Professional: • This chapter consists of the old Chapter 3 (Determining Moral Behavior) and Chapter 6 (Ethics and the Criminal

Justice Professional). The discussion of moral development and the discussion of

training and education have been combined and condensed with a focus on crimi-

nal justice professionals. I have added an expanded discussion on how leadership

affects ethics in an organization. There are new In the News boxes on corruption at

the border and corruption in politics, and there is a new Walking the Walk box on

Thomas Tamm, a whistleblower in the FBI. The number of introductory chapters

has been reduced so that the fi rst chapter dealing with law enforcement professionals

begins with Chapter 5 in this edition instead of Chapter 7 as in the last edition.

Chapter 5, The Police Role in Society: • This chapter includes much of the same material as Chapter 7 in the last edition. I have added a new Quote and Query box

on community policing, and new In the News boxes on police investigations of mis-

conduct. The discussion on police subculture has been condensed, with findings

from recent research added. This chapter begins the template for the organization for

the remainder of the book. I have provided three chapters each for law enforcement,

l egal, and correctional professionals. In the fi rst chapter, major issues of the fi eld are

discussed, as are the source of formal ethics and any subcultural elements that impact

ethical behavior.

Chapter 6, Police Discretion and Dilemmas: • This chapter has been rearranged to focus on the dilemmas faced by law enforcement offi cers in the course of their duties.

A new feature is highlighting a few dilemmas in the body of the chapter with an ex-

panded discussion of the dilemma applying the law, policy, and ethics analysis. Much

of the discussion from old Chapter 9 is revised and included here (i.e., dilemmas that

arise in proactive and reactive investigations, possible racism in the system, the use of

force, and interrogation methods). There are new In the News boxes, a discussion of

the Arizona immigration law, an updated discussion of the William Jefferson case, an

expanded discussion of the Jon Burge case, expanded information about informants

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x v i i i P R E F A C E

along with news items related to their use, a new Walking the Walk box on Frederick

Whitehurst, and a revised discussion of the use of force, adding an expanded section

on tasers.

Chapter 7, Police Corruption and Misconduct: • In this edition, the third chap- ter in each of the sub- areas (law enforcement, courts, and corrections) focuses on

misconduct and ways to reduce it. Chapter 7 uses much of the same material as

Chapter 9 in the last edition, but also includes the explanations for misconduct and

suggested methods to reduce it, which came from other chapters. I have added an

expanded discussion of Frank Serpico, added a bulleted list of news stories of police

committing crimes across the country, including incidents in New Orleans, Tulsa,

Philadelphia, Baltimore, and other locations, and In the News boxes on corruption

in the Mexican police force, police gratuities, and professional courtesy. The discus-

sion of various methods to reduce corruption has been expanded with new research

fi ndings presented.

Chapter 8, Law and Legal Professionals: • Reviewers have raised concerns that legal professionals received fewer chapters than either law enforcement or correc-

tional professionals. This wasn’t exactly true because the law chapter (Chapter 5) in

the old edition was, in many ways, similar to the general discussion offered in the fi rst

chapters of the other two sub- areas, it just wasn’t placed next to the legal professionals

chapters. This organizational issue has been addressed in this edition, and the old law

chapter has now been moved to introduce the chapters concerned with legal profes-

sionals. This chapter includes the justifi cation for law, the role of law in society, the

various perceptions of the system, and the idea of the attorney as legal agent or moral

agent. It also includes discussions concerning the source of legal ethics for attorneys,

as well as subcultural elements in the profession that are inconsistent with formal eth-

ics. This chapter serves as a parallel to Chapter 5. New elements include an expanded

discussion of new ethics rules for prosecutors, a discussion of the same- sex marriage

legal debate, and relevant news items such as the BP Gulf of Mexico oil disaster and

the Massey Mining Company explosion.

Chapter 9, Discretion and Dilemmas in the Legal Profession: • In the last edi- tion, judges were covered in a separate chapter. This edition discusses issues for

defense attorneys, prosecutors, and judges in this chapter under the same organiza-

tion as presented in Chapter 6 for law enforcement professionals. Similar to the 6th

edition, the ABA Criminal Justice Standards are used to present ethical issues, but

in this edition, certain dilemmas are highlighted and analyzed under law, policy,

and ethics. New to this edition are updated discussions of the Cameron Todd Will-

ingham case, the ethical issues facing defense attorneys in drug courts, the 2009

report of the National Academy of Sciences on forensic science lab procedures, the

use of jailhouse informants, the Supreme Court holding in Holland v. Florida as

well as other cases dealing with procedural versus substantive issues of justice, and

the new legislation reducing the 100:1 drug sentencing ratio for crack compared to

cocaine. An In the News box on the activities of police and prosecutors in Tenaha,

Texas, is also offered.

Chapter 10, Ethical Misconduct and Responses: • This chapter parallels Chapter 7 and offers examples and explanations of misconduct in the legal profession. There is

an expanded discussion of the Clarence Brandley case as well as other cases of exon-

erated individuals. There are new In the News boxes on misconduct incidents, and

possible intimidation of Innocence Project volunteers. Also included are expanded

descriptions of prosecutorial misconduct in the Ted Stevens case and incidents of

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P R E F A C E x i x

judicial misconduct by state and federal judges, including ex- judges Porteous, Kent,

Spargo, and DeLaughter. There is also a new Walking the Walk box on federal judge

William Wayne Justice. New to this edition are sections on explaining misconduct

and reducing misconduct of legal professionals. The recent case of Garcetti v. Ceballos

is discussed as a barrier to whistleblowers in government.

Chapter 11, The Ethics of Punishment and Corrections: • This is substantially the same as Chapter 12 in the old edition with the addition of sections on formal e thics

and subcultural elements that were in other chapters in the old edition. It parallels

Chapters 5 and 8 in its organization. There is a new In the News box on Bernard

Madoff, and a new Walking the Walk box on Tom Murton. Also included are expanded

discussions of supermax prisons, new Supreme Court cases on the death penalty, and

new sections on formal ethics codes for correctional professionals not covered in the

last edition.

Chapter 12, Discretion and Dilemmas in Corrections: • This chapter parallels Chapters 6 and 9 and covers ethical issues and dilemmas for all correctional pro-

fessionals. While in the last edition, institutional and community corrections pro-

fessionals were separated into different chapters, they have been combined in this

chapter. As in Chapters 6 and 9, certain dilemmas are highlighted with an analysis

provided by law, policy, and ethics. Much of this chapter comes from Chapters 13

and 14 from the last edition. New In the News boxes on correctional offi cer mis-

conduct in New York and Virginia are included. There is an expanded discussion

of the ethics of correctional psychologists using new sources, and a discussion of

shackling pregnant prisoners.

Chapter 13, Correctional Professionals: Misconduct and Responses: • This chapter is a parallel to Chapters 7 and 10 and offers examples of misconduct in cor-

rections as well as a discussion of how to reduce corruption and misconduct. There is

a new Walking the Walk box on D. J. Vodicka, a former correctional offi cer, and a new

In the News box on corruption by a prison purchasing agent, Also in this edition are

an expanded discussion of the Prison Rape Elimination Act and the various forms of

sexual relationships between guards and inmates, descriptions of incidents in Florida

and Maryland prisons involving smuggling by correctional offi cers and other staff

members, and a discussion on alleged abuses in immigration facilities. New to this

edition are examples of misconduct in probation and parole, and the sections on ex-

plaining misconduct and suggested ways to reduce it in community corrections.

Chapter 14, Making Ethical Choices: • While much of the material in Chapter 15 of the last edition has been included here (i.e., the just war/just means discussion,

the responses to 9/11, rights- based policing), the material has been condensed with a

greater emphasis on how the threat of terrorism and the responses taken illustrate the

importance of ethics in current events. Also, there is a greater emphasis on how these

issues affect professionals in the justice system. A new Walking the Walk box on Mary

McCarthy is offered in conjunction with an expanded discussion of whistleblowers.

S U P P L E M E N T S

A number of supplements are provided by Cengage Learning to help instructors use

Ethical Dilemmas and Decisions in Criminal Justice in their courses and to aid students in

preparing for exams. Supplements are available to qualifi ed adopters. Please consult your

local sales representative for details.

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F O R T H E I N S T R U C T O R

INSTRUCTOR’S EDITION Designed just for instructors, the Instructor’s Edi- tion includes a visual walk- through that illustrates the key pedagogical features of the

text, as well as the media and supplements that accompany it. Use this handy tool to

quickly learn about the many options this text provides to keep your class engaging and

informative.

INSTRUCTOR’S RESOURCE MANUAL WITH TEST BANK An improved and completely updated Instructor’s Resource Manual with Test Bank has been developed by

Paulina Ruf at Lenoir- Rhyne University. The manual includes learning objectives, detailed

chapter outlines, key terms, suggested readings, questions for review and discussion, and

Internet assignments. Each chapter’s test bank contains questions in multiple- choice, true–

false, fi ll- in- the- blank, and essay formats, with a full answer key. The test bank is coded to

the chapter objectives that appear in the main text and includes the page numbers in the

main text where the answers can be found.

E X A M V I E W ® C O M P U T E R I Z E D T E S T I N G The comprehensive Instructor’s Resource Manual described above is backed up by

ExamView, a computerized test bank available for PC and Macintosh computers.

With ExamView you can create, deliver, and customize tests and study guides (both

print and online) in minutes. You can easily edit and import your own questions and

graphics, change test layouts, and reorganize questions. And using ExamView’s com-

plete word- processing capabilities, you can enter an unlimited number of new ques-

tions or edit existing questions.

LESSON PLANS From Michael Whalen, South University, the instructor- created lesson plans bring accessible, masterful suggestions to every lesson. Each lesson plan includes

a sample syllabus, learning objectives, lecture notes, discussion topics, in- class activities,

tips for classroom presentation of chapter material, a detailed lecture outline, and assign-

ments. Lesson plans are available on the instructor website.

PPTS These handy Microsoft PowerPoint slides, prepared by Cheryn Rowell of Stanley Community College, which outline the chapters of the main text in a classroom- ready

presentation, will help you in making your lectures engaging and in reaching your visu-

ally oriented students. The presentations are available for download on the password-

protected website and can also be obtained by e- mailing your local Cengage Learning

representative.

WEBTUTOR™ ON BLACKBOARD® AND WEBCT® Jump- start your course with customizable, rich, text- specific content within your Course Management System.

Whether you want to web- enable your class or put an entire course online, WebTutor de-

livers. WebTutor offers a wide array of resources, including media assets, test bank, prac-

tice quizzes linked to chapter learning objectives, and additional study aids. Visit www.

cengage.com/webtutor to learn more.

THE WADSWORTH CRIMINAL JUSTICE VIDEO LIBRARY So many exciting new videos—so many great ways to enrich your lectures and spark discussion of the

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http://www.cengage.com/webtutor

P R E F A C E x x i

material in this text. Your Cengage Learning representative will be happy to provide

details on our video policy by adoption size. The library includes these selections and

many others:

ABC • ® Videos. ABC videos feature short, high- interest clips from current news

events as well as historic raw footage going back 40 years. Perfect for discussion

starters or to enrich your lectures and spark interest in the material in the text, these

brief videos provide students with a new lens through which to view the past and

present, one that will greatly enhance their knowledge and understanding of sig-

nifi cant events and open up to them new dimensions in learning. Clips are drawn

from such programs as World News Tonight, Good Morning America, This Week,

PrimeTime Live, 20/20, and Nightline, as well as numerous ABC News specials

and material from the Associated Press Television News and British Movietone

News collections.

Cengage Learning’s “Introduction Criminal Justice Video Series” • features videos sup-

plied by the BBC Motion Gallery. These timely, engaging clips from CBS and BBC

news programs—everything from nightly news broadcasts and specials to CBS News

Special Reports, CBS Sunday Morning, 60 Minutes, and more—are perfect classroom

discussion starters. Designed to enrich your lectures and spark interest in the material

in the text, the brief videos provide students with a new lens through which to view

the past and present, one that will greatly enhance their knowledge and understand-

ing of signifi cant events and open up to them new dimensions in learning. Clips are

drawn from BBC Motion Gallery.

Films for the Humanities • . Choose from nearly 200 videos on a variety of topics such

as elder abuse, supermax prisons, suicide and the police offi cer, the making of an FBI

agent, and domestic violence.

C R I M I N A L J U S T I C E M E D I A L I B R A R Y

Cengage Learning’s Criminal Justice Media Library includes nearly 300 media assets

on the topics you cover in your courses. Available to stream from any Web- enabled

computer, the Criminal Justice Media Library’s assets include such valuable resources

as Career Profi le Videos featuring interviews with criminal justice professionals from a

range of roles and locations, simulations that allow students to step into various roles and

practice their decision- making skills, video clips on current topics from ABC® and other

sources, animations that illustrate key concepts, interactive learning modules that help

students check their knowledge of important topics, and Reality Check exercises that com-

pare expectations and preconceived notions against the real- life thoughts and experiences

of criminal justice professionals. The Criminal Justice Media Library can be uploaded

and used within many popular Learning Management Systems. You can also customize it

with your own course material. You can also purchase an institutional site license. Please

contact your Cengage Learning representative for ordering and pricing information.

F O R T H E S T U D E N T

COURSEMATE Cengage Learning’s Criminal Justice CourseMate brings course con- cepts to life with interactive learning, study, and exam preparation tools that support

the printed textbook. CourseMate includes an integrated e- book, quizzes mapped to

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x x i i P R E F A C E

chapter learning objectives, fl ashcards, videos, and more, and EngagementTracker, a

fi rst- of- its- kind tool that monitors student engagement in the course. The accompanying

instructor website offers access to password- protected resources such as an electronic

version of the instructor’s manual and PowerPoint® slides.

CLEBOOK Cengage Learning’s Criminal Justice e- books allow students to access our textbooks in an easy- to- use online format. Highlight, take notes, bookmark, search your

text, and, for most texts, link directly into multimedia. In short, CLeBooks combine the

best features of paper books and e- books in one package.

C A R E E R S I N C R I M I N A L J U S T I C E W E B S I T E

AVAILABLE BUNDLED WITH THIS TEXT AT NO ADDITIONAL CHARGE. Featuring plenty of self- exploration and profiling activities, the interactive Careers in

Criminal Justice website helps students investigate and focus on the criminal justice career

choices that are right for them. Includes interest assessment, video testimonials from

career professionals, résumé and interview tips, and links for reference.

To access additional course materials, please visit www.cengagebrain.com. At the CengageBrain.com home page, search for the ISBN of your title (from the back cover of

your book) using the search box at the top of the page. This will take you to the product

page where these resources can be found.

CURRENT PERSPECTIVES: READINGS FROM INFOTRAC® COLLEGE EDITION These readers, designed to give students a closer look at special topics in criminal justice,

include free access to InfoTrac College Edition. The timely articles are selected by experts

in each topic from within InfoTrac College Edition. They are available free when bundled

with the text and include the following titles:

Cyber Crime •

Victimology •

Juvenile Justice •

Racial Profi ling •

White- Collar Crime •

Terrorism and Homeland Security •

Public Policy and Criminal Justice •

Technology and Criminal Justice •

Ethics in Criminal Justice •

Forensics and Criminal Investigation •

Corrections •

Law and Courts •

Policy in Criminal Justice •

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http://www.cengagebrain.com

P R E F A C E x x i i i

A C K N O W L E D G M E N T S

I thank the reviewers for this new edition. They are:

Susan Brinkley, University of Tampa

Duane Everhart, Wayne Community College

Lori Guevara, Fayetteville State University

Stephen L. Mallory, University of Mississippi

Rebecca Anne Mercier, Bluegrass Community and Technical College

Thomas Nolan, Boston University

Angela C. Simon, University of Dubuque

The staff members at Cengage Learning have been integral to the development of this edition

as well. They are: Carolyn Henderson Meier, Senior Acquisitions Editor; Robert Jucha,

Senior Development Editor; Michelle Williams, Marketing Manager; Christy Frame,

Senior Content Project Manager; Tom McDonough, Rights Acquisitions Specialist; and

Rachel McDonald, Assistant Editor. Thanks also to Kalpana Venkatramani at PMG.

I especially want to thank Lunaea Weatherstone, the best copy editor this book has ever had.

Joycelyn Pollock

[email protected]

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mailto:[email protected]

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P A R T IP A R T I

Ethics and the Criminal Justice System

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• 3 •

C h a p t e r O b j e c t i v e s

1. Give examples of how discretion permeates every phase of the criminal justice system and creates ethical

dilemmas for criminal justice professionals.

2. Explain why the study of ethics is important for criminal justice professionals.

3. Learn the defi nitions of the terms morals, ethics, duties, superogatories, and values. 4. Describe what behaviors might fall under moral/ethical judgments.

5. Explain the difference between ethical issues and ethical dilemmas.

Morality, Ethics, and Human Behavior

Consider the following dilemma: You are a police offi cer patrolling late at night and see a

car weaving back and forth across lanes of traffi c. You turn on your siren, and the car pulls

over. The driver stumbles out of the car, obviously intoxicated. There is no question that

the driver meets the legal defi nition of intoxication. He also happens to be your father.

What would you do?

Or decide what you would do in this case: You are a correctional offi cer working the

late-night shift. Your sergeant and another offi cer from the day shift come onto the tier

where you are working and ask you to open up an inmate’s cell. After you do so, they enter

the cell. Then you hear a series of grunts, cries, and moans. They leave, muttering about

how the inmate has been taught a lesson. You believe that you have been a party to an as-

sault, but you say nothing. The next night you fi nd out that the inmate did not report the

incident, nor did any other inmate. You believe that if you come forward and report what

you saw, you will be severely ostracized. You may not be believed (especially if the inmate

doesn’t back you up). You might even lose your job. What would you do?

Finally, consider this scenario: You are a student interning in a criminal defense law-

yer’s offi ce. As part of your duties, you sit in court with the lawyer you are working with,

help her with legal research, and assist in interviewing witnesses. During the course of the

internship, you conclude that the lawyer, in your opinion, is extremely negligent. She does

not return clients’ calls, she misses appeal deadlines, and she ignores or does not follow up

on promising leads that might lead to exculpatory evidence. You are appalled that several

1 C

la rk

B re

n n

a n

/ A

la m

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4 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

of her clients are advised to plead guilty even though you think that the evidence against

them is weak. When you bring up these issues with her, she fi res you on the spot and tells

you that all her clients are guilty anyway and that she is just another ‘‘cog in the wheel’’ of

the justice machine. What, if anything, would you do?

Why Study Ethics? How would you go about deciding what to do in these situations? Learning how to deter-

mine the “right thing to do” is the central purpose of this book. We make ethical decisions

all the time, whether we recognize them or not. Think about some ethical choices you have

been faced with in the last couple of weeks or months. Perhaps you have been faced with

one of the following ethical choices:

A fellow student offered you a paper purchased from an Internet site. You believe that •

you could turn it in as your own and never be caught.

A co-worker took something from the store where you both work and expected you •

to say nothing.

A friend asked you to lie for him to his girlfriend to cover up the fact that he went out •

with another girl.

You felt compelled to tell a professor a “white lie” when asking for an extension on an •

assignment.

All of us make choices that can be judged under ethical standards. Further, we fre-

quently judge other people’s behaviors as right or wrong. Those who work in the crimi-

nal justice fi eld must be especially sensitive to the ethical issues that may arise in their

professional lives. Criminal justice professionals, whether they work in law enforcement,

the courts, or corrections, encounter a multitude of situations in which they must make

choices that affect people’s lives.

The criminal justice system can be examined using political, organizational, or so-

ciological approaches. Let us shift the lens somewhat and look at the system through an

ethics perspective. Asking whether something is legal, for instance, is not necessarily the

same question as asking whether something is right. Actors at every stage in the justice

process make decisions that can be analyzed and judged as ethical or unethical. Although

the decisions faced by these professionals—ranging from legislators who write the laws to

correctional professionals who supervise prisoners—may be different, they also have simi-

larities, especially in that these professionals all experience varying degrees of discretion, authority, and power.

Legislators have the power to defi ne behavior as illegal and, therefore, punishable.

They also have the power to set the amount of punishment. They criminalize behavior

usually because it threatens public safety, but sometimes also employ moral defi nitions

for deciding which behaviors should be legal and which should be illegal. “Protection of

public morality” is the rationale for a number of laws, including those involving drugs,

gambling, and prostitution. How do legislators use their great discretion to balance the

rights of all people? We explore these questions in more detail in Chapter 3, which covers the concept of justice, and in Chapter 8, which begins our discussion of the law and legal

professionals.

Police offi cers, who enforce the laws created by legislators, have a great deal of discre-

tionary power. For instance, they have the power to deprive people of their liberty (through

arrest), the power to decide which individuals to investigate and perhaps target for under-

cover operations, and the power to issue a ticket or let a driver off with a warning.

discretion The authority to make a decision between two or more choices.

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C H A P T E R 1 | M o r a l i t y, E t h i c s , a n d H u m a n B e h a v i o r 5

Police serve as the interface between the awesome power of the state and the citizenry

governed. In some countries, police operate as a fearsome coercive force for a controlling

political body. In the United States, we enjoy constitutional protections against untram-

meled police power, and police act as the guardians of the law, not merely enforcers for

those in power. In Chapters 5, 6, and 7, the ethical use of police discretion is discussed in

more detail.

Prosecutors probably face the least public scrutiny of all criminal justice professionals—

which is ironic because they possess a great deal of discretion in deciding who and how to

prosecute:

They decide which charges to pursue and which to drop. •

They decide which cases to take to a grand jury. •

They decide how to prosecute a case and whether to pursue the death penalty in •

homicide cases.

Although prosecutors have the ethical duty to pursue justice rather than conviction,

some critics argue that at times their decision making seems to be infl uenced by politics or

factors other than the goal of justice. Defense attorneys have ethical duties similar to pros-

ecutors in some ways; however, they also have unique duties to their client.

Judges also possess incredible power, typically employed through decisions to deny

or accept plea bargains, decisions regarding rules of evidence, and decisions about sen-

tencing. Chapters 8, 9, and 10 explore the ethical issues of legal professionals in the crimi-

nal justice system.

Finally, correctional officials have the following immense powers over the lives of

some citizens:

Probation officers make recommendations in presentence reports and violation •

reports that affect whether an individual goes to prison.

Prison offi cials decide to award or take away “good time,” and they may punish an •

inmate with segregation; both types of decisions affect the individual’s liberty.

Correctional offi cers make daily decisions that affect the life and health of the prison- •

ers they supervise.

Parole offi cials decide when to fi le a violation report, and make other decisions that •

affect a parolee as well as his or her family members.

In short, all correctional professionals have a great deal of discretion over the lives of those

they control. The ethical issues of correctional professionals are discussed in Chapters 11,

12, and 13.

Although the professionals discussed face different dilemmas, they also have the fol-

lowing common elements:

They each have discretion—that is, the power to make a decision. • Although the specifi c decisions are different, they all involve power over others and the potential depriva-

tion of life, liberty, or property.

They each have the duty of enforcing the law. • Although this concept is obvious with police, it is also clear that each of the professionals mentioned has a basic duty to up-

hold and enforce all laws; they serve the law in their professional lives.

They must accept that their duty is to protect the constitutional safeguards that are the • cornerstone of our legal system—specifi cally, due process and equal protection. Due pro- cess protects each of us from error in any governmental deprivation of life, liberty, or

property. We recognize the right of government to control and even to punish, but we

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6 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

have certain protections against arbitrary or unlawful use of that power. Due process

protects us against such abuses. We also expect that the power of our government will

be used fairly and in an unbiased manner. Equal protection should ensure that what

happens to us is not determined by the color of our skin, our gender, nationality, or

the religion we practice. Laws are for everyone, and the protection of the law extends

to all of us. Although a fair amount of evidence indicates that different treatment does

exist, the ideal of equal protection is an essential element of our legal system and

should be an operating principle for everyone working in this system.

They are public servants. • Their salaries come from the public purse. Public servants possess more than a job; they have taken on special duties involving the public trust.

Individuals such as legislators, public offi cials, police offi cers, judges, and prosecutors

are either elected or appointed guardians of the public’s interests. Arguably, they must

be held to higher standards than those they guard or govern. Temptations are many, and, unfortunately, we fi nd examples of double standards, in which public servants take advantage of their positions for special favors, rather than higher standards of exemplary behavior.

The Josephson Institute (2005), which is heavily involved in ethics training for cor-

porations and public agencies, identifi es the ethical principles that should govern public

servants: public service (treating the offi ce as a public trust), objective judgment (striv-

ing to be free from confl icts of interest), accountability (upholding open decision mak-

ing), democratic leadership (observing the letter and spirit of the law), and respectability

(avoiding the appearance of impropriety). It cannot be over-emphasized that the ethical

demands placed upon public servants are different than those placed upon the rest of us.

Edwin Delattre (1989b: 79) argued that:

Part of what is needed [for public servants] is a public sense of what Madison

meant by wisdom and good character: balanced perception and integrity.

Integrity means wholeness in public and private life consisting of habits of justice,

temperance, courage, compassion, honesty, fortitude, and disdain for self-pity.

It would be ideal if all public servants possessed the characteristics identified by

Delattre; however, even public servants of good character are sometimes perplexed as to

the right course of action in situations they encounter in their professional duties. Obvi-

ously, the law governs many of the decisions that public servants make, but because of

the discretion that exists at every stage of the criminal justice process, the possibility of

an unethical use of such discretion remains. Understanding the ethical issues involved

in one’s profession might help to guide such discretion and prevent abuse. Therefore, all

professionals in the criminal justice fi eld must be sensitive to ethical issues. These issues

may involve their relationships with citizens and others over whom they have power, their

relationship with their agency, or their relationships with one another.

Felkenes (1987: 26) explained why the study of ethics is important for criminal justice

professionals:

1. Professionals are recognized as such in part because [a] “profession” nor-

mally includes a set of ethical requirements as part of its meaning…. Profes-

sionalism among all actors at all levels of the criminal justice system depends

upon their ability to administer policy effectively in a morally and ethically

responsible manner.

2. Training in critical ethics helps to develop analytical skills and reasoning

abilities needed to understand the pragmatic and theoretical aspects of the

criminal justice system.

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3. Criminal justice professionals should be able to recognize quickly the ethical

consequences of various actions and the moral principles involved.

4. Ethical considerations are central to decisions involving discretion, force, and

due process which require people to make enlightened moral judgments.

5. Ethics is germane to most management and policy decisions concerning

such penal issues as rehabilitation, deterrence, and just deserts.

6. Ethical considerations are essential aspects of criminal justice research.

In answer to a similar question, Braswell (1996/2002: 8) explained the following fi ve

goals of a study of ethics:

Become aware of and open to ethical issues. •

Begin developing critical thinking skills. •

Become more personally responsible. •

Understand how the criminal justice system is engaged in a process of coercion. •

Develop • wholesight (which roughly means exploring with one’s heart as well as one’s mind).

The comprehensive nature of these two lists requires few additions; however, we also

could note that individuals who ignore ethics do so at their peril. They may fi nd them-

selves sliding down a slippery slope of behaviors that threaten their career and personal

well-being. Even if their actions are not discovered, many people suffer from personal cri-

ses when their actions are in confl ict with their conscience. Three basic points are reiter-

ated below:

We study ethics because criminal justice is uniquely involved in coercion, which •

means there are many and varied opportunities to abuse such power.

Almost all criminal justice professionals are public servants and, thus, owe special du- •

ties to the public they serve.

We study ethics to sensitize students to ethical issues and provide tools to help iden- •

tify and resolve the ethical dilemmas they may face in their professional lives.

wholesight Exploring issues with one’s heart as well as one’s mind.

in the N E W S T R A N S P A R E N C Y I N T E R N A T I O N A L

Every year, this international organization publishes their list of the most corrupt and least cor-

rupt nations in the world. The information is drawn from surveys of ordinary citizens, who are

asked to describe the honesty and practices of public offi cials. Not surprisingly, in the 2009

r esults, countries such as Somalia, Afghanistan, Myanmar, Sudan, Iraq, and Chad are identi-

fi ed as the most corrupt countries in the world. Perhaps surprisingly, the United States is not

ranked in the top 10 least corrupt countries. While New Zealand, Denmark, Singapore, Sweden,

Switzerland, Finland, and the Netherlands rank as the least corrupt countries, the United States

comes in at number 19.

SOURCE: Transparency International web site, available at www.transparency.org/policy_research/surveys_ indices/cpi/2009/cpi_2009_table (accessed June 27, 2010).

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8 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

Defi ning Terms The words morals and ethics are often used in daily conversations. For example, when public offi cials use their offi ces for personal profi t or when politicians accept bribes from

special interest groups, they are described as unethical. When an individual does a good

deed, engages in charitable activities or personal sacrifi ce, or takes a stand against wrong-

doing, we might describe that individual as a moral person. Often, the terms morals and ethics are used interchangeably. This makes sense because they both come from similar root meanings. The Greek word ethos pertains to custom (behavioral practices) or charac- ter, and morals is a Latin-based word with a similar meaning.

M O R A L S A N D E T H I C S

Morals and morality refer to what is judged as good conduct. (Immorality refers to bad

conduct.) The term moral also is used to describe someone who has the capacity to make value judgments and discern right from wrong (Souryal, 1992/2007: 12). The term ethics refers to the study and analysis of what constitutes good or bad conduct (Barry, 1985: 5;

Sherman, 1981: 8).

There are several branches, or schools, of ethics:

• Meta-ethics is the discipline that investigates the meaning of ethical systems and whether they are relative or are universal, and are self-constructed or are independent

of human creation.

Normative ethics • determines what people ought to do and defines moral duties based on ethical systems or other means of analysis.

Applied ethics • is the application of ethical principles to specifi c issues. Professional ethics • is an even more specifi c type of applied ethics relating to the behavior of certain professions or groups.

To many people, ethics has come to mean the defi nition of specifi c behaviors as right

and wrong within a profession. Often, in common usage, morality is used to speak of the total person, or the sum of a person’s actions in every sphere of life, and ethics is used to refer to behaviors relating to a profession and is an analysis of behavior relevant to a

certain profession. For instance, the medical profession follows the Hippocratic Oath,

a declaration of rules and principles of conduct for doctors to follow in their daily

practices; it dictates appropriate behavior and goals. In fact, most professions have their

own set of ethical standards or canons of ethics.

Even though professional ethics typically restricts attention to areas of behavior rel-

evant to the profession, these can be fairly inclusive and enter into what we might consider

the private life of the individual. For instance, doctors are judged harshly if they engage in

romantic relationships with their patients, as are professors if they become involved with

their students. These rules usually are included in codes of ethics for these professions. We

are very much aware of how politicians’ private behavior can affect their career in politics.

When John Edwards was exposed in 2009 as attempting to cover up fathering a child with

his mistress, his presidential aspirations were destroyed. Clearly, in professions involving

the public trust, such as politics, education, and the clergy, there is a thin line between

one’s private life and one’s public life.

For our purposes, it does not make a great deal of difference whether we use the for-

mal or colloquial defi nitions of morals and ethics. This text is an applied ethics text, in that we will be concerned with what is defi ned as right and wrong behavior in the professions

morals Principles of right and wrong.

ethics The discipline of determining good and evil and defi ning moral duties.

meta-ethics The discipline of investigating the meaning of ethical terms, including a critical study of how ethical statements can be verifi ed.

normative ethics What people ought to do; defi nes moral duties.

applied ethics The study of what is right and wrong pertaining to a specifi c profession or subject.

professional ethics Applied principles of right and wrong relevant to specifi c occupations or professions.

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relevant to the criminal justice system and how people in these professions make decisions

in the course of their careers. It also is a professional ethics text, because we are concerned

primarily with professional ethics in criminal justice.

D U T I E S

The term duties refers to those actions that an individual must perform to be considered moral. For instance, everyone might agree that one has a duty to support one’s parents if

able to do so; one has a duty to obey the law (unless it is an immoral law); and a police

offi cer has a moral and ethical duty to tell the truth on a police report. Duties are what you

must do in order to be good.

Other actions, considered superogatories, are commendable but not required. A Good Samaritan who jumps into a river to save a drowning person, risking his or her

own life to do so, has performed a superogatory action. Those who stood on the bank

receive no moral condemnation, because risking one’s life is above and beyond anyone’s

moral duty. Of course, if one can help save a life with no great risk to oneself, a moral duty

does exist in that situation.

Police offi cers have an ethical duty to get involved when others do not. Consider the 2001

attack on the World Trade Center. One of the most moving images of that tragedy was of po-

lice offi cers and fi refi ghters running toward danger while others ran away. This professional

duty to put oneself in harm’s way is why we revere and pay homage to these public servants.

Many civilians also put themselves in harm’s way in this disaster, and because they had no

professional duty to do so, they could be said to be performing superogatory actions.

There are also imperfect duties, general duties that one should uphold but do not have a specifi c application as to when or how. For instance, most ethical systems support a general

duty of generosity but have no specifi c duty demanding a certain type or manner of generos-

ity. Another imperfect duty might be to be honest. Generally, one should be honest, but, as

we will see in Chapter 2, some ethical systems allow for exceptions to the general rule.

V A L U E S

Values are defi ned as elements of desirability, worth, or importance. You may say that you value honesty; another way of saying that is that one of your values is honesty. Others

may value physical health, friendships, material success, or family. Individual values form

value systems. All people prioritize certain things that they consider important in life. Val-

ues only become clear when there is a choice to be made; for instance, when you must

choose between friendship and honesty, or material success and family. Behavior is gener-

ally consistent with values. For instance, some individuals believe that fi nancial success is

more important than family or health. In this case, we may assume that their behavior will

refl ect the importance of that value and that these persons will be workaholics, spending

more time at work than with family and endangering their health with long hours, stress,

and lack of exercise. Others place a higher priority on religious faith, wisdom, honesty,

and/or independence than fi nancial success or status.

Values as judgments of worth are often equated with moral judgments of goodness.

We see that both can be distinguished from factual judgments, which can be empirically

verifi ed. Note the difference between these factual judgments:

“He is lying.” •

“It is raining.” •

duties Required behaviors or actions, i.e., the responsibilities that are attached to a specifi c role.

superogatories Actions that are commendable but not required in order for a person to be considered moral.

imperfect duties Moral duties that are not fully explicated or detailed.

values Judgments of desirability, worth, or importance.

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and these value judgments:

“She is a good woman.” •

“That was a wonderful day.” •

The last two judgments are more similar to moral judgments, such as “Lying is wrong” or

“Giving to charities is good.” Facts are capable of scientifi c proof, but values and moral

judgments are not.

Some writers think that value judgments and moral judgments are indistinguishable

because neither can be verifi ed. Some also think that values and morals are relativistic and

individual. In this view, there are no universal values; values are all subjective and merely

opinions. Because they are only opinions, no value is more important than any other value

(Mackie, 1977: 22–24).

In contrast, others believe that not all values are equal, and that some values, such

as honesty, are always more important than other values, such as pleasure. In this view,

values such as charity, altruism, integrity, knowledge, and responsibility are more impor-

tant or better than the values of pleasure or wealth. You may value personal pleasure over

charity or honesty, but to someone who believes in universal values, you would be wrong

in this view. This question is related to a later discussion in Chapter 2 concerning whether

ethics are relative or absolute.

As stated earlier, values imply a choice or a judgment. If, for instance, you were con-

fronted with an opportunity to cheat on an exam, your values of success and honesty

would be directly at odds. Values and morals are similar, although values indicate the rela- tive importance of these constructs, whereas morals prescribe or proscribe behavior. The value of honesty is conceptually distinct from the moral rule against lying.

Messner and Rosenfeld’s (1994) theory of crime utilizes the concept of values. In their

explanation of why the United States has a higher rate of violent crime than other Western

countries, they propose that the U.S. value system, which emphasizes consumerism over

family and fi nancial success over honesty, creates an environment in which crime results.

In the United States, success is defi ned almost exclusively by the accumulation of material

goods, not by doing good. Because behavior is infl uenced by one’s value system, indi-

viduals who place material success over any other value will behave dishonestly or even

violently in the pursuit of such goods.

An explicit value system is part of every ethical system, as we will see in Chapter 2.

The values of life, respect for the person, and survival can be found in all ethical systems.

Certain values hold special relevance to the criminal justice system and those profession-

als who work within it; privacy, freedom, public order, justice, duty, and loyalty are all

values that will come up again in later discussions.

Making Moral Judgments We make moral or ethical judgments all the time: “Abortion is wrong.” “Capital punish-

ment is just.” “It’s good to give to charity.” “It’s wrong to hit your spouse.” These are all

judgments of good and bad behavior. We also make choices, knowing that they can be

judged as right or wrong. Should you call in sick to your boss, even though you aren’t sick,

to get a day in the sun? Should you give back extra change that a clerk gave you by mistake?

Should you tell a friend that her husband is having an affair even though he asked you not

to tell? Should you cut and paste sections of Wikipedia into your term paper?

Not all behaviors involve questions of ethics. To draw the boundaries of our ethical

discussion more specifi cally, we need to know which behavioral decisions might be judged

1 0 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

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under ethical standards. Decisions that can be judged involve four elements: (1) acts that

are (2) human and (3) of free will (4) that affect others.

ACT First of all, some act must be present to judge. For instance, we are concerned with the act of stealing or the act of contributing to charity, rather than an idle thought that stealing a lot of money would enable us to buy a sailboat or a vague intention to be more

generous. We are not necessarily concerned with how people feel or what they think about

a particular action unless it has some bearing on what they do. The intention or motive

behind a behavior is an important component of that behavior. For instance, in ethical

formalism (which we will discuss in Chapter 2), one must know the intent of an action to

be able to judge it as moral or immoral, but one also must have some action to examine

before making a moral judgment.

ONLY HUMAN ACTS Second, judgments of moral or ethical behavior are directed spe- cifi cally to human behavior. A dog that bites is not considered immoral or evil, although

we may criticize pet owners who allow their dogs the opportunity to bite. Nor do we con-

sider drought, famine, fl oods, or other natural disasters immoral even though they result

in death, destruction, and misery. The devastating earthquake that hit Haiti in 2010 is not

considered immoral; although individuals who could have helped victims and did not

might be. Philosophers widely believe that only humans can be moral (or immoral) be-

cause of our capacity to reason. Because only humans have the capacity to be good—

which involves a voluntary, rational decision and subsequent action—only humans, of all

members of the animal kingdom, have the capacity to be bad.

There is much more to this argument, of course, and there are those who argue that some

mammals show moral traits, if not moral sensibilities. Shermer (2004: 27–28), for instance,

recognizes a pre-moral sense in animals, including shame or guilt in dogs, food sharing in

bats, comforting and cooperative behaviors in chimpanzees, life-saving behaviors in dolphins

and elephants, and defending behaviors in whales. Mammals, especially apes, monkeys, dol-

phins, and whales, exhibit attachment and bonding, cooperation and mutual aid, sympathy

and empathy, direct and indirect reciprocity, altruism and reciprocal altruism, confl ict resolu-

tion and peacemaking, deception and deception detection, community concern and caring

about what others think, and awareness of and response to the social rules of the group.

Does this mean, then, that these mammals can be considered moral or immoral? Al-

though they may be placed on the continuum of moral awareness closer to humans than

other species, one could also argue that they do not possess the moral rationality of hu-

mans. They do not, as far as we know, freely choose to be good or bad, nor do they judge

their fellow animals as right or wrong.

FREE WILL In addition to limiting discussions of morality to human behavior, we usu- ally further restrict our discussion to behavior that stems from free will and free action.

Moral culpability is not assigned to persons who are not suffi ciently aware of the world

around them to be able to decide rationally what is good or bad. The two groups tradition-

ally exempt from responsibility in this sense are the young and the insane, similarly to

what occurs when ascribing legal culpability.

Arguably, we do not judge the morality of their behavior because we do not believe

that they have the capacity to reason and, therefore, cannot choose to be moral or immoral.

Although we may punish a 2-year-old for hitting a baby, we do so to educate or socialize,

not to punish, as we would an older child or adult. We incapacitate the violent mentally

ill to protect ourselves, but we consider them sick, not evil. This is true even if their actual

behavior is indistinguishable from that of other individuals we do punish. For example,

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a murder may result in a death sentence or a hospital commitment, depending on whether

the person is judged to be sane or insane, responsible or not responsible.

AFFECTS OTHERS Finally, we usually discuss moral or immoral behavior only in cases in which the behavior signifi cantly affects others. For instance, throwing a rock off a bridge

would be neither good nor bad unless you could possibly hit or were aiming at a person

below. If no one is there, your behavior is neutral. If someone is below, however, you might

endanger that person’s life, so your behavior is judged as bad.

All the moral dilemmas we will discuss in this book involve at least two parties, and the

decision to be made affects at least one other individual in every case. In reality, it is diffi cult

to think of an action that does not affect others, however indirectly. Even self-destructive

behavior is said to harm the people who love us and who would be hurt by such actions.

We sense that these elements are important in judging morality when we hear the

common rationale of those who, when judged as doing something wrong, protest, “But

nobody was hurt!” or “I didn’t mean to.” Indeed, even a hermit living alone on a desert

island may engage in immoral or unethical actions. Whether he wants to be or not, the

hermit is part of human society; therefore, some people would say that even he might

engage in actions that could be judged immoral if they degrade or threaten the future of

humankind, such as committing suicide or polluting the ocean.

One’s actions toward nature also might be defi ned as immoral, so relevant actions

include not only actions done to people but also to animals and to the environment. To

abuse or exploit animals can be defi ned as immoral. Judgments can be made against cock-

fi ghting, dog racing, laboratory experimentation on animals, and hunting. The growing

area of environmental ethics refl ects increasing concern for the future of the planet. The

rationale for environmental ethics may be that any actions that harm the environment

affect all humans. It also might be justifi ed by the belief that humankind is a part of nature—

not superior to it—and part of natural law should be to protect, not exploit, our world.

Thus far, we know that morality and ethics concern the judgment of behavior as right

or wrong. Furthermore, such judgments are directed only at voluntary human behavior

that affects other people, the earth, and living things. We can further restrict our inquiries

regarding ethics to those behavioral decisions that are relevant to one’s profession in the

criminal justice system. Discussions regarding the ethics of police offi cers, for instance,

would concern issues such as the following:

Whether to take gratuities •

Whether to cover up the wrongdoing of a fellow offi cer •

Whether to sleep on duty •

Discussions regarding the ethics of defense attorneys might include the following:

Whether to devote more effort to private cases than appointed cases •

Whether to allow perjury •

Whether to attack the character of a victim in order to defend a client •

Of course, all of these actions affect other people, as do most actions taken as a profes-

sional. Most behaviors that might be judged as ethical or not for criminal justice profes-

sionals fall into four major categories:

Acts involving citizens/clients (i.e., misuses of authority, harassment, malfeasance or •

misfeasance)

Acts involving other employees (i.e., harassment, gossip, lying) •

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Acts involving one’s organization (i.e., theft, work ethic, fi ling false reports) •

Acts involving those one supervises (i.e., arbitrary discipline, unrealistic demands, •

discouraging honest criticism)

In this text, we will present some of the unique issues and dilemmas related to each area of

criminal justice. It is important, fi rst, however, to explore the means available for analyzing

and evaluating the “right” course of action.

Morality and Behavior One of the most diffi cult things to understand about human behavior is the disjunction

between moral beliefs and behavior. We all can attest to the reality that believing some-

thing is wrong does not always prevent us from doing it. Often, we engage in acts that

we believe are bad, such as lying, stealing, and cheating. Some individuals, such as the

ones highlighted in the White Collar Crime box, engage in very wrong acts, despite their

great wealth. It seems obvious that these successful, educated men knew their conduct

was wrong, but this knowledge did not stop them.

Why do people engage in behavior that they believe to be wrong? Criminology at-

tempts to explain why people commit unlawful acts, but the larger question is this: why

do any of us engage in wrongful acts? Unfortunately, even though over 80 percent of col-

lege students believe cheating to be wrong, most have cheated on tests or papers (McCabe

White Collar Crime: How Much is Enough?

While one might be able to understand why someone who

is poor may shoplift or commit burglary, it is much harder

to understand why those who seem to have plenty of money

commit crimes to get even more. We have seen a steady

stream of individuals convicted and punished for white

collar crimes involving millions of dollars. The question is

evidently not whether they knew what they were doing was

wrong, but rather, how much money is ever enough

Allen Stanford The most recent king of the Ponzi

schemes, Stanford has been charged with running

a $7 billion scheme. A Ponzi scheme is when an of-

fender convinces investors that they can make large

returns on their money and uses subsequent investors

to pay earlier ones. As long as new investors are con-

vinced to put in their money, the scheme continues.

It collapses when investors want to withdraw their

principal—because there isn’t any. This fl amboyant

businessman, who was awarded a knighthood in the

tiny Caribbean country of Antigua, is believed to have

defrauded thousands of investors, using the money to

fund a profl igate lifestyle.

Bernard Madoff Madoff obtained notoriety in one of

the largest Ponzi schemes ever uncovered, stealing

between $10 and $20 billion. He defrauded thou-

sands of investors, including many charitable organi-

zations. Madoff is serving a 150-year sentence for his

crimes.

Dennis Kozlowski The former head of Tyco Interna-

tional was convicted and sentenced to 8 to 25 years

for misappropriating more than $400 million from the

company.

Lord Conrad Black This newspaper magnate was con-

victed in 2007 of diverting funds from his company to

his personal use. He was sentenced to 78 months.

Andrew Fastow and Jeffrey Skilling The former Enron

CFO and CEO were sentenced for fraud, insider trad-

ing, money laundering, and conspiracy for concealing

the company’s true financial situation from federal

regulators and shareholders. They are currently in fed-

eral prison.

Bernard Ebbers This former WorldCom CEO was

convicted of an $11 billion fraud against investors.

Source: BusinessWeek Online, July 6, 2006, www. businessweek.com/magazine/content/06_06/b3970083. htm (accessed June 28, 2010).

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1 4 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

and Trevino, 1996). Some looters in New Orleans after Hurricane Katrina may have been

stealing food as a matter of necessity, but many others exploited the natural disaster to

take what belonged to others. Theories abound endorsing everything from learning and

role modeling to biological predisposition, but we still haven’t answered fundamental

questions of causation. Even with all the scientifi c and philosophical attempts to explain

human action, we are left with troubling questions when we read or hear about people

who kill, steal, or otherwise offend our sense of morality. Evil is still one of the great

m ysteries of life.

In discussions concerning these questions, basic beliefs about the nature of human-

kind must be considered. Are people fundamentally bad and held in check only by rules

and fear of punishment? Or are people fundamentally good and commit bad acts because

of improper upbringing or events that subvert their natural goodness? Or are there funda-

mentally bad and fundamentally good people who are just “born that way” for no reason?

An applied ethics approach, as we will illustrate below, presumes that individuals gener-

ally prefer to do what is right. In those circumstances where the right thing to do is unclear,

there are steps to take to help make the decision easier.

Analyzing Ethical Dilemmas Ethical discussions in criminal justice focus on issues or dilemmas. Ethical issues are broad social questions, often concerning the government’s social control mechanisms and

the impact on those governed—for example, what laws to pass, what sentences to attach

to certain crimes, whether to abolish the death penalty, and whether to build more prisons

or use community correctional alternatives. The typical individual does not have much

control over these issues. The ethical issues that arise in relation to criminal justice are

serious, diffi cult, and affect people’s lives in fundamental ways. These are just a sample of

some criminal justice issues that have ethical implications:

Decriminalization of soft drugs •

Megan’s Law and other sex-offender registry statutes •

The death penalty •

Mandatory DNA registries •

Three-strikes legislation •

Racial profi ling •

Law-enforcement corruption •

Waiver of juveniles to adult courts •

Citizen oversight committees for police departments •

The Patriot Act and other challenges to civil liberties in the wake of terrorism •

Periodically we will highlight a criminal justice policy issue in this text to illustrate the

relationships among law, policy, and ethics. The issue of the medical use of marijuana is

examined in this chapter’s Policy Box.

While ethical issues are broad social questions, ethical dilemmas are situations in which one person must make a decision about what to do. Either the choice is unclear or

the right choice will be diffi cult because of the costs involved. Ethical dilemmas involve the

individual struggling with personal decision making, whereas ethical issues are topics for

which one might have an opinion but rarely a chance to take a stand that has much impact

(unless one happens to be a Supreme Court judge or a state governor).

ethical issues Diffi cult social questions that include controversy over the “right” thing to do.

ethical dilemmas Situations in which it is diffi cult to make a decision, either because the right course of action is not clear or the right course of action carries some negative consequences.

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At times, one’s belief regarding an ethical issue gives rise to a personal dilemma. In

2000, George Ryan, then governor of Illinois, declared a moratorium on use of the death

penalty in his state when at least fi ve individuals on death row were exonerated through

the use of DNA evidence. One of his last acts as he left offi ce in 2003 was to commute the

sentences of all 160 prisoners on death row to life without parole.

Governor Ryan faced a diffi cult personal dilemma because he was in a position to do

something about his belief that the death penalty was implemented in a way that could

never be just. The strong support and strong opposition to his action indicate the depth of his dilemma and the seriousness of the issue. In a sad and ironic footnote to this story,

Ryan ended up in prison himself after being convicted of federal racketeering charges and

sentenced to a six-and-a-half-year sentence in a federal prison. Evidence proved that he

had been involved in a system of “sweetheart deals” and backroom bribes selling govern-

ment contracts since he had been secretary of state (Schaper, 2007).

Sadly, there are additional examples of public fi gures whose private lives aren’t consis-

tent with their public actions. Eliot Spitzer, governor of New York who was elected on a law-

and-order platform, resigned in March 2008 after it was revealed that he had paid thousands

of dollars to prostitutes. Even though he consistently took courageous stands to promote the

public good as part of his professional duties, his private decisions led him to break the law

and engage in marital infi delity. Then, Lieutenant Governor David Paterson, who stepped

in as governor after Spitzer’s resignation, admitted that both he and his wife had engaged in

extramarital affairs, and that he had tried marijuana and cocaine in the 1970s when he was

in college. Later it was revealed that he helped his lover get a government job.

Although most of us do not have the power to commute death sentences or sign laws

into effect, we can also act upon our beliefs. Writing letters, petitioning our legislators,

Controversy exists over whether marijuana should be legal- ized for the limited use of pain relief and nausea control for seriously ill individuals, including cancer patients and those individuals suffering from AIDS. Many medical professionals have testifi ed in state and federal hearings that they believe that marijuana is more effective and has fewer side effects than other forms of legal pain relief. Others dispute the fi nd- ings. There has been a move recently in several states to pass medical marijuana laws that allow for limited use of small amounts of marijuana if it is medically prescribed.

Laws The federal government’s drug laws do not make an excep- tion for the medical use of marijuana. California passed a law allowing medical uses of marijuana to be regulated but decriminalized. The Supreme Court held that the federal laws “trumped” California law. As of 2010, there are 10 states that have passed some version of a medical marijuana law, allow- ing for some limited prescription of marijuana, but federal laws against any use still remain.

Policy Federal drug offi cials under President George W. Bush made it clear that they would enforce the federal laws against doc- tors and medical co-ops that distribute marijuana. In a new development, after President Obama took offi ce, the Justice Department has indicated that they will not pursue these types of cases in states that have laws allowing for the use of medically prescribed marijuana. This constitutes a substan- tial change in policy for the Justice Department.

Individual ethics Doctors, and others, must decide whether to violate the fed- eral law regulating the use of marijuana, even if they happen to be in a state that has passed a medical use law. Personal ethical systems determine whether these individuals will risk arrest for their actions. Personal ethical systems may also in- fl uence individuals to seek a change in the law (in either di- rection) to match their own personal views on the issue (see Raich v. Ashcroft, 248 F.Supp. 2d 918 [N.D. Cal. 2003]; also see www.drugpolicy.org/marijuana/medical/).

Medical Use of MarijuanaPOLICY ISSUES

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1 6 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

marching in demonstrations, and working to pass (or overturn) laws are examples of act-

ing on our moral beliefs. Personal ethical dilemmas arise when the individual is forced to

choose between two or more behaviors. In applied ethics texts, various authors set out

the steps to take when facing ethical dilemmas. For instance, Ruggiero (2001) advises us

to study the details of the case, identify the relevant criteria (obligations, ideals, conse-

quences), determine possible courses of action, and decide which is the most ethical.

Here are the steps we will use throughout this book to clarify any dilemma:

1. Identify the facts. Make sure that one has all the facts that are known—not future pre- dictions, not suppositions, not probabilities.

2. Identify relevant values and concepts. Concepts are things that cannot be proven empirically.

3. Identify all possible moral dilemmas for each party involved. This can help us see that sometimes one’s own moral or ethical dilemma is caused by others’ actions. For in-

stance, a police offi cer’s ethical dilemma when faced with the wrongdoing of a fellow

offi cer is a direct result of that other offi cer making a bad choice. It is helpful to see all

the moral issues involved to be able to address the central issue.

4. Decide what is the most immediate moral or ethical issue facing the individual. This is always a behavior choice, not an opinion. For example, the moral issue of whether

abortion should be legalized is quite different from the moral dilemma of whether

I should have an abortion if I fi nd myself pregnant. Obviously, one affects the other,

but they are conceptually distinct.

5. Resolve the ethical or moral dilemma by using an ethical system or some other means of decision making. (Ethical systems will be discussed in Chapter 2.)

Let us refer to the dilemma, at the beginning of this chapter, of the correctional offi cer

who must decide what to do about the possible beating he observed.

1. This offi cer has to make sure that he has all the facts. Was the inmate hurt? Did his

injuries occur during the time the two other offi cers were in his cell? Is the offi cer sure

that no one reported it? Would the inmate come forward if he believed that someone

would testify against the other two offi cers, or would he deny the assault (if there was

one)? What other facts are important to know? Remember that facts are those things

that can be proven; however, this does not necessarily mean that the individual facing

the dilemma knows what the facts are.

2. The offi cer might examine the relevant values. In this situation, one can identify duty,

legality, honesty, integrity, safety, protection, loyalty, self-preservation, and trust. Are

any other values important to resolve the dilemma? Concepts also are important. They

are like values in that they are not susceptible to empirical proof, but they are not nec-

essarily values. Although this dilemma may not have any relevant concepts, others

do. For instance, the issue of abortion revolves around the value of life, but it is also a

concept in that there is no proof of when life begins or ends (although there are facts

regarding respiration, brain activity, etc.). Many arguments surrounding ethical issues

are really arguments about concepts, not necessarily values or ethical judgments.

3. Several ethical issues come into play here. The first is whether the other officers

should have entered the prisoner’s cell. There is probably an earlier issue involving

whatever the prisoner did to warrant the visit. There is obviously the issue of whether

the offi cer should have let off-duty offi cers into the cell in the fi rst place. Finally, there

is the issue of what the offi cer should do now that he believes an injustice may have

taken place.

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C H A P T E R 1 | M o r a l i t y, E t h i c s , a n d H u m a n B e h a v i o r 1 7

4. The most immediate dilemma for the offi cer is whether or not to come forward with

the information.

5. To resolve the dilemma, it is helpful to work through Chapter 2 fi rst because one way

to resolve ethical dilemmas is to decide on an ethical system. If the offi cer was a utili-

tarian, he would weigh the costs and benefi ts for all concerned in coming forward and

in staying quiet. If he followed duty-based ethics (ethical formalism), he would fi nd

the answer once he determined his duty.

C O N C L U S I O N

In this chapter, we defi ned the terms morals and ethics as both relate to standards of behavior. We explained why a study of ethics is especially important to criminal justice profes-

sionals. It also was noted that not all behaviors would be subject to ethical j udgments—only

those that are performed by humans who are acting with free will and that affect others.

Scott Waddle was the captain of the U.S.S. Greenville in 2001, a former Eagle Scout whose career in the Navy saw

a steady progression of successes resulting in his com-

mand of the Greenville. A tireless promoter of the Navy and the giant submarine he captained, Waddle sent au-

tographed pictures of the sub to schoolchildren, and he

enthusiastically participated in the “distinguished visi-

tor” program, which allowed civilians to accompany the

submarine crew on cruises.

During one of these public relations cruises, on

February 9, 2001, the submarine captain gave the order

for an “emergency blow,” a maneuver in which the sub-

marine comes up out of the depths at great speed, break-

ing the surface of the water like a breaching whale before

settling back onto the surface. In a tragic accident, the

probabilities of which boggle the mind, the submarine

came up under a Japanese trawler carrying students and

their teachers, as well as a crew. The submarine smashed

it to bits and sent the crew and passengers who survived

the initial impact into the ocean. The accident killed nine

people and cost more than $100 million in damages and

compensation costs.

The ensuing investigation and testimony deter-

mined that the person in charge of the radar deferred to

Waddle’s visual inspection of the surface and didn’t tell

him of a sonar contact that was within 4,000 yards. Wad-

dle and other officers who manned the periscope had

scanned the surface too quickly and missed the small

ship in the turbulent swells. Testimony indicated that

W A L K I N G T H E W A L K

Sources: Hight, 2005; Putman, 2008; Newsweek, 2001.

after the crash Waddle grimly kept the crew focused,

and instructed them over the intercom, “Remember

what you saw, remember what happened, do not em-

bellish. Tell the truth and maintain your dignity.”

Against his lawyer’s advice, Waddle gave up his

right to silence in the military tribunal that was held to

assess whether to court martial him. He was reported to

have said, “This court needs to hear from me—it’s the

right thing to do.” In his testimony, he refused to shift

responsibility to others and accepted all blame for the

accident. He said, “I’m solely responsible for this truly

tragic accident, and for the rest of my life I will have to

live with the horrible consequences.”

A father of one of the victims was sitting in the

room when Waddle testified, and his anger was over-

come by Waddle’s tearful apology. Waddle ultimately

accepted a letter of reprimand that ended his career

with the Navy. Then he went to Japan to apologize to

the victims’ families personally.

In the aftermath of his decision to testify and not

fi ght to keep his career, Waddle reported that he con-

sidered suicide, but he moved past his shame and guilt.

Today he gives speeches on the experience and advises

others of the importance of dealing with failure hon-

estly, one of which was to a Boy Scout awards ceremony

in Chattanooga, Tennessee. Speaking to the 500 attend-

ees, he said that the values of honesty and responsibility

he learned in Scouting helped him make the decisions

he did during the aftermath of the accident.

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1 8 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

Professional ethics deals with only those behaviors relevant to one’s profession. We make

ethical judgments (what we consider right and wrong) using rationales derived from histor-

ical and traditional ethical systems. These ethical systems will be described in Chapter 2.

The most important thing to remember is that we all encounter situations where we

must determine the ethical or moral course of action among several choices. In the boxes

throughout the book titled Walking the Walk, we will offer real-life examples of individuals

who faced ethical dilemmas. It is clear that in many of these situations, the easier decision

would have been to avoid responsibility, transfer blame, hide behind rationalizations, or

refuse to stand up for what is right. By becoming aware of those who uphold ethics in their

professional decision making, we can honor them for doing what is right.

This chapter closes with a chapter review, followed by study questions to answer in

class or in a journal. These can be helpful to check your understanding of the issues. These

are followed by writing/discussion exercises, which have no right or wrong answers and

can be the basis for classroom discussions or individual writing assignments. Finally, ethi-

cal dilemmas are presented to encourage the reader to practice ethical analysis.

C H A P T E R R E V I E W

1. Give examples of how discretion permeates every phase of the criminal justice system

and creates ethical dilemmas for criminal justice professionals.

Discretion can be defined as the power and authority to choose one of two or more

alternative behaviors. At each stage of the criminal justice system, professionals have such

discretion: legislators make decisions regarding the creation of laws, police make decisions

on the street in their enforcement of those laws, prosecutors make decisions about which

arrests to formally prosecute, judges make decisions about which evidence to allow, and

correctional professionals make decisions that affect the lives of offenders.

2. Explain why the study of ethics is important for criminal justice professionals.

First, we study ethics because criminal justice is uniquely involved in coercion, which

means there are many and varied opportunities to abuse such power. Second, almost all

criminal justice professionals are public servants and, thus, owe special duties to the public

they serve. Finally, we study ethics to sensitize students to ethical issues and provide tools

to help identify and resolve the ethical dilemmas they may face in their professional lives.

3. Learn the defi nitions of the terms morals, ethics, duties, superogatories, and values.

The terms morals and ethics come from Greek and Latin words referring to custom or behavioral practices. Morals refer to what is judged as good conduct. Ethics refers to the

study and analysis of what constitutes good or bad conduct. Duties are obligatory acts (by

law, practice, or morals). Superogatories are those acts that go above and beyond duties.

Values are statements of worth or importance.

4. Describe what behaviors might fall under moral/ethical judgments.

Behaviors that can be adjudged under moral criteria are those that are acts (not thought),

committed by humans (not animals), of free will (not by those judged as incompetent),

and that affect others.

5. Explain the difference between ethical issues and ethical dilemmas.

Ethical issues are broad social questions, while ethical dilemmas are situations in which

one person must make a decision that can be judged as right or wrong, and where what is

right is diffi cult to decide or is hard to do for some other reason.

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C H A P T E R 1 | M o r a l i t y, E t h i c s , a n d H u m a n B e h a v i o r 1 9

K E Y T E R M S applied ethics

discretion

duties

ethical dilemmas

ethical issues

ethics

imperfect duties

meta-ethics

morals

normative ethics

professional ethics

superogatories

values

wholesight

S T U D Y Q U E S T I O N S

1. Defi ne a public servant and why public servants should be especially sensitive to ethi-

cal issues.

2. Discuss Felkenes’s reasons for why it is important for criminal justice professionals to

study ethics.

3. Defi ne morals, ethics, values, duties, superogatories, imperfect duties, meta-ethics, nor- mative ethics, and applied ethics.

4. What are the four elements that specify the types of behaviors that are judged under

ethical criteria? Which groups traditionally have been exempt from legal and moral

culpability? Why?

5. What are the steps in analyzing an ethical dilemma?

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay about (or discuss) a diffi cult ethical dilemma that you faced. What was

it? What were the options available to you? Who was affected by your decision? Were

there any laws, rules, or guidelines that affected your decision? How did you make

your decision?

2. Write an essay (or discuss) whether public servants should be held to higher standards

than the rest of us. Touch on the following questions in your response: Should we be

concerned about a politician who has extramarital affairs? Drinks to excess? Gambles?

Uses drugs? Abuses his or her spouse? What if the person is a police offi cer? A judge?

Should a female police offi cer be sanctioned for posing naked in a men’s magazine,

using pieces of her uniform as “props”? Should a probation offi cer socialize in bars

that his or her probationers are likely to frequent? Should a prosecutor be extremely

active in a political party and then make decisions regarding targets of “public in-

tegrity” investigations of politicians?

3. Write an essay (or discuss) the issue of the medical use of marijuana. What do medical

studies indicate regarding whether or not it is necessary or the best medical alternative

for certain patients? What do critics argue in their opposition to the medical use laws?

If you or a loved one were suffering and someone told you that marijuana could ease

your pain, would you violate the law or not? Why?

E T H I C A L D I L E M M A S

Situation 1

A rich businessman’s daughter, Patty, had the best of everything all her life. Her future

would have included college, a good marriage to a successful young man, and a life of

comparative luxury—except that she was kidnapped by a small band of radical extremists

who sought to overthrow the government by terror, intimidation, and robbery. After being

raped, beaten, and locked in a small, dark closet for many days, continually taunted and

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2 0 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

threatened, she was told that she must participate with the terrorist gang in a bank robbery;

otherwise, she and her family would be killed. During the course of the robbery, a bank

guard was shot.

Was her action immoral? What if she had killed the guard? What if the terrorists had

kidnapped her mother or father, too, and told her if she didn’t cooperate, they would kill

her parents immediately? What would you have done in her place? (Readers might rec-

ognize this dilemma as the Patty Hearst case. In 1974, the Symbionese Liberation Army,

a terrorist group, kidnapped the daughter of Randolph Hearst, the tycoon of a large news-

paper chain. Her subsequent capture, trial, conviction, and prison sentence have been

portrayed in books and movies and provide ripe material for questions of free will and

legal and moral culpability.)

Situation 2

You are taking an essay exam in a college classroom. The test is closed-book and closed-

notes, yet you look up and see that the person sitting next to you has hidden under his

blue book a piece of paper fi lled with notes, which he is using to answer some questions.

What would you do? Would your answer change if the test was graded on a curve? What if

the student were a friend? What would you do if the student was fl unking the course and

was going to lose the scholarship he needed to stay in school? What about a situation of

plagiarism? Would you turn in a student if you knew they turned in a plagiarized paper?

Why or why not? If someone cheats in school, isn’t it likely that they will be less honest as

a criminal justice professional?

Situation 3

You are selected for a jury in a trial of a 64-year-old mother who killed her two adult sons.

The two men had Huntington’s disease, a degenerative brain disease, and were institution-

alized. They were certain to die and would endure much pain and suffering before they

expired. The defendant’s husband had died from this same disease, and she had nursed

him throughout his illness until his death.

The defendant took a gun into the nursing home, kissed her sons good-bye, and then

shot them both through the head. She was arrested for fi rst-degree murder. The prosecutor

informs you that there is no “mercy killing” defense in the law as it is written.

If you were on the jury, how would you decide this case? What punishment does she

deserve? (See “Justice Tempered with Mercy,” by K. Ellington, Houston Chronicle, January 30, 2003: 10A. The prosecutor accepted a plea of guilty to assisting suicide.)

Situation 4

You are completing an internship with a juvenile probation agency and truly have enjoyed

the experience. Although working with the kids is challenging, you see many rewards in

the job, especially when you sense that you are reaching a client and making a difference.

Mr. Childers, the probation offi cer with whom you work, is less optimistic about the kids

and operates in a strictly by-the-book legalistic manner. He is burned out and basically

does his job without getting too involved. Although you respect him, you know you would

approach the clients differently if you were to be hired full-time.

One weekend, you are out with friends in a downtown bar frequented by college stu-

dents. To your surprise, you see Sarah, a 16-year-old probationer, dancing. In watching

her, you realize that she is drunk and, in fact, is holding a beer and drinking it while she is

dancing with a man who is obviously much older than she is. You go over to her, and she

angrily tells you to mind your own business and immediately leaves with the man. Later

she comes back into the bar and pleads with you to keep quiet. She is tearfully apologetic

and tells you that she already has had several violations of her probation and at the last

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hearing was told that if she has one more violation, she will be sent to a juvenile detention

center. You know that Sarah has been doing much better in school and plans to graduate

and even go to college.

On Monday morning, you sit in Mr. Childers’s offi ce. What should you tell him?

Situation 5

All your life you have played by the rules. When you went to college, you studied hard

and didn’t party to the extent that it hurt your grades. During your senior year, you began

to make plans to graduate and begin your career. One Friday night, you were in a car with

four other students heading home from a bar. Before you knew what happened, the car

was hit head on, and all of you were injured seriously. You now are paralyzed and face the

rest of your life in a wheelchair. The car that hit you was driven by a drunken student who,

coincidentally, was in several of your classes. Several days after you return home from the

hospital, he wants to see you. Despite your anger, you do see him, and he begs for your

forgiveness. He breaks down and cries and tells you that he had never done anything like

that before and wishes he were dead.

Can you forgive him? When he is prosecuted, what would your sentence recommen-

dation be? Would your answers be different if someone had died? What if he had prior

drunk-driving incidents? What if he also had committed other crimes and was not a fellow

college student?

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C H A P T E R O B J E C T I V E S

1. Defi ne deontological and teleological ethical systems, and explain ethical formalism and utilitarianism.

2. Describe how other ethical systems defi ne what is moral—specifi cally, religion, natural law, ethics of virtue,

and ethics of care.

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

4. Explain the controversy between relativism and absolutism.

5. Identify the three consistent elements of most of the approaches to resolving ethical dilemmas.

Determining Moral Behavior

Detective Russell Poole was a Robbery-Homicide Division investigator with the Los Angeles

Police Department. In 1998, he was assigned an investigation regarding the alleged beating of

Ismael Jimenez, a reputed gang member, by LAPD offi cers, and a suspected cover-up of the

incident. In his investigation, he uncovered a pattern of complaints of violence by the anti-

gang task force in the Ramparts Division. Gang members told Poole and his partners that a

number of offi cers harassed them, assaulted them, and pressured them to provide untraceable

guns. The beating occurred because Jimenez would not provide the offi cers with a gun. In a

search of the house of Offi cer Rafael Perez, a member of the anti-gang task force, Poole found

a box with a half-dozen realistic replica toy guns. He concluded that a number of the offi cers

in the division were “vigilante cops” and 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, ordered Poole to limit his investigation solely to the

Jimenez beating. Poole prepared a 40-page report on the Jimenez case for the district at-

torney’s offi ce, detailing the pattern of complaints, alleged assaults, and other allegations

of serious wrongdoing on the part of the Rampart offi cers. Poole’s report never reached

the district attorney’s offi ce because his lieutenant, enforcing the chief ’s orders, replaced

his detailed report with a two-page report written by the lieutenant and another supervi-

sor. Poole knew that in not providing the district attorney’s offi ce with all the information

he uncovered, he could be charged with obstruction of justice, and the report provided so

little information that the offi cer probably would not even be charged. Poole’s lieutenant

then asked him to put his name on the report (Golab, 2000).

C la

ss ic

I m

a g

e /

A la

m y

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2 4 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

How did Detective Poole decide what was the right thing to do in this situation? He

had confl icting duties and confl icting values. He knew that not signing the report might

have serious consequences for his career. How would you determine the right thing to do

if you were in a similar situation?

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. Identifying all relevant facts is essential as a fi rst step. Most of the

important facts in this dilemma are presented in the preceding paragraphs. Some-

times individuals facing a dilemma do not know all the facts, and sometimes the deci-

sion to fi nd the facts is an ethical dilemma unto itself.

2. Identify relevant values and concepts. One’s values of duty, friendship, loyalty, honesty,

and self-preservation are usually at the heart of professional ethical dilemmas. In this

case, what is Poole’s duty? His decision may hinge on his value system; for instance,

whether he values his career over honesty or loyalty to his supervisors over law.

3. Identify all possible moral dilemmas for each party involved. Recall that this was to

help us see that sometimes one’s own moral or ethical dilemma is caused by others’

a ctions. Obviously, Poole is in the situation he is in because his supervisor asked him

to do something that was unethical and probably illegal. Neither would have been in

the situation if the offi cers who were the target of the investigation had not violated the

law. The offi cers may not have felt compelled to violate the law if they had not been

attempting to control criminal gang activity. Thus, we see that usually one’s ethical

dilemma is prefaced upon others’ ethical (or unethical) decisions.

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

always a behavior choice, not an opinion. Poole’s immediate decision is whether to

sign the report, despite his misgivings as to its truthfulness.

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

decision making.

In this chapter, we will concentrate on the fi fth step in the sequence above and pres-

ent several ethical systems that can help us identify the right thing to do when faced with

an ethical dilemma.

Ethical Systems Our 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 it

is because your parents taught you or because your religion forbids it—or maybe because

society cannot tolerate people harming one another. Your answer is an indication of your

ethical system. Ethical systems have a number of characteristics. First, they are the source of moral

beliefs. Second, they are the underlying premises from which you make judgments. Third,

they are beyond argument. That is, although ethical decisions may become the basis of

debate, the decisions are based on fundamental truths or propositions that are taken as a

given by the individual employing the ethical system.

C. E. Harris (1986: 33) referred to such ethical systems as moral theories or moral phi-

losophies and defi ned 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

ethical system A structured set of principles that defi nes what is moral.

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C H A P T E R 2 | D e t e r m i n i n g M o r a l B e h a v i o r 2 5

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 sys-

tems are not relative. The same rule applies in all cases and for everyone.

They are not self-serving • . They are directed toward others; what is good is good for

everyone, not just the individual.

We don’t 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 drinking

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:

“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 fi nal argument; they can be considered the body of the pyra-

mid. 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 it

benefi ts society if all parents watched out for their children.” This would be a utilitarian ethi-

cal 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 foundation for the moral rules that we live by.

The ethical pyramid is a visual representation of this discussion. In Figure 2.1, the

moral judgment discussed above 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 usually

one of the ethical systems that we will cover in this chapter.

We will not discuss all possible ethical systems, nor are the brief descriptions here

enough to fully explain each of the systems mentioned. The reader would be well advised

to consult texts in philosophy and ethics for more detail. However, we will explore and

provide brief summaries of the most often used ethical systems.

Deontological and Teleological Ethical Systems 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 inherently good (coming from a good will), it

is still considered a good act even if it results in bad consequences. A teleological ethical system judges the consequences of an act. Even a bad act, if it results in good conse- quences, can be defi ned as good under a teleological system. The saying “the end justi-

fi es the means” is a teleological statement. The clearest examples of these two approaches

are ethical formalism (a deontological or “nonconsequentialist” system) and utilitarianism

(a teleological or “consequentialist” system).

deontological ethical system The study of duty or moral obligation emphasizing the intent of the actor as the element of morality.

teleological ethical system An ethical system that is concerned with the consequences or ends of an action to determine goodness.

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E T H I C A L F O R M A L I S M

Ethical formalism is a deontological system because the important determinant for judging whether an act is moral is not its consequence, but only the motive or intent of

the actor. According to the philosopher Immanuel Kant (1724–1804), 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 bad consequences. 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 benefi t—that act is not

moral. Gold, Braswell, and McCarthy (1991) offer the example of a motorist stranded by

the side of the road; another driver who comes along has a decision to help or to pass by. If

the driver makes a decision to stop and help, this would seem to be a good act. Not so, ac-

cording to ethical formalism, unless it is done from a good will. If the helper stops because

he or she expects payment, wants a return favor, or for any reason other than a good will,

the act is only neutral—not moral. Only if the help springs from a good will can we say

that it is truly good.

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 international

relations, there is also a universal law of right and wrong. Morality, according to Kant,

arises from the fact that humans, as rational beings, impose these laws and strictures of

behavior upon themselves (Kant, trans. Beck, 1949).

The following constitute the principles of Kant’s ethical formalism (Bowie,

1985: 157):

Act only on that maxim through which you can at the same time will that it should be- •

come 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.

Ethical System This could be ethical formalism

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

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. Drinking should be done in moderation.

One should do one's duty.

FIGURE 2.1 ETHICAL PYRAMID: EXAMPLE

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.

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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 so that you can use her car is using her as a means to one’s own

ends. Even otherwise moral actions, such as giving to charity or doing charitable acts

for others, would be considered 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 and these laws are self-imposed rather

than imposed from the outside are they a refl ection of the higher nature of humans.

These are absolute commands—together, they form the categorical imperative. According

to Kant, hypothetical imperatives are commands that designate certain actions to attain certain ends. An example is, “If I want to be a success, then I must do well in college.” By

contrast, categorical imperatives command action that is necessary without any refer- ence to intended purposes or consequences. The “imperative of morality” according to

Kant needed no further justifi cation (Kant, trans. Beck, 1949: 76).

A system such as ethical formalism is considered to be an absolutist system—if some-

thing 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 because ridding the world of dangerous 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.

This absolute judgment is criticized by those who argue that there are sometimes ex-

ceptions to any moral rule such as “one should not lie.” In a well-known example, 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 and serves to dissuade people from seeing

the value of ethical formalism. However, according to Kant, 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 be able to get away; or the attacker may be justifi ed. 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. The point is that no one person can control anything in life, so the only thing that

makes sense is to live by the categorical imperative.

Kant also 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 ex-

pect 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 were 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.

Infi eld, 1981).

This ethical framework follows simply from the beliefs that an individual must fol-

low a self-imposed moral law and that one is capable of using reason to determine right

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 imperatives The concept that some things just must be, with no need for further justifi cation, 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).

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actions because any action can be evaluated by using the principles just listed. 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, otherwise 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 confl ict with each other.

The priority of motive and intent over result is problematic in some instances • . It may be

seriously questioned whether the intention to do good, regardless of result or perhaps

with negative result, is always moral. Many would argue that the consequences of an

action and the actual result must be evaluated to determine morality.

How would ethical formalism help resolve the dilemma faced by Detective Poole, the

LAPD offi cer we discussed in the opening of this chapter? When he was asked to sign the

“doctored” report for the district attorney’s offi ce, what was his duty? His duty was obvi-

ously to uphold the law. Did he also have a duty to obey his superiors? Did he have a duty to

protect the police department from scandal? Did he have a duty to serve the public? Could

he perform all these duties at the same time, or are they inconsistent with one another?

Applying the principles of ethical formalism to the dilemma, we can make the follow-

ing observations:

Act in such a way that the behavior could be universal. • Would covering up potential

police misconduct be a rule that we would want to endorse universally? Probably not.

It seems that if evidence is routinely held back from prosecutors, they would not be

able to do their job.

Do not treat others as a means to an end. • It seems clear that Poole’s superiors were

attempting to use him to further their own interest. Would he be using someone as

a means to an end by signing the shortened report? Would he be using someone as a

means to an end by not signing the shortened report?

Behavior must be autonomous and freely chosen to be judged as moral. • If Poole were fright-

ened or pressured into doing something, then the action would not be moral regardless

of what it was. If, for instance, he believed that the district attorney would fi nd 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.

Other writers present variations of deontological ethics that do not depend so heavily on

Kant (Braswell, McCarthy, and McCarthy, 2002/2007). The core elements of any deontologi-

cal or duty-based ethical system are the importance placed on intention and the use of a prede-

termined set of principles to judge morality rather than looking at the consequences of an act.

U T I L I T A R I A N I S M

Utilitarianism is a teleological ethical system: what is good is determined by the conse- quences of the action. Jeremy Bentham (1748–1832), a major proponent of utilitarianism,

believed that the morality of an action should be determined by how much it contributes

to the good of the majority. According to Bentham, human nature seeks to maximize plea-

sure and avoid pain, and a moral system must be consistent with this natural fact.

The “utilitarian doctrine asserts that we should always act so as to produce the great-

est possible ratio of good to evil for everyone concerned” (Barry, 1985: 65). That is, if one

utilitarianism The ethical system that claims that the greatest good is that which results in the greatest happiness for the greatest number; major proponents are Bentham and Mill.

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C H A P T E R 2 | D e t e r m i n i n g M o r a l B e h a v i o r 2 9

can show that an action signifi cantly contributes to the general good, then it is good. In

situations where one must decide between a good for an individual and a good for society,

then society should prevail, despite the wrong being done to an individual. This is because

the utility or good derived from that action generally outweighs the small amount of harm

done (because the harm is done only to one, whereas the good is multiplied by the many).

For instance, if it could be shown that using someone as an example would be an effective

deterrent to crime, whether or not the person was actually guilty, the wrong done to that

person by this unjust punishment might be outweighed by the good resulting for society.

This assumes that citizens would not fi nd out about the injustice and lose respect for the

authority of the legal system, which would be a negative effect for all concerned.

Although utilitarianism is quite prevalent in our thinking about ethical decision mak-

ing, there are some serious criticisms of it:

All “pleasures” or benefi ts 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 ava-

rice or greed, or from virtue, such as charity and kindness. Later utilitarians, primarily

John Stuart Mill (1806–1873), believed that utilities (benefi ts) had different weights or

values. In other words, some were better than others. For instance, art offers a differ-

ent utility for society than alcohol; altruism carries more benefi t than pleasure, and so

on. But who is to determine which is better? Determining what is good by weighing

utilities makes sense, but the actual exercise is sometimes very diffi cult.

The system presumes that one can predict the consequences of one’s actions • . In the well-

known “lifeboat” dilemma, fi ve 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 sacrifi ce an innocent, even if it means that all will

die. Under utilitarian ethics, it is conceivable that the murder of one might be justifi ed

to save the others. But this hypothetical situation points out the fallacy of the utilitar-

ian argument. In reality, it is not known whether any will survive. The fi fth might be

murdered, and fi ve minutes later a rescue ship appears on the horizon. The fi fth might

be murdered, but then the remaining four are eaten by sharks. Only in unrealistic hypo-

thetical 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.

There is little concern for individual rights in utilitarianism • . Ethical formalism demands

that each individual 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 sacrifi ced for

the good of many. For instance, in World War II, Winston Churchill allowed Coventry

to be bombed so the Germans would not know the Allies had cracked the Germans’

secret military radio code. Several hundred English people were killed in the bomb-

ing raid of Coventry. Many might have been saved if they had been warned. It was a

calculated loss for greater long-term gains—bringing the war to an end sooner. This

could be justifi ed under utilitarianism but perhaps not under ethical formalism.

Utilitarianism has two forms: act utilitarianism and rule utilitarianism. The basic differ-

ence between the two can be summarized as follows: In act utilitarianism, only the basic utility derived from an action is examined. We look at the consequences of any action for all

involved and weigh the units of utility accordingly. In rule utilitarianism, one judges that ac- tion in reference to 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 hungry

and has no other way to eat because the utility of survival would outweigh the loss to the

store owner. On the other hand, rule utilitarianism would be concerned with the effect

act utilitarianism The type of utilitarianism that determines the goodness of a particular act by measuring the utility (good) for all, but only for that specifi c act and without regard for future actions.

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

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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 imme-

diate 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

fi rst principle of the categorical imperative. In both approaches, one must judge as good

only those actions that can be universalized.

Applying utilitarianism to Detective Russell Poole’s dilemma, it seems clear that his su-

periors were engaged in damage control. They did not want a scandal, especially considering

that it had not been that long since the Rodney King incident. By suppressing evidence of fur-

ther wrongdoing, they probably assumed that they could keep the information from the pub-

lic and deal with it internally. In fact, Chief Parks fi red more than 100 offi cers during his time

as chief, but he did so in a way that the district attorney’s offi ce was unable to prosecute any of

the offi cers for their alleged crimes. Internal Affairs routinely used a practice of compelling tes-

timony without reading the offi cer his rights before questioning. This meant that the evidence

obtained could be used to discipline the offi cer but not to prosecute him or her. The result was

that offi cers were fi red, but their cases never ended up in court—or in the newspaper.

If Detective Poole used utilitarian reasoning, where did the greatest benefit lie? Was

there greater benefit to all concerned in opposing his superiors’ attempts to suppress the

investigation, or with going along with the cover-up? Actually, the attempt to suppress

the actions of the Ramparts Division offi cers 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

investigators from the D.A.’s offi ce the whole story of the Ramparts Division offi cers, leading

to the biggest scandal in LAPD’s history (Golab, 2000; Boyer, 2001). This illustrates one of the

problems with utilitarianism: if people sacrifi ce their integrity for what they consider is a good

cause, the result may be that they lose their integrity and still do not achieve their good cause.

In summary, utilitarianism holds that morality must be determined by the conse-

quences of an action. Society and the survival and benefi t of all are more important than

any individual. Something is right when it benefi ts 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. The dif-

ference between ethical formalism and rule utilitarianism is that the actions themselves

are judged right or wrong depending on the motives behind them under ethical formal-

ism, whereas utilitarianism looks to the long-term consequences of the prescribed rules to

determine their morality. Which of the ethical systems support Joseph Darby’s decision

described in the Walking the Walk box?

Other Ethical Systems Utilitarianism and ethical formalism are the two best representatives of deontological and

teleological ethics. It should be noted, however, that the discussion of ethics existed be-

fore Kant and Bentham; for instance, we haven’t discussed the views of Socrates, Plato, or

Epicurus and, unfortunately, have no space to do so in this text. The debate has also con-

tinued into modern times through the work of Friedrich Nietzsche, Jean-Paul Sartre, John

Rawls, Alasdair MacIntyre, John Finnis, Nel Noddings, and many others. We continue to

ponder the ancient questions of what it means to be a good person. A few additional ethi-

cal systems will be described below, but the interested reader is urged to supplement this

reading with any standard ethics text.

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C H A P T E R 2 | D e t e r m i n i n g M o r a l B e h a v i o r 3 1

Sources: Hylton, 2006; CBS.news.com, 2005; CBS.news.com, 2007; Gourevitch and Morris, 2008.

Joe Darby was a military reservist from a low-

income family who grew up in Pennsylvania and set-

tled in Maryland. The 372nd was a military police unit

based in his town, and almost everyone had some ties

to the military. Darby’s unit was deployed to Iraq.

One fateful day in January 2004, Darby began

his march into the history books by asking Specialist

Charles Graner for some pictures of the surround-

ing countryside. Graner gave him a CD of pictures.

Clicking through the pictures to decide which ones to

send home, he stumbled on some that, at fi rst, made

him laugh; then, as others appeared on the computer

screen, he grew more and more disgusted. “They just

didn’t sit right with me,” he said later.

The pictures were the infamous torture photos

taken in the Abu Ghraib prison by Graner and others.

Whether Graner didn’t remember that they were on

the CD or didn’t care will never be known; however,

once Darby saw the pictures, he couldn’t stop think-

ing about them. He had not been present and did

not know that soldiers had been posing the prisoners

nude, forcing them to simulate masturbation and ho-

mosexual acts, using dogs to intimidate and attack the

naked prisoners, and placing them on stools and tell-

ing them if they fell off they would be electrocuted.

Darby had seen other things at the prison, though,

which he related years later in news accounts—things

like a helicopter fl ying into the prison grounds in the

middle of the night with a prisoner being hustled into

the interrogation room by men who not only were

nameless but who never revealed whether they were

military intelligence, CIA, or civilian contractors.

When they left the next morning, the prisoner was

dead and the soldiers were told to “clean it up.”

The pictures of Charles Graner and Sabrina

Harmon (another military police specialist) posing

next to the body of this man are part of the group of

photos that were plastered across newspapers, shown

on televisions, and appeared on Internet sites around

the world. The scandal tarnished the reputation of the

United States, probably contributed to an increase in

the Iraqi insurgency, ruined careers, and ended up

with the soldiers in the pictures serving prison time.

So why did Darby do it? Why did he burn cop-

ies of the pictures onto a disk and give them to the

Criminal Intelligence Division (CID) rather than to his

commanding offi cer? He said later that it was because

things had been reported to his superiors before and

nothing happened, and, besides, Ivan Frederick, one of

those who appeared in the pictures, was the command-

ing officer of the night shift. Darby first turned in the

envelope with the photos to CID investigators and said

he didn’t know where it came from, but then he admit-

ted that he had gotten the pictures from Graner. He was

promised that his name would be kept confi dential.

Once investigators obtained the photos, they im-

mediately began an investigation and questioned all

those in the pictures who were then, inexplicably, al-

lowed to remain in the compound. Tension and para-

noia were intense, and Darby said he literally feared for

his life, hoping that no one would discover that it was he

who had turned them in. “I’m not the kind of guy to rat

somebody out,” he said later. “I’ve kept a lot of secrets

for soldiers…but this crossed the line to me. I had the

choice between what I knew was morally right and my

loyalty to other soldiers. I couldn’t have it both ways.”

At some point, his name was leaked to the press,

and then Secretary of Defense Donald Rumsfeld an-

nounced in the congressional hearing about Abu Ghraib

that Darby was the one who turned in the photos.

Darby was sitting in a crowded mess hall in Iraq when

the hearing was being aired on the television. The room

became quiet. Although some soldiers shook Darby’s

hand, many regarded him as a traitor. So did most of

his neighbors and even some of his family. His wife en-

dured weeks of threats and vandalism before she was

taken into protective custody by the military. Neighbors

said he was a rat, a traitor, and should fear for his life.

Darby, too, was removed from Iraq ahead of his unit

and reunited with his wife in seclusion and under heavy

guard. He was told that it wasn’t safe to return to their

hometown, and he didn’t. They are not welcome there.

His tour of duty was extended through the trials, which

lasted through 2006. In 2005, Darby received the John F.

Kennedy Profi le in Courage Award.

Today, the media storm that Darby created has

fi nally died down and he is a civilian trying to create a

new life. He does not regret what he did. “I’ve always had

a moral sense of right and wrong. And I knew that, you

know, friends or not, it had to stop,” Darby says.

W A L K I N G T H E W A L K

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R E L I G I O N

Probably the most frequently used source of individual ethics is religion. Religion might be

defi ned as a body of beliefs that addresses fundamental issues such as “What is life?” and

“What are good and evil?” A religion also provides 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 defi ned as wrong. The authority of religious ethics, in particular Judeo-Christian ethics, stems from a willful and rational God. For believers, the authority of

God’s will 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 com-

mands. Indeed, these differences in interpretation are the source of most religious strife.

Religious ethics is, of course, much broader than simply Judeo-Christian ethics. Reli-

gions such as Buddhism, Confucianism, and Islam also provide a basis for ethics because they

offer explanations of how to live a “good life” and address other philosophical issues, such as

“What is reality?” Pantheistic religions—such as those of primitive hunter-gatherer societies—

promote the belief that there is a living spirit in all things. A basic principle follows from this

belief that life is important and one must have respect for all things, including trees, rivers, and

animals. A religion must have a willful and rational God or god fi gure before there can be a

judgment of right and wrong, thus providing a basis for an ethical system. Those religions that

do have a god fi gure consider that fi gure to be the source of principles of ethics and morality.

It is also true that of the religions we might discuss, many have similar basic moral

principles. Many religions have their own version of the Ten Commandments. In this re-

gard, Islam is not too different from Judaism, which is not too different from Christianity.

What Christians know as the Golden Rule actually 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 fi ve 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.” (Reiman, 1990/2004: 147)

Isocrates: “Do not do to others what would anger you if done to you by others.” •

(Shermer, 2004: 25)

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.’” (Shermer, 2004: 25)

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.” (Shermer, 2004: 25)

A fundamental question discussed by philosophers and 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 defi ni-

tion of it. This is a thorny issue and one that continues to be debated.

Another issue in Western religious ethics is how to determine God’s will. Some be-

lieve that God is inviolable and that positions on moral questions are absolute. This is a

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.

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legalist position. Others believe that God’s will varies according to time and place—the

situationalist position. According to this position, situational factors are important in de-

termining the rightness of a particular action. Something may be right or wrong depend-

ing 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. 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 situation, if we are prepared to receive God’s divine com-

mands, we can know them through faith and conscience. Box 2.1 briefl y describes some of

the major world religions other than Judeo-Christianity.

Overview of Major World Religions

Islam One of the newest, yet largest, religions is Islam. Like Christianity, this religion recognizes one god, Allah. Jesus and other religious fi gures are recognized as prophets, as is Muham- mad, who is considered to be the last and greatest 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: Inshallah, 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 fi ve pillars of Islam are (1) repetition of the creed (Shahada), (2) daily prayer (Salah), (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 infi dels will be rewarded in the afterlife (Hopfe, 1983). This is not to say that Islam provides a legitimate justifi cation 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 ethical 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 broken 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 and honorable lives), and right live- lihood (abstaining from occupations that bring harm to others, such as arms dealing and kill- ing 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; Li, 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 exemplifi es 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 refl ects a “way to Heaven” (Kessler, 1992).

BOX 2.1

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Hinduism In Hinduism, the central concept of karma can be understood as consequence. Specifi cally, 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 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 pleas- antness, patience, control of mind, refraining from stealing, purity, control of the senses, intelligence, knowledge, truthfulness, and non-irritability (Hopfe, 1983).

According to Barry (1985; 51–54), human beings can “know” God’s will in three

ways:

Individual conscience • . An individual’s conscience is the best source for discovering

what God wants one to do. If one feels uncomfortable about a certain action, it is

probably wrong.

Religious authorities • . These authorities can interpret right and wrong for us and are

our best source if we are confused about certain actions.

Holy scriptures. • The third way is to go directly to the Bible, Quran, or Torah as the

source of God’s law. Some believe that the written word of God holds the answers to

all moral dilemmas.

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 fi nd 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 to capital punishment argue that the New Testament 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 suffi cient not

only to prove the existence of God but also to discover God’s divine commands. Others

believe that reason is not suffi cient to know God and that it comes down to unquestioning

belief, so reason and knowledge must always be separate from faith. These people 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 infl uence of

true faith (Borchert and Stewart, 1986: 159–171).

To summarize, the religious ethics system is widely used and accepted. The authority

of the god fi gure is the root of all morality; basic conceptions of good and evil or right and

wrong come from interpretations of the god fi gure’s will. Many people throughout history

have wrestled with the problem of determining what is right according to God. Religion

continues to dominate national conversations, as the In the News box illustrates.

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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.

P A C T W I T H T H E D E V I L ? After the devastating earthquake that hit Haiti in 2010, the televangelist Pat Robertson created a

type of media earthquake himself when he explained that Haiti’s problems were due to a pact

with the devil. He declared on national television that Haitian voodoo priests had made a deal with

the devil to gain their independence and that, because of this rejection of God, the small country

has been battered by hurricanes and other natural disasters, and suffered extreme poverty and

other problems. The fi restorm that erupted condemned Robertson’s lack of compassion for the

victims, and caused him to retract his statements. The incident created an interesting national

debate about religion, causation, and God’s judgments, and shows us the central place religion

continues to have in our national conversations about good and evil.

SOURCE: Fletcher, 2010.

in the N E W S

N A T U R A L L A W

The natural law ethical system holds that there is a universal set of rights and wrongs that is similar to many religious beliefs, but without reference to a specifi c supernatural

fi gure. Originating most clearly with the Stoics, natural law is an ethical system wherein

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 fi gure because these universal laws exist quite apart from any religion

(Maestri, 1982; Buckle, 1993).

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 what conforms to the natural

world; thus, there are basic inclinations that form the core of moral principles. For instance,

the preservation of one’s own being is a natural inclination and thus is a basic principle

of morality. Actions consistent with this natural inclination would be those that preserve

one’s own life, such as in self-defense, but also those that preserve or maintain the species,

such as a prohibition against murder. Other inclinations are peculiar to one’s species—for

instance, humans are social animals; thus, sociability 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. 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 con-

trary 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).

Souryal (2007: 86) described natural law as the “steward” of natural rights. At least

some of the U.S. founders might be described as natural law theorists. The Constitution

recognizes “natural rights” endowed by the Creator. However, the idea of natural law origi-

nally was more concerned with duties than rights. Fishman (1994) explained that Thomas

Hobbes and John Locke transformed the original natural law theory that emphasized

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duties or obligations of humans in the natural order to one that emphasized “natural”

human rights. To stay true to the internal consistency and historical legacy of natural rights

theory, one must balance the emphasis on rights with an emphasis on obligations. For in-

stance, the protection of individual freedoms as natural rights is an important component

of any democracy, but democracy can exist only when citizens accept and perform the ob-

ligations of citizenship. Citizens who are not vigilant in protecting their freedoms through

the political process risk losing them. In this sense, natural law theory echoes the emphasis

on duty found in ethical formalism.

Natural law theory defi nes good as that which is natural. The diffi culty of this system

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? Who de-

termines the natural laws?

Natural law has been employed to restrict the rights and liberties of groups of peo-

ple. So-called “natural” laws regarding the superiority of whites were also used to support

and justify slavery. In Bradwell v. Illinois 83 U.S. 130 (1873), the Supreme Court upheld

Indiana’s right to prevent Myra Bradwell from becoming a member of the bar. The state’s

argument, which the Supreme Court endorsed, was the woman’s “natural” role was child-

bearer. In their famous “mother of the species” holding, the Court decided that women’s

childbearing role was a natural destiny and that the sordid world of the courtroom was no

place for women. Today, natural law is sometimes employed to oppose same-sex mar-

riage. 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?

T H E E T H I C S O F V I R T U E

Each of the foregoing ethical systems asks, “What is a good action?” The ethics of virtue instead asks, “What is a good person?” This ethical system rejects the approach that one

might use reason to discover what is good. Instead, the principle is that to be good, one

must do good. Virtues that a good person possesses include thriftiness, temperance, hu-

mility, industriousness, and honesty. It may be considered a teleological system because

it is concerned with acting in such a way as to achieve a happy life (Prior, 1991). The spe-

cifi c “end” pursued is happiness, or eudaimonia, but the meaning of this word is not the

same as the meaning given by utilitarians. This version of happiness does not mean sim-

ply having pleasure, but also living a good life, reaching achievements, and attaining moral

excellence.

The roots of this system are in the work of Aristotle, who defi ned virtues as “excel-

lences.” These qualities are what enable an individual to move toward the achievement

of what it takes to be human. Aristotle distinguished intellectual virtues (wisdom, under-

standing) from moral virtues (generosity, self-control). The moral virtues are not suffi cient

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 train-

ing 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 fulfi llment. (Aristotle, quoted in Prior, 1991: 156–157)

Habits of moral virtue are obtained by following the example of a moral exemplar.

These habits are also more easily instilled when “right” or just laws also exist. Moral virtue is

a state of character in which choices are consistent with the principle of the golden mean.

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

principle of the golden mean Aristotle’s concept of moderation, in which one should not err toward excess or defi ciency; this principle is associated with the ethics of virtue.

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This principle states that virtue is always the median between two extremes of character.

For instance, proper pride is the mean between empty vanity and undue humility, and so

on. The Catalog of Virtues derived from the writings of Aristotle lists others (Box 2.2).

Moral virtue comes from habit, which is why this system emphasizes character. The

idea here is that one does not do good because of reason; rather, one does good because 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 nu-

merous opportunities to lie, cheat, and steal. When a cashier looks the other way, we could

probably fi lch a $20 bill from the cash drawer; or when a clerk gives us a $10 bill instead of

a $1.00 bill by mistake, we could keep it instead of hand it back. We don’t because, 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 have the opportunity to do bad things, because our

habits of a lifetime dictate our actions.

Catalog of Virtues Area Defect Mean Excess

fear cowardice courage recklessness

pleasure insensitivity self-control self-indulgence

money stinginess generosity extravagance

honor small-mindedness high-mindedness vain

anger apathy gentleness short temper

truth self-depreciation truthfulness boastfulness

shame shamelessness modesty self-hate

Source: Aristotle’s virtues, adapted from Prior (1991: 165).

BOX 2.2

Somewhat related to the ethics of virtue ethical system are the 6 Pillars of Character

promulgated by the Josephson Institute of Ethics (2008). The 6 Pillars of Character echo

Aristotle’s virtues.

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

Honesty means to be truthful, forthright, and sincere, and the pillar also involves loy-

alty, living up to one’s beliefs, and having values.

2. Respect. This pillar is similar to the second portion of the categorical imperative, which

admonishes to treat each person with respect and not as a means to an end. It also en-

compasses the Golden Rule.

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

Everyone has a moral duty to pursue excellence, but, if one fails, the duty is to take

responsibility for the failure.

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

treat everyone fairly doesn’t necessarily mean to treat everyone the same, but rather,

to apply fairness in one’s dealings with everyone.

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

6. Citizenship. This includes the duties of every citizen, including voting, obeying the

law, being a good steward of the natural resources of one’s country, and doing one’s

fair share.

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It should also be noted that most of us have some virtues and not others. There are

many other virtues besides those already mentioned, including compassion, courage, con-

scientiousness, and devotion. Some of us may be completely honest in all of our dealings

but not generous. Some may be courageous but not compassionate. Therefore, we all are

moral to the extent that we possess moral virtues, but some of us are more moral than oth-

ers by having more virtues. One diffi culty is in judging the primacy of moral virtues. For

instance, in professional ethics there are often confl icts that involve honesty and loyalty. If

both are virtues, how does one resolve a dilemma in which one virtue must be sacrifi ced?

The ethics of virtue probably explains more individual behavior than other ethical

systems because most of the time, if we have developed habits of virtue, we do not even

think about the possible bad acts we might do. For instance, most of us do not have to

analyze the rightness or wrongness of stealing every time we go into a store. We do not

automatically consider lying every time a circumstance arises. Most of the time we do the

right thing because of our habits and patterns of a lifetime. However, when faced with a

true dilemma—that is, a choice where the “right” decision is unclear—the ethics of virtue

may be less helpful than other ethical systems.

Alasdair MacIntyre (1991: 204), a contemporary philosopher who promotes virtue

ethics, defi nes virtues as those dispositions that will sustain us in the relevant “quest for

the good, by enabling us to overcome the harms, dangers, temptations and distractions

which we encounter, and which will furnish us with increasing self-knowledge and in-

creasing knowledge of the good.” MacIntyre (1999) also seems to endorse an ethics-of-

care approach because he discusses virtue as necessary to care for the next generation. He

sees life as one of “reciprocal indebtedness” and emphasizes “networks of relationships”

as the locale of giving and receiving the benefi ts of virtues. This language is similar to the

ethics of care, which will be discussed next.

In our opening case, Detective Poole reported that he never considered putting his

name on a report he knew was wrong. His superiors, co-workers, and colleagues describe

him as “professional,” “hard working,” “loyal, productive, thorough, and reliable,” “dili-

gent,” “honest,” and “extremely credible.” He was known as a fi rst-rate investigator and

trusted by the D.A.’s offi ce to provide thorough and credible testimony. In other words,

his habits in his professional life were directly contrary to participating in a cover-up.

Those who advocate the ethics of virtue would predict that Poole would not participate in

a cover-up because of his character—and they would be right, because he did not sign the

report (Golab, 2000).

T H E E T H I C S O F C A R E

The ethics of care is another ethical system that does not depend on universal rules or formulas to determine morality. The emphasis is on human relationships and needs. The

ethics of care has been described as a feminine morality because women in all societies are

the childbearers and consequently seem to have a greater sensitivity to issues of care. Nod-

dings (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 mascu-

line spirit, whereas the more natural and perhaps stronger approach would be through

Eros, the feminine spirit.”

The ethics of care is founded in the natural human response to care for a newborn

child, the ill, and the hurt. There are similarities in the ethics of care’s idea that morals derive

from natural human impulses of compassion and Jean-Jacques Rousseau’s (1712–1778)

argument that it is humans’ natural compassion that is the basis of human action and the

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

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idea that morality is based in emotion rather than rationality, i.e. “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 identifi ed a feminine ap-

proach 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 some Eastern religions,

such as Taoism, as illustrations of the ethics of care (Gold et al., 1991). In these religions,

a rigid, formal, rule-based ethics is rejected in favor of gently leading 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. In

personal relationships, the ethics of care would promote empathy and treating others in

a way that does not hurt them. In this view, meeting needs is more important than secur-

ing rights.

In their text, Braswell and Gold (2002) discuss a concept called peacemaking justice. They show that the concept is derived from ancient principles, and it concerns care as well as other concepts: “Peacemaking, as evolved from ancient spiritual and wis-

dom traditions, has included the possibility of mercy and compassion within the frame-

work of justice” (2002: 25). They propose that the peacemaking process is composed of

three parts: connectedness, caring, and mindfulness:

Connectedness • has to do with the interrelationships we have with one another and all

of us have with the earth.

Caring • is similar to Noddings’s concept that the “natural” inclination of humans is to

care for one another.

Mindfulness • involves being aware of others and the world in all personal decision mak-

ing (Braswell and Gold, 2002: 25–37).

To summarize, the ethics of care approach identifi es the needs of all individuals in

any ethical situation and attempts to maximize them. It is different from utilitarianism,

however, in that one person cannot be sacrifi ced for others. Also, there is an attempt to re-

solve situations through human relationships and a sense that decisions should come from

compassion rather than attention to rights or duties.

Egoism: Ethical System or Not? Very simply, egoism postulates that what is good for one’s survival and personal hap- piness 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 fundamentally inconsistent with one of the elements (“they are not self-serving”)

(Baelz, 1977).

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

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

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Psychological egoism is a descriptive principle rather than an ethical prescrip- tion. Psychological egoism holds that humans are naturally egoists and that it would be

unnatural for them to be any other way. All species have instincts for survival, and self-

preservation and self-interest are merely part of that instinct. Therefore, it is not only moral

to be egoistic, but 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 is why they do them, not for some other selfl ess reason. 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 personal-

ity make-up 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 person’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 selfl ess and

altruistic acts are consistent with egoism because these acts benefi t the individual by en-

suring 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.

Under egoism, it would be not only impossible but also immoral for someone to perform

a completely selfl ess act. Even those who give their lives to save others do so perhaps with

the expectation of rewards in the afterlife. Egoism completely turns around the priorities of

utilitarianism to put the individual fi rst, before anyone else and before society as a whole;

however, 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 practical

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. Only when

government or liberal do-gooders manipulate the market, some argue, does capitalism

not work optimally. Ayn Rand (1905–1982) is perhaps the best-known modern writer/

philosopher associated with egoism. She promoted both psychological egoism (that hu-

mans are naturally selfi sh) and ethical egoism (that humans should be self-interested). Lib- ertarians utilize Rand’s writings to support their view of limited government and fi erce

individualism.

Most philosophers reject egoism because it violates the basic tenets of an ethical sys-

tem. Universalism is inconsistent with egoism, because to approve of all people acting in

their own self-interest is not a logical or feasible position. It cannot be right for both me

and you to maximize our own self-interests because it would inevitably lead to confl ict.

Egoism would support exploitative actions by the strong against the weak, which seems

wrong under all other ethical systems. However, psychological egoism is a relevant con-

cept in natural law (self-preservation is natural) and utilitarianism (hedonism is a natural

inclination). But if it is true that humans are naturally selfi sh and self-serving, one can also

point to examples that indicate that humans are also altruistic and self-sacrifi cing. One

thing seems clear: when individuals are caught doing illegal acts, or acts that violate their

professional codes of ethics, or acts that harm others, it is usually only egoism that can

justify their behavior.

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.

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Other Methods of Ethical Decision Making 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) de-

scribed three principles of ethical decision making:

The • imperative principle directs a decision maker to act according to a specifi c, unbending rule.

The • utilitarian principle determines the ethics of conduct by the good or bad con- sequences of the action.

The • generalization principle is based on this question: “What would happen if all similar persons acted this way under similar circumstances?”

These should sound familiar because they are, respectively, religious or absolutist

ethics, utilitarianism, and ethical formalism. Ruggiero (2001) proposes that ethical dilem-

mas be evaluated using three basic criteria. The fi rst principle is to examine one’s obliga-

tions and duties and what one has promised to do by contract or by taking on a role (this

is similar to ethical formalism). 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 similar to 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 specifi c 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:

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?

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?

There are three general principles that can be drawn from all of the approaches

above. Think of them as the three “F’s.” First, we are interested in attaining all the facts

of the situation; this includes the effects of the decision on oneself and others. We can’t

make good decisions unless we know all the facts, or, at least, as many as we can know.

Second, the so-called “front page” test asks us to evaluate our decision by whether or not

we would be comfortable if it was on the front page of the newspaper. Public disclosure

is often a good litmus test for whether something is ethical or not. Finally, the concept

of a formula or rationale indicates that individual decisions should be based on a set of

moral or ethical principles that would apply to all situations, rather than made ad hoc in

each situation.

Most of us seek to make good decisions when confronted with moral or ethical dilem-

mas, and we believe that our decisions can be judged as good or bad. There is a school of

thought, however, that holds that such judgments are purely subjective. We turn now to

relativism, the idea that there can be no universal judgments of good or bad because there

is no universal truth.

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

utilitarian 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.

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Relativism and Absolutism Ethical relativism describes the position that what is good or bad changes depend-

ing on the individual or group, and that there are no moral absolutes. What is right is

determined by culture and/or individual belief; there are no universal laws. There are

two main arguments for relativism. The fi rst argument is that there are many differ-

ent moral standards of behavior. According to Stace (1995: 26), “We fi nd that there is

nothing, or next to nothing, which has always and everywhere been regarded as mor-

ally good by all men.” The second argument is that humans are incapable of determin-

ing what, if anything, is an absolute rule of morality. Who is to say what is right and

what is wrong?

One may look to anthropology and the rise of social science to explain the popular-

ity of moral relativism. Over the course of studying different societies—past and present,

primitive and sophisticated—anthropologists have found that there are very few universals

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 defi nes good as that which contributes to the health and survival of society. As examples, societies where women are in ample supply may endorse

polygyny, and societies that have a shortage of women may accept polyandry. Hunting and

gathering societies that must contend with harsh environments may hold beliefs allowing

for the euthanasia of burdensome elderly, whereas agricultural societies that depend on

knowledge passed down through generations may revere their elderly and accord them an

honored place in society.

In criminology, cultural differences in perceptions of right and wrong are important

to the subcultural deviance theory of crime, wherein some deviant activity is explained

by subcultural approval of that behavior. The example typically used to illustrate this

concept is that of the Sicilian father who kills the man who raped his daughter, because

to do otherwise would violate values of his subculture emphasizing personal honor and

retaliation (Sellin, 1970: 187). A more recent case of subcultural differences involves a

father who sold his 14-year-old daughter into marriage. Because he lived in Chicago, he

was arrested; if he had lived in his homeland of India, he would have been conform-

ing to accepted norms of behavior. In a recent case in Texas, state offi cials seized all the

children of a polygamous religious sect called the Fundamentalist Church of Jesus Christ

of Latter Day Saints, because they allegedly required underage girls to be married to

the men in the sect. Because neither consent nor marriage is a defense to statutory rape,

Texas laws were allegedly broken by the religious and cultural practices of the sect (As-

sociated Press, 2008e).

We should also note how governments attempt to change culture through the crimi-

nal law. The cultural support in India for killing wives whose families do not provide

a dowry is being slowly eroded by the current legal system that (albeit halfheartedly)

investigates and punishes those responsible. Cultural relativists recognize that cultures

have very different defi nitions of right and wrong, and moral relativists argue that there

are no fundamental or absolute defi nitions of right and wrong. In opposition to this po-

sition, absolutists argue that just because there may be cultural norms endorsing such

things as cannibalism, slavery, or having sex with 6-year-olds, the norms do not make

these acts moral.

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 lies a fundamental fl aw in the relativist approach: If there are no

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

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universal norms, why should individuals be required to conform to 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.

An additional inconsistency in cultural relativism is the corresponding prohibition

against interfering in another culture’s norms. The argument goes as follows: Because ev-

ery culture is correct in its defi nitions of morality, another culture should not step in to

change those defi nitions. However, if what is right is determined by which culture one

happens to belong to, why then, if that culture happens to be imperialistic, 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:

killing is wrong except possibly in self-defense and war; lying is wrong except when

one lies to protect another. Occupational subcultures also support standards of behavior

that are acceptable only for those within the occupation. For instance, some police of-

fi cers believe that it is wrong to break the speed limit unless one happens to be a police

offi cer—even an off-duty one. Some politicians believe that certain laws don’t apply to

them because they are the ones who create the laws or because they can substitute their

own judgment about what is best for the country. Some of these decisions may be jus-

tifi ed, but others may not be by any of the ethical decision-making methods we have

discussed in this chapter.

It must be noted that even absolutist systems may accept some exceptions. The

p rinciple 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 fi rst forfeit their own right to be protected from harm. This

could permit self-defense (despite the moral proscription against taking life) and possi-

bly provide justifi cation 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 ef-

fect, moral rules are absolute except for those exceptions allowed by some “back-door”

argument.

Alan Dershowitz, a well-known criminal defense attorney, has written a book of ethics

in an attempt to explain how one should determine right and wrong. He argues that rights

do not come from God because He does not speak to everyone in a single voice; they are

not derived from natural law because nature is value-neutral; and they do not come from

positive (man-made) law because it is subject to political infl uence. Dershowitz further

disputes whether absolute rules can ever be suffi cient to answer the questions of right and

wrong. His conclusion is that our morals come from our experiences: morality is evolving

and changes when major events change our thinking about actions. His example is that

when something like the Holocaust occurs, there is an evolution of rights such that new

and greater rights are recognized for everyone.

According to Dershowitz, this moral evolution occurs in fits and starts and is not

gradual or consistent; however, once something has been lived through, there is a new

way of thinking about rights. He uses the example that because of World War II and

the after-the-fact recognition that we were wrong to place Japanese-American citizens

in internment camps, after 9/11 we didn’t put Middle Eastern visitors and citizens of

Middle Eastern heritage in similar camps (Dershowitz, 2004: 9, 94). One might argue

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.

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with his facts, however, in that after 9/11 many people did advocate internment and

thousands of Middle Easterners who were in this country on visas or green cards were

detained by authorities. Furthermore, it is interesting that Dershowitz has come out

more recently in support of torture in certain circumstances, arguing that it is better to

have rules and laws allowing torture in limited circumstances than to let it occur with

no legal authority and, therefore, no legal oversight. His rationale, of course, is based

on act utilitarianism: there is a greater good for everyone if the torture may reveal in-

formation that could save large numbers of people from harm. Perhaps he would also

agree that in the future we may look back at waterboarding and other coercive inter-

rogation techniques, and recognize the essential human right of everyone not to be

tortured.

Absolutists would argue that the reason that things like the Holocaust, slavery, the

slaughter of Native American Indians, the Armenian genocide, Japanese-American in-

ternment, the Bataan Death March, and torture in Abu Ghraib and Guantanamo hap-

pen is because people promoting what they consider to be a good end (security or

progress) do not apply absolute rules of morality and ethics and, instead, utilize relativ-

ism: It is okay for me to do this, at this time, because of what I consider to be a good

reason.

Relativism allows for different rules and different judgments about what is good. Uni-

versalists would argue that if moral absolutes are removed, subjective moral discretion

leads to egoistic (and nationalistic) rationalizations.

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 consid-

ered “good” if it is considered good by some people; therefore, even human sacrifi ce and

cannibalism would have to be considered moral—a thoroughly unpalatable consequence

of accepting the doctrine. Absolutism, on the other hand, is also less than satisfactory

because we all can think of some examples when the “rule” must be broken. Even Kant

declined to be purely absolutist in his argument that lying isn’t really lying if told to a

person who is trying to harm us. What is needed, then, is an approach that resolves both

problems.

Hinman (1998) resolves this debate by defi ning the balance between absolutism and

relativism as moral pluralism. In his elaboration of this approach, he stops short of an “anything goes” rationale but does recognize multicultural “truths” that affect moral per-

ceptions. The solution that will be offered 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 moral 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.

Situational ethics is different from relativism because absolute laws are recognized,

whereas under relativism there are no laws. What are absolute laws that can be identifi ed

as transcendent? Natural law, the Golden Rule, and the ethics of care could help us fashion

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.

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

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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 the utmost respect and care. •

Do one’s duty or duties in such a way that one does not violate the fi rst principle. •

These principles would not have anything to say about dancing (as immoral or moral),

but they would defi nitely condemn human sacrifi ce, 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 was necessary to ensure the survival of society,

it might be acceptable; if it was to serve 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.

To resolve the dilemma from Chapter 1 of the police offi cer who stops his father for

driving while intoxicated, one might argue that the offi cer can do his duty and still respect

and care for his father. He could help his father through the arrest process, treat him with

care, and make sure that he receives help, if needed, for his drinking. Although this might

not be enough to placate his father and the father might still be angry with him, as would

others, their reaction could then be analyzed: Are they treating the offi cer with care and

respect? Does the father respect his son if he expects him to ignore a lawful duty?

This system is not too different from a fl exible interpretation of Kant’s categorical im-

perative, a strict interpretation of rule-based utilitarianism, or an inclusive application of the

Golden Rule. All ethical systems 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. Interestingly,

situational ethics seems to be entirely consistent with the ethics of care, especially when one

contrasts this ethical system with a rule-based, absolutist system. In the ethics of care, you

will recall, each individual is considered in the equation of what would be the “good.”

Resulting Concerns Ethical systems provide the guidelines or principles to make moral decisions. Box 2.3

(“The Major Ethical Systems”) summarizes the key principles of these ethical systems. It

can happen that moral questions are decided in different ways under the same ethical sys-

tem. For instance, if facts are in dispute, two people using utilitarianism may “weigh” the

utilities of an act differently. Capital punishment is supported by some because of a belief

that it is a deterrent to people who might commit murder; 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. Most arguments

about capital punishment get confused during the factual argument about the effective-

ness of deterrence. “Is capital punishment wrong or right?” is a different question than

“Does capital punishment deter?”

Another thing to consider is that none of us is perfect; we all have committed im-

moral 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. One can condemn the act and not the person. The point is that just

because some behaviors are understandable and perhaps even excusable does not make

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The Major Ethical Systems 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.

Religion. What is good is that which conforms to God’s will.

Natural law. What is good is that which is natural.

Ethics of virtue. What is good is that which conforms to the Golden Mean.

Ethics of care. What is good is that which meets the needs of those concerned.

Egoism. What is good is that which benefi ts me.

BOX 2.3

Most of us try to behave ethically most of the time. Dilemmas arise when we are con-

fused about the right thing to do or when the right thing to do carries considerable cost.

Detective Poole knew what the right course of action was. He also knew that he would

pay a price for doing it. In fact, he was transferred to a less prestigious position and de-

nied a promotion. He was vilifi ed and treated as a traitor by some offi cers when he went

public with his evidence of a cover-up. Ultimately, he resigned from the Los Angeles

Police Department (Golab, 2000). This illustrates the sad fact that doing the right thing

sometimes comes at a price.

C O N C L U S I O N

In this chapter, we have explored some of the major ethical systems. Ethical systems are

ordered principles that defi ne what is right or good. Each of these ethical systems answers

the question “What is good?” in a different way. Sometimes the same conclusion to an

ethical dilemma can be reached using several different ethical systems, but sometimes

using different ethical systems can result in contradictory answers to the determination of

goodness.

Ethical systems are more complex to apply than they are to explain. For instance,

utilitarianism is fairly easy to understand, but the measurement of utility for any given

act is often quite diffi cult. Ethical formalism says to “do one’s duty,” but it does not

help us when there are confl icting 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. These steps often in-

clude the ideas of obtaining all facts, applying a “front page” test (or exposing the deci-

sion to outside scrutiny), and applying a formula or set of principles. Whether morals

are relative or absolute has been debated throughout time. The concept of situational

ethics may help to reconcile the question as to whether ethics are ultimately subjective

or universal.

them moral or ethical. Finally, few people consistently use just one ethical system in mak-

ing moral decisions. Some of us are fundamentally utilitarian and some predominantly

religious, but we may make decisions using other ethical frameworks as well.

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C H A P T E R R E V I E W

1. Defi ne deontological and teleological ethical systems and explain ethical formalism

and utilitarianism.

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 inherently good (coming from a good will), it

is still considered a good act even if it results in bad consequences. A teleological ethical

system judges the consequences of an act. The saying “the end justifi es the means” is a

teleological statement. Kant’s ethical formalism defi nes good as that which conforms to

the categorical imperative, which includes the universalism principles, the idea that we

shouldn’t use people, and the stricture that we must do our duty through a free will in

order to be considered moral. Utilitarianism, associated with Jeremy Bentham, defi nes

good as that which contributes to the greatest utility for the greatest number.

2. Describe how other ethical systems defi ne what is moral—specifi cally, religion, natural

law, ethics of virtue, and ethics of care.

Under Judeo-Christian religion, what is good is determined by God’s will. One can know

God’s will through one’s religious leaders or the Bible. Other religions also have statements

of good and evil and sources to use to determine what is good. Under natural law, good

is determined by what is natural. Moral rules are considered similar to other natural laws,

such as gravity. Even if humans have not discovered these moral rules, or disagree about

what they are, they still exist. Under the ethics of virtue, goodness is determined by the

virtues. Aristotle and others have identifi ed what are considered to be moral virtues. Those

who possess such virtues will make the right decision when faced with a moral dilemma.

The ethics of care is based on the emotions of relationships. Caring is the basis of this

morality.

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

Most who write in the area of applied ethics reject egoism as an ethical system because

it is self-serving and logically inconsistent. It doesn’t make sense to have a universal rule

that everyone should pursue self-interest, because our self-interests will inevitably confl ict.

Proponents of ethical egoism also believe in psychological egoism, the idea that we are, by

nature, purely self-interested. Under this view, we are egoists and, therefore, to pursue our

self-interest is a good.

4. Explain the controversy between relativism and absolutism.

Absolutist ethics allow no exceptions to moral rules for exceptional circumstances. Rela-

tivism seems to allow individuals to defi ne anything as morally acceptable, even acts that

would be considered wrong under universal moral rules. The compromise is situational

ethics, which propose a very few absolute rules that will support different decisions in dif-

ferent circumstances.

5. Identify the three consistent elements of most of the approaches to resolving ethical

dilemmas.

Most of the step-based approaches include the following: one must know the facts of the

situation; one should apply the “front page” test; and one should use a formula or set of

moral or ethical principles to resolve any ethical dilemma.

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4 8 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

act utilitarianism

categorical imperatives

cultural relativism

deontological ethical

system

egoism

enlightened egoism

ethical formalism

ethical system

ethics of care

ethics of virtue

generalization principle

hypothetical imperatives

imperative principle

moral pluralism

natural law

peacemaking justice

principle of forfeiture

principle of the golden

mean

psychological egoism

religious ethics

rule utilitarianism

situational ethics

teleological ethical system

utilitarianism

utilitarian principle

S T U D Y Q U E S T I O N S

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 between

act and rule utilitarianism.

3. What are the three ways to know God’s will? What are the 6 Pillars of Character?

4. What are Krogstand and Robertson’s three principles of ethical decision making?

5. Explain the differences between situational ethics and relativism.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

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

a. In the movie Sophie’s Choice, a woman is forced to choose which 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 Hiro-

shima and Nagasaki at the end of World War II. Present the arguments on both

sides. Now consider this: Are they utilitarian arguments, ethical formalist argu-

ments, or some other?

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 answer: 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 (or discuss) whether ethics and morals are relative or absolute. Are

there absolute moral truths, or is morality simply an individual’s defi nition of right and

wrong? Should everyone have the right to decide which behaviors are acceptable for

them? Should all cultures have the right to decide what is right? If you believe there are

absolute defi nitions of right and wrong, what are they?

K E Y T E R M S

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E T H I C A L D I L E M M A S

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 fl oat into a ship-

ping lane and can be discovered and rescued. You will defi nitely all perish if the fi ve 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

go overboard if you choose by straws? Would you vote to throw overboard the weakest and

least healthy of the fi ve? If you were on a jury judging the behavior of four who did murder

a fi fth in order 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 offi cer 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 implicated as well. What should you do?

Situation 4

You have a best friend who has confessed a terrible secret to you. Today the man is married

and has two children. He has a good family, a good life, and is a good citizen. However,

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 in internal affairs, and in the course of another investigation, you discover

disturbing evidence regarding the police chief ’s son, who is also an offi cer in the depart-

ment. Several informants have confi ded in you that this individual has roughed them up

and taken their drugs, yet you fi nd no record of arrest or the drugs being logged in the evi-

dence room. When you write your report, your sergeant tears it up and tells you that there

is not enough evidence to justify an investigation and for you to stick to what you are told to

do. What would you do? What would you do if the chief calls you into his offi ce the next day

and offers you a transfer to a high-status position that will defi nitely lead to a promotion?

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• 51 •

C h a p t e r O b j e c t i v e s

1. Describe the three themes included in the defi nition of justice.

2. Defi ne the three types of justice described in the chapter.

3. Under corrective justice, distinguish between substantive and procedural justice.

4. Describe civil disobedience and when it may be appropriate.

5. Explain the concept of restorative justice and the programs associated with it.

Justice and Law

What is justice? Harold Hall would argue that he didn’t receive justice by spending

20 years in a California prison for a crime he didn’t commit. In 1985, at the age of 18, he

was arrested for a double homicide and rape. He was interrogated for 17 hours, hand-

cuffed to a chair, and denied food and water. The police told him that they had evidence

linking him to the crime. Finally he told police what he thought they wanted to hear. That

confession and the perjured testimony of a jailhouse informant was enough for a jury to

convict him to life in prison. After 20 years in prison, Hall was fi nally released after an

appellate court fi nally agreed to his pleas for a test of the DNA collected from the crime

scene. The testing led to his exoneration and release (Hall, 2008).

Hall had been subjected to a lawful arrest; he had the benefi t of a trial during which

time he was defended by an attorney; and he had the right to appeal. Some would say that

the legal system worked as it was supposed to have worked, but did he receive justice?

Professionals in the criminal justice system serve and promote the interests of law and

justice, and before we explore the ethical dilemmas that confront them, this chapter begins

with a discussion of justice itself. An underlying theme is that the ends of law and justice

are not always the same. Although law is often defi ned as “the administration of justice,” it may very well be the case that law forces consequences that many might conclude are

unjust. Legal rights might be different from moral rights, rights might be different from

needs, and needs may not be protected under either the law or justice.

According to Lucas (1980: 3), justice “differs from benevolence, generosity, grati-

tude, friendship, and compassion.” Justice is not something for which we should feel

grateful, but rather, something upon which we have a right to insist. Justice should not

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5 2 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

be confused with “good.” Some actions may be considered good but not demanded

by justice. For instance, the recipients of charity, benevolence, and forgiveness do not

have a right to these things; therefore, it is not an injustice to withhold them. Justice

concerns rights and interests more often than needs. Although the idea of need is im-

portant in some discussions of justice, it is not the only component or even the primary

one. It is important to understand that what is just and what is good are not necessarily

the same.

People can be described as displaying unique combinations of generosity and selfi sh-

ness, fairness, and self-interest. Some writers insist that the need for justice arises from

the nature of human beings and that we are not naturally generous, open-hearted, or fair.

On the one hand, if we were to behave all the time in accordance with those virtues, we

would have no need for justice. On the other hand, if humans were to always act in self-

ish, grasping, and unfair ways, we would be unable to follow the rules and principles of

justice. Therefore, we uphold and cherish the concept of justice in our society because

it is the mediator between people’s essential selfi shness and generosity. In other words,

justice is the result of a logical and rational acceptance of the concept of fairness in human

relations.

Anthony Walsh (2000) presents the interesting idea that justice is a biologically adap-

tive trait. He uses evolutionary psychology to argue that the sense of justice is emotional

rather than rational and is the result of natural selection. His argument, simplifi ed, is that

humans, similar to other animal species, have “cheaters” and “suckers.” Cheaters are those

who do not engage in “reciprocal altruism” (basically, cooperation). Suckers are those who

are continually taken advantage of by cheaters. They are not optimally adapted for survival,

and if they perish, cheaters would perish as well because they need victims to take advan-

tage of. Thus, “grudgers” evolve as a response; they may be fooled once by cheaters, but

they are outraged and demand punishment when they are victimized. This adaptation suc-

cessfully ensures the continued existence of grudgers as well as cheaters. Our “moral out-

rage,” in other words, is an evolutionary response, as is our emotional demand for justice.

Galston (1980: 282) described justice as

…more than voluntary agreement, [but] … less than perfect community. It allows

us to retain our separate existences and our self-regard; it does not ask us to share

the pleasures, pains, and sentiments of others. Justice is intelligent self-regard,

modifi ed by the requirements of rational consistency.

Any discussion of justice includes at least three continuing themes: fairness, equality,

and impartiality. Fairness is related to equal treatment. Parents ordinarily give each child the same allowance unless differences between the children, such as age or duties, warrant

different amounts. Children are sensitive to issues of fairness long before they grasp more

abstract ideas of justice. No doubt every parent has heard the plaintive cry, “It’s not fair—

Johnny got more than I did” or “It’s not fair—she always gets to sit in the front seat!” What

children are sensing is unequal and, therefore, unfair treatment. The concept of fairness is

inextricably tied to equality and impartiality.

Equality • refers to equal shares or equal treatment as well. There is a predisposition to demand equity or equal shares for all. In contrast to the concept of equal shares is the

idea of needs or deserts; in other words, we should get what we need or, alternatively,

what we deserve by status, merit, or other reasons. The concept of equality is also pres-

ent in retributive justice in the belief that similar cases should be treated equally—for

instance, that all individuals who commit a similar crime should be similarly punished.

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Impartiality is also related to the concept of equal treatment. At the core of our sys- tem of criminal justice is the theme of impartiality. Our symbol of justice represents,

with her blindfold, impartiality toward special groups and, with her scales, propor-

tionally just punishments. Impartiality implies fair and equal treatment of all without

discrimination and bias. It is hard to reconcile the ideal of “blind justice” with the in-

dividualized justice of the “treatment ethic” because one can hardly look at individual

circumstance if one is blind toward the particulars of the case. Indeed, most would

argue, individual differences and culpabilities should be taken into consideration—if

not during a fi nding of guilt or innocence, then at least when sentencing occurs. The

blindfold may signify no special treatment for the rich or the powerful, but then it must

also signify no special consideration for the young, for the misled, or for extraordinary

circumstances.

Origins of the Concept of Justice Justice originated in the Greek word dike, which is associated with the concept of every- thing staying in its assigned place or natural role (Feinberg and Gross, 1977: i). This idea is

closely associated with the defi nitions of justice given by Plato and Aristotle. Even today,

some writers describe justice as “the demand for order: everything in its proper place or

relation” (Feibleman, 1985: 23).

According to Plato, justice consists of maintaining the societal status quo. Justice is

one of four civic virtues, the others being wisdom, temperance, and courage (Feibleman,

1985: 173). In an ordered state, everyone performs his or her role and does not interfere

with others. Each person’s role is the one for which the individual is best fi tted by nature;

thus, natural law is upheld. Moreover, it is in everyone’s self-interest to have this ordered existence continue because it provides the means to a good life and appropriate human

happiness. Plato’s society is a class system, based on innate abilities, rather than a caste system, which differentiates purely by accidents of birth.

Aristotle believed that justice exists in the law and that the law is “the unwritten cus-

tom of all or the majority of men which draws a distinction between what is honorable

and what is base” (Feibleman, 1985: 174). Aristotle distinguished distributive justice from rectifi catory justice:

Rectifi catory justice • , or commutative justice, concerns business deals where unfair ad- vantage or undeserved harm has occurred. Justice demands remedies or compensa-

tions to the injured party.

Distributive justice • concerns what measurement should be used to allocate society’s resources. Aristotle believed in the idea of proportionality along with equality.

In Aristotle’s conception of justice, the lack of freedom and opportunity for some

people—slaves and women, for instance—did not confl ict with justice, as long as the in-

dividual was in the role in which, by nature, he or she belonged. In other words, unequal

people should get unequal shares.

In this chapter, we will not discuss rectifi catory/commutative justice; however,

we will discuss various viewpoints concerning distributive justice. The debate in dis-

tributive justice is: what do people deserve? Then, we will turn our attention to correc-

tive justice. This type of justice is also concerned with desert; however, in corrective

justice, the question is what punishment is deserved, rather than societal goods or

opportunities.

justice The quality of being impartial, fair, and just; from the Latin “jus.” concerning rules or law.

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DIstributive Justice The concept of the appropriate and just allocation of society’s goods and interests is one

of the central themes in all discussions of justice. According to one writer, justice always

involves rightful possession (Galston, 1980: 117–119). The goods that one might possess include:

Economic goods (income or property) •

Opportunities for development (education or citizenship) •

Recognition (honor or status) •

If there was enough of everything (goods, opportunity, status) for everyone, issues

of distributive justice would not arise; it is only because there is usually a condition of

scarcity that a problem arises with the allocation of goods. Two valid claims to possession

are need and desert. The principles of justice involve the application of these claims to spe- cifi c entitlements. Different writers have presented various proposals for deciding issues

of entitlement.

Lucas (1980: 164–165) identifi ed distributions based on need, merit, performance,

ability, rank, station, worth, work, agreements, requirements of the common good, valu-

ation of services, and legal entitlement. Despite differences, all schemes include some

concept of need and merit (also see Raphael, 1980: 90). A major confl ict in distributive

justice is between need and merit. Consider the following: An armored car spilled its

load of cash in a very poor neighborhood in Miami. People scooped up the cash and ran

away. Police went door to door, asking people to turn in the half million dollars that was

taken, and telling them that it was theft to keep the money. One resident was quoted as

saying, “This couldn’t have happened to a more deserving neighborhood” (Associated Press, 1997: A7). This is an interesting comment in that the people who took the cash did

nothing to earn it. What type of distribution system could justify the statement that they

“deserved” the cash? Obviously, need rather than merit was the criterion for the person

speaking.

The diffi culty in distributing society’s goods lies in deciding the weight of each of the

criteria discussed above. The various theories can be categorized as egalitarian, Marxist,

libertarian, or utilitarian, depending on the factors that are emphasized (Beauchamp,

1982):

Egalitarian theories • start with the basic premise of equality or equal shares for all. Marxist theories • place need above desert or entitlement. Libertarian theories • promote freedom from interference by government in social and economic spheres; therefore, merit, entitlement, and productive contributions are

given weight over need or equal shares.

Utilitarian theories • attempt to maximize benefi ts for individuals and society with a mixed emphasis on entitlements and needs.

How do the theories apply to the wide disparities in salaries found in the United

States? For instance, a professional athlete’s salary is sometimes one hundred times greater

than a police offi cer’s salary. The average CEO’s salary of the Forbes top 100 companies runs in the millions of dollars. The bonuses proposed for the Wall Street bankers who were

partially responsible for the economic collapse in 2008–2009 were higher than most of us

make in a year (or a decade!). The White Collar Crime box shows some of these salaries.

Which distribution principle justifi es such extreme discrepancies? Libertarian theorists

would shrug at such disparity; Marxist theorists would not.

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Obviously, few would agree that workers in all jobs and all professions should be

paid the same amount of money. First, not many people would be willing to put up with

the long hours and many years of schooling needed in some professions if there were no

incentives. Second, some types of jobs demand more responsibility and involve greater

stress than others. However, most of us would agree that some remuneration is entirely

out of proportion to an objective analysis of worth.

Should workers be paid based on their production? If so, how would one pay sec-

retaries, teachers, or customer service workers, whose production is more difficult to

measure? How would one pay police offi cers—by the number of arrests? Thus far, we

have discussed only salaries, but in the workplace other goods are also distributed, such

as promotions, merit increases, job postings, desirable offi ces, and parking places. How

should these “perks” be awarded if production isn’t easily measured?

Marxist distribution systems propose that we pay people according to need. This

sounds fair in one sense because people would get only what they need to survive at some

predetermined level. In that case, a person with two children would earn more than a per-

son with no children. In the past, this was the argument used by employers to explain why

they would favor men over women in hiring, promotions, and pay increases—because

men had families to support and women did not. Two arguments were used against this

type of discriminatory treatment: The fi rst was that women deserve as much pay as men

if they are of equal ability and performance. The second was that women also, more often

than not, have to support families. These two arguments emphasize different principles

of justice. The fi rst is based on an equal-deserts argument; the second rests on an equal-

needs argument.

Just distribution of other goods in society is also problematic. There are perennial

arguments over how much people should receive in entitlement programs, such as food

stamps and TANF (Temporary Assistance for Needy Families, formerly Aid to Families

with Dependent Children [AFDC]). The principle of need is the rationale we use to take

from the fi nancially solvent, through taxes, and give to those who have little or nothing.

There is always some resentment over this redistribution because of the belief that some

people choose not to work and take advantage of governmental “handouts.” If cheaters

were dropped from such programs, what about their children? Do they also deserve to be punished? What do children deserve from the state?

Since the 2008 presidential election cycle, the issue of universal health care has become

a divisive controversy in this country. Proponents argue that the United States stands alone

among Western countries in its refusal to ensure universal health care (basic health care for

White Collar Crime: Salaries on Wall Street

Stanley O’Neal $172 million

(Merrill Lynch) (over 4 years)

James Cayne (Bear Stearns) $161 million

Lloyd Blankfein $57.6 million

(Goldman Sachs)

The average pay for Wall Street firms in 2007 was

$353,089 and the average bonus was $211,849. Even af-

ter the dramatic economic collapse that affected home

prices, unemployment, the national debt, and the gross

national product, salaries and bonuses were in the mil-

lions of dollars. To date, no one has been punished for

the risky loans and business practices that led to the

necessity of a bailout for many of the biggest banks and

businesses in the United States by American citizens. In-

stead, Wall Street rewards individuals with salaries that

most of us can only dream about. Is there a crime here?

If so, what is it?

Source: Associated Press, 2008f: H6.

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everyone in society regardless of their ability to pay) for its citizens. Opponents argue that

the free market should provide such coverage and any move toward universal health care

will put this country on the path to socialism. Note that the argument as to whether the

federal government can provide better and less costly health coverage than private enter-

prise is a much different argument than whether or not people deserve universal health

coverage paid for through others’ taxes. One is an empirical argument, but the other is a

moral argument and one squarely in the center of this discussion over distributive justice.

What do people deserve vis-à-vis health care when others have to pay for it? Another “good” that society distributes to its members is opportunity. Many people

would argue that education (at least at the university level) is a privilege that should be

reserved for those few who have the ability and the drive to succeed. However, the edu-

cational system in the United States is fundamentally democratic. Not only do we have

guaranteed—in fact, compulsory—education at elementary and secondary levels, we

also have open admission to some universities. Moreover, remedial courses are available

to help those without the skills to meet college standards. Massive amounts of time and

money are devoted to helping some students improve their skills and ultimately graduate

from college. Some might argue that this system wastes resources. Other countries “track”

students very early and identify those who have natural skills, then allow only that selected

group to take advantage of state-supported higher education. Is this a more effi cient use of

state resources?

There is also a compelling argument that although the ideal of education is democratic, the reality is that because of unequal tax bases, school districts are incredibly unequal and distribute the opportunity of education unequally. While some school districts have swim-

ming pools, computers in every classroom, and teachers with specialized education, other

school districts make do with donated textbooks and buildings that are poorly heated and

ventilated. Likewise, there are vast differences in the quality and status of higher educa-

tion, with degrees from some universities worth much more than others. Who deserves

to go to these better universities? If you said “those with better grades,” do you also agree

with the process whereby high schools are ranked by admissions committees so that a 4.0

GPA in one high school is ranked lower than a 4.0 GPA from another high school?

Affi rmative action programs were designed to provide opportunities to groups that

historically have been discriminated against—blacks, women, and Hispanics, among

others. Some believe that taking affi rmative steps to increase opportunities for minority

groups has simply transferred unfair treatment to white males. What is acceptable to

overcome previous discrimination? The accompanying Policy Box addresses this dis-

tributive justice issue.

The fact that everyone is not equal, in terms of ability, performance, motivation,

need, or any other measure, is easy enough to agree on. On the one hand, few people

would argue that everyone in every position should receive the same salary, get the same

education, and achieve the same status in society. On the other hand, to acknowledge

inequality puts us in the position of distributing goods and other benefi ts on the basis

of other criteria, and it is here that problems arise. When injustice occurs, we sense it

on the basis of fairness. We think that it is not fair that there are starving children and

conspicuous wealth in the same country or the same world. We sense unfairness when

people work hard yet still struggle to get along on poverty wages, while star actors or ath-

letes make millions of dollars largely through luck or for contributions to societal welfare

that seem trivial in comparison.

John Rawls’s theory of justice is perhaps the best-known modern conception of

justice. He elegantly combines utilitarian and rights-based concepts in his theory. Basi-

cally, he proposes an equal distribution unless a different distribution would benefi t the

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C H A P T E R 3 | Ju s t i c e a n d L a w 5 7

disadvantaged. Rawls believes that any inequalities of society should be to the benefi t of

those who are least advantaged (Rawls, 1971: 15):

Each person is to have an equal right to the most extensive total system of basic liber- •

ties compatible with a similar system of liberty for all.

Social and economic inequalities are to be arranged so that they are both reasonably •

expected to be to everyone’s advantage and attached to positions and offi ces open to

all (except when inequality is to the advantage of those least well-off).

So, for instance, Rawls may argue for a purely objective hiring scoring system except

when they give extra points for those who are least well off, and tax rebates that are equally

distributed except if they are a bit more favorable for those in the lower income brackets.

Rawls uses a heuristic device that he calls the veil of ignorance to explain the idea that people will develop fair principles of distribution only if they are ignorant of their position

in society, for they just as easily may be “have-nots” as “haves” (Rawls, 1971: 12). Thus,

veil of ignorance Rawls’s idea that people will develop fair principles of distribution only if they are ignorant of their position in society, so in order to get objective judgments, the decision maker must not know how the decision would affect him or her.

Should members of minority groups that historically have been discriminated against receive special privileges in hiring decisions in police departments? This question is extremely controversial. One argument is that preferential hiring of mi- norities strengthens police departments by helping the de- partment more closely refl ect the neighborhoods it polices and increases the skill sets of the offi cers. Another argument is that quota systems and the pressure to hire minorities made hiring standards go down and that unfi t people have been hired as police officers. Further, even those who are qualifi ed and good candidates are stigmatized because of a perception that they were hired only because of their gender, race, or ethnicity. How should hiring decisions be made when applicants are roughly similar in education, background, and civil service test scores?

Law In Ricci v. DeStefano (129 S.Ct. 2658[2009]), the Supreme Court held, in a 5–4 decision, that the city of New Haven’s decision to throw out firefighters’ promotion test results because no blacks scored high enough to be promoted was discriminatory. City offi cials feared that the test itself would be ruled invalid because of the disparate impact, prompt- ing them to ignore the test scores that placed only whites and two Hispanics in the eligible category for promotion. The Supreme Court held, in a suit brought by white fi refi ghters who scored highly on the exam, that the city had failed to show a strong basis of evidence that there had been dispa- rate treatment of minorities in the past that needed to be overcome. The case signals the continuing trend in the law

to look disfavorably upon affirmative action programs if they impose disparate impact on any race (white included) and/or that are not created to overcome clear evidence of historical discrimination toward minorities. Proponents of killing affi rmative action argue that the usefulness of such programs has passed and that such actions should be ruled illegal because they discriminate against whites. Supreme Court decisions have struck down broad-based affi rmative action programs but have held that race can be one factor in decisions regarding admitting students to universities or hir- ing. Opponents would argue that race should never be used in such decisions.

Policy Agencies differ on their policies regarding affi rmative action. Some agencies continue to aggressively recruit minorities and may have policies that favor minority and female applicants, but it may be the case that affi rmative action programs are simply policy choices today and not legally mandated. In fact, policy choices that attempt to promote the interests of minorities may be the subject of discrimination suits them- selves, as was seen by the Ricci case above.

Individual Ethics Individual ethics arise for those who are doing the hiring and those who are hired. If individuals know that they have been hired solely because of their gender, race, or ethnic- ity, what should they do? Should the hiring decision mak- ers consider these elements, even though there is no formal policy to do so?

The Future of Affi rmative Action?POLICY ISSUE

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justice and fairness are in everyone’s rational self-interest because, under the veil of igno-

rance, one’s own situation is unknown, and the best and most rational distribution is the

one that is most equal to all.

Rawls’s theory of justice has been criticized. First, some argue that the veil of ignorance

is not suffi cient to counteract humanity’s basic selfi shness: given the chance, people would

still seek to maximize their own gain, even if doing so involves a risk (Kaplan, 1976: 199).

Second, Rawls’s preference toward those who are least well-off is contrary to the good of

society. Rawls states that “all social values—liberty and opportunity, income and wealth and

the bases of self-respect—are to be distributed equally unless an unequal distribution of any,

or all, of these values is to the advantage of the least favored” (quoted in Sterba, 1980: 32).

This may be ultimately dysfunctional for society, for if those who are least well-off have the

advantages of society preferentially, there will be no incentive for others to excel. Also, some

argue that Rawls is wrong to ignore desert in his distribution of goods (Galston, 1980: 3).

Let us now turn to how these theories of distributive justice relate to the ethical systems

discussed in Chapter 2. The ethics of care is consistent with a Marxist theory of justice, for

both emphasize need. Utilitarian theories try to maximize societal good, so some balance

of need and merit would be necessary to provide the incentive to produce. Ethical formal-

ism is concerned solely with rights; thus, issues of societal good or others’ needs may not

be as important as the individual’s rights (however those might be defi ned). Rawls’s theory

is both utilitarian and Kantian because it demands a basic level of individual rights but also

attempts to establish a preference toward those who have less, for the good of all society.

How are these concepts of distributive justice relevant to criminal justice? First, the

discussion illuminates the issues regarding the appropriateness of affi rmative action in the

hiring and promotion of police offi cers and other criminal justice professionals. Should

your race give you special hiring privileges? What if the profession is one such as policing,

which has been historically closed to minorities? Another issue that is related to distribu-

tive justice is how much to pay police offi cers or correctional offi cers compared to other

professions. Most people believe that police are underpaid. If so, how much is a fair sal-

ary, and how does that salary compare to others, such as elementary school teachers? The

criteria you used to determine these answers should have some basis in the distribution

systems discussed above.

Finally, there is a connection between distributive justice and corrective justice, which

will be discussed next. If it is true that socioeconomic status predicts criminal predisposi-

tion, should we care? Is it fair that poor people tend to end up in prison and those with

more resources usually receive a lesser form of punishment? Further, should we consider

issues of distributive justice (i.e., what someone has by accident of birth) in any discus-

sion of corrective justice (i.e., what people deserve when they commit a crime)? Reiman

(1984/2005/2007), for instance, argues that economic power affects lawmaking, lawbreak-

ing, enforcement, and punishment practices; literally, he argues that the rich get richer and

the poor get prison under our system of justice. Clearly, distributive justice is an important

concept in any discussion of the criminal justice system.

Corrective Justice Recall that corrective justice is concerned with dispensing punishment. As with distributive

justice, the concepts of equality and desert, fairness and impartiality are important. Two

components of corrective justice should be differentiated. Substantive justice involves the concept of just deserts, or how one determines a fair punishment for a particular offense, and

procedural justice concerns the steps we must take before administering punishment.

substantive justice Concerns just deserts—in other words, the appropriate amount of punishment for a crime.

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C H A P T E R 3 | Ju s t i c e a n d L a w 5 9

S U B S T A N T I V E J U S T I C E

What is a fair punishment for the crime of murder? Many believe that the only just punish-

ment is death because that is the only punishment of a degree equal to the harm caused by

the offender. Others might say that life imprisonment is equitable and fair. Since the begin-

ning of codifi ed law, just punishment has been perceived as proportional to the degree of

harm incurred. This was a natural outcome of the early, remedial forms of justice, which

provided remedies for wrongs. For instance, the response to a theft of a slave or the killing of

a horse involved compensation. The only just solution was the return or replacement of the

slave or horse. This remedial or compensatory system of justice contrasts with a punishment

system: The fi rst system forces the offender to provide compensation to the victim or the

victim’s family, and the second apportions punishment based on the degree of harm suf-

fered by the victim. They both involve a measurement of the harm, but in the fi rst case, mea-

surement is taken to adequately compensate the victim, and in the second it is to punish the

offender. In a punishment-based system, the victim is a peripheral fi gure. The state, rather

than the victim, becomes the central fi gure—serving both as victim and as punisher. Two

philosophies of corrective justice can be identifi ed: retributive justice and utilitarian justice.

RETRIBUTIVE JUSTICE The concept of retributive justice is one of balance. The criminal must suffer pain or loss proportional to what the victim was forced to suffer. In an

extreme form, this retribution takes the form of lex talionis, a vengeance-oriented justice concerned with equal retaliation (“an eye for an eye; a tooth for a tooth”). A milder form

is lex salica, which allows compensation; the harm can be repaired by payment or atone- ment (Allen and Simonsen, 1986: 4). A life for a life might be easy to measure, but most

cases involve other forms of harm. How does one determine the amount of physical or

mental pain suffered by the victim, or fi nancial loss such as lost income or future loss, in

most crimes? And if the offender cannot pay back fi nancial losses, how does one equate

imprisonment with fi nes or restitution?

Historically, corporal and capital punishment were used for both property crime and

violent crime. With the development of the penitentiary system in the early 1800s, punish-

ment became equated with terms of imprisonment rather than amounts of physical pain.

The greater ease of measuring out prison sentences probably contributed to the rapid ac-

ceptance of those sentences. An offender might be sentenced to one, two, or fi ve years,

depending on the seriousness of the crime. Imprisonment had several advantages over

earlier forms of punishment:

It was considered more humane than corporal punishment. •

It was incapacitating (preventing offenders from committing further crime). •

It allowed offenders to refl ect on their crime and repent. •

It did not elicit sympathy for the offenders from the populace. •

However, a term of imprisonment is much harder to equate to a particular crime.

Although one can intuitively understand the natural balance of a life for a life, $10 for $10,

or even a beating for an assault, it is much harder to argue that a burglary of $100 is equal

to a year in prison or that an assault is equal to a term of two years. A year in prison is hard

to defi ne. Research on prison adjustment indicates that a year means different things to

different people. For some, it might be no more than mildly inconvenient; for others, it

might lead to suicide or mental illness (Toch, 1977).

In addition to retribution, imprisonment was tied to the reform of the crimi-

nal offender. Reform or rehabilitation may be a laudable goal, but it has no place in a

retributive justice The component of justice that concerns the determination and methods of punishment.

lex talionis A vengeance-oriented justice concerned with equal retaliation (“an eye for an eye; a tooth for a tooth”).

lex salica A form of justice that allows compensation; the harm can be repaired by payment or atonement.

procedural justice The component of justice that concerns the steps taken to reach a determination of guilt, punishment, or other conclusion of law.

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6 0 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

retributive scheme of justice. Retributive punishment is based on balancing the victim’s

harm with the offender’s pain or suffering. Treatment involves no such balance; therefore,

there is no retributive rationale for its existence. Philosophical support for rehabilitative

treatment of criminal offenders is found in utilitarianism.

In earlier systems of justice, the status of the victim was important in determining the

level of harm and, thus, the punishment. Nobles were more important than free men, who

were more important than slaves. Men were more important than women. Punishment

for offenders was weighted according to these designations of the worth of the victim.

Although we have no formal system for weighting punishment in this way and have

rejected the worth of the victim as a rationale for punishment (except in a few cases, such

as assaulting a police offi cer), many believe that our justice system still follows this prac-

tice informally. People argue that harsher sentences are given when the victim is white than

when the victim is black and when the victim is rich as opposed to poor. In a similar man-

ner, many argue that the justice system discriminates unfairly and unjustly against charac-

teristics of the offender. Many believe that offenders receive harsher sentences because of

their race, background, or income.

Whether or not these charges are true, it is important to recognize that earlier systems

of justice, including the Greek and Roman, approved of and rationalized such different

treatment as perfectly fair and just. Our system of justice has rejected these discrimina-

tions even while holding on to others—specifi cally, intent, partial responsibility, and, to

some extent, victim precipitation. It is diffi cult, if not impossible, for everyone to agree

upon a fair and equitable measurement of punishment when one allows for exceptions,

mediating factors, and partial responsibility. That is why there is so little agreement on

what is fair punishment. Even when two defendants are involved in a single crime, our

system of justice can support different punishments under a retributive rationale.

In Rawls’s (1971) theory of justice, retributive punishment is limited in such a way

as to benefi t the least advantaged, similarly to the distributive justice scheme discussed

earlier. In this philosophy of justice, the offender is punished until the advantage changes

and the offender becomes the least advantaged. What is a just punishment for any offense

should be considered using the veil of ignorance so one does not know whether one is the

offender, the victim, or a disinterested bystander. Critics argue that Rawls’s system would

create a situation wherein an offender may victimize a large corporation or a well-off vic-

tim and still be more disadvantaged, dictating that no punishment is due him or her. Most

of us would not countenance this defi nition of justice.

One other issue that must be addressed here is the concept of mercy. Seemingly

inconsistent with any defi nition of retributive justice, mercy is, nevertheless, always as-

sociated with the concept. From the very beginnings of law, there has been the element

of forgiveness. Even tribal societies had special allowances and clemencies for offend-

ers, usually granted by the king or chief. For instance, the concept of sanctuary allowed offenders respite from punishment as long as they were within the confi nes of church

grounds. Benefi t of clergy, dispensation, and even probation are examples of mercy by

the court. However, it must be made clear that mercy is different from just deserts. If, on

the one hand, because of circumstances of the crime, of the criminal, or of the victim, the

offender deserves little or no punishment, then that is what he or she deserves, and it is not

mercy to give a suspended sentence or probation. On the other hand, if an offender truly

deserves the punishment and is instead forgiven, then the individual has been granted

mercy. The In the News box shows that sometimes mercy and forgiveness are offered

despite great harm.

Murphy (1985/1995) proposes that retributive emotions derive from self-respect,

that it is a healthy response to an injury to feel angry, resentful, and, yes, even vengeful.

sanctuary Ancient right based on church power; allowed a person respite from punishment as long as he or she was within the confi nes of church grounds.

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However, it is also acceptable to forgive and extend mercy to one’s assailant if the forgive-

ness extends not from a lack of self-respect but rather from a moral system. For instance,

he points out that many religions include the concept of “turning the other cheek” and

extending mercy to enemies. Mercy is appropriate when the offender is divorced in some

way from his or her offense. One way to this separation is true repentance.

Murphy (1988: 10) summarizes the points of mercy as follows:

1. It is an autonomous moral virtue (separate from justice).

2. It is a virtue that tempers or “seasons” justice—something that one adds to justice.

3. It is never owed to anyone as a right or a matter of desert or justice.

4. As a moral virtue, it derives its value at least in part because it fl ows from love or com-

passion while not losing sight of the importance of justice.

5. It requires a generally retributive outlook on punishment and responsibility.

Therefore, mercy is related to justice but is not necessarily a part of it. It is connected with

a change in the offender because, typically, there must be repentance before mercy is ex-

tended. Also, it is connected with the compassion, charity, or benevolence of the victim.

Other questions of mercy remain, however. Who has the right to extend mercy? At

times, victims or the families of victims are upset with a sentencing judge because of the

lenient sentence administered to the offender. Should victims be the only ones who have

the right to give the gift of mercy?

UTILITARIAN JUSTICE We have been discussing retributive justice as a rationale for and as a means to determine punishment. However, utilitarian justice also supports punishment. Whereas the goal of a retributive framework of justice is to restore a natural

balance by righting a wrong or neutralizing criminal gain with an equal amount of loss or

pain, the goal of utilitarian justice is to benefi t society by administering punishment to

deter offenders from future crime.

Cesare Beccaria (1738–1794) and Jeremy Bentham (1748–1832) provided a utilitar-

ian rationale for proportionality in punishment. Punishment should be based on the se-

riousness of the crime: the more serious the crime (or the greater the reward the crime

offered the criminal), the more serious and severe the punishment should be to deter the

utilitarian justice The type of justice that looks to the greatest good for all as the end.

in the N E W S I N H I S H E A R T , T H E R E I S F O R G I V E N E S S

In 2009, Catholic priest Shaji Varghese was stabbed nearly 20 times by a mentally disturbed

man, who was caught shortly afterward. Varghese was given last rites because he was not ex-

pected to live. However, he did live and says he has no anger toward his attacker. He said the

attack brought the church members together. As he was an immigrant from India, parishioners

had been initially wary of him until the attack. He believes that their prayers for his recovery

were instrumental in his survival. He said that in his heart, there is nothing but forgiveness for

David Rodriquez, who faced attempted murder charges.

SOURCE: Powell, 2009: B6

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6 2 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

individual from committing the crime. A utilitarian framework of justice would determine

punishment on the basis of deterrence.

Bentham’s hedonistic calculus, for instance, is concerned with measuring the po- tential rewards of the crime so the amount of threatened pain could be set to deter people

from committing that crime. The use of proportionality in this scheme is deterrence, not

balance. In a retributive system, we measure to determine the proportional amount of

punishment to equalize the wrong; in a utilitarian system, we measure to determine the

amount of punishment needed to deter. We see that under the utilitarian framework, there

is no necessity for perfect balance. In fact, one must threaten a slightly higher degree of

pain or punishment than the gain or pleasure that comes from the criminal act; otherwise,

there would be no deterrent value in the punishment.

In some cases, retributive notions of justice and utilitarian notions of justice may con-

fl ict. If a criminal is sure to commit more crime, the utilitarian could justify holding him

in prison as a means of incapacitation, but to hold him past the time “equal” to his crime

would be seen as an injustice under a retributive system. We might punish an offender

more seriously than he “deserves” under a utilitarian system if it could be shown to deter

many others. Deterrence is the primary determinant of justice under a utilitarian system,

but desert is the only determinant of a retributive system of justice. Correctional reha-

bilitation is prevention, not deterrence per se, but it is also acceptable under a utilitarian justice system and irrelevant and unsupported by a retributive one.

P R O C E D U R A L J U S T I C E

We turn now to the procedure of administering punishment—our legal system. Law in-

cludes the procedures and rules used to determine punishment or resolve disputes. It is

a system of rules for human relations—the “whole fi eld of the principles laid down, the

decisions reached in accordance with them, and the procedures whereby the principles

are applied to individual cases” (Raphael, 1980: 74). There can be a difference between

justice and law. You might think of justice as the concept of fairness, while law is a system

of rules.

The law is an imperfect system. Fuller (1969: 39) explored the weaknesses of law and

described ways that the procedure of law may fail to achieve justice. Generally, there is a

tension between having no rules and making ad hoc decisions for each individual case,

and a system of rules that is too stringent with no exceptions made for extraordinary

circumstances.

Some have argued that property and interest cases can be decided by legal rule, but

that those cases involving conflicts of human conduct cannot. Even this bifurcation is

criticized, however, because the most straightforward contract disagreements may involve

human action, misinterpretation, and interest (Wasserman, cited in Feinberg and Gross,

1977: 34).

We are left to assume that although a system of law is necessary for the ordered

existence of society, it sometimes does not result in justice. “Moral rights” may differ

from “legal rights,” and “legal interests” may not be moral. Shakespeare’s The Merchant

of Venice (excerpted in the Quote and Query box) addresses many of the issues dis-

cussed in this chapter. Here the plea for mercy emphasizes the relationship between

justice and mercy. Shylock’s demand for the court’s enforcement of his legal right (his

pound of fl esh) and the unwillingness of the court to deny it, despite the clear impli-

cation that it would be a tragedy, illustrate how law sometimes has little to do with

justice. Then Portia’s surprise argument—that because Shylock’s contract mentioned

hedonistic calculus Jeremy Bentham’s rationale for calculating the potential rewards of a crime so the amount of threatened pain could be set to deter people from committing that crime.

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C H A P T E R 3 | Ju s t i c e a n d L a w 6 3

only fl esh and not blood, so no blood could be spilled, and thus Shylock is denied his

compensation—is a superb illustration of the law’s slavish devotion to technical rules

over substance. As a legal trick, this interpretation of a contract has not been improved

upon yet, in fi ction or in reality.

QUOTE && QUERY The quality of mercy is not strained;

It droppeth as the gentle rain from heaven

Upon the place beneath. It is twice blest;

It blesseth him that gives and him that takes.

…

It is an attribute to God himself,

And earthly power doth then show likest God’s

When mercy seasons justice. Therefore, Jew,

Though justice be thy plea, consider this,

That, in the course of justice, none of us

Should see salvation. We do pray for mercy,

And that same prayer doth teach us all to render

The deeds of mercy. I have spoke thus much

To mitigate the justice of thy plea,

Which if thou follow, this strict court of Venice

Must needs give sentence ’gainst the merchant there.

WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, ACT 4, SCENE 1

? What is the magistrate in this passage asking Shylock to do? How do you believe mercy should “season” justice? What would be procedural justice in this case? What would be substantive justice?

In our system of justice, due process exemplifi es procedural justice. Our constitu- tional rights of due process require careful inquiry and investigation before punishment or

forfeiture of any protected right can be carried out by the state. One has the right to due

process whenever the government seeks to deprive an individual of protected rights of life,

liberty, or property. Due process is the sequence of steps taken by the state that is designed

to eliminate or at least minimize error. Procedural protections include:

Notice of charges •

Neutral hearing body •

Right of cross-examination •

Right to present evidence •

Representation by counsel •

Statement of fi ndings •

Appeal •

These protections do not eliminate deprivation or punishment, but they do result

in more accurate and just deprivations and punishments. Thus, if due process has been

violated—by use of a coerced confession, tainted evidence, or improper police or court

procedures—an injustice has occurred. The injustice does not arise because the offender

due process Constitutionally mandated procedural steps designed to eliminate error in any governmental deprivation of protected liberty, life, or property.

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6 4 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

in the N E W S D E A D L I N E S A N D J U S T I C E

In Holland v. Florida (No. 09-5327 [June 2010]), the Supreme Court held that the time for fi ling a

federal habeas corpus petition could be extended by “equitable tolling” when the conduct of

an attorney was suffi ciently egregious to warrant the extension. Holland had lost two direct

appeals and had one year to fi le a federal habeas corpus appeal. Despite his many pleas to

his attorney to get an appeal in before the deadline, the attorney failed to do so. Because of

the deadline, Holland was barred from appealing his death sentence under a habeas petition.

He fi led his own pro se (without legal assistance) petition arguing that the deadline be waived

because of the attorney’s negligence. The Eleventh Circuit denied relief, but the Supreme Court

held that courts must look at the totality of circumstances on a case by case basis to determine

whether or not the deadline should be extended. Since Holland had exercised due diligence by

reminding his attorney of the deadline to no avail, the Court sent the case back to the lower

court to determine, on the facts of this case, whether equitable tolling should apply.

does not deserve to be punished, but rather, because the state does not deserve to do the

punishing, having relied on unfair procedures.

We have been discussing legal procedures for determining punishment, but in some

cases legal procedures may be strictly followed and injustice still occurs. For instance, it is

unlikely that anyone would argue that Nelson Mandela (described in the Walking the Walk

box) when he was imprisoned in South Africa, or Andrei Sakharov, a Soviet dissident,

received just punishment even though the legal procedures of their respective countries might have been scrupulously followed. These are clear examples that illustrate the differ-

ence between procedural justice and substantive justice. The In the News box describes a

recent Supreme Court case that distinguishes between rules and justice.

Immoral Laws and the Moral Person In this discussion, we have argued that procedural justice may not be equivalent to sub-

stantive justice. As noted, Nelson Mandela was tried by a court of law before he was im-

prisoned, but that legal system was part of a brutal regime of oppression. In his trial, he

argued that the process was illegitimate because it did not conform to principles of natural

laws of justice. What is the moral duty of individuals when laws and governmental edicts

are themselves immoral? Examples might include the laws of the Spanish Inquisition in

the 15th century that resulted in large numbers of people being tortured and killed for hav-

ing dissenting religious beliefs, and the Nuremberg laws of Nazi Germany stripping Jew-

ish citizens of their citizenship, as well as later laws requiring Jews to give themselves up to

be transported to concentration camps and often to their death. Examples in the United

States might include the internment laws during World War II that forced U.S. citizens of

Japanese descent to give up land and property and be confi ned in camps until the end of

the war, and the segregationist laws that once forced blacks to use different doors and wa-

ter fountains than whites.

These laws are now thought of as immoral, but they were not considered so by many

people at the time. The most common example of immoral laws are those that deprive

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C H A P T E R 3 | Ju s t i c e a n d L a w 6 5

certain groups of liberty or treat some groups differently, giving them either more or fewer

rights and privileges than other groups. Boss (2001) has described unjust laws as having

the following characteristics:

They are degrading to humans. •

They are discriminatory against certain groups. •

They are enacted by unrepresentative authorities. •

They are unjustly applied. •

Most ethical systems would condemn such laws, and an objective ethical analysis

would probably prevent the passage of such laws in the fi rst place. The example of Japa-

nese American internment can be used to illustrate how one might use ethical systems to

judge a specifi c law. The religious ethical framework would probably not provide moral

support for the action because it runs contrary to some basic Christian principles, such

as, “Do unto others as you would have them do unto you.” Ethical formalism could not

be used to support this law because it runs counter to the categorical imperative that each

person must be treated as an end rather than as a means, and to the universalism principle.

The principle of forfeiture could not justify the action because these were innocent indi-

viduals, many of whom were fi ercely loyal to the United States. The only ethical frame-

work that might be used to support the morality of this law is utilitarianism. We must be

able to show that the total utility derived from internment outweighed the negative effect

Nelson Mandela was imprisoned in South Africa for

27 years. He began fighting apartheid in the 1940s. In

1964, he was convicted of sabotage and treason and

sentenced to a life term of imprisonment for his activi-

ties in the African National Congress Party, which had

been outlawed by the government. Throughout his de-

cades in prison, he refused to compromise his position

in order to gain his release, arguing that “only free men

can negotiate.” However, he did begin secret talks in the

late 1980s when he was approached by the ruling white

party leaders, who gradually came to the realization that

apartheid could not continue as South Africa became

in danger of being torn apart by race-based violence.

Eventually Mandela’s reputation grew to worldwide

proportions, and he was released in 1990. In 1991, he

was elected president of the African National Congress

when the ban against the political party was lifted. In

1994, black South Africans voted for the fi rst time and

Mandela was elected as president of a democratic South

Africa, formally bringing to an end the era of apartheid.

He was awarded the Nobel Peace Prize in 1993 along

with Frederik de Klerk, the South African president who

released him from captivity.

After apartheid ended, Mandela was instrumental

in averting a civil war between blacks and whites. There

was a strong possibility that it might happen; small

numbers of blacks began a pattern of violence toward

those who had cooperated with the separatist govern-

ment. “Necklaces” made of burning rubber were used

to burn victims alive in a pattern of retaliation. This

violence was condemned by Mandela and others, and,

instead, Truth and Reconciliation panels were created.

These panels brought out into the open the horrors

of apartheid and the brutal system that developed to

protect it, but promised amnesty for those who admit-

ted their wrongdoing. The Truth and Reconciliation

panels, as well as earlier conciliatory gestures, such as

Mandela congratulating the white rugby team during

his only term (1994–1998) as president (memorialized

in the movie Invictus), and his refusal to use his power

to attack and punish the vanquished white ruling party,

led to South Africa coming out of a brutal, repressive

regime to a democracy with minimal civil strife.

Throughout his life, Mandela’s principles served

as the guiding light for his actions and, because of

those actions, a whole country was changed.

W A L K I N G T H E W A L K

Sources: Nelson Mandela Foundation web site, www.nelsonmandela.org (accessed July 1, 2010); Bryson, 2010.

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http://www.nelsonmandela.org

6 6 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

it had on the Japanese Americans who lost their land and liberty. Did it save the country

from a Japanese invasion? Did the benefi ts outweigh the harm to Japanese Americans? If

you cannot answer these questions in the affi rmative, then internment cannot be justifi ed

under utilitarianism either.

Are there any laws today that might be considered immoral? After 9/11, there was

some discussion of deporting all those of Middle Eastern origin, regardless of their im-

migration status. This idea was rejected, perhaps partly because moral hindsight has

shown that the Japanese internment was a fl awed response to the fear created by World

War II. However, thousands of Middle Easterners were required to register with Immi-

gration, and many were detained for expired visas and other minor immigration irregu-

larities. The detainees in Guantanamo have been held for years without any due process,

in violation, many argue, of the Geneva Convention. Defenders argue that our actions

have been necessary and morally justifi ed as self-defense. Unfortunately, actions that

may seem reasonable when in the grip of fear, in retrospect, may not be legally or mor-

ally justifi able.

In some countries, the legal climate has allowed torture and death squads to be used.

If you lived in a South American country and knew of assassinations by government po-

lice and nighttime kidnappings and disappearances, would you follow a law requiring you

to turn in political subversives? If you were living in a country divided by warring factions,

would you support a law that dispossessed members of a rival faction of their property?

These issues are at the heart of our next discussion. Can one be a moral person while en-

forcing or obeying an immoral law?

Martin Luther King, Jr., Mahatma Gandhi, and Henry David Thoreau agreed with

St. Augustine that “an unjust law is no law at all.” There is a well-known story about Thoreau,

jailed for nonpayment of what he considered unfair taxes. When asked by a friend, “What

are you doing in jail?” Thoreau responded, “What are you doing out of jail?” The point

of the story is that if a law is wrong, a moral person is honor-bound to disobey that law.

Box 3.1 addresses civil disobedience. If moral people were to disobey laws, what would

happen to the stability of society?

Another story concerns Socrates. About to be punished for the crime of teaching radi-

cal ideas to youth, he had the opportunity to escape and was begged by his friends to leave

the country, yet he willingly accepted his death by hemlock because of a fundamental re-

spect for the laws of his country. This position supports the notion that one should never

place one’s own moral code above the duly enacted laws of the land. One should change

Civil Disobedience 1. It must be nonviolent in form and actuality. 2. No other means of remedying the evil should be available. 3. Those who resort to civil disobedience must accept the legal sanctions and

punishments imposed by law. 4. A major moral issue must be at stake. 5. When intelligent men [sic] of good will differ on complex moral issues, discussion is

more appropriate than action. 6. There must be some reason for the time, place, and target selected. 7. One should adhere to “historical time.”

Source: Hook, quoted in Fink (1977: 126–127).

BOX 3.1

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C H A P T E R 3 | Ju s t i c e a n d L a w 6 7

the laws, if believed to be wrong, through the process of legislation and appeal, not by

committing unlawful acts, because the latter is dangerous to the stability of society.

If we agree with the proposition that an unjust law is no law at all, we may set up a

situation in which all citizens follow or disobey laws at will, depending on their own con-

science. If one holds a relativist view of morality—specifi cally the belief that one can intuit

morals and decide morality on an individual basis—two people holding different moral

positions could both be right even though one position might be inconsistent with the law.

An absolutist view holds that there is only one universal truth, which would mean that

if one knew a law to be wrong based on this universal truth, that person would be mor-

ally obliged to disobey the law. Evidently, either relativism or absolutism could support

civil disobedience. The Quote and Query box presents quotes on just and unjust laws, by

Henry David Thoreau and Martin Luther King, Jr.

Civil disobedience is the voluntary disobedience of established laws based on one’s moral beliefs. Rawls (1971) defi ned it as a public, nonviolent, conscientious, yet political

act contrary to law and usually done with the aim of bringing about a change in the law or

policies of the government. Many great social thinkers and leaders have advocated break-

ing certain laws thought to be wrong. Philosophers believe that the moral person follows a

higher law of behavior that usually, but not necessarily, conforms to human law. However,

it is an exceptional person who willfully and publicly disobeys laws that he or she believes

to be wrong. Psychological experiments show us that it is diffi cult for individuals to resist

authority, even when they know that they are being asked to do something that is wrong.

The Milgram experiments are often used to show how easily one can command

blind obedience to authority. In these experiments, subjects were told to administer

shocks to individuals hooked up to electrical equipment as part of a learning experiment

(Milgram, 1963). Unbeknownst to the subjects, the “victims” were really associates of

the experimenter and faked painful reactions only when the subjects thought they were

administering shocks. In one instance, the subject and the “victim” were separated, and

the subject heard only cries of pain and exclamations of distress, then silence, indicating

that the “victim” was unconscious. Even when the subjects thought they were harming the

“victims,” they continued to administer shocks because the experimenter directed them to

do so and reminded them of their duty (Milgram, 1963).

Although it is always with caution that one applies laboratory results to the real world,

history shows that individual submission to authority, even immoral authority, is not

civil disobedience Voluntarily breaking established laws based on one’s moral beliefs.

QUOTE && QUERY Under a government which imprisons any unjustly, the true place for a just man

is also a prison….

HENRY DAVID THOREAU, “CIVIL DISOBEDIENCE (RESISTANCE TO CIVIL GOVERNMENT),”

1849

[T]here are two types of laws[:] just and unjust. I would be the fi rst to advocate

obeying just laws. One has not only a legal but a moral responsibility to obey just

laws. Conversely, one has a moral responsibility to disobey unjust laws.

MARTIN LUTHER KING, JR., “LETTER FROM BIRMINGHAM JAIL,” 1963

? Do you believe that a just person has a moral obligation to disobey an unjust law?

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uncommon. Those who turned in Jewish neighbors to Nazis and those who participated

in massacres of Native Americans in this country were only following the law or instruc-

tions from a superior authority.

To determine what laws are unjust, Martin Luther King, Jr., used the following guide-

lines: “A just law is one that is consistent with morality. An unjust law is any that degrades

human personality or compels a minority to obey something the majority does not

adhere to or is a law that the minority had no part in making” (quoted in Barry,

1985: 3). Remember that civil disobedience occurs when the individual truly believes

the law to be wrong and therefore believes that the enforcement of it or obedience

to it would also be wrong. We are not referring to chronic lawbreaking because of

immediate rewards. Indeed, most criminals have a fairly conventional sense of mo-

rality. They agree with the laws, even though they break them. Even those gray-area

laws that involve disagreement over the “wrongness” of the behavior are not proper

grounds for disobedience unless one believes that the government is immorally op-

pressing certain people.

There is a widespread belief that law is synonymous with morality and that as long

as one remains inside the law, one can be considered a moral person. Callahan (1982: 64)

points out the following:

We live in a society where the borderline between law and ethics often becomes

blurred. For many, morality is simply doing that which the law requires; a fear of

punishment is the only motivation for behavior in some minimally acceptable way.

Obviously, Callahan is concerned with the false perception of law as a total represen-

tation of morals. Most of us struggle to achieve goodness using the defi nitions of the so-

ciety we live in, represented in our laws; very few apply a higher standard of morality that

confl icts with existing law. Luckily, most of us are rarely faced with circumstances where

we have to do so.

Restorative Justice Our current system of law and justice is oriented completely to the offender. What would

a system of justice be like if the emphasis were on the victim’s rights, needs, and com-

pensation? In a system with a primary emphasis on the victim rather than the offender,

money would be spent on victim services rather than prisons. It would be victims who

would receive job skills training, not offenders. Some of the money that now goes to law

enforcement and corrections would be channeled to compensation programs for victims

of personal and property crimes. Victims would be helped even if their offenders were

not caught. The major goal would not be punishment, but service. Offenders would be

peripheral fi gures; they would be required to pay restitution to victims, and punishment

would occur only if they did not fulfi ll their obligation to their victims. Could such a sys-

tem work? Would such a system provide better justice?

Although the restorative justice movement does not propose quite this level of radi-

cal restructuring, it does dramatically redesign the justice system and offers a new alter-

native to retributive justice. Restorative justice is a term used to describe a number of programs that seek to move compensation back to center stage in the justice system, in-

stead of retribution. A similar, but not identical, philosophy has been called “peacemak-

ing justice” by Braswell and Gold (2002). Programs that require the offender to confront

the victim and provide compensation, and programs that place the victim in the middle

of the process of deciding what to do about the offender, can be categorized under the

restorative justice An approach to corrective justice that focuses on meeting the needs of all concerned.

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restorative justice rubric. The propositions of the movement are as follows (Van Ness

and Strong, 1997):

1. Justice requires restoring victims, offenders, and communities who have been injured

by crime.

2. Victims, offenders, and communities should have the opportunity to be a fully active

part of the justice process.

3. Government should restore order, but the community should establish peace.

The roots of restorative justice can be found as far back as Roman and Grecian law.

Both were based on repayment to victims. Recall that Aristotle’s “rectifi catory justice” was

concerned with ill-gotten gains in contract and business relationships that had to be rem-

edied. In a similar manner, other offenses were also considered compensatory, and only

when the offender refused to provide compensation was physical punishment employed.

In the 1970s, a trend toward “community justice” was part of the larger movement of

community empowerment and development. Community justice boards or local justice

committees were created as part of the justice system (Schweigert, 2002). This model actu-

ally comes from earlier examples of tribal justice, such as the Maori tribal council of New

Zealand, which involves members of the families of both the victims and the offenders. The

model uses reintegrative shaming, and responsibility for the crime is shared by the offender’s

family. Another example is the Skokomish Community Peacemaking Panel. Tribal peace-

makers are selected from community members, and an adversarial system is specifi cally re-

jected in favor of one that seeks to solve the issue rather than simply to assess punishment.

Hallmarks of community justice models include the following (Schweigert, 2002: 25):

1. The process of justice employs local leadership, is informal, and invites participation

from community members.

2. The goal is to repair the harm done to a community member by another community

member in a way that will restore the health of the community relationship.

3. The authority of the justice is through the customs and traditions accepted by all

members.

In community or restorative justice models, crime is viewed as a natural human e rror

that should be dealt with by the community. Offenders remain a part of the community.

Some writers make distinctions between restorative justice and community justice models.

Restorative justice is a philosophical approach to correctional intervention,

in which crime is seen as a confl ict between individuals and their community

whereby the party that causes the injury incurs an obligation to make things

right—whenever and however possible…. Community justice is similar to re-

storative justice but with a stronger emphasis on prevention. Community justice

involves a partnership between the justice system and community organizations

to control crime and social disorder. (Carey, 2005: 5)

More generally, however, community and restorative justice can be distinguished

from retributive justice in fundamental ways. Carey (2005: 25) details the differences be-

tween retributive justice and restorative justice. In retributive justice, the question is “Who

did it?” while in restorative justice, the question is “What is the harm?” In retributive jus-

tice, the question is “Which laws were broken?” while in restorative justice the question is

“What needs to be done to repair the harm?” In retributive justice the question is “What

should the punishment be?” while in restorative justice, the question is “Who is respon-

sible for this repair?”

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7 0 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

Types of restorative justice programs include victim-offender mediation (or

victim-offender reconciliation programs), whereby victims and offenders get together so

the victim can make it clear to the offender what harm has occurred and they can decide

together how to make it right. Reparative boards have community members (rather than jus-

tice offi cials) decide what should happen after a crime has been committed and an offender

identifi ed. Family group conferencing and circle sentencing include family members and

other interested parties in the decision on what should happen to an offender (Braithwaite,

2002). It has been found that victims are more satisfi ed in restorative justice programs than

with traditional sentencing (79 percent compared to 57 percent). Offenders were also more

likely to successfully satisfy their restitution orders in such programs (Braithwaite, 2002: 71).

Community reparative boards are more common with youthful offenders. They are

also called youth panels, neighborhood boards, or community diversion boards, and they

have been in use since the 1920s. These boards reemerged in the mid-1990s, especially in

Vermont. The goals are (Braithwaite, 2002: 73):

Promote citizen ownership of process •

Provide opportunity for victims and community members to confront offenders in a •

constructive manner

Provide an opportunity for the offender to take personal responsibility •

Generate meaningful community-based responses to crime and reduce dependence •

on formal justice processing

Family group conferencing comes from the Maori tribal model and was made a part

of national legislation in New Zealand in 1989. The Wagga Wagga model in Southern

Australia employs police to set up conferences of offenders, victims, families, and

interested or involved others to resolve the problem. The goals of this type of program are

as follows (Braithwaite, 2002: 76):

Provide an opportunity for the victim to be directly involved in the decisions of •

sanctions

Increase the offender’s awareness of the human impact of his/her behavior and give •

an opportunity for the offender to take responsibility for it

Engage the collective responsibility of the offender’s support system •

Allow both offender and victim to reconnect to key community support systems •

Circle sentencing, a similar model, comes from the Navajos in North America. Ev-

eryone involved directly in a criminal offense sits in a circle and gets a turn to speak. The

entire circle decides what should be done. The goal is not to respond only to the current

offense but also to heal the community. The goals of this type of sentencing are the follow-

ing (Braithwaite, 2002: 77):

Promote healing •

Provide the offender an opportunity to make amends •

Empower victims, community members, families, and offenders •

Address underlying causes of criminal behavior •

Build a sense of community and promote and share community values •

There are potential problems with, and some criticisms of, these types of programs

(Braithwaite, 2002; Dzur and Wertheimer, 2002). For instance, victims may feel pressured

to forgive before they are ready. Less due process may be given to offenders because the

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C H A P T E R 3 | Ju s t i c e a n d L a w 7 1

goal is not to punish; thus, issues of guilt or innocence may be unresolved. However, re-

storative justice seems to offer an alternative to our traditional retributive justice system

that can be supported by ethics of care, utilitarianism, religion, and possibly other ethical

systems. It is more akin to older systems of law that focused on compensation rather than

punishment. While legal sanctions usually do not make the victim “whole” or change the

offender, restorative justice attempts to do both.

C O N C L U S I O N

In this chapter, we have explored the origins and components of justice. Typically, justice

includes the concepts of fairness, equality, and impartiality. Whereas justice is a philo-

sophical concept concerned with rights and needs, law is the administration of justice.

Justice can be further differentiated into rectifi catory/commutative justice, distributive

justice, and corrective justice. Corrective justice is the central concern of the criminal jus-

tice system and can be further divided into substantive and procedural issues. Substantive

justice is concerned with the fairness of what we do to offenders; procedural justice is con-

cerned with the procedures that must be undertaken before punishment occurs. A special

concern is when the legal system or a law can be considered to be unjust and immoral.

Principles of civil disobedience allow us to provide guidance as to when a moral person

might legitimately oppose a law. Restorative justice is a new approach that actually has

ancient roots. It focuses attention on the victim rather than the offender.

C H A P T E R R E V I E W

1. Describe the three themes included in the defi nition of justice.

Most defi nitions of justice include the concepts of fairness (equal treatment), equality

(equal shares), and impartiality (absence of bias). Justice acts to mediate our impulses of

selfi shness and fairness. Justice is distinguished from goodness.

2. Defi ne the three types of justice described in the chapter.

The three types of justice described are rectifi catory or commutative justice (which con-

cerns fairness and rights in business dealings and contracts), distributive justice (which

concerns the fair distribution of goods and opportunities in society), and corrective justice

(which concerns the fair application of the law and punishment).

3. Under corrective justice, distinguish between substantive and procedural justice.

Substantive justice concerns the inherent fairness of a law or punishment. Substantive

justice can be supported by either retribution or utilitarian rationales. Under retribution,

we are only concerned with desert; under utilitarianism, we are concerned with a justice

system that results in the greatest good for the greatest number. Procedural justice is con-

cerned with legal administration or the steps taken before punishment is administered.

For instance, a substantive justice question would be “Is capital punishment just?” while a

procedural justice question would be “What due process should apply before a decision

of capital punishment is just?”

4. Describe civil disobedience and when it may be appropriate.

Laws that may be subject to civil disobedience must be immoral and unjust. For in-

stance, they could be degrading, discriminatory, enacted by unrepresentative authorities,

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7 2 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

or unjustly applied. Civil disobedience must be nonviolent, there should be no other al-

ternative, one must accept the legal consequences, and there should be a major moral is-

sue at stake. If people of good will disagree on the matter, then civil disobedience is not

appropriate.

5. Explain the concept of restorative justice and the programs associated with it.

Restorative justice puts the emphasis on making the victim whole and maintaining bonds

between the community, the victim, and the offender. Types of restorative justice pro-

grams include victim–offender mediation (or victim–offender reconciliation programs),

reparative boards, family group conferencing, and circle sentencing.

K E Y T E R M S civil disobedience

due process

hedonistic calculus

justice

lex salica

lex talionis

procedural justice

restorative justice

retributive justice

sanctuary

substantive justice

utilitarian justice

veil of ignorance

S T U D Y Q U E S T I O N S

1. Explain how Plato and Aristotle associated status with justice. Defi ne rectifi catory or

commutative justice.

2. Describe distributive and corrective justice. Identify how different systems under dis-

tributive justice would allocate the resources of society.

3. Describe Rawls’s system of distributive and corrective justice.

4. Describe retributive and utilitarian rationales for punishment, which is a substantive

justice issue. Explain due process and how it fi ts with procedural justice. What are the

elements of due process?

5. Describe some types of restorative justice programs. What ethical systems support

restorative justice?

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) how the government should distribute societal re-

sources such as education and health care. How would you answer the argument of a

couple who did not believe they should have to pay school taxes because they have no

children? What about the argument that rich school districts should share their wealth

with poor districts (keeping in mind that those who pay higher taxes in that district

might have moved there because of the reputation of the school)? What are the argu-

ments for and against universal health care?

2. Write an essay on (or discuss) the following issues under substantive and procedural

justice:

a. What is the proper punishment for a burglary, for a murder in an armed robbery,

and for a million-dollar embezzlement? If you were being punished for a crime,

would you rather receive a year in prison or 50 lashes? Why do we not use corporal

punishment for criminal offenders? Do you think we should? Are there situations

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C H A P T E R 3 | Ju s t i c e a n d L a w 7 3

in our justice system where victims or offenders are treated differently than others

because of who they are?

b. An 87-year-old man living in Chicago is exposed as a soldier who took part in kill-

ing hundreds of Jewish concentration camp victims. U.S. extradition procedures

are followed to the letter, and he is extradited to Israel to stand trial, as Israeli law

determines that courts in Israel have jurisdiction over Nazi war crimes. Israeli legal

procedure is followed without error, and he is convicted of war crimes and sen-

tenced to death.

c. Federal law enforcement agents determine that a citizen of another country partic-

ipated in a drug cartel that sold drugs in the United States. A small group of agents

goes to the foreign country, kidnaps the offender, drugs him, and brings him back

to the United States to stand trial. Upon challenge, the government agents explain

that, although these actions would have been unconstitutional and illegal against

a citizen of the United States in this country, because they were conducted on

foreign soil against a non-U.S. citizen, they were not illegal.

3. Write an essay on (or discuss) whether civil disobedience is ever justifi ed. Discuss war

protesters, anti-abortion activists who burn down clinics, protestors who are arrested

for trespassing, and so on. If you believe that civil disobedience might be justifi ed,

when and in what circumstances would it be acceptable?

E T H I C A L D I L E M M A S

Situation 1

Two individuals are being sentenced for the exact same crime of burglary. You are the

judge. One of the individuals is a 20-year-old who has not been in trouble before and par-

ticipated only because the other individual was his friend. The second person has a history

of juvenile delinquency and is now 25. Would you sentence them differently? How would

you justify your decision?

Situation 2

In your apartment building there lives a young man who appears to be of Middle East-

ern descent. You notice that other young men often visit him and that they come and go

at odd hours of the day and night. You engage in a conversation with him one day, and

during the course of the conversation, he states that “the United States deserved what

happened on September 11 because of their imperialistic actions across the world and

their support for the oppression of the Palestinian people.” You think it is your duty to

report him to the local police, and they appear to be interested in your report. One day,

you observe him being taken away in handcuffs, and you never see him again. Several

weeks later, his apartment is vacant, and you do not know what happened to his belong-

ings. Would you attempt to fi nd out what happened to him? Do you believe you should

investigate further?

Situation 3

You are serving on a jury for a murder trial. The evidence presented at trial was largely cir-

cumstantial and, in your mind, equivocal. During closing, the prosecutor argues that you

must fi nd the defendant guilty because he confessed to the crime. The defense attorney

immediately objects, and the judge sternly instructs the jury to disregard the prosecutor’s

statement. Although you do not know exactly what happened, you suspect that the con-

fession was excluded because of some procedural error. Would you be able to ignore the

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7 4 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

prosecutor’s statement in your deliberations? Should you? Would you tell the judge if the

jury members discussed the statement and seemed to be infl uenced by it?

Situation 4

You are a probation offi cer who must prepare sentencing recommendation reports for

the judge. The juvenile defendant to be sentenced in one case grew up in a desperately

poor family, according to school records. He had a part-time job in a local grocery store,

stocking the shelves and providing general cleanup. The store owner caught him stealing

meat. Actually, this is the second time he has been caught stealing food. The fi rst time he

shoplifted at the store, the deferred adjudication included his commitment to work for the

store owner. He explained that he was trying to help his mother, who could not provide

enough food for his family. In general, failure to succeed at deferred adjudication results in

a commitment to a juvenile facility. What would you recommend to the judge?

Situation 5

You are an ardent tea-party activist who believes the government has encroached unlaw-

fully upon the sovereign rights of the state and the privacy rights of individuals. You do

not believe that your taxes should go to anything other than national security and a few re-

stricted activities, such as the federal highway system. Any other governmental programs

are theft as far as you’re concerned. Your group has organized a sit-in, and you discover

that they plan to block the entrance to a publicly funded health clinic to demonstrate their

ire at the federalization of health care. You know that the planned activities will constitute

trespass and you may get arrested. Would you participate? Why or why not?

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• 75 •

C h a p t e r O b j e c t i v e s

1. Be able to describe the three major theories (and theorists) that attempt to explain behavior.

2. Become familiar with Bandura’s idea of self-regulation and how it can be “turned off.”

3. Describe what is necessary for moral growth according to Kohlberg.

4. Be familiar with the necessary elements for criminal justice ethics courses according to Sherman.

5. Become familiar with what steps organizational leaders should take to encourage ethical decision making on

the part of employees.

Becoming an Ethical Professional

In 2008, New York was rocked with a series of articles concerning Eliot Spitzer, a law-and-

order governor who was caught on tape setting up a liaison with a high-priced call girl. His

“fall from grace” was precipitous; he quickly resigned in the wake of a fi restorm of public-

ity and faced potential federal charges because he allegedly wired money across state lines

for illegal activity (prostitution). Critics were stunned because Spitzer’s career had been

a steady series of successes, fi rst at Princeton, then Harvard, where he obtained his juris

doctorate. He spent several years as a district attorney in Manhattan, then ran for and was

elected attorney general in 1998. He honed his political reputation as a fearless advocate

for justice who targeted white collar criminals on Wall Street and in the banking industry.

When Spitzer was elected governor in 2006, he pledged to clean up the corruption in

Albany and alienated opponents and supporters alike with his “take no prisoners” approach

to changing the back-scratching and questionable ethics of the capital city. How could a moral

crusader, who campaigned on the promise to end corruption and who tirelessly prosecuted

criminal offenders, betray his wife, lie to the voters, and break federal and state laws? Was he

a good man who made mistakes or a bad man who did good things? Or are moral character

and moral behavior much more complicated than simple dichotomies of good and bad?

In this chapter, we shift from the discussion of “What is good?” to “How does one

become a good person?” More specifi cally, we are interested in how can we ensure that

criminal justice professionals will uphold the ethics of their profession and not abuse

their power. Why people act the way they do has been the question for philosophers, re-

ligious scholars, psychologists, sociologists, psychiatrists, economists, and, more recently,

D av

id G

a rd

/ S

ta r

L e d

g e r/

C o

rb is

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7 6 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

criminologists. There is an obvious overlap between the question we ask in criminology—

“Why do people commit crime?”—and the one we ask here: “Why do people commit

unethical acts?” In some cases, when the unethical acts are also crimes, the question is

exactly the same. For instance, the In the News box describes many individuals who com-

mitted both unethical and illegal acts. Do you think these individuals went into the border

patrol intending to commit crime?

We should also recognize that there is a tension between the attempt to discover

the causes of human behavior and the belief of some that explanations of behavior mask

moral responsibility. Is sin (immorality) a character disorder that should be treated? Karl

Menninger (1973), a psychiatrist, argued in the 1970s that the fi elds of psychiatry and psy-

chology usurped and undercut earlier beliefs and judgments of sin. He wrote then that the

moral decay of society was accelerating because we excused sins with psychiatric expla-

nations. The sins he described included group sins of slavery, corporate greed, and envi-

ronmental damage; and individual sins of pride, sensuality (adultery and pornography),

gluttony (excessive food, drugs, and drink), sloth, envy, affl uence, waste, cheating and

stealing, lying, and cruelty. One might argue, 40 years later, our society continues to be

described as in a state of declining morals, so it could be the case that every generation

despairs when faced with obvious evidence of human weaknesses. Whether true or not,

in the N E W S C O R R U P T I O N A T T H E B O R D E R

One of the inescapable facts of policing the border is that there are border agents who can

be bought to look the other way and allow guns, drugs, or illegal aliens across. In 2006 alone,

more than 600 criminal investigations were opened on U.S. immigration offi cials accused of

corruption-related charges. In 2006, nine offi cers were arrested or sentenced for charges such

as bribery and smuggling. Texas cases include David Duque (bribery; selling identifi cation docu-

ments), Lizandro Martinez (allowing drugs to pass through his inspection lane; money launder-

ing), Fabian Solis (smuggling undocumented migrants for money), Juan Alfredo Alvarez (bribery;

drug conspiracy), and Aldo Manuel Erives (allowing drugs and immigrants through checkpoint).

Offi cers who give in to the temptation to accept money in return for looking the other way

could earn as much as $60,000 in a single shift—the equivalent of a year’s salary.

The Department of Homeland Security’s Offi ce of Inspector General and the Offi ce of Profes-

sional Responsibility at Immigration and Customs Enforcement (ICE) investigate corruption com-

plaints. The two agencies have only about 300 investigators to follow up on complaints for

72,000 immigration employees. Incredibly, only about 10 percent of new job applicants are

given polygraph exams because of the cost.

In a more recent story, it is noted that some Mexican smuggling cartels groom their workers

to apply for border patrol jobs as part of a long range plan to smuggle. Luis Alarid, who faces

seven years in prison, evidently researched how much prison time he would get before taking

$200,000 for waiving through cars packed with marijuana. Others recently sentenced included

two female border agents who were romantically involved with drug smugglers. Prosecutions

have increased over 40 percent in the last several years.

SOURCES: Arrillaga, 2006: A13; Archibold, 2009.

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C H A P T E R 4 | B e c o m i n g a n E t h i c a l P ro fe s s i o n a l 7 7

there is a widespread perception that the United States is at a new low in levels of ethics

and morality. The reasons given for this perceived decline include the following:

We have eliminated many of the opportunities for the teaching of morals. •

The community is no longer a cohesive force. •

The authority of religion is not as pervasive as it once was. •

The family is weakening as a force of socialization. •

Educators have abdicated their responsibility for moral instruction in favor of scien- •

tifi c neutrality.

One of the most interesting fi ndings regarding behavior is that what people believe

isn’t necessarily what they do. Thieves believe it is wrong to steal, but do it anyway. Stu-

dents know it is wrong to cheat, but do it anyway. In a survey of 1,139 students at 27

universities, no less than 60 percent admitted cheating (Ryan, 2002: A11). One assumes

in the N E W S W I L L T H E H O N E S T P O L I T I C I A N P L E A S E S T A N D U P ?

It seems to be a race among states as to who has the most dishonest politicians. Unfortunately,

in this kind of race, there are no winners.

New York

Ex-Governor Eliot Spitzer (transferring money across state lines for prostitutes, possibly misus-

ing state police powers); current Governor David Paterson (use of offi ce to infl uence witness in

criminal case, possible misuse of state police, use of drugs); Representative Charles Rangel (ac-

cepting corporate junkets, misreporting income on tax forms); Representative Eric Massa (sexual

harassment). Also, a state senate majority leader convicted of federal corruption charges; a New

York City Council member indicted for federal corruption; an assemblyman sentenced to prison

for stealing from Little Leaguers; a state senator expelled from Congress for assault against his

girlfriend.

Illinois

Ex-Governor Rod Blagojevich (attempting to “sell” President Obama’s Senate seat); also (since

1972) three governors, two congressmen, 19 judges, 30 aldermen, and many others convicted

of corruption.

Massachusetts

State Speaker of the House Salvatore DiMasi (violation of lobbying rules); former Speaker

Thomas Finneran (convicted for obstructing justice); former Speaker Charles Flaherty (tax fraud);

state Senator Dianne Wilkerson (bribery); Boston City Councilor Chuck Turner (bribery); state

Senator James Marzilli (prostitution); Governor Deval Patrick (patronage); state Treasurer Timo-

thy Cahill (patronage).

New Jersey

Forty-four people arrested in one case—three mayors (including Jersey City Deputy Mayor Leona

Beldini), two state assemblymen, and fi ve rabbis (money laundering and sale of black-market

body parts); state Senator Wayne Bryant (extortion).

SOURCES: Gershman and Saul, 2010; Lendman, 2009; Pierce, 2009; CourierPostOnline, 2010.

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politicians know it is wrong to take bribes, but, unfortunately, there is daily evidence to

indicate that they do it anyway, as the In the News box illustrates.

Some studies do find beliefs and actions to be correlated. In one study, “honesty

scores” for people in three organizations were compiled from an attitudinal questionnaire

about beliefs. It was found that the organization with the highest average honesty score

had the least employee theft, and the organization with the lowest average honesty

score had the most employee theft (Adams, 1981). Other studies have found that instru-

ments measuring the “ethical climate” in an organization accurately predict the relative

levels of illegal or unethical behaviors of employees (for review, see Pollock, 2010). In con-

trast, other studies have found no correlation between honesty scores and behavior, and

female prisoners were found to have the same rank orderings of values as female college

students (Kohlberg and Candel, 1984: 499–503).

Part of the problem is the diffi culty of measuring moral beliefs and the validity of

the instruments used. It has been determined that so-called “recognition tests” that re- quire the subject merely to recognize and identify certain moral principles and agree with

them are less helpful in predicting behavior than “production” measures, which require

the subject to actually reason through a dilemma and provide some rationale (Gavaghan,

Arnold, and Gibbs, 1983; Aleixo and Norris, 2000). One would assume that criminal

offenders would have lower morality scores than non-criminals, but that has not neces-

sarily been the case. Studies have, however, shown that correctional programs can raise

morality scores of offenders (Hickey and Scharf, 1980; Gibbs et al., 1984; Wiley, 1988;

Arbuthnot and Gordon, 1988; Buttell, 2002; Pearson, 2002). Whether increasing morality

scores will subsequently affect behavior is still undetermined.

Theories of Moral Development Important contributions to the discussion of why people behave unethically involve bio-

logical factors, learning theory, and Kohlberg’s moral stage theory.

B I O L O G I C A L F A C T O R S

The most controversial theories of human behavior point to biological predeterminers.

Biological criminologists have discovered correlations between delinquency/criminology

and a range of human traits, including impulsivity and aggressiveness (Fishbein, 2000).

Researchers who study the brain have also discovered a possible linkage between the brain

and the development of moral behavior. The frontal lobes of the brain seem to be im-

plicated in feelings of empathy, shame, and moral reasoning. Ellis and Pontius (1989: 6)

presented a theory postulating the infl uence of the frontal lobe and the limbic system on

the individual’s capacity for moral reasoning, in which individuals with frontal-lobe dam-

age display characteristics that may be related to unethical behaviors, including increased

impulsiveness, decreased attention span, tendency toward rude, unrestrained, tactless be-

havior, and a tendency to not be able to follow instructions, even after verbalizing what is

required. Moll et al. (2005) presented a much more detailed explanation of brain activity

in moral cognition. They showed that moral cognition is not limited to the limbic region

but stems from the integration of content- and context-dependent representations in the

cortical-limbic networks. Three components that form the structure of brain activity are

structured event knowledge, social perceptual and functional features, and central motive

and emotional states. The work of these researchers indicates that moral decision mak-

ing is infl uenced by different regions of the brain responsible for emotional reactions and

recognition tests Paper-and-pencil tests that measure an individual’s ability to recognize and/or agree with moral terms.

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rational thinking. Injury to any of the regions will have different effects on one’s abilities to

respond to ethical dilemmas.

Ellis and Pontius (1989) proposed that biological sex differences in brain activity sup-

port the notion that women are more inclined to empathy and sensitivity to human re-

lationships. More than 70 studies examining sex differences in brain functioning found

evidence that men are more antisocial, commit more serious types of offenses, and more

often have serious childhood conduct disorders. There are also sex differences in delin-

quency, school performance, hyperactivity, impulsivity, and attention defi cit disorders.

Some analysts propose that these differences are associated with sex-linked brain activity,

specifi cally in the frontal lobes and limbic regions. They claim that males’ sex hormones

infl uence brain development prenatally and during puberty. Further, although there is

a great deal of overlap between male and female populations in brain development and

activity, there are also distinct and measurable differences; specifi cally, these differences

may infl uence the brain’s ability to absorb “moral messages” or act upon them. This re-

search offers intriguing explanations of why some people (more often men) act in ways

that are harmful to others.

Wilson (1993) has argued that values such as sympathy, fairness, self-control, and

duty are moral “senses” that are inherent in humans and arise through a combination

of genetics and socialization. Shermer (2004) also argues that these traits are inherited,

although he supports a group selection argument—specifi cally, eons ago human groups

that held these traits were more likely to survive than groups that did not.

In an interesting twist to the debate as to whether morals exist apart from humans

or are created by them, Shermer argues that they are both: They transcend humans in

the sense that our moral senses have been created by evolutionary factors that have taken

place over the millennia; however, they are “of us” in the sense that they are human emo-

tions, sentiments, and behaviors.

Shermer (2004: 37) states that asking why humans should be moral is like asking why

we should be hungry or jealous. We are because we are hardwired for these feelings and

emotions. Drawing a parallel between humans and foxes, he relates research that showed

breeding foxes for docility also resulted in other physical changes, including more juve-

nile features and smaller jaws and teeth. Shermer argues that the same evolutionary trend

occurred with humans. He compared humans to bonobos (a type of chimp that is much

less aggressive, more sexual, and more social than its close genetic cousins). He suggested

that the different behavioral patterns may be a result of their higher levels of serotonin

than their more aggressive cousin chimps. More sexual activity is said to generate oxytocin

(OT), a feel-good hormone that increases with sexual activity, and oxytocin is related to

serotonin production (2004: 227)

Shermer also places morality in the intuitive and emotional capacities of humans,

rather than the rational (2004: 177, 257). He points out research showing that moral emo-

tions activate the amygdale, the emotion module in the brain, as well as the orbital and

medial prefrontal cortex, which is the center of cognitive processing. Arguably, dilemmas

arise when these two areas of the brain are in confl ict. For instance, in a well-known hy-

pothetical moral dilemma, a woman is hiding from enemy soldiers with others in a cellar

when her baby starts crying. When test subjects are asked to imagine what they would do

in this situation, two areas of the subjects’ brains in MRIs light up—the inferior parietal

lobe, which is related to rational, but impersonal, thinking, and the emotion centers of the

brain, which evidently react with horror to the alternative of smothering the baby as a solu-

tion (Vedantam, 2007).

Researchers found that when subjects performed altruistic acts, their behavior trig-

gered the pleasure center of the brain, connected with food and sex. This indicates that

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moral behaviors are hardwired into humans’ basic impulses. Other research indicated that

those with damage to the ventromedial prefrontal cortex, which is related to emotions,

were unable to have any feelings regarding moral judgments (e.g., sympathy for others’

pain and suffering or good feelings from altruism), although they were quite able to imper-

sonally and coldly evaluate costs and benefi ts. The argument of some researchers is that

morality lies in empathy, which derives from the emotional center of the brain. They say

that only much later in evolution did the reasoning area of the brain become developed

and involved in moral decision making (Vedantam, 2007).

This area of research is fascinating, not only to help us understand why humans act

the way we do but also to help us understand in what specifi c ways we are similar to and

different from other species in the animal kingdom. With continuing research in brain

chemistry and with the work of the human genome project that has been mapping human

DNA to discover our genetic heritage, fundamental questions of morality, culpability, and

responsibility will arise.

L E A R N I N G T H E O R Y

Learning theorists believe that children learn what they are taught, including morals and

values as well as behavior. In other words, right or wrong is not discovered through rea-

soning; rather, all humans are shaped by the world around us, and we form completely

subjective opinions about morality and ethics. This learning can take place through mod-

eling or by reinforcement.

In modeling, values and moral beliefs come from those whom one admires and aspires to identify with. If that role model happens to be a priest, one will probably develop

a religious ethical system; if the role model happens to be a pimp or a sociopath, an egois-

tic ethical system may develop. If the identifi cation is broken, moral beliefs may change. It

is no surprise that, when asked who has been important in their moral development, most

people say it is their parents, because primary caregivers are the most signifi cant people

in life during the important formative years. Although we may not hold exactly the same

views and have exactly the same values as our parents, they are infl uential in our value

formation.

Another way that learning theorists explain moral development is through

reinforcement. This theory holds that behaviors and beliefs that are reinforced ( either through material rewards or through more subjective rewards, such as praise) are re-

peated and eventually become permanent. Behavior is completely neutral; an infant can

be taught any behavior desired, and the moral beliefs consistent with that behavior. In

one experiment, children were told a hypothetical story in which an adult punished a

neutral act, such as a child practicing a musical instrument. The children later defi ned

that act as bad, despite the intrinsic neutrality of the action. This indicates the power of

adult defi nitions and punishment in the child’s moral development (Boyce and Jensen,

1978: 133–170).

Quite a bit of research supports a learning theory of moral development. For instance,

it was found that large gains in moral maturity (at least as measured by paper-and-pencil

tests of expression of beliefs) could be achieved by direct manipulation of rewards for

such beliefs (Boyce and Jensen, 1978: 143). Contrary to the view that an individual comes

to a realization of moral principles through cognitive development, this theory proposes

that one can encourage or create moral beliefs simply through rewards.

When behavior is not consistent with beliefs, the discomfort that results is called

c ognitive dissonance. This leads to the development of attitudes to support one’s

modeling Learning theory concept that people learn behaviors, values, and attitudes through relationships; they identify with another person and want to be like that person and pattern themselves after the “model.”

reinforcement Rewards.

cognitive dissonance Psychological term referring to the discomfort that is created when behavior and attitude or belief are inconsistent.

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behavior. The child who is constantly told to share toys and is disciplined upon refusing to

do so is learning not just the desired behavior, but also the values of cooperation and char-

ity. In an adult these values may be manifested by lending one’s lawn mower to a neigh-

bor or by contributing to charities. In contrast, if a child is never punished for aggressive

behavior and instead is rewarded by always getting the desired object, aggressiveness and

the accompanying moral principle of “might makes right” develop. If we do acts that are

contrary to the beliefs that we have been taught, we will feel discomfort. Therefore, we will

either stop doing the acts or change our beliefs to reduce the dissonance.

Albert Bandura (born 1925), one of the most cited psychologists of this era, developed

social learning theory and the idea of modeling as the mechanism of development. In his

early career, he described how the successful use of rewards is related to the child’s age. As

the child matures, concrete rewards and external sanctions are replaced by symbolic and

internal controls (one’s conscience) (Bandura, 1964). Eventually Bandura described the

individual as not simply a passive recipient of rewards, but rather, as an active participant in

the construction and meaning of rewards (Bandura, 1969, 1971). In this view, individu-

als are active, not passive; self-refl ective, not merely acted upon; and self-regulating, not

merely controlled by external forces. Bandura’s later work revolved around his develop-

ment of the concept of self-effi cacy. Self-effi cacy can be defi ned as the individual’s feel- ings of competence, and this sense is developed by comparing the self to others.

Bandura believes that moral values can be most effectively instilled by a combination

of direct infl uence (modeling) and reinforcement. Further, he argues that reinforcement

(negative sanctions), accompanied by reasons that encourage empathy for the victims,

produce greater abilities to self-regulate than utilizing negative sanctions alone (1991: 53).

Bandura sees social and moral maturity as constantly changing, reacting to outside infl u-

ences (involving family, peers, and social institutions). Self-regulation occurs through a

process of anticipatory sanctions—that is, the individual perceives how bad they would

feel if they did the act (2002).

Bandura argues that this self-regulation can be “turned off,” leading to inhumane acts,

through cognitive restructuring via several different mechanisms, as follows (1990, 1991,

2002):

Moral justifi cation. • This is an appeal to a higher or more important end to justify the

act (e.g., terrorists who are fi ghting for a cause). Similar to utilitarianism, the idea here

is that the end justifi es the means.

Euphemistic labeling. • By using words that downplay the seriousness of actions, the

true moral nature of such actions is ignored (e.g., sanitizing language, such as “wast-

ing” or “whacking” instead of killing, and the term “collateral damage” for killing civil-

ians in times of war).

Advantageous comparison. • This is an argument that the action may be wrong, but it

isn’t as bad as some other actions (e.g., “What was done at Abu Ghraib wasn’t as bad

as the actions of insurgents who cut off the heads of civilian contractors”).

Displacement of responsibility. • This argument basically removes the individual as a

free-thinking agent of his or her own actions in order to deny culpability (e.g., “I was

only following orders”).

Diffusion of responsibility. • In this situation, the individual can redefi ne his or her re-

sponsibility for an action by diffusing it among a number of people (e.g., when a num-

ber of people are engaged in morally questionable behavior such as a mob action).

Disregard or distortion of the consequences. • By misidentifying the consequences of

one’s actions, one can deny one’s responsibility for harm (e.g., when the executioner

self-effi cacy Individuals’ feelings of competence and confi dence in their own abilities and power, developed by comparing self to others.

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is hidden behind a curtain or when the CEO who gives the order to pollute merely

requests that the problem be “taken care of ”).

Dehumanization. • Humans feel the most sympathy/empathy for those who are most

like us and who are closest to us, and we feel the least for those who are most unlike

us. Therefore, dehumanization is a process to strip the victim of any qualities of simi-

larity that may create sympathy (e.g., the use of terms such as gooks, slant-eyes, pigs,

wetbacks, and other dehumanizing references).

Bandura argues that it takes a certain constellation of conditions to create human

atrocities, not necessarily “monstrous” people (Bandura, 1991: 89). Also, he purports that

the shift to immoral acts and attendant justifi cations is probably gradual, not immediate.

Inhibitions are lessened when there is social support for inhuman acts. Finally, external

conditions are not all-powerful; the individual adapts and reinterprets them within his or

her own internal cognitive processes (Bandura, 2002).

Learning theory leaves little room for universalism, absolutism, or the idea that a

moral truth exists apart from humans that is not of their construction but that awaits their

discovery. The theory is completely humanistic in that morality is considered to be a cre-

ation of humans that explains and provides a rationale for learned behavior.

K O H L B E R G ’ S M O R A L S T A G E T H E O R Y

Developmental theories propose that individuals mature physically, cognitively, and emotionally. Physical development—such as height and weight—can be charted by a

pediatrician. Intellectual development is measured by a variety of intelligence tests and

is charted against a normal curve of development. Emotional or social development also

progresses at a predictable and normal pace, although it may be more diffi cult to measure.

Social maturity is marked by the ability to empathize with others and a willingness to com-

promise one’s desires with others’ needs. An emotionally mature person neither abandons

self for others nor puts oneself above others, but rather, balances individual needs with

others’ demands; however, that development might be stunted by negative environmental

infl uences.

The contributions of Jean Piaget and Lawrence Kohlberg have become essential to

any discussion of moral development. Piaget believed that we all go through stages of

cognitive, or intellectual, growth. These stages parallel moral stages of development, and

together they describe a systematic way of perceiving the world. Piaget studied the rules

that children develop in their play. These rules refl ect the perceptions that children hold of

themselves and others and move from egocentrism to cooperativeness.

Kohlberg carried on with Piaget’s work and more fully described the stages that each

individual passes through in moral and cognitive development (Kohlberg, 1984). In this

conception, 2-year-olds do not understand the world in the same way as 20-year-olds do.

This difference in understanding affects their moral reasoning ability. The infant lacks sen-

sitivity toward others and is supremely selfi sh regarding his or her needs and wants. In-

fants are not concerned with others because they are only vaguely aware of their existence.

The infant’s world is confi ned to what is within reach of his or her hands and mouth. Even

a mother is important only as the source of comfort and food. Slowly the infant becomes

aware that others also have feelings and needs. This awareness leads to empathy and the

recognition of right and wrong.

At later stages, abstract reasoning develops, which leads to the ability to understand

more diffi cult moral concepts. Kohlberg’s moral stages consist of three levels of moral reasoning, with two stages in each level. According to Kohlberg and his colleagues, each

developmental theories Approaches to behavior proposing that individuals have normal growth phases in areas such as morality and emotional maturity.

Kohlberg’s moral stages The view that moral development is hierarchical; each higher developmental stage is described as moving away from pure egoism toward altruism.

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stage involves qualitative differences in the way the individual sees the world. Cognitive

development and moral development are integrated—that is, one must grow intellectu-

ally in order to achieve a higher moral stage. One cannot skip stages, they are hierarchical;

however, some people will not advance to the highest stages (Hersh, 1979: 52).

At the pre-conventional level, the person approaches a moral issue motivated purely

by personal interests. The major concern is the consequence of the action for the individ-

ual. For instance, young children do not share toys with others because they see no reason

to do so. They derive pleasure from their toys, so to give the toys to others does not make

sense to them. Even if the toys belong to others, children are predisposed to appropriate

them. Parents are aware of the tears and tantrums associated with teaching a child that toys

belonging to others must be given back. Young children fi rst start sharing when they per-

ceive benefi t to themselves, such as giving someone their doll in exchange for a game or a

ball, or they grudgingly share because they fear punishment from an adult if they do not.

Stage 1 has a punishment and obedience orientation. What is right is that which is

praised; what is wrong is that which is punished. The child submits to an authority fi gure’s

defi nition and is concerned only with the consequences attached to certain behaviors, not

with the behavior itself.

Stage 2 has an instrument-and-relativity orientation. The child becomes aware of and

is concerned with others’ needs. What is right is still determined by self-interest, but the

concept of self-interest is broadened to include those who are within the child’s sphere of

relationships. Relationships are important to the child, and he or she is attached to parents,

siblings, and best friends, who are included in the ring of self-interest. There is also the

emerging concept of fairness and a recognition that others deserve to have their needs met.

At the conventional level, people perceive themselves as members of society, and liv-

ing up to role responsibilities is paramount in believing oneself to be good. Children enter

this level when they are capable of playing with other children according to rules. Games

and play are training grounds for moral development because they teach the child that

there are defi ned roles and rules of behavior. For instance, a game of softball becomes a

microcosm of real life when a child realizes that he or she is not only acting as self but also

as a fi rst baseman, a role that includes certain specifi c tasks. Before this stage, the child

runs to the ball regardless of where it is hit. Thus, in a softball game with very young chil-

dren playing, one may see all the players running after the ball and abandoning their bases

because they have diffi culty grasping the concept of role responsibilities. Further, although

it would be more expeditious to trip the runners as they leave the base so they can be

tagged out, the child learns that such behavior is not fair play and is against the rules of the

game. Thus, children learn to submerge individual interest to conform to rules and role

expectations.

Stage 3 has an interpersonal concordance orientation. The individual performs con-

ventionally determined good behavior to be considered a good person. The views of “sig-

nifi cant others” are important to self-concept. Thus, individuals will control their behavior

so as to not hurt others’ feelings or be thought of as bad.

Stage 4 has a law-and-order orientation. The individual is concerned not just with

interpersonal relationships but also with the rules set down by society. The law becomes

all-important. Even if the laws themselves are wrong, one cannot disregard them, for that

would invite social chaos.

At the post-conventional level, a person moves beyond the norms and laws of a society

to determine universal good—that is, what is good for all societies. Few people reach this

level, and their actions are observably different from the majority. For instance, Mahatma

Gandhi might be described as having a post-conventional morality. He did not subscribe

to the idea that laws must be obeyed, and he carried out peaceful noncompliance against

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established laws to conform to his belief in a higher order of morality. At this level of moral

development, the individual assumes the responsibility of judging laws and conventions.

Stage 5 has a social contract orientation. The person recognizes interests larger than

current laws. This individual is able to evaluate the morality of laws in a historical context

and feels an obligation to the law because of its benefi ts to societal survival.

Stage 6 centers on universal ethical principles. The person who has reached this stage

bases moral judgments on the higher abstract laws of truth, justice, and morality.

A seventh stage? Kohlberg advanced the possibility of a seventh stage, which has been

described as a “soft” stage of ethical awareness with an orientation of cosmic or religious

thinking. It is not a higher level of reasoning, but is qualitatively different. According to

Kohlberg, in this highest stage individuals have come to terms with questions such as

“Why be just in a universe that is largely unjust?” This is a different question than the defi -

nition of justice that forms the content of the other stages. In this stage, one sees oneself

as part of a larger whole, and humanity as only part of a larger cosmic structure. This stage

focuses on agape—a nonexclusive love and acceptance of the cosmos and one’s place in it

(Kohlberg, 1983; Power and Kohlberg, 1980).

Critics of Kohlberg Some believe that Kohlberg’s theory of moral development has several serious fl aws. For instance, he has been criticized for focusing too much on the

concept of justice, ignoring other aspects of morality. In fact, it is argued that the way he

defi nes moral development is culturally based, refl ecting the Judeo-Christian heritage of

Kohlberg and his followers. He has also been criticized for focusing too much on ratio-

nal thinking as opposed to emotional aspects of morality (Levine, Kohlberg, and Hewer,

1985: 99). There has also been research that indicates the stages are not necessarily invari-

ant or form a coherent explanation for people’s moral beliefs (Boyce and Jensen, 1978;

Bandura, 1991: 49). As mentioned before, there is a disturbing lack of correlation between

moral stage scores and behavior (Lutwak and Hennessy, 1985).

Another criticism is that Kohlberg’s research can be described as sexually biased

because he interviewed only boys in early research. Carol Gilligan (1982, 1987), one of

Kohlberg’s students, researched an apparent sex difference in moral reasoning and pro-

posed that women may possess a morality different from men. Most men, it seems, ana-

lyze moral decisions with a rules or justice orientation (Stage 4), whereas many women

see the same moral dilemma with an orientation toward needs and relationships (Stage 3).

Gilligan labeled this a care perspective. A morality based on the care perspective (which is

similar to the ethics of care system described in Chapter 2) would be more inclined to look

at how a decision affects relationships and addresses needs, whereas the justice perspec-

tive is concerned with notions of equality, rights, and universality.

In Gilligan’s study, although both men and women raised justice and care concerns in

responses to moral dilemmas, among those who focused on one or the other, men focused

exclusively on justice whereas half of the women who exhibited a focus did so on justice

concerns and the other half on care concerns (Gilligan, 1987). She also found that male

and female respondents alike were able to switch from a justice perspective to a care per-

spective (or back again) when asked to do so; thus, their orientation was more a matter of

perspective than an inability to see the other side. What Gilligan points out in her research

is that the care perspective completely drops out when one uses only male subjects—

which is what Kohlberg did in his early research for the moral stage theory.

Later studies have obtained results consistent with Gilligan’s findings. However,

the content of the dilemma also evidently infl uences whether care considerations will be

found. The dilemmas involving interpersonal relationships were more likely to stimulate

care considerations than those without interpersonal relationships (Rothbart, Hanley, and

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Albert, 1986; Flanagan and Jackson, 1987). More recent studies have continued to investi-

gate sex differences in measurements of moral development. A study of male and female

Coast Guard members revealed that, when utilizing an identifi cation measure of moral-

ity, women scored statistically higher than men (White, 1999); and a study of lawyers re-

vealed that women were signifi cantly less likely to be brought up on disciplinary charges

( Hatamyar and Simmons, 2002).

Other studies have failed to fi nd any differences between men and women in their re-

sponses to moral dilemmas (see reviews in Walker, 1986; Thoma, 1986; Loo, 2003). Critics

of Gilligan argue that her work is more art than science in that she used small sample sizes,

and her results have not been widely replicated in larger studies. Further, similar to the

criticisms directed at Kohlberg, the approach of measuring one’s morality as a hierarchical

stage, regardless of whether Stage 4 is higher or lower than Stage 3, has been criticized by

those who argue that there is not necessarily a linear progression in one’s moral develop-

ment. Gilligan’s most extreme critics, however, have been largely polemical, accusing her

of stereotyping women by describing them as being more emotional and nurturing than

men, which, critics argue, hark back to the days of stereotyping women as being “natu-

rally” suited only to motherhood (Larrabee, 1993).

The importance of Kohlberg’s work is the link he makes between moral development

and reason. Although this concept originated with Kant and even earlier philosophers,

Kohlberg provides a psychological analysis that sheds light on how reason infl uences moral

judgments. Also important in Kohlberg’s work is the guidance it provides to education. Ac-

cording to the theory of moral stages, one can encourage movement through the stages by

exposing the individual to higher-stage reasoning. The procedures for encouraging moral

growth include presenting moral dilemmas and allowing the individual to support his or her

position, thereby spurring an intellectual challenge and consequent mental growth. Through

exposure to higher reasoning, one sees the weaknesses and inconsistencies of lower-level

reasoning and, theoretically, abandons it for higher-level reasoning (Hersh, 1979).

Ethics Teaching/Ethics Training Can one teach ethics? Can one train employees to act ethically? Or, as many people pre-

sume, is one’s character pretty well established by the time of young adulthood? Kohlberg

(1976) described the following as necessary for moral growth:

Being in a situation where seeing things from other points of view is encouraged •

Engaging in logical thinking, such as reasoned argument and consideration of •

alternatives

Having the responsibility to make moral decisions and to influence one’s moral •

world

Being exposed to moral controversy and to confl ict in moral reasoning that challenges •

the structure of one’s present stage

Being exposed to the reasoning of individuals whose thinking is one stage higher than •

one’s own

Participating in creating and maintaining a just community whose members pursue •

common goals and resolve confl ict in accordance with the ideals of mutual respect

and fairness

Even if one does not adhere to the other principles of Kohlberg’s moral stage theory,

these elements of what is necessary for moral growth seem logical. For instance, a child

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growing up in a family that repeats moral judgments with little attempt to explain or de-

fend them will learn to be closed to other viewpoints. A child who is never forced to take

responsibility for his or her own actions will have diffi culty developing moral reasoning

skills and will not advance to higher stages. These children will be stunted, in a sense, at

the Kohlberg pre-conventional level of an infant, constantly fed and cared for, but not

allowed to discover that other people exist and must be considered.

A different question, however, is whether the moral belief systems or behaviors of young

adults can be changed. We can probably agree that, as adults, if we surround ourselves only

with people who think as we do, we are unlikely to change our moral belief systems, but is it

possible to change people’s attitudes and behavior through education or training?

In most colleges in the 1800s, a course in moral philosophy was required of all gradu-

ates. This class, often taught by the college president, was designed to help college stu-

dents become good citizens. The goal of college was not only to educate as to facts, but

also to help students attain the moral sensibility that would make them productive, worthy

citizens. As it was taught, ethics involved not only the history of philosophical thought but

also a system of beliefs and values and the skills to resolve moral or ethical dilemmas.

Most professional schools today (in law, medicine, and business) require at least one

class in professional ethics. Typically, these classes present the opportunity to examine the

ethical dilemmas that individuals may encounter as members of that profession and help

students discover the best way to decide ethical issues. Usually the classes combine dis-

cussion and instruction. Although some class time is devoted to having students discuss

their views, certainly part of the task is to provide what might be called indoctrination to

the values and codes of behavior of that profession.

It is possible that you are reading this book for a college ethics course in a criminal

justice or criminology department. As such, your exploration of ethics is akin to a profes-

sional responsibility course for law students or a medical ethics class for medical students.

Your instructor may take an issue-based approach, exploring or evaluating issues such as

the defi nition of justice; the appropriate use of force; the relative importance of due pro-

cess over effi ciency; the ethical use of technology to control the populace; the variables

used to determine responsibility and punishment; the right of society to treat (or punish);

and the limits that should be placed on treatment (or punishment). But your course may

also include more applied discussions of how professionals should make decisions when

faced with ethical dilemmas. Applied courses attempt to provide the analytical tools avail-

able for determining ethical actions.

According to Sherman (1982: 17–18), the following elements are necessary for any

ethics course relating to criminal justice:

Stimulating the “moral imagination” by posing diffi cult moral dilemmas •

Encouraging the recognition of ethical issues and larger questions instead of more •

immediate issues such as effi ciency and goals

Helping to develop analytical skills and the tools of ethical analysis •

Eliciting a sense of moral obligation and personal responsibility to show why ethics •

should be taken seriously

Tolerating and resisting disagreement and ambiguity •

Understanding the morality of coercion, which is intrinsic to criminal justice •

Integrating technical and moral competence, especially recognizing the difference •

between what we are capable of doing and what we should do

Becoming familiar with the full range of moral issues in criminology and criminal jus- •

tice in the study of criminal justice ethics

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Teaching ethics, which may have focused solely on issues, is replaced with training

for ethics once in the fi eld, with an almost exclusive applied focus. Training can be purely

informational—that is, instructors telling employees what is and is not acceptable in the

organization. More often, however, ethics training includes elements to help professionals

approach ethical dilemmas. In the growing fi eld of ethics instruction, businesses are hiring

“ethics offi cers” to ensure that their workers behave honestly and ethically, and ethics cen-

ters are offering training to state and private organizations of every type. The Josephson

Institute is a training center that markets to a broad range of businesses and organizations.

Neil Trautman’s National Ethics Institute in Mississippi and the Center for Law Enforce-

ment Ethics in Texas are two centers that offer ethics training to law enforcement and cor-

rectional agencies. In fact, ethics training is a growth industry, as the In the News box

points out, with somewhat mixed reviews.

Many believe that it is much more effective to target new members of a profession

with ethics training before these individuals are faced with real-life dilemmas. Socio-moral

reasoning opportunities could exist in academies to encourage “higher stage” thinking. Of

course, what often happens is that once students leave this setting, they are often told to

forget what they’ve learned in the classroom. This happens often in police and correc-

tional academies, where cadets are taught “the book,” and then learn “the street” when

they are paired with an older offi cer. This also happens when lawyers realize that the high

ideals of justice they learned in law school have little to do with the bargaining and bureau-

cratic law of the courthouse. Learning theorists would argue, alternatively, that the most

effective way to change the ethics of a profession is to utilize rewards and punishments to

change behaviors; in other words, supervision and discipline are the vehicles to creating an

ethical organization. Of course, both training and supervision/discipline together may be

more effective than concentrating on either to the exclusion of the other. Also, many argue

that ethics training is not as important in creating an ethical organization as the behavior of

administrators and supervisors.

in the N E W S E T H I C S C L A S S E S : S O L U T I O N O R S C A M ?

In an editorial poking fun at the recent rise of ethics classes, Joan Ryan of the San Francisco Chron-

icle writes that Raytheon, a defense contractor, has produced a video in which the company’s

vice president, along with fi lm critic Roger Ebert, gives thumbs-up or thumbs-down to a series

of behaviors. Ryan wonders if Bert and Ernie of Sesame Street might have done a better job. An

attempt to improve the ethics of a work force is laudable, but the approach may be patronizing

or even cynical, depending on the company’s motivation.

Ryan points out that businesses that have ethics programs in place are eligible for reduced fi nes

if they are found guilty of corporate wrongdoing. The behavior of leaders and the values of the

company are more important determiners of employees’ behaviors than whether or not they

sat through a class. She says, “[T]he post-Enron era is much like the pre-Enron. Companies were

cooking the books, faking transactions, lying to shareholders. The problem was about perpetu-

ating a sham. Now so, too, is the solution.”

SOURCE: Ryan, 2002: A11.

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Leadership and the Ethical Organization Can anyone argue against the idea that if leaders are honest, ethical, and caring, there is

a good chance that those who work for them will also be ethical? If administrators and/

or managers are hypocritical, untruthful, and use their positions for personal gain, work-

ers often march in these same footsteps. If the business itself is premised on mislead-

ing the consumer and perpetrating fraud to secure higher profi ts, why should business

leaders expect that workers would behave any differently? Trautman (2008) offers the

“Corruption Continuum,” which details how organizations can become corrupt through

(1) administrative indifference toward integrity, (2) ignoring obvious ethical problems,

and creating a (3) hypocrisy and fear dominated culture, all leading to (4) a survival of

the fi ttest approach by individual employees (who will commit unethical acts to protect

themselves).

In any organization, there are those who will almost always make ethical choices,

those who will usually make unethical ones, and those who can be infl uenced one way

or the other. The best course of action is to reward those in the fi rst group and identify

those in the second group and encourage them to find other employment or at least

remove them from temptation. Then organizational leaders must create an atmosphere for

the third group that encourages ethical decision making. This can be done by promoting

ethical administrators, rewarding morally courageous behavior, and providing clear and

powerful organizational policies that emphasize worthwhile goals and honest means.

Gardner (2007) discusses the Good Works Foundation, a private foundation that does

research and advises businesses on how to achieve excellence through ethical practices

and principles. In his work, Gardner argues that in order to meet future challenges, com-

panies and organizations will have to recognize responsibilities to the greater community.

Workers will need the following fi ve types of cognitive capabilities:

The disciplined mind: • The ability to focus and learn a fi eld of study

The synthesizing mind: • The ability to integrate diverse ideas into a coherent whole

The creating mind: • The ability to recognize and solve problems

The respectful mind: • The ability to form and maintain good relationships with other

people

The ethical mind: • The ability to fulfi ll one’s responsibilities as a citizen and to identify

with fellow human beings

Basically, Gardner argues, much like Aristotle, that to be an excellent person or orga-

nization, there is an essential element of ethics that must be a part of the beliefs, values,

and principles of the organization (or individual’s self-defi nition). For an organization to

be excellent and succeed in the future, individuals in the organization must be more than

intelligent and educated; they must be ethical.

An ethical organization must have ethical administrators and managers. They are re-

sponsible not only for their personal conduct but also for the actions of those they super-

vise. What does it mean to be an ethical leader? Obviously, one fi rst has to be sure that

one is not personally engaged in unethical and corrupt behaviors. Unfortunately, in many

recent examples, leaders cannot pass even this fi rst test. In the White Collar Crime box,

the failings of these organizations’ leaders led to ethical scandals, but, more importantly,

the fi nancial victimization of thousands of people, including their own employees.

Administrators and managers do not necessarily ensure that an organization will be

free from corruption merely by not engaging in corrupt practices themselves; they must

take affi rmative steps to encourage ethical actions. Issues that could be examined in a

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discussion of ethical leadership include the practice of recruitment, training, discipline

and reward structures, and evaluation of performance.

Souryal (1992: 307) offers advice to leaders who would like to advance ethical deci-

sion making and emphasizes the importance of organizational support for ethical actions.

Ethical leaders should do the following:

1. Create an environment that is conducive to dignifi ed treatment on the job.

2. Increase ethical awareness among the ranks through formal and informal

socialization.

3. Avoid deception and manipulation in the way officers are assigned, rewarded, or

promoted.

4. Allow for openness and the free fl ow of unclassifi ed information.

5. Foster a sense of shared values and incorporate such values in the subculture of the

agency.

White Collar Crime Lack of Ethical Leadership

Hewlett-Packard Spy Scandal This so-called board- room spying scandal erupted in 2006, when it was

discovered that detectives hired by offi cials at Hewlett-

Packard investigated who was leaking confidential in-

formation by spying on board members. This included

using pretexting—using the target’s Social Security num-

ber to convince telephone companies to release the tele-

phone records of the person. The head of HP, Patricia

Dunn, resigned, and she and other top offi cials, as well

as the detectives, faced state and federal charges of iden-

tity theft, fraud, and wiretapping.

Chicago’s Hired Truck Scandal State and federal investigations began in 2002 and are ongoing into a cor-

ruption scheme in city government. The core of the cor-

rupt activities lies in the hiring practices of city offi cials

who allocated jobs and contracts to those who would

pay kickbacks and/or campaign for the political fi gures

who approved the position or contract. The resulting

investigations concern how high up the corrupt scheme

went, some arguing that even Mayor Richard Daley was

involved.

B e r n i e M a d o f f a n d A l l e n S t a n f o rd ’s Po n z i Schemes Both of these Ponzi schemes involved bil- lions of dollars and thousands of victims. Both men took

money and spent it lavishly while assuring investors that

they would receive substantial returns on their money.

Madoff has been convicted and is serving a 150-year

prison sentence. Stanford is in jail awaiting trial.

Ivan Boesky Boesky was the king of insider trading in the 1980s and served three years in federal prison.

Dennis Kozlowski The head of Tyco International, Kozlowski was convicted of misappropriating over $400

million of his company’s funds. He was sentenced to

eight years in prison.

Conrad Black Black was convicted in 2007 of diverting funds from his newspaper companies for his own per-

sonal use.

The Enron Felons Andrew Fastow (former CFO of Enron) pleaded guilty to fraud, money laundering, and

conspiracy. He will be released from prison in 2013.

Jeffrey Skilling (CEO) was convicted of fraud, insider

trading, and other crimes. His release date is 2028.

Kenneth Lay, the head of Enron, died of a heart attack

before being brought to trial.

HealthSouth CEO Richard Scrushy was found guilty of bribery and mail fraud in relation to a scheme to get

himself appointed to a regulatory panel. He will be re-

leased from prison in 2014.

Adelphia Communications John Rigas and his sons embezzled $2.3 billion from the company. Rigas was

convicted of bank, wire, and securities fraud. He will be

released from prison in 2018 and his son, Timothy Rigas,

will be released in 2022.

WorldCom Bernard Ebbers (former CEO of World- Com), after bilking investors of $11 billion, was con-

victed of false fi nancial reporting and fraud. He won’t be

released until 2139.

Sources: Associated Press, 2007a; Von Bergen, 2006: Al, A13; Sallah and Barry, 2009; BusinessInsider.com, 2009.

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6. Demonstrate an obligation to honesty, fairness, and decency by example.

7. Discuss the issue of corruption publicly, expose corrupt behavior, and reward ethical

behavior.

Metz (1990) offers a similar set of advice. He proposes that ethical administrators follow

these steps:

1. Establish realistic goals and objectives.

2. Provide ethical leadership (meaning, set a moral tone by actions).

3. Establish formal written codes of ethics.

4. Provide a whistleblowing mechanism.

5. Discipline violators of ethical standards.

6. Train all personnel in ethics.

When top leaders take responsibility for their subordinates’ behavior, they will lead

and administer with greater awareness, interaction, and responsibility. Because of this

responsibility, a supervisor or administrator must be concerned with how the workplace

treats the worker, how the worker views the mission, and how the public views the orga-

nization. A concern for one’s public image may be shared by ethical leaders and egoistic

bureaucrats, but the fi rst group has a sincere desire to understand the public’s complaints

and respond to them, and the second group is concerned solely with protecting the image

of the organization—a stand that may mean punishing whistleblowers rather than appre-

ciating them for bringing problems out in the open.

A strong ethical leader would have a personal relationship with subordinates— without

showing favoritism. This personal relationship is the foundation of modeling, identifi ca-

tion, and persuasive authority. Strong leadership involves caring and commitment to the

organization. A strong leader is someone who is connected with others but also has a larger

vision, if you will, of goals and mission.

Delattre (1989b) describes a realistic idealist—and it’s possible that he would also be

content with the term idealistic realist. What he is referring to is the capacity for good

leaders to understand social realities, but to avoid cynicism in the face of such social re-

alities. For instance, in the use of force, a realistic idealist would understand that force is

necessary at times, but would attempt every alternative means to protect all human life,

including the offender’s life. Leaders must never lose sight of the organizational mission;

for public servants, the mission is public service.

The Criminal Justice Professional For the criminal justice professional who must uphold and enforce the law, the discussion

of morality, justice, and law is not just academic. Line offi cers often face questions of in-

dividual morality versus obedience and loyalty to one’s superiors or the organization. One

thing that every professional must understand is that they alone are morally and ethically

responsible for their decisions and actions. It is for this reason that the study of ethics is so

important.

The My Lai incident in Vietnam has almost passed out of this nation’s consciousness,

but at the time, there was great debate over whether soldiers should follow their superiors’

orders blindly or make an independent assessment of the morality of the action. In this

case, several offi cers were prosecuted by a military court for killing women and children in

a village during the Vietnam War without any evidence that they were a threat to the unit’s

safety. The officers’ defense was that their superiors gave the orders to take the village

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without regard to whether the inhabitants were civilians or guerrillas. The rationale was

that often there wasn’t time to establish whether a civilian was friendly or not, and that,

in any event, civilians often carried grenades or otherwise harmed U.S. troops. There was

heated public discussion in support of and against the soldiers’ actions. Is an individual

excused from moral culpability when following orders, or should one disobey orders that

one believes to be illegal or immoral? Generally, military justice does not allow a defense

of “following orders” if the order is against a treaty or law.

In the Abu Ghraib prison scandal, soldiers argued that they were only following or-

ders when they abused the detainees. Joseph Darby (profi led in the Walking the Walk box

in Chapter 2) was so distressed by the pictures showing various types of abuse that he

turned them in to the Army’s CID, and the resulting investigation led to indictments and

resignations. Some, however, blamed Darby and held the position that he should not have

exposed what the other soldiers had been doing. Some condemned Darby as a traitor to

his country, and he and his family received death threats and were not able to return to

their hometown to live because of the town’s hostility to him.

Thomas Tamm grew up with the FBI in his blood.

Both his father and uncle were highly regarded rank-

ing offi cials in the bureau. His brother became an FBI

agent. It is said that, as a child, Tamm played in J. Edgar

Hoover’s offi ce. Thus, you would not have expected that

in the early morning hours of August 1, 2007, a squad of

heavily armed FBI agents would roust his family from

bed with a search warrant, seizing his and his children’s

computers and other personal items. His alleged crime?

He leaked the fact that the federal government was en-

gaged in spying on its own citizens, against the laws of

the land.

Tamm, like his relatives, had pursued a career in

public service, as a prosecuting attorney in the Depart-

ment of Justice. In his job with the Department of Jus-

tice’s Office of Intelligence Policy and Review, he had

access to highly classified wiretap transcripts of sus-

pected terrorists. In 2004, he discovered evidence that

the National Security Agency was gathering domestic

intelligence illegally without going through the Foreign

Intelligence Surveillance Court for warrants. At first,

Tamm tried to use accepted channels to address the

problem, but when superiors and others in the govern-

ment did not seem to be interested in investigating the

acts of illegal spying, he met with Eric Lichtblau, a New

York Times reporter. The explosive story of illegal do-

mestic spying won Lichtblau a Pulitzer Prize, raised the

important question of the extent of presidential power,

spurred Congress to change the Foreign Intelligence

Surveillance Act to retroactively make the wiretapping

legal so that the acts of the president would not be at-

tacked as illegal, and left Tamm with a federal indict-

ment over his head for divulging national secrets.

Tamm had been subject to increasing depression

and anxiety after leaking the story and eventually re-

signed from the Department of Justice under a cloud

of suspicion in 2006. When he became the target of the

investigation, he was pressured to plead guilty to one

felony count of revealing classified information, but

he refused. Since then he has lived under a potential

indictment, even though those who were involved in

the illegal spying have been promised immunity for

their actions. When asked why he did it, he responded,

“I had taken an oath to uphold the Constitution.” In

2009, he received the Ridenhour Truth-Telling Prize

from the Nation Institute and Fertel Foundation (the

honor is named for Ron Ridenhour, the soldier who

was instrumental in bringing the My Lai massacre to

the public’s attention). Still, the cost of Tamm’s ac-

tion is high: he has lost his career, suffers from depres-

sion, and is over $30,000 in debt due to legal fees. Eric

Holder, the current U.S. Attorney General, has not yet

indicated whether an indictment against Tamm is

forthcoming.

W A L K I N G T H E W A L K

Source: Isikoff, 2008.

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A soldier’s dilemma is not all that different from a police offi cer’s dilemma in that both

organizations place a great emphasis on chain of command and loyalty. It is possible that

police offi cers may receive orders that they know to be illegal and/or unethical from their

fi eld training offi cer (FTO) or other supervisor. Do police offi cers or other criminal justice

professionals have a duty to substitute their personal moral judgments when presented

with an unlawful or unethical order, or is obedience to superiors mandatory? In these cir-

cumstances, one has to depend on the law rather than the chain of command. If the action

is clearly illegal, there will be no legitimate defense if the individual offi cer follows orders;

he or she is as guilty as any other offi cer who engages in the act. If the action is not against

the law but is against policy, departmental sanctions may be applied. If the action is not

against the law and not against departmental policy, it is a much grayer area as to which, if

any, ethical system would support going against one’s superior. The stronger ethical posi-

tion in this case may be to follow appropriate grievance procedures if something seems

to be wrong. As discussed in the Walking the Walk box, Thomas Tamm was faced with a

dilemma when he believed that government actors were breaking the law.

Some of the hardest decisions one will be faced with in the course of a career involve

going against superiors or colleagues. Even if the behavior is obviously illegal, it is dif-

fi cult to challenge authority. Whistleblowers are those who risk their career to expose wrongdoing in their organization. Of course, some may have purely egocentric reasons

for exposing wrongdoing, but many whistleblowers do so because their principles and

individual ethical system will not allow them to stand quiet when others in the orga-

nization are committing unethical and/or illegal acts. Box 4.1 gives some examples of

whistleblowers.

Although professionals and practitioners may get bogged down with day-to-day

problems and bureaucratic agendas may cause them to lose sight of larger goals, foremost

in their minds should always be the true scope and meaning of the power inherent in the

criminal justice system. It is people who make a justice system just or corrupt.

To protect the citizenry from misuse and abuse of power, personnel in the criminal

justice system must have a strong professional identity. There is continuing debate over

whether police offi cers can be described as professionals, and there is even more debate

over whether correctional offi cers can be described as such. These arguments miss a cen-

tral point: Whether one calls the men and women who wear these uniforms profession-

als, practitioners, or some other term, they have immense power over other people’s lives.

This power must be recognized for what it is and held as a sacred trust.

Criminal justice professionals are public servants and, as such, should aspire to a

higher standard of behavior. They have a duty to the citizenry they serve, but even more

than that, they must possess the moral and ethical sense to prevent the power inherent in

their positions from being used for tyranny. Education isn’t enough. Learning a body of

knowledge and acquiring essential skills do not give individuals the moral sense necessary

to use those skills wisely. Witness the recurring scandals involving lawyers and business

professionals. A highly educated group is not necessarily free from corruption.

Criminal justice practitioners fi nd themselves faced with a wide spectrum of ethical

choices, including:

Balancing friendship against institutional integrity—that is, when friends and col- •

leagues engage in inappropriate or illegal behavior or rule breaking

Balancing client (offender) needs against bureaucratic efficiency and institutional •

goals

Balancing personal goals or biases that confl ict with fair and impartial treatment of the •

public and the clients served.

whistleblowers Individuals, usually employees, who fi nd it impossible to live with knowledge of corruption or illegality within a government or organization and expose it, usually creating a scandal.

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Most people in the criminal justice fi eld (or, indeed, any profession) have basically

good character. However, it can be argued that in some situations even those who have

formed habits of honesty, truthfulness, and integrity are sincerely perplexed as to the

correct course of behavior. These situations arise because the behavior choice seems so

innocuous or trivial (e.g., whether to accept free coffee) or so diffi cult (e.g., a partner or

Blowing the Whistle on Wrongdoing Many people risk their careers, their livelihood, and even, in some cases, their safety by coming forward when they believe their organization and/or superiors are committing unethical or illegal acts. Often, despite whistleblower laws that protect individuals who work in governmental agencies from retaliation, the individual pays a heavy price.

Mathew Zipoli Zipoli was a police offi cer at the Lawrence Livermore National Laboratory. He contacted federal offi cials in 2001 to report safety and security lapses at the nuclear weapons facility. Although a federal investigation confi rmed Zipoli’s allegations, he was fi red by the Univer- sity of California, which ran the lab. He ultimately received a $175,000 settlement but had to give up his job and agree to a permanent ban on employment there.

Donna Trueblood Trueblood told state and federal environmental offi cials that her employer, a waste incin- eration plant, was not handling toxic chemicals correctly. Although Trueblood received a settlement that was sealed by the court, she also had to agree to a lifetime employment ban at the company.

Coleen Rowley Rowley, an FBI agent, wrote a widely publicized memorandum to FBI Director Robert Muel- ler, describing in detail how the agency had mishandled information concerning alleged terrorist Zacarias Moussaoui. She was named as one of the “Persons of the Year” by Time magazine in 2002, retired from the FBI in 2004, and ran an unsuccessful campaign for Con- gress in 2006.

Babak Pasdar Pasdar was a computer security analyst who discovered a mysterious “Quantico circuit” in a major telecommunications company that he was hired to review for security problems. The circuit was a transmission conduit for all information that fl owed through the company; anyone with access could peek into citizens’ phone and e-mail transmissions. He was told to leave the circuit alone, and his urgent advice that it at least should have a log to determine who accessed it resulted in his being pulled from the project.

Richard Conrad Conrad was a Navy offi cer who warned his superiors that proper repair procedures were not being followed in the Navy aviation base in San Diego. In return for his persistent reporting to his superiors that the Navy was endangering pilots by not following current procedures, he was isolated, his work duties were drastically curtailed, and he was forced to accept an early retirement. Then, after an Inspector General report, the Navy awarded Conrad a commendation.

Sources: Whistleblowers Australia, 2007. Also see the Government Accountability Project web site, www.whistleblower.org.

BOX 4.1

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http://www.whistleblower.org

9 4 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

friend wants you to cover up something she did wrong). In these instances, where basi-

cally good people have trouble deciding what to do, the ethical systems might help them

analyze their choices.

It must also be accepted that in some dilemmas there are going to be costs involved

in making the right decision. For instance, an offi cer who knows it is his duty to provide

evidence against his brother-in-law who is a major drug dealer may lose his wife’s and chil-

dren’s love. There is no assurance that doing the right thing will not come at a high cost. The

ethical person may not necessarily be honored; some have been heavily sanctioned. How-

ever, those who do not expose wrongdoing and/or go along with it in an effort not to “rock

the boat” often fi nd that their long-term peace of mind pays the price for their silence.

A V O I D I N G C Y N I C I S M A N D B U R N O U T

Two of the greatest dangers in criminal justice are cynicism and burnout. Cynical leader- ship, cynical instructors, and overwhelming evidence that we live in an imperfect world

create the all-too-common occurrence of workers who are cynical, who are burned out,

and who have abandoned the ideals that led them to the profession in the fi rst place. Cyni-

cism and burnout lead to unethical actions. As mentioned before, ethical leaders should

be able to transmit a vision and be committed to the mission of the organization, but

many administrators and managers exhibit only pessimistic cynicism over the potential

for change, the worth of humanity, and the importance of doing what is right.

How does one avoid cynicism and burnout? First, adopt realistic goals before enter- ing the profession. A police offi cer cannot expect to save the world, and a treatment pro-

fessional should not expect to fi nd success with every client. A more realistic career goal

might be a resolution to do one’s best and to always follow the law.

The second element in avoiding burnout and cynicism is to fi nd and nurture a net-

work of mentors and colleagues who promote ethical values. Cynical people are conta-

gious, and cynicism breeds rationalizations for committing unethical behavior—from

leaving work early or falsifying overtime records to violating the rights of suspects or de-

fendants. In every department that has a corruption scandal, however, there are also those

who have managed to avoid participating in such activity.

The third element is to seek self-fulfi llment and personal enrichment. This could be

by gaining higher education, reading self-help books, attending church, joining interest

clubs, participating in charitable activities, volunteering to coach community sport teams,

or becoming involved in the PTA. Note that these activities all have the element of com-

munication and interaction with others. Such activities promote connectedness with the

community at large and counteract the negativity that pervades the criminal justice fi eld.

Unfortunately, criminal justice professionals see humanity at its worst, and there is a great

need to see the best of the human spirit as well.

C O N C L U S I O N

This chapter shifted the focus from “What is ethical or moral?” to “Why do people act in

ethical or unethical ways?” More specifi cally, we are interested in any fi ndings that shed

light on how to ensure that criminal justice professionals act ethically. Philosophers, reli-

gious scholars, biologists, psychologists, sociologists, and criminologists have all tried to

explain why people do bad things. Biology, learning theory, and Kohlberg’s moral stages

were used to explain why people behave the way they do, but it was also noted that re-

search fi nds that people’s beliefs sometimes do not match their behavior.

burnout The condition in which a worker has abandoned the mission of the organization and is just “going through the motions.”

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C H A P T E R 4 | B e c o m i n g a n E t h i c a l P ro fe s s i o n a l 9 5

We then turned to issues concerning ethics teaching and training. Research indicates

that one’s moral beliefs can mature given certain environmental elements, although, as

noted, we have weaker evidence that these beliefs will affect behavior. This leaves a large

question for organizations as to how best to ensure ethical behavior by professionals and

other employees in the organization. It seems clear that training alone is not suffi cient and

must be combined with ethical leadership.

Ethical leadership is absolutely essential for the ethical organization. Ethical leaders

owe a duty to their employees to take responsibility for their own behavior and to create an

environment conducive to employees acting ethically, which includes open communica-

tion and the use of fair and appropriate discipline.

How criminal justice professionals perform their job determines whether justice is a

reality or an illusion. The greatest protection against corruption of power is a belief in and

commitment to the democratic process and all it entails. If one desires a career in criminal

justice, one must ask these questions:

Do I believe in the Constitution?

Do I believe in the Bill of Rights?

Do I truly believe in the sanctity and natural right of due process?

If one views these protections as impediments, nuisances, or irrelevant, that person should

not be a public servant. In the chapters to follow, we examine in greater detail the issues

that criminal justice professionals face.

C H A P T E R R E V I E W

1. Be able to describe the three major theories (and theorists) that attempt to explain

behavior.

Biological theories propose that we commit good or bad acts because of biological pre-

dispositions, which may be inherited or not. Learning theory argues that our behavior is

based on the rewards we have received in our past. Albert Bandura’s more sophisticated

social learning theory presents the individual as an active participant in adapting and in-

terpreting the rewards of his or her environment. Lawrence Kohlberg’s moral stage the-

ory explains that people’s behavior is infl uenced by the intellectual and emotional stage

of development, and that one reaches or does not reach higher stages of development

based on environmental factors. Kohlberg’s theory proposes a hierarchy of moral stages,

with the highest stage holding the most perfect moral principles, which are universalistic.

Carol Gilligan found that women were more likely to have a Stage 3 relationship orienta-

tion to ethical judgments, while men were more likely to have a Stage 4 “law and order”

orientation.

2. Become familiar with Bandura’s idea of self-regulation and how it can be “turned off.”

Bandura explained that individuals behaved ethically through self-regulatory mechanisms

(conscience), but that these mechanisms could be “turned off ” through cognitive restruc-

turing using the following: moral justifi cation (appealing to higher principles), euphemis-

tic labeling (downplaying the seriousness of the act), making comparisons (arguing it isn’t

as bad as something else), displacing responsibility (arguing someone else is at fault), dif-

fusion of responsibility (by acting in a mob), disregarding the consequences (acting in

such a way to ignore the effect of one’s action), and dehumanization (pretending one’s

victims are less than human).

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9 6 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

3. Describe what is necessary for moral growth according to Kohlberg.

According to Kohlberg, the following are necessary for moral growth: being in a situation

where seeing things from other points of view is encouraged; engaging in logical think-

ing; having the responsibility to make moral decisions and to infl uence one’s moral world;

being exposed to moral controversy and to confl ict in moral reasoning that challenges

the structure of one’s present stage; being exposed to the reasoning of individuals whose

thinking is one stage higher than one’s own; participating in creating and maintaining a

just community whose members pursue common goals and resolve confl ict in accordance

with the ideals of mutual respect and fairness.

4. Be familiar with the necessary elements for criminal justice ethics courses according to

Sherman.

Sherman believed that the following should be present in criminal justice ethics courses:

stimulating the “moral imagination” by posing diffi cult moral dilemmas; encouraging

the recognition of ethical issues; helping to develop analytical skills and the tools of

ethical analysis; eliciting a sense of moral obligation and personal responsibility; tolerat-

ing and resisting disagreement and ambiguity; understanding the morality of coercion;

integrating technical and moral competence, especially recognizing the difference be-

tween what we are capable of doing and what we should do; becoming familiar with the

full range of moral issues in criminology and criminal justice in the study of criminal

justice ethics.

5. Become familiar with what steps organizational leaders should take to encourage ethi-

cal decision making on the part of employees.

According to Sam Souryal and other authors, leaders should create an environment that

treats employees with dignity and respect, set realistic goals, increase ethical awareness

through training and having a formal written code, avoid deception, allow for openness

and transparency, foster a sense of shared values, present an example of honesty and fair-

ness, and expose corrupt behavior (and provide a whistleblowing mechanism) and reward

ethical behavior.

K E Y T E R M S burnout

cognitive dissonance

developmental theories

Kohlberg’s moral stages

modeling

recognition tests

reinforcement

self-effi cacy

whistleblowers

S T U D Y Q U E S T I O N S

1. Briefl y explain how biological approaches might explain antisocial behavior. What are

some differences between males and females noted by biological researchers? Explain

modeling and reinforcement.

2. Explain Kohlberg’s moral development theory. What problems do critics have with his

theory? How does Carol Gilligan disagree with Kohlberg’s stage theory?

3. What necessary elements did Sherman identify for teaching ethics in criminal justice?

4. What are some standards that can be applied to good leadership? What advice do

Souryal and Metz offer to those who desire to be good leaders?

5. How does one avoid cynicism and burnout?

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C H A P T E R 4 | B e c o m i n g a n E t h i c a l P ro fe s s i o n a l 9 7

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Develop an essay on (or discuss) the development of morality. Who has been the

greatest infl uence on your moral development? Why? How? Why do you think people

behave in ways that hurt other people? Have you ever done something you knew to be

wrong? Why did you do it?

2. Develop an essay on (or discuss) the relationships between morality, moral/ethical

teaching, and criminality. Do thieves have the same moral beliefs as others? Do they

know that stealing is wrong? Can we successfully predict which individuals will per-

form unethical or immoral actions?

3. Develop an essay on (or discuss) what an ideal ethical organization would be. What

would be the characteristics of leadership? Training? Employees? How does one create

such an organization as a change agent if the existing organization is rife with corruption?

E T H I C A L D I L E M M A S

Situation 1

You are a prosecutor trying your fi rst case. You are thrilled with how well it is going. Every

objection you make is upheld, and every objection the defense makes is overruled. The

judge shakes her head affi rmatively every time you make a point and scowls and makes

disparaging comments about and to the defense attorney. As the trial proceeds, you begin

to see that it is going so well not because of your legal expertise, but rather, because the

judge is obviously and seriously biased against the defense. You do not know if she simply

does not like the defense attorney or if she does this in all the trials, but you do know that

she is making it extremely diffi cult for the jury to ignore her and, thus, is violating the due

process rights of the accused. Should you be grateful for your good luck and accept an easy

conviction or make a stand against the judge’s actions?

Situation 2

You are a police offi cer assigned to the juvenile division. For the most part, you enjoy your

job and believe that you have sometimes even made a difference when the juvenile has

listened to you and stayed out of trouble (at least as far as you knew). One day you are told

repeatedly by your captain to pick up a juvenile, even though you don’t think there is any

probable cause to do so. This is the third time you have been ordered to pick him up and

bring him into the station. You discover that the detectives are trying to get the juvenile to

become an informant because he is related to a suspected drug dealer. Should you partici-

pate in the attempt to intimidate him or refuse to do so?

Situation 3

Your partner has been on the force 25 years, and you value her opinion greatly. However,

you have noticed that she has become progressively more lethargic and unenthusiastic

about the job. When dispatch asks for available cars, she won’t let you respond. When you

see accidents on the highway, she instructs you to go around the block so that you won’t

have to stop. Even when you receive calls, she tells you to advise dispatch that you are oth-

erwise occupied. You believe that she has become burned out and isn’t performing up to

the standard that you know she is capable of. What, if anything, would you do about it?

Situation 4

You are a rookie police offi cer and are riding with a fi eld training offi cer (FTO). During

your shift, the FTO stops at a convenience store and quickly drinks four beers in the back

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9 8 P A R T I | E t h i c s a n d t h e C r i m i n a l Ju s t i c e S y s t e m

room of the store. He is visibly affected by the beers, and the smell of alcohol is notice-

able. What should you do? What if the FTO had just written a favorable evaluation of you

even though you should have received a reprimand for an improper disposition of a traffi c

accident?

Situation 5

You are a senior getting close to graduation and are taking too many classes during your

last semester. You fi nd yourself getting behind in class and not doing well on tests. One of

the classes requires a 30-page term paper, and you simply do not have the time to com-

plete the paper by the due date. While you are on the Internet one day, you see that term

papers can be purchased on any topic. You ordinarily would do your own work, but the

time pressure of this last semester is such that you see no other way. Do you purchase the

paper and turn it in as your own?

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P A R T I IP A R T I I

Police

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S 50 R 51

1st Pass Pages

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• 101 •

C h a p t e r O b j e c t i v e s

1. Describe the two different missions of law enforcement in a democracy.

2. Explain the types of control that police have at their disposal.

3. Provide the justifi cation for police power and the basic ethical standards that derive from this justifi cation.

4. Identify the differences between the formal ethics of law enforcement and the values of the police

subculture.

5. Describe recent research fi ndings on the police subculture.

It began as a typical drug investigation. It ended in the death of an elderly woman and

prison sentences for the offi cers involved. In 2006, offi cers received a tip from an infor-

mant that drugs were being sold out of a house. Instead of following protocol by sending

in an informant to buy drugs and confi rm the tip, they fi led an affi davit for a no-knock

search warrant, falsely stating that they had done so. When the raid team burst into her

home, the startled 92-year-old woman believed she was under attack and shot at the po-

lice offi cers. She was killed in a hail of bullets. When the offi cers did not fi nd any drugs

in her house and realized the depth of their mistake, they planted marijuana and heroin

and falsely claimed they found the drugs to justify the raid. They also forced one of their

informants to lie about buying drugs from the woman at her house, in an effort to cover up

the tragic error.

Two of the three officers eventually confessed and pleaded guilty to involuntary

manslaughter. The lead offi cer, Gregg Junnier, received a six-year sentence. Their ser-

geant pleaded guilty in 2009 to federal charges of violating the dead woman’s civil rights,

for knowingly allowing the perjured affi davit to be submitted to the court, and received

18 months in a federal prison. After the scandal erupted, the district attorney expressed

his distrust of offi cer testimony and initiated a wide-ranging review of criminal cases

where offi cers might have employed similar tactics (Dewan and Goodman, 2007: A18;

Visser, 2009).

The Police Role in Society

5 M

ik a e l

K a rl

ss o

n /

A la

m y

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1 0 2 P A R T I I | Po l i c e

This case is a cautionary tale for offi cers who may be tempted to take shortcuts in their

mission of crime fi ghting. In some people’s minds, perhaps, the offi cers were caught up in

a “war” and Kathryn Johnston, the woman killed, might be considered collateral damage

in that war. In another view, however, the offi cers forgot their mission of public service and

ignored the premise that allegiance to the law is more important than catching lawbreakers.

Crime Fighter or Public Servant? In Chapters 5, 6, and 7, we will discuss ethics as it relates to policing in the United States. In

this chapter, we begin with some overarching issues that relate to the profession itself; spe-

cifi cally, we explore the role of law enforcement in a democracy, the extent of police offi cer

discretion, and the manner in which police discretion is guided and controlled by formal

ethics and the police occupational subculture. Chapter 6 presents and explores several

controversial issues in law enforcement and how these issues translate into dilemmas for

individual offi cers. In Chapter 7, the parameters and prevalence of police corruption and

misconduct are described, along with measures that have been suggested to reduce them.

As we discuss issues of law enforcement ethics in these chapters, we must keep in

mind that the majority of offi cers are honest and ethical. We focus on the few offi cers who

abuse their position or forget their mission; however, this in no way should be taken as a

criticism of the thousands upon thousands of offi cers who do good work, every day, in

every city in the country. In order to understand the few deviant offi cers, we must focus on

their actions and the elements of the profession that open the door to such behaviors.

Harsh scrutiny is often directed at police actions, and offi cers think they are treated

unfairly by the public and the media. However, there is an important reason for such

scrutiny. The police represent the “thin blue line” between disorder and order, between

the “war of all against all” and lawful order. No other criminal justice professional comes

under as much constant and public scrutiny—but no other criminal justice professional

wields as much discretion in so many situations. The scrutiny is understandable when

one realizes that the police are power personifi ed. They have the choice to arrest or not

to arrest, to mediate or to charge, and in decisions to use deadly force, they even hold the

power of life and death.

We will approach these chapters with an underlying premise that what drives individual

decisions on the part of law enforcement offi cers and society’s reactions to them are derived

from a perception of the law enforcement mission. Two different missions—crime fi ghting and

public service—can be identifi ed as having quite different implications for decision making. We

do not, of course, mean to say that these missions are necessarily contradictory or exclusive;

however, it is important to note the history and present-day infl uence of these different roles.

C R I M E F I G H T E R

When one asks most people what the role of policing is in society, the response is some

version of “catch criminals” or “fi ght crime.” If one views police as crime control agents,

these presumptions may follow:

Criminals are the enemy, and fundamentally different from good people. •

Police are the “army” that fi ghts the enemy, using any means necessary to control, •

capture, and punish them.

Good people accept and understand that police are in a “war” and must be allowed •

deference in their decision making because they—not us—are the experts and only

they know the enemy.

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C H A P T E R 5 | T h e Po l i c e Ro l e i n S o c i e t y 1 0 3

This model is obviously based on Herbert Packer’s (1968) crime control model (which he

contrasted with the due process model discussed below). According to Packer, the crime

control model operates under the following principles:

1. Repression of criminal conduct is the most important function.

2. Failure of law enforcement means the breakdown of order.

3. Criminal process is the positive guarantor of social freedom.

4. Effi ciency is a top priority.

5. Emphasis is on speed and fi nality.

6. A conveyor belt is the model for the system.

7. There is a presumption of guilt.

Police perception of their role as crime fi ghters will lead to certain decisions in their

use of force, their defi nition of duty, and their use of deception and coercion. Public per-

ception of the police mission as primarily crime fi ghting leads to a willingness to accept

certain defi nitions and justifi cations of behavior: that drug addicts are crazed, that individ-

uals who are beaten must have deserved it, that all defendants must be guilty, and so on.

Typically, members of the public who have a crime control outlook show outrage only

when police accidentally violate the rights of the “good” guys instead of the “bad” guys:

when the victim of deadly force turns out to be a middle-class insurance agent, when the

evening news shows police offi cers hitting someone who doesn’t look like a criminal, or

when an innocent person is exonerated. In most cases, police actions are rationalized or

excused by the belief that people “get what they deserve.”

P U B L I C S E R V A N T

If one views police as public servants, other presumptions follow:

Criminals are not a distinct group; they shop, pay taxes, have kids and parents, and •

often are one’s next-door neighbor.

Police have limited ability to affect crime rates one way or the other because crime is a •

complex social phenomenon, and the history of law enforcement originates in order

maintenance, not crime control.

Police as public servants serve • all people, including criminals, and therefore should

not make quick judgments about an individual’s worthiness to receive their services.

Under Packer’s (1968) due process model, the following principles stand out in con-

trast to those described above as representing the crime control model:

1. There is a possibility of error.

2. Finality is not a priority.

3. There is insistence on prevention and elimination of mistakes.

4. Effi ciency is rejected if it involves shortcuts.

5. Protection of process is as important as protection of innocents.

6. The coercive power of the state is always subject to abuse.

Packer’s original model of due process is somewhat different from our description of

the public service mission because, rather than just an emphasis on rights, law enforce-

ment is perceived as “owned” by all people, so service is foremost. Police must respond

to all constituencies, including groups that may be less supportive of the police than

public servants Professionals who are paid by the public and whose jobs entail pursuing the public good.

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1 0 4 P A R T I I | Po l i c e

white middle-class communities. It is an enlarged view of the police offi cer role in society.

Rather than simply catching criminals, offi cers are perceived to be peace keepers and ser-

vice providers.

A perception of the police offi cer as public servant implies a much more restrictive

view of the use of force and police power. The utilitarian idea that the “end” (crime con-

trol) justifi es almost any “means” is rejected in favor of an approach that is more protec-

tive of due process and equal protection. Anthony Bouza, as described in the Walking

the Walk box, might be seen as refl ecting these concepts of allegiance to public service.

Note his perception that he owed loyalty to the public he served, even over loyalty to his

fellow police offi cers. In the public service mission, law enforcement, above all, protects

the rights of every citizen and—only in this way—escapes the taint of its historical role as

a tool of oppression for the powerful. These two models are better understood if we take a

brief look at the history of law enforcement in the United States.

H I S T O R Y O F P O L I C I N G : F R O M P U B L I C

S E R V A N T T O C R I M E F I G H T E R

Kappeler, Sluder, and Alpert (1984/1994) have discussed the early origins of law enforce-

ment as a model of service. Police were involved in social service activities: they ran soup

kitchens, provided lodging for indigents, and spurred moral reform movements against

cigarettes and alcohol. Of course, early law enforcement personnel were also involved in

social control and employed utilitarian violence—that is, they acted as the force for power

holders in society and were union busters and political-machine enforcers. Such force was

frequently used against immigrants, labor organizers, and the poor (Alpert and Dunham,

2004; Harris, 2005). Researchers note that early law enforcement even used undercover agent provocateurs in the 1800s, placing them in anarchist groups to incite violence to jus-

tify using offi cial violence against them. Two incidents of this are the 1874 Tompkins Square

riot, where 7,000 were injured, and the Haymarket incident in 1886 (Donner, 1992: 13).

Anthony Bouza, a Spanish immigrant, entered police

work for economic security. He obtained a bachelor’s

degree and a master’s degree during 12 years of night

school in New York while working as a police offi cer in

the Bronx. He initiated early police–community contacts

that predated community policing and was a vocal critic

of social inequality.

In 1976, he quit before he was fi red after making some

ill-advised comments that the middle and upper class

only wanted the police to make the problems of the lower

class invisible. He was asked to be chief of police in Min-

neapolis, where he continued to make waves. During the

1980s, his offi cers sometimes arrested his wife, an activist

who was an ardent opponent of the military. He butted

heads frequently with the city council, but his most vocal

opponents were his offi cers, who did not like his position,

expressed frequently to the media, that he owed his loy-

alty to the citizens of Minneapolis, not his fellow police

offi cers. He voluntarily stepped down in 1989 and went

on to run unsuccessfully for governor of Minnesota.

Bouza is not a perfect man. He may be described

as “full of himself.” He may be criticized for having a

fl ip and indiscreet tongue. But one thing that most peo-

ple, even his critics, will admit is that he acts as he be-

lieves, and he believes in the values of public service

and integrity.

W A L K I N G T H E W A L K

Source: Bouza, 2001.

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Early police departments also were marred by frequent graft and other forms of cor-

ruption. Crank (2003), for instance, discusses how police were involved in local political

machines. They stuffed ballot boxes and coerced votes. Their graft was widely tolerated

because of their meager salaries. Donner (1992: 62) called this the “dialectic of the bar-

gain,” referring to police pursuing and harassing dissenter groups in exchange for the

power holders’ toleration of police corruption.

The move toward police “professionalism,” starting in the 1920s, was spurred by sev-

eral factors, one of which was to improve the image of police as objective enforcers of the

law rather than enforcers for whomever happened to be in power. In effect, there was a real

or perceived shift of police loyalty from political bosses to the law itself (Kappeler et al.,

1994: 49; Fogelson, 1977). Part of this transformation involved the idea that police were

crime fi ghters—professional soldiers in the war on crime—a concept that implies objec-

tivity, professional expertise, and specialized training. This role deemphasized the social

service role and ultimately led to policing characterized by detachment from the commu-

nity being policed instead of integration in that community. In this new role, police were

proactive rather than simply reactive to public demands (Payne, 2002; Crank and Caldero,

2000/2005).

Even though the professional crime fi ghter role of the police offi cer has been well es-

tablished for more than 70 years, we can see remnants of the legacy of both the early politi-

cal enforcer role and the public service role. Some continue to see the police as enforcers

for those who hold fi nancial and political power and point to their continuing role in inves-

tigating and monitoring dissident groups. The so-called “Red Squads” in some police de-

partments infi ltrated and spied on organizations believed to be sympathetic to socialism

from the 1930s to the 1960s (Donner, 1992). Then, in the 1960s and 1970s, police turned

their attention to antiwar groups and others that expressed opposition to the government.

At one point the Chicago police department had fi les on 117,000 individuals and 14,000

organizations (Donner, 1992: 92). In fact, these activities were what led to more stringent

wiretapping laws and legal decisions that ruled such activities improper infringements on

citizens’ privacy rights (Donner, 1992: 103).

In 2004, New York City police were widely criticized for mass arrests of those who

wanted to protest in front of the Republican National Convention. Although 1,800 were

arrested and held in makeshift detention facilities until the convention was over, 90 per-

cent of the arrests led to dismissals. Critics argue that police utilized their power not for

the enforcement of the law, but rather, to restrain the freedom to exercise political beliefs

(Dwyer, 2005). In May 2007, LAPD offi cers used rubber bullets and batons against what

was described as a peaceful demonstration in support of illegal immigrants in MacArthur

Park. Although the police resort to force was prompted by the actions of the demonstra-

tors, Chief William Bratton ended up sanctioning the commanders in charge that day,

indicating that the police use of force was inappropriate and against policy, if not illegal

(Steptoe, 2007). The point is, to some people, police continue to be the enforcers for those

who are in power against those who have none.

In other countries, this perception of police as “muscle” for the power holders is pres-

ent as well, in greater or lesser degrees. Although British police are widely respected as

professional and measured in their use of force, London police are engaged in an ongoing

scandal due to an alleged illegal use of force during their suppression of demonstrators

during a G20 meeting in 2009 (Edwards and Smith, 2009). In other countries, the image

of police as corrupt and in league with the powerful is much more pronounced. For in-

stance, in the fall of 2009, Alexey Dymovsky, a Russian police offi cer, posted a YouTube

video alleging rampant corruption, including being told to make false arrests. The video

resulted in Major Dymovsky’s arrest, but also spurred other offi cers to make their own

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1 0 6 P A R T I I | Po l i c e

videos. They echoed the widespread belief that police in Russia often do the bidding of

corrupt politicians and businessmen, including arresting rivals on trumped-up charges

and intimidating labor organizers. Police have even been implicated in the unsolved mur-

ders of crusading journalist Anna Politkovskaya, human rights lawyer Stanislav Markelov,

and journalist Anastasia Baburova. Wendle (2009) points out that a new code of conduct

has been established and circulated to all police in Russia. Rashid Nurgaliyev, head of the

Ministry of Internal Affairs, was quoted as saying that the moral education of offi cers was

far from ideal. Russian President Dmitry Medvedev has called police corruption a threat

to national security and, indeed, it can be said that when 40 percent of a nation’s popula-

tion don’t trust the police and almost a quarter say they are afraid of them, there is a threat

of political destabilization (Schreck, 2009).

Military officials indicate that one of the challenges in Afghanistan is that police

(along with government offi cials) are so corrupt that the people do not trust them to pro-

vide order or enforce the law and, therefore, turn to the Taliban for protection. Evidently,

police are known to steal truckloads of gasoline; and judges, prosecutors, and police rou-

tinely solicit and/or accept bribes. Although the United States has sent more trainers to

help police become more professional, the culture of corruption is so pervasive that it is

almost impossible to overcome (Oppel, 2009). It is not an overstatement to say that a

nation’s police force is part of the foundation of a secure government. When police act

as the enforcers for a small group of the powerful, or utilize their position purely for self-

interest, rather than act as agents of the law, there is no law and the very stability of the

country is at risk.

The other historical role of police is that of public service. The early role of social

service has been resurrected in the community policing movement, which involves hav- ing offi cers develop closer relationships with community leaders to help them solve some

of the social problems that are believed to be associated with the development of disor-

der and lead to crime. Police offi cers may be involved in cleaning up parks, getting the

city to raze abandoned houses, cleaning up graffi ti, helping to start youth programs, and

having community meetings to listen to what citizens think are the problems of the com-

munity (National Institute of Justice, 1992: 3). Patrol offi cers’ resistance to community

policing models may make sense if one views neighborhood policing as trading in the

“crime fi ghter” role for a much less esteemed “social worker” role. However, even those

who resisted the community policing model admitted that the role of law enforcement has

always included community relations and community service—what some have called

“order maintenance.”

Schafer (2002) argues that community policing is not a panacea for problems related

to police misconduct. He offers some potential issues for community policing strategies

as they relate to corruption. Gratuities may be more of an issue for offi cers who are ex-

pected to create and maintain close ties to the community. Gratuities then may create the

slippery-slope slide into more serious forms of misconduct. Offi cers may be exposed to

wider corruption among city employees, such as building inspectors, and, by such ex-

posure, have a harder time withstanding minor transgressions themselves. In addition to

those issues, close relationships with the community blur the lines so that lawbreakers

may become friends, and the police offi cer’s discretion regarding when to enforce the law

is compromised by personal relationships. Finally, increased freedom and autonomy and

decreased supervision provide more opportunities for misconduct. On a positive note,

Schafer observes that because community policing seems to lessen cynicism and burnout

and reduces the anonymity of individual police offi cers, it may act as an insulator against

misconduct. Further, because offi cers share a closer relationship with community mem-

bers, the possibility of brutality may be decreased.

community policing A model of law enforcement that creates partnerships with the community and addresses underlying problems rather than simply enforcing the law.

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F U T U R E O F P O L I C I N G : T H E E N D O F

C O M M U N I T Y P O L I C I N G ?

While some aspects of the community policing approach have been institutionalized,

observers note that 9/11 has led to a retrenchment in policing and a return to more tra-

ditional crime fi ghting elements (Murray, 2005; Brown, 2007). Because one might argue

that aspects of the police culture never fully fi t with the community policing approach, it

is not hard to understand why the threat of terrorism might have derailed the success and

acceptance of community policing. Problem-solving policing and zero tolerance for com-

munity disorder seem to have remained as current elements of law enforcement manage-

ment; however, community–police partnerships and police as troubleshooters for purely

social problems may be a trend that has come and gone.

Harris (2005) echoes much of this discussion in his description of how 9/11 has

led to sweeping reforms that have changed the face of federal law enforcement and

influenced change in state and local law enforcement as well. He makes an analogy

between the current shift in focus of the law enforcement mission to what occurred

in the 1960s and 1970s when law enforcement became involved in counterintelligence

and control efforts against war demonstrators. Today, there is pressure for local law

enforcement to involve itself in immigration control and counter-terrorism efforts.

Harris documents the opposition (including from local police administrators) to

such demands immediately after 9/11 (2005: 7) and, generally, discusses how such

efforts damage the trust and communication between the community and the police

department. He promotes the view that the centralized, top-down, “crime control”

approach is counterproductive in meeting the challenges of the 21st century and that

what law enforcement should do is improve communication and trust between the

police and the community. This focus was the hallmark of community policing; in

fact, he presents what he calls a “preventive policing” model, which includes the con-

cepts of community policing, problem-oriented policing, and accountability mecha-

nisms (2005: 24).

QUOTE && QUERY Departments must evolve from the simplistic view of their mission as “locking

up the bad guys” to one in which police departments make communities safe in

collaboration with those they serve.

—SOURCE: HARRIS, 2005, P. 14.

? Why do you think Harris does not endorse the “crime fi ghter” role of the police? It is important to understand that both the crime fi ghter role and the public servant

role have the potential and capacity for wrongdoing. The professional crime fi ghter may

trample rights in the interest of effi ciency in catching criminals, and community police

offi cers may be too eager to do the bidding of community members in controlling those

who upset the “order” of the community (for example, by over-enforcement of noise or-

dinances or loitering laws). The point cannot be overemphasized that police offi cers have

powers unlike any other group. In the next section, we examine police power more care-

fully, but before we do, the Policy Box examines one particular example of how the per-

ceived mission affects police policy.

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Power and Discretion Klockars (1984) describes police control as consisting of the following elements: authority,

power, persuasion, and force. Authority is the unquestionable entitlement to be obeyed that comes from fulfi lling a specifi c role. Neither persuasion nor force is needed to achieve

domination when one possesses authority. Police offi cers are usually obeyed simply when

they tell a citizen to do something. We do what they tell us because of their uniform.

A teacher has this type of authority in the classroom, and parents have authority over their

own children (but not over other people’s children).

Power is similar to authority in that it is inherent in the role and the individual merely draws upon it, but it is different from authority in that power implies that there might be

resistance to overcome. It also implies that if there is resistance, it will be crushed. Power

is the means to achieve domination. The baton, the handcuffs, and the power of arrest

symbolize police power.

Persuasion may also be used in response to resistance, but seeks to overcome it “by mobilizing signs, symbols, words, and arguments that induce in the mind of the person

authority Unquestionable entitlement to be obeyed that comes from fulfi lling a specifi c role.

power The right inherent in a role to use any means to overcome resistance.

persuasion The use of signs, symbols, words, and arguments to induce compliance.

There is widespread public opinion condemning racial profi l- ing, and departmental policies have seen some changes over the last several years in their endorsement of such practices.

Law Many states now have laws mandating that police collect demographic information on stops. Case law is somewhat contradictory, but it seems clear that the courts will not al- low police stops based solely on race, although race can be one element that makes up reasonable suspicion. Searches must be based on probable cause unless consent is given. Border searches (including airports and port entries to the United States) are different, with different legal parameters. In effect, border agents do not need any level of suspicion to search or require identifi cation. Note that a recent Arizona law now requires officers (anywhere in the state, not just near the border) to inquire about one’s immigration status if there is reasonable suspicion that the person is here illegally. Critics contend that this law will lead to profi ling of Latinos even though the law explicitly states that there must be some cause other than ethnicity to justify the questions. Attorney General Eric Holder has indicated that he will legally challenge the law as usurping federal authority. Recent polls indicate a majority of Americans favor this type of law and many states evidently plan to pass similar laws.

Policy After federal and public scrutiny, most police departments created formal policies that discourage and/or prohibit stops

based solely on race. However, informal policies in depart- ments must still support such stops, as recent studies con- tinue to show disproportionate stops of minorities. But it seems to be the case that such policies vary by city; thus, de- partments must have either formal or informal policies that support such stops. Cities that have policies that encourage close ties to the community would probably not also have policies that encourage racially based stops since they tend to hamper creating good will with community members. Departments that emphasize the crime control mission may endorse such stops.

Ethics An offi cer has a duty to prevent crime. If he or she feels that an individual is very likely a criminal, based on race, then formal policies are going to confl ict with personal ethics and the perception of duty. Some argue that police offi cers’ infor- mal decisions to stop will not change until they are educated as to the evidence that stops and searches of blacks are less likely to result in a discovery of contraband than stops based on more sophisticated, behavioral-based criteria. As long as police offi cers believe that racial profi ling is effective polic- ing, formal policies that prohibit it will be contrary to their individual ethics and perception of duty (as a crime fi ghter). If, on the other hand, the police offi cer emphasizes a public service mission, then such stops would be seen as infring- ing on the individuals’ rights in an unacceptable way unless there is stronger evidence to stop.

Racial Profi lingPOLICY ISSUES

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persuaded the belief that he or she ought to comply” (Klockars, 1984: 530), and may even

involve the use of deception to gain compliance. Although those who have power don’t

have to use persuasion, they often do, to avoid the use of force.

Force is different from the previous three means of control in that it is physical, whereas the other three are exercised through mental domination and control. When force

is used, “the will of the person coerced is irrelevant” (Klockars, 1984: 532). Police show

their ability to use force when they use their arrest power, or when they physically restrain

and subdue an individual. Force is ultimately behind every position of authority.

Any police offi cer at any time might have the need or opportunity to exercise one of

these four different types of domination, from unquestioned authority to physical force.

Why does law enforcement have the right to employ these types of control? “We give it to

them” is the easy answer. Police power is a governmental right invested in federal, state,

and local law enforcement agencies. It means that these organizations, unlike almost any

other except perhaps the military, have the right to control citizens’ movements to the

point of using physical and even deadly force to do so.

Cohen and Feldberg (1991) developed a careful analysis of, and justifi cation for, po-

lice power and proposed that it stems from the social contract. Thomas Hobbes (1588– 1679) and John Locke (1632–1704) created the concept of the social contract to explain

why people have given up liberties in civilized societies. According to this theory, each

citizen gives up complete liberty in return for societal protection against others. Complete

freedom is given up in return for guaranteed protection. Police power is part of this quid

pro quo: we give the police these powers in order to protect us, but we also recognize that

their power can be used against us.

This general idea has corollary principles. First, each of us should be able to feel pro-

tected. If not, we are not gaining anything from the social contract and may decide to

renegotiate the contract by regaining some of the liberties given up. For instance, vigilante

movements arise when the populace thinks that formal agents of social control do not pro-

tect them, and isolationist groups “opt out” of most traditional societal controls because

they believe that they can create a better society.

Second, because the deprivations of freedoms are limited to those necessary to ensure

protection against others, police power should be circumscribed to the minimum necessary

to meet the goals of protection. If police exceed this threshold, the public rightly objects.

Third, police ethics are inextricably linked to their purpose. If the social contract is

the basis of their power, it is also the basis of their ethics. Cohen and Feldberg (1991) pro-

pose fi ve ethical standards that can be derived from the social contract:

Fair access •

Public trust •

Safety and security •

Teamwork •

Objectivity •

Delattre (1989b) approaches police authority and power from a slightly different point

of view. He asserts that police, as public servants, need those qualities that one desires in

any public servant. He quotes James Madison, who stated that essential to any public ser-

vant are these characteristics: wisdom, good character, balanced perception, and integrity.

Only if the person entrusted with public power has these qualities can we be assured

that there will be no abuse of such authority and power: “Granting authority without expect-

ing public servants to live up to it would be unfair to everyone they are expected to serve”

(Delattre, 1989b: 79). In this proposition, the right to authority lies in the character of the

force The authority to use physical coercion to overcome the will of the individual.

social contract The concept developed by Hobbes, Rousseau, and Locke in which the state of nature is a “war of all against all” and, thus, individuals give up their liberty to aggress against others in return for safety. The contract is between society, which promises protection, and the individual, who promises to abide by laws.

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1 1 0 P A R T I I | Po l i c e

person. If one has those virtues necessary to be a public servant, one has the right to use the

authority invested in the role; if one does not have those virtues, one should not be in that

position to begin with. It would be nice if we could be sure that every police offi cer hired has

the qualities of wisdom, good character, and integrity; unfortunately, that is probably not

the case. Therefore, we must take a closer look at the way offi cers utilize their discretion.

D I S C R E T I O N A N D D U T Y

Discretion can be defi ned as having the authority to choose between two or more courses of behavior. Law enforcement professionals have a great deal of discretion regarding if

and when to use their authority, power, persuasion, or force—more specifi cally, when to

enforce a law, how to enforce it, how to handle disputes, when to use force, and so on.

Every day is fi lled with decisions—some minor, some major. Discretion allows offi cers to

choose different courses of action, depending on how they perceive their duty. Duty can be defi ned as the responsibilities that are attached to a specifi c role. In the case of police

offi cers, myriad duties are attached to their role; however, there is a great deal of individual

variation in how offi cers perceive their duty.

Patrol offi cers are the most visible members of the police force and have a duty to

patrol, monitor, and intervene in matters of crime, confl ict, accident, and welfare. Patrol

offi cers possess a great deal of discretion in defi ning criminal behavior and deciding what

to do about it. When police stop people for minor traffi c violations, they can write tickets

or give warnings. When they pick up teenagers for drinking or other delinquent acts, they

can bring in the teens for formal processing or take them home. After stopping a fi ght on

the street, they can arrest both parties or allow the combatants to work out their problems.

In many day-to-day decisions, police hold a great deal of decision-making power over

people’s lives because of their power to decide when to enforce the law. Studies indicate

that police do not arrest in a large number of cases where they legally could. For instance,

Terrill and Paoline (2007) found that offi cers in their sample made arrests in less than a

third of the cases. The decision to arrest was infl uenced by seriousness of the offense, the

city (there were two cities in their sample), whether they were responding to a citizen call

for service, suspect resistance, suspect disrespect, and suspect intoxication (2007: 319).

What is clear from many studies focused on police discretion is that police do not arrest,

nor do they ticket, in every case where they have a legal right to do so.

Discretion also comes into play when the offi cer is faced with situations that have no

good solutions. Many offi cers agonize over family disturbance calls where there are alle-

gations of abuse, or when one family member wants the police to remove another family

member. Other calls involve elderly persons who want police to do something about the

“hoodlums” in the neighborhood, homeless people with young children who are turned

away from full shelters, and victims of crime who are left without sufficient resources

with which to survive. A very problematic call is when family members call concerned

over a mentally ill person. In these cases, offi cers often face extremely diffi cult decisions

over whether to arrest or not, and/or the use of force (Wells and Schafer, 2006; Finn and

Stalens, 2002). These types of “messy” social service calls are probably much more com-

mon than the exciting crime control calls that characterize cop shows on television. In

many cases, there are no good solutions to the misery and problems of the citizenry. In

response to each of these calls, offi cers must decide what course of action to take or can

sometimes decide to do nothing at all because they do not perceive it as a crime problem.

Police offi cers perceive their duty in different ways. Offi cers may respond to a domes-

tic dispute and fi nd a wife who is not seriously injured, but is bruised, upset, and without

discretion The authority to make a decision between two or more choices.

duty Required behavior or action— i.e., the responsibilities attached to a specifi c role.

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money or resources to help herself or her children. One offi cer may ascertain that depart-

mental policy or law does not dictate any action and that the woman is afraid to press

charges, so the offi cer can leave with a clear conscience that offi cial duties have been com-

pleted. However, another offi cer might take the woman to a shelter, drive her to a relative’s

home, or wait with her until friends or family members arrive.

Law enforcement’s response to domestic violence calls historically has been noninter-

ference, with the perception that domestic violence was not a crime control matter unless it

involved injury amounting to felony assault, so women who were battered received different

treatment depending on whether their batterer was their intimate partner or a stranger and

whether the crime was determined to be a felony or a misdemeanor. This situation is per-

sonifi ed most dramatically by Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn.

1984), which involved a woman who was beaten, stomped, and stabbed by her ex-husband

on the front steps of her mother’s house while a police offi cer sat in a car and watched.

Some police departments began a more service-oriented approach to domestic vio-

lence in the late 1970s and 1980s with the presence of crisis intervention units with offi cers

who were trained to counsel the parties involved or refer them to social service agencies.

Interestingly, contemporaneous with such public service approaches was a crime control

approach. Mandatory arrest policies were instituted in the 1980s after research indicated

that arrest was associated with reducing domestic violence, even though subsequent stud-

ies failed to replicate such fi ndings. Mandatory arrest was supposed to protect victims of

domestic violence by forcing police to take action by arresting the perpetrator. However,

what seems to have happened in the intervening years is a greater likelihood that both par-

ties will be arrested when there is evidence of injuries, regardless of who is the aggressor.

Thus, in an attempt to control individual offi cers’ discretion in domestic violence situa-

tions, a crime control response (mandatory arrest policies) has been instituted which may

have resulted in worse consequences for the victims it was supposed to help.

An altruistic, involved style of interaction in which the police offi cer would be com-

pelled to help the victims in any way possible is supported by the ethics of care, the ethics

of virtue, utilitarianism, religious ethics, and ethical formalism. But a more self-protective

standard, in which the actions mandated would be only those necessary to maintain a

self-image consistent with the police role as crime fi ghter, might also be justifi ed using

utilitarianism or ethical formalism.

It is important to note that if police were to become personally involved in every case and

go out of their way to help all victims, they would exhaust their emotional reserves in a short

time. As a matter of psychological survival, police must develop an emotional barrier between

themselves and the victims they encounter. It is virtually impossible to observe suffering on

a consistent basis if one does not create some type of emotional shield. So-called “morgue

humor” is most prevalent with police offi cers, medical personnel, and the military because

these individuals must fi nd a way to tolerate seeing suffering on a level most of us never do.

The amount of discretion and how it is used depend on the style of policing that is

characteristic of a certain area. Various researchers have developed typologies of policing

that help us understand how different offi cers view and utilize their discretion. For in-

stance, Wilson (1976), in one of the classic typologies, described policing styles as follows:

The • legalistic style of policing is described as the least amenable to discretionary

enforcement.

The • watchman style describes police who defi ne situations as threatening or serious

depending on the groups or individuals involved, and act accordingly.

The • caretaker style treats citizens differently, depending on their relative power and

position in society.

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1 1 2 P A R T I I | Po l i c e

Muir’s typology (1977: 145) included the professional (balancing coercion with com-

passion), the reciprocator (who had citizens solve problems and made deals to keep the

peace), the enforcer (who used coercion exclusively), and the avoider (who avoided situ-

ations where they might be challenged). Finally, Brown (1981: 224) presented a typology

that shared some of the same elements as those above:

Old-style crime fi ghters • are concerned only with action that might be considered crime

control.

Clean-beat offi cers • seek to control all behavior in their jurisdiction.

Service-style offi cers • emphasize public order and peace offi cer tasks.

Professional-style offi cers • are the epitome of bureaucratic, by-the-book policing.

Each of these descriptions is obviously more detailed than our binary model of the

crime control versus public servant mission. However, all illustrate that different beliefs

about their mission and their role in society will affect offi cers’ use of their discretion.

Discretion is by no means limited to law enforcement. In subsequent chapters, we

will see that discretion is an important element in every subsystem, from lawmaking to the

courts and corrections. Discretion in criminal justice has been attacked as contributing to

injustice. A long line of researchers has explored the parameters of discretion (McAnany,

1981; Davis, 1980), concluding that the presence of discretion creates the opportunity for

power to be abused, with certain groups (the poor, the powerless, and minorities) more

likely to be subject to discriminatory treatment. Some solutions to control discretion are

unsatisfactory because absolute rules, guidelines, and standards either limit decision mak-

ing to mechanistic applications of given rules or provide only rhetorical ideals with little

or no enforcement capability. Cohen (1983, 1985) described discretion as balancing jus-

tice for the individual against justice for the group and pointed out that full enforcement

would be unfair to individuals at times. Unbound discretion is not acceptable either since

offi cers are only human and their personal biases and prejudices should not guide their

decision making. How is the discretion invested in the law enforcement offi cer role guided

and controlled?

In the next two sections, we will look at how individual offi cers are infl uenced by both

the formal ethics of the agency and the informal culture that exists. These two sources

arguably promote somewhat different views of the mission, values, and ethical actions for

individual offi cers.

Formal Ethics for Police Offi cers A professional code of ethics exists for most professions. For instance, doctors pledge al-

legiance to the Hippocratic Oath, lawyers are taught their professional code of responsibil-

ity, and psychiatrists subscribe to the code promulgated by their professional organization.

In fact, having a professional code of ethics seems to be part of the defi nition of a profes-

sion. Sykes (1989) writes that a profession includes the following:

A body of specialized, internationally recognized knowledge •

A pre-professional education and continuing education •

Legal autonomy to exercise discretionary judgment •

Lateral movement •

Authorized self-regulation (which includes a code of ethics and disciplinary •

mechanisms)

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C H A P T E R 5 | T h e Po l i c e Ro l e i n S o c i e t y 1 1 3

A code of ethics helps engender self-respect in individual offi cers; pride comes from

knowing that one has conducted oneself in a proper and appropriate manner. Further, a

code of ethics contributes to mutual respect among police offi cers and helps in the devel-

opment of an esprit de corps and common goals. Agreement on methods, means, and aims

is important to these feelings. As with any profession, an agreed-upon code of ethics is a

unifying element. A code can help defi ne law enforcement as a profession, for it indicates

a willingness to uphold certain standards of behavior and promotes the goal of public ser-

vice, an essential element of any profession.

Police offi cers generally pledge an oath upon graduation from an academy, and many

police agencies have adopted a code of ethics. Other agencies cover similar ground in a

value or mission statement that identifi es what values are held to be most important to the

organization. These documents may be mere wall hangings, forgotten once an offi cer has

graduated from the academy, or they might be visible and oft-repeated elements in the

cultures of the agencies, known by all and used as guides for behavior by administrators

and offi cers alike.

T H E L A W E N F O R C E M E N T C O D E O F E T H I C S

The International Association of Chiefs of Police (IACP) promulgated the Law Enforcement

Code of Ethics and the Canons of Police Ethics, and many departments have used these or

adapted them to their own situations. More recently, the IACP has endorsed the Oath of

Honor (displayed in the Quote and Query box). This oath, developed by a committee of the

IACP, is offered as a shortened version encapsulating the contents of the Code of Ethics.

QUOTE && QUERY IACP Oath of Honor On my honor,

I will never betray my badge,

my integrity, my character,

or the public trust.

I will always have

the courage to hold myself

and others accountable for our actions.

I will always uphold the Constitution,

my community, and the agency I serve.

—INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, 2008.

? Does this oath emphasize a crime fi ghter or public service mission? The IACP code or other codes of ethics for law enforcement have at least four major

themes.

The principle of justice or fairness is the single most dominant theme in the law

enforcement code. Police offi cers must uphold the law regardless of the offender’s iden-

tity. They must not single out special groups for different treatment. Police offi cers must

not use their authority and power to take advantage, either for personal profi t or profes-

sional goals. They must avoid gratuities because these give the appearance of special

treatment.

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A second theme is that of service. Police offi cers exist to serve the community, and

their role appropriately and essentially concerns this idea. Public service involves check-

ing on the elderly, helping victims, and, in the community service model, taking a broad

approach to service by helping the community deal with problems such as broken street

lights and dilapidated buildings.

Still another theme is the importance of the law. Police are protectors of the Constitu-

tion and must not go beyond it or substitute rules of their own. Because the law is so im-

portant, police not only must be concerned with lawbreakers, but also their own behavior

must be totally within the bounds set for them by the law. In investigation, capture, and

collection of evidence, their conduct must conform to the dictates of law.

The fi nal theme is one of personal conduct. Police, at all times, must uphold a stan-

dard of behavior consistent with their public position. This involves a higher standard of

behavior in their professional and personal lives than that expected from the general pub-

lic. “Conduct unbecoming” is one of the most often cited discipline infractions and can

include everything from committing a crime to having an affair or being drunk in public

(Bossard, 1981: 31). The In the News box shows that formal ethics cover behaviors that

are not necessarily illegal.

The emphasis on service, justice for all groups, and higher standards for police behav-

ior is consistent with the public service mission more so than the crime fi ghting mission.

One might also argue that while the code promotes a public servant ideal, police are, for

the most part, socialized and rewarded for actions consistent with the crime fi ghter role.

The Police Subculture Research has described an occupational culture that is at odds with the formal ethics and

values of the police organization. Some early research indicated that police offi cers were

signifi cantly different from others in their values and characteristics. Scheingold (1984)

described the factors that lead to the extreme nature of the police subculture:

Police typically form a homogenous social group. •

They have a uniquely stressful work environment. •

They participate in a basically closed social system. •

in the N E W S C O N D U C T “ U N B E C O M I N G ” ?

A Pennsylvania state trooper who worked for Pittsburg Steelers quarterback Ben Roethlisberger

was investigated for unspecifi ed ethics violations after a 20-year-old college student alleged he

did nothing when Roethlisberger sexually assaulted her in a bar. Although the prosecutor in

Georgia has declined to fi le charges against Roethlisberger, the Pennsylvania State Police inves-

tigated the trooper for unspecifi ed ethical violations stemming from his outside employment as

a “personal assistant” to Roethlisberger and concluded that he must quit the outside job if he

wanted to continue to be a trooper. Even though outside employment is not prohibited, troop-

ers (as all law enforcement offi cers) are expected to conduct themselves in a manner consistent

with high professional standards.

SOURCE: Mandak, 2010a, 2010b.

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C H A P T E R 5 | T h e Po l i c e Ro l e i n S o c i e t y 1 1 5

T H E M E S A N D V A L U E S Y S T E M S

In one of the classic pieces of research on the police subculture, Van Maanen (1978) dis-

cussed how police operate with stereotypes of the people with whom they come into con-

tact. The individual who does not recognize police authority is “the asshole.” Other names

for this type of person include creep, animal, mope, rough, jerk-off, clown, wiseguy. The

idea is the same—that some individuals are troublemakers, not necessarily because they

have broken the law, but rather, because they do not recognize police authority (1978: 227).

Others have identifi ed the same concept in terms such as bad guy, punk, idiot, knucklehead,

terrorist, predator (Herbert, 1996). Herbert further points out the problem whereby offi cers

are so quick to identify these types of individuals as threats to safety that they may over-

generalize and identify, for instance, everyone living in a neighborhood in the same way.

Van Maanen (1978: 226) observed that “certain classes in society—for example, the

young, the black, the militant, the homosexual—are . . . ‘fi xed’ by the police as a sort of

permanent asshole grouping.” He argued that the professionalism movement of law en-

forcement might widen the distance between the police and the community they served,

and further allow them to be “moral entrepreneurs” who were even more likely to defi ne

some groups as bad simply because they did not conform to some preconceived stan-

dards of behavior (1978: 236).

Sherman (1982: 10–19) also described some common themes running through police

attitudes and values of the police culture. First, loyalty to colleagues is essential; second,

the public, or most of it, is the enemy (echoing, to some extent, van Maanen’s research).

Sherman explained that police use their discretion in a way that takes into account the

identity of the victim and offender (attitude, class, and race impact decisions of how to

enforce the law). Disrespect for the authority of police (POPO or “pissing off a police

officer”) is especially important in how police choose to deal with situations. Further,

Sherman argued that police offi cers believe in the use of force for those who deserve it.

Other elements described by Sherman include disparagement of due process as a bar-

rier to doing the job and the value of deception and lying, even on the witness stand, if it

means getting a bad guy. Finally, Sherman described a priority of “real” policing (crime

control) over “garbage calls” (social service) (1982: 10–19). Scheingold (1984: 100–104)

highlighted police cynicism (the idea that everyone is weak or corrupt), the use of force (as

justifi ed in the face of any opposition), and the idea of the police offi cer as a victim (of low

pay and public antipathy).

Herbert (1996) discusses six concepts or what he calls “normative orders” of policing,

including law, bureaucratic control, adventure/machismo, safety, competence, and mo-

rality. Morality is related to the idea that police draw on moral defi nitions to justify their

actions. Herbert’s observational study allowed him to draw on fi eld experiences to present

examples whereby offi cers would continually be told and express the view that they were

the “good guys” against the “evil out there.”

Crank (1998) also discussed a number of themes of policing. These themes are not

values per se, but rather, elements of police work and/or shared perceptions of police offi -

cers, and include coercive territorial control, force, illicit coercion, the importance of guns,

suspicion, danger, uncertainty, “maintaining the edge,” solidarity, masculinity, and excite-

ment and crime.

Zhao, He, and Lovrich (1998) examined police offi cers’ values compared to those of

the general population. They described a value as an “enduring belief that a specifi c mode

of conduct or end-state of existence is personally or socially preferable” (1998: 23) and

reported that individuals’ values (specifi cally, freedom and equality) have been shown to

affect their political preferences. They found that police exhibited similar value preferences

across time (comparing 1961 to 1997) and across place (comparing Tacoma, Washington,

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1 1 6 P A R T I I | Po l i c e

to Spokane, Washington). In their study, they found that police rated equality signifi cantly

lower than did the general public and, in general, were more conservative than the general

public in their viewpoint. Crank and Caldero (2000/2005) also have discussed the values

of police, reporting on other research showing that police offi cers place less emphasis on

independence and more emphasis on obedience.

T H E C O P C O D E

Many authors present versions of an informal code of conduct that new offi cers are taught

through informal socialization that is quite different from the formal code of ethics de-

scribed above. Reuss-Ianni (1983: 14) presented the most complete “cop code”:

Watch out for your partner fi rst and then the rest of the guys working that tour. •

Don’t give up another cop. •

Show balls. •

Be aggressive when you have to, but don’t be too eager. •

Don’t get involved in anything in another guy’s sector. •

Hold up your end of the work. •

If you get caught off base, don’t implicate anybody else. •

Make sure the other guys know if another cop is dangerous or “crazy.” •

Don’t trust a new guy until you have checked him out. •

Don’t tell anybody else more than they have to know. •

Don’t talk too much or too little. •

Don’t leave work for the next tour. •

The informal code also specifi ed conduct indicating that management was not to be

trusted. Those code rules that are specifi c toward management included these (Reuss-

Ianni, 1983: 14):

Protect your ass. •

Don’t make waves. •

Don’t give them too much activity. •

Keep out of the way of any boss from outside your precinct. •

Don’t look for favors just for yourself. •

Don’t take on the patrol sergeant by yourself. •

Know your bosses. •

Don’t do the bosses’ work for them. •

Don’t trust bosses to look out for your interest. •

What is obvious is that the informal code of behavior, as described above, is different

from the formal principles as espoused by management. Some principles of the informal

code directly contradict the elements in formal codes of ethics.

Scheingold (1984: 97) described the police subculture as no more than an extreme of

the dominant U.S. culture and argued that it closely resembles a conservative political per-

spective. In other words, we all agree with certain elements of the police value system and,

if the general public is less extreme in its views, it is only because we have not had a steady

diet of dealing with crime and criminal behavior as have the police.

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P O L I C E C U L T U R E A N D “ N O B L E C A U S E ”

One aspect of police culture that has received recent attention is what has been called

noble-cause corruption. This refers to the utilitarian concept that the “end” of crime

fi ghting justifi es “means” that might otherwise be illegal, unethical, and/or against rules

or regulations (such as lying on an affi davit or the witness stand or planting evidence).

Arguably, the police culture, at least in some locales, endorses or tolerates this type

of activity. Klockars (1983) presented us with a type of noble-cause corruption in the

“Dirty Harry problem” (from the Clint Eastwood movie), asking whether it was ethi-

cally acceptable for a police offi cer to infl ict pain on a suspect in order to acquire infor-

mation that would save an innocent victim. Crank and Caldero (2000/2005) are noted

for their expanded discussion of noble-cause corruption. They argue that practices

such as “testilying” (lying to get a warrant or a conviction) are not caused by selfi sh-

ness, but rather, by ends-oriented thinking. McDonald (2000) offers a detailed study

of the practice of testilying, which includes reordering facts, adding details, or omitting

information. It is also referred to as shading, fl uffi ng, fi rming up, or shaping and occurs

in sworn affi davits for arrest or search warrants, in reports, or in testimony. The most

notorious example of exposed testilying is the O.J. Simpson case. The defense attorney

used a tape of LAPD offi cer Mark Fuhrman saying 17 times that he and other police of-

fi cers “regularly” manufactured and planted evidence, and when asked if he had done

so in the Simpson case, he pleaded the Fifth Amendment (refusing to answer because

it might incriminate him) (McDonald, 2000: 3, 9). In McDonald’s study of one police

department, he found that offi cers were more likely to testilie when there was a differ-

ential emphasis on goal (crime control) over means (2000: 13). McDonald notes that,

according to his sample, police perceive that some prosecutors “wink at” deception or

encourage it to get a win (2000: 28).

In McDonald’s study, the two most frequently given reasons for testilying was that

legal technicalities made their job impossible to do, and the belief that the offender

N O B L E C A U S E ? Austin, Texas

An offi cer lied in a police report, stating that he had seen a crack pipe in the defendant’s car (to

justify a car search). Although this offi cer was fi red for lying, the grand jury refused to issue an

indictment for false swearing.

Camden, New Jersey

At least four Camden police offi cers have been the target of an investigation that uncovered evi-

dence that they stole drugs and planted the drugs on suspects to make cases, threatened indi-

viduals with arrests in order to coerce them to become informants, traded drugs for information

from prostitutes, fi led false police reports, and lied on the witness stand to obtain convictions.

At least 30 convictions based on these offi cers’ testimonies have been vacated and charges have

been dropped in at least 185 cases with the expectation that there will be many more. The city

is also bracing itself for a number of civil rights lawsuits based on the offi cers’ behavior.

SOURCE: Plohetski, 2008; Philly.com, 2010; Katz, 2010; Katz, Boyer, and Anastasia, 2010.

in the N E W S

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1 1 8 P A R T I I | Po l i c e

was guilty. The least most common reason was “pressure for productivity” (2000: 106).

When asked how often do police offi cers they know personally engage in testimonial

deception, the majority indicated they did not know anyone, but substantial numbers

agreed that they knew offi cers who rarely or sometimes used deception when testifying

(2000: 114). McDonald concluded that police offi cers from large agencies were more

likely to use testimonial deception, as were police offi cers who perceived their jurisdic-

tion as having high crime, and offi cers who believed there were too many legal techni-

calities (2000: 238–239).

The noble cause of police offi cers is “a profound moral commitment to make the

world a safer place to live” (Crank and Caldero, 2000: 9). Offi cers will do what it takes to

get an offender off the street, even if means employing a “magic pencil”—that is, mak-

ing up facts on an affi davit to justify a warrant or to establish probable cause for arrests.

Arguably, they are inclined to behave this way because we hire those who have values

that support such actions, train and socialize them to internalize these values even more

deeply, and then put them in situations where their values dictate doing whatever it

takes to “make the world safe” (2000: 88). The In the News box offers several instances

of what might be called noble-cause corruption. One might argue that the offi cers in-

volved emphasized the crime fi ghting mission over the public service mission in their

choices, but the end result of such actions is usually not helpful to the crime fi ghting

mission either.

Police are not the only actors who subscribe to noble-cause values. Crime lab investi-

gators and prosecutors also engage in shortcuts and magic pencils in order to convict the

perceived guilty. Prosecutors have been known to suppress evidence and allow perjured

testimony, so it is not only police offi cers who feel compelled to break the law in order to

further the noble cause of crime control (Crank and Caldero, 2000: 134). How pervasive is

this tendency? Studies show that about 60 percent of rookies support mild lies to achieve a

conviction (2000: 157).

Other authors argue vehemently that noble-cause corruption is a dangerous concept

because it gives credence to illegal behavior on the part of offi cers. Alderson (1998: 68), for

instance, protests that

… noble-cause corruption … is a euphemism for perjury, which is a serious

crime…. In ethical police terms justice is not divisible in this way into means and

ends, and the peddlers of this perversion of justice are guilty of the immorality of

the totalitarian police state, and their views stand to be roundly condemned.

However, it may be that Alderson misunderstands those who present the noble-cause

concepts. Crank and Caldero (2000/2005), for instance, do not seem to be supporting

the rationale; rather, they argue that “noble cause” is the underlying reason for much of

offi cers’ unethical behaviors, so efforts to control corruption must take cognizance of this

motivation in order to be effective. If selfi shness and personal gain are not the motives for

misdeeds, then monitoring and punishments may not work if the underlying culture is not

addressed.

The occupational subculture of policing is not supportive of egoistic corruption like

bribery or abuse of authority, such as when offi cers engage in sexual misconduct, but it

may be supportive of “catching the criminal—whatever it takes.” If we want to change

this attitude, we must address it directly. Further, Crank and Caldero argue that such an

attitude must change because we are increasingly living in a world where pluralism is the

reality and the values of the police organization may not be refl ective of the citizenry they

police. As multiculturalism becomes the dominant reality, police must learn to adapt and

accommodate the needs and priorities of different groups.

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C H A P T E R 5 | T h e Po l i c e Ro l e i n S o c i e t y 1 1 9

P O L I C E C U L T U R E A N D T H E B L U E C U R T A I N

O F S E C R E C Y

Another element of the police code is absolute loyalty to other offi cers, even if it means

not coming forward to expose a wrongdoer. Variously described as the code of silence, blue curtain of secrecy, or other terms, it refers to the subcultural code of “Don’t give up another cop” (Skolnick, 2001). It should also be noted that a code of silence is present

in other occupations and groups as well. For instance, very few college students say they

would report a fellow student for cheating even if they see it happen. Other groups show

varying degrees of loyalty to members of the group, even when such members engage in

incompetent or corrupt activities.

The books Serpico (Maas, 1973) and Prince of the City (Daley, 1984) describe two

examples of police offi cers who chose to challenge the “blue curtain” of secrecy and testify

against their fellow offi cers in corruption hearings. In the Quote and Query box, Serpico’s

statement to the Knapp Commission illustrates the problem of police loyalty when offi cers

are willing to cover up corruption. The later statement indicates that nothing much had

changed in the decades between the Knapp Commission and the Mollen Commission.

David Durk’s statement to the Knapp Commission (cited in Menninger, 1973) is eloquent

in his plea for the commission to understand that the problem was not only with the police

department.

QUOTE && QUERY The problem is that the atmosphere does not yet exist in which honest police

offi cers can act without fear of ridicule or reprisal from fellow offi cers….

—FRANK SERPICO, KNAPP COMMISSION, 1971, AS REPORTED IN HENTOFF, 1999

Cops don’t tell on cops…. [I]f a cop decided to tell on me, his career’s ruined.…

[H]e’s going to be labeled as a rat.

—POLICE OFFICER TESTIMONY, MOLLEN COMMISSION, 1992, AS REPORTED IN WALKER, 2001

I saw that happening to men all around me; men who could have been good

offi cers; men of decent impulse, men of ideas, but men who were without decent

leadership, men who were told in a hundred ways every day, go along, forget

about the law, don’t make waves and shut up.…

So your report has to tell us about the district attorneys and the courts and

the bar; and the mayor and the governor and what they have done, and what

they have failed to do, and how great a measure of responsibility they also bear.

Otherwise, if you suggest or allow others to suggest that the responsibility belongs

only to the police, then for the patrolmen on the beat and in the radio cars, this

commission will be just another part of the swindle.

—DAVID DURK, 1972, CITED IN MENNINGER, 1973

? How would you create an atmosphere in a police department wherein offi cers would feel more comfortable reporting the misdoings/criminality of other offi cers? Or

would you even want to?

Quinn (2005) describes many cases in his career when he stood up to unethical and

illegal police practices such as using excessive force, accepting gratuities, and engaging in

other misconduct. He describes how reporting such actions to supervisors led to threats and

code of silence The practice of offi cers to not come forward when they are aware of the ethical transgressions of other offi cers.

blue curtain of secrecy Another name for the code of silence or the practice of police offi cers to remain silent when fellow offi cers commit unethical actions.

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1 2 0 P A R T I I | Po l i c e

retaliation, but that the illegal or unethical behavior also did not continue to happen in his

presence. He argues that good offi cers are sucked into the corrupt cover-ups because of the

nature of policing. Every offi cer does something wrong, and the most common mistake, per-

haps, is using too much force. When an offi cer has just experienced a life-threatening event,

such as a high-speed chase, a foot chase, or a fi ght for his weapon, the adrenalin “hijacks”

reason, according to Quinn, and some offi cers overreact. When co-workers cover for the of-

fi cer, the offi cer who made the mistake is indebted and trapped in a situation where the of-

fi cer thinks he or she must do the same. Even if the offending offi cer would have told the

truth about his or her mistake, the offi cer who covered up has lied and, therefore, it is almost

impossible to “sacrifi ce” that loyal offi cer by churlishly telling the truth and calling him or her

a liar.

Skolnick (2001) explored how the blue curtain of secrecy affected the case of Norman

Batista, who was arrested buying drugs. By the time the police were able to enter the bar-

ricaded house, all drugs had been fl ushed away and, allegedly, narcotics task force offi cers

beat the dealer and Batista in frustration. When Batista was transported to the hospital for

his injuries, the doctor referred the case to the prosecutor’s offi ce. Testimony indicated he

had suffered six broken ribs, injuries to chest, sternum, testicles, and knees. He ended up

spending six days in the hospital. No offi cer was willing to testify that offi cers used excessive

force. Most said they hadn’t seen anything. The ADA charged two offi cers with assault with

the legal argument that all offi cers were culpable if they didn’t stop the assault. The indicted

offi cers opted for a bench trial, and 75 off-duty police offi cers fi lled the court during the trial.

The judge acquitted the two offi cers (Skolnick, 2001: 15). Skolnick called it a “culture war”

where police offi cers viewed the beating as extra-legal justice and deserved, while the pros-

ecutor and emergency room physician viewed the beating as a corrupt use of power. What

is also important to note is the lack of any offi cer willing to break the code of silence over the

incident and, in this way, no offi cer was held responsible. Skolnick also points out that even

in the Abner Louima case (discussed more fully in the next chapter), which involved an anal

assault with a broomstick, no offi cer came forward until they were forced to by threats of

prosecution (2001: 16).

There is also evidence that offi cers will ostracize and sanction the person who does

expose the wrongdoing of his or her peers. In their large attitude survey of police offi cers,

Weisburd and Greenspan (2000) discovered that, although 80 percent of police offi cers

did not think that the code of silence was essential for police trust and good policing, fully

two-thirds reported that a whistleblower would encounter sanctions. Further, more than

half agreed that it was not unusual for police to ignore improper conduct on the part of

other offi cers, and 61 percent indicated that police offi cers do not always report even the

most serious violations/crimes of other offi cers.

Special problems are involved when police offi cers protect one another. One of the

greatest harms of cover-ups is the damage infl icted on the department’s credibility. The

O. J. Simpson trial has become the classic example of what happens when a jury loses

confi dence in police testimony. Prosecutors ordinarily can rely on a jury to take police

testimony as fact and even believe police testimony over non-police witnesses. When

police testimony is given no greater weight than any other witness—indeed, when jury

members believe that police are prone to lie on the stand—the justice system itself is

at risk.

Is there an ethical rationale that justifi es protecting a fellow offi cer who engages in

misconduct? Obviously, the type of misconduct makes a difference. Misconduct ranges

from accepting a gratuity to murder. Generally, however, for types of misconduct such as

use of excessive force, we can identify ethical rationales both for not exposing the offi cer

and for coming forward.

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Recall that teleological ethical rationales are concerned with the consequences of

an action. Egoism may support not coming forward because it may not be in one’s best

interest: An offi cer might say, “I don’t want to get involved.” “I don’t want to go against

everyone.” Or, “It’s the sergeant’s (or lieutenant’s or captain’s) job, not mine.” These are

all egoistic reasons for not coming forward. Utilitarian reasons to keep quiet also look

at the consequences (or utility) of the action. If one engaged in “the end justifi es the

means” thinking, described above as noble-cause corruption, some activities that are

labeled corrupt may actually further the ends of justice, at least in the short term. Also,

the loss of a skilled police offi cer, even though that offi cer may be moderately corrupt,

is a loss to society. One may believe that the harm to the police department in expos-

ing the deviance of one offi cer is greater than the harm to society created by what that

offi cer is doing, or that there is greater utility in stopping the offi cer without making the

issue public.

There are also teleological arguments for coming forward. Egoism may dictate that

an individual has to come forward to protect himself from being accused of wrongdoing.

The police offi cer may also endure such a crisis of conscience or fear of being punished

that she can attain peace of mind only by “coming clean.” Utilitarian arguments for com-

ing forward are offered as well. The harm that comes from letting the individual carry on

his misdeeds or not forcing the individual to a public punishment may be greater than the

harm that would come from the scandal of public exposure. This is especially true if one is

forced to either tell the truth or lie; in this case, the harm to police credibility must be taken

into account.

Recall that deontological arguments look at the inherent nature of the act. Arguments

against exposing other offi cers include the idea that one’s duty is to the police force and

one’s fellow offi cers so one should protect them from exposure. Arguments for coming

forward are much stronger, including the argument that a police offi cer has a sworn duty to

uphold the law. Also, one cannot remain silent in one situation unless one could approve

in the N E W S I T H O U G H T I S A W A K I T T Y C A T ! I D I D . I D I D .

The most recent scandal to hit the Hollywood, Florida, police department was the “cat” inci-

dent, where offi cers conspired to blame an accident victim for a traffi c accident involving a

patrol car and arrested her for DUI. An offi cer collided with a woman who was stopped at a

traffi c stop, and then the offi cers involved developed a story that the woman stopped suddenly

when her cat jumped out of the car window. Unfortunately for the offi cers, the dashboard

video camera caught them constructing the story. One offi cer was heard saying, “I’m gonna tell

you exactly how to word this so we can get him off the hook” and “I don’t like making things up

ever because it’s wrong, but if I have to bend it a little to protect a cop I’m gonna.” The offi cers

talked about doing a little “Walt Disney.” The woman’s charges of DUI were dropped and fi ve

offi cers were ultimately fi red, as well as one civilian crime scene employee. The union vows to

help offi cers appeal the fi ring, saying that they were politically motivated and the punishment

is too severe.

SOURCE: Smith, 2009; Sherman and Moskovitz, 2009.

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of silence in all situations (Kant’s categorical imperative), and one must do one’s duty,

which involves telling the truth when under an oath (Wren, 1985: 32–33).

It should be noted that, in general, deontological ethics support whistleblowing be-

cause it is a higher duty to uphold the law than it is to defend one’s fellow offi cers. This

argument also depends on whether the primary role of offi cers is as crime fi ghter or as

public servant. If one perceives oneself as primarily a crime fi ghter, the duty to the law

becomes subservient to the duty to fi ght crime; however, if one primarily sees one’s duty

to be a public servant sworn to uphold the law, then crime fi ghting is subservient to the law

and the legal process.

When one considers whether to come forward to expose the wrongdoing of others,

external moral philosophies, such as utilitarianism, are rarely articulated. What tends

to be the impetus for covering up for other offi cers is an internal mechanism—loyalty.

While the prime motivator for coming forward and/or truth-telling is personal integrity,

the individual often feels great anguish and self-doubt over turning in or testifying against

friends and colleagues. That is understandable because “a person’s character is defi ned by

his commitments, the more basic of which reveal to a person what his life is all about and

give him a reason for going on” (Wren, 1985: 35). Loyalty is a diffi cult concept that others

have written about extensively; it can be a vehicle of both ethical and unethical behavior

(Fletcher, 1993).

Loyalty in police work is explained in that police depend on one another, sometimes

in life-or-death situations. Loyalty to one’s fellows is part of the esprit de corps of policing

and is an essential element of a healthy department. Ewin (1990) writes that something

is wrong if a police offi cer doesn’t feel loyalty to fellow offi cers. Loyalty is a personal re-

lationship, not a judgment. Therefore, loyalty is uncalculating. We do not extend loyalty

in a rational way or based on contingencies. Loyalty to groups or persons is emotional,

grounded in affection rather than refl ection.

Loyalty refers to a preference for one group over another (Ewin, 1990: 13). Loyalty

always involves some exclusion: one is loyal to X rather than to Y, so Y is thus excluded.

At times the reverse can also be true: if a group of people is excluded (whether or not they

are properly excluded), they can feel a common cause in response to what they see as op-

pression, which can result in the growth of loyalty among them. That loyalty, provoked by

a dislike and perhaps distrust of the other group, is likely to be marked by behavior that

ignores legitimate interests and concerns of the other group.

The application to policing is obvious. If police offi cers feel isolated from the com-

munity, their loyalty is to other police offi cers and not to the community at large. If they

feel oppressed by and distrust the police administration, they draw together against the

“common enemy.” To address abuses of loyalty, one would not want to attack the loyalty

itself because it is necessary for the health of the organization. Rather, one would want to

encourage loyalty beyond other offi cers to the department and to the community. Perme-

ability rather than isolation promotes community loyalty, just as the movement toward

professionalism promotes loyalty to the principles of ethical policing rather than to indi-

viduals in a particular department.

Wren (1985) believes that police departments can resolve the dilemma of the indi-

vidual offi cer who knows of wrongdoing by making the consequences more palatable—

that is, by having a fair system of investigation and punishment, by instituting helping

programs for those with alcohol and drug problems, and by using more moderate punish-

ments than dismissal or public exposure for other sorts of misbehavior. This is consistent

with the ethics of care, which is concerned with needs and relationships.

Delattre (1989a) handled the problem differently, but came to somewhat similar

conclusions. He turned to Aristotle to support the idea that when a friend becomes a

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scoundrel, the moral individual cannot stand by and do nothing. Rather, one has a moral

duty to bring the wrongdoing to the friend’s attention and urge him or her to change.

If the friend will not, then he or she is more scoundrel than friend, and the individual’s

duty shifts to those who might be victimized by the person’s behavior. We see here not

the ethics of care, but rather, a combination of virtue-based and deontological duty-

based ethics.

Souryal (1996, 1999b) discussed loyalty to superiors or to fellow offi cers as misplaced.

He argued that there are different kinds of loyalty: personal loyalty, institutional loyalty,

and integrated loyalty (which relates to the ideal values of the profession). Loyalty to su-

periors is traced back to divine right—the idea that persons are indistinguishable from

their offi ce (1996b: 48). Today, however, we are governed by laws, not kings, and such

loyalty should be properly placed in our laws and our values rather than an individual.

Souryal noted that personal loyalties often lead to unethical actions and that loyalty to val-

ues or organizations has a stronger ethical justifi cation. One might argue that even loyalty

to a police organization may be misplaced if it leads to lying to protect the organization

against scandal.

The informal practice of punishing individuals who come forward is an especially

distressing aspect of loyalty and the police culture. Individual police offi cers have been os-

tracized and have become the target of a wide variety of retaliatory gestures after “ratting”

on another offi cer. Reports include having equipment stolen, threats made to the offi cer

and his family members, interfering with radio calls and thereby jeopardizing his safety,

scrawling the word “rat” on his locker, putting cheese or dead rats in his locker, vandal-

izing his patrol car, or destroying his uniform. The Quote and Query box has one account

of what happened to a whistleblower.

As distressing as these acts are, the more incomprehensible reaction is that of ad-

ministrators. Administrators sometimes tell the accused offi cer who informed on them,

or support the retaliation against the officer who came forward implicitly or explic-

itly. Instead of rewarding offi cers who expose wrongdoing, administrators sometimes

punish them by administrative sanctions, transfers to less desirable positions, or poor

performance reports. More than 40 Los Angeles police offi cers fi led a class action suit

against such administrative sanctions for whistleblowers (Johnson, 2005). This retalia-

tion is not just true of law enforcement agencies. Sanctions against whistleblowers are so

common that most states and the federal government now have laws designed to protect

whistleblowers.

QUOTE && QUERY …Two nights later I was walking through the courthouse, in uniform. One of

the offi cers I had accused of assault grabbed me by the front of my jacket and

pushed me into a corner. With his face touching mine he whispered …, “If you

ever snitch us off again I will kill you.” Then he walked away.

[The incident occurred after Officer Quinn had reported to the deputy chief

and his lieutenant that a prostitute in his district had been beaten up by a police

offi cer.]

—QUINN, 2005: 41

? Why do you think police officers have similar (“don’t snitch”) subcultural prohibitions as criminals?

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1 2 4 P A R T I I | Po l i c e

P O L I C E C U L T U R E T O D A Y

Our descriptions of the police culture date back more than 40 years and so a legitimate

question is whether or not modern police offi cers subscribe to the same set of values and

whether the “cop code” still exists. Arguably, the subculture and the values described

above may be breaking down in police departments today. Several factors contribute to

the possible weakening of the subculture:

Increasing diversity • of police recruits has eliminated the social homogeneity of the

workforce. Many diverse groups are now represented in police departments, including

African Americans, Hispanics, other ethnicities, women, and the college- educated.

These different groups bring elements of their own cultural backgrounds and value

systems into the police environment.

Police unions • , with their increasing power, formalize relationships between the line

staff and the administration. Subcultural methods for coping with perceived adminis-

trative unfairness are giving way to more formal rather than informal means of balanc-

ing different objectives of management and line staff.

Civil litigation • has increased the risk of covering for another offi cer. Although police

offi cers may lie to internal affairs or even on a witness stand to save a fellow offi cer

from sanctions, they may be less likely to do so when large monetary damages may be

leveled against them because of negligence and perjury.

One might add that many of the authors who described the police culture did so

in the 1970s and 1980s, during a time of great social change when the Supreme Court

recognized groundbreaking due process protections. Older police officers who had

not been socialized to give Miranda warnings or obtain search warrants were under-

standably slow to adapt to the new order. Today’s recruit officers were born after the

Miranda warning was institutionalized as a standard arrest element and have never

known a time when police did not need a search warrant. Today’s recruit is also more

likely to have been exposed to community policing and its tenets of community–

police partnership and other progressive police practices through television, educa-

tion, or other means. Thus, for younger police officers, these due process protections

may be seen as normal and expected elements of the job rather than barriers to good

police work.

It is also no doubt that the police subculture varies from department to department.

Size, regional differences, and management may infl uence the strength of the subculture.

The make-up of the department, its relationship with the community, and training may

also infl uence the type of occupational culture found in any department.

In an incomplete measurement of police subculture, Paoline, Myers, and Worden

(2000) found that the police subculture is by no means monolithic. Using responses from

offi cers in a survey research project, they were able to measure seven outlooks that they

believe were associated with the informal subculture described in the literature:

Orientation to law enforcement •

Orientation to order maintenance •

Orientation to community policing •

Aggressiveness •

Selectivity •

Distrust of citizens •

Perceptions of citizen cooperation •

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They found substantial variation among the offi cers and differences in their cultural

views. Further, no factors emerged as strong predictors of offi cers’ values. There were weak

and inconsistent associations between sex and cultural values. There were some expected

associations between race and cultural values, with minority offi cers having more positive

orientations than white offi cers toward order maintenance and community policing con-

cepts; however, the associations were not strong. The association between aggressive patrol

and race was stronger, with minority offi cers displaying less support than white offi cers for

aggressive patrol. In general, most of the associations were of small magnitude. The au-

thors conclude that the police culture may be less uniform and less powerful than other

researchers have portrayed. They admit, however, that their measures did not directly or

comprehensively measure police culture as described in earlier research.

Greene et al. (2004: 60–63) examined attitudinal data from a sample drawn from the

Philadelphia police department. A series of questions measured their attitudes toward

ethics and some elements of the police culture. The percentage who disagreed with each

statement is indicated below:

It is not really wrong for an offi cer to accept small gifts from the public. (43.6 percent •

disagreed)

Sometimes an offi cer has to use methods prohibited by directives to enforce the law •

or make an arrest. (46.5 percent disagreed)

Most offi cers would take action if they knew of misconduct, even if it was a friend. •

(39.2 percent agreed—note, this item is reversed)

An offi cer cannot be consistently productive unless he/she bends or breaks the rules •

from time to time. (68.5 percent disagreed)

Sometimes offi cers use methods prohibited by directives to achieve arrest of a crimi- •

nal, if it’s the only way that it can be done. (52.3 percent disagreed) (Note that this

item seems to be problematic as a measure of ethical attitudes in that offi cers may

know that this behavior exists but not agree with it.)

Unless it is an extremely serious matter, offi cers should protect each other when mis- •

conduct is alleged. (60.7 percent disagreed)

It is sometimes necessary to be verbally disrespectful or abusive to a person because •

that is the only way they will understand or comply. (56.5 percent disagreed)

Professional courtesy (excusing a fellow offi cer for minor violations of the law) is gen- •

erally okay. (29.8 percent disagreed)

Most supervisors agree that rules must be broken or bent to get the job done, but •

wouldn’t admit it. (47.9 percent disagreed)

Sometimes offi cers have to exaggerate probable cause to get a crook off the street. •

(63.3 percent disagreed)

An offi cer occasionally has to bend the facts a little in court or in a report in order to •

get a criminal convicted. (74.4 percent disagreed)

An offi cer’s personal life is his/her business, and the department shouldn’t care what •

we do as long as we do our jobs. (41.5 percent disagreed)

Taking care of errands while working (like picking up dry cleaning) is generally okay. •

(39.3 percent disagreed)

Some people should get “street justice” after hurting a police offi cer because that is •

the only real punishment they will get. (65.1 percent disagreed)

Offi cers should never go on strike no matter how unfair the working conditions or wages. •

(41.8 percent disagreed) (This item is problematic as a measure of ethical attitudes.)

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Research continues to support the idea that there is a police culture, albeit one that is

more fragmented and weaker than in earlier decades (Murray, 2005; Conti, 2006). Acad-

emy training of recruits, for instance, is reported to pay formal attention to community

policing and public service elements, but the informal message of instructors and the

academy experience tends to promote the “warrior” role that can lead to ends-based po-

licing (Conti and Nolan, 2005; Quinn, 2005). Payne and Guastaferro (2009) found that

police chiefs were much more likely to believe that the Supreme Court should overturn

Miranda (40 percent) than a civilian sample (14 percent). They also were more likely than

civilians to believe that offenders sometimes “got off easy” because of Miranda (2009: 97).

These views, one presumes, trickle down in the form of subcultural socialization to the

rank and fi le.

Regarding the “blue curtain of secrecy,” research indicates that this practice may be

breaking down. Barker (2002), for instance, reported on some research indicating that the

addition of minorities and women has led to a less homogenous force and a weaker sub-

cultural norm of covering up wrongdoing, as evidenced by the proliferation of complaints

against fellow offi cers. Barker notes that there were more than 30 cases in Los Angeles

where offi cers were the primary witnesses against other offi cers. Another survey (Rothwell

and Baldwin, 2007) found that police respondents were more likely to report misdemean-

ors and felonies of their fellow offi cers than were civilian employee-respondents in other

agencies. An additional factor that was substantially related to reporting was whether or

not the agency had a mandatory reporting policy.

Another study found that police offi cers were more likely to report wrongdoing of

other offi cers if it involved acquisition of goods or money (except for gratuities) rather

than excessive force or bending rules. In this study, even though almost all respondents

thought that stealing from a burglary scene was very serious, about a quarter thought that

their colleagues would not report it (Westmorland, 2005).

In a survey sponsored by the National Institute of Justice, police respondents indi-

cated that support for the use of force was still modestly present (about a quarter agreed

or strongly agreed that sometimes illegal force was acceptable), but a much larger per-

centage (67 percent) agreed that someone who reported another offi cer’s misconduct

would be ostracized, and 50 percent disagreed that police offi cers would always report

serious criminal violations of other officers (Weisburd and Greenspan, 2000: 2, 5).

In another study using hypotheticals, about one-third of offi cers responded that they

would not report an incident depicting a clear case of excessive force. In this study,

newer offi cers, supervisors, and those with many years of experience were more likely to

report, while those least likely to report were mid-career offi cers (Micucci and Gomme,

2005: 493, 499).

In an exploration that attempted to measure noble-cause values and their relation-

ship to crime, researchers defi ned noble cause as a utilitarian value of approving of illegal

means to convict criminals. In a small sample of sheriffs’ deputies, the researchers found

that there were wide variations in support for noble-cause statements and that adherence

to noble cause did not seem to be related to a perception of level of crime (Crank, Flaherty

and Giacomazzi, 2007).

Generally, police, like any occupational group, are socialized to some type of informal

value system that guides and provides a rationale for decision making. This value system

may be as—or in some cases, more—infl uential than the police rulebook or code of eth-

ics. It is also true that the police culture is not now, or perhaps never was, as monolithic as

early writers indicated and the strength of it is affected by the size of the department and

other variables.

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C H A P T E R 5 | T h e Po l i c e Ro l e i n S o c i e t y 1 2 7

Crime Fighter and Public Servant? Police hear mixed messages from the public regarding certain types of crime. They are

asked to enforce laws against gambling, pornography, and prostitution, but not too strin-

gently. They are expected to enforce laws against drunk driving but also to be tolerant of in-

dividuals who aren’t really “criminal.” They are expected to uphold laws regarding assault

unless it is a family or interpersonal dispute that the disputants want to settle privately. In

other words, we want the police to enforce the law unless they enforce it against us.

We also ask the police to take care of social problems, such as the homeless, even if

they have to step outside the law to do so. Extra-legal means are acceptable as long as they

are not used against us. Citizens who want police to move the transients out of a park or

get the crack dealers off the corner aren’t concerned with the fact that the police might not

have the legal authority to do so. If a little “informal” justice is needed to accomplish the

task, that is fi ne with some people, as long as it is used against those we don’t like.

When we accept and encourage such extra-legal power in some situations, we

shouldn’t be surprised when it is used in other situations as well. The police role as en-

forcer in a pluralistic society is problematic. The justifi cation for police power is that police

represent the public: “The police offi cer can only validly use coercive force when he or she

in fact represents the body politic” (Malloy, 1982: 12). But if the police do not represent

all groups, their authority is seen as oppressive. It should be no surprise that police were

seen as an invading army in the ghettos of the 1960s. They were not seen as representing

the interests of the people who were the target of their force. The Los Angeles riots that

erupted after the acquittal of the offi cers who were charged with beating Rodney King

illustrate the tension between minority communities and police departments. More recent

disturbances have occurred in other cities, sparked by perceived police abuses.

Police take their cue from the community they serve. If they serve a community that

emphasizes crime control over individual rights or other public service, we will see the

results of that message in the way laws are enforced. An example of a crime control ap-

proach is the zero-tolerance policy, implemented when William Bratton was police chief of New York City in the 1990s. Police offi cers were instructed to take an aggressive stance

against street people and minor criminals, especially those who roamed the downtown

Manhattan business area and subway system.

The dramatic decline in crime enjoyed by New York City was touted as the result of

the zero-tolerance policy. When the little criminals are arrested, so goes the theory, the big

crimes don’t happen. It was true that frequently the minor offenders arrested had out-

standing warrants for more serious crimes. From 1993 to 1997, felony complaints dropped

by 44.3 percent. Murder and non-negligent homicide dropped 62 percent, forcible rape

dropped 12.4 percent, robbery dropped 48 percent, and burglary rates dropped 45 per-

cent (Greene, 1999: 176). However, critics argued that New York’s success might have had

something to do with the 40 percent increase in sworn offi cers that also occurred during

this time. Further, the decline of crime was felt all over the country, not just in New York

City. For instance, in San Diego, a city that did not see an increase in sworn offi cers, the

crime rate declined by almost as much as New York’s (Greene, 1999).

The problematic issue regarding zero tolerance is the effect it had on police–

community relations. Citizen complaints against New York City police went up 75 per-

cent in the four-year period between 1995 and 1999 (Greene, 1999: 176). Even downtown

merchants, who were thrilled with the effects of the crackdown when the Times Square

area was described as “safe for tourists” again, were now feeling the effects of the pervasive

police infl uence. Some complained that police were harassing them by enforcing trivial

zero-tolerance policy The law enforcement approach whereby small violations and ordinances are enforced to the maximum with the expectation that this will reduce more serious crime.

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1 2 8 P A R T I I | Po l i c e

ordinances (such as placement and size of window signs or sidewalk sales). The most seri-

ous charge was that the aggressive policing policies of zero tolerance led to some police

offi cers employing an “anything goes” philosophy, and contributed to extreme cases such

as the Abner Louima assault (1997) and the Amadou Diallo shooting (1999), even though

Bratton was gone by the time these incidents occurred, as his tenure in New York City

lasted only from 1994 to 1996.

There are indications that the NYPD continues to utilize a model of policing that

encourages offi cers to employ a heavy-handed policing approach, and critics continue to

argue that it comes at a cost of community relations. In a study reported in 2009, it was

found that only 1.3 percent of nearly 600,000 stops in that year resulted in a weapon and

only 6 percent resulted in an arrest. There is a concern expressed in newspaper editorials

and by human rights organizations that the police department has exceeded the benefi t of

the zero-tolerance policing model (New York Times, 2010a).

Bratton’s legacy in the form of the Compstat program, a computerized crime- counting

method that emphasizes accountability of middle managers, is in the center of a recent

scandal involving an alleged downgrading of crime statistics. Adrian Schoolcraft, an offi cer

in the 81st precinct, came forward in 2009 to report that supervisors and commanders

routinely downgraded crime reports and even called victims to encourage or coerce them

to withdraw their report or change the facts so that it could be reported as a lesser crime.

He fi rst made his concerns known to the Quality Assurance division of the NYPD and

provided them with examples of victims whose crimes were misrecorded. Subsequently,

Schoolcraft received a poor work review and was put on desk duty and then suspended for

leaving work an hour early. At one point, offi cers went to his home to bring him back to the

stationhouse and then forcibly took him to a mental ward in a Queens hospital; it took him

six days to obtain his release. Schoolcraft has been suspended from the NYPD and now

lives in upstate New York. He reports that he is still harassed by NYPD offi cers and plans

to sue the city and the police department. After he decided that the department was not

going to deal with his allegations, he went to the New York Daily News, which published

the allegations (Rayman, 2010a, 2010b).

Schoolcraft has more recently revealed that he had been taping roll calls and

interactions with other police offi cers for over a year and provided the tapes to the Village

Voice newspaper, which posted them on their website. The tapes capture commanders

exhorting police offi cers to make their quotas of tickets and to employ a zero-tolerance

policy for those who live in a high crime area of the precinct, especially one particular

housing project. Commanders instructed police offi cers to arrest anyone on the sidewalk

and think of a reason later—obviously, a practice not consistent with law or public policy.

The tapes show that, at least in this precinct, zero tolerance has slid into abuses of police

power (Rayman, 2010).

In 2002, William Bratton became the chief of Los Angeles, a city that had experi-

enced serious tension between the minority community and the police department. By

most accounts, Bratton has been successful in achieving his goal of reducing crime. Be-

tween 2002 and 2007, Los Angeles experienced a 31 percent decrease in serious crimes

and a 44 percent decrease in homicides. Further, civil lawsuits against the department

declined. Bratton has been successful in wresting the money from the city council to hire

hundreds of new police offi cers and was applauded for taking swift action against offi -

cers in the “May Day Melee” in 2007, when offi cers fi red on demonstrators with rubber

bullets (Steptoe, 2007).

Bratton was sworn in for a second fi ve-year term in 2007, the fi rst chief since the 1980s

to survive to a second term (Buntin, 2007). By 2009, citizen satisfaction with the LAPD had

risen dramatically. Nearly 8 in 10 citizens said they strongly approved of the force, as com-

pared to only 4 in 10 in 1991 after the Rodney King and Rampart scandals. Interestingly,

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community leaders say that Bratton’s success was due not to his crime-fi ghting mandates

or accountability measures such as Compstat, but to his regular meetings with community

leaders and transparency regarding incidents between police offi cers and citizens (Wood,

2009). In 2009, the LAPD was released from the consent decree that had been in place for

eight years after incidents such as the Rampart scandal and the Rodney King incident. A

federal judge ruled that the department had made substantial reforms, but also mandated

more training and reforms (Moore, 2009). One could argue that accountability, as long as

it covers the means as well as the ends of law enforcement, is the key to an effi cient and

ethical police department. In 2009, Bratton resigned and, in 2010, he became the head of

Altegrity Risk International, an international security fi rm.

Whereas the formal code of ethics emphasizes the public servant role of law en-

forcement, the informal subculture emphasizes the crime fi ghter role. The public expects

the police to live up to the crime fi ghter role, but also expects more. The public expects the

police to be problem solvers and supermen (and superwomen). From noisy neighbors

to incest, we expect the police to have the answers to our problems—to be the one-stop

shop for solving problems. The surprising thing is that the police do so well at this impos-

sible task.

The Gallup Poll has measured respect for police since 1965. In a 2005 poll, 56 percent

of Americans indicated that they had “great” respect for police. This is down from about

70 percent in the 1960s, but when those who answered with “some” respect is added, 89 per-

cent of the population has some or a great deal of respect for police (Gallup Poll, 2005).

Public perceptions of police misconduct have been linked to the public’s trust in the

police and the recognition of police as agents of legal and moral authority (Tyler, 1990;

Tyler and Wakslak, 2004). Interestingly, at least one study found that while extensive me-

dia coverage of a police scandal infl uenced the public’s belief about the guilt of the offi cers

involved, it did not seem to affect the public’s general perceptions of respect for the agency

(Chermak, McGarrell, and Gruenewald, 2006). Another study found that public attitudes

about police misconduct are separate and distinct from their attitudes about police ef-

fectiveness. The most infl uential factors on public attitudes about police misconduct were

personal experiences of self, family and friends, neighborhood characteristics, and media

coverage, while public attitudes of police effectiveness were infl uenced by other factors

(Miller and Davis, 2007).

Public attitudes toward police misconduct/police legitimacy have even been linked

to violent crime (Kane, 2005). Therefore, it is important for police departments to set and

maintain high standards of conduct not only for their own professional pride, but also

because it seems that police ethics impact public safety in a more general sense. Police

offi cers who ignore the law evidently give others the green light to do so as well.

C O N C L U S I O N

In this chapter, we have identifi ed two “missions” of law enforcement. We looked at

the parameters of police discretion and how researchers have drawn typologies to de-

scribe the way individual police offi cers navigate their multifaceted role by emphasiz-

ing certain duties over others. Offi cers’ discretion is controlled and guided by both

formal ethics and the informal culture of law enforcement offi cers. The police subcul-

ture is not monolithic and may be different from when the early researchers described

it. There does seem to continue to be support for what has been called “noble-cause

corruption” and “the blue curtain of secrecy.” Throughout this discussion and the

chapters to follow, the mission and role of police as crime fi ghters or public servants is

a pervasive theme.

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1 3 0 P A R T I I | Po l i c e

C H A P T E R R E V I E W

1. Describe the two different missions of law enforcement in a democracy.

The two missions of law enforcement are crime fi ghting and public service. Under the

crime fighting mission, criminals are the “enemy,” and fundamentally different from

“good” people. Police are the “army” that fi ghts the enemy, and various means that might

otherwise be illegal or against the rules are excused or justifi ed because of the importance

of the mission of crime fi ghting. Under the public service mission, police are seen as serv-

ing the needs of all the public. This role is more expansive than the crime fi ghter role and

includes other types of public service. Furthermore, it involves the idea of public service to

all people, not just law-abiding “good” citizens.

2. Explain the types of control that police have at their disposal.

Authority is the unquestionable entitlement to be obeyed that comes with certain roles,

such as police offi cer. We do what they tell us because of their uniform. Power is also in-

herent in the role but implies that force will be used against resistance. Persuasion uses

signs, symbols, words, and arguments (and possibly deception) to induce action. Force is

the use of physical coercion to subdue the will of the individual.

3. Provide the justifi cation for police power and the basic ethical standards that derive

from this justifi cation.

The social contract is the basis of police power. We basically give up some rights in return

for protection (by police). Part of that agreement is that they have the right to utilize power

in order to protect the populace against aggressors. The social contract is also the basis of

police ethics. Cohen and Feldberg (1991) propose fi ve ethical standards that can be de-

rived from the social contract: fair access, public trust, safety and security, teamwork, and

objectivity.

4. Identify the differences between the formal ethics of law enforcement and the values

of the police subculture.

Formal law enforcement ethics promote the principles of fairness, service, the importance

of the law, and upstanding personal conduct. The police subculture, on the other hand,

has been described as endorsing stereotyping (“assholes”); absolute loyalty to colleagues

(blue curtain of secrecy); the use of force for those who don’t respect police authority; and

noble-cause corruption (testilying and other “means”).

5. Describe recent research fi ndings on the police subculture.

In a research study, two-thirds reported that a whistleblower would encounter sanctions,

more than half agreed that it was not unusual for police to ignore improper conduct on

the part of other offi cers, and 61 percent indicated that police offi cers do not always re-

port even the most serious violations/crimes of other offi cers. About 60 percent of rook-

ies support mild lies to achieve a conviction. However, substantial variation exists among

offi cers in their cultural views, according to survey studies. Current researchers conclude

that the police culture is not monolithic and is perhaps more fragmented today than in

the past.

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C H A P T E R 5 | T h e Po l i c e Ro l e i n S o c i e t y 1 3 1

K E Y T E R M S authority

blue curtain of secrecy

code of silence

community policing

discretion

duty

force

persuasion

power

public servants

social contract

zero-tolerance policy

S T U D Y Q U E S T I O N S

1. What are Klockars’s descriptions of police authority, power, persuasion, and force?

2. Describe Wilson and Brown’s typologies of police, and explain how each might use

discretion.

3. Describe the elements of the formal code of ethics, and contrast them with the values

of the police subculture.

4. Describe Sherman’s police “values” and Herbert’s normative orders.

5. Explain why some people think the police subculture is breaking down.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) discretion in policing. In this essay, defi ne discretion,

give examples, and discuss unethical and ethical criteria for the use of discretion. Find

newspaper articles illustrating police use of discretion. Analyze the offi cer’s use of dis-

cretion in relation to the ethical systems described in earlier chapters.

2. Write an essay on (or discuss) community policing and whether it is likely to reduce or

to encourage unethical actions by police offi cers. Utilize current research to illustrate

whether or not community policing is growing or declining in popularity.

3. Write an essay on (or discuss) the two perceptions of the police offi cer—crime fi ghter

or public servant. Consider various police practices and innovations as supporting one

or the other role.

E T H I C A L D I L E M M A S

Situation 1

As a patrol offi cer, you are only doing your job when you stop a car for running a red light.

Unfortunately, the driver of the car happens to be the mayor. You ticket her anyway, but

the next morning you get called into the captain’s offi ce and told in no uncertain terms

that you screwed up, because of an informal policy extending “courtesy” to city politi-

cians. Several nights later, you observe the mayor’s car weaving erratically across lanes and

speeding. What would you do? What if the driver were a fellow police offi cer? What if the

driver were a high school friend?

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1 3 2 P A R T I I | Po l i c e

Situation 2

There is a well-known minor criminal in your district. Everyone is aware that he is engaged

in a variety of crimes, including burglary, fencing, and drug dealing. However, you have

been unable to make a case against him. Now he is the victim of a crime—he reports that

he is the victim of theft and that his neighbor stole his riding lawnmower. How would you

treat his case?

Situation 3

You are completing an internship with a local police agency. The offi cers you ride with are

great and let you come along on everything they do. One day, the offi cer you are riding

with takes you along on a drug raid. You are invited to come in when the house is secure,

and you observe six young men sitting on two sofas in the living room. The offi cers are

ransacking the house and asking the young men where they have hidden the drugs. Four of

the youths are black and two are white. One of the offi cers walks behind the sofa where the

black youths are sitting and slaps each one hard on the side of the head as he walks past.

He ignores the two white youths sitting on the other sofa. You are shocked by his actions,

but you know that if you say anything, your chance of being hired by this agency will be

very small. You desperately want a good recommendation from the offi cers you ride with.

What would you do?

Situation 4

You are a police offi cer in New Orleans. During the fl ood following Hurricane Katrina,

you are ordered to patrol a section of the downtown area to prevent looting. The water is

waist high in some places, and sections of blocks are, for the most part, inundated with

fl oodwater. You come upon one shop where the plate-glass window has been broken, and

about a dozen people are coming out of the shop with clothing in their arms. The stores’

contents will be written off anyway by the owners and covered by insurance. Should that

make a difference in your decision? What if the store was in an area of the city that wasn’t

fl ooded and the contents were not ruined? What if the people said they were desperate

and didn’t have any clothes because their belongings were under water? What if the items

being taken were televisions and other electronics?

Situation 5

You and your partner have been working together for more than fi ve years. He has seen you

through the serious illness of your young child, and you have been there for him during his

divorce. After the divorce, though, you have become increasingly anxious about him. He

is obviously not taking care of his health, he drinks too much, and he has been consistently

late to roll call. Now you can smell alcohol on his breath during the day and suspect that

the ever-present cup of coffee he carries has more than a little whiskey in it. You’ve tried

talking to him several times, but he just gets angry and tells you to mind your own busi-

ness. Today, when the two of you responded to an accident scene, a witness drew you aside

and said, “Aren’t you going to do something about him?” pointing to your partner. Unfor-

tunately, you knew what she meant, for he was literally swaying, trying to keep his balance

in the hot sun. To make matters worse, he insists on driving. What would you do?

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• 133 •

C h a p t e r O b j e c t i v e s

1. Provide any evidence that exists that law enforcement offi cers perform their role in a discriminatory manner.

2. Present the ethical issues involved in proactive investigations.

3. Present the ethical issues involved in reactive investigations.

4. Present information concerning the prevalence of and factors associated with the use of force by police

offi cers.

5. Enumerate predictors associated with the use of excessive force.

Police Discretion and Dilemmas

The selection of Joseph Pistone as an undercover agent to infiltrate the Mafia made

sense. He was Sicilian and grew up on the mean streets where Mafi a “wiseguys” drove

the big cars and had the most money. In 1976, after he had been with the FBI for seven

years, he was selected to work undercover to bust a truck hijacking ring. His success in

that role led his FBI supervisors to decide that he would make a good small- time jewel

thief in order to get close to Mafi a members. He became Donnie Brasco. His six years as

Donnie Brasco meant that he lived the life of the “wannabe wiseguy,” with visits to his

wife and daughter, who were moved to another state, limited to a day or so every three

or four months. Eventually he got close to some of the most powerful organized crime

fi gures in New York.

When his Mafi a friends decided that he had to be “made”—an honor that meant he

would be a full member of the family, but only after he completed a hit on someone they

targeted—the FBI decided to pull him out. Brasco’s information led to 200 indictments,

100 convictions, and a $500,000 contract on his head. Later, the FBI convinced organized

crime fi gures to rescind the contract, but Brasco continues to travel and live in a way that

protects his identity. A movie based on his book about the experience, called Donnie

Brasco, was a hit in the late 1990s (Pistone, 1987; Pistone and Brandt, 2007).

Brasco’s story is the iconic image of law enforcement—a lone “warrior,” who, at great

risk to self, investigates and ultimately catches bad guys. While most police offi cers in the

United States do not have a career that becomes the plot for a Hollywood movie, every

offi cer has probably at times felt as alone as Brasco was working undercover. In many

Z ig

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1 3 4 P A R T I I | Po l i c e

situations, police offi cers have to make decisions on their own, with only their own moral

compass to guide them.

Most ethical dilemmas that police offi cers face derive from their powers of discretion.

These ethical dilemmas are part and parcel of the job. Muir describes moral dilemmas

of the police offi cer as frequent and unavoidable, not academic, always unpopular with

some groups, usually resolved quickly, dealt with alone, and involving complex criteria

(Muir, 1977: 211). In this chapter, we will discuss three topics: discrimination, investigative

practices, and the use of force. Each of these topics has been the center of controversy.

Each also can be thought of as representing Klockars’s descriptions of the types of control

possessed by law enforcement described in the last chapter: authority, power, persuasion,

and force. Authority and power represent the idea that police offi cers can tell us what to

do and we usually do it. We all know that if we don’t do it, there is the threat of more

coercive control to come. What if the police offi cer exercises this control in an unfair and

discriminatory way? This is the topic in the fi rst section, where we discuss discretion and

discrimination. Persuasion is the type of control that allows police offi cers to use non–

physically coercive means to achieve their goal, including the use of deception. We discuss

various forms of deception in the section on discretion and criminal investigations. Finally,

the most coercive control is physical force, and the last section in this chapter describes the

issues concerning discretion and the use of force. In each of these sections, we describe the

issues generally, but also try to show how individual offi cers might be faced with dilemmas

related to the issue. It is helpful to approach individual decisions by asking the following

questions:

What must the offi cer do under the law? •

What does departmental policy dictate? •

What do individual ethics dictate? •

Discretion and Discrimination When individuals have discretion, individual prejudices and perceptions of groups such

as women, minorities, and homosexuals can infl uence their decision making. Offi cers’

views of the world affect the way they do their job. If these views include prejudicial at-

titudes toward groups, and such prejudices affect decisions, those groups may not receive

the same protections as “good” citizens. The point is not that police offi cers are more prej-

udiced than the rest of us; it is that their special position creates the possibility that their

prejudices could cause a citizen to receive less protection from the law than other citizens

would. This becomes even more of a problem when the police occupational culture rein-

forces prejudicial views of groups of citizens. Essentially, when police act on prejudices

while performing their jobs, they discriminate either in the allocation of services or en-

forcement of the law. Discrimination often takes the form of either enforcing the law dif-

ferentially or withholding the protections and benefi ts of the law (Kappeler, Sluder, and

Alpert, 1994: 175). As the In the News box illustrates, some police offi cers may express

extremely negative stereotypes of certain groups. Administrators cannot take the chance

that such views may translate into differential enforcement of the law.

As has been discussed before, officers form viewpoints regarding certain groups

of people, and these viewpoints affect officers’ behaviors and decision making. The

“assholes” in Van Maanen’s description of the police culture, by whatever name, comprise

one group that may be the target of discrimination because police may behave differently

once a citizen is labeled as such. Other groups that may be treated differently are gays and

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C H A P T E R 6 | Po l i c e D i s c re t i o n a n d D i l e m m a s 1 3 5

the poor, and obviously there is the long- standing, pervasive—some may say endemic—

issue of discrimination toward minorities, especially African Americans.

Kappeler, Sluder, and Alpert (1994: 176–184) discuss the case of Konerak

Sinthasomphone—one of Jeffrey Dahmer’s victims—as an example of police bias and

discriminatory treatment of homosexuals and racial minorities. Sinthasomphone was the

Laotian boy who was found wandering the streets, incoherent, naked, and bleeding from

the rectum. He had escaped from Dahmer’s apartment after he had been drugged, tor-

tured, and sexually abused. Two African American women called the police. When the

police arrived, the women tried to tell them that Sinthasomphone was an injured boy and

that Dahmer was the one who hurt him. Despite the women’s attempts, police offi cers on

the scene helped Dahmer take Sinthasomphone back to his apartment and waved away

emergency medical technicians who were starting to examine him. If they had examined

him, they would have discovered the holes that Dahmer had already drilled into his skull

and the acid that he had poured into the holes. Dismissing the incident as a “homosexual

thing,” the offi cers left Sinthasomphone with Dahmer, who strangled him shortly after

they left.

This case is not about a simple mistake in judgment on the part of police offi cers.

Their conduct represents a pattern of enforcement that allots police protection based on

membership in certain categorical groups. If the Laotian boy had been white, if he had

been a she, if Dahmer had been a minority member instead of a Caucasian, if the two

women who requested assistance had not been African American, we might have seen

a different response. Even though the police chief suspended the offi cers involved, they

in the N E W S O F F T H E R E C O R D ?

A Temple University journalism student became news when she wrote an article after riding

along with a Philadelphia police offi cer. During the few hours she rode with him, she heard a

display of derogatory language and expressions of racism that became the focus of her article

(titled “Black and Blue”). Then her news article became news itself as it spawned a heated con-

troversy over whether police were racist, and whether she should have printed the negative

article. In the article, she relates how the offi cer explained a range of calls involving assaults,

rapes, and other crimes as “TNS” (“typical n- - - - - shit”), and told her that the people living in the

all- black neighborhood were “like animals.” The journalism student couldn’t understand why

the offi cer was using such offensive language to her, and one must conclude that it was because

he didn’t see it as such. The offi cer was relegated to desk duty pending an investigation; the

student worried about getting a job.

A N D E L S E W H E R E … A police offi cer was fi red during his probationary period, partly because he felt comfortable

expressing stereotypical attitudes such as, when asked what the occupation of a witness was, he

responded, “Well, she’s Asian, so she’s either a manicurist or a whore.” Supervisors decided this

offi cer was not equipped with the right personality characteristics to enforce the law.

SOURCE: John- Hall, 2009; personal communication, 2010.

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1 3 6 P A R T I I | Po l i c e

were supported by the police union and were ultimately reinstated with back pay. No fur-

ther sanctions were taken against them. Obviously, the case is an extreme example of what

happens when police allow their prejudices to infl uence their decision making when re-

sponding to a call for assistance. In other, less dramatic, cases that occur every day, how

much do individual biases affect police offi cers’ decisions? It seems the answer depends

on whom you ask.

Another case that illustrates elements of discrimination, the blue curtain of secrecy,

and the culture of force is the beating of undercover offi cer Mike Cox in Boston. Lehr

(2009) has chronicled the incident where Cox, working undercover, was chasing a suspect

and ended up almost being killed by other offi cers. Offi cers came up behind Cox, as-

sumed he was the suspect, and pulled him backwards off the fence he was climbing and

brutally beat him, despite his protestations that he was an offi cer. This was not the fi rst

time that a black undercover offi cer was mistaken for a suspect. Cox received severe head

injuries and still suffers from speech and memory problems. In the ensuing investigation,

“no one saw anything.” It is not coincidental in this case that Cox was black. To the police

offi cers who pulled him down and beat him, it was a natural reaction to assume a black

man running ahead of them was a suspect instead of a fellow offi cer. It might be argued

that the fact that no one admitted their mistake in beating him indicates both the strength

of the blue curtain of secrecy and the fact that black offi cers still are not entirely part of the

“brotherhood” in some departments.

Elsewhere, one sees that black offi cers resent this “otherness.” A group of fi ve black

offi cers in the Minneapolis police department sued over alleged discrimination in the de-

partment and won a $740,000 settlement. More troubling, a joint city/federal probe of

corruption in the department was scuttled, arguably due to a decision that the depart-

ment’s internal policies tainted the investigation because the only offi cers targeted in the

corruption probe were black (Star Tribune, 2009; Kennedy and McEnroe, 2009). Even af-

ter many decades of black and white offi cers working together, there is an uneasy tension

between them in some departments across the country.

More clearly, there is a pervasive sense among minority groups in the United States

that law enforcement is fundamentally racist (Cole, 1999; Walker, Spohn, and DeLone,

2000; Crank, 1998). Some argue that this perception is based in reality. However, it should

be strongly emphasized that the charge of racism is not limited to law enforcement, but

rather, has been leveled against the whole legal system. The system of laws and punish-

ment, the courts that administer the laws, and the corrections system that makes decisions

regarding the liberties of those convicted have all been described as agencies that system-

atically and pervasively discriminate against minority groups. Police, in this view, are just

one element in systematic, even institutional, racism.

Most studies indicate that blacks express more distrust of police than whites or His-

panics. In a Pew Hispanic Center study conducted in 2008, it was found that while 74 per-

cent of whites felt that police would “treat them fairly,” only 46 percent of Hispanics and

37 percent of black citizens thought so. About 78 percent of whites said they had a great

deal or fair amount of confi dence that police would do a good job, but only 60 percent of

Hispanics and 55 percent of black respondents expressed the same view. Almost three-

fourths (73 percent) of whites believed police would not use excessive force, compared to

only 46 percent of Hispanics and 38 percent of black respondents (Yen, 2009).

Studies show that civil rights complaints against police are correlated positively to the

percentage of minorities in the population, as well as the income differential of the ju-

risdiction (Holmes, 2000). Some studies report that lower- class African Americans have

signifi cantly more negative interactions with police. More than twice as many report dis-

respectful language or swearing by police officers (Weitzer, 1999). Interestingly, some

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C H A P T E R 6 | Po l i c e D i s c re t i o n a n d D i l e m m a s 1 3 7

studies indicate that middle- class African Americans express more negative attitudes than

do lower- class African Americans. One speculation for this fi nding is that those who live

in bad neighborhoods and experience the danger and inconvenience of prevalent crimi-

nality allow police more latitude to control those who “have it coming to them” (Weitzer,

1999: 838). Age, income, sex, and education, living in metropolitan areas, and experiences

with police all have been shown as infl uencing attitudes toward police (Weitzer and Tuch,

2002, 2004). It appears that race remains a key variable even after controlling for other

factors, arguably because blacks report having more negative interactions with police, are

more likely to be exposed to negative media portrayals of police misconduct, and are more

likely to live in high crime areas where police employ a more combative style (Weitzer

and Tuch, 2004). Reisig and Parks (2000) found that areas of concentrated disadvantage

showed the least satisfaction with police, but that race was still a predictor, even when

controlling for neighborhood.

The Project on Policing studies utilized 240 hours of observations of encounters with

3,130 suspects in Indianapolis and St. Petersburg, Florida, in 1996–1997. In this study,

trained observers noted characteristics of these encounters, and the results were used to

examine things such as police offi cers’ use of force and disrespect. The authors provide a

careful review of prior studies and note that police behavior toward citizens is infl uenced

by disrespectful or resistant behavior, intoxication, or mental illness. In other words, the

results tend to point to aspects of demeanor rather than race or class (Mastrofski, Reisig,

and McCluskey, 2002, citing Wesley Skogan; but see also Weitzer, 1999). Researchers

noted that suspects were disrespectful toward police in 15 percent of encounters, while

police were initially disrespectful toward suspects in only 5 percent of encounters. The

elements that were related to suspect disrespect toward police included heightened emo-

tion, number of bystanders, presence of intoxicants, being mentally impaired, and being

in a disadvantaged neighborhood (Reisig et al., 2004; Mastrofski, Reisig, and McCluskey,

2002: 534).

Contrary to other studies and popular opinion, these researchers found that minor-

ity suspects experienced less “disrespect” than white citizens. The difference was more

pronounced in St. Petersburg, arguably because a new police chief made race relations a

priority in his administration. This research controlled for other factors, such as resistance.

Only in the presence of large crowds when the minority suspects were disrespectful did

they have a higher risk than whites of being shown disrespect. Other fi ndings indicated

that age, sex, and wealth infl uenced whether or not the citizen would experience disre-

spect, controlling for their behavior (Mastrofski, Reisig, and McCluskey, 2002). The au-

thors pointed out that although the presence of researcher- observers may have affected the

offi cers’ treatment of citizens, it seems unlikely because the observers saw extreme cases

where offi cers used excessive force. Further, race did seem to be a predictor in the use of

verbal and physical coercion by offi cers observed in the encounters (Terrill, 2001; Terrill,

Paoline, and Manning, 2003).

Mastrofski, Reisig, and McCluskey also suggest the possibility that minority mem-

bers may experience more disrespect than whites if the frequency of encounters for them

is greater than for whites. That is what actually happened, because blacks in both cities ap-

peared in the pool of encounters at roughly 1.5 times their percentage in the general popu-

lation. In other words, even though when stopped, blacks were no more likely than whites

to receive disrespect, they were stopped 1.5 times as often as their population percentage

would have predicted. Thus, the rate of blacks receiving disrespect was higher than that of

whites (Mastrofski, Reisig, and McCluskey, 2002: 543).

African Americans are not the only minorities who suffer from differential en-

forcement patterns. Perhaps some of the most egregious cases of discriminatory law

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1 3 8 P A R T I I | Po l i c e

enforcement occur on this nation’s southern borders (Crank, 2003; Huspek, Martinez,

and Jiminez, 2001). In one sample of 204 persons, 43 percent reported seeing physical

brutality and 12 percent reported being victimized by sexual or physical abuse (Huspek,

Martinez, and Jiminez, 2001: 187). Many of those reporting incidents were legal residents

of the United States, though of Mexican origin. Their passports were thrown away and

offi cial documents torn up, and they were told that they should go back to Mexico. They

then had to wait in Mexico until family members could replace the documents and help

them get back across the border. Huspek, Martinez, and Jiminez (2001: 185) argue that

border agents act this way because they are encouraged by the “rhetoric of fear” and tacit

acceptance of any means necessary to reduce or discourage illegal immigration.

It is possible that as illegal immigration becomes a more central political issue, local law

enforcement agencies will be pressured to use “any means” to help enforce immigration

laws, and that this will lead to discriminatory treatment of Latinos. In May 2010, Arizona

passed a law requiring police offi cers in the state to ask for proof of citizenship or residency if

there was reasonable suspicion that the person was an illegal immigrant. The passage of the

law has generated a storm of controversy. One side argues that the law only requires police

to enforce existing immigration laws and Arizona is defending its borders since the federal

government seems unable to do so. The other side, joined by some police groups, argues

that it would result in racial profi ling and make the job of policing more diffi cult because vic-

tims and witnesses who are here illegally will not come forward to talk to police. “Your pa-

pers please!” is the stock line of old WWII movies of Nazi Germany, but many argue that it

is time that the United States followed suit to stem the tide of illegal aliens. The immigration

problem is a huge social, economic, and public policy debate in the United States; however,

police offi cers, especially in Arizona now, are the ones who have to do more than debate the

issue—they must make daily decisions that affect the lives of those they come across.

R A C I A L P R O F I L I N G

Racial profi ling occurs when a police offi cer uses a “profi le” as reasonable suspicion to

stop a driver (although it can also be used to refer to stops of pedestrians), primarily to

request a consent search of the automobile. The so- called profi le is based on race. When

a young, black man is seen, for instance, driving a newer- model, expensive car, police of-

fi cers suspect that the vehicle is stolen and/or that the man is holding drugs. A “pretext

stop” refers to the practice of police offi cers to use some minor traffi c offense to stop the

individual and, in the course of the traffi c stop, look for other evidence of wrongdoing,

specifi cally by a search, usually a consent search. In general, minorities are targeted be-

cause of a belief that they are more likely to be criminal.

Racial profi ling began when federal agents developed a profi le of drug smugglers to as-

sist border patrol and custom agents in airports. The list of indicators included behavior as

well as demographic indices, including race. The concept was expanded to highway drivers

by state patrol offi cers who were attempting to stem the fl ow of drugs up through the inter-

states in Florida, Georgia, Texas, and other southern states. (Harris, 2004; Crank, 2003).

Studies on racial profi ling show that minorities may be stopped in numbers far greater

than their proportion of the population would indicate. For instance, one study showed

that although blacks represent only about 26 percent of the New York City population,

51 percent of all stops by NYPD offi cers are of blacks (as represented by “fi eld interroga-

tion cards” (Smith and Alpert, 2002: 675). However, the methodology of some racial pro-

fi ling studies is problematic (Smith and Alpert, 2002; Engel, Calnon, and Bernard, 2002).

Determining the base rate of minorities is diffi cult because one might use the percentage

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of nonwhites in the population, the percentage of nonwhite drivers, the percentage of non-

white drivers who engage in traffi c offenses, or some other denominator. Most of the ear-

lier studies used percentage- of- population fi gures, but other researchers are highly critical

of this rough approximation of the base rate. Interpreting the data is also mentioned as a

problem. Numbers are typically collected without any theoretical framework, and they are

often collected by the agencies themselves. Typically, no exploration of the connection

between attitudes and behavior accompanies most racial profi ling studies; in other words,

there is no proof that the stops are due to prejudicial views toward those stopped. Racial

profi ling studies typically do not include measures of the suspects’ demeanor even though

another body of research concerning police–citizen stops and interactions (including use

of force) has identifi ed the important role of a suspect’s demeanor in police decision mak-

ing. Finally, few studies examine the reward structures and training in law enforcement

agencies. Most studies place the decision making solely within the purview of the indi-

vidual offi cer, but it is important to note organizational infl uences on such behavior, es-

pecially because studies show that black offi cers are just as likely as white offi cers to stop

blacks in disproportionate numbers (Engel, Calnon, and Bernard, 2002).

Some charge that Arizona’s new law, passed in the spring of 2010, requiring offi cers to

inquire about citizenship if there is a reasonable suspicion that the person is an illegal im-

migrant will lead to racial profi ling. Others argue that the law specifi cally states that race or

ethnicity cannot be used as the sole criteria for stopping a person.

LAW What does the law say about racial profiling? In cases such as United States v. Martinez- Fuerte (425 U.S. 931 [1976]), the U.S. Supreme Court has basically legitimated

the use of race as a criterion in profi les (although lower courts are not in agreement when

race seems to be the sole or primary reason for the stop). Further, pretext stops (where

police stop a driver because of some minor traffi c violation but the real reason is to investi-

gate suspected criminal activity) have been accepted by the court in Wren v. United States

(517 U.S. 806 [1996]), in effect allowing the police to use their discretion to enforce minor

laws as a tool to implement race- based stops. Generally, the law allows the use of race as

one element in the decision to stop, but does not allow it to be used as the sole element in

the decision to stop or for profi ling purposes.

In Arizona, the offi cer may be legally obligated to ask for proof of citizenship if there

is a reasonable suspicion that the individual is here illegally. Legal challenges are underway

by civil rights lawyers in Arizona as well as the Department of Justice, but unless it is over-

turned, police offi cers in Arizona have a legal obligation not present in other states.

POLICY Police policies have defi nitely undergone dramatic change in the last 20 years re- garding racial profi ling, largely as a result of public concern. In 1999, President Bill Clinton

condemned the practice, and congressional hearings were held to investigate how wide-

spread the practice was. Most people objected to racial profi ling as used in the “war on

drugs” in the 1980s and 1990s. In their telephone attitude survey of 2,006 respondents

in 1999, Weitzer and Tuch (2002: 441) discovered that only 6 percent of blacks and only

16 percent of whites were in favor of stops based on race. The result of public scrutiny was

?? DILEMMA: Should you stop a late model car driven by two young Latino men because you suspect they cannot af- ford it and may have evidence of criminal activity in the car? You believe it’s possible they may be illegal immigrants as well. The

driver then makes a right turn without signaling as you watch. Should you stop the car (even though you wouldn’t bother in other

circumstances)? Should you ask for evidence that the men are legal residents of the United States?

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that many states passed legislation requiring police departments to collect demographic

information on police stops to determine whether racial profi ling was an issue, and many

departments instituted these collection procedures and training to sensitize offi cers to the

possibility that their discretion was being used in a racially discriminatory manner.

As for profi ling based on suspicion of being an illegal immigrant, some police de-

partments have a policy that does not allow offi cers to pursue immigration- related queries

because of a belief that it will hamper police–community communications (victims and

witnesses will be afraid to come forward). Other departments encourage offi cers to con-

tact federal offi cials if there is a suspicion of immigration violations. However, many de-

partments provide no formal policy at all to assist offi cers in decision making in incidents

where Latinos are involved.

ETHICS Do ethical rationales help us determine whether or not racial profi ling, if legal, is ethical? A utilitarian argument for racial profi ling would be that the “end” of drug interdic-

tion justifi es the “means” of harassing and inconveniencing the group. However, it appears

that the end is not well served. The “hit rate” for fi nding drugs is lower for African Ameri-

cans than it is for other racial groups (Cole and Lamberth, 2001). Harris (2004) proposes

the idea that when offi cers use race in decision making, they become less effective, not

more effective, because they do not concentrate on what is important for investigation—

behavior, not demographics.

An ethical formalist system would probably not support profi le searches because this

approach is treating those individuals as a means, and it is probably contrary to the uni-

versalism principle unless everyone would agree that they should be stopped in the same

manner. Because most of us would object to numerous stops every week by police who

have no reason to be suspicious other than the color of our skin, it violates the fi rst part of

the categorical imperative.

After 9/11, those who looked like they were Middle Eastern were subject to increased

scrutiny before they boarded airliners. In some cases, individuals were denied entry to

airplanes when other passengers complained that they would not fl y with men who looked

like they might be suicide bombers. Interestingly, many people who are opposed to racial

profi ling as applied to blacks for drug interdiction agree that it is a necessary and ethical

response to terrorism. Arguably, the reason is that the “end” of protecting us from a ter-

rorist attack is greater than the “end” of protecting us from drug smuggling or other crime.

Deontological ethical systems would not arrive at a different answer based on the “end”

because they are not consequentialist.

Perhaps another reason some people have changed their minds about the value of

racial profi ling is that they are affected by a non- profi ling approach to security. While traf-

fi c stops that infringed on blacks had little effect on whites, airline security now conducts

random searches (along with more targeted searches) of everyone. Many people object

that it is wasteful to search “a little old lady from Kansas” in an effort to be politically cor-

rect, and that such searches should be targeted to those who pose the most risk (Middle

Eastern–looking men). Others argue that everyone should be subject to the same scrutiny

because the risk is so high and people might have something slipped into their luggage

without their knowledge. This argument gained greater traction recently with the exposure

in early 2010 of “Jihad Jane,” a white woman who was evidently preparing for her role in

history by some type of terrorist action. As a middle- class white woman, she would have

escaped any race/ethnicity based profi ling in airport security (CNN.com, 2010). Then, a

few months later, a white man fl ew a plane into the IRS building in Austin, Texas, another

tragic case that illustrates profi ling based on race or ethnicity is not a panacea to the threat

of terrorist acts.

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Ultimately, there are three questions concerning racial profi ling that must be consid-

ered separately. There is a question of fact: What is the most effi cient and effective method

to identify criminals and terrorists? This is different from the question of law: What is the

legal duty of an offi cer and what are the civil rights of an individual in any interaction be-

tween them? Both of these questions are different from the question of ethics: Should an

offi cer act upon a belief and suspicion created by nothing more than an individual’s mem-

bership in a minority or ethnic group?

Discretion and Criminal Investigations Recall that Klockars identifi ed persuasion as a type of control that allowed police offi cers

to utilize verbal argument and even deception, if necessary, in order to gain compliance.

In this section, we return to the use of deception as an integral element of undercover in-

vestigations. First, however, we should note that different issues are involved in proactive

investigations versus reactive investigations.

P R O A C T I V E I N V E S T I G A T I O N S

In proactive police investigations, police offi cers initiate investigations rather than simply

respond to crimes. Drug distribution networks, pornography rings, and fences of stolen

property all tend to be investigated using methods that involve undercover work and in-

formants. This is because such crimes often do not result in victims coming forward or

crimes being reported. It may be that deception is a necessary element in this type of in-

vestigation. In fact, deception is recognized as an integral part of police work.

According to one author, “Deception is considered by police—and courts as well—to

be as natural to detecting as pouncing is to a cat” (Skolnick, 1982: 40). Offenses involving

drugs, vice, and stolen property are covert activities that are not easily detected. Klockars

(1984) discussed “blue lies and police placebos.” In his description of the types of lies that

police routinely use, he differentiated placebos as being in the best interest of those being

lied to—for example, lying to the mentally ill that police will take care of laser beams from

Mars, lying to people that police will keep an eye out for them, or not telling a person how

a loved one was killed. The motive is benign, and the effect relatively harmless. Blue lies

are those used to control the person or to make the job easier in situations where force

could be used. For example, to make an arrest easier, an offi cer will lie about where the

suspect is being taken, or to get someone out on the street to be arrested, the offi cer will

say that she only wants to talk.

Barker and Carter (1991, 1994) proposed a typology of lies differentiating accepted

lies, tolerated lies, and deviant lies. Accepted lies are those used during undercover investi-

gations, sting operations, and so on. Accepted lies must meet the following standards:

They must be in furtherance of a legitimate organizational purpose. •

There must be a clear relationship between the need to deceive and the accomplish- •

ment of an organizational purpose.

The nature of the deception must be one wherein offi cers and the management struc- •

ture acknowledge that deception will better serve the public interest than the truth.

Tolerated lies, according to Barker and Carter, are those that are “necessary evils,”

such as lying about selective enforcement. Police may routinely profess to enforce certain

laws (such as prostitution) while, in reality, they use a selective manner of enforcement.

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Lies during interrogation or threats to troublemakers that they will be arrested if they don’t

cease their troublemaking are also tolerated lies.

Deviant lies are those used in the courtroom to make a case or to cover up wrong-

doing. However, one might argue with Barker and Carter that, in a few documented in-

stances, the lies of rogue divisions to make a case seemed to become prevalent enough

to be categorized as tolerated lies rather than deviant lies. It is defi nitely true that a police

offi cer, once identifi ed publicly as a liar, is unable to perform his duties as effectively, as is

made clear in the In the News box.

Undercover investigations are based on accepted lies; but there are issues as to how

such lies are employed. In proactive investigations, the central question is who the police

target and why. Selection of targets on any basis other than reasonable suspicion is a ques-

tionable use of discretion. Louisiana State Representative William Jefferson was targeted

by an FBI sting in 2005. As part of that sting, he was offered and accepted money to bribe

the Nigerian president to give lucrative contracts to a technology company that he was

connected with. When an FBI team searched his home, they found $90,000 wrapped in

tinfoil and hidden in his freezer. Jefferson maintains that he was entrapped and that he was

conducting his own investigation. Voters in Louisiana reelected him in 2007 even though

he was under federal indictment for bribery and a range of other crimes (Foxnews.com,

2007). In November 2009, he was sentenced to 14 years in prison (Tilove, 2009). It is im-

portant to note, though, that his defense and supporters utilized a suspicion that threads

though many people’s minds that the choice of target in undercover investigations is based

on factors other than probable cause or reasonable suspicion.

in the N E W S T E L L T H E T R U T H , T H E W H O L E T R U T H ?

William Bailey was the public safety director of North Myrtle Beach until he lied about the theft

of his police- issued gun. In the investigation of his missing gun, he said his truck was unlocked,

but the glove compartment, where he kept the gun, was locked. However, a newspaper inves-

tigator uncovered evidence that showed that his model of truck did not have a locking mecha-

nism on the glove compartment. Some states, such as Washington, mandate that police offi cers

can be terminated for lying. Such laws are based on the fact that prosecutors must produce

and hand over to the defense any evidence that casts doubt on a police offi cer’s testimony.

Therefore, if an offi cer has been disciplined for lying, it can be used by a defense attorney to

challenge his or her credibility.

A N D E L S E W H E R E … An offi cer in a small town was terminated for lying to the chief of police about a use- of- force

incident. He appealed the decision, and an independent arbitrator ordered that his job be rein-

stated. Then the district attorney wrote a letter advising that she would not prosecute any case

that required the testimony of this offi cer since his credibility had been compromised. The chief

then faced the problem of where to assign this offi cer where he would not damage the success-

ful investigation and prosecution of criminal cases.

SOURCES: Wren, 2010; personal communication, 2010.

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How targets are selected is a serious question. Arguably, the selection should be based

on reasonable suspicion. However, Sherman (1985b) reported that “tips” are notoriously

inaccurate as a reason to focus on a certain person. To the targets of an FBI sting, it may

appear that they have been unfairly targeted and, especially when targets are political fi g-

ures, the charge of improper target selection is easy to make. In fi nancial crimes, often

there must be a whistleblower before fi nancial crimes are discovered at all. When the whis-

tleblower himself has committed crimes, it becomes problematic.

Police operations that provide opportunities for crime change the police role from

one of discovering who has committed a crime to one of discovering who might commit a

crime if given a chance. For instance:

A fake deer placed by the side of the road is used to entice overly eager hunters, who •

are then arrested for violating hunting laws.

Police offi cer decoys dress as drunks and pretend to pass out on sidewalks with money •

sticking out of their pockets.

Undercover offi cers, posing as criminals, entice doctors to prescribe unneeded medi- •

cations that are controlled substances, such as Percoset and Oxycontin.

Police undertake various stings in which they set up fencing operations to buy stolen •

goods.

Are only bad people tempted? If taken too far, this role expansion is arguably danger-

ous, undesirable, and inconsistent with the social- contract basis of policing because police

are, in effect, creating crime. The opposing argument is that crimes would occur regardless

of whether police set up the opportunity and that the good of catching criminals outweighs

the negative possibility that some people might not have committed that particular crime

at that time if the police had not presented the opportunity. Both of these arguments exist

under a utilitarian framework. So even when using the same ethical system, a particular ac-

tion may be judged as ethical or unethical depending on how one perceives the facts.

White Collar Crime: Whistleblower or Target?

In the last several years, we have seen a number of highly

visible white collar crime investigations and prosecu-

tions. Bernie Madoff was convicted of perhaps one of

the biggest Ponzi schemes in history. Jeffrey Skilling of

Enron remains in prison for his role in the defrauding

of Enron investors. Allen Stanford in Texas will be tried

sometime in 2010, accused of running a Ponzi scheme

almost as large as Madoff ’s. In many of these cases, it

is through the actions of a whistleblower that authorities

are alerted, not through targeting a suspect and under-

cover police work. Generally, schemes such as insider

trading, Ponzi schemes, corporate fi duciary malfeasance,

and other criminal operations do not attract the attention

of the authorities until they begin to unravel and victims

come forward or until an insider tells authorities about

the crime. One such case is Bradley Birkenfeld, a banker

who approached the FBI and federal authorities with an

offer to expose tax fraud schemes by Americans who hid

their money in Swiss banks. Birkenfeld’s information led

to UBS, one of the largest banks in Switzerland, agree-

ing to pay the U.S. government $780 million for helping

Americans dodge taxes. Birkenfeld came forward because

of a new whistleblower law that awards up to 30 percent

of the tax revenue retrieved based on the information to

the whistleblower and immunity from criminal prosecu-

tion. Unfortunately for him, his information implicated

him, and he was prosecuted and is now in prison despite

pleas from his lawyers and whistleblower organizations

that punishing the person who comes forward will dis-

courage others. His case is on appeal. It does seem to be

true that no undercover offi cer could have obtained the

information that Birkenfeld brought to authorities.

Source: Hilzenrath, 2010.

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Other types of stings are designed to catch those who have already committed crimes,

and thus are, arguably, less problematic. Creative scams include sending party invitations

or prize announcements to those with outstanding warrants to get them to come to a cer-

tain location, or staging a murder in a high- crime neighborhood and then arresting those

(with outstanding warrants) who come out to see what is happening. The utility of such

stings is undeniable. The only argument against them is that the government deception

appears unseemly. It is also possible that such actions may undermine public confi dence

in the police when they are telling the truth.

THE USE OF INFORMANTS Informants are individuals who are not police offi cers but assist police by providing information about criminal activity, acting as buyers in drug

sales or otherwise “setting up” a criminal act so police may gather evidence against the

target. Informants perform such services for a reward: for money, to get charges dropped

or reduced, or—in some documented cases—for drugs supplied by an offi cer. They may

inform on former associates to get back at them for real or perceived wrongs, or they may

cooperate with police to get rid of criminal rivals. Informants typically are not middle-

class, upstanding citizens. South (2001) lists reasons why informants cooperate: money,

revenge, dementia, kicks, attention, repentance, and coercion.

Informants have been or are probably engaged in criminal activities themselves. Po-

lice use informants who often continue to commit crime while helping police. In some

instances, the police handlers protect the informant from prosecution (Scheingold, 1984:

122). In one case that is reputed to be the basis for the 2006 movie The Departed, it came

to light that the FBI protected two mob informers even after they had committed murders.

John Connolly, an FBI agent, was convicted of obstruction of justice, and is serving a 10-

year prison sentence for protecting two organized- crime fi gures who were implicated in

18 murders during the time they worked for the FBI. Connolly was also indicted and tried

for second- degree murder. Allegedly, he tipped off the criminals about a man who was

informing on them and about to give testimony to a grand jury. They had this man killed

as a result (Lush, 2007). Connolly received a 40- year sentence in that murder trial, which is

to begin after he completes his 10- year federal prison sentence, but an appeal seems likely

since the state may have missed the statute of limitations on the second- degree murder

charge (Anderson, 2010). The government lost a civil lawsuit from the widow of the slain

victim and recently paid $3.1 million. In a related case, two other murdered men were

linked to the same informant, James “Whitey” Bulger, and Connolly has been implicated

in those killings as well. The government was ordered to pay the victims’ families $8.4 mil-

lion, although the case may be appealed (Murphy, 2009a).

Other agents have admitted that they bend the rules in order to keep information

sources. The In the News box shows that some FBI agents evidently believed that the

“end” of convicting some criminals justifi ed the “means” of letting four innocent men lan-

guish in prison. Critics argue that FBI agents should not make decisions regarding which

crimes are more or less important (Donn, 2003: A16).

The federal witness protection program has provided new identities for some wit-

nesses after they have accumulated bad debts or otherwise victimized an unwary public.

The rationale for informant protection is that greater benefi t is derived from using them to

catch other criminals than their punishment would bring. This also extends to overlook-

ing any minor crime they engage in during the period of time they provide information or

afterward if that is part of the deal (Marx, 1985a: 109). However, the ethical soundness of

this judgment may be seriously questioned.

One of the problems in using informants is that it presents temptations for police to

slide into unethical acts as a result of the relationship with them. Offi cers may develop

informants Civilians who are used to obtain information about criminal activity and/or participate in it so evidence can be obtained for an arrest.

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friendships with professional criminals that compromise their judgment; offi cers may pay

informants with tips or drugs and violate the law themselves; offi cers may protect infor-

mants when other law enforcement offi cials pursue them for other crimes; and offi cers

may unknowingly allow the informant to use them by directing law- enforcement inves-

tigations to criminal rivals. In a Baltimore case, it came to light that Offi cer Mark Lunds-

ford, who was part of a DEA task force, was putting his informant’s name on drug cases

he was not involved in, recommending the informant be paid bonuses for the arrests, and

then splitting the money with the informant. It also was discovered that their relationship

was so close that the informant had installed fl ooring and an air conditioner in the offi cer’s

house (Hermann, 2009).

One of the biggest problems with informants is that their reliability is highly question-

able. In the Baltimore case described above, the informant had been rejected by the FBI

as unreliable, but evidently this fact was unknown to the DEA and Baltimore police de-

partment (Hermann, 2009). Their rewards, whatever those might be, are contingent upon

delivering some evidence of crime to law enforcement. In some cases, this evidence may

be purely manufactured. In Dallas, an informant was used to buy drugs from suspected

drug dealers, who were then arrested and convicted using his testimony. When the sup-

posed cocaine that he allegedly bought from those arrested was fi nally tested, it turned

out to be powdered plasterboard. In several cases involving the same informant, there was

no evidence at all that the drug buy had taken place. Defendants, in the meantime, had

spent months in jail protesting their innocence before charges were dropped. Police and

prosecutors concluded that this informant had lied and used the cocaine substitute to get

innocent men arrested. Why? He had been paid for every buy and had earned $200,000

before his lies were fi nally discovered (Curry, 2002).

in the N E W S R E L E A S E D A F T E R 3 0 Y E A R S

For 30 years, Peter Limone and Joe Salvati were imprisoned for murder. Limone ended up on

death row for the murder; Salvati got a life sentence. Two other men convicted of the same

murder died in prison. For 30 years, the wives of Limone and Salvati waited for them and raised

their children. The men’s pleas of innocence were disbelieved until evidence came to light that

they were framed by the mob hitmen who had committed the murder. They were fi nally ex-

onerated when secret FBI fi les were released showing that FBI agents knew that one of the

witnesses had lied in order to protect the real killer. Since this witness and the real killer were

informants for the FBI, the agents kept the truth from the prosecutors, and the framed men

ended up spending decades—and for two of them, the rest of their lives—in prison for crimes

they didn’t commit.

In a lawsuit, the federal government presented an incredible argument that the FBI agents

had no duty to share the truth with the prosecutors, even if innocent men would go to the

electric chair. The judge did not agree and awarded the largest settlement on record to the four

families. They will split a $100 million settlement.

SOURCES: Lavoie, 2007: A19, 21; Belluck, 2007: A13.

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Sometimes offi cers are tempted to manufacture informants. When writing affi davits

for search warrants, offi cers may use information supplied by a “confi dential informant”

without having to name the informant. All the offi cer has to do is to state that the infor-

mant has given good information in the past and that it would be dangerous to reveal his

or her identity. This boilerplate language is routinely accepted, so information is used to

establish probable cause that cannot be verifi ed or challenged. Barker and Carter (1991)

argue that some offi cers are tempted to use imaginary confi dential informants to allow

the use of otherwise illegally obtained or simply manufactured evidence. They report on a

tragic case in which an offi cer made up evidence from a so- called informant in order to get

a search warrant. In the search, an offi cer was killed and the lie was exposed.

Some offi cers openly admit that they could not do their job without informants. How-

ever, there are other arguments that the perceived value of informants is overstated. In a British

study, the Home Offi ce concluded that informants were cost- effective. But other analysts ar-

gued that the study did not factor in issues such as tolerating continued crime (by informants)

and informants who create crime in order to report it (Dunningham and Norris, 1999).

South (2001) summarizes the ethical issues with using informants as follows:

Getting too close and/or engaging in love affairs with informants •

Overestimating the veracity of the information •

Being a pawn of the informant who is taking advantage of the system for money or •

other reasons

Creating crimes by letting the informant entrap people who would not otherwise have •

committed the crime

Engaging in unethical or illegal behaviors for the informant, such as providing drugs •

Letting the informant invade one’s personal life •

Using coercion and intimidation to get the informant to cooperate •

There are disturbing questions that one might ask about using informants. It may be

true that narcotics investigations are diffi cult, if not impossible, without them; however,

guidelines and standards exist to govern the use of informants. The Commission on Ac-

creditation for Law Enforcement Agencies (CALEA) has developed such standards.

There is also a manual from the U.S. Attorney General’s offi ce on how informants should

be legally and ethically used, including how to properly register them (Hermann, 2009).

THE USE OF UNDERCOVER OFFICERS Undercover offi cers, such as Joseph Pi- stone (Donnie Brasco), described at the beginning of the chapter, may pretend to be

drug dealers, prostitutes, johns, crime bosses, friends, and—perhaps—lovers in order

to collect evidence of crime. They have to observe or even participate in illegal activi-

ties to protect their cover. Undercover work is said to be a diffi cult role for individual

officers, who may play the part so well that they lose their previous identity. Marx

(1985a: 109) cited examples of offi cers who became addicted to drugs or alcohol and

destroyed their marriages or careers because of undercover assignments. He noted

a disturbing belief system among undercover offi cers that laws don’t apply to them

or that they are exempt from the law because of their assignment. It has been found

that undercover offi cers possess high levels of neuroticism and low levels of impulse

control, and that there are adverse psychological effects from the experience of being

undercover (Mieczkowski, 2002: 162).

Conlon (2004), a Harvard- educated New York City police offi cer, described how un-

dercover offi cers entered a no- man’s land in the department, where they were treated al-

most more like informants than fellow cops. Those who were successful at setting up buys

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were treated like “star performers,” and some developed “prima donna” attitudes. In gen-

eral, they were treated and they behaved in a way that made it hard for them to maintain

relationships with other police, not to mention probable issues with their families.

Policemen routinely pretend they are johns, and policewomen impersonate prosti-

tutes. Community members who live in neighborhoods plagued with street prostitution

may applaud any police efforts to clean up their streets. But do we want our police of-

fi cers to engage in this type of activity? An important element of this debate is the type

of relationship involved in the police deception. On a continuum of intimacy, at one

end is a brief buy- bust incident wherein the offi cer pretends to be a drug addict and

buys from a street dealer, and moments later an arrest is made. At the other end of the

continuum is a situation in which an undercover offi cer pretends to be romantically

involved with a target of an investigation to maintain his or her cover.

The second situation violates our sense of privacy to a much greater extent. In one

case, a private detective (not a police detective) engaged in this type of relationship over a

period of months and even agreed to an engagement of marriage with the suspect in order

to get a confession on tape (Schoeman, 1986: 21). In another case, a police offi cer acted

as a friend to a target of an investigation, to the extent of looking after his child and living

in his house for six months. The purpose of the investigation was to get evidence on the

man so the topless bar he owned could be shut down. Eventually the offi cer found some

white powder on a desk in the home that tested positive for cocaine, and a conviction was

secured. The Supreme Court denied a writ of certiorari in this case (United States v. Bald-

win, 621 F.2d 251 [1980]), letting the decision stand.

It was reported that New York City undercover offi cers, a year before the 2004 Repub-

lican convention, began to infi ltrate activist groups that they believed might be a problem

during the convention. Offi cers attended meetings, made friends, signed petitions, and then

reported on the activities to supervisors. In the records of the NYPD’s “Intelligence Squad”

are hundreds of reports on people who had no clear criminal plan, including church groups,

antiwar organizations, and anti- Bush groups. Reports were evidently shared with police de-

partments in other cities. Whether the prior undercover investigations had any relationships

to the mass arrests that occurred during the convention is not clear (Dwyer, 2007).

Undercover operations during the antiwar activist era of the 1960s and early 1970s led

to strict controls on police powers to engage in undercover investigations absent probable

cause that a group was planning to commit a crime. Covert government surveillance of

groups antagonistic to government policy is considered to be a threat to democracy by

civil liberty experts. Obviously, there is a proper role for law enforcement in preventing

threats to public safety, but the need to investigate threats while at the same time respect-

ing the privacy rights of citizens who, in a democracy, are free to oppose governmental

policies must be carefully balanced.

More generally, the use of undercover offi cers who pretend to be someone they are

not in order to catch criminals is a power that should be used with caution and with a sen-

sitivity to the damage it does to individual relationships and public trust.

LAW In legal terms, entrapment occurs when an otherwise innocent person commits an illegal act because of police encouragement or enticement. Two approaches have been

used to determine whether entrapment has occurred. The objective approach examines the

entrapment When an otherwise innocent person commits an illegal act because of police encouragement or enticement.

?? DILEMMA: Should you, an undercover offi cer, pose as a client in a methadone clinic and pretend to befriend other clients, and then ask them to “hook you up” with a drug dealer? Should you continue to ask someone, even beg them, over the

course of several months when they initially refuse?

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government’s participation and whether it has exceeded accepted legal standards. For in-

stance, if the state provided an “essential element” that made the crime possible, or if there

was extensive and coercive pressure on the defendant to engage in the actions, a court

might rule that entrapment had occurred. The subjective approach looks at the defendant’s

background, character, and predisposition toward crime. Currently, the Supreme Court

has endorsed the subjective test and will allow a wide range of police offi cer behavior if

they can show the subject showed a predisposition to commit the crime (United States

v. Russell, 411 U.S. 423 [1973]). In the dilemma above, one might argue that the fact the

target was going to a methadone clinic showed a predisposition to drug use and dealing;

therefore, such actions would probably be legal.

POLICY Departmental policies may provide some guidance as to how long an operation can continue when there is no criminal activity. Arguably, a “fi shing expedition” where

there is no particular target and the undercover offi cer is simply seeing who might respond

to the offer may be less consistent with departmental policy than when there is a specifi c

target of someone who there is reason to believe is engaged in continued illegal activity.

It should also be noted that sometimes narcotics task forces have very little departmental

oversight or policies that guide their actions. Such task forces have been the subject of sev-

eral scandals nationwide, and one of the defi ning features of each incident was the absence

of formal policies to guide offi cers’ behaviors.

ETHICS What about ethical rationales? One might disagree with legal standards as being too restrictive if one believes that police should be able to do anything necessary

to trap criminals. Alternatively, legal guidelines may not be sufficient to eliminate what

some consider unethical behavior. What if the undercover officer targeted someone for

11 months, continually begging and pleading with the target to sell him drugs, until

finally, simply to get rid of him, the target did so and was promptly arrested? While

this would probably not violate the subjective test of entrapment, it does raise ethical

questions. Utilitarian ethics might consider it a waste of resources without enough util-

ity for the community to justify the harm to the individual. Deontological ethics may

not support such an action either, as it does not seem to conform to the categorical

imperative (treat each person as an end and act in a way that you would will it to be a

universal law).

It is helpful, fi rst, to consider the deception on a continuum of trust. In the dilemma

above, it makes a difference whether the relationship is between simple acquaintances

or if the undercover offi cer created a friendship with the target. The reason that we are

concerned with the type of relationship is that intimate relationships form the fabric of

social support in our society and should be protected. Note we are not talking neces-

sarily about sexual intimacy, but, rather, a relationship that crosses from acquaintance

into friend. There are greater moral duties present in intimate relationships than in public

ones. There is damage to all when personal relationships are used deceptively; in fact,

some argue that an intimate relationship may take precedence over a concern for social

well- being generally (Schoeman, 1985: 144). This comes from an ethics- of- care position.

In this ethical system, the relationship of two people is more important than rights, du-

ties, or laws. There is no forfeiture of rights in the ethics- of- care position; thus, one can’t

say that the suspect deserves to be deceived. The harm to the relationship goes in both

directions. In cases where a personal relationship has developed, if the target is hurt by

the deception, so, too, is the deceiver.

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Generally, undercover actions are analyzed under utilitarian ethics. If the relationship

is an intimate one, there should be a greater utility at stake before that relationship is used.

If the operation is a simple buy- bust relationship, then there is less damage to trust and,

therefore, the utility derived can be less in order to justify such deception.

Marx (1985a: 106–107) proposed a set of questions to ask before engaging in any un-

dercover operation, that are consistent with utilitarianism:

How serious is the crime being investigated? •

How clear is the defi nition of the crime—that is, would the target know that what he •

or she is doing is clearly illegal?

Are there any alternatives to deceptive practices? •

Is the undercover operation consistent with the spirit as well as the letter of •

the law?

Is it public knowledge that the police may engage in such practices, and is the deci- •

sion to do so a result of democratic decision making?

Is the goal prosecution, as opposed to general intelligence gathering or harassment? •

Is there a likelihood that the crime would occur regardless of the government’s •

involvement?

Are there reasonable grounds to suspect the target? •

Will the practice prevent a serious crime from occurring? •

Marx (1985b, 1991) argues that undercover operations might actually create more

crime. They may also lead to unintended crime and danger. For instance, Marx mentions

situations where decoys have been attacked, undercover offi cers have been robbed, un-

dercover offi cers have been killed by other offi cers who mistook them for criminals, and

policewomen acting as prostitutes have been attacked.

Thus, utilitarianism may justify undercover operations or condemn them depending

on the utility derived and the harm done to all parties involved. Act utilitarianism would

probably support deceptive practices, but rule utilitarianism might not, because the ac-

tions, although benefi cial under certain circumstances, might in the long run undermine

and threaten our system of law. Under act utilitarianism, one would measure the harm

of the criminal activity against the methods used to control it. Deceptive practices, then,

might be justifi ed in the case of drug offenses but not for business misdeeds, or for fi nding

a murderer but not for trapping a prostitute, and so on.

The diffi culty of this line of reasoning, of course, is to agree on a standard of serious-

ness. I might decide that drugs are serious enough to justify otherwise unethical prac-

tices, but you might not. Pornography and prostitution may be serious enough to some

to justify unethical practices, but to others only murder or violent crime would justify the

practices.

Cohen (1991) also proposed a test to determine the ethical justifi cation for police

practices. His focus is the use of coercive power to stop and search, but we might apply

the same test to analyze undercover or other deceptive practices:

The end must be justifi ed as a good—for instance, conviction of a serious criminal •

rather than general intelligence gathering.

The means must be a plausible way to achieve the end—for example, choosing •

a target with no reasonable suspicion is not a plausible way to reduce any type of

crime.

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There must be no better alternative means to achieve the same end—no less intrusive •

means or methods of collecting evidence exist.

The means must not undermine some other equal or greater end—if the method re- •

sults in loss of trust or faith in the legal system, it fails the test.

Religious ethics would probably condemn many kinds of police actions because of

the deceptions involved. Ethical formalism would probably also condemn undercover op-

erations where innocent people are deceived because the actions could not be justifi ed

under the categorical imperative. Recall that you cannot use people as a means to an end,

therefore, if innocent people would be used, it would violate the categorical imperative.

Egoism might or might not justify such actions, depending on the offi cer involved and

what his or her maximum gain and loss were determined to be.

Many people see nothing wrong—certainly nothing illegal—in using any meth-

ods necessary to catch criminals. But we are concerned with methods in use before

individuals are found guilty. Can an innocent person, such as you, be entrapped into

crime? Perhaps not, but are we comfortable in a society where the person who offers

you drugs or sex or a cheap way to hook into cable television turns out to be an un-

dercover police officer? Are we content to assume that our telephone may be tapped

or our best friend could be reporting our conversations to someone else? When we

encounter police behavior in these areas, the practices often have been used to catch

a person who, we realize after the fact, had engaged in wrongdoing, so we believe that

police officers are justified in performing in slightly unethical ways. What protectors

of due process and critics of police investigation practices help us to remember is

that those practices, if not curbed, may be used just as easily on the innocent as on

the guilty.

These investigative techniques are unlikely to be eliminated. Perhaps they should not

be, as they are effective in catching a number of people who should be punished. Even if

one has doubts about the ethics of these practices, it is entirely possible that there is no

other way to accomplish the goal of crime control. However one decides these diffi cult

questions, there are no easy answers. Also, we must realize that for us these questions are

academic, but for thousands of police offi cers they are very real.

R E A C T I V E I N V E S T I G A T I O N S

In reactive investigations, a crime has already occurred and the police sift through clues to

determine the perpetrator. When police and other investigators develop an early prejudice

concerning who they believe is the guilty party, they look at evidence less objectively and

are tempted to engage in noble- cause corruption in order to convict. This can take the

form of ignoring witnesses or evidence or even manufacturing evidence to shore up a case

against an individual.

Rossmo (2008) brings together descriptions of several investigations that failed be-

cause of the human tendency to ignore evidence that does not fi t preconceived notions.

In these cases, the true criminal was not discovered and others were suspected, and some-

times charged and convicted, because police offi cers did not follow proper protocol in

the collection and interpretation of evidence. Protocol is necessary to avoid errors in judg-

ment when a criminal investigator who “knows” someone is guilty happens to be wrong.

Good investigators do not let their assumptions infl uence their investigations, because as-

sumptions jeopardize effectiveness. Unfortunately, Rossmo’s examples show that proper

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investigative methods are sometimes discarded when police offi cers think they know who

committed the crime.

This tendency to slant the evidence is not limited to police investigators. FBI lab ex-

aminers have compromised cases by completing shoddy work and misrepresenting their

fi ndings, evidently to support police theories regarding the guilty party. In effect, they were

not objective scientists, but rather, co- conspirators with police. This led to overstating their

fi ndings on the witness stand and covering up tests that were done improperly. A whistle-

blower exposed these practices and was suspended for his efforts. His story is presented

in the Walking the Walk box. Ultimately, 13 examiners were implicated, although only two

were ever formally censured (Sniffen, 1997; Serrano and Ostrow, 2000).

The Houston crime lab has also been a target of investigation. Lab practices and pos-

sible perjury by examiners forced the district attorney’s offi ce to initially re- examine more

than 100 cases (Axtman, 2003). The Houston police lab was eventually shut down in 2002

because of shoddy practices, although it has since reopened. An independent investiga-

tion by the Justice Department discovered that untrained workers were conducting DNA

analysis, there was evidence of contamination from a leaky roof, “drylabbing” (making up

scientifi c results) was being done, and there was no quality control. Eventually, more than

2,000 cases required review because of potentially tainted testimony from the police lab.

Two men had their sentences overturned or were granted new trials because of the fi nd-

ings concerning the lab (Hays, 2005).

Other labs across the country have also been the subject of news reports. Joyce Gil-

christ was the supervisor of the forensic lab for the Oklahoma City police department.

She came under scrutiny for shoddy practices and alleged misstatement of the evidence

while testifying. After several convicted individuals were exonerated, the Oklahoma at-

torney general suspended executions while her cases were reexamined (Luscombe, 2001).

Sometimes the criticism has been simple incompetence and shoddy work practices, but in

other allegations it appears that the lab examiners are engaged in noble- cause corruption

by working with police departments to arrive at desired results.

The problem is that once investigators decide who the guilty party is, they may ignore

evidence that doesn’t fi t with their idea of who did it and how it was done. It is human

nature to complete the puzzle—to see things that conform to one’s way of looking at the

world. Good police work doesn’t close the door to contrary evidence, but human nature

does. Utilitarian ends- oriented thinkers may be more likely to ignore contrary evidence

or overstate existing evidence if they believe they have the guilty party. Ethical formalism,

however, emphasizes duties, not the end result, so those whose ethical values lean toward

ethical formalism may be less likely to slide into the types of behavior that have put these

forensic professionals under scrutiny.

INTERROGATION Interrogating a person one believes to be guilty of a crime is prob- ably an extremely frustrating experience. How do you get someone to confess? In past

eras, the infamous “third degree” was used—in other words, physical force in the form

of beatings or threats of force were used to get a confession. The third degree is no longer

used, so offi cers have resorted to persuasion, including the use of deception. The classic

father confessor approach (a sympathetic paternal fi gure for the defendant to confi de to)

or “good cop/bad cop” (a nice guy and a seemingly brutal, threatening offi cer) are ways to

induce confessions and/or obtain information without using force (Kamisar, LeFave, and

Israel, 1980: 54).

It may be that some offi cers have continued to use physical coercion to obtain con-

fessions. LaPeter (2004) discusses how Jon Burge, a former Chicago cop, ended up

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having four chapters devoted to him in a book about torture (Unspeakable Acts, Ordi-

nary People, by John Conroy). Burge came from a blue collar family and earned a Bronze

Star, a Purple Heart, the Vietnam Gallantry Cross, and two army commendations for

valor in Vietnam. He was 22 years old when he joined the Chicago police department.

In 20 years, he worked his way up to commander of the detective division, and received

13 commendations and a letter of praise from the Department of Justice. But his career

Dr. Frederic Whitehurst joined the FBI in 1982 after

earning a Ph.D. in chemistry. He was also a decorated

war veteran, serving three tours in Vietnam, earning four

Bronze Stars and being offered (but not accepting) the

Purple Heart. Between 1986 and 1998, he was associated

with the FBI’s highly acclaimed crime lab, becoming an

international expert in explosives. During his associa-

tion with the FBI, he became increasingly troubled by

the practices of lab personnel. His concerns involved

both shoddy procedures as well as a tendency to take a

pro- prosecution stance when examining evidence rather

than maintaining scientifi c objectivity. He complained

to the FBI Offi ce of Professional Responsibility and the

director of the FBI, but nothing happened. Eventually

he took his concerns to the Department of Justice and

the Offi ce of the Inspector General, and his criticisms

led to a 517- page Inspector General’s report after an

18- month investigation, the first time ever that the

highly esteemed lab had received any external review.

The report was damning, indicating that FBI exam-

iners had given inaccurate testimony or overstated sci-

entifi c fi ndings, altered lab reports, failed to document

procedures, and had hidden exculpatory evidence from

defense attorneys. Further, there was evidence of shoddy

management and record keeping and a failure to investi-

gate allegations of incompetence. The report, however,

examined only three of the seven units that comprised

the FBI lab and only investigated Whitehurst’s specifi c

allegations. Still, it led to congressional hearings, a dra-

matic overhaul of the lab, and, more recently, indepen-

dent accreditation.

It also derailed Whitehurst’s career. Shortly before

the report was released in 1997, he was put on admin-

istrative leave and criticized for violating policy. In re-

sponse, he argued that he was following Executive Order

12731, which required federal employees to report fraud,

waste, abuse, or corruption to the proper authorities. He

was eventually demoted and sanctioned, but ultimately

won a whistleblower lawsuit against the FBI. His whis-

tleblowing led to a review by the Department of Justice

of hundreds of cases where FBI examiners gave testi-

mony. It seemed clear that there were people in prison

who were there based on flawed evidence, but these

individuals were never told their convictions could be

challenged.

In 2007, the FBI was criticized in investigative re-

ports by the television show 60 Minutes and by the Wash-

ington Post for continuing to withhold the names of about

2,500 defendants who were convicted partially based on

the results of examiners’ testimony. In response, FBI of-

fi cials stated that the public announcements of the faulty

tests should have been notice enough to these individu-

als and their lawyers to pursue any appropriate appeals.

In November 2007, the FBI spokesperson fi nally agreed

that the FBI would send letters to the prosecutors in

these cases to notify them that the testimony was based

on faulty science. Unfortunately for many of these defen-

dants, it may have come too late to fi le an appeal.

Since leaving the FBI, Whitehurst earned a law de-

gree and is now the executive director of an independent

organization called the Forensic Justice Project, which

collects and disseminates information about controver-

sial forensic science (Post, 2005). He continues to inves-

tigate some of the cases from his days in the FBI to try

and identify any innocent people that might have been

affected by inaccurate scientifi c testimony. He is largely

forgotten even though his actions led to a seismic shift in

the faith placed in the FBI lab and forensic science more

generally. As news stories about shoddy practices in labs

continue to chronicle problems, he prefers the focus

stay on the topic rather than about him. In response to

a reporter’s queries recently about yet another crime lab

scandal and his role in improving the fi eld, he said, “We

have made the justice system question itself and that is

what is important. Let the . . .[attention] remain about

injustice . . . not about Frederic Whitehurst.”

W A L K I N G T H E W A L K

Sources: Kohn, 1997; Solomon, 2007b; Kelly and Wearne, 1998; Stein, 2010.

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also had a dark side. Burge was a lieutenant and supervisor of detectives in the Area 2

Violent Crimes Unit from about 1981 to 1986. Later, he was commander of the Bomb

and Arson Unit and then commander of Area 3 detectives. He was suspended by the

police department in 1991 and fi red in 1993. Since then, he has been investigated and

indicted for his actions. In 1982, two Chicago police offi cers were shot and killed. Five

days later, Andrew Wilson was questioned, and 13 hours later, he confessed to the kill-

ing, but emerged from the interrogation room with severe bruising and cuts on his head,

a torn retina, burns on his chest and thighs, and U- shaped marks on his body. He was

evidently injured so badly that jail staff refused to accept the booking, fearing that they

would be held responsible. He was convicted and sentenced to death, but the Illinois

Supreme Court threw out his confession, fi nding that he had been injured by police offi -

cers during the interrogation. He was convicted again during a retrial, but was sentenced

to life without parole instead of capital punishment. In his lawsuit against the city and

police department, Wilson testifi ed that Burge and another offi cer used two electroshock

devices on his ears, nose, fi ngers, and groin area, and he was burned by being hand-

cuffed to a radiator. Police have denied the torture, but other prisoners have alleged they

saw the device Wilson described and suffered similar torture. A judge awarded Wilson

$1 million.

Burge was subpoenaed to give depositions in suits filed by former death row inmates

and others who allege they were tortured during interrogations. A special prosecutor was

appointed in 2002 to investigate the allegations of torture, and he and his staff investigated

cases going back to 1973. Four death row inmates who were subsequently released by

Illinois Governor George Ryan were interrogated under Burge’s command.

The U.S. Attorney’s Offi ce obtained an indictment against Burge for perjury and ob-

struction of justice in relation to the string of wrongful convictions associated with his in-

terrogations. He and his lawyers asked for a change of venue because of all the negative

publicity he received in the Chicago area: 1,300 news stories appeared with his name be-

tween 1986 and March 2009, including one story with the caption “Worst Chicago Cop.”

A judge in another case was even quoted as saying that it was “common knowledge” that

Jon Burge and offi cers working under him engaged in physical abuse to get confessions.

Burge’s trial began in May 2010. On June 28, 2010, he was convicted on all counts (Main,

2009; LaPeter, 2004).

Despite what might have occurred in Chicago, the use of physical coercion is an ab-

erration today, and evidence exists that deception and skill work more effectively at get-

ting suspects to confess. Skolnick and Leo (1992) have presented a typology of deceptive

interrogation techniques. The following is a brief summary of their descriptions of these

practices:

Calling the questioning an interview rather than an interrogation by questioning in a •

noncustodial setting and telling the suspect that he [or she] is free to leave, thus elimi-

nating the need for Miranda warnings

Presenting • Miranda warnings in a way designed to negate their effect, by mumbling

or by using a tone suggesting that the offender had better not exercise the rights delin-

eated or that they are unnecessary

Misrepresenting the nature or seriousness of the offense—for instance, by not telling •

the suspect that the victim has died

Using manipulative appeals to conscience through role playing or other means •

Misrepresenting the moral seriousness of the offense—for instance, by pretending •

that the rape victim “deserved” to be raped—in order to get a confession

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Using promises of lesser sentences or non- prosecution beyond the power of the po- •

lice to offer

Misrepresenting identity by pretending to be lawyers or priests •

Using fabricated evidence such as polygraph results or fi ngerprint fi ndings that don’t •

really exist

Interrogative techniques can be very effective. In fact, they have resulted in false

confessions. Trainum (2008) notes how he never would have believed that an innocent

person would confess to a crime they didn’t commit until he reviewed a videotaped in-

terrogation that he had conducted on a female suspect accused of murder. After a long

interrogation, the woman confessed to the crime, even describing how she dumped the

body. There was some evidence to tie her to it as well, including an ATM video of a per-

son who resembled her using the victim’s ATM card and a handwriting analyst who said

it was her signature. However, she had an alibi and offi cers found she was telling the truth

about being somewhere else when the crime occurred. Trainum writes how he reviewed

the interrogation videotape and realized that he had unconsciously fed her information

about the crime. This offi cer believes that videotaping interrogations is essential for im-

proving the accuracy of confessions despite opponents who argue it is too expensive or

too burdensome for departments. Today, only 10 states mandate that interrogations be

videotaped.

Some researchers estimate that about 5 percent of confessions are false (Kassin et al.,

2010: 5). They are one of the leading causes of false convictions (along with faulty eyewit-

ness identifi cation and mishandling of evidence). Research indicates that suspects don’t

always understand their Miranda rights, and juveniles are especially prone to psychologi-

cal manipulation. There are attempts to reduce false confessions by requiring corroborat-

ing evidence before the confession can be used in court and requiring confessions to be

videotaped (Kassin et al., 2010).

LAW The use of physical force to obtain a conviction is illegal (Brown v. Mississippi, 297 U.S. 278 [1936]). Most countries have eliminated torture and formally condemn the prac-

tice. Unfortunately, some countries still endorse physical coercion as acceptable police

practice. Amnesty International has documented abuses in Chile, Argentina, and many

other countries around the world.

Legal proscriptions against torture are based on the belief that torture renders a con-

fession unreliable. Tortured victims might confess to stop their suffering; thus, the court

would not get truthful information. Many would argue that whatever information is gained

from an individual who is physically coerced into confessing or giving information is not

worth the sacrifi ce of moral standards even if the information is truthful. Human rights

treaties signed by the majority of free countries condemn such practices, regardless of the

reason for the interrogation.

Legal proscriptions against deception are more nuanced. Lower court holdings have

endorsed the use of some forms of deception, while rejecting others. Challenges to convic-

tions based on confessions obtained when police interrogators deceive the defendant are

?? DILEMMA: Should you use physical coercion to induce a confession? Should you lie about fi nding physical evidence (i.e., DNA or a fi ngerprint) and tell the suspect that you have enough to convince a jury to give him the death penalty if he doesn’t

confess to a lesser crime?

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based on voluntariness—in other words, the fact that the person did not voluntarily offer

a confession because a necessary element of voluntariness is “knowing,” which is absent

when being deceived.

Another argument is that deception by police may result in unreliable results. Similar

to the legal argument against torture, this stance holds that when a lie is too powerful, it

will induce an innocent to confess, thereby creating verdicts that are not based on facts.

An example of such a case occurred in 1989 when 17- year- old Marty Tankleff confessed

to killing his parents. Even though there was no physical evidence to link him to the crime,

interrogators told the teenager that hairs found on his mother pointed to him, that they had

obtained a spot of blood from his shoulder that was matched to his mother, and that his fa-

ther had emerged from a coma long enough to tell them that Marty had attacked them. All

of this was untrue, but it convinced the teen to confess. He served 19 years in prison before

having the conviction dismissed and charges vacated (Kassin et al., 2010: 18). Courts may

employ a “shock the conscience” standard. If what the offi cers do seems to be too egre-

gious, any evidence obtained will be excluded (Moran v. Burbine, 474 U.S. 412 [1986]).

Of course, this begs the question as to what shocks one’s conscience. In practice, the lower

courts have interpreted the Supreme Court’s reluctance to place any restrictions on de-

ception during interrogation as a green light to allow most forms of deception (Magid,

2001), although some state courts will rule as inadmissible confessions obtained by us-

ing faked physical evidence, such as fake lab reports or fi ngerprint analysis results (Kassin

et al., 2010: 13).

POLICY Policies in any police department should provide guidance to the individual of- fi cer regarding the use of acceptable techniques in interrogation. Some departments rou-

tinely videotape interrogations in order to forestall any allegations of improper conduct.

Such videotapes are powerful tools when used in the prosecution of guilty parties, but they

also can be harmful to those offi cers who violate law and/or policy in their zeal to obtain

a confession.

ETHICS What about ethical rationales for the use of physical coercion or deception dur- ing interrogation? Klockars’s (1983) Dirty Harry problem, described in the last chapter, originated in a situation from the movie where a captured criminal refuses to tell the loca-

tion of a kidnapped victim. Because the victim is sure to die without help, the police offi cer

(played by Clint Eastwood) tortures the criminal by stepping on his injured leg until he

admits the location. The problem represents the situation where one believes the dirty act

will result in a good end, there are no other means to achieve the good end, and the dirty

act will not be in vain.

Most people (but not all!) would agree that to torture the suspect in that scene was

immoral, but Klockars’s point is that the situation has no good solution. If the police of-

fi cer behaves in a professional manner, the victim would be sure to die. If the offi cer be-

haves in an immoral manner, there is a chance he could save a life. This is a dominant

theme in detective and police fi ction. Klockars’s conclusion is that by engaging in dirty

means for good ends, the offi cer has tainted his innocence and must be punished, for

there is always a danger that dirty means will be redefi ned as neutral or even good by

those who use them. Police may lose their sense of moral proportion if such actions are

not punished, even though the individual police offi cers involved may have no other way

out of their moral dilemmas.

Delattre (1989a) also discussed the use of coercive power. He disagreed with Klockars

that the offi cer must inevitably be tainted in the Dirty Harry situation. Delattre pointed

Dirty Harry problem The question of whether police should use immoral means to reach a desired moral end (taken from a Clint Eastwood movie).

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out that choosing physical coercion, regardless of temptation, leads to perjury and lying

about the activity and perhaps other tactics to ensure that the offender does not go free

because of the illegal behavior of the police offi cer. However, Delattre (1989a: 211) also ex-

cused the actions of those who succumb to temptation in extreme situations and perform

an illegal act:

Such an act may be unjustifi able by an unconditional principle, but it also may

be excusable. . . . Still less does it follow that those who commit such acts are bad,

that their character is besmirched, or that their honor is tainted.

However, one might argue that if offi cers commit an illegal and unethical act, it is

hard for their character not to be affected or their honor tainted. To understand an action

(in this case an act that results from anger or frustration) is not to excuse it. Delattre pres-

ents a virtue- based ethical system and evidently believes that an offi cer can have all the

virtues of a good offi cer and still commit a bad action—in this case, the illegal application

of punishment or what some would call torture. His point that one act of violence does

not necessarily mean that the offi cer is unethical in other ways is well taken. Indeed, we

usually reserve the terms ethical and unethical for actions rather than persons. The reac-

tion of the offi cer to his or her mistake is the true test of character. Does the offi cer cover

up and/or ask his or her partner to cover up the action? Does the offi cer lie to protect

himself or herself? Or does the offi cer admit wrongdoing and accept the consequences?

Klockars’s underlying point is more subtle: we all are guilty in a sense by expecting

certain ones among us to do the dirty work and then condemning them for their actions. In

effect, police (and other law enforcement) become our sin eaters of early folklore; they are

the shady characters on the fringe of society who absorb evil so the rest of us may remain

pure. These persons are depended upon to protect us, but shunned and avoided when

their actions see the light of day. In times of war or other threats, the populace often wants

results without wanting to know tactics. What percentage of the population cared that

the CIA attempted to assassinate Fidel Castro or that the attorney general’s offi ce during

the Kennedy years used questionable tactics and violated the due- process rights of Cosa

Nostra members targeted in the campaign against organized crime? Today, we continue to

discuss whether or not CIA agents and others should have infl icted “extreme interrogative

techniques” (to some, torture) on detainees in Guantanamo and Bagram Prison. It should

be remembered that these are not new questions; the justifi cation for such actions is al-

ways utilitarianism, and only the particular threat changes.

Setting aside physical coercion, what about deception during interrogation? Is it ethi-

cal and, if so, what are the limits to such deception? It is certainly much easier to justify de-

ception than physical coercion and intimidation, but their justifi cations are the same: they

are an effective and perhaps necessary means to get needed information from a resisting

subject. The criticism against them is also the same. Under utilitarianism, there may not be

any utility in such actions because they may result in false confessions. Several convictions

have been overturned because new evidence proves that those convicted were innocent,

yet they confessed. Why would someone confess to a crime he or she didn’t commit?

A suspect might confess because he is a 14- year- old juvenile who was mentally over-

logical pressure until he confessed to the crime. This is alleged to have happened in the

Central Park jogger “wilding” case. In 1990, fi ve black and Hispanic youths were convicted

of the beating and rape of a female stockbroker. Years later, Matias Reyes confessed, stat-

ing that he acted alone in the crime. DNA evidence supports his contention that he raped

the victim (Tanner, 2002; Getlin, 2002). Evidently, the youths were intimidated by police

interrogators into confessing to the crime.

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Allegedly, a similar scenario occurred in an Austin, Texas, case where two men were

found guilty and sentenced to death for a robbery/murder. One of them confessed and

implicated the other. Then, 12 years later, another man wrote to the district attorney offer-

ing his confession. DNA evidence confi rmed his guilt. The innocent man who confessed

alleges that he did so because the police offi cer who interrogated him threatened that if

he did not confess, Mexican police would arrest his mother and they could not guarantee

her safety. They also told him that he would receive the death penalty if he didn’t confess

(Hafetz, 2002).

In another case, Keith Longtin was held by Prince George County, Maryland, police

detectives for 38 hours after his wife was raped and stabbed to death. He alleges that dur-

ing this time, police offi cers accompanied him to the bathroom, would not let him call an

attorney, and continually questioned him (employing different teams of interrogators). Fi-

nally, they said that he told them what happened, but he remembers it as them telling him

what happened to his wife and asking him to speculate about how the murder occurred.

Detectives allege that he confessed. Longtin alleged that he never did. A sex crimes

investigator noticed the similarity between the attack and other rapes in the area, and af-

ter the rape suspect was arrested, a DNA test proved that this man killed Longtin’s wife.

Longtin was freed after eight months in jail, and all charges were dropped. Longtin’s case

and four other homicide confessions that were thrown out because other evidence proved

they were false confessions led to a federal monitor for this law enforcement agency

(Witt, 2001).

Although such events sound like something from television drama rather than reality,

they do happen. In 2001, Illinois Governor Ryan commuted the death sentences of every-

one on death row because of suspicion that more innocent men may be in danger of being

executed. Thirteen death penalty cases were overturned when evidence indicated that the

convicted might be innocent or, at the very least, did not receive due process. Five of those

thirteen were from Chicago, and evidence indicated that the convictions were obtained

through coerced confessions and manufactured evidence by the Chicago police investiga-

tors, including Jon Burge, as described earlier in this chapter (Babwin, 2001). Thus, even

utilitarianism may not provide justifi cation for the use of deception in interrogations if it is

so extreme that it leads to false confessions.

Deontological ethics would focus on the duty of the offi cer. Although he or she has a

duty to protect society, there is also the duty to follow the law, thus, any form of physical

coercion or deception that has been ruled illegal would not be ethically justifi ed. Do the

actions conform to the categorical imperative? If the offi cer had a brother or mother who

was accused of a crime, or was accused themselves, would they believe their actions justi-

fi ed? If not, then they cannot be supported by ethical formalism.

Discretion and the Use of Force Police have an uncontested right to use force when necessary to apprehend and/or subdue

a suspect of a crime. When their use of force exceeds that which is necessary to accomplish

their lawful purpose, or when their purpose is not lawful apprehension or self- defense, but

rather, personal retaliation or coercion, it is defi ned as excessive force and is unethical and

illegal.

How do victims of force come to the attention of police? Often it is by challenging

police authority—passing a patrol car, asking questions, challenging the stop, or interven-

ing in the arrest of another (Kappeler, Sluder, and Alpert, 1994: 159). In Klockars’s (1984)

description of types of police power (authority, power, persuasion, and force) described

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in Chapter 5, force is brought into play when one’s authority is challenged and/or persua-

sion is ineffective. Thus, individuals who question or refuse to recognize police authority

become vulnerable to the use of force. Such use of force may be perfectly legal. Offi cers

have the right to tackle a fl eeing suspect or hit back when they are defending themselves.

Illegal or excessive force occurs when the offi cer goes beyond what is necessary to effect a

lawful arrest.

First, it is important to note that force seems to be present in a very small percent-

age of the total encounters between police and citizens. Second, research indicates that

a small percentage of offi cers seem to be responsible for a disproportionate percentage

of the force incidents. Finally, some studies do find an association between force and

race or socioeconomic status, but other factors, such as demeanor, seem to be even more

infl uential.

Worden and Catlin (2002) offer studies showing that use of force is present in be-

tween 1.3 and 2.5 percent of all encounters. A BJS study reported that force was used in

about 1.6 percent of all police–citizen interactions (Ducrose, Langan, and Smith, 2007).

However, use of force seems to vary depending on the city. Garner, Maxwell, and Heraux

(2002) found in their study that use of force ranged from 12.7 percent of encounters in

one city to 22.9 percent of encounters in another city. In addition, a national survey of law

enforcement agencies that found that the rate of use- of- force events varied by region, with

the highest in the South (90 incidents per 100,000), followed by the Northeast (72), the

Midwest (68), and the West (50) (Terrill, 2005). In a study based on participant observa-

tions of police–citizen encounters, Alpert and Dunham (2004: 47) reported that offi cers

did not use the level of force that they were legally and (by policy) entitled to use in the

majority of encounters, based on the resistance of the suspect.

Some types of police–citizen interactions seem to generate the most frequent use of

force reports. In one study, offi cers used force in an estimated 53 percent of vehicle pur-

suits. Further, 47 percent of the surveyed suspects who fl ed from police reported that force

was used (in contrast to the offi cial number of 17 percent) (Alpert and Dunham, 2004).

Some offi cers seem to get involved in use- of- force situations repeatedly, whereas others,

even in similar patrol neighborhoods, rarely get involved in such altercations. According

to Souryal (1992: 242), the report by the Independent Commission of the Los Angeles

Police Department in 1991 revealed that the top 5 percent of offi cers ranked by number

of reports of the use of force accounted for more than 20 percent of all reports, and that

of approximately 1,800 offi cers who had been reported for excessive use of force between

1986 and 1990, most had only one or two allegations, but 44 had six or more, 16 had eight

or more, and one had 16 allegations.

Studies exploring use of force date back to Friedrich’s (1980) now classic study that

examined how individual, situational, and organizational factors have been offered as ex-

planations to the decision to use force. In his study, however, he identifi ed only the be-

havior of the offender and the visibility of the encounter as predictive of the decision to

use force. Worden and Catlin (2002) reported on a number of studies documenting the

presence of differential use of force by offi cers in police departments. A small number of

offi cers seem to be disproportionately involved in use- of- force incidents and, arguably,

are more likely to also engage in excessive force. Further, some evidence seems to indicate

that these offi cers may be identifi able by certain psychological traits:

Lack of empathy •

Antisocial and paranoid tendencies •

Proclivity toward abusive behavior •

Inability to learn from experience •

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Tendency not to take responsibility for their actions •

Cynicism •

Strong identifi cation with the police subculture •

Other risk factors include age of the offi cer (being young and impressionable may

increase the risk of using improper force) and being involved in a traumatic event (thus,

use of force would be a type of post- traumatic stress behavior) (reported in Worden and

Catlin, 2002: 101). Terrill, Paoline, and Manning (2003) found that offi cers who identifi ed

more strongly with the police culture were more likely to use force and that differences

between individuals were more predictive than differences in departments’ management

strategies or formal cultures of departments.

Other researchers (Garner, Maxwell, and Heraux, 2002; Alpert and MacDonald,

2001; Terrill and Mastrofsky, 2002; Alpert and Dunham, 2004) have identifi ed the follow-

ing factors as associated with the use of force:

Suspect’s race •

Suspect’s manner toward police (disrespectful demeanor) •

General agitation or emotionality of suspect •

Suspect’s mental illness •

Intoxication of suspect •

Number of citizens present (positive association) •

Number of police offi cers present (positive association) •

Possession of a weapon by the suspect (or belief that there is a weapon) •

Knowledge that suspect had committed other crimes (especially, violent crimes) •

Suspect’s use of force •

Gang involvement •

Suspect being male •

Offi cer being male •

Age of offi cer (younger) •

Offi cer having prior injuries •

Encounter involving a car chase •

Race of offi cer (but the association is for Hispanics, not African Americans) •

Socioeconomic status of suspect •

Alpert and Dunham (2004) found that female offi cers used signifi cantly less force in

response to resistance, and the longer an offi cer was employed, the more force was used in

relation to the suspect’s resistance. As to race, there were few signifi cant relationships, but

the highest force factors occurred with Hispanic offi cers to Hispanic suspects. Black and

Hispanic offi cers who arrested black suspects also employed higher levels of force. Alpert

and Dunham found that black and Anglo offi cers arresting Anglo suspects used lower lev-

els of force in relation to level of resistance than other ethnic matches (2004: 159). Alpert

and MacDonald (2001) found that agencies that required supervisors to fi ll out use- of-

force forms had lower levels of use of force than did agencies that allowed offi cers to fi ll

out their own forms. It should be emphasized that these studies and the factors identifi ed

are associated with the use of force, not necessarily excessive force.

Probably the most well- known use of force was that by Los Angeles police against

Rodney King, revealed by the amateur video taken by a bystander. This can still be seen

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on YouTube.com even though the event occurred in 1991. In the Rodney King incident, an

initial act of passing a police vehicle and leading offi cers in a high- speed chase (although

the actual speed of the chase was subject to dispute) led to the involvement of 12 police

cars, one helicopter, and up to 27 offi cers. The incident resulted in King being struck at

least 56 times, with 11 skull fractures, a broken cheekbone, a fractured eye socket, a broken

ankle, missing teeth, kidney damage, external burns, and permanent brain damage (Kap-

peler, Sluder, and Alpert, 1994: 146).

After the incident, offi cers justifi ed their actions by the explanation that King was on

the drug PCP (he was not, and, in fact, his alcohol level was .075), impervious to pain,

and wild. These claims were repeated in the newspapers and can be interpreted as the

attempt to fi t the use of force into a pattern that the public could understand and accept.

This use of force probably was prosecuted (unsuccessfully) in this case only because of

the existence and widespread dissemination of the videotape. In other circumstances it

would hardly have rated a small newspaper article. The media typically become interested

in police use of force when the victim cannot be fi t into the stereotype of the “dangerous

criminal”—when he is a middle- class insurance agent (as in a Miami case that sparked

riots), Andrew Young’s son (in an incident involving the Washington, D.C., police), or

a high school athlete who would have been on his way to Yale on an academic/athletic

scholarship.

The King incident is an example of lawful force or excessive force, depending on one’s

perception. In the video, King clearly continued to try to rise and the offi cers continued to

use their tasers, kick, and hit him with their batons. Some argue that the offi cers continued

to hit him because he continued to resist; others argue that he continued to resist because

he was disoriented and was trying to escape the injuries being infl icted upon him.

This case represents a situation in which law, policy, and ethics present different an-

swers to this question: “Did the offi cers do anything wrong?” The legal question of unlaw-

ful use of force is contingent on whether the Los Angeles Police Department’s use- of- force

policy was legal and whether the offi cers conformed to departmental policy. The policy

stated that the offi cers could use escalating and proportional force to a suspect’s “offen-

sive” behavior. The reason that two use- of- force experts—one for the prosecution and

one for the defense—disagreed was that the policy, like many other policies in policing,

depends on the ethical use of discretion. The defense’s use- of- force expert analyzed the

video and identifi ed offensive movements in King’s every attempt to rise and in every arm

movement. The prosecution expert (who wrote the departmental policy) testifi ed that a

suspect lying on the ground is not in a position to present offensive movements to offi cers;

therefore, any use of force once the suspect is down is excessive. The point is that if an of-

fi cer perceives offensiveness in any movement of a suspect, the policy justifi es his or her

use of force.

Although use- of- force policies have reduced the incidence of improper use of force

by offi cers, these policies still leave a great deal of discretion. In many cases, an offi cer’s

ethics will become as powerful as his or her training and understanding of the policy itself.

If an offi cer gets shot at, the policy obviously would justify use of force, but if the offi cer

decides that he or she is safe enough behind his or her patrol car to talk the suspect out of

shooting again and into giving up the weapon, the use- of- force policy would support that

nonviolent response as well. If an offi cer is hit in the face by a drunk, the policy would

support use of force because the drunk obviously performed an offensive action; however,

the offi cer who accepts that the drunk is irrational, allows for it, and simply puts the per-

son in the back of the patrol car (in effect, giving him a “free punch”) is also supported by

the policy. In other words, the policy can be used to justify all but the most blatant abuse

of police power, or not, depending on the interpretation of the individual offi cer.

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In a 2005 case in Austin, Texas, an event that was similar to the Rodney King case

occurred with similar results. Ramon Hernandez was involved in a minor car accident

and ran from the scene. After being tackled and brought to the ground, three police of-

fi cers surrounded him and, when he continued to try to get up, one held his foot to Her-

nandez’s neck and another administered many blows to his back. Hernandez argued

that his face was being pressed into an anthill and that he was only struggling to move

away from that. The offi cers argued that he had earlier tried to wrest one’s gun away and

Hernandez was, and continued to be, physically combative. The offi cers were acquit-

ted of offi cial oppression charges, and they also won a federal civil lawsuit against them

by Hernandez (Kreytak, 2008). Similar to the Rodney King case, individuals can view

this incident and see either a legitimate use of force that conforms to the continuum-

of- force policy (meeting resistance with force) or a gratuitous application of force that

was not necessary to subdue the suspect. Legally, it appears that the offi cers did nothing

wrong, at least according to the juries who decided the criminal and federal civil cases.

As for policy, one offi cer was fi red, one resigned, and one received a 70- day suspension,

so it seems that their superiors did fi nd that they violated the department’s policy on the

use of force.

In a similar incident in Minneapolis in February 2009, a single offi cer stopped a driver

and, after the driver got out of his car after being told not to, the offi cer wrestled the man

to the ground. The video camera on the car shows a number of other offi cers arriving who

then proceed to kick, hit, and use a taser on the man. The videotape of the incident (avail-

able on YouTube.com) was reviewed by command staff, but no concerns emerged about

the police offi cer actions until the chief saw the tape. He disciplined the offi cer and used

the tape as a training tool. The man fi led suit against the police department and the case

was referred to the FBI for potential charges against the offi cer (Olson and Chanen, 2009).

What is interesting about these cases is that some people see the tapes as clear evi-

dence of police brutality and others see them as appropriate use of force against noncom-

plying suspects. If we can assume that both sides are reasonable, this shows that offi cers

involved in use- of- force incidents face a dilemma regarding not only what is legal, but

also what is ethical. Clearly, the crux of the issue is the policy whereby police offi cers are

empowered to use force against resistance. No one would argue that police offi cers have a

dangerous job and must protect themselves against individuals who may do them harm.

The incidents that are brought to light, however, show situations where, perhaps, the use

of force might have been legally justifi ed, but not necessary if the offi cer had made dif-

ferent choices leading up to the use of force. Just because you can do something doesn’t

mean you should.

U S E O F T A S E R S ( C E D S )

The TASER©, produced by Taser International, is similar to Xerox© in that Xerox is a

particular brand of copying machine, but, because of its popularity, the name has become

almost a synonym for copying. The TASER is one type of CED (conducted energy de-

vice), but the word taser has come to be used in common language to refer to any CED.

The devices use electrical stimuli to interfere with the body’s nervous system, impairing

the muscular control of the target. While the use of the CED has become popular among

law enforcement agencies, it has also created controversy over how it is used, and its role

in the deaths of individuals who have been subdued by police.

It was reported that in 2008, 12,000 law enforcement agencies employed CEDs (Cher-

mak, 2009: 861). In one study of newspaper articles, it was found that reports of CEDs

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increased from 24 news stories in 2002 to 338 in 2006 (White and Ready, 2009: 875), and

one can assume the number of stories have increased again in the last several years. Pro-

ponents argue that the use of these devices has resulted in less injury to offi cers and com-

batants and reduced the need for lethal force (Williams, 2010). An NIJ- funded research

panel examined mortality reviews of CED- related deaths and other evidence to conclude

that there was not a high risk of injury or death, although tasers may produce secondary ef-

fects that could result in death (NIJ, 2008). Generally, research indicates that CEDs seem

to be associated with a decrease in the number of deaths of suspects, a decrease in the

number of injuries to suspects, and a decrease in the number of injuries to offi cers (Dart,

2004: A14; White and Ready, 2009). Supporters allege that CEDs are safe in the vast ma-

jority of cases and are potentially dangerous only when there is some underlying medical

condition. One study found that death was more likely in cases where the target was under

the infl uence of drugs or mentally ill and when the device was used more than once; how-

ever, the methodology of the study was to collect data through newspaper articles, so it

was not clear whether this association was direct, indirect, or spurious (White and Ready,

2009: 883).

On the other side, Amnesty International (2007) alleges that police use CED or stun

guns in hundreds of cases in which their use is unjustifi ed and “routinely” infl ict injury,

pain, and death. Its investigation uncovered the fact that the CEDs were used on unarmed

suspects 80 percent of the time and for verbal noncompliance in 36 percent of the cases.

CEDs allegedly have been used on “unruly schoolchildren,” the “mentally disturbed or in-

toxicated,” and those who do not comply immediately with police commands. Amnesty

International’s report indicates that there have been at least 300 CED- related deaths (Am-

nesty International, 2007).

After police used a CED on a confused and out- of- control man in the Vancouver (Brit-

ish Columbia) airport, he died, creating a fi restorm of controversy. The Canadian govern-

ment initiated a wide- ranging review and study of conducted energy devices and their

risk of injury or death. After reviewing numerous medical studies and technology reports,

the Braidwood Commission concluded that, although research indicated there was little

risk, there was enough risk to justify limiting the use of the device to only situations where

the subject posed an immediate risk of harm and no lesser means of force were effective

(Williams, 2010). There are those, however, who argue that the Braidwood Commission

ignored the volumes of medical and scientifi c evidence that indicated that the electrical

charge carried by the devices was not suffi cient to affect the heart and that their conclusion

was based more on public policy (and responding to the public’s reaction to the incident)

than medical science (Williams, 2010).

Evidence does seem to indicate that the CED is unlikely to stop the heart or cause

harm based on the electrical charge; however, there is no doubt that injury can occur when

the person falls and/or where the probes enter the body. There is concern when police de-

partments and other law enforcement agencies do not provide proper guidance or control

over the use of CEDs. Englewood, California, was the subject of a Department of Justice

report concerning its use of force, including the use of the taser. The Department of Justice

study found that a taser was used on handcuffed suspects and those in custody, and that

the department offered little direction to offi cers over how it should be used (Kim and

Leonard, 2010).

Amnesty International (2007) proposes that the standard for force should be only as a

“last resort,” and in proportion to the resistant force met. The legal standard in this coun-

try, however, is reasonableness (Graham v. Connor, 490 U.S. 386 [1989]). Legally, offi cers

have a right to use “reasonable” force in any interaction with the public, as determined by

the facts and circumstances. They are not obligated to use the least possible force as long

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as the force used is objectively reasonable given the circumstances. However, in Decem-

ber 2009, the Ninth Circuit Court of Appeals ruled that a police offi cer could be held liable

when the taser is used on a person that poses no immediate threat (Bryan v. McPherson,

590 F.3d 767 [2009]). In the case, Carl Bryan was stopped for speeding and stepped out of

his car visibly angry. There is dispute between the offi cer involved and Bryan as to whether

he stepped toward the offi cer, but there is no question that he was unarmed and the offi cer

used the taser within seconds of approaching him. Bryan fell to the ground and fractured

four teeth, and a doctor had to remove one of the CED probes with a scalpel. Bryan sued

for assault and battery and intentional infl iction of emotional distress, and the lower court

refused the motion for summary judgment from the offi cer. The Ninth Circuit affi rmed

the lower court’s holding, indicating that the taser was an unreasonable use of force for a

traffi c stop, opening the door for lawsuits by individuals who are the targets of tasers used

by offi cers. (See the accompanying In the News box for more on the use of tasers during

traffi c stops.)

It is probably the case that offi cers could use more training over the use of tasers;

however, little is known about the extent or content of CED training across the country.

Morrison (2009) notes that training for CEDs is more expensive than fi rearms training

(because the cartridges are more expensive than bullets). Consequently, offi cers may get

much less training with CEDs than with guns, even though it is harder to hit a subject with

a CED than it is with a fi rearm. Studies indicate that CED training is often not a part of the

state- mandated training required of all offi cers (Morrison, 2009).

C U L T U R E O F F O R C E

The use of force in response to perceived challenges to police authority is highly resistant

to change, even in the presence of public scrutiny and management pressure. Even with

the notoriety of the Rodney King episode and the extreme public reaction to the spectacle

of police use of force, several incidents involving other offi cers’ abusive behavior toward

motorists occurred shortly thereafter. This pattern might be so ingrained in some police

department cultures that it remains relatively unaffected. Research indicates that the

in the N E W S T A S E R U S E D I N T R A F F I C S T O P S

Two taser incidents in Austin, Texas, illustrate problematic uses of the weapon. In 2007, a police

offi cer used a CED on a black motorist on his way to a Thanksgiving dinner with his mother be-

cause the driver did not produce his license when requested. The incident was caught on the of-

fi cer’s patrol camera, and the police chief made an unprecedented decision to release the tape

and use it for training purposes. The offi cer was suspended, and, in an unusual move, members

of the police offi cer union apologized to the public at large for the actions of this one offi cer.

In 2009, a sheriff’s deputy used his CED on a 72- year- old woman who refused to sign a ticket,

and pushed the deputy toward traffi c in an attempt to get back into her car and drive away. The

county settled a lawsuit with the woman for $40,000, but the deputy’s supervisor said he did

nothing wrong and followed procedure. (Both of these incidents can be seen on Youtube.com.)

SOURCES: Plohetski, 2007; Gonzales, 2009.

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“culture of force” is international in scope and this may be due to similarities experienced

by all police offi cers (Coady et al., 2000).

The Christopher Commission described a culture of force at the Los Angeles Police

Department; at the time that included an apparent failure to punish or control those who

had repeated citizen complaints of violence (Rothlein, 1999). Skolnick and Fyfe (1993),

too, have discussed the culture of LAPD in the 1980s and 1990s as one where the use of

violence was tolerated, even encouraged. Breaking up departments into elite units seems

to encourage “swashbuckling behavior.” Skolnick and Fyfe (1993: 191) described how one

squad (the infamous Ramparts Division, discussed more fully in the next chapter) acting

on a tip totally destroyed a citizen’s home, including breaking toilets, ripping sofas, and

spray- painting “LAPD Rules!” on the wall of the house. These specialized units evidently

create their own culture, even within the subculture of the larger department, and some-

times this subculture promotes violence.

The fact that the prevalence of use of force varies among cities or in one city between

two time periods indicates that there is more than individual factors at play. Certain cities

seem to have a problematic reputation as using force in a manner that creates controversy.

Human Rights Watch (1998) identifi ed serious problems in the use of force in Atlanta, Bos-

ton, Chicago, Detroit, Indianapolis, Los Angeles, Minneapolis, New Orleans, New York,

Philadelphia, Portland, Providence, San Francisco, and Washington, D.C. The report cited

police leadership and the “blue wall of secrecy” as serious barriers to reducing police vio-

lence. According to this report, the mechanisms for handling complaints can ensure that

violence will continue. In most cases where a citizen alleges excessive force, there is no dis-

cipline and the case is closed as unfounded. If there is a civil suit and the plaintiff wins, the

city pays, and, again, the offi cer may not even be disciplined. One study is cited concerning

the fate of police offi cers named in 100 civil lawsuits between 1986 and 1991 in 22 states in

which juries awarded payments of $100,000 or more. It was found that only eight of these

offi cers were disciplined (Human Rights Watch, 1998: 82; see also Payne, 2002). More re-

cently, Detroit reportedly paid out in excess of $45 million for police offi cer misconduct be-

tween 2002 and 2005 (Associated Press, 2005). The problem is that by ignoring such actions,

the department may be encouraging the continued existence of improper uses of force.

E X C E S S I V E F O R C E

One might argue there is a fi ne line between the lawful use of force in subduing a suspect

and a gratuitous punch at the end of the scuffl e because he tore your new uniform. In an

adrenalin- fi red foot chase and wrestling match to get the handcuffs on, it is impractical to

hold police offi cers to some ideal of being able to calibrate exactly the amount of force nec-

essary and not a whit more. That is why the legal standard of reasonableness is usually given

a generous interpretation by juries and civilian review boards. However, there are examples

where offi cers engage in what is clearly excessive force, such as a situation where the suspect

is on the ground in handcuffs and is kicked in the head. It should also be noted that it is

estimated that offi cers use excessive force in a miniscule portion of total encounters with the

public—estimated at one- third of 1 percent (Micucci and Gomme, 2005: 487).

The most common explanations for excessive force is that force is the only thing

“these people” understand or that “offi cers are only human” and consequently get mad

or frightened or angry, just like anyone else would in that situation. Another comment

that seems to be fairly prevalent among individuals who respond to these events is that

the person “deserved it” because of his or her commission of a crime or because he or she

ran away from police. The weakness of such arguments is obvious. Even if the only thing

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“these people” understand is force, it removes the differences that we like to think exist

between us and “them.” If other people get angry and use force, it is called assault and

battery, and they are arrested and prosecuted. Finally, punishment comes after a fi nding of

guilt in a court of law, not by law enforcement offi cers, and does not ever involve the infl ic-

tion of corporal punishment, which has been ruled as violating the Eighth Amendment.

Although reasonable people may disagree about the Hernandez case, or even the Rodney

King case, the Abner Louima case involved, without question, clearly illegal force. NYPD of-

fi cer Justin Volpe’s assault on Abner Louima shocked the nation and led to a prison sentence

for Volpe. The truly amazing thing about this criminal act is that it occurred in a police station

with at least one offi cer reportedly assisting but with a whole squad room just outside the door.

Volpe brutally sodomized Louima with a broken broom handle, requiring several operations

to repair the damage. According to Volpe’s testimony, Louima was brought up to the squad

room and taken into the bathroom for the purpose of beating him, and the broken handle was

put in the bathroom for that purpose. This evidently didn’t raise any red fl ags to offi cers at the

booking desk or other offi cers. How could this have happened in a police station? The fact that

Louima was a minority, the fact that Volpe believed he had been hit in the head by Louima, and

the fact that the blue curtain of secrecy is still intact in many police departments seem to be in-

suffi cient to answer this question. Eventually four offi cers were convicted. Justin Volpe received

30 years; Charles Schwarz, 15 years; Thomas Weise and Thomas Bruder received 5 years each.

A civil rights suit against the police department and the city was settled for $7.125 million and,

in a rare event, the Police Benevolent Association also paid out $1.625 million for its role in

assisting the offi cers in the cover- up after the assault. The case also resulted in policy changes,

including initiating a civilian review panel for excessive force complaints and phasing out the

so- called 48- hour rule where police offi cers didn’t have to talk to internal affairs about any use

of force for 48 hours and after they had conferred with union lawyers (Skolnick, 2001: 17).

Another case where a suspect alleged he was sodomized by New York City police

offi cers occurred in 2009. Michael Mineo was arrested in the subway and alleges that in

the scuffl e and search for drugs offi cers sodomized him with a police baton. The offi cers

were prosecuted, and witnesses, including another police offi cer, supported Mineo’s story.

The offi cers testifi ed that Mineo was lying and the motivation was a $400 million lawsuit

against the NYPD and city. The jury acquitted the offi cers in March 2010; however, they

still face the civil lawsuit (Marzulli, 2010).

Although use- of- force fi gures exist, it is diffi cult to determine the true number of in-

cidents of excessive force because they often do not fi nd their way into offi cial statistics.

Researchers address the question in four ways:

1. They use offi cial documents, such as police incident reports.

2. They ask police officers about their actions or the actions of their peers regarding

excessive force.

3. They use civil rights complaints or public opinion surveys to ask people what their

experiences have been.

4. They use observers in police cars to record interactions between police and citizens,

including instances of excessive force.

In documenting the perceptions of the use of excessive or unnecessary force, Alpert

and Dunham (2004) reported on research where offi cers estimated that 13 percent of ve-

hicle pursuits ended in excessive use of force. In addition, Weisburd and Greenspan (2000)

asked offi cers about use of force, and 22 percent of the respondents said that police offi cers

in their department “sometimes,” “often,” or “always” used more force than necessary when

making an arrest. Further, 15 percent of the respondents indicated that their fellow offi cers

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“sometimes,” “often,” or “always” responded to verbal abuse with physical force. However,

97 percent thought that extreme uses of unnecessary force were extremely rare.

Recall that in Barker and Carter’s (1994) study, offi cers reported that 39 percent of their

peers engaged in brutality. A Gallup Poll fi nding indicated that 20 percent of respondents

said they knew someone who had been abused by police, but the percentage increased to

30 percent of minority respondents (reported in Alpert and Dunham, 2004: 36).

Nelson (2000) chronicled a long list of personal stories of harassment, brutality, ille-

gal arrests, and coerced confessions by police toward minority members, especially African

Americans. Her conclusion was that in the minority community, at least, there are reasons

to fear police. Holmes (2000) found that the number of civil rights complaints fi led (which

were mostly claims of excessive force) was only weakly affected by the percentage of blacks

in the population in small cities. However, other studies have shown a signifi cant association

between race and number of civil rights complaints in cities with a population exceeding

150,000, and a strong association between the number of complaints fi led and the percentage

of Hispanics in the city’s population (Garner, Maxwell, and Heraux, 2002; Smith and Hol-

mes, 2003). In conclusion, it can be said that excessive force is extremely rare, but there are

factors that seem to be associated with its existence, both individually and organizationally.

D E A D L Y F O R C E

Nothing is more divisive in a minority community than a police shooting that appears to

be unjustifi ed. Cities are quite different in their shooting policies and in their rates of civil-

ian deaths. There can also be quite a change within one city. The District of Columbia, for

instance, went from 32 police shootings (with 12 deaths) in 1998 to only 17 in 2001 (with

three deaths) (C. Murphy, 2002). The D.C. police department was under a court monitor,

which might have had something to do with the fairly dramatic decline in shootings.

Skolnick and Fyfe (1993: 235) and Chevigny (1995) argued that New York City’s

shooting policy encouraged a low shooting rate. In New York and many other cities now,

there is an automatic investigation every time shots are fi red, with multiple layers of report

writing and investigation before the offi cer is cleared. The authors also noted that NYPD

offi cers showed a lower rate of being shot than in other cities, so the stringent policy did

not seem to affect their safety.

Even New York, however, has had its share of deaths that have raised tensions. Ama-

dou Diallo allegedly resembled a known serial rapist, and when he ignored police orders

to show his hands and continued to unlock an apartment building door to go inside, he

was shot at 41 times by offi cers in the NYPD Special Crimes Unit. The case threatened to

spark riots in the city, especially when the police offi cers’ trial was moved to Albany and

the offi cers were acquitted.

There are periodic scandals in cities when offi cers shoot suspects, especially minor-

ity suspects, and the media present the case as possibly unjustifi ed. The shooting of Fong

Lee continues to be a fl ashpoint in police–community relations in Minneapolis. In 2008,

a Minneapolis police offi cer shot and killed Fong Lee in a chase. He testifi ed that he saw

the youth with a gun, and there was one at the scene near the body, but in an investigation,

there was some question as to whether the gun had previously been in the police evidence

room as stolen property. The jury exonerated Offi cer Lawrence, but he later was arrested

for domestic violence, was fi red, and then rehired after an appeal (Hanners, 2009; Carlyle,

2009). In Austin, the Nathanial Sanders case continues to bedevil the police department’s

relationship with the minority community. In 2009, Sanders was sleeping in the back seat

of a car when police approached. The offi cers detained the driver and an offi cer was lift-

ing Sanders’s shirt to see if he had a weapon when he awoke and began struggling with the

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offi cer. The video camera of the backup offi cer’s car showed the offi cer backing away and

shooting into the car. Sanders died from the shots fi red. A gun was later found in the back

seat. The offi cer was sanctioned for not turning on his video camera, but the shooting was

ruled justifi ed and a grand jury refused to return an indictment in the case. However, an

independent consultant fi rm described the use of force as reckless and excessive, and the

controversy continues even though the offi cer involved has since been fi red based on a

DWI charge (Plohetski, 2010). The lesson drawn from these cases is that lethal force will

always be subject to the most intense scrutiny imaginable by the public and department

alike, as it should be. Offi cers deserve a careful review of the evidence, free from political

and inappropriate considerations, and with an understanding of the factors that are in-

volved in human perception and decision making. The Quote and Query box indicates

the legal implications of offi cer’s decisions in these situations.

QUOTE && QUERY Reckless conduct can be criminal if it involves taking actions knowing that

they are likely to yield a particular result but the actor does so despite the risk.

(Independent report describing police offi cer’s actions)

[The actions were] objectively reasonable based on the totality of the

circumstances. . .. (Police chief describing same actions after internal investigation

and review)

—SOURCE: CITED IN PLOHETSKI, 2010.

? These quotes refer to the actions taken by the offi cer in the Sanders case. How can two objective reviews of an offi cer’s actions come to such different conclusions?

Is it “just politics” or do use- of- force policies create the possibility that reasonable

people will disagree over what was reasonable?

Whether it be lethal force, a taser, or physical blows, offi cers have been given the dis-

cretion to employ force that, if performed by citizens, would be illegal. We expect them to

use such power wisely, and they have a legal duty to do so—that is, they must make rea-

sonable decisions based on the facts and circumstances of each case. Offi cers are trained

in the law and departmental policies, but both by necessity require the application of indi-

vidual discretion to determine reasonableness. Further, as we have discussed, sometimes

what offi cers have a legal right to do may not be wise or ethical, given certain situations.

LAW The Supreme Court has defi ned legal force as that force which is objectively reason- able (Graham v. Connor, 490 U.S. 386 [1989]). What is reasonable, however, is still subject

to controversy. The use of a taser has been determined by the Ninth Circuit Court to be

unreasonable in a traffi c stop when there is no threat of assault—therefore, this offi cer

would be clearly in the wrong applying the Ninth Circuit’s standard. We do not have any

indication, however, that other circuit courts would agree with the conclusion that tasers

are de facto unreasonable uses of force in traffi c stops. Further, even applying a reason-

ableness standard, courts may disagree.

?? DILEMMA: You have stopped a 72- year- old woman for speeding. She is argumentative and refuses to sign the ticket. She ignores your command to move away from the highway and tries to get back into her vehicle. You attempt to push her

to the side of the road away from traffi c, but she continues toward her car. Should you use your taser?

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POLICY Police departments’ use- of- force policies specify when force may be used, when it may not be used, and the proper level of force to be used given certain circumstances.

Most departments utilize a continuum- of- force approach that allows proportional force

to the suspect’s resistance, with increasing levels of force by the offi cer in direct response

to escalating resistance of the suspect (Walker, 2007). Policies regarding tasers have been

suggested by the International Association of Chiefs of Police. Such policies recommend

that the taser not be used on juveniles, the elderly, or pregnant women, and should not be

used repeatedly or by multiple offi cers. According to one county’s policy, the taser should

be used only for “aggressively assaultive acts.” One city’s policy specifi es that the taser

not be used on individuals who are clearly under the infl uence of drugs (Bunker, 2009).

Such policies often have been put in place because of scandals regarding their use. In fact,

it seems safe to say that most of the restrictions on taser use have come about because of

notorious cases of misuse and the public’s concern. The problem, according to some ob-

servers and law enforcement offi cials, is that the individual offi cer may now second- guess

the use of the taser and end up using more lethal force because of departmental policies

restricting taser use (Bunker, 2009).

ETHICS Note that the discussion of tasers or any CED involves issues of facts, law, and policy. There is still disagreement regarding whether or not the taser causes deaths. With-

out this fundamental knowledge, it is hard to apply an ethical system like utilitarianism,

which would weigh the benefi t against the harm of tasers. Generally, one might say that if

the choice was between a gun and a taser, the suspect would benefi t, but the offi cer may

not (because tasers don’t always stop people and the offi cer may be injured). If the choice

was between being shocked and being subdued physically, generally the suspect would

still benefi t except in certain situations that are still being determined (elderly, intoxicated,

and young are possible groups that are put at greater risk even though there is little evi-

dence to indicate this is so).

Deontological ethics would be focused on duty. If the offi cer has a legal right to use

the taser and does so, then resulting injury is not a reason to not use it. However, as with

most duties, there are complicating factors. Offi cers also have a duty of protection, so if

they can accomplish their purpose without hurting the individual, then that duty would

require the lesser degree of force. It is unfortunate that most people’s opposition to tasers

seems to be fueled by a few instances of clear abuses.

C O N C L U S I O N

In this chapter, we explored some of the ways that police use of authority, power, per-

suasion, and force have created ethical dilemmas and sparked controversy. Some of

us remember images from the 1960s, wherein law enforcement offi cers appeared on

newscasts beating and using attack dogs against peaceful civil rights demonstrators.

One might argue that those negative images of the 1960s led to greater professionalism,

better training, and racial and sexual integration of police departments in the 1970s and

1980s.

The Rodney King incident in 1991 and the resulting scrutiny led to a groundswell of

attention to “police ethics,” including a national outcry against racial profi ling and dis-

criminatory enforcement, and better accountability measures to guide the use of force.

The 9/11 attack was another major effect on policing and created new challenges. Racial

profi ling, the use of undercover operations, and other tactics are being re- evaluated in the

wake of the threat of terrorism, and many now argue they are justifi ed as necessary.

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In this chapter, we showed how, for most of us, controversial issues regarding police

methods are abstract, but for individual offi cers who are faced with dilemmas regarding

what they should do in certain situations, the questions are much more immediate. To

resolve them, the individual should look to legal holdings, departmental policies, and, fi -

nally, ethical rationales. Utilitarian reasoning is used to justify many actions, but the ques-

tion remains whether it is ever ethical to achieve a good end through bad acts. It seems

clear that how one resolves the dilemmas involved in policing has everything to do with

whether law enforcement offi cers are seen fundamentally as crime fi ghters or as public

servants.

C H A P T E R R E V I E W

1. Provide any evidence that exists that law enforcement offi cers perform their role in a

discriminatory manner.

Minorities express less satisfaction with police than do whites and report they experience

more disrespect. Studies show that minorities are not more likely to experience disrespect

per incident, but they are stopped 1.5 times as often as whites. Racial profi ling studies

indicate that blacks are stopped more often than their percentage of the population; how-

ever, the early studies suffer from methodological problems.

2. Present the ethical issues involved in proactive investigations.

Ethical issues concern how the targets of undercover investigations are chosen, whether

the use of informants leads to them making up stories, whether informants are protected

from sanctions for their own criminal behavior, whether such operations create crime or

entrap individuals, and whether undercover operations violate the privacy rights of indi-

viduals who are deceived.

3. Present the ethical issues involved in reactive investigation.

Ethical issues concern the tendency of police investigators to not remain objective in their

interpretation and collection of evidence if they believe they know a suspect is guilty. Also,

the use of physical coercion during interrogation is clearly illegal, but deception is not

and is perhaps just as powerful. There is a possibility that such tactics may lead to false

confessions.

4. Present information concerning the prevalence of and factors associated with the use

of force by police offi cers.

The use of force seems to be present in only about 1.6 percent of all encounters with the

public; however, it takes place more often in certain cities and during certain types of en-

counters. It is also true that some offi cers seem to be involved in uses of force more than

others and characteristics of these offi cers have been identifi ed as including: lack of em-

pathy, antisocial and paranoid tendencies, proclivity toward abusive behavior, inability to

learn from experience, tendency not to take responsibility for their actions, cynicism, and

a strong identifi cation with the police subculture.

5. Enumerate predictors associated with the use of excessive force.

The use of excessive form is miniscule but extremely problematic when it occurs. There

seems to be evidence that excessive force occurs in certain types of calls (pursuits) and

with certain groups (minorities). Female offi cers are less likely to use excessive force; how-

ever, any correlations should be viewed with caution since the sample size is so small.

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The legal standard for what is appropriate force is reasonableness, but it is somewhat

problematic to review an offi cer’s behavior after the fact and without knowing or perceiv-

ing the circumstances in the same way as the offi cer on the scene.

K E Y T E R M S

S T U D Y Q U E S T I O N S

1. What factors were associated with citizens’ experiences of “disrespect” from police

offi cers in the Project on Policing study?

2. What are some of the methods of interrogation according to Skolnick and Leo?

3. Describe Barker and Carter’s typology of lies.

4. List the questions posed by Marx that police should use before engaging in under-

cover operations.

5. What factors are associated with the use of force?

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) whether you think it is ever right for a police offi cer to

make a decision to stop someone based on race or ethnicity. Do you think that it is

ethical for police to enforce immigration laws by asking whether suspects, witnesses,

and/or victims are legal residents?

2. Write an essay on (or discuss) appropriate tools in interrogation. For this essay you

should review important court cases and research typical police practices. Should in-

terrogations be videotaped? Should attorneys always be present? Should juveniles ever

be interrogated without their parents? Should deception be used? If so, what kinds?

3. Write an essay on (or discuss) the best explanation for excessive force. If you could be

a change agent in a police department, describe the changes or procedures you would

institute that you believe would reduce the incidence of excessive force.

E T H I C A L D I L E M M A S

Situation 1

You are a rookie on traffi c patrol. You watch as a young black man drives past you in a brand new silver Porsche. You estimate the car’s value at around $50,000, yet the neighbor-

hood you are patrolling in is characterized by low- income housing, cheap apartments, and

tiny houses on the lowest end of the housing spectrum. You follow him and observe that

he forgets to signal when he changes lanes. Ordinarily you wouldn’t waste your time on

something so minor. What would you do?

Situation 2

You are a homicide investigator and are interrogating someone you believe picked up a

9- year- old in a shopping mall, and then molested and murdered the girl. He is a registered

sex offender, was in the area, and, although he doesn’t have any violence in his record,

you believe he must have done it because there is no other suspect who had the means,

Dirty Harry problem entrapment informants

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opportunity, and motive. You have some circumstantial evidence (he was seen in a video

following the child), but very little good physical evidence. You really need a confession in

order to make the case. You want to send this guy away for a long time. After several hours

of getting nowhere, you have a colleague come in with a fi le folder and pretend that the

medical examiner had obtained fi ngerprints on the body that matched the suspect’s. You

tell him that he lost his chance to confess to a lesser crime because now he is facing the

death penalty. He says that he will confess to whatever you want him to if the death pen-

alty is taken off the table. Do you tell him what you did? Do you tell the prosecutor?

Situation 3

You are a federal agent and have been investigating a major drug ring for a long time. One

of your informants is fairly highly placed within this ring and has been providing you with

good information. You were able to “turn” him because he faces a murder charge: there

is probable cause that he shot and killed a coworker during an argument about fi ve years

ago, before he became involved in the drug ring. You have been holding the murder charge

over his head to get him to cooperate and have been able, with the help of the U.S. District

Attorney’s offi ce, to keep the local prosecutor from fi ling charges and arresting him. The

local prosecutor is upset because the family wants some resolution in the case. You believe

that the information he is able to provide you will result in charges of major drug sales and

racketeering against several of the top smugglers, putting a dent in the drug trade for your

region. At the same time, you understand that you are constantly risking the possibility

that he may escape prosecution by leaving the country and that you are blocking the jus-

tice that the family of the murdered victim deserves. What would you do?

Situation 4

You are a rookie police offi cer who responds to a call for offi cer assistance. Arriving at the

scene, you see a ring of offi cers surrounding a suspect who is down on his knees. You don’t

know what happened before you arrived, but you see a sergeant use a taser on the suspect,

and you see two or three offi cers step in and take turns hitting the suspect with their night-

sticks about the head and shoulders. This goes on for several minutes as you stand in the

back of the circle. No one says anything that would indicate that this is not appropriate

behavior. What would you do? What would you do later when asked to testify that you

observed the suspect make “threatening” gestures to the offi cers involved?

Situation 5

You are a male suspect in a murder case. You were drunk the night of the homicide and did

meet and dance with the victim, a young college girl. You admit that you had a lot to drink,

but are 99 percent sure that you didn’t see her except in the bar. The trouble is that you

drank way too much and passed out in someone’s apartment close to the bar rather than

drive home. The girl was found in an apartment in the same complex. Police are telling

you that they have forensic evidence that ties you to the murder. They say that they have

her blood on your clothes and that it is your DNA in the sperm found in her body. They

have been interrogating you now for several hours, and you are beginning to doubt your

memory. You are also told that if you plead guilty, you would probably get voluntary man-

slaughter and might get probation, but if you insist on your innocence, you will be charged

with fi rst- degree murder and face the death penalty. What would you do?

[Obviously, this situation shifts our focus from the criminal justice professional’s

dilemma. If you decided earlier that the police tactic of lying about forensic evidence is

ethical, this hypothetical illustrates what might happen when innocent suspects are lied

to—assuming you are innocent!]

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• 173 •

C h a p t e r O b j e c t i v e s

1. Describe the types of police corruption.

2. Describe the ethical arguments for and against gratuities.

3. Explain and give examples of graft and other forms of police corruption.

4. Provide the three types of explanations of police misconduct, with examples of each.

5. Describe the ways to reduce corruption and misconduct.

Police Corruption and Misconduct

Frank Serpico is arguably the most famous police offi cer in the United States, even though

he hasn’t worked in law enforcement since 1972. After serving in Korea, he became a New

York City police offi cer in 1959. His pride in wearing the uniform quickly dissipated when

he realized that his partner was picking up “pad” money—payments by store owners to

ensure that the cops would be there in case of trouble but also ignore minor violations of

store owners and their customers. The “pad” was widespread in the department at the

time, and Serpico quickly became known as the cop who didn’t want the money, earning

him the distrust of those who did.

Eventually, over 12 years, he rose to the rank of detective. When he discovered that

corruption was rampant in the divisions he worked in, he began talking to police supervi-

sors about the wrongdoing, but to no avail. It seemed that no matter whom he talked to,

nothing was done and he continued to get the runaround. Finally, in 1970–1971, he and

David Durk, a fellow offi cer, went to the New York Times and participated in an exposé of

police corruption.

The series of stories led to the Knapp Commission, which conducted a wide- ranging

investigation of police corruption. Serpico and Durk continued to work even though ru-

mors that they were the “rats” were widespread and there was a real danger that corrupt

police offi cers would retaliate against them. Before he had a chance to testify, Serpico was

shot in the face at point- blank range in a drug bust while his fellow offi cers stood behind

him. The shooting was suspected of being a setup, especially since the “offi cer down” call

never was issued. However, no offi cer was investigated or charged with any wrongdoing in

relation to the shooting.

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Serpico survived and went on to testify before the Knapp Commission. He received

a Medal of Honor from the police department, but retired and left the United States for

10 years. He returned in the early 1980s and continues to speak out against police corrup-

tion and supports whistleblowers, calling them “lamplighters” (referring to Paul Revere’s

famous ride). “Doing the right thing” evidently continues to be his life’s work. (See his of-

fi cial website, at www.frankserpico.com.)

One of the sad facts is that the name Serpico continues to elicit two different reac-

tions. For some, it represents the epitome of an honest and brave man who stood against

corruption at great risk to self. For others, it represents a “rat,” a man who turned his back

on his friends, and, for some offi cers, to be called a “Serpico” is an insult.

There is no doubt that most police offi cers are honest and strive to be ethical in all

they do; however, examples of corruption and graft in law enforcement agencies are not

diffi cult to fi nd. We have discussed police misconduct, such as excessive force, in previous

chapters. In this chapter, we provide a more detailed discussion of misconduct and cor-

ruption. First we discuss its prevalence, including some attention to police corruption in

other countries. Then we examine in detail certain categories of corruption. We also offer

explanations for corruption and suggested methods to reduce it.

Since the very beginning of organized police departments, various investigative bodies

have documented cases of corruption. Fyfe and Kane (2006), for instance, provide a long

list of commissions and task forces that investigated police corruption scandals in a num-

ber of cities, including the Chicago Police Committee (in 1931), the Knapp Commission

(New York City in 1972–1973), the Kolts Commission (Los Angeles County in 1992), the

Mollen Commission (New York City in 1993), the Philadelphia Police Study Task Force

(in 1987), the Christopher Commission (Los Angeles in 1996), the New Orleans Mayor’s

Advisory Committee (in 1993), the Royal Commission (Sydney, Australia, in 1997), and

the St. Clair Commission (Boston in 1992), to name only a few. Cities also pay out large

sums of money for settlements when police offi cers and their departments are sued for

excessive force and other forms of misconduct.

Even though there is a large body of literature on police corruption, few studies have

been able to measure its extent and prevalence. An obvious barrier to discovery is getting

police offi cers to admit to wrongdoing. One early study reported that, by offi cers’ own ac-

counts, 39 percent of their number engaged in brutality, 22 percent perjured themselves,

31 percent had sex on duty, 8 percent drank on duty, and 39 percent slept on duty (Barker

and Carter, 1994). Barker (1983) reported that between 9 and 31 percent of offi cers who

had been employed for 11 months or less reported observing corrupt practices.

In a sample of narcotics offi cers, Stevens (1999) reported that 63 percent said they had

very often heard of narcotics offi cers using more force than necessary to make an arrest,

26 percent had often heard of other offi cers personally consuming and/or selling drugs,

and 82 percent had very often heard of other narcotics offi cers violating the civil rights of

suspects. These numbers must be interpreted carefully in that they do not mean that large

numbers of offi cers were corrupt, only that a fairly large number of offi cers had heard of

some case of corruption “very often.”

Fyfe and Kane (2006; also see Kane and White, 2009) studied police offi cers in New

York City who were terminated for cause and found that only 2 percent of offi cers in the

22 years under study (1975–1996) were terminated for misconduct. We will review this

study in detail in the coming paragraphs, as it is helpful to understand the factors associ-

ated with offi cers who are investigated and found to have committed misconduct seri-

ous enough to warrant termination. The number of offi cers who come to the attention

of supervisors and are offi cially sanctioned by termination is probably quite a bit lower

than the numbers who commit corrupt acts. Further, an offi cer might be terminated for

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http://www.frankserpico.com

C H A P T E R 7 | Po l i c e C o r ru p t i o n a n d M i s c o n d u c t 1 7 5

rule- breaking that does not exactly fi t into any category of corruption; thus, the study is

not perfect, but it does provide data that is hard to obtain.

Unfortunately, the perception that police are corrupt is widespread in some cities. In

one older New York City poll, 93 percent of those polled believed that police were corrupt

(Kraus, 1994). Moore (1997) reported, interestingly, that the public still has a high opinion

of police even though the majority also believes that police are dishonest. National opin-

ion polls show that more people have a high respect for police offi cers’ integrity and ethics

today than in decades past. In 1977, 37 percent of the public rated police integrity and eth-

ics as high or very high, and 12 percent rated police integrity as low or very low. By 1997,

the percentage of those who rated police high or very high went up to 49 percent and those

who rated police low or very low was 10 percent. By 2007, 53 percent of the public rated

police integrity as high or very high and only 9 percent of the population rated this factor

as low or very low (Sourcebook of Criminal Justice, 2007).

Most misdeeds of police offi cers are only marginally different from the unethical be-

haviors of other professions. For instance, some doctors prescribe unneeded surgery or

experiment with unknown drugs, some businesspeople cheat on their expense accounts,

lawyers sometimes overcharge clients, and contract bidders and purchase agents offer and

accept bribes. It is an unfortunate fact of life that people in any profession or occupation

will fi nd ways to exploit their position for personal gain. This is not to excuse these ac-

tions, but rather, to show that police are no more deviant than other professional groups.

In all of these occupational areas, most people attempt to uphold the profession’s code of

ethics and their own personal moral code. However, a few exploit their position and ex-

hibit extremely unethical behaviors.

A Worldwide Problem Police corruption does not occur just in the United States. Around the world there are

instances of many different types of corruption. Baksheesh, a euphemism for graft, is en-

demic in many developing countries. Offi cials, including law enforcement offi cers, expect

baksheesh to do the job they are supposed to do; alternatively, they extort money in ex-

change for not doing their job. “It’s just the way it is” is the explanation for why such

corruption exists. In all countries, corruption includes: corruption of authority, kickbacks,

opportunistic theft, shakedowns, protection of illegal activity, internal payoffs, and exces-

sive force.

In Queensland, Australia, the Fitzgerald (1989) Inquiry found a network of vertical

corruption reaching to the commissioner, and widespread misconduct, including fabrica-

tion of evidence, assaults on suspects, and bribery related to gambling and prostitution.

The scandal eventually resulted in legislation pertaining to freedom of information and

whistleblower protection. In addition, an independent watchdog agency—the Criminal

Justice Commission—was created (Prenzler, Harrison, and Ede, 1996: 5; Prenzler and

Ransley, 2002; Fitzgerald, 1989). The so- called Queensland model has become the most

well- known integrity model, promulgated by Transparency International (ABC News,

2009). Elsewhere, the Wood Commission Report exposed corruption in the New South

Wales Police Department in 1997 (Wood, 1997), including instances of fabrication of evi-

dence, theft, armed robberies, sale of drug evidence, sale of information, and a protection

racket (Prenzler, Harrison, and Ede, 1996; Coady et al., 2000). A later scandal in 2007 oc-

curred when evidence emerged that New Zealand police may have been involved in sexual

assaults of teenage girls followed by obstruction of justice by offi cers seeking to cover up

the events (Rowe, 2009).

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Other countries have also had notable scandals. Police scandals have emerged when

suspects die or are severely injured in police custody (Austria, Canada, Great Britain, Pak-

istan, South Africa), when police use illegal means to catch suspects (Canada, Great Brit-

ain, Ireland), or when investigations seem to be compromised by police relationships with

the suspect (Belgium). Often police are implicated in bribery scandals (France, Pakistan,

Russia) and having “slush funds” ( Japan). Drug scandals also have arisen where police are

accused of accepting bribes and conspire with smugglers or dealers (Netherlands, Mex-

ico) (Edelbacher and Ivkovic, 2004; Neyroud and Beckley, 2001; Alain, 2004; Mores, 2002;

Barker, 2002; Westmarland, 2005; Fielding, 2003; D. Johnson, 2004; Chattha and Ivkovic,

2004; Associated Press, 2008a). In 2009, the Metropolitan police in London were accused

of using a type of waterboarding by forcing one suspect’s head into a toilet repeatedly

and beating another. Evidently, the internal affairs unit had been investigating theft from

the evidence room with a hidden camera and tape recorder and caught offi cers talking

about the incident, unaware that they were being recorded. Their conversation corrobo-

rated what the suspect alleged. Several offi cers resigned or were terminated (Rawstorne

and Wright, 2009; Edwards, 2009).

Mexico presents a dramatic example of corruption and its effects on the citizenry.

Police offi cers are threatened or persuaded by rewards to work for the drug cartels, and

there have been instances where local police (acting as protectors for drug cartel mem-

bers) have engaged in tense showdowns with soldiers brought in to do the work of the

police. Citizens in some locales do not trust the police at all and do not bother to seek

their assistance when suffering crime victimization. The In the News box describes drug-

related corruption in Mexico several years ago. News reports indicate the problem has,

if anything, grown worse. In July 2010, prisoners were let out of a prison, given guns and

cars, and ordered to go kill rival cartel members. They killed 17 people and are suspected

of three more mass killings. After the killings, they returned to prison. Top prison offi cials

were implicated, and the incident is an illustration of how much control the drug cartels

have over the police and criminal justice system in Mexico.

I N T E R N A T I O N A L M E A S U R E S O F C O R R U P T I O N

Transparency International charts corruption worldwide, ranking more than 90 countries.

This agency defi nes corruption as abuse of public offi ce (including police) for private

gain (e.g., bribe taking). The countries with the highest scores for honesty have included

Finland, Denmark, New Zealand, and Sweden. Some of the poorest countries, including

in the N E W S C O R R U P T I O N I N M E X I C O

It was reported that 284 police commanders in Mexico were purged from the top ranks of the

federal police force in 2007 in an effort to combat the infl uence of drug cartel leaders on law

enforcement. The commanders were replaced with members of an elite squad that had been

trained and tested. In 2007, more than 1,000 civilians, 178 police offi cers, and 19 soldiers were

killed in drug- related shootings. Traffi ckers often employ police offi cers as the shooters.

SOURCE: McKinley, 2007.

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Azerbaijan, Bolivia, Kenya, Uganda, and Bangladesh, produced very low scores. The

United States, to many people’s surprise perhaps, does not rate as highly as a number of

other countries (Transparency International, 2008).

Finland is a country that evidently has a very low level of police corruption (Puonti,

Vuorinen, and Ivkovic, 2004). It has received the highest or one of the highest rankings

by Transparency International for the last several years. According to offi cial records, the

country had only 23 cases of offi cial corruption in the 1990s, and only one of these cases

involved a police offi cer (Laitinen, 2004). Only about 10 percent of all citizen complaints

about offi cials are about law enforcement offi cers (Laitinen, 2002).

Surveys indicate that Finnish people trust their police more than any other profes-

sional group, including court offi cials and church offi cials (Laitinen, 2004). This phenom-

enon may be attributed to the culture of open and accountable government. Finland’s

police force is highly educated as well and can be described as endorsing a public service

model of policing. There are strong proscriptions against most of the types of corruption

that will be described in this chapter, even gratuities. Laitinen (2004) illustrates with a joke

how gratuities, in general, are frowned on—“a cold sandwich and a warm beer” is accept-

able, but “a warm sandwich and a cold beer” is a gratuity. Although there certainly are

cases of corrupt police offi cers in Finland, the police there do seem to have a strong ethical

code that minimizes the level of corruption.

In the latest rankings available from Transparency International, which used polls to

rank 180 countries, New Zealand was ranked fi rst in the public’s trust in the honesty of their

public offi cials, followed by Denmark, Singapore, Sweden, Switzerland, and then Finland

in the sixth position on the list. The United States followed the United Kingdom in rank-

ings of 18 and 17, respectively. At the bottom of the current rankings were countries such as

Iraq, Sudan, Myanmar, Afghanistan, and Somalia, which was ranked last in perceptions of

honesty (Transparency International, 2009). It would be instructive to examine countries

that seem to have minimal levels of corruption to see what elements of these societies might

contribute to the perceived higher levels of ethics. One interesting study that compared the

police of different countries was conducted by Klockars, Ivkovic, and Haberfeld (2004). In

this study, samples of police offi cers from 14 countries rated the seriousness of 11 hypothet-

ical situations ranging from gratuities to “shopping” at a crime scene (taking items and then

attributing their loss to the burglary). They also indicated what level of discipline would be

administered to the transgressions. This second measure refl ected the offi cers’ perception

of the degree of seriousness that management staff would assign to the incidents.

There were great differences in the rankings of some of the hypotheticals. For instance,

the excessive- force situation was ranked as the third most serious in Hungary, but the least

serious in Pakistan, and ranked seventh in seriousness by police in the United States. Al-

though most countries ranked bribery very high, Croatia and Hungary did not. Theft from

a found wallet was ranked high in all countries except South Africa.

Countries also differed in their pattern of rankings. Some countries ranked all situa-

tions relatively high, whereas other countries ranked all or almost all situations relatively

low. For instance, Finland ranked all but three situations in the 4+ range (the scores went

up to 5), but South African police ranked only one situation in the 4+ range. However,

Pakistani police also ranked all but two situations highly, indicating perhaps that they an-

swered the survey in the way they thought they were supposed to. An important fi nding

of the research was that the offi cers’ beliefs seemed to be infl uenced by what discipline

they perceived would be forthcoming for each incident (Klockars, Ivkovic, and Haberfeld,

2004). Thus, management has an opportunity to shape offi cers’ beliefs by its responses to

deviant behavior. Whether beliefs, in turn, infl uence behavior is another question. Now

we will look at some types of corruption.

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Types of Corruption Corruption has been described as “acting on opportunities, created by virtue of one’s au-

thority, for personal gain at the expense of the public one is authorized to serve” (Cohen,

1986: 23). There is a huge body of literature on police corruption, only some of which is

touched on in this chapter. As we said, trying to establish the prevalence of corruption is

exceedingly diffi cult, but so, too, is trying to agree upon a defi nitive description of what

constitutes corruption.

In 1973, the Knapp Commission detailed its fi ndings of corruption in the New York

City Police Department. The terms grass eaters and meat eaters were used to describe New

York City police offi cers who took advantage of their position to engage in corrupt prac-

tices. Accepting bribes, gratuities, and unsolicited protection money was the extent of the

corruption engaged in by grass eaters, who were fairly passive in their deviant practices.

Meat eaters participated in shakedowns, “shopped” at burglary scenes, and engaged in

more active deviant practices. The Mollen Commission, which investigated New York

City Police Department corruption 20 years later (1993), concluded that meat eaters were

engaged in a qualitatively different kind of corruption in more recent times. Beyond just

cooperating with criminals, the corrupt cops were active criminals themselves, selling

drugs, robbing drug dealers, and operating burglary rings.

The distinction between passive and active corruption is a helpful one. Another way

to identify and categorize police corruption is offered by Barker and Carter (1994), who

propose that police abuse of authority comes in three different areas:

Physical abuse—excessive force, physical harassment •

Psychological abuse—disrespect, harassment, ridicule, excessive stops, intimidation •

Legal abuse—unlawful searches or seizures, manufacturing evidence •

In another source, Barker (2002) lists the types of police corruption as including

corruption of authority (gratuities), kickbacks, opportunistic theft, shakedowns, protec-

tion of illegal activities, fi xes (quashing tickets), direct criminal activities, and internal

payoffs.

Fyfe and Kane (2006) also provide a detailed discussion of the types of police cor-

ruption. They argue that it is important to note that in some situations when police of-

fi cers commit crimes, it is not truly police corruption in that the crimes are committed

off- duty and have no relationship to their job. In effect, they are criminals who happen

to be cops, but being cops has no relationship to their criminality. However, they might

have learned how to commit the crime, obtained criminal contacts, or developed criminal

values through their job, so, in a sense, it might be considered job- related corruption. The

point is that it is diffi cult to draw a line between police corruption (acts intrinsically tied to

the job) and criminals who happen to be police offi cers. Fyfe and Kane provide a detailed

explanation of the types of police misconduct discussed in the literature, summarized in

the following paragraphs.

Police crime involves situations where police officers violate criminal statutes.

Police might engage in crimes that have nothing to do with their position (e.g., com-

mit burglaries or insurance fraud while off- duty), however, it may be that their abil-

ity to commit the crime might be entirely related to their position (e.g., stealing

drugs from an evidence locker or identity theft using information obtained by writ-

ing tickets).

Police corruption involves offenses where the offi cer uses his or her position, by act or

omission, to obtain improper fi nancial benefi t. For instance, offi cers may take bribes either

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to not do their job (write a ticket) or to do their job (provide police protection). Note that

these acts may overlap with police crime because some police corruption violates criminal

statutes as well (e.g., extortion and bribery). Police offi cers may commit acts for personal

profi t of either a non- criminal or a criminal nature related to their employment. An ex-

ample of a non- criminal form of police corruption would be to violate the department’s

extra- job policy or to take gratuities. An example of criminal corruption would be to take

a bribe.

The key element of this type of corruption is personal gain. Examples offered by

Fyfe and Kane of “unambiguous” police corruption would be an offi cer who steals from a

drug seizure (an individual “event”) or a group of offi cers who repeatedly extort or accept

money from criminals (an “arrangement”). However, it is not clear why Fyfe and Kane

distinguish these activities as distinct from police crimes as defi ned above.

Abuse of power involves actions where offi cers physically injure or offend a citizen’s

sense of dignity. Physical abuse can be divided into brutality, which occurs when offi cers

infl ict physical abuse on persons to teach them a lesson, and unnecessary force, which

occurs when police offi cers make mistakes that lead them to have to resort to force that

would not have been necessary had they followed proper procedures. Psychological abuse

ranges from deception in interrogation to intimidation on the street. Legal abuse involves

various forms of wrongdoing designed to convict suspects, including perjury, planting evi-

dence, and hiding exculpatory evidence. Another type of abuse of power involves off- duty

misconduct (e.g., driving while intoxicated or physical assaults), with the expectation that

the wrongdoing will be covered up by fellow offi cers.

In their own classifi cation of police misconduct, Fyfe and Kane (2006: 37–38) offer

the following typology:

Profi t- motivated crimes (all offenses except those that are drug- related with the goal •

of profi t)

Off- duty crimes against persons (all assaultive, non- profit- related crimes •

off- duty)

Off- duty public- order crimes (not including drugs, and most commonly DWI [driv- •

ing while intoxicated] and disorderly conduct)

Drugs (all crimes related to possession, sale, conspiracy, and failing departmental •

drug tests)

On- duty abuse (use of excessive force, psychological abuse, or discrimination) •

Obstruction of justice (conspiracy, perjury, offi cial misconduct, and all other offenses •

with the goal of obstructing justice)

Administrative/failure to perform (violating one or more departmental rules, policies, •

and procedures)

Conduct- related probationary failures (simple failure to meet expectations) •

An important distinction that should be made is between crimes and ethical trans-

gressions. It is an insult to law enforcement offi cers when certain actions, such as stealing

from a burglary scene or taking money from a drug dealer to guard a shipment of drugs,

are discussed as if they were ethical dilemmas in the same category as whether to avoid

responding to a minor traffi c accident or whether an offi cer should call in sick so he can go

fi shing. Stealing, robbing, and conspiring to sell drugs are crimes. The offi cers who engage

in such acts are criminals who are quite distinct from offi cers who commit ethical lapses

akin to other workers who do so within the parameters of their particular professions

or jobs.

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1 8 0 P A R T I I | Po l i c e

G R A T U I T I E S

We will begin our discussion of specifi c types of misconduct with gratuities, which also

will receive the longest discussion since gratuities are so ubiquitous. Gratuities are items of value received by an individual because of his or her role or position rather than be-

cause of a personal relationship with the giver. The widespread practices of free coffee

in convenience stores, half- price or free meals in restaurants, and half- price dry cleaning

are examples of gratuities. Frequently, businesspeople offer gratuities, such as half- price

meals, as a token of sincere appreciation for the police offi cers’ work. Although the formal

code of ethics prohibits accepting gratuities, many offi cers believe there is nothing wrong

with businesses giving “freebies” to police offi cers. They see these as small rewards indeed

for the diffi culties they endure in police work.

Prenzler (1995: 21) found that people generally did not support gratuities (only 4 per-

cent), but that two- thirds of respondents agreed that it was acceptable for police to take

coffee, and about one- quarter approved of Christmas gifts. The majority were still op-

posed to large gifts and regular gifts, and 76 percent were opposed to regular free coffee,

cold drinks, or discounted meals when on duty. Few of Prenzler’s respondents agreed with

the commonly used arguments for acceptance of gratuities:

That they build community relations (15 percent) •

That they give businesses police protection (8 percent) •

That every occupation has its perks (6 percent) •

That they compensate police for poor pay (6 percent) •

In criminal justice classrooms in the United States, it is common to fi nd fairly strong

support for minor gratuities, but this may not be true if one were to poll other groups.

Lord and Bjerregaard (2003) found that students initially ranked gratuities as a minor ethi-

cal issue, but after taking a criminal justice ethics class, ranked accepting gratuities as a

more serious ethical transgression.

One author writes that gratuities “erode public confi dence in law enforcement and

undermine our quest for professionalism” (Stefanic, 1981: 63). How do gratuities under-

mine public confi dence? Cohen (1986: 26) believes that gratuities are dangerous because

what might start without intent on the part of the offi cer may become a patterned expecta-

tion; it is the taking in an offi cial capacity that is wrong, for the social contract is violated

when citizens give up their liberty to exploit only to be exploited, in turn, by the enforce-

ment agency that prevents them from engaging in similar behavior. To push this argument

to the extreme, some might argue that there are similarities between someone coming into

an inner- city store and demanding “protection money” (to avoid torching and vandal-

ism) and a police offi cer coming into the store expecting liquor or other goods (if the store

owner believes that he will receive a lower level of protection if he doesn’t provide them).

How does the store owner know that his silent alarm will receive the same speed of re-

sponse if he is not grateful and generous to police offi cers?

Offering a different view, Kania (1988: 37) writes that police “should be encouraged

to accept freely offered minor gratuities and . . . such gratuities should be perceived as the

building blocks of positive social relationships between our police and the public.” He

rejects the two major arguments against gratuities:

The slippery slope argument—that taking gratuities leads to future, more serious, •

deviance

The unjust enrichment argument—that the only honest remuneration for police of- •

fi cers is the paycheck

gratuities Items of value received by an individual because of his or her role or position rather than because of a personal relationship with the giver.

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Kania proposes that gratuities actually help cement relations between the police de-

partment and the public. Offi cers who stay and drink coffee with store owners and busi-

nesspeople are better informed than offi cers who don’t, according to Kania. A gift, freely

given, ties the giver and receiver together in a bond of social reciprocity. This should not

be viewed negatively, but rather, as part of a community- oriented policing concept. Kania

also points out that those who offer gratuities tend to be more frequent users of police ser-

vices, which justifi es more payment than the average citizen.

The only problem, according to Kania, is when either or both the giver and taker (of-

fi cer) have impure intent. For instance, it would be an unethical exchange if the intent of

the giver was to give in exchange for some future service, not as reward for past services

rendered. Another unethical exchange would be when the intent of the police offi cer tak-

ing the gratuity was not to receive unsolicited but appreciated gifts, but rather, to use the

position of police offi cer to extort goods from business owners. A third type of unethical

exchange would be if both the giver and the police offi cer’s motives were unethical: if the

giver expected special treatment and the offi cer’s intent was to take the gratuity in exchange

for performing the special service. In Kania’s scheme, ethical exchanges are when they are

true rewards or gifts with no expectation of future acts. Unethical exchanges are when

either the giver or receiver expects something in return, such as understandings, bribes,

arrangements, and shakedowns.

Another issue that Kania alludes to but doesn’t clearly articulate is that a pattern of

gratuities changes what would have been a formal relationship into a personal, informal

one. This moves the storekeeper- giver into a role that is more similar to a friend, relative,

or fellow offi cer, in which case personal loyalty issues are involved when the law has to be

administered. In the same way that an offi cer encounters an ethical dilemma when a best

friend is stopped for speeding, the offi cer who stops a store owner who has been providing

him or her with free coffee for the past year may also experience divided loyalties. They

have become, if not friends, at least personally involved with each other to the extent that

formal duty becomes complicated by the personal relationship.

Critics (Ruiz and Bono, 2004; Coleman, 2004a, 2004b) argue against gratuities for the

following reasons:

Police are professionals, and professionals don’t take gratuities. •

Gratuities are incipient corruptors because people expect different treatment. •

Gratuities are an abuse of authority and create a sense of entitlement. •

Gratuities add up to substantial amounts of money and can constitute as high as 30 •

percent of an offi cer’s income.

Gratuities can be the beginning of more serious forms of corruption. •

Gratuities are contrary to democratic ideals because they are a type of fee- for- service •

for public functions that are already paid for through taxes, such as police protection.

Gratuities create a public perception that police are corrupt. •

Kania (2004) counter- argues:

Other professionals accept gratuities. •

There is nothing wrong with more frequent users of police services “paying” extra. •

“No gratuity” rules are tools of playing “gotcha” by administrators who enforce them •

only against individuals that they target for some other reason. This differential use of

discipline erodes morale.

Educators and academics tend to distort the seriousness of gratuities. •

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Where should one draw the line between harmless rewards and inappropriate gifts?

Is a discount on a meal okay, but not a free meal? Is a meal okay, but not any other item,

such as groceries or tires or car stereos? Do the store or restaurant owners expect anything

for their money, such as more frequent patrols or overlooking sales of alcohol to underage

juveniles? Should they expect different treatment from offi cers than the treatment given

to those who do not offer gratuities? Suppose that an offi cer is told by a convenience store

owner that she can help herself to anything in the store—free coffee, candy, cigarettes,

chips, magazines, and such. In the same conversation, the store owner asks the offi cer for

her personal pager number “in case something happens and I need to get in contact with

you.” Is this a gift, or is it an exchange? Should the offi cer accept the free merchandise?

Many merchants give free or discount food to offi cers because they like to have police

around, especially late at night. The question then becomes the one asked frequently by

citizens: Why are two or three police cars always at a certain restaurant? Police argue that

they deserve to take their breaks wherever they want within their patrol area. If it happens

that they choose the same place, that shouldn’t be a concern of the public. However, an

impression of unequal protection occurs when offi cers make a habit of eating at certain

restaurants or congregating at certain convenience stores. Free meals or even coffee may

infl uence the pattern of police patrol and, thus, may be wrong because some citizens are

not receiving equal protection.

What happens when all surrounding businesses give gratuities to offi cers and a new

business moves in? Do offi cers come to expect special favors? Do merchants feel pres-

sured to offer them? Many nightclubs allow off- duty offi cers to enter without paying cover

charges. Does this lead to resentment and a feeling of discrimination by paying customers?

Does it lead to the offi cers thinking that they are special and different from everyone else?

Other examples of gratuities are when police accept movie tickets, tickets to ball games

and other events, and free or discounted merchandise.

The extent of gratuities varies from city to city. In cities where rules against gratuities

are loosely enforced, “dragging the sack” may be developed to an art form by some police

offi cers, who go out of their way to collect free meals and other gifts. One story is told of a

large Midwestern city where offi cers from various divisions were upset because the mer-

chants in some areas provided Christmas gifts, such as liquor, food, cigarettes, and other

merchandise, whereas merchants in other divisions either gave nothing or gave less attrac-

tive gifts. The commander, fi nally tired of the bickering, ordered that no individual offi cer

could receive any gifts and instead sent a patrol car to all the merchants in every district.

Laden with all the things the merchants would have given to individual offi cers, the patrol

car returned, and the commander parceled out the gifts to the whole department based on

rank and seniority.

Ruiz and Bono (2004) presented other instances of gratuities. In a southern city, a

restaurant owner who had been giving free meals to offi cers stopped doing so. Offi cers

then engaged in a ticket- writing campaign, targeting his customers who double- parked.

After several weeks of this, the restaurant owner changed his mind and began giving free

meals to offi cers again. Those authors also mentioned a type of contest whereby offi cers

competed to see how many free bottles of liquor they could collect; the winning team col-

lected 50 bottles from the bars and businesses in one district on a single shift. “The blue

discount suit,” according to the authors, was a term that indicated how offi cers felt about

gratuities. Some other terms described businesses that offered free or discounted goods;

these establishments were said to “show love” or give “pop”—hence the saying, “If you

got no pop, you got no cop.”

Offi cers in some departments are known for their skill in soliciting free food and li-

quor for after- hours parties. In the same vein, offi cers also solicit merchants for free food

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and beverages for charity events sponsored by police, such as youth softball leagues. The

fi rst situation is similar to individual offi cers receiving gratuities, but the second situation

is harder to criticize. Offi cers bring up the seeming hypocrisy of a departmental prohibi-

tion against individual offi cers accepting gratuities, yet at the same time there may be an

administrative policy of actively soliciting and receiving donations from merchants for de-

partmental events, such as pastries, coffee, or more expensive catering items. The In the

News box illustrates an example of how such gratuities can lead to a confl ict of interest.

Professional ethics discourages gifts or gratuities when the profession involves discre-

tionary judgments about a clientele (i.e., judges, professors, appraisers, inspectors). While

bribery laws punish taking or receiving something of value in return for a specifi c act of

omission or commission related to one’s offi ce, confl ict- of- interest laws punish merely

taking something of value prohibited by the law when one holds a public offi ce, with no

necessity to show that a specifi c vote or decision was directly infl uenced by receipt of the

valued items or services. Confl ict- of- interest laws recognize the reality that one’s discretion

is compromised after receiving things of value; however, it does not seem unusual or par-

ticularly unethical for a doctor, a lawyer, a mechanic, or a mail carrier to receive gifts from

grateful clients. Whether gifts are unethical relates to whether one’s occupation or profes-

sion involves judgments that affect the gift givers. The police obviously have discretion-

ary authority and make judgments that affect store owners and other gift givers. This may

explain why some think it is wrong for police to accept gifts or favors. It also explains why

so many other people do not see anything wrong with some types of gratuities, for police

offi cers in most situations are not making decisions that affect the giver and, instead, are

simply providing a service, such as responding to a burglary or disturbance call.

An important distinction that might aid the discussion is the difference between a gift

and a gratuity. A gift is something that is clearly given with no strings attached. An exam-

ple might be when a citizen pays for a police offi cer’s meal without telling the offi cer; when

the offi cer gets ready to pay, the bill is already taken care of. Many offi cers have had this

experience. In this case, because the police offi cer did not know of the reward (because

the gift giver did not make the gift known), no judgment can be affected.

Ethical formalism would indicate that we must be comfortable with a universal law

allowing all businesses to give all police offi cers certain favors or gratuities, such as free

meals, free merchandise, or special consideration. However, such a blanket endorsement

in the N E W S P O L I C E F R E E B I E S A N D E T H I C S

A technical advisor in charge of ethics training for the Canadian Association of Chiefs of Police

resigned over the decision of the association to continue to accept sponsorship from Taser In-

ternational for their annual conference. The company, which manufactures and markets tasers

to law enforcement agencies, contributed $75,000 to the event over the last three years. The

president of the association said there is no reason not to accept sponsorship since they do not

endorse tasers; however, they did join the Canadian Police Association in a “position document”

that backed the use of the weapon. The ethics advisor resigned, arguing it was hypocritical

when the rank and fi le offi cer is punished for accepted gratuities.

SOURCE: Javed, 2009.

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of this behavior would probably not be desirable. The second principle of ethical formal-

ism indicates that each should treat every other with respect as an individual and not as a

means to an end. In this regard, we would have to condemn gratuities in cases where the

giver or receiver had improper motives according to Kania’s typology. This also explains

why some gifts seem acceptable. When something is given freely and accepted without

strings, there is no “using” of others; therefore, it might be considered an innocent, honor-

able act by both parties.

If utilitarian ethics were used, one would have to weigh the relative good or utility of the

interaction. On one hand, harmless gratuities may create good feelings in the community

toward the offi cers and among the offi cers toward the community (Kania’s “cementing the

bonds” argument). On the other hand, gratuities often lead to perceptions of unfairness

by shopkeepers who feel discriminated against, by police who think they deserve rewards

and don’t get them, and so on. Thus, the overall negative results of gratuities, even “harm-

less” ones, might lead a utilitarian to conclude that gratuities are unethical.

Macintyre and Prenzler (1999) conducted a survey of offi cers to see if they would

be infl uenced by gratuities. They asked offi cers what they would do if a café owner who

gave them free coffee and meals was stopped for a traffi c violation. The researchers found

that supervisory officers were more likely than rookies to give a ticket. Although only

15 percent would not write the ticket and would continue to go back for meals, an ad-

ditional 41 percent would also not write the ticket but would give the owner a warning

and not go back for free meals. The remaining offi cers would write the owner a ticket.

Another study evaluated police coverage in a medium- sized U.S. city, taking into account

whether or not the businesses gave gratuities, food quality, cost, convenience, and location

and found that gratuities increased coverage (Deleon- Granados and Wells, 1998). These

studies indicate that gratuities do infl uence offi cers’ decisions both in how they patrol and

what they might do when they have to make a decision about a giver of gratuities. More

research is needed to see if these fi ndings would be replicated.

The ethics of virtue would be concerned with the individual qualities or virtues of the

offi cer. A virtuous offi cer could take free coffee and not let it affect his or her judgment.

According to this perspective, no gift or gratuity would affect the judgment of the virtuous

offi cer. However, if the offi cer does not possess those qualities of virtue, such as honesty,

integrity, and fairness, even free coffee may lead to special treatment. Further, these offi -

cers would seek out gifts and gratuities and abuse their authority by pursuing them.

P R O F E S S I O N A L C O U R T E S Y

The practice of not ticketing an offi cer who is stopped for speeding or for other driving

violations is called “professional courtesy.” Obviously offi cers do not ticket everyone they

stop. They often give warnings instead, and that is a legitimate use of their discretion.

Whether to ticket or give a warning should depend on objective criteria, such as the se-

riousness of the violation. If the offi cer would let another person go with a warning in the

same situation, there is no ethical issue in giving a warning to a fellow offi cer. However,

if every other person would have received a ticket, but the offi cer did not issue one only

because the motorist was a fellow offi cer, that is a violation of the code of ethics (“enforce

the law . . . without fear or favor”). It is a violation of deontological universalism as well as

utilitarianism. Under deontological ethics, it is the offi cer’s duty to enforce the law against

everyone, including offi cers. Under utilitarianism, the fact that the speeding offi cer can

cause an accident means that the utility for society is greater if the ticket is issued, for it

might make the offi cer slow down, and by doing that, accidents can be avoided.

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Justifi cations for not ticketing other offi cers are diverse and creative. For instance,

some honest justifi cations are purely egoistic: “If I do it for him, he will do it for me one

day.” Other justifi cations are under the guise of utilitarianism: “It’s best for all of us not

to get tickets, and the public isn’t hurt because we’re trained to drive faster.” On websites

where police offi cers post comments about a variety of issues, professional courtesy (for

offi cers and their family members) is a hot- button topic that generates strong emotions on

both sides. While many offi cers maintain they treat other offi cers the same as anyone else,

some offi cers seem to think of professional courtesy as a job “perk” similar to medical pro-

fessionals who receive free medical care from colleagues or cooks and restaurant workers

who receive free dinners from other restaurants. One might argue, however, that they do

not understand the difference between being a private professional and a public servant,

nor do they fully understand their extremely important role in the administration of law

and justice.

One troubling aspect of professional courtesy for traffi c offenses is that the practice

has a tendency to bleed over into other forms of misconduct. Offi cers who are stopped

for driving while intoxicated are sometimes driven home rather than arrested, but this ap-

plication of discretion is highly unlikely to be afforded to any other citizen. In some cases

of domestic violence, victims of police offi cer husbands or boyfriends describe how the

responding offi cers do nothing or take their complaints more lightly than they would if

the alleged perpetrator were not a police offi cer. The In the News box describes a situation

that might have started out as extending professional courtesy to a wife of a fellow offi cer.

The idea that offi cers are above the law is insidious. Offi cers who believe that they

should not have to follow the same laws they enforce against others may be more prone to

other forms of abuse of authority as well. It should also be noted that many offi cers think

that they are held to a higher standard of behavior than the public. Offi cers point out that a

domestic violence, DUI, or any other arrest may cost them their job, which may not be the

case for others. The argument against this position is that perhaps one who is tasked with

enforcing the law, but is engaged in unlawful behavior should not have the job.

in the N E W S P R O F E S S I O N A L C O U R T E S Y ?

The San Jose, California, police chief fi red a popular sergeant for conduct unbecoming to an

offi cer for a cover- up involving Sandra Woodall, an investigator for the district attorney’s offi ce.

Her husband is a San Jose sergeant, and her father- in- law is a former lieutenant and current

D.A. investigator. She was involved in an accident while speeding, crashed into several cars,

and injured a teenager. Offi cers on the scene did not do a breath test even though EMTs said

she was disoriented and didn’t know the year and smelled like alcohol. The offi cers also noted

in their report no signs of intoxication and, at the hospital, told the injured teenager’s mother

that it was too late to do a blood alcohol test. The mother, unsatisfi ed with the police investiga-

tion, went to the D.A.’s offi ce; that offi ce passed the case to the state attorney general’s offi ce.

Woodall later pleaded guilty to drunken driving and received a sentence of 45 days in jail. Both

offi cers were no- billed by grand jury, but were fi red by the chief, who also fi red their sergeant.

All said they would appeal the fi ring.

SOURCE: Webby, 2009.

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O N - D U T Y U S E O F D R U G S A N D A L C O H O L

Carter (1999) discussed the extent of on- duty drug use, citing previous research that found

up to 20 percent of offi cers in one city used marijuana and other drugs while on duty. That

seems to be a high fi gure; in other surveys, about 8 percent of employees reported drug

use and only 3 percent of all workers in a “protective services” category reported drug use.

In a more recent survey, protective service employees were the least likely to report any

drug use (Mieczkowski, 2002: 168).

It could also be that the decrease seen in the use of drugs by the general population is

refl ected in police offi cer samples. As well, the sources are not exactly comparable. Thus,

it is impossible to determine which source is more accurate. However, certain circum-

stances are present in law enforcement that, perhaps, create more opportunities for drug

use. Elements of police work (especially undercover work) that can lead to drug use in-

clude the following:

Exposure to a criminal element •

Relative freedom from supervision •

Uncontrolled availability of contraband •

Carter (1999: 316) also discussed the phenomenon of police offi cers who go under-

cover and become socialized to the drug culture. They may adopt norms conducive to

drug taking. Further, they may think they need to use drugs to maintain their cover. They

are also able to rationalize stealing drugs from sellers: “It should not be a crime to steal

something that is contraband in the fi rst place.” Drug use by offi cers creates the potential

for even more serious misbehavior, such as stealing evidence, being blackmailed to per-

form other unethical or illegal actions, and being tempted to steal from drug users instead

of arresting them. This, of course, is in addition to the obvious problem of compromising

one’s decision- making abilities by being under the infl uence of any drug while on duty.

The use of drug tests during the hiring process is long- standing, but periodic and/

or random drug testing of employed offi cers is a more recent policy. Many police of-

fi cers, as is true of many other types of employees, are now subject to drug testing. Em-

ployees in the protective services sector are the most likely to undergo drug testing in

the workplace. While about 60 percent of protective service workers say that their work-

place engages in random drug testing, only 14 percent of other professionals have the

same experience (reported in Mieczkowski, 2002: 172). Generally, courts have upheld

the right of law enforcement agencies to employ drug testing, applying the balancing test

between a compelling governmental interest and individual privacy rights. The list of

compelling- interest elements served by drug testing includes the following, as reported by

Mieczkowski (2002: 179):

Public safety •

Public trust •

Potential for offi cial corruption •

Offi cial credibility •

Worker morale •

Worker safety •

Officers have some due process rights, however, and they must be notified of

the policies and procedures involved in the agency’s drug testing, have access to the

findings, and have available some sort of appeal process before sanctions are taken

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(Mieczkowski, 2002: 179). In Fyfe and Kane’s (2006) study of police offi cers terminated

for cause in New York City, the most common reason for termination was a failed drug test.

Alcohol use is more socially acceptable than drug use, and it has also been cited as a

problem. In one survey, it was found that about 8 percent of those in protective services

occupations (which include police offi cers) reported heavy alcohol use. This compared

to 12 percent of construction workers and 4 percent of sales workers (Mieczkowski, 2002:

179). Barker and Carter (1994) indicated that 8 percent of offi cers reported drinking alco-

hol on duty. The problem of drinking on duty does not involve the vulnerability to black-

mail that drug use does, but there are obvious problems, and offi cers who are aware of

another’s on- duty intoxication are faced with an ethical dilemma of whether or not to take

offi cial action. Offi cers may choose to informally isolate themselves from drinking offi -

cers by refusing to partner with them or avoid working calls with them. As the Quote and

Query box indicates, however, reporting fellow offi cers is not the thing to do.

QUOTE && QUERY When I showed up for work the next night, nobody would talk to me. I was treated

like an invisible stinking turd for the whole month. My new shoes and leather

gloves disappeared from my locker. Even offi cers on the other shifts shunned me.

—SOURCE: QUINN, 2005: 34.

This offi cer reported another offi cer for drinking on duty.

? Why would offi cers protect a drunken offi cer who might endanger his partner or others by being intoxicated on the job?

G R A F T

Graft is the exploitation of one’s role by accepting bribes or protection money. Graft also occurs when offi cers receive kickbacks from tow truck drivers, defense attorneys, or bail

bond companies for recommending them.

In Klockars, Ivkovic, and Haberfeld’s (2004) international comparison of offi cers’

views regarding hypotheticals drawn to illustrate various forms of corruption, offi cers in

the United States rated bribery as the second most serious offense. Only theft from a crime

scene was rated as more serious. Offi cers in Austria, Finland, Japan, the Netherlands, Swe-

den, and the United Kingdom rated bribery as even more serious than did U.S. offi cers.

While police offi cers in small and medium- sized departments might argue that most

of the misconduct described in this chapter does not happen in their department, exam-

ples of graft do appear in smaller communities (Bloom, 2008a, 2008b, 2008c). A small-

town police chief or county sheriff has a great deal of power that is largely unnoticed and

unquestioned until a blatant misuse of power brings it to the public’s attention.

S E X U A L M I S C O N D U C T

It is a sad reality that a few police offi cers use their position of authority to extort sex from

female citizens (there doesn’t seem to be the parallel situation of female police offi cers ex-

torting sex from male victims). Sexual harassment of female police offi cers is also a prob-

lem in some departments. Finally, offi cers may engage in other types of sexual misconduct

for which they may be sanctioned.

graft Any exploitation of one’s role, such as accepting bribes, protection money, or kickbacks.

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Amnesty International has documented widespread mistreatment of women by po-

lice around the world. Egregious cases in the United States include rapes by offi cers on

duty and by jailers in police lockups, and a few instances where the sexual misconduct

of police offi cers was widespread and protected by departmental supervisors, such as in

Wallkill, New York. In that town, the 25- member police department evidently engaged

in numerous instances of sexual intimidation of citizens before being investigated by the

state police and sued in a federal civil rights lawsuit (reported in McGurrin and Kappeler,

2002: 133).

Kraska and Kappeler (1995) looked at a sample of 124 cases of police sexual miscon-

duct, including 37 sexual assaults by on- duty offi cers. These authors challenged earlier

studies indicating that sexual misconduct of offi cers occurred most often when women

traded sexual favors for lenient treatment and that it was the victim who initiated the trade.

This study’s authors concluded that norms in a police department that ignored or con-

doned the exchange of sex for favored treatment opened the door to offi cers who used

more aggressive tactics to coerce sex from citizens. Kraska and Kappeler (1995: 93) pro-

pose a continuum of sexual invasion that ranges from some type of invasion of privacy to

sexual assault. This range of behavior includes the following:

Viewing a victim’s photos or videos for prurient purposes •

Field strip searches •

Custodial strip searches •

Illegal detentions •

Deception to gain sex •

Provision of services for sex •

Sexual harassment •

Sexual contact •

Sexual assault •

Rape •

Sapp’s (1994) inventory of sexual misconduct includes the following:

Nonsexual contacts that are sexually motivated (non- valid traffi c stops) •

Voyeurism (e.g., patrolling lovers’ lanes to watch sexual activity) •

Contact with crime victims (excessive call- backs that are not necessary for investiga- •

tive purposes)

Contact with offenders (sexual demands or inappropriate frisks) •

Contacts with juvenile offenders (sexual harassment and sexual contact) •

Sexual shakedowns (demanding sex from prostitutes or the homeless) •

Citizen- initiated sexual contact (an offi cer is approached by a citizen because of his •

offi cer status)

Even the most innocuous of contacts between female citizens and offi cers—whereby

an officer might ask a woman he has stopped for a date—involve issues of power and

coercion. In a study by Kraska and Kappeler, police described how they routinely went

“bimbo hunting,” which involved sexual harassment of women out drinking (1995: 104).

Prostitutes and homeless women are extremely vulnerable populations to sexual extor-

tion by police offi cers, but studies indicate that middle- class citizens have also been sub-

ject to intimidation and outright assault. Most victims are under age 30 (McGurrin and

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Kappeler, 2002). The defense of offi cers is usually that, if sex occurred, it was consensual.

The problem is that when offi cers acting in their offi cial capacity meet women (as victims,

witnesses, defendants, or suspects), the power differential makes consent extremely prob-

lematic, as the following In the News box illustrates.

McGurrin and Kappeler (2002) reported on a study of offi cial records of sexual mis-

conduct by police offi cers that uncovered hundreds of instances of sexual assault, rape,

and even murder by police offi cers in and out of uniform. Rape charges commonly are

downgraded to a conviction of “offi cial oppression” in a plea agreement. Also, these re-

searchers found that some offi cers who had criminal records for sexual offenses simply

moved and obtained law enforcement positions in other jurisdictions.

In their own study of newspaper articles concerning sexual misconduct, McGurrin

and Kappeler (2002: 134) uncovered more than two dozen cases where the offi cers had

been disciplined for sexual misconduct prior to the case that was reported in the news ar-

ticle. They also found that of the cases taken up by the justice system, about half of the al-

leged offenders did not receive any punishment. Only a third received jail or prison time.

A department may be aware of an offi cer’s pattern of sexual harassment and do nothing

about it. This obvious lapse of supervision is unfair to the public and also costs money.

Kraska and Kappeler (1995) reported that police lost 69 percent of the civil rights suits

brought by the victim of sexual misconduct.

Two newspaper reports of sexual abuse by a police offi cer in 2007 illustrate two dif-

ferent types of sexual abuse. In the fi rst case, a police offi cer was arrested and charged

with indecency with a child; he was accused of fondling the child after consuming large

quantities of alcohol at a party. In the second case, a sheriff ’s deputy was found guilty and

sentenced to two years of probation and fi ned for “improper sexual activity with a person

in custody” based on an incident in which he ordered a college co- ed to expose herself

and groped her breasts, threatening her with a DWI arrest. In this case, the county settled

a civil lawsuit by the victim (Bloom, 2007).

in the N E W S S E X U A L M I S C O N D U C T

Craig Nash was fi red from the San Antonio Police Department and indicted for charges related

to picking up a transgender prostitute, driving her to a deserted location, handcuffi ng her, and

forcing her to perform sexual acts. Another victim also came forward alleging similar victimiza-

tion by the offi cer. In a second case, an offi cer was fi red for allegedly having sex in his patrol car,

along with other violations. In 2009, San Antonio fi red 18 offi cers over various forms of miscon-

duct, including sexual assaults and indecent exposure.

In New York, an offi cer was convicted of sexual abuse in one case for extorting sex from an

18- year- old girl and will be tried for sexual abuse for using his position as a police offi cer to coerce

two other women to have sex with him. In another case, a Brooklyn offi cer faces federal charges

for threatening to arrest a woman if she didn’t perform oral sex on him in a precinct bathroom.

Then, when he was under investigation for that charge, he ordered a prisoner in custody to lift up

her shirt so he could see her breasts. This offi cer is also facing rape charges in a separate case.

SOURCES: Holley, 2010; Sulzberger and Eligon, 2010

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In the fi rst case, the fact that the alleged perpetrator was a police offi cer is immate-

rial and unrelated to the offense, but in the second case, the deputy used his position to

victimize a citizen that he was entrusted to “protect and serve.” Because police offi cers are

in a position to stop women late at night, events like this are incredible blows to a depart-

ment’s reputation. Unfortunately, the relatively few cases of sexual abuse by police offi cers

have led to the popular advice for women who drive late at night to “drive slowly with

parking lights on to a well- illuminated location with people around” before stopping for

fl ashing lights. Ethical offi cers should understand and accept this response from motorists

who have come to fear potential victimization by offi cers.

Sexual harassment of fellow offi cers is also a problem. In one research study, 70 per-

cent of female offi cers reported being sexually harassed by other police offi cers (Kraska

and Kappeler, 1995: 92). It may be that the culture of policing is particularly conducive

to sexual harassment. It has been described as a “macho” or “locker room” culture even

though women have been integrated into patrol since the early 1970s. Female offi cers to-

day do not encounter the virulent harassment and hostility that was present in the 1970s

when patrol forces were fi rst integrated, but some remnants of that culture remain. More

research is needed to update older studies of the prevalence of sexual harassment.

Sexual harassment is a violation of policy and against the law, and it is also unethical.

None of the ethical systems from Chapter 2 would support coercing coworkers for sex or

creating a hostile work environment. Perpetrators’ defense may be that it is innocent “kid-

ding” or honest infatuation, but universalism provides a good check on this type of behav-

ior. Would the perpetrator want his daughter or sister to be subjected to the behavior?

There have been other cases where offi cers may receive administrative punishments

for “conduct unbecoming to an offi cer” related to their sexual activity or other off- duty

conduct. For instance, in a few cases offi cers have posed nude, participated in sexually

explicit videos, or, in one case, an offi cer posted nude pictures of his wife on the Internet.

In the cases where these offi cers have been fi red, courts have generally upheld the depart-

ment’s right to fi re, although the First Amendment rights of offi cers is still an unsettled

area of law.

In other cases, offi cers who have affairs with supervisors, coworkers, or wives of co-

workers sometimes get sanctioned for “conduct unbecoming” (Martinelli, 2007). The fact

of the matter is that offi cers are held to a higher standard of behavior, and even when no

laws are broken, the behavior may be unethical in that it brings discredit or embarrass-

ment to the department and makes it harder for fellow offi cers to keep the respect of the

citizenry. For instance, in the case of the offi cer who posted nude pictures of his wife, a

female offi cer in that town testifi ed at the disciplinary hearing that citizens familiar with

the website urged her to take off her clothes when she entered a bar to break up a fi ght

(Egelko, 2007).

C R I M I N A L C O P S

There are instances where the transgressions that offi cers engage in go beyond ethics and

enter the realm of crime and criminal conspiracies. Every year there are news stories of

police offi cers who cross over into criminal activity.

FLORIDA In the 1980s, the “Miami River Rats” committed armed robberies of drug deals, collecting cash and drugs. These robberies by a small group of police offi cers even-

tually led to at least one homicide (Dorschner, 1989; see also Rothlein, 1999; Crank and

Caldero, 2000: 162). More recently, the Hollywood, Florida, Police Department has been

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identifi ed as having problems with offi cer misconduct. Aaronson (2005) reports that there

were a number of offi cers hired in the early 1990s who were rejected by other police de-

partments, and these and other offi cers have been responsible for the city paying out over

$1 million in lawsuits that involve excessive force and other abuses.

ILLINOIS In 1996, seven Chicago cops were indicted for conspiracy to commit robbery and extortion for shaking down undercover agents they thought were drug dealers (Crank

and Caldero, 2000). In 2001, a former chief of detectives pleaded guilty to running a jewel-

theft ring for more than a decade. William Hanhardt, 80, is now sitting in a federal prison

with a 12- year sentence, but continues to receive his police pension (Fountain, 2001;

Novak, 2009).

Anthony Abbate, an ex- Chicago police officer, became infamous in 2007 when a

video of him savagely beating a female bartender for not serving him more alcohol went

viral on YouTube. Then he and other police offi cers evidently attempted to intimidate

the woman and the bar manager to prevent them from pursuing charges against him. He

was convicted of felony aggravated assault for the attack and sentenced to probation and

130 hours of community service. In January 2010, he failed a drug test and will most prob-

ably serve the original fi ve- year sentence. The bartender and manager have also fi led a

civil rights lawsuit against Abbate and the department in federal court, seeking $1 million

(ChicagoTribune.com., 2008; CBS Chicago, 2010).

In 2009, offi cers in a Chicago Special Operations Unit were indicted for shaking down

drug dealers for money. Seven offi cers pleaded guilty to felony theft or offi cial misconduct,

and most have received probation or only several months in prison for cooperating. The

alleged ringleader, ex- cop Jerome Finnigan, has been charged in a murder- for- hire plot

aimed at a fellow offi cer who was thought to be cooperating with investigators. Reports

indicate that the federal investigation is continuing and may reach management, involving

supervisors who either participated in the shakedowns or knew about them and did noth-

ing (Meincke, 2009).

In another case, a deputy U.S. Marshal was convicted and sentenced for exposing the

location of a witness against a mob fi gure. Deputy U.S. Marshal John Ambrose told a fam-

ily friend who was linked to the mob- defendant that he was guarding the federal witness in

the witness protection program, possibly in an attempt to set up a hit, although his defense

was that he was just bragging. He was sentenced to four years in prison. Ambrose’s father

was a Chicago cop convicted of corruption in the 1980s in the infamous Marquette Ten

case (Mitchum, 2009; Mack, 2009).

INDIANA Indianapolis police offi cers were recently indicted and convicted for a theft ring. Robert Long, the leader of the offi cers, was convicted when another offi cer testifi ed

against him. Six incidents involving thefts of drugs and money formed the case against the

offi cers, who were under surveillance by the FBI from March to June 2008. Long was sen-

tenced to 25 years, which was fi ve years higher than federal guidelines, reportedly because

he expressed no remorse during sentencing. He plans to appeal. The prosecutor had to

dismiss 26 pending cases where the involved offi cers were witnesses (Murray, 2009).

LOUISIANA New Orleans police offi cers in the past have been linked to drugs, rob- beries, and even attempted murder (Human Rights Watch, 1998). More recently, the

Danziger Bridge incident occurred in the aftermath of Hurricane Katrina. Offi cers shot

unarmed citizens who were attempted to cross the bridge to escape the devastation of the

city. Then they covered up the incident by inventing a fi ctitious witness and planting a

gun supposedly used by the victim. Evidently, their supervisor helped the offi cers set up

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their stories to make sure they were all consistent. McCarthy (2010: 1) argues that “The

extent of the alleged cover- up, the sheer number of cops involved or implicated, and the

nonchalance with which offi cers carried out these crimes could point to systemic prob-

lems in the police force.” Four offi cers and one civilian have pleaded guilty to the shoot-

ing and cover- up, but an equal number have been implicated and additional charges are

expected.

A Times- Picayune investigative report indicates that other police shootings in the days

following Katrina were not investigated properly and a re- examination of what evidence

exists raises red fl ags in some of them. Police argue that conditions existed that were al-

most “apocalyptic,” and there was no way to gather and preserve evidence or conduct

thorough investigations of any event (nola.com, 2009). Recently, Mayor Mitch Landrieu

has asked the Department of Justice to conduct an external investigation of the NOPD,

leading possibly to a consent decree to address widespread allegations of corruption and

transform the department. It was noted that the Department of Justice already has eight

open civil rights investigations concerning the actions of NOPD offi cers, several of them

over the events after Katrina (nola.com, 2010).

MARYLAND Prince George’s County, Maryland, had just been released from a federal consent decree that it had been under for seven years for civil rights violations, but a new

investigation led to evidence that police offi cers had provided security and assistance to

drug dealers. One offi cer allegedly stood guard during a bank robbery as well. The cases

are pending (Valentine, 2009).

MASSACHUSETTS A trio of Boston police offi cers was prosecuted and convicted in 2008 of conspiracy and other crimes associated with drug traffi cking. The ringleader, Ro-

berto Pulido, evidently recruited the others to help him provide counter- surveillance and

protection to undercover FBI agents posing as drug dealers. Pulido was also implicated

in an identity theft scam where he sold the identities of individuals he stopped for traffi c

violations to be used for fraud, and he also sold illegal steroids. He evidently framed a for-

mer business partner by planting guns and drugs in his car and then having him arrested

(Vaznis, 2008; WBZtv.com, 2007; United States Attorney’s Offi ce, 2008).

In Stoughton, former police offi cers have pleaded guilty to federal obstruction charges

and to making false statements in an investigation of corruption. The offi cers were accused

of trading information obtained through offi cial police computers for stolen goods, such

as large screen televisions, and gift cards from Home Depot. It turned out to be an FBI

sting operation, though, and the offi cers were caught on tape and video making the ar-

rangements and accepting the goods (Guilfoil, 2010; Saltzman, 2010).

MINNESOTA In 2009, a narcotics strike force involving 34 offi cers from 13 agencies was the target of suspicion. Ten offi cers are alleged to have taken cash from suspects without

fi ling criminal charges, and seized large screen televisions and computers for their per-

sonal use. Other items that were stolen goods were sold for extremely low prices at police

auctions instead of being returned to the victims or kept as evidence. Offi cers are also

accused of conducting warrantless searches, and taking valuable items and then falsely

reporting they were destroyed (Pioneer Press, 2009). One of the offi cers has fi led a whistle-

blower lawsuit against the city and police department. He alleges that he was removed

from the strike force after expressing concerns to superiors of unprofessional handling of

evidence. He said that a leak to the press that he was the one who took property was to

defl ect blame and ruin his reputation and that he had suffered a campaign of retaliation

(Chanen, 2009b).

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In another case, a 14- month corruption investigation that started with an informant

who said that he paid offi cers for information ended with an indictment against only one

offi cer, who said he was entrapped. He was found guilty of using his patrol car’s com-

puter to look up and give driver’s license information to a known drug dealer. He was also

charged with income tax violations for not reporting his income from extra jobs (Chanen,

2009a).

MISSOURI Leo Liston, a St. Louis, Missouri, police offi cer (more accurately, ex- offi cer) was sentenced to three months in prison after admitting to the theft of cash found in a

drug search. Three offi cers split $8,000 in cash, turning in only $4,000 of the total amount

of cash found. Ironically, the offi cer was fi rst approached to give information about other

offi cers suspected of corruption, but confessed to the theft himself. The other offi cers who

split the cash faced federal charges and pleaded guilty to theft of government property,

two counts of conspiracy to commit wire fraud, two counts of false statements, misappli-

cation of government funds, and theft. They also confessed to planting evidence and false

arrest (Patrick, 2009).

NORTH CAROLINA Two offi cers were indicted for embezzlement, obtaining prop- erty by false pretences, breaking and entering, second degree kidnapping, and obstruction

of justice. Since 2006, four sheriffs have been convicted. In Robeson County, 23 people

pleaded guilty to money laundering, racketeering, and theft of federal money, among

other crimes. The other sheriffs were convicted of accepting money to protect illegal poker

games, embezzlement, obstruction of justice, and sexual battery (Futch, 2009).

NEW YORK In the early 1980s, the “Buddy Boys” in New York were able to operate almost openly in a precinct rife with lesser forms of corruption. Ultimately, 13 offi cers

in a precinct of only a little over 200 were indicted for crimes ranging from drug use to

drug sales and armed robbery (Kappeler, Sluder, and Alpert, 1984/1994). In the early

1990s, Michael Dowd testifi ed to the Mollen Commission that he and other offi cers ac-

cepted money for protecting illegal drug operations, used drugs and alcohol while on duty,

robbed crime victims and drug dealers of money and drugs, and even robbed corpses of

their valuables (Kappeler, Sluder, and Alpert, 1994: 201–202).

New York police offi cers have even been linked to the mafi a. Ex- offi cers Louis Ep-

polito and Stephen Caracappa were on the payroll of the Luchese crime family. They

were indicted in September 2005 for a range of crimes, including murder, and convicted

of a wide range of racketeering and other charges in federal court in 2006, but the judge

threw out most of the convictions, saying that the statute of limitations on the racketeering

charges had expired.

OKLAHOMA Tulsa police offi cers and an ATF agent have been the subject of an inten- sive state and federal probe of alleged crimes and misconduct. Six offi cers and the for-

mer ATF agent were indicted on charges ranging from theft of U.S. property to civil rights

violations. They evidently planted evidence on individuals and/or used faked informant

testimony to engineer false arrests and convictions, stole drugs seized as evidence, and

lied in court proceedings against individuals they wrongfully accused. The former ATF

agent and a Tulsa offi cer have pleaded guilty to conspiracy, civil rights violations, and theft

and are cooperating with authorities. Ex- offi cer Jeff Henderson faces 58 charges of perjury,

witness tampering, civil rights violations, drug- related crimes, and bribery. Several indi-

viduals have been released from prison as a result of the probe. The city has been sued by

two individuals who were wrongfully convicted, and they expect many more lawsuits to

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follow. The district attorney has indicated that he will need to review hundreds of convic-

tions that were obtained through one or more of these offi cers’ testimony. The civil suits,

along with an earlier lawsuit by Arvin McGee—who received a settlement of $12 million

for being wrongfully accused and convicted of kidnapping and rape based on false tes-

timony and manufactured evidence—have prompted the mayor of Tulsa to suggest that

newly hired police offi cers be required to purchase insurance or post a bond that protects

the city against their misconduct (Barber and Lassek, 2010).

PENNSYLVANIA A Philadelphia narcotics squad became the subject of an internal investigation and FBI probe when Latino bodega owners complained to city and police

department offi cials about a pattern of raids where offi cers targeted Latino stores for nar-

cotics raids, turned off the security cameras, and then (allegedly) stole money and goods

from the stores (Moran, 2009). The same narcotics squad, including two brothers, Of-

fi cers Cujdik, is also under investigation for lying to obtain search warrants. There are 15

civil rights lawsuits pending against offi cers from the unit, including one where a woman

has accused one of the offi cers of fondling her breasts after she was arrested and hand-

cuffed (Laker and Ruderman, 2010).

in the N E W S S H O W M E T H E M O N E Y !

The LAPD, in response to a federal consent decree, instituted a policy in 2009 that requires

gang and narcotics offi cers to disclose details of their personal fi nances. It is intended to help

catch corrupt cops or those who might be tempted because of fi nancial problems. Offi cers must

disclose outside income, real estate, stocks, and other assets. They also have to report the size

of bank accounts and debts, including mortgages and credit cards; all the information includes

fi nances shared with family or partners. The policy has been challenged by the police union,

which has also encouraged offi cers not to transfer to the affected units. It has affected the abil-

ity of the department to attract offi cers to the gang unit, despite the status of the unit as elite.

The roughly 600 offi cers already assigned to the affected units when the policy went into effect

in April were granted a two- year grace period, but getting new offi cers to transfer into the units

seems to have become the problem. The problem is compounded because there is another

policy that limits gang unit assignments to fi ve years, increasing the number of new transfers

necessary to keep a full complement of offi cers. Reportedly some units are down from 18 to 13

offi cers and another from 35 to 24, without the empty slots being fi lled. Offi cers say they fear

that the fi nancial information may be used against them or that their privacy may be compro-

mised. Others argue it isn’t fair for only certain offi cers to have to comply and LAPD’s policy is

more stringent than even the federal policy for its law enforcement offi cers. Supervisors say that

the problem will escalate in 2011 when the grace period is over and all offi cers are required to

fi ll the disclosure forms. Others hope that offi cers will relent and sign. One offi cer said it’s the

right thing to do: “They gave me an opportunity to do something with my life,” he said. “There

comes a time when it is time to give something back to the department.”

SOURCE: Gold and Rubin, 2009.

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Observers note that the pattern of misconduct seems to be a problem with narcot-

ics squads. In the early 1980s, there was the “One Squad” scandal where a small squad

of offi cers were prosecuted and convicted of selling the drugs they stole from dealers.

Later in the 1980s, the “Five Squad” scandal erupted and several offi cers were convicted

in federal court of racketeering and stealing drugs and cash from dealers between 1980

and 1989. In the early 1990s, fi ve narcotics offi cers were prosecuted in federal court for

preying on drug suspects, robbing and falsely prosecuting them. This case ultimately led

to 500 charges being dismissed and $4 million in federal civil rights suits by those who al-

leged were wrongly arrested. In 2000, yet another narcotics squad was the target of an FBI

investigation. Those offi cers were accused of using false information to get search war-

rants, planting evidence and committing perjury, and stealing drugs, cash, and valuables

from drug dealers (Slobodzian, 2009). The vulnerability of narcotics squads to tempta-

tion has led at least one city to require special scrutiny of offi cers’ fi nances, as described

in the In the News box.

Financial disclosure rules seem to be a method of investigating and preventing cor-

ruption that is gaining traction. The CIA and FBI require them. As the In the News box

indicates, LAPD has instituted them in response to the court monitor appointed after the

Ramparts scandal. Michael Cherkasky, the court monitor for LAPD, said that fi nancial

disclosure is both a prophylactic and an investigative tool. Prince George’s County, Mary-

land, near Washington, D.C., has faced a recent scandal involving fi ve of its offi cers who

are suspected of receiving protection money from illegal gambling operations. In response

to queries, the police chief said he is not opposed to considering the idea of fi nancial dis-

closure policies, after they discovered that the offi cers targeted in the corruption probe

had unusual fi nances, such as one offi cer who owned a Dodge Viper and other luxury cars

(Zapotosky, 2009).

We have examined a range of corruption, from the arguably trivial (gratuities) to

criminal acts that include murder. There is a legitimate argument that the offi cers who

engage in minor rule breaking or some types of unethical behaviors that are not criminal

should not be in the same discussion as “criminal cops” whose pattern of wrongdoing

and criminality is much more serious. The opposing argument is that the minor trans-

gressions lead to an environment in which the truly rogue cops feel free to engage in

criminality because of the minor transgressions of everyone, leading to a situation where

all offi cers engage in a conspiracy of silence. The Walking the Walk box illustrates how

diffi cult it is to come forward in an atmosphere where even criminal cops are sometimes

protected.

Explanations of Deviance Explanations of corruption can be described as

Individual •

Institutional (or organizational) •

Systemic (or societal) •

Individual explanations, such as the rotten apple argument (discussed below), as-

sume that the individual offi cer has deviant inclinations before he or she even enters

the police department and merely exploits the position. Sloppy recruiting and the de-

velopment of a police personality are other individual explanations of deviance. Institu-

tional (or organizational) explanations point to organizational problems (low managerial

visibility, low public visibility, and peer- group secrecy, among others). Institutional

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explanations also include looking at the police role in the criminal justice system (as the

front- line interface with criminals), the tension between the use of discretion and bu-

reaucracy, and the role of commanders in spreading corruption. A systemic (or societal)

explanation of police deviance focuses on the relationship between the police and the

public (Johnston, 1995).

In the movie Training Day, a new recruit is “schooled”

in the methods of a veteran, decorated cop that included

brutalizing suspects, planting drugs, and generally com-

mitting crimes to catch the criminals. In a real- life ver-

sion of Training Day, Keith Batt earned a criminal justice

degree at California State University at Sacramento and

fulfi lled his life’s dream by being hired by the Oakland

Police Department. He graduated at the top of his recruit

class and became an Oakland police offi cer in 1999.

Batt was assigned to Clarence Mabanag as his fi eld

training offi cer. Almost from the fi rst day, Batt says, he

was told to falsify offense reports and to use force on sus-

pects. Batt did as he was told for two and a half weeks,

including hitting a suspect and lying on an offense re-

port, because he knew that he would be retaliated against

if he did not. Then he decided that he could not continue

to be a police offi cer if it meant violating the law he was

sworn to uphold. He quit the Oakland force and turned

in his FTO and the other offi cers to internal affairs.

Mabanag and other offi cers, including Matt Hor-

nung, Jude Siapno, and Frank (Choker) Vazquez, were

known as the “Riders.” According to testimony, they

patrolled their western, poverty- stricken district of Oak-

land with an iron fi st and used excessive force, planted

drugs, and intimidated witnesses as the means to keep

the peace. Partly as a result of Keith Batt’s report, all four

offi cers were fi red and charged with a range of offenses

including obstruction of justice, conspiracy to obstruct

justice, filing false police reports, assault and battery,

kidnapping, and false imprisonment. Even before these

charges, the four had records of misconduct. The de-

partment had paid $200,000 to settle suits involving

Siapno and Mabanag, and other lawsuits existed against

Vazquez and Hornung.

Not everyone believes the foursome’s culpability

or applauds Keith Batt’s decision to testify against them.

According to one fellow offi cer at the time, “These guys

are awesome cops, they never did anything to anybody

who was innocent, just pukes, criminals, see? They just

got a little too intense and went over the line.” Even

residents had mixed feelings, with some arguing that it

took a tough cop to police a tough street. As one resi-

dent said, “The only thing the bad people understand

is force. . ..” Sometimes, however, their activities evi-

dently were not limited to just drug dealers and other

criminals. One witness testifi ed that he called police to

report a stolen stereo, and when his dog wouldn’t stop

barking and Mabanag threatened to shoot the dog, his

angry response resulted in Mabanag’s choking him and

ordering Batt to lie on the offense report to cover the use

of force.

In the course of the ensuing scandal, Oakland paid

out $11 million to settle civil suits from 119 victims of

police offi cers (including the Riders) and ended up un-

der a court- ordered federal consent decree. Hornung,

Mabanag, and Siapno were prosecuted in two lengthy

trials between 2000 and 2005. Vazquez is a fugitive of jus-

tice, believed to be in Mexico. Perhaps he should have

waited to have his day in court, too, as all three escaped

guilty verdicts. Hornung was acquitted of all charges,

and the jury deadlocked in two trials on Mabanag and

Siapno. The police chief has refused to reinstate them,

and they have sued for back pay and reinstatement.

The fi red offi cers and their attorneys say that the

deadlocked jurors exonerated them. The prosecutor is

convinced of their guilt, but decided not to seek a third

trial because he believed that he could not get a jury to

convict them. Batt has been honored as a courageous

whistleblower who stood up to the “blue curtain of se-

crecy,” but also has been vilifi ed as a “liar” who feared

a negative evaluation. Today, he is a respected police

offi cer in Pleasanton, California, and received an award

for “Ethical Courage.” But Clarence Mabanag is also a

police offi cer in a different department in southern Cali-

fornia, which hired him after the deadlocked jury ver-

dict. In February 2009, in response to their appeal, an

independent arbitrator ruled that the city was justifi ed

in dismissing Mabanag and Siapno.

W A L K I N G T H E W A L K

Sources: Institute for Law Enforcement Administration, 2008; Lee, 2004; Zamora, Lee, and van Derbeke, 2003;

Bay City News, 2007.

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I N D I V I D U A L E X P L A N A T I O N S

The most common explanation of police officer corruption is the rotten- apple argument—that the offi cer alone is deviant and that it was simply a mistake to hire him or her. This argument has been extended to describe rotten bushels—groups of offi cers

banding together to commit deviant acts. The point of this argument is that nothing is

wrong with the barrel, that deviance is individual, not endemic.

Sherman explained that deviant offi cers go through what he called a “moral career”

as they pass through various stages of rationalization to more serious misdeeds in a gradu-

ated and systematic way. Once an individual is able to get past the fi rst “moral crisis,” it

becomes less diffi cult to rationalize new and more unethical behaviors. The previous be-

haviors serve as an underpinning to a different ethical standard, for one must explain and

justify one’s own behaviors to preserve psychological well- being (Sherman, 1982).

When one accepts gradations of behavior, the line between right and wrong can more

easily be moved farther and farther away from an absolute standard of morality. Many be-

lieve, for instance, that gratuities are only the fi rst step in a spiral downward, as the Quote

and Query box illustrates.

QUOTE && QUERY For police, the passage from free coffee at the all- night diner and Christmas gifts to

participation in drug- dealing and organized burglary is normally a slow if steady one.

—SOURCE: MALLOY, 1982: 33.

? Do you believe that free coffee inevitably leads to committing crimes for offi cers? Why or why not?

Others dispute the view that after the fi rst cup of coffee, every police offi cer inevita-

bly ends up performing more serious ethical violations. Many police offi cers have clear

personal guidelines on what is acceptable and not acceptable. Whereas many, perhaps

even the majority of, police see nothing wrong with accepting minor gratuities, few police

would accept outright cash, and fewer still would condone thefts and bribes. The prob-

lematic element is that the gradations between what is acceptable and what is not can vary

from offi cer to offi cer and department to department.

Sherman also believes in the importance of a signifi cation factor, or labeling an indi-

vidual action that is acceptable under a personal rationale (Sherman, 1985a: 253). Police

routinely deal with the seamier side of society—not only drug addicts and muggers but also

middle- class people who are involved in dishonesty and corruption. The constant displays

of lying, hiding, cheating, and theft create cynicism, and this, in turn, may develop into a

vulnerability to temptation because offi cers may redefi ne them as acceptable behaviors.

Following are some rationales that police might easily use to justify unethical behavior

(Murphy and Moran, 1981: 93):

The public thinks every cop is a crook, so why try to be honest? •

The money is out there; if I don’t take it, someone else will. •

I’m only taking what’s rightfully mine; if the city paid me a decent wage, I wouldn’t •

have to get it on my own.

I can use it because it’s for a good cause—my son needs an operation, or dental work, •

or tuition for medical school, or a new bicycle. . . .

rotten- apple argument The proposition that the offi cer alone is deviant and that it was simply a mistake to hire him or her.

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Greene et al. (2004) examined predictive variables related to those who received citi-

zen complaints or departmental discipline in the Philadelphia police department. In their

study, they utilized background and fi le information on about 2,000 offi cers and obtained

attitudinal survey results from a random sample of 500 offi cers. They collected data on

citizen complaints, internal investigations, departmental discipline incidents, and police

shootings. About a third of the sample had received departmental discipline (2004: iii).

They found that 15 characteristics were signifi cantly related to receiving departmental

discipline, including being younger, being previously rejected for hire, experiencing mili-

tary discipline, scoring low on some sections of academy training, and receiving academy

discipline. Offi cers having six or more of these risk factors were 2.5 times more likely to

receive departmental discipline (2004: iv). The research found that 22 factors were signifi -

cantly related to receiving a citizen complaint of physical abuse, including being younger,

receiving military discipline, having one’s driver’s license suspended, having ever been

placed under arrest, and having had one or more deceptive polygraph results (2004: v).

They found, using a cynicism scale, that higher levels of cynicism predicted disciplinary

actions, shootings, and other misconduct. They also found that offi cers who worked in

districts with lower ethics scores were more likely to be involved in shootings, but no other

relationships were found (2004: 65). Note that this study did not collect the data in a way

that would allow them to match the actions and attitudes of individual offi cers; instead

they had to aggregate ethics scores by district level.

Greene and his colleagues also utilized hypotheticals, fi nding that offi cers expressed

a fair amount of “ethical ambiguity.” Findings also indicated that where an offi cer was

assigned was associated with the likelihood of receiving discipline, complaints, or becom-

ing involved in police shootings. The authors indicated that there seemed to be a district

culture that affected offi cer behavior, and the better way to look at risk factors is to see

individual factors interacting with organizational elements. This is an important fi nding

and is related to the “bad barrel” research reviewed below. The researchers emphasized

that it seemed to be both individual and environmental factors that led to the likelihood of

misconduct (2004: 48).

Other research has looked at correlates of police misconduct; in other words, are some

individuals more likely to succumb to the temptations of police work? In their study of

New York City police offi cers who were terminated for misconduct, Fyfe and Kane (2006;

also see Kane and White, 2009) analyzed correlates that might infl uence misconduct. In

the discussion below, their review of the literature and their fi ndings are used to discuss

possible predictors.

GENDER In journalistic accounts of police corruption and in common thought, there is a perception that female police offi cers are less likely to be involved in corrupt activities.

No women have been involved in the largest scandals in recent memory. Some academic

research has indicated that women engage in less aggressive policing and receive fewer

citizen complaints. Also, some studies on misconduct fi nd that women are less likely to

commit unethical acts (Pogarsky and Piquero, 2004). However, measurements of police-

culture attitudes by other researchers indicate that women are not signifi cantly different

from male offi cers in their values and beliefs. Fyfe and Kane found that women in their

sample were more likely than male offi cers to be terminated during their probation. They

also found that, although male offi cers were more likely to be terminated for bribery, there

was no difference in all other profi t- oriented misconduct. Male offi cers were more likely

than female offi cers to be terminated for brutality and other forms of non- profi t- oriented

abuses, but women were more likely to be terminated for non- line- of- duty criminal con-

duct (e.g., drug crimes) and administrative rule breaking. Thus women may be just as

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prone to certain types of corruption as male offi cers, although the researchers were cau-

tious in this fi nding because of the small numbers and because the relationship seemed to

wash out when conducting multivariate analysis.

AGE Prior research on age indicates that, although younger offi cers (younger than 22) have fewer instances of prior bad behavior, they are more likely to be terminated during

probationary periods than offi cers who were older when they were hired. Other research

indicates that age has no relationship to use of force. In Fyfe and Kane’s New York City

study, those under 22 years of age when appointed were more likely to be terminated dur-

ing probation but no more likely than older offi cers to be terminated for any form of mis-

conduct after probation.

EDUCATION College- educated officers receive fewer citizen complaints; however, researchers wonder if this finding isn’t confounded by assignments because educated

offi cers are also more likely to be promoted off the street into supervisory or detective

positions. Although some research indicates that there is a relationship between higher

education and less misconduct, other research fi nds no relationship. In the New York City

study, those with more years of education upon hire were less likely to be terminated for

misconduct.

RACE Prior research indicates that black offi cers were more likely than whites to be dis- ciplined for misconduct. A possible explanation might be differential rule enforcement

or differential assignments and vulnerability to situations where use of force, for instance,

was necessary. Research seems to support the notion that differential assignments have

something to do with black offi cers’ greater use of force. Fyfe and Kane’s study found that

blacks, but not other minorities, were more likely to be terminated during probation, and

terminated for misconduct, including non- line- of- duty criminal conduct, drug test fail-

ures, and administrative rule breaking.

MILITARY EXPERIENCE, PERFORMANCE IN THE ACADEMY, AND BACK- GROUND CHARACTERISTICS Research indicates that prior bad conduct predicts future bad conduct. If someone has received unfavorable job evaluations or been dishon-

orably discharged from the military, they are more likely to commit police misconduct as

well. Other indicators of misconduct seem to be poor performance in the academy and

other forms of misconduct, such as misdemeanors or other arrest histories. In Fyfe and

Kane’s study, those who had prior negative employment histories, dishonorable discharges,

and/or did poorly in the academy were more likely to be terminated for misconduct.

In sum, according to this one study of terminations for misconduct, factors associated

with high risk include: being black or (to a lesser extent) Latino, prior citizen complaints,

prior criminal history, history of a public- order offense, and prior employment disciplin-

ary history. Non- individual factors included being assigned to posts with low supervision

and high citizen contact. Length of service, higher education, and older age at appoint-

ment were negatively related to misconduct (Fyfe and Kane, 2006: xxvi–xxviii). These

fi ndings must be viewed with caution, however, as they are only from one department,

they utilize only offi cial reports of misconduct, and they do not control for other variables.

Manning (2009) criticizes Kane and White’s (2009) description of the study’s fi ndings as

complicating the variables of misconducts like administrative rule- breaking with much

more serious deviance such as lawbreaking, not providing ethnographic data to enrich

the quantitative fi ndings, and not taking into account in their analysis of factors such as

race the changes over time in the size and composition of the department. These are valid

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concerns, indeed, but arguably there is nothing in their fi ndings regarding individual char-

acteristics that seem to contradict earlier studies. What is more problematic is the relative

weight of individual factors as compared to organizational factors that infl uence the pres-

ence and degree of deviance.

It should also be noted that identifying correlates of misconduct is atheoretical. It is

interesting to note that, with a few exceptions, researchers have not attempted to test tra-

ditional criminological theories to see if they explain police deviance, or develop original

theories. One example of applying a criminological theory to police deviance is Hickman

and colleagues’ (2001) use of the data from the Philadelphia study to test Tittle’s control

balance theory and social learning theory. These researchers found that offi cers with a con-

trol defi cit were more likely to report fellow offi cers for misconduct. The Philadelphia data

was also used to test social learning theory to see if it was helpful in understanding police

deviance, and researchers concluded that the data did support the social learning theory

(Chappell and Piquero, 2004).

Deterrence theory has also been applied to police misconduct. Pogarsky and Piquero

(2004) tested the theory using a sample of 210 offi cers from the Philadelphia study. They

found that the threat of extra- legal and legal sanctions did potentially deter misconduct

and that the trait of impulsivity tended to reduce the effect of such threats.

Harris (2010) adds to this discussion by offering a life- course perspective to offi cer mis-

conduct. He fi rst explains that criminological theory may be helpful to understand more se-

rious forms of misconduct (as distinguished from minor rule violations). Then he explains

life- course theory and how it may be applied to law enforcement; for instance, while some

offi cers may engage in misconduct early in their career, they may mature out of these acts

as they become more skilled, while others would be similar to the “life- course persistent”

offender and engage in misconduct relatively early and consistently throughout their career.

Harris tests his theory using citizen complaints as a measure of misconduct, acknowledging

that this is a somewhat problematic measure. His data supports fi ndings that gender, educa-

tion, and race are related to misconduct (being female, having a higher education, and not

being a minority are related to lower levels of misconduct). He found that, indeed, offi cers

tend to receive citizen complaints early in their career and there is a desistance over the course

of the career; however, he also found that most offi cers had fewer than three complaints over

their entire career. There was a group of offi cers who received a higher level of citizen com-

plaints, and the number did not decline as dramatically as all other offi cers after the sixth

year. Harris suggests that this group should be targeted for further study and intervention.

Most researchers who identify correlates and/or who apply criminological theories to

police misconduct believe that individual explanations present only part of the picture. In

addition to individual factors, it is important to look at organizational factors as well.

O R G A N I Z A T I O N A L E X P L A N A T I O N S

Some argue that the Miami River scandal, involving offi cers committing armed robberies

of drug dealers, was caused by the rapid hiring of minorities during an affi rmative action

drive without proper background checks; disaffection by white, mid- level supervisors who

basically did not do their job of supervision—who were, instead, merely counting the days

to retirement; ethnic divisions in the department; and the pervasive infl uence of politics

in the department, which disrupted internal discipline mechanisms (Dorschner, 1989).

These concepts are largely organizational explanations of police corruption. Another ex-

ample of the effects of rapid hiring is the fi nding that of the 1,000 new offi cers hired in

Washington, D.C., in the early 1990s as a result of political pressure, nearly a quarter have

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been fi red because of their involvement in various acts of misconduct or crime (reported

in Lersch, 2002b: 77).

Murphy and Caplan (1989) argue that there are situational elements that “breed cor-

ruption,” including lax community standards over certain types of behavior (gambling,

prostitution), hesitation of the chief to enforce rules and discipline offi cers, tolerance by

fellow offi cers, unguided police discretion and incompetence, and lack of support from

prosecutors and the courts (or corruption at that stage of the system). Most of these expla-

nations fall into an organizational category as well.

Crank and Caldero’s (2000/2005) “noble- cause” explanation of some types of devi-

ance (described more fully in Chapter 5), whereby offi cers lie or commit other unethical

acts to catch criminals, is an organizational explanation, as is any description of deviance

that includes the aspect of subcultural support. Whenever deviance is explained as being

supported by the organizational culture—whether that be the formal culture or the infor-

mal culture—falls into this category.

Gilmartin and Harris (1998) also have discussed why some offi cers become compro-

mised and argue that it is because the law enforcement organization does not adequately

train them to understand and respond to the ethical dilemmas they will face. They coined

the term continuum of compromise to illustrate what happens to the offi cer. The fi rst ele-

ment is a “perceived sense of victimization,” which refers to what happens when offi cers

enter the profession with naïve ideas about what the job will be like. Citizen disrespect,

bureaucratic barriers, and the justice system’s realities sometimes makes offi cers cynical,

feeling that no one cares and that they are needlessly exposed to danger. Cynicism leads

to distrust of the administration and the citizenry. At that point, the offi cer is alienated and

more prone to corruption.

Gilmartin and Harris also talk about the offi cers’ sense of entitlement and how that

can lead to corruption. There is a sense that the rules don’t apply to them because they

are different from the citizenry they police. This leads to the “blue curtain of secrecy,”

discussed more fully in Chapter 5, when offi cers believe it is more ethical to cover up for

other cops than it is to tell the truth.

Trautman (2008) has also discussed how organizational leaders contribute to the un-

ethical actions of their employees. In his “corruption continuum,” he argues that organiza-

tions create unethical employees through the following steps:

1. An atmosphere of administrative indifference toward integrity. There is no ethics train-

ing, and internal politics, hidden agendas, and unfairness are elements of the organi-

zational culture. Indifference is also apparent in the quality of recruitment and hiring,

unfair promotions, or discipline, allowing disgruntled fi eld offi cers to infl uence re-

cruits, and supervisors treating employees with a lack of respect.

2. Ignoring obvious ethical problems. Supervisors ignore problem employees and, in the

worst cases, engage in active cover- ups rather than trying to rectify the problem.

3. Hypocrisy and fear- dominated culture. After years of indifference and ignoring prob-

lem individuals, employees come to fear saying anything. They believe that there are

always hidden agendas and it is better to be a survivor than a whistleblower. Morale is

low because no one wants to work in such an environment.

4. Survival of the fi ttest. Employees will do whatever it takes to survive in the organi-

zation. Honest employees fear the dishonest, cover- ups are the standard method of

response when scandals threaten, and there is no hope of things getting better.

Huberts, Kaptein, and Lasthuizen (2007) obtained measures of corruption (or what

they called integrity violations) by asking offi cers to report what they knew was happening.

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The independent variable was leadership style. They were able to collect surveys from

3,125 police offi cers in the Netherlands with a response rate of about 51 percent within

police agencies. Their survey covered 20 different integrity violations and questions on

leadership characteristics. Instead of asking about personal integrity violations, they asked

offi cers to estimate violations by others as a measure of the corruption in the organization.

Their fi ndings gave them confi dence that the respondents reported truthfully with fairly

substantial percentages reporting various types of ethical infractions. They found that

leadership styles differentially affect (perceived) levels of ethical violations. Specifi cally,

role modeling leadership seems to reduce all measures of integrity violations; strictness

has an effect on the level of fi nancial types of ethical violations (i.e., falsely calling in sick,

misusing work time for private purposes); and openness seems to reduce other types of

ethical violations, such as favoritism and discriminatory remarks.

S O C I E T A L E X P L A N A T I O N S

Rationalizations used by some police when they take bribes or protection money from

prostitutes or drug dealers are made easier by the public’s tolerant stance toward certain

areas of vice; for example, to accept protection money from a prostitute may be rational-

ized by the relative lack of concern that the public shows for this type of lawbreaking. The

same argument could be made about gambling or even drugs. We often formally expect

the police to enforce laws while we informally encourage them to ignore the same laws.

Signifi cation occurs here as well. Although gambling carries connotations of the mob

and organized crime, we typically don’t think of church bingo or the friendly football pool

down at Joe’s Bar. If police were to enforce gambling laws against the stereotypical crimi-

nal, the public would support the action, but if the enforcement were to take place against

“upstanding citizens,” there would be an outraged response. “Police Arrest Grandma

Bingo Players!” would be the headline.

Fyfe and Kane (2006) present an interesting societal explanation of why profit-

motivated corruption seems to occur more often in large Northeastern cities, and abuse

of authority (specifi cally in the use of force) occurs more often in Western “newer” cities.

They argue that the older cities are characterized by the “watchman” style of policing that

performs differential policing depending on the sector of the community. Police enforce

laws that are perceived as inapplicable and undesirable to ethnic enclaves (such as gam-

bling). Members of these ethnic communities do not trust government, and thriving un-

derground economies are present. The community is not invested in the laws, which leads

to kickbacks, protection rackets, bribery, and other forms of graft by the police who do not

care if the “gray area” laws are enforced or not. Western cities, by contrast, were settled by

homogeneous groups that all arrived around the same time. Policing was perceived to be

about keeping undesirables under control; therefore, use of force was tolerated and even

expected, while profi t- oriented corruption was harshly punished. The “legalistic” style of

policing characterized, until recently, cities such as Los Angeles, Denver, and Seattle.

If police are expected to make a distinction between good people and bad people,

and good people should be excused, ignored, or, at worst, scolded for their involvement,

but bad people should be investigated, caught, and punished, it should come as no sur-

prise that they sometimes take extra- legal liberties with those they think are bad people.

It should also come as no surprise that if the public doesn’t want full enforcement of the

laws, especially if it impacts them, some offi cers may decide that a hypocritical public

won’t mind a few gambling operations, or a certain number of prostitutes plying their

trade, or even a few drug dealers, so they might as well accept protection money.

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As long as the public supports certain types of illegal activities by patronage, it is no

surprise that some police offi cers are able to rationalize non- enforcement. Also, as long

as the public relays a message that crime control, especially against “bad” people, is more

important than individual liberties and rights, we should not be surprised when police act

on that message.

Reducing Police Corruption There are several authors who have proposed comprehensive lists of tactics to reduce

police misconduct and corruption, including Malloy (1982: 37–40), who suggested in-

creasing the salary of police, eliminating unenforceable laws, establishing civilian review

boards, and improving training.

Metz (1990) also suggested several ways in which police administrators can encour-

age ethical conduct among offi cers:

Set realistic goals and objectives for the department •

Provide ethical leadership •

Provide a written code of ethics •

Provide a whistleblowing procedure that ensures fair treatment of all parties •

Provide training in law enforcement ethics •

Carter (1999: 321) offers some specifi c ways to control drug corruption: leadership

by the chief, management and supervision, supervisory training, organizational control

and information management, internal auditing of the use of informants, internal affairs

units, drug enforcement units having audit controls, periodic turnover of staff, better evi-

dence handling, early warning systems, and better training and discipline. Prenzler and

Ransley (2002) presented the most exhaustive list, also found in the 1997 Wood Report,

written after an investigation of widespread corruption in the New South Wales (Austra-

lia) police department. They suggest: internal affairs units, independent civilian oversight

agencies, asset and fi nancial reviews, video cameras in patrol cars, covert high technology

surveillance, targeted and randomized integrity testing, surveys of police and the public,

personnel diversifi cation, comprehensive ethics training, complaint resolution methods,

monitoring and regulation of informants, decriminalizing vice, and risk analysis (Wood,

1997). Note that the majority of these suggestions target administrative changes rather

than identifying the individual offi cer as the problem.

In the next sections, we take a closer look at some of these means to reduce corrup-

tion and improve the ethical climate of police agencies. Generally, “accountability re-

forms” have emerged and grown in the last 20 years in an effort to control misconduct

(Harris, 2005) even while researchers note that their effectiveness has not been established

(Walker, 2007). The mechanisms discussed below can be considered as responses to the

explanations above; specifi cally, some mechanisms address the “rotten apple” idea that

misconduct is due to the wrong individuals being hired. These suggestions would include:

improve testing and screening, increase the qualifi cations to be an offi cer, and improve

training. They would also include suggestions that attempt to identify the problem offi cer

sooner, such as early warning systems and integrity testing. Organizational explanations

address elements of the police organization, including such things as improving investiga-

tion and disciplinary procedures, addressing subcultural elements, and improving leader-

ship. Societal explanations of deviance are beyond the power of police departments to

address. However, one might argue that community policing itself is a type of societal

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re- engineering by having community members take responsibility for their neighborhood

and the problems within it and become partners with police.

“ R O T T E N A P P L E ” R E S P O N S E S

IMPROVING SCREENING Background checks, interviews, credit checks, polygraphs, drug tests, and other screening tools are used to eliminate inappropriate individuals from

the pool of potential hires. The extent of screening varies from department to department,

but generally has become more sophisticated, especially in the use of psychological testing

and interviews. Sanders (2008) argues that the process is more “weeding out” than select-

ing in those candidates best suited to policing and points out that it is hard to develop

tools to identify traits that are associated with successful police performance when, in fact,

there is no consensus on what makes a good police offi cer. Most research on the effective-

ness of screening tools utilizes academy test scores or fi rings as the measure of good (or

failed) performance.

The most common pre- employment screening tool that is used by law enforcement

agencies is the Minnesota Multiphasic Personality Inventory (MMPI or its subsequent

versions) (Arrigo and Claussen, 2003; Dantzker and McCoy, 2006). The Inwald Personal-

ity Inventory (IPI) was developed to measure personality characteristics and behavioral

patterns specifi c to fi tness for law enforcement. Researchers have found that the IPI more

accurately identifi es individuals who are unsuccessful in law enforcement (terminated)

(cited in Arrigo and Claussen, 2003). The so- called “Big Five” (extroversion, neuroticism,

agreeableness, conscientiousness, and openness) have been the target of enough studies

to indicate that they are reliable measures of personality and, of those, conscientiousness

seems to be the most relevant to job performance. Conscientiousness is related to the de-

gree of organization, control, and motivation one has and has been related to being orga-

nized, reliable, hard working, self- governing, and persevering. There has been very little

research done to determine if the trait accurately measures police performance success,

and research has produced mixed results (Arrigo and Claussen, 2003; Claussen- Rogers

and Arrigo, 2005; Sanders, 2008).

EDUCATION AND TRAINING Education has been promoted as a necessary element to improve the ethics of policing; however, education itself is certainly not a panacea.

Many of the unethical offi cers described in this book have been college graduates. Fyfe

and Kane (2006) did fi nd a correlation between education and reduced risk of termina-

tions for cause in the New York Police Department; however, it is by no means clear that

education by itself increases the ethics of police offi cers.

Ethics training in the academy, and in in- service courses, is common and is recom-

mended for all police departments today. Reuss- Ianni (1983) described how, after the

Knapp Commission uncovered wide- ranging corruption in the New York Police Depart-

ment, ethical awareness workshops were begun. Unfortunately, they have not stopped the

periodic corruption scandals that have occurred since that time.

The International Association of Chiefs of Police (2008) found that about 80 per-

cent of responding agencies said they committed resources to ethics instruction. Most of

the courses were lecture (78 percent), followed by readings and discussion (67 percent),

videotapes (53 percent), and video scenarios (49 percent). Other methods (role playing,

computers, or games) were used less often. Most (70 percent) reported that the course

was four hours or less. In terms of content, 81 percent discussed gratuities, 76 percent

discussed confl icts of interest, 90 percent discussed abuse of force, 80 percent discussed

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abuse of authority, 69 percent discussed corruption, and 71 percent discussed off- duty

ethics. The IACP found that the amount of time devoted to ethics topics did not match

how important respondents indicated the topics were. Interestingly, only about a third of

the agencies utilized an ethics criterion for probationary offi cer evaluations.

The major recommendations of the IACP based on this study were to provide job-

specifi c training on ethics and to differentiate training for recruits, in- service, and manage-

ment, as well as other units. Another recommendation was that ethics training begin with

recruits and be an integral part of the departments’ structure and policies. The IACP also

recommended enhancing content, and using appropriate learning styles. A fi nal recom-

mendation was that departments concentrate more on ethics training for fi eld training of-

fi cers (IACP, 2008).

Moran (2005) described several models of police ethics training, including a view of

ethics as a “shield” to protect offi cers from trouble, as a programmed element in the offi -

cer’s training “hardwire,” as a mission or crusade, or as a “command from on high,” along

with the sanctions for disobeying. He explained most ethical training as presenting the

“slippery slope” argument—i.e., don’t do the little stuff, because you may slide into doing

more serious acts of misconduct. The second most common approach in training is to

warn recruits against the elements of the police culture that lead to transgressions. Conti

and Nolan (2005: 167) found that ethics training typically is structured in such a way to

encourage conformity to the “traditional image and identity of police offi cers.”

Delattre (1989a) and Delaney (1990) have emphasized the importance of character.

This approach would seem to negate the relevance of any attempts to improve the ethics

of offi cers, for character is fairly well formed by adulthood. Yet, we might say that ethics

training at this point serves to delineate those situations that might not be recognized as

questions of ethics. Also, discussions of such dilemmas point out egoistic rationalizations

for unethical behavior, making them harder to use by those who would try. Other training

options may concentrate on only one ethical system, such as utilitarianism, or involve a

more balanced treatment of other ethical systems. All must resolve the issues of relativ-

ism versus absolutism, duty versus personal needs, and minor transgressions versus major

transgressions.

Martinelli (2000) offers a different training model. He proposes a course that is

grounded in the actual discipline cases of each law enforcement agency. He argues that

some of the law enforcement code provisions are ambiguous to officers and require

explanations—such as keeping one’s private life “unsullied.” Offi cers may not realize that

they can receive departmental sanctions for their behavior in their private life. Further,

case law indicates that if some attempts are not made to instruct offi cers in appropriate be-

haviors, and if agencies and city councils continue to rubber- stamp the violations of civil

rights that some offi cers commit, the agencies themselves will be held responsible. For

instance, if there is a pattern of abuse in a discipline record and the offi cer then commits

another violation, the city and police department will probably lose a resulting civil suit.

INTEGRITY TESTING Integrity testing occurs when a police offi cer is placed in a position where he or she might be tempted to break a rule or a law and monitored to see

what he or she will do. New York City has used integrity testing since the late 1970s, after

the Knapp Commission exposed widespread corruption. Field associates were recruited

straight from academies to investigate suspected offi cers (Reuss- Ianni, 1983: 80). Integrity

testing is like undercover work in that offi cers are tempted with an opportunity to commit

an illegal or corrupt act, such as keeping a found wallet or being offered a bribe (Marx,

1991). It is reported that almost 30 percent of offi cers have failed this type of honesty test

(Prenzler and Ronken, 2001a: 322). After the Mollen Commission in the mid- 1990s, the

integrity testing “Sting” operations to test whether or not police offi cers will make honest choices.

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integrity testing program in New York City was expanded. In one report, in 355 tests in-

volving 762 offi cers, no criminal failures were reported, and only 45 procedural failures

were reported (Prenzler and Ronken, 2001a: 322).

Prenzler and Ronken (2001a) discuss integrity testing in police departments in Aus-

tralia and around the world. They point out that the London Metropolitan Police insti-

tuted random integrity testing in 1998. In their study of Australia, they discovered that

only two reporting police agencies used targeted integrity testing and none used random

integrity testing. In New South Wales, integrity testing resulted in 37 percent failing; only

27 percent passed, and the rest were referred for further investigation or discontinued

(2001a: 327).

Needless to say, most police offi cers have highly negative attitudes about integrity

testing. Spokesmen argue that “testing raises serious issues regarding privacy, deception,

entrapment, provocation, and the legal rights of individuals” (Prenzler and Ronken, 2001a:

323–324). There is a widespread belief that such testing is unfair, overly intrusive, wasteful

of resources, and detrimental to morale. One study of opinions of police managers found

that the majority agreed that targeted integrity testing had a place in the investigation of

wrongdoing, but that random testing was ill- advised (Prenzler, 2006).

It is interesting to compare integrity testing with undercover operations. The planted

wallet is similar to the buy- bust operation, and the use of fi eld associates is similar to un-

dercover operations. Offi cers despise the idea that an offi cer who pretends to be a friend

may instead be someone who is trying to obtain evidence that they are doing wrong. The

argument for undercover work is that if offi cers aren’t doing anything wrong, they have

nothing to fear. However, fi eld associates create a sense of betrayal and lack of trust, re-

gardless of whether someone is involved in wrongdoing. This same argument, of course, is

used to criticize undercover operations. Specifi cally, critics argue that the use of undercover

operations may undermine the fabric of social relations by reducing the level of trust.

EARLY WARNING OR AUDIT SYSTEMS Barker (2002) describes the evidence indi- cating that a small percentage of offi cers often accounts for a disproportionate number of

abuse or corruption complaints. This problem was fi rst recognized as far back as the 1970s

(Walker and Alpert, 2002). Therefore, the practice of identifying these offi cers through

some form of early warning system seems logical. The officers who were prone to use

force were the fi rst targets of early warning systems. It seemed clear that a small number of

offi cers were responsible for a disproportionate share of excessive- force complaints. Then

the practice spread to offi cers who garnered a disproportionate share of any type of citizen

complaint.

Early warning systems have been used in New Orleans, Portland (Oregon), and Pitts-

burgh (Barker, 2002). The early warning systems look at number of complaints, use- of-

force reports, use- of- weapon reports, reprimands, or other indicators to identify offi cers.

Intervention may include more supervision, additional training, and/or counseling. In

one city’s program, the offi cer’s supervisor is alerted that the system has tagged the offi -

cer; then the supervisor may counsel the offi cer, engage in other responses, or do nothing

(Walker and Alpert, 2002: 225). In Miami’s early warning system, offi cers identifi ed by the

early warning system may be subject to the following: reassignment, retraining, transfer,

referral to an employee assistance program, fi tness for duty evaluation, and/or dismissal

(Walker and Alpert, 2002: 224).

These programs have been endorsed by the National Institute of Justice and have

been incorporated into several consent decrees between cities and federal courts to avert

civil rights litigation. By 1999, about 27 percent of all police agencies had early warning

systems in place (reported in Walker and Alpert, 2002: 220).

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Walker (2007) reports that early warning systems vary in the elements they count and

where they set the threshold of concern. The systems also have various objectives: some

departments use them to provide assistance and additional training, others utilize them

for punishment, and still others use them to target high achievers. The In the News box

describes a computer- assisted early warning system.

One cannot simply count the number of incidents or complaints, because the offi cer’s

shift and duty, length of service, types of calls responded to, and other factors affect the

number of complaints (Walker and Alpert, 2002: 223). Further, the programs are only as ef-

fective as the interventions that are triggered by the identifi cation of a problem. Walker and

Alpert note that such systems are as much of a refl ection of management as of individual

offi cers. Supervisors are put on notice that they may have a problem offi cer and, thus, are

more responsible if nothing is done and the offi cer engages in serious forms of misconduct.

“ R O T T E N B A R R E L ” R E S P O N S E S

INTERNAL AFFAIRS MODEL In one sense, the internal affairs model is also a rotten apple approach to reducing corruption since the model provides the mechanism whereby

the department investigates and punishes the miscreant offi cer. One could also, however,

see the internal affairs model as a rotten barrel approach in that if a department did not

have an internal affairs function or it was widely seen as toothless, then the message to

individual offi cers would be that the department did not care about wrongdoing. Unfor-

tunately, the internal affairs model has been widely seen as ineffective. In one Toronto

study, 70 percent of those who fi led complaints were not confi dent with the process, and

only 14 percent thought their complaint was handled fairly (Prenzler and Ronken, 2001b:

180). There is no research that evaluates the actual effectiveness of internal affair models

(Walker, 2007), only news reports of citizen dissatisfaction.

The New York Police Department Internal Affairs Bureau was completely revamped

in 1993 after a scandal prompted then- Commissioner Raymond Kelly to overhaul the de-

partment. Since then, internal affairs has generated an annual report, albeit going from 81

pages in 1993 to only 15 pages in 2007 and 2008. The annual reports, released via a Free-

dom of Information request by the ACLU, chronicle the changes that have taken place

over the last 17 years. Critics contend that the bureau has drastically reduced the number

of cases it investigates, even though tips have tripled since 1992, and has become more

secretive about corruption, as contrasted with the years following 1993. NYPD offi cials

point out that the budget for IA has increased from $43 million in 2000 to $61.8 million in

2010 and there are 650 offi cers who investigate wrongdoing (Baker and McGinty, 2010).

Some departments have enlarged the mission of internal anti- corruption units. These

units, especially in other countries, now undertake a mission of not only investigation

and punishment but also deterrence and prevention. Such units may undertake integrity

testing, promote awareness, improve selection and screening procedures, develop perfor-

mance standards, and in other ways “police” the police to minimize corruption (Moran,

2005). This may represent the future of internal anti- corruption models.

CIVILIAN REVIEW/COMPLAINT BOARDS There is a continuing belief that some po- lice departments have proven they are incapable of internal policing and that what is needed

is some outside oversight. Civilian review boards have been created in several cities to moni-

tor and review the investigation and discipline of offi cers who have complaints fi led against

them. Many models exist under the name of civilian review, and no one model has been re-

ported to be more effective or better than any other. Prenzler and Ronken (2001b) argue that

internal affairs model A review procedure in which police investigators receive and investigate complaints and resolve the investigations internally.

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it is diffi cult to analyze the success of such bodies because a high level of complaints may

mean that there is greater trust in the process, not necessarily an increase in misconduct.

In the civilian review/complaint model, an independent civilian agency audits complaints and investigations. The board may also respond to appeals and act in an ad-

visory role in investigations. Police still investigate and conduct the discipline proceeding.

The Police Complaints Authority in the United Kingdom is one example of this model.

Other models may involve an external board, but without any powers of subpoena or

oversight (Prenzler and Ronken, 2001b).

Walker (2001) reviewed the range of civilian review models, but did not fi nd that any

one model seemed to be better than any other. Worrall (2002) found that cities with civil-

ian review procedures received more citizen complaints. This was a consequence of hav-

ing a process that made it easier for citizens to complain rather than more incidents of

police misconduct. Prenzler and Ronken (2001b) reported that external review models

have about the same substantiation rate as do internal affairs models—about 10 percent

of all complaints fi led. The major criticism of such models centers on the idea that they

are not truly independent, for police still conduct the investigations and sometimes even

sit on the board. Prenzler (2000) argues that the “capture” theory is operative in civilian

review models. This occurs when the regulatory or investigative body is “co- opted” by the

investigated agency through informal relationships.

CHANGING THE CULTURE If the police culture infl uences the level of police mis- conduct, it is important to change it. Harris (2005) discusses the diffi culty of changing

an entrenched negative police culture, but offers examples of how it can be done. He ar-

gues that in successful change efforts, the department has reconceptualized its mission,

developed measurements of what matters most, improved recruiting, changed training to

emphasize human rights at least as much as crime fi ghting, and changed the incentive

and reward structure to encourage service- oriented policing as much as crime control. He

argues that change occurs as generations of new police offi cers take over who have been

socialized to the new mission.

civilian review/ complaint model The use of an outside agency or board that includes citizens and monitors and investigates misconduct complaints against police.

in the N E W S N E W Y O R K ’ S C I V I L I A N C O M P L A I N T R E V I E W B O A R D

Recent articles indicate that many believe that New York’s civilian review board is in need of

reform. The board was established in 1992 in response to a widespread belief that the police

department could not adequately respond to civilian complaints. In 2009, there were about

8,200 complaints, but the number of complaints acted upon by the police has declined. In

2005, the police department declined to prosecute 2 percent of the cases referred by the civil-

ian review board, but in 2008, 33 percent were declined, and in 2009, about 40 percent were

declined. In response, the department points out that the conviction rate has increased from 30

to 60 percent, indicating that the decision to prosecute is based on which cases will lead to suc-

cess. The ability of the board to respond to civilian complaints is further compromised by bud-

get shortfalls. In the last two years, 26 investigators have been let go and the board’s director

projects that they will have to drop more than half their cases because of missing the 18- month

deadline for investigation.

SOURCE: Hauser, 2009.

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ETHICAL LEADERSHIP Hunter (1999) surveyed police offi cers in Florida and found that offi cers believed that strict and fair discipline was the best response and deterrent to

misconduct. The offi cers also identifi ed clear policies and peer review boards. It was clear

that, according to offi cers, leadership had everything to do with an ethical police force; 95

percent believed that supervisors should be moral examples, and 70 percent that unethical

supervisors contributed to the problem. However, less than half (42 percent) agreed with

the idea of a citizen review board.

Crank (1998: 187) and others have noted that there is a pervasive sense among rank-

and- fi le police that administrators are not to be trusted: “Offi cers protect each other, not

only against the public, but against police administrators frequently seen to be capricious

and out of touch.” The classic work in this regard is Reuss- Ianni’s (1983) study of a New

York City precinct in the late 1970s. She described the “two cultures” of policing—street

cops and management cops. She observed that law enforcement managers were classic

bureaucrats who made decisions based on modern management principles. This con-

trasted with the street- cop subculture, which still had remnants of quasi- familial relation-

ships in which “loyalties and commitments took precedence over the rule book” (1983: 4).

The result of this confl ict between the two value systems was alienation of the street cop.

Despite the gulf between management and line staff, most people agree that employee be-

havior is infl uenced more directly by the behavior of superiors than by the stated directives or

ethics of the organization. Executives engaged in price fi xing and overcharging should not be

surprised that their employees steal company supplies or time. Managers cannot espouse ethi-

cal ideals, act unethically, and then expect employees to act ethically. Thus, regardless of formal

ethical codes, police are infl uenced by the standards of behavior they observe in their superiors.

One might note that most large- scale police corruption that has been exposed has implicated

very high level offi cials. Alternatively, police departments that have remained relatively free of

corruption have administrators who practice ethical behavior on a day- to- day basis.

Research reveals that close supervision, especially by mid- level managers such as ser-

geants, reduces the use of force and incidents of misconduct by offi cers (Walker, 2007).

Other research indicates that role modeling seems to be signifi cant in limiting unethical

conduct of an interpersonal nature (sexual harassment, discrimination, bullying), while

strictness in supervision seems to be more important in controlling the misuse of re-

sources, fraud, and other forms of fi nancial corruption. A third component of leadership

was described as openness and refers to leaders encouraging subordinates to talk to them

about ethical dilemmas. This was associated with fewer violations in a number of areas,

especially in favoritism and discrimination. Interestingly, this study of more than 6,000 po-

lice offi cers found that strictness had no effect on reducing the gratuitous use of violence,

but that role modeling and openness did (Huberts, Kaptein, and Lasthuizen, 2007).

Administrators face their own unique ethical dilemmas. Budget allocations, the use

of drug testing, affi rmative action, sexual harassment, and decisions about corrupt offi -

cers all present ethical dilemmas for administrators and supervisors. For instance, some

supervisors face problems when they are promoted from the ranks and have friends

who become their subordinates. Such friends may expect special consideration, leav-

ing the supervisor to decide how to respond. Supervisors also report ethical dilemmas

about how they should allocate resources, such as a new patrol car or overtime. Should

seniority take precedence over competence? Should friendship take precedence over

seniority?

Another issue is what should be done with offi cers who have drug or alcohol prob-

lems. If the administrator decides to counsel or suggest treatment without any change

in duty status, and the offi cer endangers the life of someone or actually harms a citizen

or other officer because of the problem, is the administrator to blame? In many situa-

tions where police leaders must make decisions, lives, property, or liberty can be at stake.

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It is extremely important for supervisors and administrators to understand the impact that

their decisions and their behavior have on everyone in the organization.

Even if leaders are not directly involved in corruption, encouraging or participating

in the harassment and ostracism directed at those who expose wrongdoers supports an

organizational culture that punishes whistleblowers. In some departments, there is a per-

ception that favored cliques are not punished for behaviors for which others would receive

punishment. This climate destroys the trust in police leadership that is essential to ensure

good communication from the rank and fi le.

It seems that in some departments management is just as likely as peer offi cers to cover

up wrongdoing of offi cers. Only when the scandal cannot be contained does management

“throw offi cers to the wolves.” Unless there is a scandal, corruption is swept under the rug

and individual offending offi cers may receive little or no discipline. For instance, Crank

and Caldero (2000: 114) reported that in 100 civil lawsuits in 22 states between 1986 and

1991, the awards paid out by cities and police departments totaled $92 million, but of the

185 offi cers involved, only 8 were disciplined. In fact, 17 were promoted.

Two case studies, one in New York and another in Los Angeles, illustrate the problem

when administrators attempt to cover up wrongdoing by individual offi cers. In both of

these cases, the investigator who attempted to identify and expose corruption was met

with resistance from the administration (Rothlein, 1999; Glover and Lait, 2000; Lait and

Glover, 2000; Jablon, 2000; Sterngold, 2000; Deutsch, 2001; Golab, 2000).

N E W Y O R K

THE INVESTIGATOR Sgt. John Tromboli was stymied in his attempt to investigate and expose the actions of Michael Dowd, an obviously crooked cop whose lifestyle far exceeded

a cop’s pay. For fi ve years, Tromboli had been trying to get enough evidence on Dowd to fi le

charges, but was routinely turned down by his superiors for extra resources and for permission

for wiretaps and other means of investigation. Tromboli believed that his superiors were trying

to shut down his investigation. Dowd was fi nally arrested by Suffolk County police when he

was videotaped conducting narcotics transactions in uniform and in a police car. Internal af-

fairs routinely did not share information with the prosecutor’s offi ce on crooked cops. Instead,

information on corrupt offi cers would be hidden in a “tickler fi le” that was never made public.

THE SCANDAL The Mollen Commission in New York was formed in 1992 by Mayor David Dinkins to investigate allegations of corruption. The practices of Dowd and a number

of other offi cers were exposed, including drug dealing, theft from corpses, robberies of drug

dealers, setting up rival drug dealers for arrest and prosecution, protection rackets, and other

misconduct. In the highly publicized hearings, offi cers were pressured to testify against oth-

ers, and indictments and punishments were handed down. The hearings prompted Judge

Milton Mollen to comment that the Knapp Commission found that offi cers were in league

with criminals, but that, today, offi cers have become the criminals themselves.

L O S A N G E L E S

THE INVESTIGATOR Detective Russell Poole, a Robbery- Homicide Division inves- tigator, uncovered a pattern of complaints of violence by the anti- gang task force in the

Ramparts Division when investigating an alleged beating of a gang member in a police

squad room (his story was also described in Chapter 2). He concluded that a number

of the offi cers in the division were “vigilante cops” and requested that the investigation

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proceed further, but Chief Bernard Parks ordered him to limit his investigation solely to

the Jimenez beating.

His superiors replaced a 40- page report he had prepared for the prosecutor’s offi ce

with a 2- page report that did not give any information about the possibility that there

might be a pattern of corruption on the part of Ramparts offi cers. A year later, the Ram-

parts scandal exploded. Poole quit the force.

T H E S C A N D A L

The Ramparts scandal refers to the public disclosure of a wide range of corrupt activities

by an anti- gang unit task force in the Ramparts Division of the LAPD (CRASH, Com-

munity Resources Against Street Hoodlums). Investigators from the prosecutor’s offi ce

discovered the pattern of corruption when they made a deal with Rafael Perez, a Ram-

parts offi cer who had stolen cocaine from the evidence room. The scandal eventually led

to dozens of criminal cases being voided because the prosecutor’s offi ce could not depend

on the truthfulness of offi cers’ testimony. Evidence indicated that between 1995 and 1998

the offi cers lied, planted evidence, beat suspects, and shot unarmed suspects. Offi cers

also evidently held parties to celebrate shootings, gave out plaques when one killed a gang

member, and spread ketchup at a crime scene to imitate blood.

Hundreds of cases had to be reviewed by the staff in the prosecutor’s offi ce to evalu-

ate whether there was a possibility of manufactured evidence. At least one gang member’s

conviction was overturned when Rafael Perez, the offi cer who implicated all the others,

confessed under oath that they had shot the man and then planted a gun on him and

testifi ed that he had shot at them fi rst. The suspect has been released from prison, but is

paralyzed and in a wheelchair.

Some evidence indicates at least 99 people were framed by Ramparts offi cers. Pros-

ecutors were also quoted in the paper as saying, “You can’t trust the LAPD anymore.”

Mayor Richard Riordan reported to the press that the city would have to use $100 million

from tobacco settlements to cover anticipated lawsuits. Eleven offi cers were fi red, and 40

convictions were overturned.

The LAPD responded with an internal management audit that admitted to a lapse of

supervision and oversight. The report concluded that the corruption was caused by a few in-

dividuals whose wrongdoing had a “contagion effect.” This report (conducted just eight years

after the Christopher Commission presented a scathing commentary concerning the manage-

ment and ethos of the LAPD) recommended an outside civilian oversight committee. The

LAPD came under a federal court monitor because of the scandal, although it has since been

released from the consent decree. Lawsuits against the city and the offi cers involved are still

going on. In 2009, there were still over 50 federal lawsuits pending (Associated Press, 2009d).

These case studies provide an interesting lesson in that evidently the attempts to cover

up scandals are often unsuccessful and, arguably, only make the situation worse when the

corruption is inevitably exposed. In order to combat police corruption, it seems clear that

the key is to have leadership that is not afraid to expose the “skeletons in the closet” and

deal with problems openly without attempting to hide them from the public.

C O N C L U S I O N

In this chapter, we reviewed the range of deviant behaviors in law enforcement. It was

also noted that police scandals have occurred in all countries around the world, but that

there are apparent differences in the relative levels of corruption among police in different

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countries. Reasons for law enforcement deviance can be categorized into individual expla-

nations, organizational explanations, and societal explanations. We also examined a wide

range of suggestions for combating police corruption, including education and training,

early warning systems, integrity testing, and other methods.

C H A P T E R R E V I E W

1. Describe the types of police corruption.

The Knapp Commission identifi ed grass eaters (police who passively take advantage of

opportunities) and meat eaters (police who actively commit crimes). Fyfe and Kane iden-

tifi ed the following: police crimes, where offi cers use their position to commit crimes, or

commit crimes in their off- duty time; police corruption, where the offi cer uses his or her

position, by act or omission, to obtain improper fi nancial benefi t; and abuse of power, ac-

tions where offi cers physically injure a citizen or offend a citizen’s sense of dignity.

2. Describe the ethical arguments for and against gratuities.

Arguments for gratuities are that they are harmless or honest rewards, they build commu-

nity relations, they give businesses police protection, they are no different from the perks

of other occupations, and they compensate police for poor pay. Arguments against gra-

tuities are that they demean the status of police as professionals, are incipient corruptors

because people expect different treatment and create a sense of entitlement, can be the

beginning of more serious forms of corruption, are contrary to democratic ideals because

they require taxpayers to pay again for services that should be free, and create a public

perception that police are corrupt.

3. Explain and give examples of graft and other forms of police corruption.

Graft is any type of abuse of one’s position for personal gain. Corruption involves using

the position for fi nancial benefi t, such as bribes, protection rackets, or accepting kickbacks

(these can also be crimes).

4. Provide the three types of explanations of police misconduct, with examples of each.

Individual explanations target the individual offi cer, such as identifying personality char-

acteristics that predict either misconduct or successful performance of the job. Organi-

zational explanations look at factors that encourage or support misconduct, such as the

police subculture or an ineffective discipline system. Societal explanations focus on what

messages society sends to their police department that might encourage lawlessness.

5. Describe the ways to reduce corruption and misconduct.

Suggestions to reduce corruption either target the individual: improved screening and psy-

chological testing, training, integrity testing, or early warning systems; or they target the

organization: internal affairs units, civilian review boards, changing the culture, or improv-

ing the leadership.

K E Y T E R M S civilian review/complaint

model

graft

gratuities

integrity testing

internal affairs model

rotten- apple argument

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S T U D Y Q U E S T I O N S

1. What countries score high in integrity according to Transparency International?

Provide some examples of worldwide police corruption.

2. List and describe Kane and Fyfe’s types of police corruption.

3. What are the arguments for and against the acceptance of gratuities?

4. List and describe the three types of explanations for police deviance.

5. List the methods suggested by the Wood Commission for reducing police corruption.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) gratuities. Prove a persuasive argument as to whether or

not gratuities should be acceptable. If you are arguing that they are ethical and should

be acceptable, discuss what limits, if any, should be placed upon them.

2. Write an essay on (or discuss) the potential disciplinary sanctions that should be taken

against offi cers who commit legal, policy, and/ or ethical transgressions. What is the ra-

tionale for the administration of punishment? Which acts warrant more severe sanctions?

What should be done with an offi cer who has a drinking or drug problem? Taking a bribe?

Stealing from a crime scene? Hitting a handcuffed suspect? Having checks bounce? Be-

ing disrespectful to a member of a minority group? Sexually harassing a co- worker?

3. Write an essay on (or discuss) the best methods to reduce noble- cause corruption

among offi cers. Are they the same methods as those that should be used to reduce

egoistic corruption for pecuniary gain? Explain why or why not. Also explain why you

think the selected methods would work.

E T H I C A L D I L E M M A S

Situation 1

You are a rookie police offi cer on your fi rst patrol. The older, experienced offi cer tells you

that the restaurant on the corner likes to have you guys around, so it gives free meals. Your

partner orders steak, potatoes, and all the trimmings. What are you going to do? What if it

were just coffee at a convenience store? What if the owner refused to take your money at

the cash register?

Situation 2

There is an offi cer in your division known as a “rat” because he testifi ed against his partner

in a criminal trial and a civil suit. The partner evidently hit a handcuffed suspect in the

head several times in anger, and the man sustained brain injuries and is now a paraplegic.

Although none of the offi cers you know supports the excessive use of force, they are also

appalled that this offi cer did not back up his partner’s testimony that the suspect contin-

ued to struggle, in an attempt to justify his use of force. After all, punishing the offi cer

wasn’t going to make the victim any better. Now no one will ride with this guy, and no one

responds to his calls for backup. There have been incidents such as a dead rat being placed

in his locker, and the extra uniform in his locker was set on fi re.

One day you are parking your car and see your buddies in the employee parking lot

moving away from his car; they admit they just slashed his tires. Each officer is being

called into the captain’s offi ce to state whether he or she knows anything about this latest

incident. Your turn is coming. What are you going to do?

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2 1 4 P A R T I I | Po l i c e

Situation 3

You are a waitress (or waiter) in an all- night diner and are not too happy about pulling the

midnight shift. Every evening, luckily, police offi cers drift in for their coffee breaks. You

have been told that the diner does not offer gratuities and that you are not to give free cof-

fee or meals to anyone, including police offi cers. But it’s 2:00 a.m., and there are a lot of

scary people out there. You fi gure that the pot of coffee might cost only a couple of bucks,

so it’s worth it to keep offi cers coming in. You suspect that the owner of the diner wouldn’t

be happy (because he doesn’t like police), but he’s not here, so you fall into the habit of

giving all the offi cers free coffee. Then it escalates to free pie (it was going to be thrown

out anyway), and now when no one is around, you’ll let the offi cers go without paying for

their meal. Do you see a problem with your actions? Who should make the decision—the

owner or the employee who is on site? If you were to stop giving free coffee and pie, do

you think the offi cers would stop coming in?

Situation 4

You are a police offi cer testifying in a drug case. You have already testifi ed that you en-

gaged in a buy- bust operation, and the defendant was identifi ed by an undercover offi cer

as the one who sold him a small quantity of drugs. You testifi ed that you chased the sus-

pect down an alley and apprehended him. Immediately before you caught up with him,

he threw down a number of glassine envelopes fi lled with what turned out to be cocaine.

The prosecutor fi nished his direct examination, and now the defense attorney has begun

cross- examining you. He asked if you had the suspect in your sight the entire time between

when you identifi ed him as the one who sold to the undercover offi cer and when you put

the handcuffs on him. Your arrest report didn’t mention it, but for a couple of seconds you

slipped as you went around the corner of the alley and fell down. During that short time,

the suspect had proceeded a considerable distance down the alley.

You do not think there was anyone else around, and you are as sure as you possibly

can be that it was your suspect who dropped the bags, but you know that if you testify to

this incident truthfully, the defense attorney might be able to argue successfully that the

bags were not dropped by the suspect and get him acquitted of the much more serious

charge of possession with intent to distribute. What should you do?

Situation 5

You (a female police offi cer) have been working in a small- town police department for

about six months. During that time you have been dealing with a fellow police offi cer who

persists in making comments about how pretty you are, how you don’t look like a police

offi cer, how you shouldn’t be dealing with the “garbage” out on the streets, and so on. He

has asked you out more than a dozen times even though you have told him every time that

you are not interested and that you want him to stop asking you out and to stop making

comments. Although he hasn’t made any derogatory or offensive comments, his constant

attention is beginning to make you not want to go to work. You have a romantic partner,

and you are defi nitely not interested in your fellow offi cer. You have mentioned it to your

FTO, who is a sort of father fi gure, but he likes the guy and tells you that you should be

fl attered. You want to fi le a sexual harassment charge against him but hesitate because,

although you do feel harassed, you don’t feel especially threatened; further, you know that

you would encounter negative reactions from the other offi cers in the department. What

should you do?

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P A R T I I IP A R T I I I

Law

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• 217 •

C h a p t e r O b j e c t i v e s

1. Understand the justifi cations for law, including protections against harm to others, offensive conduct, harm

to self, and harm to societal morals.

2. Explain the role of law in society and the paradigms that have developed to understand how law is formed

and enforced.

3. Compare the idea of our criminal law system as an adversarial system to other descriptions of how the court-

room works and the relationships between the legal professionals.

4. Present the controversy concerning the role of advocate as legal agent or moral agent.

5. Describe the history and source of legal ethics for attorneys and judges. Explain the types of ethical rules that

exist and compare them to the subculture of winning.

Law and Legal Professionals

In the Walking the Walk selection for this chapter, Charles Swift’s commitment to the law

and to his professional obligations as an attorney in the Navy is described. Swift was the

JAG offi cer who defended Salim Ahmed Hamdan and won a Supreme Court case against

the federal government, which took the position that Guantanamo detainees could be held

indefi nitely with no due process.

“We are a nation of laws, not of men” is a phrase meaning that once a law is duly

enacted, it applies to all of us. Once a legal right is recognized, it cannot be denied to any-

one. As we discussed in Chapter 3, law can be considered the administration of justice.

Civil law is the administration of commutative (or rectifactory) justice, and criminal law

is the administration of corrective justice. Law recognizes and enforces the rights of the

individual against the state, and the rights of each party in confl icts between individuals.

It also controls the behavior of the individual in all aspects of life, from driving to how to

raise one’s child.

In this chapter and the next two chapters, we will discuss the ethics of legal profes-

sionals. Even though all professionals in the criminal justice system adhere to the law and

the law defi nes their duties, this is even truer for defense lawyers, prosecutors, judges, and

other legal professionals. These three chapters on legal professionals are set up in a similar

M a rk

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Charles Swift is from a small town in North Carolina. He

entered the United States Naval Academy in 1980 and

served seven years as a surface- warfare offi cer. He gradu-

ated from Seattle University School of Law in 1994 and

returned to active duty as a member of the Judge Ad-

vocate General’s Corps (JAG). In March 2003, he was

assigned to the defense counsel’s team for the Offi ce of

Military Commissions, set up to provide a unique form

of due process for Guantanamo detainees. Lt. Com-

mander Swift was assigned to defend Salim Ahmed

Hamdan, a Yemeni who at one time had been Osama

Bin Laden’s driver.

One of the fi rst things Swift was told in the case was

that he could have access to his client only on the condi-

tion that he attempt to negotiate a guilty plea from him.

When Swift decided that it was clear that there was no

real due process in the so- called military commissions

process, as it did not follow the Uniform Code of Mili-

tary Justice, the Geneva Conventions, or any rule of law

recognized in 250 years of United States jurisprudence,

he sued his chain of command, including the com-

mander in chief, President George W. Bush. Swift says:

[In most countries] . . . when a military offi cer openly

opposes the president, it is called a coup. In the

United States, it is called Hamdan v. Rumsfeld. Af-

ter the Supreme Court’s decision . . ., the world was

rightly in awe of our system. . . . [W]e proved once

again that we are a nation of laws and not of men.

Swift’s exhaustive and fearless defense of Hamdan,

a defense that basically challenged the military commis-

sions as constructed by the Bush administration, resulted

in the Supreme Court ruling 5–3 that the president had

exceeded his power in ignoring the Geneva Conventions,

the Uniform Code of Military Justice, and Congress in

creating the tribunals. In an irony that was not lost on

any observer, Swift was passed over for promotion and

was forced to retire from his beloved Navy shortly af-

ter the Supreme Court decision was handed down. His

superiors said they had submitted exemplary reports on

his performance, but that promotions are granted for

“breadth,” not just “depth,” and therefore, even though

he was a brilliant lawyer, he would not be rewarded with

a promotion.

Because of the Navy’s up- or- out promotional poli-

cies, Swift had to leave the Navy at the age of 44 and was

not around for further developments, such as the Mili-

tary Commissions Act of 2006, when Congress put the

military commissions back in play by providing the legal

imprimatur for them. In June 2007, the Supreme Court

refused to hear two court challenges to the congressional

act’s military commissions, but then reversed its deci-

sion and heard Boumediene v. Bush (553 US 723 [2008]).

Their final ruling was that the military commissions,

without any habeas corpus protection, did not meet

minimum due process requirements and were therefore

unconstitutional. Since then, however, President Obama

has indicated that military commissions will be revised

to remedy the due process concerns of the Court.

Would Swift do it differently if he had it to do over?

He says, “If we are to be a great nation, then we must be

willing to be a nation bound by the rule of law in our

treatment of all people.” He isn’t fi nished defending the

laws of this country. He continues to oppose the mili-

tary commissions, arguing that there was no reason for

their creation other than to be able to use evidence ob-

tained by the use of torture in Guantanamo and other

locations. He argues that offi cials knew that information

obtained through the use of torture would be ruled un-

acceptable in a military or civilian court.

Today, Swift is a visiting associate professor and

acting director of the International Humanitarian Law

Clinic at Emory University, providing legal assistance to

those involved in humanitarian law, including military

tribunals. He was honored with the Medal of Liberty

by the American Civil Liberties Union and named by

the National Law Journal as one of the most infl uential

lawyers in the country.

W A L K I N G T H E W A L K

Sources: Swift, 2007; Shukovsky, 2006.

way as the three chapters on law enforcement. In this fi rst chapter, we will examine some

basic issues concerning the role of the law in society and the relationships between legal

professionals. We also will present the ethical codes that guide legal professionals’ actions

and subcultural elements that may be contrary to formal ethics. Then, in Chapter 9, we

will examine the discretion of legal professionals and how such discretion creates ethical

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dilemmas. Finally, in Chapter 10, we will examine cases of misconduct and corruption

and discuss measures that may improve the integrity of the legal fi eld.

The Role of Law Our laws serve as the written embodiment of society’s ethics and morals. Laws are said to be declarative as well as active; they declare correct behavior and serve as a tool for

enforcement. While natural law refers to the belief that some law is inherent in the nat- ural world and can be discovered by reason, positivist law refers to those laws written and enforced by society. This type of law is of human construction and, therefore, fallible

(Mackie, 1977: 232).

We can trace the history of law back to very early codes, such as the Code of Hammu-

rabi (ca. 2000 BCE), which mixed secular and religious proscriptions of behavior. These codes

also standardized punishments and atonements for wrongdoing. Early codes of law did not

differentiate between what we might call public wrongs and private wrongs. As mentioned,

two different areas of law can be distinguished today: criminal law, which is punitive, and,

civil law, which is reparative (or restitutive). The fi rst punishes, whereas the second seeks to

redress wrong or loss. Of the two, criminal law is more closely associated with enforcing the

moral standards of society, yet it is by no means comprehensive in its coverage of behavior.

Laws, in the form of statutes and ordinances, tell us how to drive, how to operate our

business, and what we can and cannot do in public and even in private. They are the for-

mal, written rules of society. Yet, they are not comprehensive in defi ning moral behavior.

There is a law against hitting one’s mother (assault) but no law against fi nancially aban-

doning her, yet both are considered morally wrong. We have laws against bad behavior,

such as burglarizing a house or embezzling from our employer, but we have few laws pre-

scribing good behavior, such as helping a victim or contributing to a charity. The excep-

tion to this consists of Good Samaritan laws, which are common in Europe. These laws make it a crime to pass by an accident scene or witness a crime without rendering assis-

tance. Some states do have laws called Good Samaritan laws, but they are civil and protect

medical professionals who stop at an accident scene and administer aid to the victims and

then are sued for their actions under negligence or some other cause of action. These laws

provide some level of immunity to those who stop and render aid, but they do not require

helping as the Good Samaritan laws in Europe do.

Law can be seen as a tool of social engineering and a way of changing behavior to a

desired state (Hornum and Stavish, 1978: 148). Law may infl uence behavior directly by

prohibiting or mandating certain behavior, or indirectly by affecting social institutions

such as family or education that, in turn, infl uence behavior (Dror, 1969: 93). Thus, law

controls behavior by providing sanctions but also, perhaps even more important, by teach-

ing people which behaviors are acceptable and which behaviors are not. Thus, academics

argue whether, for instance, Brown v. Board of Education (347 U.S. 483 [1954]) came after

a shift in people’s values and attitudes toward segregation, or whether the legal holding

that ruled segregation as illegal was the change agent in transforming values and attitudes.

Probably both statements are true. There is no doubt that there is a dynamic between the

law and public opinion and the power of law is most noticeable “at the margins” where it

heralds social change or, to the contrary, acts as a resistant force to evolving belief systems.

Consider the issue of immigration law—today, there is much controversy over whether

states should pass and enforce their own immigration laws or leave the issue to the federal

government. The Policy Box illustrates that law is often controversial and that law and

policy are not necessarily consistent.

laws Formal, written rules of society.

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.

positivist law Human- made law.

Good Samaritan laws Legislation that prohibits passing by an accident scene or witnessing a crime without rendering assistance.

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There is controversy across the nation regarding the proper role of local law enforcement in enforcing immigration law and the role of state versus federal law. Some police depart- ments argue that it is not their role to enforce federal immi- gration law, and they do not ask witnesses, victims, or even suspects their immigration status. Other departments follow a policy that their role is to enforce the law—federal as well as state and local. Critics argue that if police offi cers become enforcers for Immigration and Customs Enforcement (ICE), witnesses to crimes will not come forward, victims will not receive help, and illegal immigrants will become easy prey for predators. Arizona has recently intensifi ed this debate by passing a state law that requires offi cers to ask individuals suspected of a wide range of infractions about their immi- gration status if there is reasonable cause to believe that they are illegal aliens. Those with some form of immigration sta- tus are required to carry their papers.

Law Immigration laws have, until recently, been solely federal laws since protection of the border is a federal role. As mentioned above, in the spring of 2010, Arizona passed an immigration law that received a huge amount of attention since it was the first time that a state has mandated that individuals carry their papers with them. Polls taken show that a majority of the public support such a law, but critics argue that it will lead to racial profi ling and is a violation of constitutional rights since those of Hispanic heritage may be asked to prove their citizenship if they have an interac- tion with a police offi cer. In July 2010, a U.S. federal district judge issued a preliminary injunction blocking the portions of the Arizona law that were most controversial, including the requirement that police offi cers check the immigration status of those they reasonably suspected of being illegal aliens, the provision that required individuals to carry their

immigration papers with them, and the warrantless arrest of those who could not prove their immigration status satis- factorily. This ruling was based on the fi nding that legal resi- dents would have their liberty unreasonably curtailed while their status was checked and that the state law usurped fed- eral jurisdiction. The ruling blocked enforcement of these portions of the Arizona law until an appeal is completed. Observers believe the case will end up in the Supreme Court before a fi nal ruling.

Policy Policy considerations can be examined at the state and local level. Some cities declare openly that they will not be agents for ICE, and federal offi cials have threatened to cut off fed- eral funds for law enforcement. A compromise policy used by some agencies is to check the immigration status of those who are arrested but not those with whom they come into contact as witnesses or victims. In Arizona, proponents of the law argue that it is not going to create an “open season” on citizens or legal residents and the policy will be strictly en- forced so that racial profi ling will not occur. Critics argue that racial profi ling will be inevitable since whites’ citizenship sta- tus will not be questioned.

Individual Ethics Legislators struggle over whether to vote in favor of immigra- tion laws. City offi cials ponder how to respond to opposing constituencies. Laws and policies may be put in place after due consideration, but the individual offi cer is still left with the decision to ask the person who reports a crime or the assault victim, “Are you a citizen?” The problem of illegal im- migration is extremely controversial, and both sides have le- gitimate arguments, however, most of us will never be faced with an ethical dilemma concerning the topic—unless we happen to be a police offi cer, judge, or legislator.

Are You a Citizen?POLICY ISSUES

Just as important as a tool of behavior control and change, the law provides a blanket

of protection for individuals against the awesome power of the state. We cherish our Con-

stitution and the Bill of Rights because we understand that in those countries that do not

have our legal traditions, citizens have no protection against tyranny and oppression. We

know that our bedrock of rights set down by our founding fathers ensures, to some extent,

that even if government offi cials wanted to do us harm or treat us in a way that offends the

concept of due process, they could not do so without violating the law. Thus, the law is our

social contract. It dictates limits on our own behavior, but also provides protection against

governmental violations. Legal professionals ensure that this contract is enforced.

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Justifi cations for Law The major justification for corrective (criminal) law is prevention of harm. Under the

social contract theory, law is a contract; each individual gives up some liberties and, in return, is protected from others who have their liberties restricted as well. Thomas

Hobbes’s (1588–1679) claim that self- preservation (the law of the jungle) is paramount,

and John Locke’s (1632–1704) view that property is a natural right created the foundation

for the social contract theory. According to this theory, members of society were originally

engaged in a “war of all against all” where

. . . every man is an enemy to every man . . . [there is] continual fear and danger

of violent death; and the life of man, solitary, poor, nasty, brutish, and short

(Hobbes, 1651).

In this “contract,” individuals give up the freedom to aggress against others in re-

turn for their own safety. According to Hobbes, each individual has chosen to “lay

down this right to all things; and be contented with so much liberty against other men,

as he would allow other men against himself ” (1651). Hobbes said that in order to

avoid this war of all against all, people needed to be assured that people will not harm

one another and that they will keep their agreements. But how much liberty should

be restricted, and what behaviors should be prohibited? Rough formulas or guide-

lines indicate that the law should interfere as little as possible in natural liberties and

should step in only when the liberty in question injures or impinges on the interests of

another.

P R E V E N T I N G H A R M T O O T H E R S

John Stuart Mill (1806–1873), proposed the “harm principle,” which basically is the idea

that every individual should have the utmost freedom over their own actions unless they

harm others. In this view, the law would restrict only those actions that can or do cause

harm to others, such as assault, attempted murder, or theft. Most of our criminal laws are

created to punish individual harms. However, preventing harm to others is not the only

justifi cation for law. Others include preventing offense to others, preventing harm to self

(paternalistic laws), and preventing harm to societal morals.

P R E V E N T I N G O F F E N S I V E B E H A V I O R

There are some actions that do not exactly harm others, but give rise to disgust or of-

fense. Such actions as public lewdness, disturbing public behavior, noise, or other

actions that infringe on the quality of life of others can be the subject of laws, and in-

dividuals who fl aunt such laws may be fi ned or punished in some way. These laws are

sometimes controversial because there is an argument that no law should restrict an in-

dividual’s behavior that may create inconvenience or disgust, but that does not damage

others’ interests. For instance, many cities control the population of homeless people

and beggars by a variety of laws because their presence and their actions upset and

frighten tourists and downtown workers. Some of these laws, such as vagrancy laws,

have been overturned by the Supreme Court for unduly infringing on personal liberties

(Pappachristou v. Jacksonville, 405 U.S. 157 [1972]), but others have been upheld, such

as “no camping” ordinances to dissuade the homeless from congregating in a down-

town area.

social contract theory The concept developed by Hobbes, Rousseau, and Locke in which the state of nature is a “war of all against all” and, thus, individuals give up their liberty to aggress against others in return for safety. The contract is between society, which promises protection, and the individual, who promises to abide by laws.

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P R E V E N T I N G H A R M T O S E L F

( L E G A L P A T E R N A L I S M )

Many laws can be described as examples of legal paternalism—laws in which the state tries to protect people from their own behavior. Examples include seat belt laws, motor-

cycle helmet laws, speed limits, drug laws, licensing laws, alcohol consumption and sale

laws, smoking prohibitions, and laws limiting certain types of sexual behavior. The strict

libertarian view would hold that the government has no business interfering in a person’s

decisions about these behaviors as long as they don’t negatively affect others. The oppos-

ing view is that as long as a person is a member of society (and everyone is), he or she has

a value to that society, and society is therefore compelled to protect the person with or

without his or her cooperation.

It may also be true that there are no harmful or potentially harmful behaviors to one-

self that do not also hurt others, however indirectly, so society is protecting others when it

controls each individual. Speeding drivers may crash into someone else, drug addicts may

commit crimes to support their habit, gamblers may neglect their families and cause ex-

pense to the state, and so on. You may remember that in Chapter 1 we limited moral judg-

ments to behavior that infl uences another. The justifi cation for paternalistic laws depends

on the view that almost everything we do affects others.

Some believe that government can justify paternalism only with certain restrictions.

These rules try to create a balance between an individual’s liberty and government control

(Thompson, 1980):

The decision- making ability of the person may be somehow impaired, by lack of •

knowledge or competency. Examples are child labor laws and laws that restrict the

sale of alcohol to children. In both cases, there is a presumption that children do not

understand the dangers of such behavior and therefore need protection.

The restriction should be as limited as possible. For example, driving- under- the- •

infl uence (DUI) laws defi ne the point of legal intoxication as when one’s ability to

drive safely is impaired, not simply after any alcohol consumption at all. Laws exist

that ban the sale of cigarettes to minors, but cigarettes are still available to adults—

who supposedly have reached a level of maturity to understand the dangers associ-

ated with smoking.

The laws should seek only to prevent a serious and irreversible error—DUI laws help •

to prevent fatal accidents, as do all other traffi c laws, and so on.

Paternalistic laws can be supported by an ethics of care. Remember that in this frame-

work, morality is viewed as integral to a system of relationships. The individual is seen as

having ties to society and to every other member of society. Relationships involve respon-

sibilities as well as rights. We can expect the minimum level of care necessary for survival

from society under the ethics of care. However, the corollary is that society can also care

for us by restricting harmful behaviors. Rights are less important in this framework; there-

fore, to ask whether society has a right to intervene or an individual has a right to a liberty

is not relevant to the discussion. Utilitarianism would also support paternalistic laws be-

cause of the net utility to society that results from protecting each of its members.

Other ethical systems may not so clearly support paternalistic laws. Individual rights

are perhaps more important under ethical formalism than the other ethical systems; indi-

viduals must be treated with respect and as ends in themselves. This view results in recog-

nizing the rights of individuals to engage in careless or even harmful behavior as long as it

is consistent with the universalism principle of the categorical imperative. In other words,

legal paternalism Refers to laws that protect individuals from hurting themselves.

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people may have the moral right to engage in self- destructive or careless behavior as long

as they do not hurt others. Of course, the opposing argument would be that all behaviors

prohibited by paternalistic laws have the potential to affect others indirectly.

P R E V E N T I N G H A R M T O S O C I E T A L M O R A L S

( L E G A L M O R A L I S M )

The law also acts as the moral agent of society, some say in areas where there is no moral

agreement. This rationale is called legal moralism. Some sexual behaviors, gambling, drug use, pornography, and even suicide and euthanasia are defi ned as wrong and are pro-

hibited. The laws against these behaviors may be based on principles of harm or paternal-

ism, but they also exist to reinforce society’s defi nitions of moral behavior. For example,

consensual sexual behavior between adults arguably harms no one, yet the Georgia state

law prohibiting sodomy was upheld by the U.S. Supreme Court in Bowers v. Hardwick

(106 S.Ct. 2841 [1986]), although later effectively overturned in Lawrence v. Texas (539

U.S. 558 [2003]). More recently, there has been a great debate over whether the law ought

to recognize and legitimize same- sex marriages, as the In the News box illustrates. The

underlying justifi cation that both sides employ is legal moralism.

Pornography (at least that involving consenting adults) that is defi ned as obscene is

prohibited arguably because of moral standards, not harmful effect. Under the legal mor-

alism rationale, obscenity is prohibited simply because it is wrong. The issue has become

even more complicated with the increasing use of the Internet and the ease with which

individuals may obtain pornographic materials from anywhere in the world. Privacy rights

confl ict with the government’s right to enforce morality.

It should also be noted that whether an action is moral or immoral is a different ques-

tion than whether there should be laws and governmental sanctions regarding the behavior.

In some cases, individuals may agree that a particular action is immoral, but at the same

time may not believe that the government should have any power to restrict an individual’s

choice. Some proponents of choice regarding abortion take great care to distinguish be-

tween pro- choice and pro- abortion. To them, one does not have to approve of abortion to

believe that it is wrong for government to interfere in the private decision of the individual

to use the procedure. Similarly, some who advocate decriminalization of drugs do so be-

cause of cost- effectiveness or libertarian reasons, not because they approve of drug use.

We do not have a legal system that completely overlaps our moral code, and some would

argue that it would be impossible in a society as heterogeneous as ours for this to occur.

legal moralism A justifi cation for law that allows for protection and enforcement of societal morals.

in the N E W S S A M E - S E X M A R R I A G E B A N B L O C K E D

In August 2010, a U.S. district judge ruled that the California ban of same- sex marriage as passed

by voters in Proposition 8 was violative of the Fourteenth Amendment. Specifi cally, the federal

judge ruled that the ban unfairly withheld basic rights of citizenship from a certain group (ho-

mosexuals) with no rational relationship to some important governmental interest. The ruling

included a stay so that supporters of the ban could appeal the decision to the Ninth Circuit

Court of Appeals. The case will, no doubt, eventually be heard by the Supreme Court.

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Hate- crime legislation gives us another example of a law that might be rationalized

under legal moralism, although it could also be supported by a harm principle. In chal-

lenges to hate- crime legislation, appellate courts have typically drawn a line between action

and speech. That is, if a person commits an act that is already a crime, such as vandalism,

assault, stalking, or harassment, and does so because of an expressed hatred for the vic-

tim’s membership in a protected class, then the act can be punished as a hate crime. How-

ever, if the only act prohibited by the hate- crime legislation is speech, then the law violates

the First Amendment’s protection of free speech. Even though we abhor the message, we

must protect the right of the person to express it, unless he or she also engages in a legal

harm. The interesting question is why we think it necessary to create a new law instead of

using the existing act- based law (such as vandalism). The reason might be that the true

rationale for hate crime is legal moralism: we believe it is important to enforce our moral

code that hating others because of their race or sexual orientation is wrong.

Some propose that only those actions that violate some universal standard of morality,

as opposed to merely a conventional standard, should be criminalized. This “limited legal

moralism” would prevent the situation of some groups forcing their moral code on others.

Of course, this begs the question of what behaviors would meet this universal standard.

Even child pornographers argue that their behavior is unfairly condemned by a conven-

tional, rather than a universal, morality. The vast profi ts that are made by producing and

distributing child pornography indicate that many people buy such products. Does this

mean that it is simply a matter of choice and not some universal moral sense that should

infl uence whether children should be seen as objects of sexual gratifi cation? What would

Immanuel Kant say about child pornography? What would Jeremy Bentham say about it?

In conclusion, we must allow for the possibility that some laws that are justifi ed un-

der legal moralism may not necessarily conform to our personal views of good and bad.

Many criminal justice professionals also believe that some of the so- called gray areas of

crime are not very serious, so it is not surprising that law enforcement professionals em-

ploy their discretion in enforcement. Police will ignore prostitution, for instance, until the

public complains, and police may routinely let petty drug offenders go rather than take the

trouble to arrest. Prosecutors may let gamblers go with a warning if no publicity is attached

to the arrest. Decision makers in criminal justice use discretion in this way partly because

these behaviors are not universally condemned. Consider, for instance, the argument that

organized crime grew tremendously during Prohibition and that an unknown number of

law enforcement offi cers, prosecutors, and judges accepted bribes or were involved in pro-

tection rackets. Some argue that the same scenario has occurred during the war on drugs.

The rationalization of authorities who are inclined to accept protection money or bribes

is that the offenders are engaged in providing a commodity that the public desires. Also,

one might add that the state loses its moral authority to condemn when it engages in the

same activity; for instance, it is hard to defend laws against gambling when there is a state

lottery.

Paradigms of Law Our understanding of the law’s function in society is informed by more fundamental views

of the world around us, called paradigms. Basically, paradigms are models of how ideas re-

late to one another, forming a conceptual model of the world around us. A paradigm helps

us organize the vast array of knowledge that we absorb every day. We see the world and

interpret facts in a way that is infl uenced by our paradigms—for example, if we have a par-

adigm that government is corrupt—everything we read and hear will be scanned for facts

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that fi t our paradigm, and inconsistent or contrary facts will be ignored and/or forgotten.

Paradigms aren’t bad or good; they are simply a function of how the human mind works.

Our paradigms can shift, of course, when we are confronted with overwhelming facts that

come from trusted sources or personal experiences that are contrary to our paradigm.

The three paradigms that might affect our view of the law are:

• The consensus paradigm, which views society as a community consisting of like- minded individuals who agree on goals important for ultimate survival. This view is

functionalist because it sees law as an aid to the growth and/or survival of society.

The • confl ict paradigm, which views society as being made up of competing and confl icting interests. According to this view, governance is based on power; if some

win, others lose, and those who hold power in society promote self- interest, not a

greater good.

The • pluralist paradigm shares the perception that society is made up of competing interests; however, pluralism describes more than two basic interest groups and also

recognizes that the power balance may shift when interest groups form or coalitions

emerge. These power shifts occur as part of the dynamics of societal change.

T H E C O N S E N S U S P A R A D I G M

According to the consensus paradigm, law serves as a tool of unifi cation. Emile Durkheim

(1858–1917) wrote that there are two types of law: the repressive, criminal law, which en-

forces universal norms, and the restitutive, civil law, which developed because of the divi-

sion of labor in society and resulting social interests. In Durkheim’s view, criminal law

exists as a manifestation of consensual norms: “We must not say that an action shocks the

common conscience because it is criminal, but rather that it is criminal because it shocks

the common conscience” (1969: 21). What this statement means is that we defi ne an ac-

tion as criminal because the majority of the populace holds the opinion that it is wrong.

This common or collective conscience is referred to as mechanical solidarity. Each in- dividual’s moral beliefs are indistinguishable from the whole. The function of repressive law is the maintenance of social cohesion. Law contributes to the collective conscience by providing an example of deviance.

Although Durkheim recognized individual differences, he believed that these dif-

ferences, resulting from the division of labor in society, only made the individual more

dependent on society as a part of a whole. His concept of organic solidarity draws the analogy of individuals in society as parts of an organism—all doing different things,

but as parts of a whole. Individuals exist, but they are tied inextricably to society and

its common conscience. Restitutive law is said to mediate those differences that may come about because of the division of labor. Even here the law serves an integrative

function.

The consensus view would point to evidence that people agree on, for the most part,

what behaviors are wrong and the relative seriousness of different types of wrongful behav-

ior. In criminology, the consensus view is represented by classical thinkers such as Jeremy

Bentham and Cesare Beccaria, who relied on the accepted defi nitions of crime in their day

without questioning the validity of these defi nitions, only their implementation. While the

positivist school of criminology, which looked for the cause of crime in the individual, virtu-

ally ignored societal defi nitions of crime, Raffaele Garofalo (1852–1932), a legal anthropolo-

gist, believed in natural law. As defi ned earlier, natural law holds that certain behaviors are

so inherently heinous that they go against nature; therefore, there are natural proscriptions

against such behavior that transcend individual societies or time periods (Kramer, 1982: 36).

consensus paradigm The idea that most people have similar beliefs, values, and goals and that societal laws refl ect the majority view.

confl ict paradigm The idea that groups in society have fundamental differences and that those in power control societal elements, including law.

pluralist paradigm The concept that there are many groups in society and that they form allegiances and coalitions in a dynamic exchange of power.

mechanical solidarity Durkheim’s concept of societal solidarity as arising from similarities among society’s members.

repressive law Durkheim’s view that law controls behavior that is different from the norm (related to mechanical solidarity).

organic solidarity Durkheim’s concept of societal solidarity as arising from differences among people, as exemplifi ed by the division of labor

restitutive law Durkheim’s view that law resolves confl icts between equals, as in commutative justice (related to organic solidarity).

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We have evidence that there is at least some consensus in people’s defi nitions of what

constitutes criminal behavior. Studies have shown that not only do individuals in West-

ern culture tend to agree on the relative seriousness of different kinds of crime, but there

is substantial agreement cross- culturally as well (Nettler, 1978: 215). In the consensus

paradigm:

Law is representative • . It is a compilation of the do’s and don’ts that we all agree on.

Law reinforces social cohesion • . It emphasizes our “we- ness” by illustrating deviance.

Law is value- neutral • . It resolves confl icts in an objective and neutral manner.

T H E C O N F L I C T P A R A D I G M

A second paradigm of law and society is the confl ict paradigm. Rather than perceiving

law as representative, this perspective sees law as a tool of power holders that they use for

their own purposes—to maintain and control the status quo. In the confl ict paradigm, law

is perceived as restrictive or repressive, rather than representative, and as an instrument of

special interests.

Basically, the confl ict paradigm has three parts (Sheley, 1985: 1):

1. Criminal defi nitions are relative.

2. Those who control major social institutions determine how crime is defi ned.

3. The defi nition of crime is fundamentally a tool of power.

Quinney (1974: 15–16) also discussed the confl ict paradigm. He explained that in a

capitalist society, the state is organized to serve the interests of the dominant economic

power- holders, and criminal law is a tool of the state to do that.

Advocates of the confl ict paradigm would point to laws against only certain types of

gambling or against the use of only certain types of drugs as evidence that the ruling class

punishes the activities of other classes more severely than their own activities. In other

words, cultural differences in behavior exist, but only the activities of certain groups (the

powerless) are labeled deviant. For instance, numbers running is always illegal, yet some

states have legalized horseracing, dog racing, and/or casinos. Heroin and cocaine are il-

legal; Valium and alcohol are not. The Quote and Query box illustrates that the belief that

law is used by the powerful against those without power is long- standing.

QUOTE && QUERY Laws are just like spider’s webs, they will hold the weak and delicate who might

be caught in their meshes, but will be torn to pieces by the rich and powerful.

—SOURCE: ANACHARSIS, 600 BCE.

The more mandates and laws which are enacted, the more there will be thieves

and robbers.

—SOURCE: LAO- TZE, 600 BCE.

? What do these statements mean? Is it true that laws are manipulated by the powerful and oppress the weak?

The confl ict theorist notes instances of how the law has been written differentially to

serve the interests of the power holders. The defi nition of what is criminal often excludes

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corporate behavior, such as price fi xing, toxic waste dumping, and monopolistic trade

practices, because these behaviors, although just as harmful to the public as street crime,

are engaged in by those who have the power to defi ne criminality. The regulation of busi-

ness, instead of the criminalization of harmful business practices, is seen as arising from the

ability of those in powerful positions to redefi ne their activities to their own advantage.

The Quote and Query box presents a statement made by Jeffrey Reiman in 2004 in

his radical critique of the criminal justice system. In the latest edition of his book The Rich

Get Richer and the Poor Get Prison, he repeats the charge that safety violations are pun-

ished less severely than street crime even though they result in deaths (Reiman and Leigh-

ton, 2010: 59). Unfortunately, the statement continues to be true. In the spring of 2010,

a deadly mine explosion resulted in the deaths of 29 men. In 2006, the same company,

Massey Coal, was found to be negligent in an explosion that killed two men, and in the

18 months before the most recent explosion, there were 600 cited violations against the

company. Federal prosecutors are investigating whether criminal negligence charges can

be brought against the mining company offi cials (Yost, 2010). Confl ict theorists would

predict no charges or minimal sanctions, and in some future year we will still be read-

ing about mining explosions or other tragedies because of corporate decisions that ignore

safety regulations in the interest of expediency and profi t.

QUOTE && QUERY Why do 26 dead miners amount to a “disaster” and six dead suburbanites a

“mass murder”? “Murder” suggests a murderer, and “disaster” suggests the

work of impersonal forces. But if over 1,000 safety violations had been found

in the mine—three the day before the fi rst explosion—was no one responsible

for failing to eliminate those hazards? And if someone could have prevented the

hazards and did not, does that person not bear responsibility for the deaths of 26

men? Is he less evil because he did not want them to die, although he chose to

leave them in jeopardy? Is he not a murderer, perhaps even a mass murderer?

—SOURCE: REIMAN, 1984: 23.

? Do you think that employers who put their employees in harm’s way should be prosecuted for manslaughter?

The Occupational Health and Safety Administration, the Food and Drug Admin-

istration, the Federal Aviation Administration, and other similar governmental agencies

are charged with the task of enforcing regulations governing business activities in their re-

spective areas; however, regulatory sanctions are not as stigmatizing or painful as criminal

convictions. Critics also argue that the relationships between the watchdog agencies and

those they watch are frequently incestuous: heads of business are often named to watch-

dog agencies, and employees of these agencies may move to the business sector they pre-

viously regulated. The latest example of this is the tragedy of the oil spill in the Gulf of

Mexico. It is the worst oil spill in history, and some allege that it occurred because of oil

company BP’s focus on profi t over safety. There are also allegations that the federal agency

employees responsible for overseeing deep sea drilling and monitoring safety procedures

accepted expensive trips and engaged in personal relationships with oil executives. No

doubt the investigation will continue long after the total costs of the spill are computed.

Confl ict theorists will predict, however, that business will go on as usual after the public

loses interest in the case.

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In criminology, the confl ict view was represented by early theorists such as Willem

Bonger (1876–1940), a Marxist sociologist who explained that crime was caused by the

economic power differential and that power holders labeled only others’ behavior as crim-

inal. During the 1970s, a small number of criminologists attempted to redefi ne criminals

as political prisoners, based on their views that the state used criminal defi nitions to con-

trol minority groups (Reasons, 1973). Labeling theorists also questioned the criminal jus-

tice system’s defi nitions by pointing out that only some offenders are formally labeled and

treated as deviant.

Confl ict theory is represented by theorists such as Anthony Platt, Julia and Herman

Schwendinger, Barry Krisberg, Richard Quinney, Ian Taylor, Paul Walton, Jock Young,

Walter Chambliss, and Jeffrey Reiman. Confl ict theorists explain that the myth of justice

and equality under the law serves to protect the interests of the ruling class, because as long

as there is a perception of fairness, fundamental questions about the distribution of goods

will not be raised (Krisberg, 1975). Law functions to depoliticize even the most obviously

political actions of the oppressed by defi ning these actions as crime, but its greatest power

is to hide the basic injustice of society itself. Reiman and Leighton (2010) present the con-

fl ict theorist’s view that the defi nitions of law, as well as its enforcement, are fundamentally

affected by power.

It is important to understand that our paradigms of law shape our interpretation of

current events. The Los Angeles riots of 1992 were sparked by the acquittal of four police

offi cers who were videotaped beating Rodney King, a motorist who had outstanding ar-

rest warrants for traffi c violations. The riots were described by some as political action

by minorities who were frustrated by economic hopelessness and angered by the crimi-

nal justice system’s oppressive and brutal treatment. Alternatively, others described the

same actions as blatant and simple criminality. Confl ict theorists would support the fi rst

defi nition, and consensus theorists would support the second. The looting and general

lawlessness in New Orleans after Hurricane Katrina would be explained by confl ict theo-

rists through the prism of economic hopelessness and desperation. Further, they would

point to other forms of lawlessness, such as price gouging, and no- bid contracts with large

profi ts for the contractor, as just as heinous as looting and assault. Consensus theorists, on

the other hand, would see the crimes as examples of individual deviance. Generally, in the

confl ict paradigm:

Law is repressive • . It oppresses the poor and powerless by differential defi nitions and/

or enforcement.

Law • is a tool of the powerful. Those who write the laws do so in a way to promote their

economic and political interests.

Law is not value- neutral • . It is biased and bent toward the interests of the powerful.

What is a just sentence for someone who engages in price fixing, insider trading,

gouging, or other forms of corporate crime? What is a fair punishment for someone who

dumps toxic waste because it is too expensive to dispose of properly and a community

suffers high rates of cancer because of it? The White Collar Crime box reminds us of some

past and recent white collar crime offenders.

T H E P L U R A L I S T P A R A D I G M

Distinct from the confl ict paradigm is the pluralist paradigm. In this view, law is seen as

arising from interest groups, but power is more complicated than the bifurcated system

described by the Marxist tradition. Power is exercised in the political order, the economic

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White Collar Crime: Crime or Bad Business?

Confl ict theorists argue that those with economic power

also have political and social power. They write the laws

to benefi t themselves, and, if caught and prosecuted, in-

evitably end up spending much less time in prison for

their crimes. Some of the white collar crime examples

below lend weight to these assertions.

Ford Firestorm

In 2001, the public discovered that the Firestone tires

installed on the Ford Explorer were vulnerable to blow-

ing out in high temperatures at a high rate of speed,

causing rollovers. More than 100 fatal accidents were

tied to tire blowouts. When this fact came to light, the

media also reported that both the tire company and

Ford Motor Company knew about the tires’ weak-

ness and continued to use the tires on new Explorers.

Angry consumers were even more enraged when they

discovered that Ford had voluntarily replaced the tires

and stopped using them on Ford vehicles sold overseas,

but not in the United States. Ford eventually replaced

13 million tires at a reputed cost of $3 billion. A costly

lesson, surely. But the fi nancial loss was less costly than

going to prison for knowingly exposing an unsuspect-

ing public to a preventable risk. The case was similar to

the infamous Ford Pinto case back in the 1970s, when

it was discovered that there had been corporate knowl-

edge that the gas tank was vulnerable to explosions, but

a decision been made that it was less costly to defend

wrongful death suits than it would be to reengineer the

automobile. Ford executives were charged with negli-

gent manslaughter, but they were ultimately acquitted

of criminal wrongdoing.

Toyota Troubles

In 2009–2010, Toyota was in the news and became the

topic of stand- up comedy routines when it became

known that there were design fl aws that led to unaccept-

able numbers of vehicles that had uncontrolled accelera-

tion and/or lack of braking. Some accidents, and even

deaths, have been attributed to the mechanical problems

of many models of the Toyota brand. What is even more

troubling is that it became clear that Toyota officials

knew of the problem from complaints and their own en-

gineers. As of spring 2010, there were no indications that

any Toyota executives would face any type of prosecu-

tion for their actions.

Enron Exits

Enron is no more, but at one time the company was a gi-

ant in the energy fi eld. The Enron executives who knew

that their accounting practices were fraudulent and en-

gaged in them to hide corporate losses and to obtain high

bonuses for themselves have largely been forgotten now

in the wake of newer white collar crime, and it should be

pointed out that the top executives, Jeffrey Skilling and

Andrew Fastow, did end up in prison.

Other Offenders

Other white collar criminals have also been prosecuted,

and some have received long sentences, as cited by Far-

rell (2005):

• WorldCom: CEO Bernie Ebbers, convicted of mas-

terminding an $11 billion accounting fraud scheme,

received a 25- year sentence.

• Adelphia Communications: CEOs Jon Rigas and Tim

Rigas, convicted of theft, received, respectively, 15 and

20 years.

• Tyco: CEO Dennis Kozlowski and CFO Mark Swartz

were convicted of grand larceny.

• ImClone Systems: CEO Sam Waksal, convicted of in-

sider trading, received an 87- month sentence.

• Martha Stewart: Convicted of obstruction and per-

jury and received a five- month prison sentence and

two years of supervised release (including fi ve months

of house arrest).

In other cases, white collar defendants were either ac-

quitted or the prosecution was dropped (Farrell, 2005):

• HealthSouth: CEO Richard Scrushy was acquitted of

a $2.7 billion fraud even though the government had

already received 15 guilty pleas in the same case.

• Kmart: Two indictments against company executives

for accounting fraud were withdrawn.

• Arthur Andersen: A judge threw out the conviction

against the company, holding that the jury instructions

were faulty.

• Qwest: Two mid- level executives were acquitted of

criminal charges in relation to accounting fraud even

though the government had already secured guilty

pleas from two other executives.

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order, the religious order, the kinship order, the educational order, and the public order.

Law and social control constitute the public order, and powerful interests affect the law by

infl uencing the writing of laws and the enforcement of written laws (Quinney, 1974).

Pluralism views law as infl uenced by interest groups that are in fl ux. Some interests

may be at odds with other interests, or certainly the interpretation of them may be. For

instance, conservation of natural resources is a basic interest necessary to the survival of

society, but it may be interpreted by lumber companies as allowing them to harvest trees

in national forests as long as they replant trees or, alternatively, interpreted by conservation

groups as mandating more wilderness areas. According to the pluralist paradigm, laws are

written by the group whose voice is more powerful at any particular time.

Interest groups hold power, but their power may shrink or grow depending on various

factors. Coalitions and shared interests may shift the balance of power. The defi nition of

crime may change, depending on which interest groups have the power to defi ne criminal

behavior and what is currently perceived to be in the best interests of the most power-

ful groups. For example, Federal Sentencing Guidelines used to assess punishment for

crack cocaine versus powder as about 100:1, even though they were chemically the same

substance. Confl ict theory would have explained such a discrepancy by noting that poor

people use crack and rich people use powder cocaine; however, it cannot explain why the

100:1 ratio has been addressed with judicial efforts to reduce the disparity, and why, in the

summer of 2010, Congress eliminated the disparity entirely with new legislation. A plural-

ist paradigm would point to the growing public sentiment that the sentencing guidelines

were unfair. Diverse groups such as the ACLU, Families Against Mandatory Minimums,

and other interest groups do have power to affect law when they attain a certain level of

public support. Under this view, law is dynamic and changes to refl ect public sentiment. It

is also true that law is given its form and effect by legal professionals who create the reality

of law for all of us.

Law and the Legal Professional We began this chapter with the story of Charles Swift, the lieutenant commander who may

have ended his career in the Navy by his decision to adhere to the ethical duty to zealously

defend his client, even if it happened to be an individual deemed to be an enemy combat-

ant and dangerous to the interests of the United States. Thus far in our discussion, we have

been discussing the law as an abstraction, however, it should be understood that the law

is a reality created by legal professionals—legislators who pass new laws, prosecutors who

decide who and how to prosecute, defense attorneys who do their duty, and judges who

protect the sanctity of the process are all important actors in creating this reality.

The ideal of the justice system is that two advocates of equal ability will engage in

a pursuit of truth, guided by a neutral judge. The truth is supposed to emerge from the

contest. Actual practices in our justice system may be quite different. Various descriptions

profess to offer a more realistic picture of the system.

Does the “best” opponent always win? If a powerful and rich defendant is able to hire

the best criminal lawyer in the country, complete with several assistants and investigators,

the prosecutor (who is typically overworked and understaffed) may be overwhelmed. Of

course, this is the exception. More commonly a defendant must rely on an overworked

and probably inexperienced public defender or an attorney who can make criminal law

profi table only by high caseloads and quick turnover. In these instances, the defense is

outmatched by a prosecutor in a public offi ce with greater access to evidence and investi-

gative assistance. Heffernan and Kleinig (2000) discuss how poverty affects a wide range

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of judicial processing decisions. It is hard to refute the notion that one’s socioeconomic

status affects one’s experience in the justice system.

Blumberg (1969) refers to the practice of law as a confi dence game because the pros-

ecutor and the defense attorney conspire to appear as something they are not—adversaries

in a do- or- die situation. What is more commonly the case is that the prosecutor and the

defense attorney will still be working together when the client is gone. Attorneys may dis-

play adversarial performances in the courtroom, but the “show” lasts only as long as the

jury is in the room, and sometimes not even then. Defense attorneys, prosecutors, and

judges work together every day and often socialize together; they may even be married to

each other. Many defense attorneys are ex- prosecutors. In some respects, this is helpful

to their clients because the defense attorneys know how the prosecutor’s offi ce works and

what a reasonable plea offer would be. But one must also assume that the prosecutorial

experience of these attorneys has shaped their perceptions of clients and what would be

considered fair punishment. Judges also have social relationships with defense attorneys

and prosecutors. The courtroom actually is often a network of social and personal rela-

tionships, all of which are a subtext to the formal interactions seen in a trial or courtroom

proceeding.

Other authors, too, have used the analogy of a confi dence game to describe the inter-

action among prosecutors, defense attorneys, and clients. For example, Scheingold (1984:

155) refers to defense attorneys as “double agents” whose true loyalty is to the court itself

and their own relationship with prosecutors and judges.

Another perspective describes our courts as administering bureaucratic justice. Each case is seen as only one of many for the professionals who work in the system, and

the actors merely follow the rules and walk through the steps. The goal of the system—

namely, bureaucratic effi ciency—becomes more important than the original goal of justice.

Also, because each case is part of a workload, decision making takes on more complica-

tions. For instance, a defense lawyer may be less inclined to fi ght hard for a “loser” client

if the lawyer wants a favor for another client later in the week. The prosecutor may decide

not to charge a guilty person in order to get him or her to testify against someone else. In

this sense, each case is not tried and judged separately, but is linked to other cases and

processed as part of a workload.

The bureaucratic system of justice is seen as developing procedures and policies that,

although not intentionally discriminatory, may contribute to a perception of unfairness.

For instance, a major element in bureaucratic justice is the presumption of guilt, whereas

the ideal of our justice system is a presumption of innocence. District attorneys, judges,

and even defense attorneys approach each case presuming guilt and place a priority on

achieving the most expeditious resolution of the case. This is the basic rationale behind

plea bargaining, whether it is recognized or not: the defendant is presumed to be guilty,

and the negotiation is to achieve a guilty plea while bargaining for the best possible sen-

tence. The lowest possible sentence is the goal of the defense, whereas the highest possible

sentence is the goal of the prosecutor. Plea bargaining is consistent with the bureaucratic

justice system because it is the most effi cient way of getting maximum punishment with

minimum work.

Judges, prosecutors, and defense attorneys operate to maintain their personal stan-

dards of justice (Scheingold, 1984). This is exemplifi ed by a judge who determines that

an individual offender is a threat to society and so overlooks procedural errors during trial

to make sure that he or she ends up in prison. Or a person who is legally guilty might get

a break from the prosecutor because it is determined that he is a decent guy who made

a mistake. Moreover, in almost all cases there may be general consensus on both sides

about what is fair punishment for any given offender. Defense attorneys who argue for

bureaucratic justice The approach in which each case is treated as one of many; the actors merely follow the rules and walk through the steps, and the goal is effi ciency.

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unrealistically low sentences do so in a desultory and uncommitted fashion, knowing that

the prosecutor would not and could not offer such a sentence. Prosecutors put up little

argument when defense attorneys ask for sentences that fi t offi ce guidelines.

Instead of describing the justice system as one that practices the presumption of in-

nocence and takes careful steps to determine guilt, what may be more realistic is to view it

as a system wherein all participants assume guilt, take standard, routine steps to arrive at

the punishment phase, and operate under a value system that allocates punishment and

mercy to offenders according to an informal consensus of fairness. It should be noted that

there has been increased infl uence from victims in this process so that today what is “fair”

may also be determined by the victim’s wishes. Prosecutors may not agree to a plea bar-

gain if the victim actively opposes it. Only in cases where the victim does not take an active

part does the bureaucratic system operate unfettered (Stickels, 2003).

One other perception of the criminal justice system is that of Samuel Walker’s

(1985) wedding- cake illustration, based on a model proposed by Lawrence Fried- man and Robert Percival. In this scheme, the largest portion of criminal cases forms the

bottom layers of the cake and the few “serious” cases form the top layer. The top layer

is represented most dramatically by cases such as the murder trial of O. J. Simpson. In

this highly publicized case, the defendant had an extremely skilled (and highly paid)

team of attorneys as well as trial consultants, investigators, and public relations spe-

cialists. Los Angeles County paid millions to keep up with its own team of attorneys,

experts, and investigators. The criminal processing and trial proceeded with admirable

speed. Each side worked incredibly hard and used an arsenal of tactics (which were then

critiqued by armchair experts each evening). The case has been used in law school evi-

dence classes because of the wealth of material present in pretrial discovery, exclusion-

ary motions, jury selection, and the like. The bottom of the cake is represented by the

tens of thousands of cases that are processed every year in which defendants may meet

with an attorney only once or twice for a few minutes immediately before agreeing to a

plea arrangement.

Because the public is exposed only to the top of the wedding cake, people develop

a highly distorted perception of the system. The U.S. public may be disgusted with the

multitude of evidentiary rules and the Byzantine process of the trial itself. However,

these concerns are valid for only a very small portion of criminal cases. In the vast ma-

jority of cases, there is no trial at all and the process is more of an assembly line. What

happens to individuals is largely determined by the courtroom work group (composed

of all the actors in the court process, including defense attorneys, prosecutors, and

judges).

According to Walker’s wedding- cake analysis, the courtroom work group is believed

to share defi nitions of seriousness and operate as a unit to keep the dynamics of the court-

room static despite changes that are forced upon it. Changes in the justice system that

have occurred over time, such as the exclusionary rule and determinate sentencing, have

had surprisingly little impact on court outcomes because of a shared perception of serious

crime and appropriate punishment. The vast majority of crime is considered trivial, and

the processing of these cases involves little energy or attention from system actors (Walker,

1985).

Dershowitz’s view of the criminal justice system, as displayed in the Quote and Query

box, is obviously (as Dershowitz admits) an exaggeration, but he does touch on some as-

pects of the system that many people agree with, such as a widespread perception of guilt

and a general view that case processing is routine for everyone except the individual at risk

of conviction. The major ethical problem with this view (if it does represent reality) is that

innocence, truth, and due process are perceived as inconvenient and expendable.

wedding- cake illustration The model of justice in which the largest portion of criminal cases forms the bottom layers of the cake and the few “serious” cases form the top layer; the bottom- layer cases get minimal due process.

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QUOTE && QUERY Alan Dershowitz, a well- known defense attorney and law professor, presents the

“rules” of the courtroom.

Rule I: Almost all criminal defendants are, in fact, guilty.

Rule II: All criminal defense lawyers, prosecutors, and judges understand and

believe Rule I.

Rule III: It is easier to convict guilty defendants by violating the Constitution

than by complying with it, and in some cases it is impossible to convict guilty

defendants without violating the Constitution.

Rule IV: Almost all police lie about whether they violated the Constitution in

order to convict guilty defendants.

Rule V: All prosecutors, judges, and defense attorneys are aware of Rule IV.

Rule VI: Many prosecutors implicitly encourage police to lie about whether

they violated the Constitution in order to convict guilty defendants.

Rule VII: All judges are aware of Rule VI.

Rule VIII: Most trial judges pretend to believe police offi cers whom they know

are lying.

Rule IX: All appellate judges are aware of Rule VIII, yet many pretend to be-

lieve the trial judges who pretend to believe the lying police offi cers.

Rule X: Most judges disbelieve defendants about whether their constitutional

rights have been violated, even if they are telling the truth.

Rule XI: Most judges and prosecutors would not knowingly convict a defen-

dant whom they believe to be innocent of the crime charged (or a closely re-

lated crime).

Rule XII: Rule XI does not apply to members of organized crime, drug dealers,

career criminals, or potential informers.

Rule XIII: Nobody really wants justice.

—SOURCE: DERSHOWITZ, 1982: XXI.

? Do you believe this is more accurate than the idealized vision of the adversarial system of justice?

Legal Agent or Moral Agent? Many lawyers believe that loyalty to the client is paramount to their duties as a professional.

This loyalty surpasses and eclipses individual and private decision making, and the special

relationship said to exist between lawyer and client justifi es decisions that otherwise might

be deemed morally unacceptable. Others argue that an attorney must never abandon his

or her own moral compass and if the client desires some action that the attorney would not

countenance, ethics demand that he or she convince the client not to do so or withdraw.

Historians indicate that this dilemma has been problematic for lawyers since the fi rst ethics

codes were written. In writings in the 1800s, lawyers were admonished not to “plate sin with

gold,” but others wrote that “a lawyer is not accountable for the moral character of the cause

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he prosecutes, but only for the manner in which he conduct it” (reported in Ariens, 2008:

364, 367).

The conundrum of what to do when a client wants you to commit some act contrary

to good conscience occurs in both civil and criminal law. The following are the types of

positions described and defended.

Legal agent • . One position is that the attorney is no more than the legal agent of the cli-

ent. The lawyer is neither immoral nor moral, but merely a legal tool. This position is

represented by the statement, “I am a lawyer, fi rst and foremost.”

Special relationship • . A more moderate position is that the loyalty to the client presents

a special relationship between client and lawyer, similar to that between mother and

child or with a trusted friend. This protected relationship justifi es fewer actions than

the legal agent relationship. The lawyer is expected to dissuade the client from taking

unethical or immoral actions, but loyalty would preclude absolutely going against the

client’s wishes.

Moral agent • . The third position is that the lawyer is a moral agent who has to adhere

to his or her own moral code. The client’s interests come fi rst only as long as they do

not confl ict with the lawyer’s morality and ethical code. If there is a confl ict, the lawyer

follows his or her conscience.

Shaffer and Cochran (2007) offer a slightly different typology, describing the godfa-

ther (promotes clients’ interests above all others), the hired gun (does whatever the client

wants), the guru (controls the client with his own moral compass as guide), and the friend

(engages the client in moral dialogue and tries to convince the client of a proper course of

action and refuses only after the client insists). The hired gun and guru are similar to the

legal agent and moral agent roles described above.

Some critics of the legal agent approach reject perspectives that discount the lawyer’s

responsibility as an individual to make his or her own moral decisions. In this view, law-

yers should be the legal and moral agents of their clients rather than merely legal agents.

Their personal responsibility to avoid wrongdoing precludes involving themselves in their

clients’ wrongdoing (Postema, 1986: 168). This position is represented by the statement,

“I am a person fi rst, a lawyer second.”

Elliot Cohen (1991), an advocate of the moral agent position, believes that being a

purely legal advocate is inconsistent in several ways with being a morally good person.

For instance, the virtue of justice would be inconsistent with a zealous advocate who

would maximize the chance of his or her client’s winning, regardless of the fairness of the

outcome.

A pure legal agent would sacrifi ce values of truthfulness, moral courage, benevolence,

trustworthiness, and moral autonomy in furtherance of his or her client’s interests. Only if

the attorney is a moral agent as well as a legal advocate can there be any possibility of the

attorney maintaining individual morality. Cohen (1991: 135–136) suggests some principles

for attorneys to follow to be considered moral:

1. Treat others as ends in themselves and not as mere means to winning cases.

2. Treat clients and other professional relations who are relatively similar in a similar

fashion.

3. Do not deliberately engage in behavior that is apt to deceive the court as to the

truth.

4. Be willing, if necessary, to make reasonable personal sacrifi ces—of time, money, pop-

ularity, and so on—for what you justifi ably believe to be a morally good cause.

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5. Do not give money to, or accept money from, clients for wrongful purposes or in

wrongful amounts.

6. Avoid harming others in the process of representing your client.

7. Be loyal to your clients, and do not betray their confi dences.

8. Make your own moral decisions to the best of your ability, and act consistently upon

them.

The rationale for these principles seems to be an amalgamation of ethical formalism,

utilitarianism, and other ethical frameworks. Some of the principles may seem impossible

to uphold and may be subject to bitter criticism on the part of practicing attorneys. For

instance, how does one avoid harming others when one is an advocate for one side in a

contest? There are losers and winners in civil contests as well as in criminal law, and law-

yers must recognize their responsibility when the loser is harmed in fi nancial or emotional

ways.

Cohen’s position has been attacked as naïve and wrong on several counts. Memory

and Rose (2002: 29) argued against Cohen’s proposed principle that a lawyer “may refuse

to aid or participate in conduct that he sincerely believes, after careful refl ection on the

relevant facts, to be unjust or otherwise morally wrong notwithstanding his obligation to

seek the lawful objectives of his client.” They believe that lawyers can be effective and

morally good at the same time and argue that rules in place already prevent unscrupulous

acts. For instance, a code of ethics for attorneys (described in a later section of this chap-

ter) is offered in the Model Rules of Professional Conduct, and Model Rule 3.3 prohibits

lying. It states that lawyers may not make false statements of material facts or law, cannot

fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting

a criminal or fraudulent act by the client, cannot fail to disclose legal authority that is di-

rectly adverse to one’s client’s interest, or cannot offer evidence that one knows to be false.

According to the authors, this rule and others prevent attorneys from sacrifi cing truth even

when zealously pursuing clients’ interests.

Further, Memory and Rose (2002) argue that decisions regarding justice and moral-

ity are so subjective that it is impossible for them to be judged after the fact. They argue

that if lawyers were to act as moral agents, the result would be the loss of the clients’ trust

in lawyers, for the lawyer would be able to substitute his or her individual morality for the

clients.

In a rebuttal article, Elliot Cohen (2002: 39) used the ethics of care as the rationale for

his continued defense of the moral agent idea:

[M]orality concerns concrete interpersonal relationships that can be understood

only by people who have compassion and empathy for the predicaments of other

people. . .. Morally virtuous lawyers (moral agents) possess such affective aspects

of emotional development, but it is precisely such a dimension that must be lack-

ing from the pure legal advocate who must get used to working injury upon oth-

ers without having any strong feelings of guilt, sorrow, or regret.

In general, Cohen (1991) and Memory and Rose (2002) seem to be in agreement that

the Model Rules should prevent the most egregious misconduct of lawyers. Their dis-

agreement comes from the value they place on rules versus individual responsibility for

more ambiguous moral judgments.

Cohen’s argument is essentially that training and socialization into the culture of law

create the legal agent role and encourage a type of noble- cause corruption similar to what

we discussed in Chapter 5 for police offi cers. In the legal profession, the noble cause is

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winning a case (at all costs). In a culture that supports “ends” thinking (winning) over

“means,” rules are no more likely to control misconduct by lawyers than they do some

police offi cers. The Quote and Query box gives examples of legal agent and moral agent

statements.

QUOTE && QUERY About half the practice of a decent lawyer consists in telling would- be clients that

they are damned fools and should stop.

—SOURCE: REPORTED IN GLENDON, 1994: 76.

You’re an attorney. It’s your duty to lie, conceal and distort everything, and

slander everybody.

—SOURCE: GIRADEAUX, 1949: ACT TWO

? Which of these statements represents a legal agent statement? Which represents a moral agent statement?

Research indicates that the position taken by attorneys depends partially on whom

they represent. On the one hand, public defenders take a more authoritarian role and seem

to support the attorney as a “guru” or moral agent who tells the client what to do; attorneys

for corporations, on the other hand, are apt to follow a more client- centered approach

(Mather, 2003).

In an interesting application of Carol Gilligan’s ethics- of- care approach, Vogelstein

(2003) argues that attorneys’ rules are concerned with rights, not care. Thus, attorneys

must sacrifi ce third parties if they are to follow the rules and protect their clients’ interests.

This, she argues, contributes to the negative perception of attorneys. She proposes a type

of moral agent approach in which the attorney must take into consideration the needs of

others, as well as of the clients. Of course, others, such as Memory and Rose, who argued

against Cohen’s propositions, would strongly disagree. It should be noted that the rules do

show glimmers of the moral agent idea. For instance, Model Rule 2.1 states that “a lawyer

may refer not only to law but to other considerations such as moral, economic, social,

and political factors. . ..” in making decisions. This indicates that the rules do encourage

attorneys to look to the ethical systems to resolve problems. Again, though, the rules are

not much help when the client and the attorney strongly disagree over what is the right

thing to do.

Ethics for Legal Professionals Formal ethical standards for lawyers and judges were originally promulgated by the Amer-

ican Bar Association in the Model Code of Professional Responsibility. The original can-

ons, adapted from the Alabama Bar Association Code of 1887, were adopted by the ABA

in 1908 and have been revised frequently since then. In 1983, the ABA switched its en-

dorsement of the Model Code as the general guide for ethical behavior to the Model Rules

of Professional Conduct. The Model Rules continue to be revised periodically, responding

to changing sensibilities and emerging issues. Today’s Model Rules cover many aspects of

the lawyer’s profession, including areas such as client–lawyer relationships, the lawyer as

counselor, the lawyer as advocate, transactions with others, public service, and maintain-

ing the integrity of the profession (see www.abanet.org/cpr/mrpc/mrpc_toc.html.).

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C H A P T E R 8 | L a w a n d L e g a l P ro fe s s i o n a l s 2 3 7

The rules require that attorneys zealously protect and pursue a client’s interest within

the boundaries of the rules while maintaining a professional and civil demeanor toward

everyone involved in the legal process. Critics charge that the rules have replaced earlier

ethical codes that expressed ethical norms based on a moral tradition with regulatory,

some might say, picayune prohibitions (Ariens, 2008). Others argue that by placing pure

client interest ahead of a transcendent professional ethos, lawyers have lost the meaning

and value that used to be associated with the practice of law, and this lack of professional

purpose undercuts public confi dence and is the cause of a “cycle of cynicism” (Kreiger,

2009). Note that this “cycle of cynicism,” where a loss of moral direction leads to cyni-

cism, unethical behavior, and, therefore, more cynicism, is very similar to the description

presented in Chapter 7 of police departments that have lost their moral grounding, leading

to ethical misconduct by offi cers.

Section 1 of the rules is titled “Client–Lawyer Relationship.” This section offers rules

that require the attorney maintain a level of competence in his or her fi eld and not take

cases that are beyond his or her expertise. Rules in this section also govern the relative

power between the attorney and client—in other words, who should make decisions re-

garding the legal strategy to pursue the client’s interest. The rules mandate that attorneys,

once they take a case, practice due diligence, communicate with their client, and assess ap-

propriate fees. A controversial rule demands attorneys maintain confi dentiality regarding

information obtained in their representation of a client. We will discuss client confi dential-

ity as a dilemma in Chapter 9. There are also rules that guide the attorney when there are

confl icts of interest, such as the attorney should not have two clients who have competing

interests or take on clients whose interests may confl ict with the attorney’s interests. These

protections extend to former clients as well.

Section 2 offers rules concerning the lawyer’s role as counselor, and Section 3 covers

those situations where the attorney is pursuing the client’s interest as an advocate. The

Model Rules require that the attorney only pursue legitimate claims (Rule 3.1), and not

engage in needless delays (Rule 3.2). Further, the attorney has an ethical obligation of

“Candor Toward the Tribunal” (Rule 3.3), which means, for instance, that when present-

ing a legal argument, the attorney must present opposing case law as well. There are addi-

tional rules that cover fairness, decorum, trial publicity, and when the lawyer is a witness.

Rule 3.8, “Special Responsibilities of a Prosecutor,” requires the prosecutor to pursue

justice rather than simply a conviction. In recent years, the ABA has voted to add the fol-

lowing provisions (Saltzburg, 2008):

(g) When a prosecutor knows of new, credible, and material evidence creating a

reasonable likelihood that a convicted defendant did not commit an offense of

which the defendant was convicted, the prosecutor shall: (1) promptly disclose

that evidence to an appropriate court or authority, and (2) if the conviction was

obtained in the prosecutor’s jurisdiction, (a) promptly disclose that evidence to

the defendant unless a court authorizes delay, and (b) undertake further investi-

gation, or make reasonable efforts to cause an investigation, to determine whether

the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that

a defendant in the prosecutor’s jurisdiction was convicted of an offense that the

defendant did not commit, the prosecutor shall seek to remedy the conviction.

These new provisions were in response to the growing number of cases where inno-

cent people have been released from prison after being exonerated, often by DNA evi-

dence. New York was the fi rst state to revise its state ethics rules to assign these duties

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to prosecutors, and the ABA began discussing such a rule in 2000. While critics argued

that prosecutors are too overworked already to consider post- conviction claims of inno-

cence and that the rules may serve as a bar to the fi nality of criminal convictions, propo-

nents successfully argued that the number of exonerations and the fact that the duty of a

prosecutor is to seek justice, not secure convictions, supported the inclusion of the new

provisions. As of 2010, however, only Wisconsin has adopted amendments (g) and (h)

(Mulhausen, 2010).

Another section of the Model Rules is titled “Transactions with Persons Other than

Clients.” In this section, rules require the lawyer to maintain truthfulness in statements to

others, and not communicate with opposing parties except through their attorneys. Other

rules cover practices concerning unrepresented persons and the rights of third persons. In a

section that covers how law fi rms should operate, there are many rules concerning the rela-

tionships between attorneys in fi rms, between fi rms, and with other non- lawyer associates.

One rule, for instance, bars attorneys from using “runners,” which are non- attorneys who

fi nd cases by following up on accidents or fi nding victims of torts or defective merchandise.

The section on public service mandates that lawyers provide some pro bono (free) legal

service, and otherwise contribute to the legal community and society in general. It also

cautions against acting against clients’ interests in one’s activities in public service. Another

section covers how the attorney may advertise and communicate with prospective clients.

There are also rules about how to advertise specialties or being board certifi ed (passing a

special examination in a particular area of law). Section 8 is titled “Maintaining the Integrity

of the Profession” and covers bar admission and discipline. Rule 8.2 is directed specifi cally

to “Judicial and Legal Offi cials.” Rule 8.3 dictates that attorneys have an ethical obligation

to reporting professional misconduct. Rule 8.4 more specifi cally details misconduct, and

the fi nal rule covers the authority to enact discipline (Martyn, Fox, and Wendel, 2008).

In addition to the Model Rules, there is also the American Law Institute’s Restatement

of the Law Governing Lawyers (Martyn, Fox, and Wendel, 2008). Developed in 2000, the

Restatement provides guidelines and commentary covering most of the same issues that

the Model Rules cover. Some of the sections of the Restatement are:

Admission to Practice Law •

A Lawyer’s Duty of Supervision •

A Lawyer’s Duties to a Prospective Client •

Client–Lawyer Contracts •

Duty of Care to a Client •

A Lawyer’s Duty to Safeguard Confi dential Client Information •

Using or Disclosing Information to Prevent Death or Serious Bodily Harm •

Client Crime or Fraud •

Falsifying or Destroying Evidence •

The Restatement has eight chapters and 135 different sections. Note that the ABA

and American Legal Institute (ALI) promulgate these ethical codes, but state bar associa-

tions must adopt them or adapt them to have any effect. It is the state bars (and the fed-

eral bar) that have the power to discipline attorneys, the most serious punishment being

disbarment. Finally, it should be noted that the Model Rules and the Restatement cover

the practice of law generally; thus, most of the commentary and elements relate to civil

practice. Because our discussion focuses exclusively on criminal defense attorneys, pros-

ecutors, and criminal court judges, we will be referring to the ABA Criminal Justice Stan-

dards, as developed by the American Bar Association in 1991–1992. These standards offer

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guidelines and commentary directed specifi cally to the practice of criminal law. Ethical

issues in criminal law may involve courtroom behavior, perjury, confl icts of interest, use of

the media, investigation efforts, use of immunity, discovery and the sharing of evidence,

relationships with opposing attorneys, and plea bargaining.

Standards relating to ethical obligations of defense attorneys appear in Chapter 4,

“The Defense Function” and cover a multitude of issues, such as these:

Function of defense counsel •

Punctuality •

Public statements •

Duty to the administration of justice •

Access and the lawyer–client relationship •

Duty to investigate •

Control and direction of litigation •

Plea bargaining •

Trial conduct •

Appeal •

Chapter 3 of the ABA Criminal Justice Standards covers the prosecution function.

There are also National Prosecution Standards promulgated by the National District At-

torneys Association. Model Rule 3.8, described in preceding paragraphs, also covers the

duties of a prosecutor. Ethical guidelines for prosecutors make special note of the unique

role of the prosecutor as a representative of the court system and the state. Some of the

sections of the ABA Standards for Prosecutors cover:

Working with police and other law enforcement agents •

Working with victims, potential witnesses, and targets during the investigative •

process

Contact with the public •

The decision to initiate or to continue an investigation •

Selecting investigative techniques •

Use of undercover law enforcement agents and undercover operations •

Use of confi dential informants •

Cooperation agreements •

Use of subpoenas •

Use of the investigative powers of the grand jury •

Special prosecutors, independent counsel, and special prosecution units •

Prosecutor’s role in addressing suspected law enforcement misconduct •

Prosecutor’s role in addressing suspected judicial misconduct •

Prosecutor’s role in addressing suspected misconduct by defense counsel •

Prosecutor’s role in addressing suspected misconduct by witnesses, informants, or •

jurors

Illegally obtained evidence •

Responding to political pressure and consideration of the impact of criminal investi- •

gations on the political process

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These standards for legal professionals in the criminal justice system are much more spe-

cifi c than the Law Enforcement Code of Ethics. Instead of being aspirational, the stan-

dards are specific guidelines for behavior. (The Criminal Justice Standards from the

American Bar Association’s website can be accessed at http://new.abanet.org/sections/

criminaljustice/Pages/Standards.aspx.)

E T H I C A L G U I D E L I N E S F O R J U D G E S

To help guide judges in their duties, the Model Code of Judicial Conduct was developed

by the American Bar Association. The latest revision was undertaken beginning in 2003,

with the fi nal document submitted to the membership in 2007. This code identifi es the

ethical considerations unique to judges. It is organized into four canons, which are over-

riding principles of ethical behavior, and under each canon there are more specifi c rules.

The four canons of the code are as follows (ABA, 2007):

1. A judge shall uphold and promote the independence, integrity, and impartiality of the

judiciary, and shall avoid impropriety and the appearance of impropriety.

2. A judge shall perform the duties of judicial office impartially, competently, and

diligently.

3. A judge shall conduct the judge’s personal and extrajudicial activities to minimize the

risk of confl ict with the obligations of judicial offi ce.

4. A judge or candidate for judicial office shall not engage in political or campaign

activity that is inconsistent with the independence, integrity, or impartiality of the

judiciary.

The primary theme of judicial ethics is impartiality. We must be confi dent that the

judge’s objectivity isn’t marred by any type of bias. Judges should not let their personal

prejudices infl uence their decisions. To avoid this possibility, the ABA’s code specifi es that

each judge should try to avoid all appearance of bias as well as actual bias. To this end, the

rules prohibit a judge from engaging in speeches or activities that indicate a particular bias.

Such ethical rules, however, cannot impinge on the right of free speech. In Minnesota v.

White (536 U.S. 765 [2002]), the Supreme Court held that Minnesota’s rule prohibiting

judges from making speeches violated the First Amendment.

Judges must be careful to avoid fi nancial involvements or personal relationships that

may threaten their objectivity. We expect judges, like police offi cers and prosecutors, to

conform to higher standards of behavior than the rest of us. Therefore, any hint of scandal

in their private lives also calls into question their professional ethics. The obvious rationale

is that judges who have less than admirable personal values cannot judge others objec-

tively, and that judges who are less than honest in their fi nancial dealings do not have a

right to sit in judgment of others.

Culture and Ethics The Model Code of Professional Responsibility dictated that lawyers should be “tem-

perate and dignifi ed” and “refrain from all illegal and morally reprehensible conduct.”

The Model Rules expect that “a lawyer’s conduct should conform to the requirements of

the law, both in professional service to clients and in the lawyer’s business and personal

affairs.” These prescriptions are similar to those found in the Law Enforcement Code of

Ethics. Both groups of professionals are expected to uphold a higher standard of behavior

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C H A P T E R 8 | L a w a n d L e g a l P ro fe s s i o n a l s 2 4 1

than the general public. These professionals have chosen to work within the legal system

and help to enforce the law; thus, it is not unreasonable, perhaps, to expect that they pro-

vide a model of behavior for the rest of us. However, similar to our discussion of law en-

forcement offi cials, it seems to be true that the real world of lawyers is sometimes quite

different from the vaunted ideals of the Model Rules. The In the News box describes one

attorney who evidently did not subscribe to the view that there exists a higher standard of

behavior for legal professionals.

Law schools have been criticized for being singularly uninterested in fostering any

type of moral conscience in graduating students. Law schools purport to be in the prac-

tice of reshaping law students so that when they emerge “thinking like a lawyer,” they

have mastered a type of thinking that is concerned with detail and logical analysis. Oth-

ers argue this is done at the expense of being sensitive to morality and larger social is-

sues (Spence, 1989). Stover (1989) writes how public interest values decline during law

school. The reason for this decline seemingly has to do with the low value placed on

public interest issues by the law school curriculum, which also treats ethical and norma-

tive concerns as irrelevant or trivial compared to the “bar courses” such as contract law

and torts.

Even though all law schools today require professional- responsibility courses,

sometimes these courses do not promote morality and ethics. Instead, instructors re-

late stories (humorous and otherwise) of how to get around ethical and legal man-

dates. For instance, law students are taught that in the discovery phase of a lawsuit, the

legal rule that requires an attorney to turn over documents requested by the other side

(that are not otherwise privileged) can be circumvented by burying important docu-

ments in 600 boxes of paperwork. Rather than being taught to abide by the spirit and

principle of the ethical guidelines, sometimes these are presented as obstacles to be

overcome.

Ethical issues have received more attention in recent years, and most law schools

now have a variety of public service clinics where students help the poor, elderly, im-

migrants, and/or criminal clients. Bar exams now have a special section devoted to the

Model Rules and the state’s own professional responsibility code, but these tests are of-

ten hyper- technical, testing the minutiae of the rules rather than the spirit of practicing

in the N E W S A L E W D L A W Y E R

A trial judge held a lawyer in contempt and sentenced him to 90 days in jail for making gestures

simulating masturbation during a plea- taking in the courtroom. Evidently, the lawyer made the

gestures while looking at the female judge and rolling his eyes. It wasn’t clear exactly what mes-

sage he was trying to convey, but he was frustrated with the plea process going on and angry

at the prosecutor. The lawyer said the gesture was directed at the prosecutor, not the judge.

The appellate judge held that he “tarnished the dignity of the judicial process” and upheld the

original judge’s order of 90 days. The sentence was appealed, and the lawyer ended up serving

10 days in jail, the remainder of the contempt sentence at home, and received a three- year

probation of his law license.

SOURCES: Kreytak, 2008: Bl, B6; Kreytak, 2010.

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law ethically and honestly. Most states also require continuing legal education credit

hours in the area of ethics. However, similar to our earlier discussion of police offi cers,

classroom ethics training that encourages one set of behaviors is often contradicted and

disparaged by the professional subculture. If this is the case, such training might not be

very effective.

Patrick Fitzgerald (2009), a well- known and highly respected U.S. attorney, in an es-

say concerning ethics in the prosecutor’s offi ce, identifi ed offi ce culture as an important

component to ensure that prosecutors acted ethically. He also identifi ed a “good” offi ce

as one that hires not just smart people, but individuals who express values conducive to

public service and integrity. It seems to be probable that just as police departments each

have their own culture that supports or discourages ethical decision making, prosecutors’

offi ces also have different cultures.

In a highly critical overview of the legal profession, Glendon (1994) proposed that the

legal profession has changed in dramatic ways, not all of which have been for the better.

Although the practice of law was once governed by rules of ethics and etiquette, and law-

yers acted like gentlemen (literally, because the profession was for the most part closed to

women, minorities, and the lower class), since the 1950s, it has become increasingly open

to those excluded groups. Although the inclusion of these groups is a step forward, at the

same time, law practice has become less of a “gentlemen’s club” where the majority fol-

lowed written and unwritten rules of conduct, and more of a world of “no rules” or, more

accurately, only one rule: “Winning is everything.”

C O N C L U S I O N

In this chapter, we have explored the role and justifi cation for law, and, also how our

paradigms affect how we see it function in society. While some view law as enforcing

the will of the majority, others see law as a tool of oppression by those in power. The

justifi cation for law is primarily prevention of harm, including paternalistic laws that

seek to protect individuals from themselves, and laws that enforce society’s morals. The

attorney and judge are the human embodiments of the law. They create the reality of

how law operates. Rules defi ning ethical conduct for legal professionals come from their

state bar, but the ABA has promulgated Model Rules that most state bar associations

either adopt completely or adapt. Similar to our discussion concerning law enforcement

professionals’ noble- cause corruption, we note that there is a subculture of winning that

competes with, and sometimes eclipses, the ethical standards that attorneys learn in law

school.

C H A P T E R R E V I E W

1. Understand the justifi cations for law, including protections against harm to others, of-

fensive conduct, harm to self, and harm to societal morals.

The primary justifi cation for law is the social contract—we each give up the right to do

whatever we want in return for protection. John Stuart Mill advocated the “harm prin-

ciple,” which justifi ed laws only when they prevented harm (i.e., assault, murder). Other

justifications include preventing offensive conduct (i.e., lewd behavior, public distur-

bance). Another justifi cation is to prevent harm to self. Legal paternalism refers to laws

in which the state tries to protect people from their own behavior (i.e., seat belt laws, mo-

torcycle helmet laws). Finally, laws prevent harm to societal morals (legal moralism), but

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these laws are often controversial because we don’t all agree on right and wrong behaviors

(i.e., pornography, gambling).

2. Explain the role of law in society and the paradigms that have developed to understand

how law is formed and enforced.

Basically, paradigms are models of how ideas relate to one another, forming a conceptual

model of the world around us. In the consensus paradigm, law is seen as enforcing the will

of the majority, and most people agree on what should be illegal. In the confl ict paradigm,

law is seen as a tool of the power holders to control the powerless. In the pluralist para-

digm, law is seen as dynamic and changeable depending on coalitions of various interest

groups.

3. Compare the idea of our criminal law system as an adversarial system to other de-

scriptions of how the courtroom works and the relationships between the legal

professionals.

The ideal of the justice system is that two advocates of equal ability will engage in a

pursuit of truth, guided by a neutral judge. The truth is supposed to emerge from the

contest. The system has also been described as a “confi dence game” where the prosecu-

tor and the defense attorney conspire to appear as adversaries when, in fact, they will

still be working together when the client is gone. Another view is that of bureaucratic

justice, where the goal is effi ciency, not truth or justice. One other view is that of a wed-

ding cake model, where a few celebrated cases receive the vast majority of attention and

resources, a middle group of cases receive a moderate amount of resources, but the vast

majority of cases are processed through the system with minimal energy and minimal

due process.

4. Present the controversy concerning the role of advocate as legal agent or moral

agent.

The legal agent is a position where the attorney is no more than the legal tool of the client

and does his or her bidding as long as it is not illegal. The moral agent approach is that the

lawyer has to adhere to his or her own moral code. The client’s interests come fi rst only as

long as they do not confl ict with the lawyer’s morality and ethical code. A third position

is that of a “special relationship” where the attorney attempts to convince the client to do

what is right, but the position is not clear on what the course of action would be if the cli-

ent refuses.

5. Describe the history and source of legal ethics for attorneys and judges. Explain

the types of ethical rules that exist and compare them to the subculture of

winning.

The Model Code of Professional Responsibility was adapted from the Alabama Bar As-

sociation Code of 1887 and adopted by the American Bar Association in 1908. In 1983, the

ABA switched its endorsement of the Model Code as the general guide for ethical behav-

ior to the Model Rules of Professional Conduct. The Model Code of Judicial Conduct was

adopted by the American Bar Association in 2007 to provide ethical standards for judges.

Each state, however, must have its own model rules or ethical code to use as a vehicle

of discipline. The ethical code has the force of law in each state, and lawyers may face a

range of sanctions up to disbarment for violating the rules. On the other hand, disciplinary

proceedings are fairly rare, and there is a subculture in the law that promotes putting the

client’s interests ahead of everything, and winning is valued over all else. This leads to the

possibility of behavior that violates the formal Model Rules.

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K E Y T E R M S

S T U D Y Q U E S T I O N S

1. List some laws justifi ed by legal paternalism. Provide the rationale for such laws, as

well as opposing arguments. Discuss some types of laws that are justifi ed by legal mor-

alism. What are the major arguments for and against such laws?

2. Discuss how pluralism differs from the confl ict paradigm and provide examples to

support the view.

3. Describe in detail the evidence for and against the bureaucratic justice model of the

system.

4. Describe the recent additions to Rule 3.8 for prosecutors and why they were adopted.

5. Provide some examples of the types of issues covered in Chapter 3 (for prosecutors)

and Chapter 4 (for defense attorneys) of the ABA Criminal Justice Standards.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) how the confl ict and consensus paradigms would in-

terpret the following: decriminalization of marijuana for medical purposes, stem- cell

research, passage of hate- crime legislation, prohibiting the use of race in admissions

procedures in universities and in competitions for state scholarships, and laws prohib-

iting racial profi ling in police stops.

2. Write an essay on (or discuss) the legitimate functions of law in society. Do you agree

with laws that prohibit gambling? Drinking while driving? Underage drinking? Pros-

titution? Liquor violations? Drugs? Helmet laws for bicycles or motorcycles? Leash

laws? Seat belts? Smoking in public places? Can you think of any paternalistic laws not

mentioned above? Analyze pornography, gambling, homosexuality, and drug use un-

der the ethical systems discussed in Chapter 2. What other laws have limited Ameri-

cans’ (or certain groups’) freedoms? Can they be justifi ed under any ethical rationale?

3. Write an essay on (or discuss) whether or not the justice system is simply a bureau-

cratic assembly line that does not promote justice as much as it simply ensures its own

survival, with an emphasis on production. What should be the professional goals of

the various actors in the system (judges, prosecutors, defense attorneys)?

E T H I C A L D I L E M M A S

Situation 1

You ride a motorcycle, and you think it is much more enjoyable to ride without a helmet.

You also believe that your vision and hearing are better without a helmet. Your state has

just passed a helmet law, and you have already received two warnings. What will you do?

bureaucratic justice

confl ict paradigm

consensus paradigm

Good Samaritan laws

laws

legal moralism

legal paternalism

mechanical solidarity

natural law

organic solidarity

pluralist paradigm

positivist law

repressive law

restitutive law

social contract theory

wedding- cake illustration

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What if your child were riding on the motorcycle? Do you think your position would be

any different if you had any previous accidents and had been hurt?

Situation 2

You are a legislator who believes absolutely and strongly that abortion is a sin. You have

polled your constituents and are surprised to fi nd that the majority do not believe that the

government should legislate the private decision of a woman to have an abortion. Should

you vote your conscience or the will of the majority of your constituents?

Situation 3

You are a district attorney prosecuting a burglary case. The defendant is willing to plead

guilty in return for a sentence of probation, and you believe that this is a fair punishment

because your evidence may not support a conviction. However, the victims are upset and

want to see the offender receive prison time. They insist that you try the case. What should

you do?

Situation 4

You are a prosecutor with the unwelcome task of prosecuting a 12- year- old for a particu-

larly brutal assault. You personally believe that the child basically went along with his older

brother in the assault, and you think that he should have been left in the juvenile system.

However, the juvenile court judge waived him to the adult system, and the media and the

victim’s family are demanding that he be tried as an adult. You have to decide whether to

try him for attempted murder, assault, or some lesser crime. You could deny the waiver

and send the case back to juvenile court. What will you do? How do you determine your

duty? Is it to the victims, to society, or to your own conscience?

Situation 5

You are a judge who believes that individuals should be allowed to choose when to die.

You personally had to watch both your parents die long and agonizing deaths because

your state does not have a right- to- die statute. Before you is a doctor who is being pros-

ecuted for giving a lethal dose of morphine to a patient dying of terminal cancer. The fam-

ily of the patient did not want the prosecution, the majority of the public is not in favor

of the prosecution, but the prosecutor believes that if there is a law in place, it should be

enforced. The doctor has opted for a bench trial. What would you do?

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C h a p t e r O b j e c t i v e s

1. Describe the ethical issues faced by defense attorneys.

2. Describe the ethical issues faced by prosecutors.

3. Describe some of the areas of forensic science that have been challenged by opponents.

4. Describe the ethical issues faced by judges.

5. Explain why electing judges leads to a perception of unfairness.

Discretion and Dilemmas in the Legal Profession

Cameron Todd Willingham was not someone who was ever going to be very successful in

life. Raised in foster care, he drank and smoked too much, used drugs more than occasion-

ally, and never had much of a plan about how to get ahead. Still, most people said he was

a fairly decent father to his three daughters. Living with his wife in Corsicana, Texas, in

1991, the 23- year- old struggled to make ends meet. On the morning of December 23, his

wife left the house to go buy Christmas presents. Todd was sleeping when his 2- year- old

daughter woke him up and said the house was on fi re. Describing the events later, Todd

said he told her to leave the house and he tried to get to his 1- year- old twins, but couldn’t

fi nd them in the smoke and the fi re forced him to run outside. Neighbors reported that he

was extremely distraught, and fi remen had to hold him back from trying to break through

the window and crawl into the house even though it was fully engulfed by that time. How-

ever, later, when investigators began to focus on Willingham himself as a suspect of a rson,

they also remembered that he wanted to move his car from the driveway, which they

thought was strange for a distraught father.

Willingham was arrested for arson, and the prosecutor sought and obtained the death

penalty because of the tragic deaths of the three little girls. The case theory was that Will-

ingham was tired of the responsibilities of fatherhood and was a sociopath whose actions

during the fi re were mere acting. The main evidence came from two senior fi re investigators

who testifi ed that the fi re was defi nitely arson. They reported that they discovered pour

marks indicating an accelerant, and the heat of the fi re, as measured by the spidery cracks

in the glass, could only be from a fuel source. Further, they found a pour mark immediately

outside the front door, indicating that he had poured an accelerant there to block escape.

F o

to 2

4 /

A la

m y

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Willingham steadfastly maintained his innocence and would accept no plea deal.

His wife remained convinced of his innocence through the fi rst trial and fi rst appeal, but

eventually came to be persuaded that he indeed had killed their daughters. Still, not every-

one was convinced. Dr. Gerald Hurst, who was asked to review the case fi le, immediately

found statements from the fi re investigator that had no basis in fact and had been dis-

counted in the early 1990s when Willingham was on trial. A well- respected scientist, Hurst

had conducted experiments in other arson cases that proved that “fl ashovers” can cause

scorch patterns that look like pour marks. He discovered that the positive trace of mineral

spirits at the front door was probably due to a small grill and bottle of lighter fl uid that had

been on the front porch, seen in a photograph from the fi rst pictures taken of the fi re, but

removed in the cleanup. Hurst had been instrumental in freeing Ernest Willis, who had

also been on death row in Texas for a fi re that killed his children, but had been exonerated

by Hurst’s evidence that the fi re was not arson.

The report Hurst wrote detailing his fi ndings was fi nished quickly because Willing-

ham’s execution date was rapidly approaching. The Texas Board of Pardons and Paroles

reviews death sentences and can recommend clemency to the governor. They had Hurst’s

report indicating that the most likely explanation was that the fi re was set by candles or a

space heater in the girls’ room. It is unknown how much weight was placed on the report

by the board, or if they read it at all, because they did not recommend the execution be

stayed. In the state of Texas, the fi nal decision is up to the governor and Governor Rick

Perry ordered that the execution proceed (Mills, 2005). Cameron Todd Willingham was

executed on February 17, 2004 (Mills, 2005; Grann, 2009).

The story doesn’t end there. In 2005, Texas established a government commission

to investigate cases where forensic science might have led to the convictions of innocent

people. One of the fi rst cases reviewed by the Texas Forensic Science Commission was

the Willingham case. A fi re scientist, Craig Beyler, completed his investigation in 2009 and

issued a scathing report concluding that the arson investigators’ testimony had no basis

in fact and they should have known it at the time. Before the commission had a chance to

hear the testimony of Dr. Beyler, however, Governor Rick Perry dismissed the chairman

and another member and reorganized the board under the chairmanship of John Bradley,

a “law- and- order district attorney” from Williamson County. Bradley cancelled the meet-

ing. Finally, in the summer of 2010, they issued a preliminary fi nding that the state deputy

fi re marshal and assistant fi re chief based their testimony on fl awed science, but they also

found that the men were not negligent or guilty of misconduct in any way (Lindell and

Embrey, 2009; Lindell, 2009; Turner, 2010).

In Chapter 6, we described ethical dilemmas for police offi cers as inevitable because

of the discretion inherent in the role. The same is true of legal professionals. Although the

roles and duties of a defense attorney, prosecutor, and judge are very different, what they

do have in common is a great deal of discretion. Similar to all other criminal justice profes-

sionals, the power of discretion inherent in each of these roles affects individuals’ lives in

dramatic ways. As the Willingham case above illustrates, it is entirely possible that the ac-

tions of the defense attorneys, prosecutors, and judges in a criminal case can set in motion

events that can take the life of an innocent man.

Ethical Issues for Defense Attorneys Due process, including notice, neutral fact fi nders, cross- examination, and presentation

of evidence and witnesses, is supposed to minimize mistakes in judicial proceedings that

might result in the deprivation of life, liberty, or property. The defense attorney is there

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during the important steps of the process to ensure that these rights are protected. For

instance, defense attorneys are present during interrogation to make sure no coercion is

used, at lineup to make sure it is fair and unbiased, and during trial to ensure adequate

cross- examination and presentation of evidence. This pure role of advocate is contradic-

tory to the reality that the defense attorney must, if he or she is to work with the other ac-

tors in the court system, accommodate their needs as well as those of clients.

Many defense attorneys started out as prosecutors. This sometimes causes problems

when they have trouble making the transition from “good guy battling evil” to the more

subtle role of defender of due process. If the attorney cannot make the transition from

prosecution to defense and feel comfortable in the role, it is diffi cult to offer a zealous

defense (R. Cohen, 2001). Some argue that the system tends to operate under a presump-

tion of guilt. Indeed, defense attorneys are often in the position of defending clients they

know are guilty. The rationale for defending a guilty person is that everyone deserves due

process before a fi nding of guilt and punishment. If defense attorneys are doing their job,

we can be more confi dent that justice has been served. If they are not doing their job, we

have no system of justice, and none of us is safe from wrongful prosecution and the awe-

some power of the state to investigate, prosecute, and punish. In the In the News box,

one lawyer decided that justice demanded that he subvert the role of the defense attorney.

What is the attorney’s responsibility to the client when he or she knows the client is guilty

of a horrible crime?

R E S P O N S I B I L I T Y T O T H E C L I E N T

[A defense attorney’s duty is] to serve as the accused’s counselor and advocate

with courage and devotion (Standard 4- 1.2[b]).

The ABA Criminal Justice Standards will be used to highlight selected ethical issues for

defense attorneys and prosecutors. In the fi rst standard we will discuss, defense attorneys

are exhorted to serve as counselor and advocate; however, they are always in the position

of balancing the rights of the individual client against their overall effectiveness for all their

clients. Extreme attempts to protect the rights of one person will reduce the defense attor-

ney’s ability to advocate effectively for other clients. Furthermore, defense attorneys must

balance the needs and problems of the client against their ethical responsibilities to the

system and the profession.

in the N E W S A L A C K O F A D V O C A C Y

“I decided that Mr. Tucker deserved to die, and I would not do anything to prevent his

execution.”

This statement was made by defense attorney David Smith of Greensboro, North Carolina,

who accepted a capital appeal case and then admitted that he “sabotaged” the appeal of his cli-

ent because he believed the man deserved execution. The attorney went through a moral crisis

afterward and confessed to the state bar what he did.

SOURCE: Rimer, 2000.

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A lawyer is supposed to provide legal assistance to clients without regard for personal

preference or interest. Once he or she takes a case, a lawyer is not allowed to withdraw

except:

if the legal action is for harassment or malicious purposes, •

if continued employment will result in violation of a disciplinary rule, •

if discharged by a client, or •

if a mental or physical condition renders effective counsel impossible. •

In other cases, a judge may grant permission to withdraw when the client insists on

illegal or unethical actions, is uncooperative and does not follow the attorney’s advice, or

otherwise makes effective counsel diffi cult. In general, judges are loath to allow a defen-

dant to proceed with a pro se defense (defending oneself) because of the risk that the con-

viction will be overturned on appeal. Nor are judges likely to allow withdrawal if it will

delay ongoing proceedings. Legal ethics mandate that people with unpopular causes and

individuals who are obviously guilty still deserve counsel, and that it is the ethical duty of

an attorney to provide such counsel.

Many people are fi rmly convinced that the quality of legal representation is directly

related to how much money the defendant can pay. When people can make bail and hire

private attorneys, do they receive a better defense? Research, unfortunately, supports

the proposition that those who can afford private attorneys receive “better” representa-

tion (Martinez and Pollock, 2008). However, a private attorney, appointed by the court

and paid with state funds, may not be better than a public defender. A Harvard study

found, in reviewing federal criminal cases between 1997 and 2001, that lawyers who were

appointed to represent indigent clients were less qualifi ed than federal public defenders,

took longer to resolve cases, with worse results for clients, including sentences that were,

on average, eight months longer (Liptak, 2007). The private- appointed attorneys also cost

the public $61 million more than the public defenders. Evidently, these fi ndings were due

to inexperience, as public defenders practiced federal criminal law full time. In the federal

system, roughly three- fourths of all defendants are represented by publicly funded attor-

neys; about half are public defenders and the other half are appointed (Liptak, 2007).

Do defense attorneys exert more effort for clients who pay well than they do for court-

appointed clients? Obviously, professional ethics would dictate equal consideration, but

individual values also affect behavior. If an attorney was confi dent that his or her court-

appointed clients would receive at least adequate representation, could one not justify a

more zealous defense for a paying client? Where adequate representation is vaguely and

poorly defi ned, this question is problematic.

A more recent issue has emerged with the rise of specialty courts, the most common be-

ing drug courts. In such courts, defense attorneys, prosecutors, and judges take on quite dif-

ferent roles from the more typical adversary approach in regular criminal courts. There is an

emphasis placed on the actors as a team, and the judge plays a much more active role, inter-

acting with the defendant and monitoring progress. In these courts, the defense attorney ap-

pears almost redundant since the court’s goal is to do what is best for the client/defendant.

In fact, Meekins (2007) argues that defense attorneys face sensitive and serious ethical

challenges in such courts because they should not forget that their primary responsibility

is to the client, just as in a criminal trial, even if it means objecting to and arguing against

treatment options. There is a tendency for defense attorneys in such courts to infl uence cli-

ents to accept treatment, even in post- adjudicative systems, where the client has to plead

guilty in order to obtain treatment. Then the defense attorney faces issues involving com-

munication with clients and confi dentiality, because of the monitoring that such courts

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undertake while the client is in treatment and under supervision. Even though drug courts

are set up to promote the best interest of the client, the defense attorney’s role as advocate

should not be sacrifi ced, and the individual lawyer should not forget his or her role in the

desire for such courts to be successful.

C O N F L I C T S O F I N T E R E S T

[A defense attorney] should not permit his or her professional judgment or obli-

gations to be affected by his or her own political, business, property, or personal

interests (Standard 4- 3.5[a]).

This standard, along with Model Rules 1.7, 1.8, 1.10, and 1.11, cover confl icts of inter-

est. Attorneys are supposed to avoid any confl icts of interest when defending clients. For

instance, an attorney may not represent a client who owns a company that is a rival to one

in which the attorney has an interest. The attorney also must not represent two clients who

have opposing interests—for instance, co- defendants in a criminal case—for one often

will testify against the other. The attorney would fi nd it impossible in such a situation to

represent each individual fairly. Disciplinary rules even prohibit two lawyers in a single

fi rm from representing clients with confl icting interests.

Although attorneys may not ethically accept clients with confl icting interests, there is

no guidance on the more abstract problem that all criminal clients in a caseload have con-

fl icting interests if their cases are looked upon as part of a workload rather than considered

separately. Many defense attorneys make a living by taking cases from people with very

modest means or taking court- appointed cases with the fee set by the court. The defense

attorney then becomes a “fast- food lawyer,” depending on volume and speed to make a

profi t. However, quality may get sacrifi ced along the way. When lawyers pick up clients in

the hallways of courtrooms and from bail company referrals, the goal is to arrange bail, get

a plea bargain, and move on to the next case. Rarely do these cases even come to trial.

The vast majority of cases in the criminal justice system are settled by a plea bargain, an exchange of a guilty plea for a reduced charge or sentence. The defense attorney’s goal

in plea bargaining is to get the best possible deal for the client—probation or the shortest

prison sentence that the prosecutor is willing to give for a guilty plea. The defense attorney

is aware that he or she cannot aggressively push every case without endangering an ongo-

ing relationship with the prosecutor. A courtroom appearance may be an isolated event

for the client, but for the defense attorney and prosecutor it is an ongoing, weekly ritual;

only the names of the defendants change. Because of the nature of the continuing relation-

ship, the defense attorney must weigh present needs against future gains. If the defense

becomes known as unwilling to “play ball,” reduced effectiveness may hurt future clients.

Another confl ict of interest may arise if the attorney desires to represent the client’s

interests in selling literary or media rights. Standard 4- 3.4 specifi cally forbids entering into

such an agreement before the case is complete. The temptations are obvious: if the attor-

ney hopes to acquire fi nancial rewards from a share of profi ts, his or her professional judg-

ment on how best to defend the client may be clouded. It is debatable whether putting off

signing such an agreement until the case is complete removes the possibility of unethi-

cal decisions. One wonders if trial tactics and speeches aren’t evaluated, at least subcon-

sciously, on how they will appear in a later fi rst- person narrative or movie screenplay. The

potential for biased judgments is obvious. For instance, if an attorney has a client who has

committed a particularly spectacular crime, there is the potential for celebrity status only

if the case comes to trial, so a plea bargain—even if it is in the best interest of the client—

may be considered less carefully by the attorney.

plea bargain Exchange of a guilty plea for a reduced charge or sentence.

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Z E A L O U S D E F E N S E

[The defense attorney] has no duty to execute any directive of the accused which

does not comport with law or such standards (Standard 4- 1.2[e]).

Few would challenge the idea that all people deserve to have their due- process rights pro-

tected. However, what many people fi nd unsettling is the zeal with which some defense

attorneys approach the courtroom contest. How diligent should the defense be in protect-

ing the defendant’s rights? A confl ict may arise between providing an effective defense and

maintaining professional ethics and individual morality. Lawyers should represent clients

zealously within the bounds of the law, but the law is sometimes vague and diffi cult to

determine.

Ethical standards and rules forbid some actions. The lawyer may not:

Engage in motions or actions to intentionally and maliciously harm others •

Knowingly advance unwarranted claims or defenses •

Conceal or fail to disclose that which he or she is required by law to reveal •

Knowingly use perjured testimony or false evidence •

Knowingly make a false statement of law or fact •

Participate in the creation or preservation of evidence when he or she knows or it is •

obvious that the evidence is false

Counsel the client in conduct that is illegal •

Engage in other illegal conduct •

The attorney is also expected to maintain a professional and courteous relationship

with the opposing attorneys, litigants, and witnesses and to refrain from disparaging state-

ments or badgering conduct. The defense attorney must not intimidate or otherwise infl u-

ence the jury or trier of fact or use the media for these same purposes.

Despite these ethical rules, practices such as withholding evidence, manufacturing

evidence, witness badgering, and defamation of victims’ characters are sometimes used

as tactics in the defense arsenal. For instance, the practice of bringing out the sexual his-

tory of rape victims is done purely to paint her as a victim who deserved or asked for her

rape. Even though rape- shield laws prohibit exposés of sexual history solely to discredit

the reputation of the victim- witness, attorneys still attempt to bring in such evidence. De-

stroying the credibility of honest witnesses is considered good advocacy, at least for de-

fense attorneys. For instance, if a witness accurately testifi es to what he or she saw, a good

attorney may still cast doubt in the jurors’ minds by bringing out evidence of the use of

eyeglasses, mistakes of judgment, and other facts that tend to obfuscate and undercut the

credibility of the witness. Attorneys will do this even when they know that the witness is

telling the truth. A zealous defense may include questioning the credibility of all prosecu-

tion witnesses.

Most ethical confl icts arise over subtle questions of how far one should go to provide a

zealous defense. It is sometimes diffi cult to determine when a defense attorney’s treatment

of a witness is badgering as opposed to energetic cross- examination, or when exploring

a witness’s background is character assassination as opposed to a careful examination of

credibility. Some attorneys focus attacks on opposing counsel. For example, female at-

torneys report that opposing male attorneys attempt to infantilize, patronize, or sexualize

them in front of the judge and jury, as a tactic to destroy their credibility. Young attorneys

encounter condescending treatment by opposing counsel, with comments such as, “What

my young colleague here has evidently not learned yet…” designed to persuade the jury

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that the older attorney is wiser, more honest, or more mature than the younger attorney.

Whispering during opposing counsel’s opening or closing, rolling one’s eyes in response

to a statement or question, or making other verbal or physical gestures indicating disbelief,

amusement, or disdain are part of the arsenal of the trial attorney. They are considered by

some to be fair and within the rules of the “game.”

JURY CONSULTANTS A recent innovation in trial tactics is the development of “scien- tifi c” jury selection. Attorneys often contend that a trial has already been won or lost once

they have selected the jury. Whether or not this is true, attorneys are becoming increas-

ingly sophisticated in their methods of choosing which members of a jury panel would

make good jurors. A good juror for a defense attorney (or prosecutor) is not someone

who is unbiased and fair, but rather, someone who is predisposed to be sympathetic to

that attorney’s case. Jury experts are psychologists, communication specialists, or other

professionals who sit with the attorney and, through a combination of nonverbal and

verbal clues, identify those jury panel members who are predisposed to believe the case

presented by the attorney. Some allege that jury consultants can help to stack juries with

the least sophisticated or most educated group, or any other type of group desired by the

attorney.

Some lawyers, such as the famed Richard “Racehorse” Haynes of Houston, have used

methods such as surveying a large sample of the population in the community where the

case is to be tried to discover what certain demographic groups think about issues relevant

to the case so these fi ndings can be used when the jury is selected. Another method uses a

shadow jury—a panel of people selected by the defense attorney to represent the actual jury. This shadow jury sits through the trial and provides feedback to the attorney on the

evidence being presented during the trial. This allows the attorney to adjust his or her trial

tactics in response.

Attorneys have always used intuition and less sophisticated means to decide which

jury members to exclude, but the more modern tactics are questioned by some as too

contrary to the basic idea that a trial is supposed to start with an unbiased jury (Smith and

Meyer, 1987). Consultants also provide services such as

Preparing witnesses •

Assisting with mock trials •

Developing desirable juror profi les •

Conducting phone surveys on public attitudes about a case •

Analyzing shadow juries •

Giving advice on effective posture, clothing choice, and tone of voice •

Can our ethical systems help to determine what actions are ethically justifi ed in de-

fending a client zealously? Utilitarianism and egoism would probably allow a wider range

of actions, depending on the particular interests or rewards represented by the case. Ethi-

cal formalism and religion might restrict the actions of a defense attorney to those allowed

by a strict interpretation of the Model Rules.

C O N F I D E N T I A L I T Y

Defense counsel should not reveal information relating to representation of

a client unless … counsel believes [it] is likely to result in imminent death or

substantial bodily harm (Standard 4- 3.7[d]).

shadow jury A panel of people selected by the defense attorney to represent the actual jury; sits through the trial and provides feedback to the attorney on the evidence presented during the trial.

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The attorney–client privilege refers to the inability of authorities to compel an attorney (through subpoena or threat of contempt) to disclose confi dential information regarding

his or her client. The ethical duty of confi dentiality prohibits an attorney from disclos-

ing to any person, or using for one’s own gain, information about one’s client obtained

through the attorney–client relationship. Any attorney who breaches confi dentiality may

face disbarment.

Confi dentiality is inherent in the fi duciary relationship between the client and the at-

torney, but more important is that the client must be able to expect and receive the full and

complete assistance of his or her lawyer. If a client feels compelled to withhold negative

and incriminatory information, he or she will not be able to receive the best defense; thus,

the lawyer must be perceived as a completely confi dential agent of the client. Parallels to

the attorney–client relationship are relationships between husband and wife and between

priest and penitent. In these cases, the relationship creates a legal entity that approximates

a single interest rather than two interests, so a break in confi dentiality would violate the

Fifth Amendment protection against self- incrimination (Schoeman, 1982: 260).

According to Model Rule 1.6, the only situations wherein a lawyer can ethically reveal

confi dences of a client are these:

When the client consents •

When disclosure is required by law or court order •

When one needs to defend oneself or employees against an accusation of wrongful •

conduct

To prevent reasonably certain death or substantial bodily harm •

To prevent the client from committing a crime or fraud that is reasonably certain to •

result in substantial injury to the fi nancial interests or property of another and the law-

yer’s services have been used to accomplish that end

To prevent, mitigate, or rectify substantial injury to the fi nancial interest or property •

of another that is reasonably certain to result or has resulted from the client’s commis-

sion of a crime or fraud when the lawyer’s services have been used

One of the most debated portions has been the part of this rule that specifi es what

type of crime justifi es divulging the confi dences of a client. The Model Code (used before

the Model Rules) allowed disclosure to prevent any crime. An earlier version of the Model

Rules dictated that an attorney could ethically violate a client’s confi dence only to prevent

a future crime involving imminent death or grievous bodily harm. Many state bar associa-

tions refused to adopt the restrictive rule or enlarged it to include any crime. The current

version requires disclosure of fi nancial crimes if there is substantial injury, but it also al-

lows disclosure to mitigate or rectify a fi nancial crime. The Enron and WorldCom cases no

doubt infl uenced the committee that updated this rule. Proponents of enlarging the scope

of the rule argued that such a rule would have prevented Enron lawyers from participating

in the scheme to defraud stockholders by hiding the true level of debt (Ariens, 2009).

Neither the restrictive rule nor the inclusive rule regarding disclosing a client’s future

crime applied to the Garrow incident (described in the Walking the Walk box), so the law-

yers felt ethically bound to withhold the location of two bodies from the family of the vic-

tims. Do the ethical systems support keeping the client’s confi dences in a situation such as

the one faced by Frank Armani when defending Robert Garrow?

It should be noted that the rule of confi dentiality does not apply to physical evidence.

Anything that is discoverable in the possession of a client is equally discoverable if in the

possession of an attorney. Therefore, an attorney must hand over fi les or other incrimi-

nating evidence subject to a valid search warrant, motion, or subpoena. If the attorney is

attorney–client privilege The legal rule by which an attorney cannot disclose confi dential information regarding his or her client except in a very few specifi ed circumstances.

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merely told where these items may be found, he or she is not obliged to tell the authorities

where they are. For instance, if a client tells an attorney that a murder weapon is in a certain

location, the attorney cannot divulge that information to authorities. However, if the client

drops a murder weapon in the attorney’s lap, the lawyer runs the risk of being charged with

a felony if it is hidden or withheld from the police. If the attorney is told where a murder

weapon is and goes to check, that information is still protected; however, if the attorney

takes the weapon back to his or her offi ce or moves it in any way, then the attorney may

be subjected to felony charges of obstruction of justice or evidence tampering. Belge was

charged in the Garrow case because he moved the body, although he was never convicted.

A defense attorney’s ethics may also be compromised when a client insists on taking

the stand to commit perjury. Model Rule 3.3 specifi cally forbids the lawyer from allowing

Frank Armani may be one of the most revered and, also,

hated lawyers in the past century. In 1973, Armani was

asked to represent Robert Garrow, accused of murder

and attempted murder. Garrow, who had already served

eight years in prison for rape, was identifi ed as the man

who tied up four college students and brutally stabbed

one to death, although luckily the other three got away.

Because of the similarity of the attacks, Garrow was also

suspected of being responsible for another murder of

a young man. The man’s companion was missing, and

authorities were desperate to either fi nd her alive or fi nd

her body. One other young woman was also missing,

and Garrow was suspected of being responsible for her

disappearance as well.

Armani took the case because he had previously

represented Garrow on a minor charge. Armani brought

in Francis Belge, a criminal defense attorney. During their

questioning of Garrow, he confessed to the murders of

the two missing women and told the lawyers where the

bodies were hidden. The two lawyers confirmed that

the bodies were where Garrow said they were, and they

even took pictures. In one location, the girl’s head was

10 feet away from her torso, and Belge moved the head

closer to the body before he took the picture. In the other

case, the body was in an abandoned mine shaft, and the

lawyers lowered each other down to take pictures.

The lawyers believed that attorney–client confi den-

tiality prevented them from revealing the location of the

bodies or even that Garrow had confessed to being in-

volved. They did, however, imply to the district attorney

that Garrow might reveal the location in a plea agree-

ment. They were trying to get the prosecutor to agree to

an insanity plea with commitment to a mental hospital.

The prosecutor refused the deal, and before the case

could come to trial for the first murder, the two girls’

bodies were found. Garrow was the prime suspect.

In the small town where the trial was held, the two

attorneys were shunned, vilifi ed, and threatened. Both

of the missing girls’ families had pleaded with the attor-

neys to tell them if their daughters were alive or dead,

and the families had no doubt that the attorneys knew

more than they would reveal. Their suspicions became

clear because after Garrow was convicted, Armani and

Belge admitted in a press interview that they had known

about the bodies all along.

The enraged prosecutor charged Belge with the

crime of “failure to give a proper burial” and threatened

both with obstruction of justice. The criminal charges

were dropped, as were the state ethics charges, but both

attorneys endured threats and the virtual loss of their

law practices. One newspaper editorial at the time called

Armani “a malignant cancer on the society that fostered

him” and “less than useless to the human race.” Belge

left the practice of law entirely, and Armani was forced

to build up his practice again after most of his clients

left him. His marriage almost failed, and he fl irted with

alcoholism and suffered two heart attacks during the

long ordeal.

When asked why he kept the murderer’s secrets,

Armani explained that civil rights are for the worst of

us because, only then, are they there for the best of us.

Eventually he was recognized for his ethical courage,

but many still disagree on his stand that the client’s con-

fidentiality rights are more important than “common

decency.” One thing that no one can dispute, however,

is that he paid a high price for his ethical principles.

W A L K I N G T H E W A L K

Sources: Zitrin and Langford, 1999; Hansen, 2007: 28–29.

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perjury to take place; if it happens before the attorney realizes the intent of the client, the

defense must not use or refer to the perjured testimony (Freedman, 1986; Kleinig, 1986).

The quandary is that if the attorney shows his or her disbelief or discredits the client, this

behavior violates the ethical mandate of a zealous defense, and to inform the court of the

perjury violates the ethical rule of confi dentiality.

Pellicotti (1990) explains that an attorney should fi rst try to dissuade the client from

committing perjury. If the client persists in plans to lie, the attorney then has an ethical

duty to withdraw from the case, and there is some authority that the attorney should dis-

close the client’s plan to the court. Withdrawal is problematic because it will usually jeop-

ardize a case, and disclosure is even more problematic because, arguably, it will affect the

judgment of the hearing judge.

In Nix v. Whiteside (475 U.S. 157, 89 L.Ed.2d 123 [1986]), the Supreme Court held

that it did not violate the defendant’s Sixth Amendment right to counsel for the attorney

to refuse to help the defendant commit perjury. In this murder case, the defendant told his

lawyer that he had not seen a gun in the victim’s hand. At a later point, he told his attorney

that if he didn’t testify that he saw a gun, he would be “dead” (lose the case). The attorney

told him that if he were to testify falsely, he would have to impeach him and would seek to

withdraw from the case. The defendant testifi ed truthfully, was found guilty, and then ap-

pealed based on ineffective counsel. The court found that the right to effective counsel did

not include the right to an attorney who would suborn perjury.

Pellicotti (1990) describes the passive role and the active role of an attorney with a cli-

ent who commits perjury. In the passive role, the attorney asks no questions during direct

examination that would elicit untruthful answers and may make a statement that the client

is taking the stand against the advice of an attorney. The attorney does not refer to perjured

testimony during summation or any arguments. The active role allows for the attorney to

disclose to the court the fact of the perjured testimony. There is no great weight of author-

ity to commend either approach, leaving attorneys with a diffi cult ethical dilemma. The

best defense of some attorneys is not to know about the lie in the fi rst place.

If the attorney is not sure that the client would be committing perjury, there is no legal

duty to disclose. The weight of authority indicates that the attorney with doubts should

proceed with the testimony; any disclosure of such doubts is improper and unethical. Thus,

some attorneys tell a client, “Before you say anything, I need to tell you that I cannot partici-

pate in perjury, and if I know for a fact that you plan to lie, I cannot put you on the stand,”

or they ask the client, “What do I need to know that is damaging to this case?” rather than

ask if the client is guilty of the crime. Further, many attorneys argue that all defendants lie

about everything and they can’t be believed anyway. If this is true, some attorneys may con-

clude that since they don’t know with certainty that the defendant is lying, they can allow

the defendant to say anything they want on the stand.

While the attorney–client privilege is sacrosanct, some argue that there should be

some exceptions when keeping quiet harms third parties. It is quite troubling, for instance,

to ponder how many people are in prison for crimes they did not commit and somewhere

an attorney for the real criminal knows, but cannot do anything about it.?? DILEMMA: You are defending a client whom you believe is guilty of the brutal rape and murder of a young girl. He has not admitted the crime to you, but he hasn’t denied it either, and the physical and circumstantial evidence is overwhelming.

One day he tells you that another man is in prison for a similar rape and murder that he committed 10 years earlier. You check

and fi nd out that, indeed, there is a person by that name who was convicted and is, in fact, facing execution in the next month for

the crime. What do you do? What do you do if the other man is not facing execution but a 40- year prison sentence?

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LAW Recall that the Model Rules carry the weight of law in that if a lawyer violates a client’s confi dentiality, any evidence may be excluded by the court. Further, the at-

torney would face sanctions, including being disbarred from the practice of law. The

Model Rules seem clear that since this situation does not involve a new crime, it is not

covered by the “new crime” exception; however, an execution does seem to fall un-

der the exception to prevent a “reasonably certain death or substantial bodily harm.”

Lately, some states have debated adding an exception that would allow attorneys to

come forward to prevent wrongful imprisonment, but there is resistance because it may

create a situation where attorneys will have to frequently go against the best interests of

their client.

POLICY Unlike law enforcement, policy analysis seems less relevant in many of the ethi- cal issues facing defense attorneys. Of course, public defenders have offi ce policies that

may affect some of their decision making, but very often defense attorneys are sole practi-

tioners who have no offi ce policy considerations to guide their behavior.

ETHICS The rule seems to be justifi ed by utilitarianism because society benefi ts in the long run from the presence of attorney–client confidence. Therefore, this confidence

should be sacrifi ced only when it endangers a life (which would be a greater loss than the

benefi t of client–attorney trust) (Harris, 1986). Religious ethics might condemn the attor-

ney’s actions because withholding information—for instance, the location of the bodies in

the Garrow case described in the Walking the Walk box—was a form of deception. In the

Roman Catholic religion, however, a similar ethical dilemma might arise if someone were

to confess to a priest. In that case, the priest could not betray that confession no matter

what the circumstances.

No easy answers to the dilemma are forthcoming using ethical formalism. First of

all, under the categorical imperative, the lawyer’s actions must be such that we would

be willing for all others to engage in similar behavior under like circumstances. Could

one will that it become universal law for attorneys to keep such information secret?

What if you were the parents in the Garrow case who did not know the whereabouts

of their daughter, or even if she was alive or dead? Or what if you were the loved one

of someone who was wrongfully convicted and imprisoned? It is hard to imagine that

you would be willing to agree with this universal law. If you were the criminal, how-

ever, you would not want a lawyer to betray confi dences that would hurt your case.

If you were a lawyer, you would want a rule encouraging a client to be truthful so you

would be able to provide an adequate defense. Ethical formalism is also concerned with

duty; it is obvious that the duty of an attorney is always to protect the interests of his or

her client. However, there are also larger duties of every attorney to protect the integrity

of the justice system.

The ethics of care would be concerned with the needs of both the client and the par-

ents in the Garrow case, and in the dilemma of the person wrongfully convicted. This

ethical system might support a resolution in a less absolutist fashion than the other ratio-

nales. For instance, when discussing the Garrow case in a college classroom, many stu-

dents immediately decide that they would call in the location of the bodies anonymously,

thereby relieving the parents’ anxiety and also protecting, to some extent, the confi dential

communication. One could make the same type of phone call in the case of the wrong-

fully convicted if an attorney had evidence that could help the person prove his or her in-

nocence. However, this compromise is unsupported by an absolute view of confi dentiality

because it endangers the client, but it does protect the relationship of the attorney and the

client and still meets the needs of others concerned.

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Aronson (1977: 59–63) discusses two methods for resolving ethical dilemmas.

The first is called the situational model, wherein lawyers weigh the priorities and decide each case on the specific factors present. This is similar to our explanation of

situational ethics. In some cases, client confidentiality may be sacrificed when oth-

ers’ interests are at stake, but confidentiality may be paramount in other cases. The

systems model utilizes a more absolute or legalistic model in that behavior would always be considered wrong or right depending on the ethical rule guiding the defi-

nition. Obviously, these two systems of decision making bear a great deal of resem-

blance to the situational and absolutist ethical models discussed in Chapter 2. As a

pure advocate, the defense attorney’s duty is to pursue a client’s interest. As long as

the attorney does not run afoul of the law or ethical mandates, the client’s defense is

the sole objective.

Ethical Issues for Prosecutors Prosecutors do not serve an individual client; rather, their client is the system or society

itself, and their mission is justice. As the second line of decision makers in the system,

prosecutors have extremely broad powers of discretion. The prosecutor acts like a strainer;

he or she collects some cases for formal prosecution while eliminating a great many others.

Prosecuting every case is impossible. Resources are limited, and some cases’ evidence is

weak, making it unlikely to win a conviction. Early diversion of such cases saves taxpayers

money and saves individuals trouble and expense.

U S E O F D I S C R E T I O N

A prosecutor should not institute … criminal charges … not supported by

probable cause (Standard 3- 3.9[a]).

The prosecutor must seek justice, not merely a conviction. Toward this end, prosecutors

must share evidence, exercise restraint in the use of their power, represent the public inter-

est, and give the accused the benefi t of reasonable doubt. Disciplinary rules are more spe-

cifi c. They forbid the prosecutor from pursuing charges when there is no probable cause

and mandate timely disclosure to defense counsel of evidence, especially exculpatory evi-

dence or evidence that might mitigate guilt or reduce the punishment. Despite these ideals

of prosecutorial duty, an unstated infl uence over prosecutorial discretion is that prosecu-

tors want to and must (to be considered successful) win. A decision to prosecute is in-

fl uenced by political and public pressures, the chance for conviction, the severity of the

crime, a “gut” feeling of guilt or innocence, prison overcrowding, and the weight of evi-

dence. The prosecutorial role is to seek justice, but justice doesn’t mean the same thing to

everyone and certainly does not mean prosecuting everyone to the fullest extent of the law.

Whether to charge is one of the most important decisions of the criminal justice process.

The decision should be fair, neutral, and accomplished with due process, but this is an

ideal that is sometimes supplanted by other considerations. Prosecutors don’t usually use

their charging power for intimidation or harassment, but other factors may be involved in

the decision to charge. For instance, a prosecutor might have a particular interest in a type

of crime such as child abuse or drugs and pursue these cases more intensely. How sure

should a prosecutor be that a suspect is guilty before prosecuting? Can a prosecutor ethi-

cally prosecute one individual of a crime, obtain a conviction, and then prosecute another

individual for the same crime? It has been known to happen (Zachiaras and Green, 2009).

situational model A conceptualization in which lawyers weigh the priorities in each case and decide each case on the particular factors present.

systems model An absolute or legalistic model in that an attorney’s behavior would always be considered wrong or right depending on the ethical rule guiding the defi nition.

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The Genarlow Wilson case presents a diffi cult issue of how prosecutorial discretion is

sometimes used (McCaffrey, 2007; ESPN News Service, 2007). Wilson was a 17- year- old

high school athlete on his way to a college scholarship. Instead, he ended up in prison be-

cause of a party in which several teenagers, including Wilson, engaged in consensual sex.

One of the girls involved was 15. The evidence was incontrovertible—a videotape clearly

showing Wilson with the underage girl. The prosecutor charged him with rape, and a jury

convicted him, which meant a mandatory 10- year prison sentence. The uproar resulted

in the legislature changing the law to make sex between teenagers a misdemeanor, but the

law could not be retroactively applied to Wilson. He spent two years in prison before the

Georgia Supreme Court released him on the grounds that the punishment was cruel and

unusual. The prosecutor decided to charge Wilson rather than use his discretion and de-

cide not to charge, and he also fi led an appeal against the fi rst appellate decision to reduce

Wilson’s sentence to 12 months. In cases such as these, the prosecutor’s beliefs dramati-

cally affect what happens in a case.

Other considerations that affect the decision to charge include pressure from law

enforcement—for instance, when a bargain is struck for a lesser charge in return for testi-

mony or information that could lead to further convictions. There is also the pressure of

public opinion. Prosecutors might pursue cases that they otherwise would have dropped

if there is a great deal of public interest in the case. The victim also affects the decision to

prosecute. Victims who have mental impairments may not make the best witnesses and

there may be less chance of getting a conviction. In one such case, fi ve women with de-

velopmental disabilities had been raped and terrorized by the owner of a licensed home

where they lived. The prosecutor declined to pursue charges under the rationale that “any

woman with a developmental disability would have zero credibility in court.” Only when

the licensing authority secured additional testimony, revoked the license of the owner, and

publicly exposed the situation did the prosecutor press charges (Hook, 2001).

Prosecutors in state capitals often have “public integrity” units that prosecute wrong-

doing on the part of public offi cials. Some prosecutors might fi le charges against political

opponents at election time, but other prosecutors might be falsely accused of such politi-

cal considerations when they do charge politicians with public- integrity violations.

A special case of discretion and charging is the decision to pursue a capital homicide

conviction. Prosecutors have the power to decide whether to seek the death penalty or a

prison term. Clearly, the decision to seek the death penalty is not made uniformly across

jurisdictions. One of the biggest considerations is cost. Because capital trials are extremely

expensive, counties that have bigger budgets are more likely to seek the death penalty;

they have the resources and staff to handle the cases (Hall, 2002). Obviously, these consid-

erations have nothing to do with justice, and it should cause concern that a criterion other

than severity of the crime or future risk affects whether an offender ultimately receives the

death penalty.

Various studies have attempted to describe prosecutors’ decision making; one cites

offi ce policy as an important infl uence (Jacoby, Mellon, and Smith, 1980):

Legal suffi ciency • is an offi ce policy that weeds out those cases in which the evidence is

not strong enough to support further action.

System effi ciency • is an offi ce policy with goals of effi ciency and accountability; all deci-

sions are made with these goals in mind, so many cases result in dismissals.

Defendant rehabilitation • emphasizes diversion and other rehabilitation tools rather

than punitive goals.

Trial sufficiency • is an office policy that encourages a charge that can be sustained

through trial.

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Another study looked at the prosecutor as operating in an exchange system. The re-

lationship between the prosecutor and the police was described as one of give- and- take.

Prosecutors balance police needs or wishes against their own vulnerability. The prosecutor

makes personal judgments about which police offi cers can be trusted. Exchange also takes

place between the prosecutor’s offi ce and the courts. When the jails become overcrowded,

prosecutors recommend deferred adjudication and probation; when dockets back

up, prosecutors drop charges. Finally, exchange takes place between defense attorneys and

prosecutors, especially because many defense attorneys have previously served as pros-

ecutors and may be personally familiar with the procedures and even personalities in the

prosecutor’s offi ce (Cole, 1970).

On the one hand, discretion is considered essential to the prosecutorial function of

promoting individualized justice and softening the impersonal effects of the law. On the

other hand, the presence of discretion is the reason that the legal system is considered

unfair and biased toward certain groups of people or individuals. Even though we would

not want to eliminate prosecutorial discretion, it could be guided by regulations or internal

guidelines. For instance, an offi ce policy might include a procedure for providing written

reasons for dropping charges, and this procedure would respond to charges of unbridled

discretion.

One writer argues that the ethics of virtue can help determine ethical decisions for

prosecutors. Cassidy (2006) presents three ethical issues:

When is it proper for a prosecutor to offer charging or sentencing concessions to an •

accomplice in order to secure the accomplice’s testimony against a co- defendant?

When, if ever, may a prosecutor impeach a defense witness whom the prosecutor •

believes has testifi ed truthfully?

How should a prosecutor react at trial when opposing counsel appears to be advocat- •

ing ineffectively on behalf of his client?

Then Cassidy describes Aristotle’s ethics of virtue, as well as the thinking of St.

Thomas Aquinas and Alasdair MacIntyre, a modern virtue theorist. Basically, as we

learned in Chapter 2, the ethics of virtue proposes that the ethical person is the virtuous

person, and the virtuous person is the person who behaves in a way consistent with the

virtues. Aristotle classifi ed virtues into moral virtues and intellectual virtues. His moral

virtues include temperance, courage, industriousness, generosity, pride, good temper,

truthfulness, friendliness, modesty, justice, and pleasantness; and the intellectual virtues

include understanding, science, theoretical wisdom (philosophy), craft, and practical wis-

dom. St. Thomas Aquinas added theological virtues of faith, hope, and charity. Alasdair

MacIntyre defi ned the most important virtues as justice, courage, honesty, and prudence.

Cassidy argues that virtue ethics are different from absolute rule- based ethics and that each

person must have sensitivity to the “salient features of [particular] situations” (2006: 637).

Turning to the ethical dilemmas, Cassidy explains that neither Model Rule 3.8 nor the

Standards gives prosecutors much guidance in any of the cases, and so they must apply

the virtues. In the situation of offering a deal to a co- conspirator, he argues that the virtue

of courage would require the prosecutor to have the courage to refuse to deal if justice

demanded it. The virtue of honesty would mean that the prosecutor must make sure that

the suspect was not lying and also make sure that he or she was not more culpable than

the person he or she was testifying against. The prosecutor must disclose the agreement

to the defense and the court so the veracity of the testimony can be challenged. The virtue

of justice or fairness would mean that the prosecutor should not give the most punishment

to those who are least involved.

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In the second ethical dilemma, the prosecutor must decide whether to try to impeach

a witness who is telling the truth. Cassidy argues that the Model Rules allow defense attor-

neys the right to impeach prosecution witnesses even if they are telling the truth, but there

is no mandate that prosecutors should do so, as they are supposed to be seeking justice,

not pursuing the best interest of their client. He offers Standard 3- 5.7(b), which states:

A prosecutor should not use the power of cross- examination to discredit or

undermine a witness if the prosecutor knows the witness is testifying truthfully.

Cassidy argues that the virtues of honesty and courage require a prosecutor to forgo

cross- examination if he or she knows that the truth has been told. Regarding the last ethical

dilemma involving an incompetent defense attorney, he points to Model Rule 8.3, which

requires that attorneys report incompetent colleagues to bar authorities, but also admits

that the “snitch” rule is widely ignored by all attorneys. Further, it would be diffi cult to dis-

tinguish incompetence from trial tactics in some cases. The virtues that apply are justice

and honesty, and if the attorney’s actions seem to be offending the system of justice, it is

the prosecutor’s duty to bring it to the attention of the judge.

Admitting that the virtues of courage, honesty, and prudence are only slightly more ab-

stract than the concept of justice, Cassidy urges prosecutors’ offi ces to seek employees who al-

ready exhibit character that displays virtue. Qualifi cations for hiring should include evidence

that the individual is honest and sensitive to others. Further, those working in a prosecutor’s

offi ce should be rewarded for virtuous behavior over and above simply winning cases.

C O N F L I C T S O F I N T E R E S T

A prosecutor should avoid a confl ict of interest with respect to his or her offi cial

duties (Standard 3.1- 3[a]).

About a quarter of chief prosecutors are part time, compared to about half in the early

1990s (Dawson, 1992: 1; Perry, 2006: 2). Obviously, this poses the possibility of a confl ict

of interest. It may happen that a part- time prosecutor has a private practice, and there may

be situations where the duty to a private client runs counter to the duty of the prosecutor

to the public. In some cases, a client may become a defendant, necessitating the prosecu-

tor to hire a special prosecutor. Even when there are no direct confl icts of interest, the

pressure of time inevitably poses a confl ict. The division of time between the private prac-

tice, where income is generated by the number of cases and hours billed, and prosecuting

cases, where income is fi xed no matter how many hours are spent, may result in a less

energetic prosecutorial function than one might wish.

It is well known that the prosecutor’s job is a good stepping- stone to politics, and

many use it as such. In these situations, one has to wonder whether cases are taken on

the basis of merit or on their ability to place the prosecutor in the public eye and help his

or her career. Populous counties have many assistant district attorneys (ADAs), perhaps

hundreds, and only the district attorney is elected. Many ADAs work in the prosecutor’s

offi ce for a number of years and then move into the private sector. The reason has largely

to do with money. Assistant district attorneys make an average of $40,000 to $60,000 a

year, but in private practice they could make much more than that (R. Cohen, 2001). The

question then becomes: does the career plan to enter private practice as a litigator affect

their prosecutorial decision to take a case to trial?

ASSET FORFEITURE The Racketeer Influenced and Corrupt Organizations Act (RICO) was passed as a tool to help combat organized crime. Among its provisions is

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asset forfeiture, a legal procedure to confi scate property and money associated with or- ganized criminal activity. Once this tactic was approved by the courts, a veritable fl ood of

prosecutions began that were designed, it seems, primarily to obtain cash, boats, houses,

and other property of drug dealers. Making decisions based on the potential for what can

be confi scated rather than the culpability of offenders is a real and dangerous develop-

ment in this type of prosecution.

The origins of civil forfeiture were in the Comprehensive Drug Abuse and Control Act of

1970 and the Organized Crime Control Act of 1970. Both of these laws allowed mechanisms

for the government to seize assets gained through illegal means. Eventually the types of assets

vulnerable to seizure were expanded, including assets intended to be used as well as those

gained by or used in illegal activities. All of the states have passed similar asset forfeiture laws.

The “take” from asset forfeiture increased from $27.2 million in 1985 to $874 million in 1992

(Jenson and Gerber, 1996). Between the early 1990s and the early 2000s, the total amount

of federal forfeiture proceeds shared with state and local law enforcement was $2.5 billion!

(Hartman, 2001) According to one recent source, the U.S. Department of Justice’s Assets

Forfeiture Fund held more than $1 billion in net assets in 2008 (Williams et al., 2010).

There are a number of problematic issues with asset forfeiture. The exclusionary rule

does not apply to civil forfeiture proceedings, so some allege that police are now pursuing

assets instead of criminals, because in a civil proceeding the defendant does not receive

legal aid. A civil forfeiture hearing can take place without any criminal prosecution and

without the alleged criminal being present. Unlike a criminal trial, in asset forfeiture it had

been the case that the government had only to show probable cause, and then the burden

of proof shifted to the individual to prove his or her innocence. This changed when Presi-

dent Bill Clinton signed into law the Civil Asset Forfeiture Reform Act, which shifted the

burden of proof from the claimant to the government (Worral, 2001). Now at least the

presumption of innocence has been put back into place.

asset forfeiture A legal tool used to confi scate property and money associated with organized criminal activity.

in the N E W S Y O U R M O N E Y O R Y O U R C H I L D R E N ?

The small town of Tenaha, Texas, received the wrong kind of publicity in 2009 when an in-

vestigative report revealed that black and Hispanic motorists passing through the town were

stopped and threatened with jail or the loss of their children if they did not hand over large

amounts of money. One man was carrying $8,500 to buy a new car and was pulled over for

going a couple miles per hour over the speed limit. He was taken to jail and told that he would

be charged with money- laundering, but he could leave with no charges if he would sign over

the cash to the city. The district attorney in the town denied any impropriety, arguing that Texas

law allows the confi scation of money and personal property used in a crime. It was this same

prosecutor who threatened another couple passing through town that their children would be

taken away by social services if they did not sign over $6,000 they were carrying. CNN reporters

discovered that the prosecutor’s offi ce wrote a $10,000 check from the asset forfeiture account

to a police offi cer who stopped many of the people, for “investigative costs.” The scandal has

spurred the Texas legislature to look at tightening the asset forfeiture law to prohibit the type of

property waivers in return for no charges fi led that were used in Tenaha.

SOURCE: Tuchman and Wojleck, 2009.

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Perhaps one of the most troubling aspects of civil forfeiture is that third parties are

often those most hurt by the loss. For example, the spouse or parents of a suspected drug

dealer may lose their home. In one of the most widely publicized forfeiture cases, a man

solicited a prostitute; the state instituted proceedings and was successful in seizing the car

he was driving when he solicited the prostitute—which was, in fact, his wife’s car! This

case received so much press because the Supreme Court ruled that no constitutional viola-

tion occurred with the forfeiture, even though his wife had nothing to do with the criminal

activity. Another case that received a great deal of media attention was that of a man who

lost his expensive motorboat when one marijuana cigarette was found on it. These and

other uses of asset forfeiture have spurred reforms and court decisions that are curtail-

ing its use to some extent. However, asset forfeiture clearly has become an almost indis-

pensable source of revenue for law enforcement and the courts (Worral, 2001). The In the

News box presents a confl ict where prosecutors in one small town were evidently acting as

revenue agents for the town.

P L E A B A R G A I N I N G

A prosecutor should not knowingly make false statements or representations as

to fact or law in the course of plea discussions (Standard 3.41[c])

As discussed earlier, there are serious ethical concerns over the practice of plea bargain-

ing. In jurisdictions that have determinate sentencing, plea bargaining has become “charge

bargaining” instead of sentence bargaining. Most conclude that plea bargaining, even if

not exactly “right,” is certainly effi cient and probably inevitable. Should we measure the

morality of an action by its effi ciency? This effi ciency argument is similar to the argument

used to defend some deceptive investigative practices of police. If the goals of the system

are crime control or bureaucratic effi ciency, plea bargaining makes sense. If the goals of

the system are the protection of individual rights and the protection of due process, plea

bargaining is much harder to justify. Obviously, plea bargaining would fail under the cat-

egorical imperative, for the individual is treated as a means in the argument that plea bar-

gaining is good for the system.

Arguments given in defense of plea bargaining include the heavy caseloads, limited

resources, legislative over- criminalization, individualized justice, and legal problems of

cases (legal errors that would result in mistrials or dropped charges if the client didn’t

plead) (Knudten, 1978: 275). If we concede that plea bargaining can be justifi ed, there

are remaining ethical problems concerning specifi c practices relating to it. Only 36 per-

cent of chief prosecutors reported that explicit criteria for plea bargains were in place in

1990 (Bureau of Justice Statistics, 1992). Guidelines providing a range of years for certain

types of charges would help individual prosecutors maintain some level of consistency

in a particular jurisdiction. Plea bargaining continues to be prevalent across the United

States; felony defendants are 20 times more likely to plead than go to trial, and 86 percent

of federal cases are resolved with a plea bargain (Hashimoto, 2008: 950). See the Policy

Box for a critique of plea bargaining.

Should prosecutors overcharge—that is, charge at a higher degree of severity or press

more charges than could possibly be sustained by evidence—so they can bargain down?

Should prosecutors mislead defense attorneys about the amount of evidence or the kind of

evidence they have or about the sentence they can offer to obtain a guilty plea? Gershman

(1991) documents instances of prosecutors engaged in false promises, fraud, misrepresen-

tation of conditions, deals without benefi t of counsel, package deals, and threats during

plea bargaining. Critics contend that prosecutors hold all the cards in plea bargaining.

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Another discussion is whether the prosecution should have to share exculpatory evi-

dence (facts that support innocence) with the defense before a plea. In Brady v. Mary-

land (373 U.S. 83[1963]), the Supreme Court held that the prosecution must share any

exculpatory information with the defense that is material to the case (which means if it

would affect the outcome of the trial) when they ask for it, but it is unclear whether such

a requirement applies pre- plea or only before trial. Legal observers predict that the Court

would not apply Brady to pre- plea negotiations because the legal rationale is fairness of

trial, not voluntariness of plea. In fact, U.S. attorneys and some state prosecutors routinely

require the defendant to waive Brady rights as part of a plea arrangement. Obviously such

information is important in order to make the decision to plead guilty or not. Prosecutors

resist the interpretation of Brady that requires them to provide the defense with exculpa-

tory evidence before a plea because they lose bargaining power. Proponents of pre- plea

discovery argue that it violates due process to allow a defendant to think there is no excul-

patory evidence when, in fact, there is (Hashimoto, 2008).

M E D I A R E L A T I O N S

The prosecutor has an important relationship with the press. The media can be enemy

or friend, depending on how charismatic or forthcoming the prosecutor is in interviews.

Sometimes cases are said to be “tried in the media,” with the defense attorney and the

prosecutor staging verbal sparring matches for public consumption. Prosecutors may re-

act to cases and judges’ decisions in the media, criticizing the decision or the sentence and,

in the process, denigrating the dignity of the system. More often, the defense attempts to

sway the press to a sympathetic view of the offense, which is easier to accomplish during

prosecutorial silence.

In many of the celebrated criminal cases of the past and today, the prosecutor and

defense utilized the media to promote their version of events. The Sam Sheppard case

The practice of exchanging a reduced charge or a reduced sentence for a guilty plea is widespread. Although some dis- agree with the practice and say it leads to innocent people pleading guilty and a reduction in the integrity of the sys- tem, most argue that the system couldn’t work without the practice. Also, proponents argue that it is ethical to give the offender something in exchange for not putting the state to the expense of a trial.

Law U.S. Supreme Court opinions have legitimated the use of plea bargaining. They have held that prosecutors and judges must abide by the agreements made and that defendants cannot turn around and claim afterward that the exchange was unfair. The Supreme Court has also allowed prosecu- tors to threaten harsher sentences if the defendant does not plead.

Policy Different prosecutors’ offices handle plea bargaining dif- ferently. Some have guidelines, and others leave it to the prosecutor’s discretion. In general, there are informal offi ce policies so that some offi ces give more generous offers than other jurisdictions do. Plea bargaining is something that is covered in the training of new prosecutors.

Ethics Prosecutors’ ethical issues with plea bargaining include whether to overcharge to get someone to plead or to lie about how much evidence there is. Defense attorneys’ ethi- cal issues include the extent to which they will try to con- vince individuals to plead if they swear they are innocent. Judges have ethical issues as well, in that they do not have to accept a plea in a case where they do not believe evidence is suffi cient to uphold the verdict.

Plea BargainingPOLICY ISSUES

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(supposedly the case that spurred the idea for The Fugitive television series and movie)

was the fi rst one to illustrate the power of the media and related misconduct by the pros-

ecution, such as discussing evidence with reporters that could not be admitted at trial.

The media storm was actively encouraged by the prosecutor and, ultimately, led to the

Supreme Court ruling that due process had been violated (Kirchmeier et al., 2009).

ABA Model Rule 3.6(b) is a prohibition against out- of- court statements that a reason-

able person should expect would have a substantial likelihood of materially prejudicing a

proceeding. Defense attorneys might be expected to make statements to exonerate their cli-

ent and disparage the state’s case, but prosecutors’ statements have a greater ring of authority.

The rule specifi es that no statements should be given involving any of the following topics:

The character, credibility, reputation, or criminal record of a party, suspect, or •

witness

The identity of a witness •

The expected testimony of a party or witness •

The performance or results of any test or examination •

The refusal of any party to submit to such tests or examinations •

The identity or nature of physical evidence •

Inadmissible information •

The possibility of a guilty plea •

The existence or contents of a confession or an admission •

The defendant’s refusal to make a statement •

An opinion about the guilt or innocence of the defendant or suspect •

A statement that the defendant has been charged with a crime unless it is in the con- •

text that a charge does not mean the party is guilty

The following facts may be disclosed:

The general nature of the claim or charge •

Any information in a public record •

The fact that the matter is being investigated and the scope of the investigation •

The schedule of litigation •

A request for assistance in obtaining information •

A warning of danger •

The identity, residence, occupation, and family status of the accused •

Information to enable the accused’s capture (if at large) •

The fact, time, and place of arrest •

The identity of investigating and arresting offi cers •

The case of the Duke University lacrosse players accused of rape resulted in the pros-

ecutor (Mike Nifong) being disbarred. In this high profi le 2007 case, a stripper alleged

that she was raped by members of the lacrosse team after she was hired to perform at a

party for them. Very early in the case, the district attorney made several public statements

indicating that the athletes were guilty, that just because they were white and rich and the

alleged victim was black and poor, they weren’t going to get away with the crime, and so

on. No doubt the fact that the district attorney was in a hotly contested election had some-

thing to do with his decision to make such public statements so early in the case.

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As the investigation progressed, the victim’s story changed in substantive ways about

who raped her and when it took place. Furthermore, no physical evidence substantiated

her story. Despite this, the district attorney continued to make comments to the media that

the players were guilty. Later, the alibi of one defendant was substantiated by an ATM

camera showing that he was somewhere else when the rape was supposed to have taken

place. Still Nifong did not drop the charges and in fact instructed a lab technician to drop

a sentence from his report indicating that the semen found on the alleged victim contained

the DNA of several unknown males, but not the accused men’s.

Eventually, the state attorney general sent in a special prosecutor to handle the case,

and this prosecutor promptly dropped the charges against the accused college athletes. Ni-

fong was publicly sanctioned and, in an unusually harsh punishment, was disbarred from

the practice of law. Ethical experts argue that Nifong’s actions were egregious. The case

is a good example of why public expressions of guilt are strictly prohibited: the prosecu-

tor gets locked into a position that is diffi cult to back out of. After Nifong had committed

himself to the conclusion that the college men were guilty, he found himself under intense

pressure to pursue the case, even in the face of contradictory evidence (Jeffrey, 2007).

Another prosecutor in the news was U.S. Attorney Johnny Sutton, in the Western Dis-

trict of Texas, when he pursued charges against two border agents after they shot a sus-

pected drug smuggler. The agents, José Compeán and Ignacio Ramos, were sent to prison

for more than 10 years for shooting the unarmed man, violating their use- of- force policies,

and trying to cover up the shooting. During the trial and after the conviction, there was

an outpouring of anger that the prosecutor was “supporting the enemy” rather than our

own agents, especially for pursuing the charge of “use of a fi rearm in the course of another

crime,” which was the basis for the mandatory 10- year sentence under federal sentencing

law. Sutton’s position in pursuing charges was that the agents had broken the law, and no

one is above the law.

During Michael Mukasey’s confi rmation hearings as U.S. attorney general in Octo-

ber 2007, several legislators urged him to commit to an investigation of the case and Sut-

ton’s decision to prosecute (Moscoso, 2007). Although it might have been more politically

popular to drop or reduce the charges against the border agents in the face of extreme

public and political pressure, the prosecutor in this case chose to endure public antipathy

in his decision to pursue prosecution. Most decisions do not generate this degree of public

controversy, but each decision to prosecute begins with a prosecutor choosing whether

and how to pursue charges against suspected offenders. In a fi nal note, one of President

George W. Bush’s last acts in offi ce was to commute the sentences of the two men.

E X P E R T W I T N E S S E S

A prosecutor who engages an expert for an opinion should respect the indepen-

dence of the expert and should not seek to dictate the formation of the expert’s

opinion on the subject (Standard 3- 3.3[a]).

The use of expert witnesses has risen in recent years. Psychiatrists often testify as to the

mental competency or legal insanity of an accused. Criminologists and other social scien-

tists may be asked to testify on topics such as victimization in prison, statistical evidence

of sentencing discrimination, the effectiveness of predictive instruments for prison riots

and other disturbances, risk assessment for individual offenders, mental health services in

prison, patterns of criminality, battered- woman syndrome, and so on (see Anderson and

Winfree, 1987). A whole range of experts in the fi eld of criminalistics also have emerged

as important players in criminal prosecutions. Expert testimony is allowed as evidence

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in trials when it is based on sound scientifi c method (the Daubert standard; this replaced

the Frye standard, which required acceptance in the scientifi c community). Judges apply

this standard, and they can accept or bar such evidence from being offered to the jury

(Giannelli and McMunigal, 2007). When experts are honest in their presentation as to

the limitations and potential bias of the material, no ethical issues arise. However, expert

witnesses may testify in a realm beyond fact or make testimony appear factual when some

questions are not clearly answerable. Because of the halo effect—essentially, when a per- son with expertise or status in one area is given deference in all areas—an expert witness

may endow a statement or conclusion with more legitimacy than it warrants. Those who

always appear on one side or the other may also lose their credibility. For instance, a doctor

who was often used by prosecutors in one jurisdiction during capital- sentencing hearings

became known as “Dr. Death” because he always determined that the defendant posed a

future risk to society—one of the necessary elements for the death penalty. Although this

doctor was well known by reputation to prosecutors and defense attorneys alike, juries

could not be expected to know of his predilection for fi nding future risk and would take

his testimony at face value unless the defense attorney brought out this information during

cross- examination (Raeder, 2007).

The use of expert witnesses can present ethical problems when the witness is used in

a dishonest fashion. Obviously, to pay an expert for his or her time is not unethical, but

to shop for experts until fi nding one who benefi ts the case is unethical, for the credibility

of the witness is suspect. Another diffi culty arises when the prosecutor obtains an expert

who develops a conclusion or a set of fi ndings that would help the defense. Ethical rules

do not prohibit an attorney in a civil matter or criminal defense attorneys from merely

disregarding the information and not giving notice to the opponent that there is informa-

tion that could benefi t his or her case. However, prosecutors operate under a special set

of ethics because their goal is justice, not pure advocacy. Any exculpatory information is

supposed to be shared with the defense; this obviously includes test results and may also

include expert witness fi ndings (Giannelli and McMunigal, 2007). Because much of ex-

pert testimony concerns scientifi c principles that are incomprehensible to laypeople, the

potential for being misled by an expert witness is magnifi ed.

CSI AND THE COURTS For many years, forensic experts have testifi ed regarding fac- tual issues of evidence ranging from ballistics to blood spatter. Television shows such as

CSI contribute to the mystique of the crime- scene investigator as a scientifi c Sherlock Hol-

mes who uses physics, chemistry, and biology to catch criminals. However, the reality is

that some of this “expert” testimony has been called junk science (McRoberts, Mills, and

Possley, 2004). Also, lab examiners who work for police laboratories may exhibit a heavy

prosecution bias that colors their analysis and testimony.

As mentioned in Chapter 6, the FBI and several police departments have had their labs

come under fi re for shoddy practices or biased analyses. The Houston police crime lab has

been investigated and was even closed down for a period of time, and several defendants

have been exonerated by retests of the DNA evidence that convicted them. Criticism of

the lab included poorly trained technicians, lax procedures, shoddy records, overstated

testimony, and the inability to do certain tasks such as separate DNA from mixed samples.

Thousands of cases were eventually reviewed, but because Harris County has sent more

defendants to death row than any other county in Texas, some of those convicted through

tainted evidence may have been executed (Liptak, 2003; Axtman, 2003). One of the cases

is that of Gary Alvin Richard. He was convicted in 1987 of rape and robbery, partially due

to the testimony of a lab examiner who did not reveal evidence that could have exoner-

ated him. Richard was released in 2009, after serving 22 years, when a court threw out his

halo effect The phenomenon in which a person with expertise or status in one area is given deference in all areas.

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conviction based on the evidence that the forensic evidence was hidden from the defense.

Pat Lykos, the Harris County district attorney, was quoted as supporting an independent

crime laboratory separate from the police department to guard against any bias that might

occur with a police- run lab (KTRK, 2009).

The highly respected Virginia state crime lab has also been investigated after outside

experts hired by the defense called into question the DNA analysis that sent a man to

death row. This case is one of several dozen death row cases around the country that are

being reviewed because of potentially faulty, biased, or perjured lab analyst testimony

(Possley, Mills, and McRoberts, 2004). Two other lab scandals—in Oklahoma and in

West Virginia—have led to millions of dollars in settlements for those falsely incarcer-

ated, and forced reviews of hundreds of cases. Joyce Gilchrist, a forensic chemist from

Oklahoma, was implicated in several DNA exonerations for her hair analysis. In one case,

it was proven she knew her testimony was false because she hid the true results from the

defense (Raeder, 2007). In Montana, there was a petition to the state supreme court to

undertake independent testing of hundreds of cases handled by a lab examiner who was

responsible for three false convictions based on faulty hair analysis (Possley, Mills, and

McRoberts, 2004). It strains belief to assume that prosecutors in these cases did not know

that the testimony of these examiners was questionable.

Even when mismanagement, shoddy practices, and untrained staff aren’t the issue,

many areas of the science of criminalistics seem to be more in the nature of art than science. Criminalists have been defi ned as professionals who are involved in the “scien-

tifi c discipline directed to the recognition, identifi cation, individualization, and evalua-

tion of physical evidence by the application of the natural sciences to law- science matters”

(Lindquist, 1994: 59). Questions have been raised about the reliability of virtually all areas

of this science:

Hair analysis • . A Justice Department study of 240 crime labs found hair- comparison

error rates ranging from 28 to 68 percent. Hair- comparison testimony is so suspect

that it is outlawed in Michigan and Illinois (Hall, 2002). In Montana, a chief lab an-

alyst collected more than 5,000 hair samples and claimed a statistical analysis that

could identify a person’s hair from the sample with an error rate of 1 in 1,000. A panel

of experts disagreed, and convictions based on this analyst’s testimony have been

overturned (Possley, Mills, and McRoberts, 2004).

Arson investigation • . Arson “science” started when arson investigators used their expe-

rience with thousands of fi res, confessions of suspects, and crude experiments to iden-

tify burn patterns and accelerants. “Facts” such as “fi res started with accelerants burn

hotter” have been disproved. So- called “pour patterns” that have been used as proof of

arson have now been associated with a natural phenomenon called “fl ashover,” which

occurs when smoke and gas in a room build to a point where the entire room explodes

in fl ames, consuming everything. The fl ashover effect also calls into question the tra-

ditional belief that if the fl oor showed burning, it was arson, because heat rises and the

fl oor shouldn’t show burning unless an accelerant is used (Posseley, 2004).

In the Cameron Todd Willingham case that opened this chapter, the Innocence

Project commissioned a panel to study some of the arson “facts” that were presented

in the trial, and the study proved that many were not supported. For instance, glass

cracking in a spidery fashion may not be because the fi re was started with an acceler-

ant; it is just as likely to be caused by water sprayed by fi refi ghters. There also was

no way to prove that the fi re has multiple origins. However, fi re investigators are still

testifying in court based on science that is called by some “a hodgepodge of old wives’

tales” (Tanner, 2006).

criminalistics The profession involved in the application of science to recognize, identify, and evaluate physical evidence in court proceedings.

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Ballistics testing • . Recently there have been questions as to the accuracy of the chemi-

cal composition tests the FBI labs use to match bullets. This method has been

used in thousands of cases to tie suspects to the bullet retrieved at the crime scene.

The theory is that the chemical composition of bullets in a single production batch

is similar and that bullets from a single batch are different from those from other

batches. Bullets owned by the suspect are compared to the crime- scene bullet, and

the expert testifi es as to whether the crime- scene bullet came from the suspect’s box

of remaining bullets.

Independent scientific studies by the National Research Council challenged the

method because tests indicated a large margin of error; chemical compositions between

batches are more similar than believed, and the chemical composition within a batch can

vary quite a bit depending on a number of factors. These fi ndings indicated that ballis-

tics experts from the FBI lab and other labs have testifi ed in a way that greatly overstated

the importance of the chemical matches (Piller and Mejia, 2003; Piller, 2003). Although

the FBI stopped comparative bullet lead analysis in 2004 in response to these fi ndings,

FBI lab experts were allowed to testify in cases that had already been analyzed through

2005. Also, the FBI has been criticized for not releasing a list of cases in which the testi-

mony of lab examiners was given on the faulty science so the case could be reviewed to

see if an innocent person was convicted on the basis of the results (Post, 2005).

In one New Jersey case, the state supreme court threw out a murder conviction that

had been based on the testimony of an FBI ballistics expert using the faulty testing

method (Post, 2005). In a North Carolina case, a former state supreme court chief

justice took up the case of Lee Wayne Hunt, who has been in prison for 22 years for

a shooting based on FBI testimony on comparative lead analysis and the testimony

of a co- defendant. Recently the co- defendant’s attorney came forward and said the

man confessed to him that he had lied about Hunt’s involvement in return for a plea

deal. The attorney came forward only because his former client had died (J. Solomon,

2007a). Arguably, Hunt may not have been convicted but for the ballistics testimony

that supported the co- defendant’s perjury.

DNA • testing. The use of DNA evidence has risen dramatically in recent years. Based

on the scientifi c principle that no two individuals possess the same DNA (deoxyri-

bonucleic acid), a DNA “fi ngerprint” is analyzed from organic matter such as semen,

blood, hair, or skin. Whereas a blood test can identify an individual only as being

a member of a group (e.g., all those with blood type A positive), DNA testing can

determine, with a small margin of error, whether two samples come from the same

individual. This has been described as the greatest breakthrough in scientifi c evidence

since fi ngerprinting, but there are problems with its use. Careless laboratory proce-

dures render results useless, and there are no enforced guidelines or criteria for foren-

sic laboratories conducting DNA tests.

Labs often have only a small amount of organic matter to extract DNA. They use

a procedure whereby the incomplete DNA strand is replicated using computer-

simulation models. This procedure allows a DNA analysis of the tiniest speck of

blood or skin, but critics argue that it opens a door to a margin of error that is un-

acceptable. Without vigorous investigation and examination of lab results from the

opposing counsel, incorrect DNA test results or poorly interpreted results may be en-

tered as evidence and used to determine guilt or innocence.

A different problem has emerged when DNA testing is done and the results help

the defense by excluding the defendant from possible suspects. In these cases,

prosecutors have an ethical duty to provide test results to the defense; however, there

are cases where this is not done.

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Fingerprint analysis • . Most citizens assume that fi ngerprint analysis is infallible, that all

criminals’ fi ngerprints are accessible through computer matching technology, and that

fi ngerprint technicians can retrieve fi ngerprints from almost any surface and can use

partials to make a match. Unfortunately, the reality is far from what is seen on televi-

sion. There have been attempts to undertake a comprehensive analysis of how much

of a partial print is necessary to have a reliable match—an objective that is resisted by

professional fi ngerprint examiners. Most fi ngerprints are partials and smudged. Some

studies show that about a quarter of matches are false positives.

In 2006, the federal government settled a suit for $2 million after three FBI fi nger-

print examiners mistakenly identifi ed the fi ngerprint related to a terrorist bombing in

Madrid, Spain, as belonging to an Oregon lawyer. European fi ngerprint analysts dis-

covered the error (CBS/AP, 2006). Standards do not exist for determining how many

points of comparison are necessary to declare a match (Mills and McRoberts, 2004).

Bite mark comparison • . There is no accurate way to measure the reliability of bite mark

comparisons, yet forensic dentists have given testimony that resulted in convictions

of several innocent defendants, and several individuals exonerated through DNA evi-

dence were convicted largely on evidence of bite mark identifi cation. Evidently, the

experts sometimes can’t even agree if an injury is a bite mark at all. One study indi-

cated that identifi cations were fl awed in two- thirds of the cases. Even their own organi-

zation cautions that analysts should not use the term “match,” because the technique

is not exact enough, but many do. Contrary to popular belief, a bite mark is not just

like a fi ngerprint. Teeth change over time, and the condition of the skin or other sub-

stance holding the bite mark changes the indentation patterns of teeth (McRoberts

and Mills, 2004). So- called experts have confused juries by confabulating dentition

and bite marks since there is general agreement that identity can be established within

reasonable parameters of error by comparing dental records to a full set of teeth (i.e.,

comparing dental records to a corpse). However, bite marks only typically involve the

front teeth, and there is no evidence to indicate that bite marks are similar every time;

furthermore, there are no standards to guide agreement that there is a match. Critics

argue that bite mark testimony does not meet the Daubert standard (evidence must

be from a reliable scientifi c methodology), but courts let the evidence in because it is

presented as merely identifi cation, not science (Beecher- Monas, 2009).

Scent identifi cation • . Also not a science is scent identifi cation. A Texas deputy has been

both lauded and reviled for using his dogs to track criminals and identify them through

their smell. Keith Pikett, now retired from the Fort Bend County Sheriff ’s Department,

was in demand along with his dogs for fi nding and identifying criminals through “scent

lineups.” The dogs evidently could identify criminals through scents left at the scene or

on property. In some cases, the dogs led the police from the crime scene to the home

of the alleged offender, even though the house was miles away. Critics contend that

Pikett gave the dogs unconscious clues to tag the correct suspect, and, in other cases,

there was no way the dogs could do what Pikett says they did. There are several law-

suits pending, both for civil damages and appeals from convictions (Lindell, 2010).

In 2009, the National Academy of Sciences issued a 225- page report on forensics and crime

labs across the country. It was a highly critical report, incorporating the descriptions of many

cases of innocent people convicted because of faulty scientifi c evidence. The authors concluded

that crime labs lacked certifi cation and standards, and that many forensic disciplines, including

most of those described above, were not grounded in classic scientifi c methods; DNA analysis

was the exception. Much of the problem is in pattern recognition (of fi ngerprints, bite marks,

tool marks, etc.). There is no agreed upon scientifi c standard for when to conclude a match,

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and there are human errors introduced when the examiner knows the evidence is obtained

from a suspect. The report calls on Congress to establish a national institute of forensic science

to accredit crime labs and require that analysts be certifi ed (Fountain, 2009).

Yet the scandals continue. In New York, the inspector general released a report in Decem-

ber 2009 that detailed the shoddy management and protocols in the state police crime lab.

One examiner had been working there for 15 years with no training; he didn’t even know how

to use the microscope he supposedly used to conduct trace evidence and hair analysis. He evi-

dently made up reports using a “cheat sheet” left by a former supervisor. This examiner com-

mitted suicide, but before his death implicated many others in the lab and accused supervisors

of countenancing widespread malfeasance and report- fudging to aid prosecution efforts. Crit-

ics argue that the only way crime labs can be objective is to remove them from police depart-

ments or state police and use private, independent laboratories (Balko, 2009; Bauman, 2009).

A slightly different issue is when prosecutors use high- tech aids to present their case.

Computer simulations, animations, and other devices can bring the alleged crime to life

for the jury, and such technology is extremely powerful. It is also true that because it is so

powerful and persuasive, its use should be strictly controlled with the requirements of ac-

curacy, relevance, and avoidance of unfair prejudice (Aronson and McMurtrie, 2007).

Z E A L O U S P R O S E C U T I O N

Th e d u t y o f t h e p r o s e c u t o r i s t o s e e k j u s t i c e , n o t m e r e l y t o c o nv i c t

(Standard 3- 1.2[c]).

Just as the defense attorney is at times overly zealous in defense of clients, prosecutors may

be overly ambitious in order to attain a conviction. The prosecutor, in preparing a case, is

putting together a puzzle, and each fact or bit of evidence is a piece of that puzzle. Evidence

that doesn’t fi t the puzzle is sometimes conveniently ignored. The problem is that this type

of evidence may be exculpatory, and the prosecutor has a duty to provide it to the defense.

Both defense attorneys and prosecutors sometimes engage in tactics such as using wit-

nesses with less than credible reasons for testifying, preparing witnesses (both in appear-

ance and testimony), and “shopping” for experts. Witnesses are not supposed to be paid,

but their expenses can be reimbursed, and often this is incentive enough for some people

to say what they think the prosecutor wants to hear. A tool in the prosecutor’s arsenal that

the defense attorney does not have is that prosecutors can make deals to reduce charges in

return for favorable testimony. The use of jailhouse informants is a particularly problem-

atic issue. Jailhouse informants are those individuals who come forward to testify that a

defendant confessed to them or said something that was incriminating. Often the “pay” for

such testimony is a reduction in charges, but it could be reduced sentencing or being sent

to a particular prison, or any other thing of value to the informant. It could even be money.

In some cases, such payment is not revealed to the defense, which is problematic because

the defense could use such payment to call into question the credibility of the testimony.

In fact, jailhouse informants’ credibility should always be questioned. It is frequently im-

plicated in wrongful convictions, especially when prosecutors withhold the fact that they

have made a deal with the person for a reduced sentence (Kirchmeier et al., 2009). Raeder

(2007) points out that jailhouse informants not only respond to solicitations from police

and prosecutors, sometimes they are entrepreneurs who ply their trade against any cell-

mate or casual conversationalist they meet in the jail yard. She argues for ethical standards

whereby prosecutors should use such informants only when they can point to specifi c fac-

tors that support the truthfulness of the testimony. She also points out that Los Angeles

instituted such a policy and dramatically cut down the use of jailhouse informants with no

deterioration of its conviction rate (Raeder, 2007).

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?? DILEMMA: You are a prosecutor who is preparing a case against a defendant accused of a brutal rape and murder of a young child. The suspect lived in the same neighborhood as the child and is a registered sex offender. He says he didn’t do it,

of course, but has no alibi for the time in question, and you know in your gut that he did the crime. Unfortunately, you have no

scientifi c evidence that incriminates him. You do have one witness who thinks she saw his car close to the playground where the

child was taken, and you can prove he didn’t show up for work the afternoon of the abduction. You are hoping that someone in the

playground will be able to make a positive ID. One day you receive a call from the detective on the case. He tells you that there is

a man in the jail cell with the defendant who says that the defendant confessed to him. The informant is willing to testify to it, but

he wants a reduction in his own sentence. You meet with the man, who is a drug offender, and sure enough, he says that the de-

fendant “spilled his guts” and told him that he took the little girl and killed her when she wouldn’t stop screaming. You feel you’ve

got the conviction sewn up. You proceed to trial. The second morning of the trial, you fi nd out that your star witness had made a

similar deal in his last drug case in a different jurisdiction and received probation for a substantial amount of meth. Since the trial

has begun, double jeopardy applies. Do you reveal the information to the defense? Do you put him on the stand and let the jury

decide whether to believe him or not?

LAW There is no law prohibiting the use of jailhouse informants. The Model Rules, which have the force of law, dictate that prosecutors cannot put false information on the

stand, but if you were the prosecutor, would you tell yourself that you don’t “know” the

informant is lying and, therefore, you are not violating the rule? On the other hand,

the Model Rules and Brady motions do indicate that the information about the prior

case be given to the defense since it could be considered exculpatory. It certainly calls

into question the credibility of the informant.

POLICY As mentioned above, Los Angeles has an offi ce policy that discourages the use of jailhouse informants. Most jurisdictions do not, however, although they may have an

offi ce policy of not taking a case to trial that hinges on such testimony. All offi ces have pol-

icies that dictate responding to Brady motions, but some offi ces also have an “open fi le”

policy that allows the defense to have access to any information the prosecutor has except

the identity of confi dential informants or other information that needs to be kept secret.

ETHICS Utilitarian ethics tolerate actions that lead to a good end, but, in this case, there is not much evidence to indicate that the defendant is guilty so it is questionable that con-

viction is even a good end. Therefore, any “bad means” (such as keeping the informa-

tion from the defense) may result in a bad end as well. The more diffi cult ethical issue is

whether to continue with the trial at all. Juries are loath to let a murdering sex offender go

free and are likely to believe that if someone is prosecuted, they are more than likely guilty.

Therefore, even if you provide the information to the defense, it is possible that they will

be unable to undercut the credibility of the informant and the defendant will be found

guilty. Utilitarian ethics may support such an action if it results in the greatest benefi t for

the majority. Ethical formalism may not, however, if one interprets a prosecutor’s duty as

pursuing justice, since a case dependent on a witness who is probably lying is contrary to

due process. This explains why jurisdictions are moving away from using jailhouse infor-

mant testimony unless it can be corroborated.

Prosecutors want to win, and there are few checks or monitors on their behavior

(Elliott and Weiser, 2004). Noble- cause corruption is when prosecutors do “anything it

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takes” to win a case. This can take the form of persistent references to illegal evidence,

leading witnesses, nondisclosure of evidence to the defense, appeals to emotions, games

and tricks, and so on. One prosecutor admitted that early in his career he sometimes made

faces at the defendant while his back was to the jury and the defense attorney wasn’t look-

ing. The jury saw the defendant glowering and looking angry for no discernible reason,

which led to a negative perception of his sanity, temper, or both. Of course, the defense

attorney may engage in the same type of actions, so the contest becomes who has better

tricks rather than who has the better case.

QUOTE && QUERY There are a couple of golden rules that I have picked up over the years….

First, never say anything to a witness that you would not want to see on the

front page of the New York Times.…

The second rule … is to never do anything if you would not feel comfortable

explaining to a Second Circuit judge why you did it.

—SOURCE: PATRICK FITZGERALD, U.S. ATTORNEY, 2009.

? Do you think that defense attorneys also have a similar set of rules? Explain why or why not.

Ethical Issues for Judges Perhaps the best- known symbol of justice is the judge in a black robe. Judges are expected

to be impartial, knowledgeable, and authoritative. They guide the prosecutor, defense at-

torney, and all the other actors in the trial process from beginning to end, helping to main-

tain the integrity of the proceeding. This is the ideal, but judges are human, with human

failings.

There are a number of problematic issues in the perceived objectivity of judges. For

instance, 87 percent of judges are elected, and when they have to win elections, judges

must solicit campaign contributions. These monies are obtained most often from attor-

neys, and it is not at all unusual for judges to accept money from attorneys who practice

before them. In fact, quite often the judge’s campaign manager is a practicing attorney.

Does this not provide at least the appearance of impropriety? This situation is exacerbated

in jurisdictions that use court appointments as the method for indigent representation. In

these jurisdictions judges hand out appointments to the same attorneys who give money

back in the form of campaign contributions or have other ties to the judge. Obviously, the

appearance, if not the actuality, of bias is present in these situations.

In some cases, large corporations and special interest groups fund judicial campaigns.

One might expect that judges would recuse themselves when these corporations have

cases before the judge, but this does not always happen, as with Brent Benjamin, who

ran for the supreme court in West Virginia funded by $3 million from Massey Energy, a

coal company. The amount far exceeded the total of other contributions in his campaign.

When an appeal of a case came before the court involving the company, he did not recuse

himself, and he, along with the majority of the court, overturned a $50 million judgment

against the company. In an appeal to the U.S. Supreme Court concerning the refusal of the

judge to recuse himself, the Court held that the facts of the case violated a proportional-

ity standard to be used to determine when a single contribution to a campaign might give

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rise to a confl ict of interest. The Supreme Court sent the case back to the West Virginia

courts for rehearing and, with only one original judge sitting, the West Virginia court ruled

4 to 1 again in favor of the coal company (Caperton v. Massey, 129 S. Ct. 2252 [2009]). The

Massey Coal Company was in the news again in the spring of 2010 when 29 miners died in

an explosion. Investigations over safety violations are underway.

The practice of awarding indigent cases to one’s friends or for reasons other than

qualifi cations may not only be unethical but also may have serious consequences for the

defendant. The Texas Bar Association (2002) reported major problems in the system of

appointing attorneys for indigent defendants. The bar association’s investigation found

that some lawyers who received appointments had been disciplined by the state bar and

there was no system for monitoring the quality of the representation. In 2006, a major

newspaper ran a series of reports after an investigation of the system of appointing law-

yers for capital habeas corpus appeals for death row inmates. The investigation found that

some lawyers turned in ridiculously short appeals that did not cover even the most obvi-

ous points and/or were poorly written (Lindell, 2006a, 2006b, 2006c).

In one egregious case, an attorney turned in a brief in 2003 that was basically cop-

ied from one letter from the inmate, complete with nonsensical arguments, grammati-

cal lapses, and misspelled words. For this, the attorney billed the state for about $23,000,

claiming 220 hours of work. In another writ, the attorney copied facts that were from an-

other case and didn’t apply to the case under appeal (Lindell, 2006a, 2006b). There was

no system to evaluate the competence of the attorneys seeking appointments concerning

the habeas corpus petitions (Lindell, 2007c). When habeas corpus appellate attorneys are

competent, they may literally save the lives of innocent men and women; thus, who the

judge appoints is an extremely important decision.

U S E O F D I S C R E T I O N

As we have learned in several previous chapters, discretion refers to the authority to make

a choice between two or more actions. Judges’ discretion occurs in two major areas: inter-

pretation of the law and sentencing.

INTERPRETATION OF LAW AND RULES Judges are like the umpire in an athletic contest; they apply the rules and interpret them. Although rules of law are established in

Rules of Criminal Procedure and case law, there is still a great deal of discretion in the

interpretation of a rule—what is reasonable, what is probative, what is prejudicial, and

so on. A judge assesses the legality of evidence and makes rulings on the various objec-

tions raised by both the prosecutors and the defense attorneys. A judge also writes the ex-

tremely important instructions to the jury. These are crucial because they set up the legal

questions and defi nitions of the case.

One of the clearest examples of judicial discretion is in the application of the exclu-

sionary rule, which basically states that when the evidence has been obtained illegally, it

must be excluded from use at trial. The exclusionary rule has generated a storm of con-

troversy because it can result in a guilty party avoiding punishment because of an error

committed by the police. The basis for the exclusionary rule is the right to due process.

The ideals of justice reject a conviction based on tainted evidence even if obtained against

a guilty party. A more practical argument for the exclusionary rule is that if we want police

offi cers to behave in a legal manner, we must have heavy sanctions against illegalities. Ar-

guably, if convictions are lost because of illegal collection of evidence, police will reform

their behavior. Actual practice provides little support for this argument, though. Cases lost

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on appeal are so far removed from the day- to- day decision making of the police that they

have little effect on police behavior. In the succeeding years since the cases that recognized

the rule, such as Mapp v. Ohio, 367 U.S. 643 (1961), several exceptions to the exclusion-

ary rule have been recognized. Judges can now rule that the illegally obtained evidence be

allowed because of public safety (New York v. Quarles, 467 U.S. 649 [1984]), good faith

(U.S. v. Leon, 468 U.S. 897 [1984]), or inevitable- discovery exceptions (Nix v. Williams

467 U.S. 431 [1984]).

In addition to applying the exclusionary rule, the judge is called upon to decide vari-

ous questions of evidence and procedure throughout a trial. Of course, the judge is guided

by the law and legal precedent, but in most cases each decision involves a substantial ele-

ment of subjectivity. For instance, a defendant may fi le a pretrial petition for a change of

venue. This means that the defendant is arguing that public notoriety and a biased jury

pool would make it impossible to have a fair trial in the location where the charges were

fi led. It is up to the judge, however, to decide if that indeed is true or whether, despite pre-

trial publicity, the defendant will be assured of a fair trial. If judges are biased either toward

or against the prosecution or defense, they have the power to make it diffi cult for either

side through their pattern of rulings on objections and evidence admitted. Even a personal

dislike of either lawyer may be picked up by jury members, and it does affect their attitude

toward that side’s case.

Despite the belief that simply applying the rules will lead to the right conclusion or

decision, the reality is that judges and justices are simply human, and real biases infl uence

their decision making. The suspicion that some appellate court judges decide where they

want to end up and make up the argument to get there is one that is hard to deny after a

careful reading of some case decisions. At other times, appellate decision making seems to

refl ect a complete absence of “equity” thinking (basic fairness) in place of hyper- technical

application of rules. Petitions that are denied because a deadline was missed or appeals

denied because they were not drawn up in the correct fashion are examples of this appli-

cation of discretion.

In one case in Texas, the chief justice of the court of criminal appeals refused to ac-

cept an appeal on a death row case because the lawyers could not file it before 5 p.m.

This was despite the fact that several justices were working late that night in case of late

fi lings, and the attorneys had asked for permission to fi le it late because they were having

computer problems. Sharon Keller, the chief justice, instructed her clerk via telephone to

deny the request and close the offi ce, and the prisoner was executed. The basis of the ap-

peal was that the method of execution (lethal injection) was cruel and unusual, and the

Supreme Court of the United States, only a week later, accepted a writ of certiorari on this

very issue, indicating there was a good chance that the appeal would have resulted in at

least a hearing on the merits. In fact, two days later, a second appeal by a different inmate

was granted, while in the case where the appeal was denied for being late, the man was

executed. This hyper- technical application of rules was considered so wrong that 19 attor-

neys fi led an ethics complaint against Keller for her actions, alleging that she violated the

bar association rules that judges preserve the integrity of the judiciary and act in ways that

promote public confi dence, and a rule that requires judges to allow interested parties to

be heard according to law. The State Commission on Judicial Conduct issued a ruling that

resulted in no sanctions for Keller, although she was admonished. In 2010, she received a

$100,000 fi ne in an unrelated case for not reporting $3.8 million in income and property

on her fi ling papers for election. She is appealing both decisions (Lindell, 2007c, 2010b).

An attorney’s ethical lapse in performing his or her duties is sometimes compounded

by judges’ adhering to the “letter” rather than the spirit of the law. An example is the case

of Johnny Conner, who was convicted of robbery. His trial attorney neglected to bring

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forward evidence in which the witnesses described the robber as “sprinting” away from

the scene, but Conner had nerve damage in his leg and could only limp. The appellate at-

torney brought up the issue on appeal, but he neglected to attach any medical evidence, so

the appellate judges refused to consider it as new evidence. The attorney general of Texas

later argued that, regardless of the factuality of the evidence, it should not be allowed in the

federal appeal because it was not admitted in the state appeal (Lindell, 2006c). Johnny

Connor was executed in August 2007.

In another case, a federal appeals court refused to hear the appeal of a condemned

man based on his mental retardation because his lawyer fi led the appeal one day late. The

Supreme Court had already ruled that executing someone with mental retardation was

cruel and unusual, but in an appeal to the Fifth Circuit Court of Appeals, the justices ruled

that the appeal did not have to be heard because of the late fi ling. A huge outpouring of

criticism of the court focused on the distinct possibility that a man would be executed

even though the Supreme Court had ruled that it would be unconstitutional because of his

mental retardation. In an unusual about- face, the Fifth Circuit conducted a re- hearing and

changed its opinion (Liptak, 2005b).

Judges may simply apply black- and- white rules, or they may attempt to enact the

“spirit of justice.” In June 2010, the majority of the Supreme Court decided that basic

fairness and the spirit of justice should trump black- and- white rules. An inmate missed

the deadline for an appeal because his attorney did not communicate with him for years

despite the inmate’s numerous and increasingly frantic written pleas to fi le the appeal.

He even provided the attorney with the information necessary to fi le it. He also asked the

Florida court to replace the attorney, but they refused, and when he fi led a pro se brief fi ve

weeks late, they rejected it. The federal circuit court agreed that the circumstances were

not “extraordinary”; therefore, the missed deadline must result in rejecting the appeal re-

gardless of the merit of the appeal. The Supreme Court disagreed, arguing that due pro-

cess is more important than what Justice Breyer described as “the evils of archaic rigidity”

(Holland v. Florida, No. 09- 5327, June 14, 2010). When should judges ignore the rules,

and when should they follow them?

SENTENCING The second area of judicial discretion is in sentencing. Judges have an awesome responsibility in sentencing offenders and, yet, receive little training to guide

their discretion. It is also true that judges’ decisions are scrutinized by public watchdog

groups and appellate- level courts. One wonders if judges actually aren’t overly infl uenced

in their sentencing by the current clamor for strict punishments, but if judges are supposed

to enact community sentiment, perhaps it is proper for them to refl ect its infl uence. Does

justice dictate a certain punishment for a certain type of offender, or does the defi nition of

what is just depend on community opinion of the crime, the criminal, and the time?

Evidence indicates that judges’ decisions are actually based on personal standards, for no

consistency seems to appear between the decisions of individual judges in the same commu-

nity. Hofer, Blackwell, and Ruback (1999) point out that most of the disparity in sentencing in

the federal system before the advent of the sentencing guidelines occurred because of different

patterns exhibited by individual judges. They cite studies that found, for instance, that judges’

sentences were infl uenced by whether they had been prosecutors and by their religion.

The other extreme is when judges have no discretion in sentencing. Federal Sentencing Guidelines were written by Congress requiring the judge to impose a spe- cifi c sentence unless there was a proven mitigating or aggravating factor in the case. The

Sentencing Guidelines did reduce disparity among federal judges (Hofer, Blackwell, and

Ruback, 1999); however, the guidelines received a great deal of criticism because of the

draconian sentences applied to drug crimes. Racial bias was alleged in that the sentence

Federal Sentencing Guidelines Mandated sentences created by Congress for use by judges when imposing sentence (recent Supreme Court decisions have overturned the mandatory nature of the guidelines).

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for crack cocaine crimes was 100 times longer than sentences for powder cocaine crimes,

even though these two drugs are chemically exactly the same. The argument supporting

this disparity was that crack cocaine was more associated with other crimes and more ad-

dictive; however, there was a widespread belief that the disparity was simply racist. African

Americans are much more likely to be convicted of crack crimes, and white Americans are

more likely to be convicted for powder cocaine (Hofer et al., 1999).

Some federal judges, such as J. Lawrence Irving in 1991 and others, were so appalled

by the length of drug sentences as required by the Sentencing Guidelines that they refused

to sentence offenders. Some even quit, refusing to impose the mandated sentences, which

they considered to be ridiculously long and overly punitive in certain cases (Tonry, 2005:

43). In a series of cases, the U.S. Supreme Court has basically invalidated the mandatory

nature of federal sentencing guidelines. First, they ruled that the defendant’s Sixth Amend-

ment rights were violated if the judges used elements to increase the sentence without fi rst

proving such elements in a court of law (United States v. Booker, 125 S.Ct. 1006 [2005]).

Then, they ruled that judges could adjust the sentences downward if it was reasonable to

do so (Kimbrough v. United States, 552 U.S. 85 [2007]). Finally, they extended that ruling

to all federal cases, not just drug cases (Gall v. United States, 552 U.S. 38 [2007]). The

standard to be used to evaluate any legal error in sentencing is an abuse of discretion test

rather than if the sentence was required because of extraordinary circumstances (Barnes,

2007). Finally, in August 2010, President Obama signed into law legislation that reduced

the disparity to 18:1 from 100:1. The new law also eliminated the fi ve- year mandatory

minimum sentence for crimes involving fi ve grams of cocaine or more.?? DILEMMA: You are a judge who is trying a case against a serial killer, accused of killing three people. The prosecu- tion has put on a good case thus far, linking the killer with the victims through carpet fi bers found on one victim that are consis-

tent with the trunk of the suspect’s car, eyewitness testimony that links the suspect with two of the victims shortly before they

went missing, and the suspect’s possession of a ring that was owned by one of the victims. Then the prosecutor attempts to intro-

duce testimony of a police offi cer who arrested the suspect. He is willing to testify that the suspect ran and was chased down by

the two offi cers. After he was handcuffed but before he was read his Miranda rights, in response to the offi cer saying, “You killed

those people?” the suspect said, “I didn’t want to.” The defense attorney objected to the testimony and asked that the confession

be excluded because of the violation of the Fifth Amendment. The prosecutor argues that what the offi cer said was not actually

a question and, therefore, the outburst was spontaneous, or, alternatively, asks you to apply the good faith exception in that the

offi cer’s question “slipped out,” and he didn’t know that the suspect would answer him, or, fi nally, as a third alternative, he asked

you to apply a voluntariness interpretation to Fifth Amendment cases and replace an absolute rule about the Miranda warnings to

one where the absence of Miranda can be excused if the statement is otherwise considered voluntary.

LAW The Supreme Court seems to be less committed to the exclusionary rule than in earlier years and has made case decisions that dramatically reduce the scope of the rule, especially as

it affects the Fifth Amendment. As mentioned above, the law is not absolute in many areas,

and lower court judges often “make law” in developing new interpretations that become the

law when appellate courts agree. It is possible that, given the facts of the case, an appellate court

would allow the statement in as evidence, although it is also possible that they would not.

POLICY Similar to the defense attorney, there are no offi ce or departmental policies that should influence the judge’s decision, but there are policy considerations to consider.

What would happen to police interrogations if judges routinely ignored violations of the

Miranda warning?

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ETHICS Utilitarian ethics supports the exclusionary rule and also its exceptions. The public safety exception, for instance, basically recognizes that if the police offi cer ques-

tioned the suspect for information to protect public safety, not for the gathering of evi-

dence, the absence of the Miranda warning should not bar the use of any incriminating

confession of the suspect. The “end” of public safety is more important than the “end” of

ensuring that the suspects know their rights by giving them the Miranda warning before

questioning them. Excluding tainted evidence disregards short- term effects for more ab-

stract principles—specifi cally, the protection of due process.

Religious ethics doesn’t give us much help unless we decide that this ethical system

would support vengeance and thus would permit the judge to ignore the exclusionary

rule in order to punish a criminal. However, religious ethics might also support let-

ting the criminal go free to answer to an ultimate higher authority, for human judgment

might be imperfect in this case. Egoism would support the decision to let a criminal go

free or not, depending on the effect it would have on the judge’s well- being and future

interests.

Ethical formalism’s emphasis on duty over “ends” would dictate that judges must ap-

ply the law even in diffi cult cases. The rule itself seems to be supported by the categorical

imperative, because one would probably not want a universal rule accepting tainted evi-

dence, despite the possibility of further crime or harm to individuals.

Act utilitarianism would support ignoring the exclusionary rule if the crime was es-

pecially serious as in this case or if there was a good chance the offender would not be

ultimately punished. The utility derived from ignoring the rule would outweigh the good.

However, rule utilitarianism probably does not support the exclusionary rule, for the long-

term effect of undercutting the Miranda warning would be more serious than letting one

criminal go free.

C O N C L U S I O N

In this chapter, we examined how the discretion of defense attorneys, prosecutors, and

judges leads to ethical dilemmas. There are crucial differences in the duties and ethical re-

sponsibilities of defense attorneys and prosecutors. The prosecutor’s goal is justice, which

should imply an objective pursuit of the truth; however, we know that sometimes the only

goal seems to be winning. Judges have their own unique ethical dilemmas, and their dis-

cretion can be understood in the two areas of court rulings and sentencing.

C H A P T E R R E V I E W

1. Describe the ethical issues faced by defense attorneys.

Defense attorneys have ethical issues that arise in the areas of responsibility to the client

(they must defend clients even if they believe they are guilty and whether or not the client

can pay once appointed), confl icts of interest (balancing an individual client against over-

all effectiveness as an attorney with a caseload of many), zealous defense (determining

the limits of what should be done to defend clients), and confi dentiality (keeping clients’

confi dences even if it harms third parties).

2. Describe the ethical issues faced by prosecutors.

The prosecutor must seek justice, not merely a conviction. Ethical issues may arise in the

areas of use of discretion (determining whom to charge), confl icts of interest (and how

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they affect decision making), plea bargaining (specifi cally, whether to overcharge and/or

hide exculpatory evidence), media relations (and how much to reveal about the case), ex-

pert witnesses (including the halo effect, discovery, and the use of forensic evidence), and

zealous prosecution (what is acceptable in zealous prosecution).

3. Describe some of the areas of forensic science that have been challenged by

opponents.

Only DNA evidence has not received a barrage of criticism regarding the lack of scien-

tifi c method involved in analysis. Hair analysis, arson investigation, ballistics, fi ngerprint

analysis, bite mark identifi cation, and scent identifi cation have been criticized.

4. Describe the ethical issues faced by judges.

Ethical issues for judges occur in the areas of how to interpret the law or rules (letting

biases affect their judgments) and sentencing. While judges have the ability to use their

discretion to sentence, they should be guided by reasonableness, not any personal or pub-

lic bias.

5. Explain why electing judges leads to a perception of unfairness.

Many criticize the practice of electing judges because it gives the appearance, if not the

reality, of bias introduced when benefactors have cases in front of the judge. Most judges

in this country are elected.

K E Y T E R M S

S T U D Y Q U E S T I O N S

1. Explain the confi dentiality rules of defense attorneys, and some situations where they

may be able to disclose confi dential information.

2. Compare the potential conflicts of interest of defense attorneys and those of

prosecutors.

3. List and describe the functions of jury consultants and why they are criticized.

4. Describe asset forfeiture and why it has been criticized.

5. List the types of information that can be disclosed to the media and the information

that should not be revealed to the media.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) the proper role of defense attorneys regarding their cli-

ents. Should attorneys pursue the wishes of their clients even if they think it is not in

the clients’ best interest? What if it would hurt a third party (but not be illegal)? Do

you think that attorneys should maintain confi dentiality if their clients are involved in

ongoing criminal activity that is not inherently dangerous?

asset forfeiture

attorney–client privilege

criminalistics

Federal Sentencing

Guidelines

halo effect

plea bargain

shadow jury

situational model

systems model

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2. Write an essay on (or discuss) what your decision would be if you were on a disciplin-

ary committee evaluating the following case: A prosecutor was working with police in a

standoff between a triple murderer and police. When the murderer demanded to talk to

a public defender, the police did not want to have a public defender get involved, so the

prosecutor pretended to be one. He spoke with the suspect on the telephone and lied

about his name and being a public defender. The man then surrendered to police. The

prosecutor was sanctioned by the state bar for misrepresentation and was put on proba-

tion and required to take 20 hours of continuing legal education in ethics, pass the Mul-

tistate Professional Responsibility Examination, and be supervised by another attorney

(Tarnoff, 2001). In your essay, describe what you think should have occurred, and why.

3. Write an essay on (or discuss) the legality/ethics of the following actions of a

prosecutor:

• Announcing a suspect of a drive- by shooting to the media so the offender was in

danger from rival gang members, and then offering protective custody only if the

man would plead guilty.

• Authorizing the arrest of a 10- year- old boy who confessed to a crime, even though

there was no serious possibility that he was guilty, in order to pressure a relative to

confess.

• Authorizing the arrest of one brother for drugs, even though the prosecutor knew

the charge would be thrown out (but the young man would lose a scholarship

to college), in order to have leverage so that he would give evidence against his

brother.

E T H I C A L D I L E M M A S

Situation 1

Your fi rst big case is a multiple murder. As defense attorney for Sy Kopath, you have come

to the realization that he really did break into a couple’s home and torture and kill them in

the course of robbing them of jewelry and other valuables. He has even confessed to you

that he did it. However, you are also aware that the police did not read him his Miranda

warning and that he was coerced into giving a confession without your presence. What

should you do? Would your answer be different if you believed that he was innocent or

didn’t know for sure?

Situation 2

You are completing an internship at a defense attorney’s offi ce during your senior year in

college. After graduation you plan to enter law school and pursue a career as an attorney,

although you have not yet decided what type of law to practice. Your duties as an intern are

to assist the private practitioner you work for in a variety of tasks, including interviewing

clients and witnesses, organizing case fi les, running errands, and photocopying. A case

that you are helping with involves a defendant charged with armed robbery. One day while

you are at the offi ce, the defendant comes in and gives you a package for the attorney. In it

you fi nd a gun. You believe, but do not know for a fact, that the gun is the one used in the

armed robbery. When the attorney returns, he instructs you to return the package to the

defendant. What should you do? What should the attorney do?

Situation 3

You are an attorney and are aware of a colleague who could be considered grossly incom-

petent. He drinks and often appears in court intoxicated. He ignores his cases and does

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not fi le appropriate motions before deadlines expire. Any person who is unlucky enough

to have him as a court- appointed attorney usually ends up with a conviction and a heavy

sentence because he does not seem to care what happens to his clients and rarely advises

going to trial. When he does take a case to trial, he is unprepared and unprofessional in the

courtroom. You hear many complaints from defendants about his demeanor, competence,

and ethics. Everyone—defense attorneys, prosecutors, and judges alike—knows this per-

son and his failings, yet nothing is done. Should you do something? If so, what?

Situation 4

You are a prosecutor in a jurisdiction that does not use the grand jury system. An elderly

man has administered a lethal dose of sleeping tablets to his wife, who was suffering from

Alzheimer’s disease. He calmly turned himself in to the police department, and the case is

on the front page of the paper. It is entirely up to you whether to charge him with murder.

What would you do? What criteria did you use to arrive at your decision?

Situation 5

You are a deputy prosecutor and have to decide whether to charge a defendant with pos-

session and sale of a controlled substance. You know you have a good case because the guy

sold drugs to students at the local junior high school, and many of the kids are willing to

testify. The police are pressuring you to make a deal because the defendant has promised

to inform on other dealers in the area if you don’t prosecute. What should you do?

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C h a p t e r O b j e c t i v e s

1. Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.

2. Explain the reasons why such misconduct occurs.

3. Describe the Innocence Projects, how many individuals have been found to be wrongly imprisoned,

and why.

4. Discuss some proposals to improve the justice system and reduce ethical misconduct.

5. Describe the concepts associated with judicial activism or constructionism and how this issue relates

to ethical misconduct.

Ethical Misconduct in the Courts and Responses

Clarence Brandley was a high school janitor in a small Texas town near Houston. In

1980, a young woman on a visiting girls’ volleyball team disappeared while her team was

practicing. The school was empty except for fi ve janitors and the volleyball team. A search

uncovered the girl’s body in the school auditorium; it was later determined that she had

been raped and strangled. Clarence Brandley and another janitor found the body and

were the fi rst to be interrogated by police. Brandley was black; the other janitor was white.

The police offi cer who interrogated them reportedly said, “One of you two is going to

hang for this.” Then he said to Brandley, “Since you’re the nigger, you’re elected.” Police

and prosecutors then evidently began a concerted effort to get Brandley convicted, in the

following ways:

Evidence that might have been helpful to the defense was “lost.” (Caucasian hairs •

near the girl’s vagina were never tested and compared to those of the other janitors.)

Witnesses were coerced into sticking to stories that implicated Brandley. (One of the •

janitors reported that he had been threatened with jail if he didn’t promote the story

supporting Brandley’s guilt.)

Witnesses who came forward with contrary evidence were ignored and sent away. •

(The father- in- law of one of the janitors who later became a prime suspect told the

prosecutor that this man had told him where the girl’s clothes would be found two

days before police actually found them.)

m o

o d

b o

a rd

R F

/ P

h o

to L

ib ra

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Defense attorneys were not told of witnesses. (A woman came to the prosecutor after •

the second trial and stated that her common- law husband had confessed a murder

to her and ran away the same night the girl’s body had been found. This woman’s

husband had worked as a janitor at the school, had been fi red a month previous to the

murder, but had also been seen at the school the day of the murder.)

What defense attorneys eventually discovered was that in all probability this man and

another janitor had abducted and murdered the girl. The other janitors had seen the girl

with these two men (not Brandley), but had lied during the two trials. Here are the words

of an appellate judge who ruled on the motion for a new trial:

In the thirty years that this court has presided over matters in the judicial system,

no case has presented a more shocking scenario of the effects of racial prejudice . . .

and public officials who for whatever motives lost sight of what is right and

just. . . . The court unequivocally concludes that the color of Clarence Brandley’s

skin was a substantial factor which pervaded all aspects of the State’s capital

prosecution against him. (Radelet, Bedau, and Putnam, 1992: 134)

Even after this finding, it took another two years for the Texas Court of Criminal

Appeals to rule that Brandley deserved a new trial. He served nine years on death row be-

fore his defense attorneys fi nally obtained his freedom. At one point, he was just six days

away from execution (Davies, 1991).

Do people end up in prison for crimes they did not commit? The fact is that they do.

Joyce Ann Brown and James Curtis Giles are two more examples. Both of these individu-

als were accused of crimes that were committed by someone with the same name. James

Curtis Giles was fi nally exonerated of a gang rape after spending 10 years in prison and

14 years as a registered sex offender. DNA analysis showed that there was no physical evi-

dence linking him to rape, and there was evidence of another perpetrator. In 1982, a man

who pleaded guilty to the rape said he did the crime along with men named James Giles

and Michael Brown. James Curtis Giles lived 15 miles away from the victim and did not

match her description of the attacker. He also had an alibi. Investigators ignored another

man with same name who lived across the street from the victim and had been arrested

with Brown on other charges. Despite this information, the wrong Giles was convicted

(Garay, 2007).

A similar pattern of mistaken identity occurred when Joyce Ann Brown was arrested

and convicted for a murder she did not commit. The real perpetrator shared the same

name as Brown, who was imprisoned for nine years before she was exonerated (Brown

and Gaines, 1990). Each of these cases represents a grievous mistake that should have been

corrected by the due- process protections provided in the criminal justice system but was

not. While ethical misconduct on the part of legal professionals is not always the reason

innocent people end up in prison, unfortunately in many cases it is. In fact, on the grading

scale of ethics, lawyers don’t fare too well, at least measured by public opinion.

First, Let’s Kill All the Lawyers Public perceptions of lawyers indicate that the public has little confi dence in their ability

to live up to ideals of equity, fairness, and justice. In 2006, respondents in a Gallup Poll

rated their level of trust in the integrity of attorneys. Only about 18 percent rated attorneys

as “high” or “very” high. Only a few professions were rated lower than lawyers, including

stockbrokers, senators, congressmen, HMO managers, car salesmen, and advertising ex-

ecutives (Gallup Poll, 2006).

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C H A P T E R 1 0 | E t h i c a l M i s c o n d u c t i n t h e C o u r t s a n d Re s p o n s e s 2 8 5

In the 1980s, the law scandal was the savings and loan fi asco, in which the greed and

corruption of those in the banking industry were ably assisted by the industry’s attorneys,

and the taxpayers picked up the bill for the bankrupt institutions and outstanding loans.

The scandal of the 1990s was the Bill Clinton–Monica Lewinsky investigation, with opin-

ions mixed as to which set of lawyers was more embarrassing—those who could coach

the president that oral sex wasn’t technically “sexual relations” or the special prosecutor,

Kenneth Starr, and his assistants, who spent millions of dollars in an investigation that

centered on semen stains and the defi nition of sex. The new century brought us the deba-

cle of WorldCom and Enron, and, again, lawyers played a central role, along with business

executives and accountants.

After 9/11 and the War on Terror, we had the situation of the White House counsel

parsing the defi nition of torture in secret memoranda. There have also been growing num-

bers of individuals released from prison by Innocence Projects nationwide, reportedly be-

cause of egregious errors and/or unethical behaviors on the part of police, prosecutors,

defense attorneys, and judges. News stories described how innocent people were released

after serving years in prison for crimes they did not commit.

Finally, most recently, we have had a virtual meltdown of our national economy

fueled largely by Wall Street, again aided ably by their highly paid attorneys. After the

Enron bankruptcy and other blatant acts of crime by CEOs and CFOs in the early 2000s,

Congress passed the Sarbanes- Oxley Act, which created culpability for CEOs who could

no longer plead ignorance when a pattern of blatant criminality was within the scope of

their responsibility. The act also required standards for attorneys appearing and practicing

before the SEC that allowed for permissive disclosure of client’s confi dences to prevent

fraud or other fi nancial crimes. This response still did not stop the lending frenzy, the

derivatives market, and the subsequent dissolution of AIG and the need to bail out the big

banks in 2008–2009. For many, it seemed a virtual replay of the savings and loan scandal

of the 1980s, and many wondered how it could have happened again. For every CEO and

bank offi cial who skirted the fi ner points of law and ethics, there was an attorney by his or

her side.

Apparently, even lawyers don’t think much of their profession. A National Law Jour-

nal study found that over 50 percent of lawyers described their colleagues as “obnoxious”

(reported in Krieger, 2009: 882). In a 2006 poll, about 60 percent of those in the practice of

law for six to nine years were dissatisfi ed with their career, although the percentage went

down to 40 percent for those practicing more than 10 years. Overall, only about 55 percent

of attorneys were satisfi ed with their career. Only about a third of lawyers practicing six to

nine years would recommend law as a profession to young people, and only 44 percent of

all lawyers would recommend it as a career (S. Ward, 2007).

The perception of the lawyer as an amoral “hired gun” is in sharp contrast to the

ideal of the lawyer as an offi cer of the court, sworn to uphold the ideals of justice declared

sacrosanct under our system of law. Interestingly, but perhaps not surprisingly, our gov-

ernment is made up predominantly of lawyers: A large percentage of elected offi cials

are lawyers, and 25 of 44 presidents have been lawyers. Our nation’s leaders and histori-

cal heroes have just as likely been lawyers (Abraham Lincoln, for example) as military

generals, and our nation’s consciousness is permeated with the belief in law and legal

vindication.

On the one hand, the public tends to agree with a stereotype of lawyers as amoral,

motivated by money, and with no conscience or concern for morality. On the other

hand, the fi rst response to any perception of wrong is to fi nd a legal advocate and sue,

with the belief that a lawyer will right any wrong and solve any problem. From ancient

times, the ethics of those associated with the legal process has been suspect. Plato and

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Aristotle condemned advocates because of their ability to make the truth appear false

and the guilty appear innocent. This early distrust continued throughout history. Early

colonial lawyers were distrusted and even punished for practicing law. For many years,

lawyers could not charge a fee for their services because the mercenary aspect of the pro-

fession was condemned (Papke, 1986: 32). Gradually, lawyers and the profession itself

were accepted, but suspicion and controversy continued in the area of fees and qualifi ca-

tions. Partly to counteract public antipathy, lawyers formed their own organization, the

American Bar Association (ABA), in 1878. Shortly afterward, this professional organiza-

tion established the fi rst ethical guidelines for lawyers; these became the Model Code of

Professional Responsibility reviewed in Chapter 8. The Quote and Query box puts the

problem in a humorous light.

QUOTE && QUERY Lawyers are upset. They have discovered what they believe to be an alarming

new trend: People don’t like them. The American Bar Association recently

appointed a special panel to investigate the legal profession’s bad image. The

California State Bar has commissioned a survey to fi nd out why so many people

dislike lawyers. . . . We wish to reassure lawyers. This wave of anti- lawyer feeling is

nothing new. People have always hated you.

—SOURCE: ROTH AND ROTH, 1989: I.

? This passage is humorous, but the underlying problem is not. Why do people have such low opinions of lawyers?

Perhaps the best explanation for the long- standing distrust of lawyers is that they typi-

cally represent trouble. People don’t require a lawyer unless they believe that a wrong has

been done to them or that they need to be defended. In fact, let us not forget the full

context of the quote, “The fi rst thing we do, let’s kill all the lawyers,” widely used as a stab

at attorneys. In Shakespeare’s Henry VI, Part 2, the scene involves a despot who, before

making a grab for power, argues that the fi rst thing he must do is kill all the lawyers, for it

is lawyers who are the guardians of law. However, the reason the existing power holders in

the play were vulnerable to an overthrow in the fi rst place was that they were using the law

to oppress the powerless. And so it is today. The law can be either a tool of oppression or

a sword of justice, with lawyers and judges as the ones who wield its power. Unfortunately,

there are all too many examples of attorneys and judges who do not uphold the standards

of their profession.

Ethical Misconduct In the sections to follow, it is true that more attention is given to the misconduct of

prosecutors and judges than defense attorneys. This is not to say that defense attorneys

are more ethical than the other two groups—one might argue, in fact, the opposite.

However, except for public defenders, defense attorneys are not public servants as are

the other two groups of legal professionals. It is a legitimate argument that prosecutors

and judges have higher duties than defense attorneys because they represent the body

politic. They are the public servants referred to in Chapter 4 who have immense pow-

ers of discretion but also are held to higher standards of behavior in their public and

private life.

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D E F E N S E A T T O R N E Y M I S C O N D U C T

The major complaint about attorneys is that they do not communicate regularly with cli-

ents. This is true for civil as well as criminal attorneys. Complaints received by bar associa-

tions generally involve clients who believe that they are not getting what they paid for, in

that attorneys don’t return their calls, don’t keep them informed about what is being done

on their case, and don’t seem to be putting any effort in the case after they have been paid.

Criminal defendants particularly are helpless since they may be in jail. Some attorneys

meet with their client only before hearings or other court appearances. Such neglect occurs

because attorneys make money by volume—the more cases, the more income. Crimi-

nal cases, especially, do not pay very well, and so attorneys have large caseloads. Many

attorneys operate under a crisis management approach whereby the to- do list every week

can only accommodate those tasks that are at deadline or after a deadline has passed. The

consequence is that some cases do not get the attention they should—witnesses are not

contacted, legal research is not conducted, and exculpatory evidence is not asked for.

One of the most often cited reasons for false convictions (in addition to eyewitness

testimony) is ineffective assistance of counsel. The legal standard for what constitutes in-

effective counsel is set quite high—so high that in the case of Calvin Burdine, whose law-

yer slept through parts of his trial, the appellate court said that if a lawyer wasn’t sleeping

during a crucial part of the trial, it wasn’t ineffective counsel. Other behaviors reported of

lawyers in capital and other cases include the following (Schehr and Sears, 2005):

Attorneys’ use of heroin and cocaine during trial •

Attorneys letting the defendant wear the same clothes described by the victim •

Attorneys admitting that they didn’t know the law or facts of the case •

Attorneys not being able to name a single death penalty case holding •

Attorneys drinking heavily each day of the trial and being arrested for a 0.27 blood •

alcohol level

There are also cases where the attorney has crossed the line from zealous defense to

breaking the law. In a very few cases, defense attorneys go to extreme lengths to change

the course of testimony, such as bribing witnesses, allowing their client to intimidate a wit-

ness, or instructing their client to destroy physical evidence or manufacture an alibi and

in the N E W S C R I M I N A L L A W Y E R

Robert Simels, a criminal defense attorney in New York, was sentenced in federal court in De-

cember 2009 for witness tampering and bribery, but could have been guilty of much more. He

was recorded talking to a person he thought was a confederate of his client, a drug lord from

Guyana, but who was really a government agent. In the conversation, he discussed how to

“silence” and “eliminate” a witness, in effect, ordering a hit on the person to stop him from tes-

tifying against the client. In his sentencing, Simels said, “Whatever self- esteem I had, whatever

self- worth I had has been destroyed by this process.” It was unclear if he was talking about his

prosecution or the process of turning from criminal defense attorney to criminal attorney.

SOURCE: Fahim, 2009.

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then commit perjury. Chapter 5 addressed noble- cause corruption on the part of law en-

forcement offi cers. This type of motivation may also affect the behavior of attorneys when

they believe that their client is innocent or for other reasons believe obtaining an acquittal

is more important than the rules of their profession. The In the News box presents one

egregious case of a defense attorney who became a criminal. Most misconduct by defense

attorneys probably falls into the realm of negligence, not criminal behavior.

P R O S E C U T O R I A L M I S C O N D U C T

When prosecutors forget that their mission is to protect due process, not obtain a convic-

tion at all costs, misconduct can occur. The types of misconduct range from minor lapses

of ethical rules to commission of criminal acts (such as hiding evidence). It is reported that

there were instances of prosecutorial misconduct in about a quarter of a sample of 2,100

cases in California, as identifi ed by a panel of judges (reported in Aronson and McMurtrie,

2007: 1455). This could be an undercounting since the sample was only of trial cases. and

most cases do not go to trial. Kirchmeier et al. (2009) discuss four types of prosecutorial

misconduct: withholding exculpatory evidence; misusing pretrial publicity; using preemp-

tory challenges to exclude jurors despite Batson v. Kentucky (476 U.S. 79 [1986]), which

prohibited race discrimination in jury selection; and using false evidence in court.

Most prosecutorial misconduct occurs in the furtherance of the case; however, there

are some examples where it appeared that the prosecutors involved did not take their duty

as public servants seriously. For instance, the Two- Ton Contest in Illinois has been writ-

ten about by several authors. It occurred when prosecutors participated in a contest to see

who could convict 4,000 pounds of fl esh. In the attempt to win, they vied to handle cases

of the most overweight defendants and, one assumes, let their prosecutorial judgment be

affected by the size of the defendant (Medwed, 2009).

Prosecutors and judges work together daily. There is a prohibition on attorneys and

judges discussing a case outside the presence of the other attorney, but because of working

conditions, this is much more likely between prosecutors and judges than with defense

attorneys. The reason for the rule is fairness. It is not fair for the judge to hear one side

without the other side there to defend its point of view. This rule applies to casual con-

versations as well as more formal interchanges or offerings of information. When there is

a close relationship between a judge and attorney, it is generally the practice for the judge

to recuse himself or herself from any cases involving that attorney. The capital murder

conviction of Charles Dean Hood in 1990 was questioned when it was discovered that the

judge in the case was having a secret affair with the prosecutor during the trial. This fact

was unknown to the defense attorney at the time, and appellate attorneys could not verify

the relationship until 18 years after the original trial. Hood’s appellate attorneys alleged a

violation of due process because the judge did not recuse herself, but the Texas Court of

Criminal Appeals ruled the undisclosed relationship and the judge’s lack of recusal was

“harmless error” (Lindell, 2008).

Similar to a defense attorney’s quandary when a witness commits perjury, a prosecu-

tor must also take steps to avoid allowing false testimony to stand. The prosecutor’s role

is the easier one because there are no confl icting duties to protect a client; therefore, when

a prosecution witness perjures himself or herself, the prosecutor has an affi rmative duty

to bring it to the attention of the court. In a Tulia, Texas, case, a large number of black

defendants were convicted based on the perjured testimony of one investigator. The pros-

ecutor knew that the police offi cer on the stand had lied about his past, yet he did not

disclose that information and allowed the perjury to stand. It was also revealed that the

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investigator lied about the defendants as well. After the intervention of the ACLU and,

eventually, the governor of Texas commuting the sentences, the dozens of people con-

victed were fi nally released. The prosecutor was sanctioned by the Texas bar and almost

lost his law license. Many believe he should have, considering his role in the convictions

(Herbert, 2002, 2003).

Model Rule 3.3(a) forbids an attorney from knowingly allowing false evidence to be

admitted; some argue that “knowingly” is too strict a standard because prosecutors have

argued that they did not “know” that the evidence was false. Some argue that an objective

negligent standard should be used instead (Zacharias and Green, 2009). In Florida, James

Brown came close to being executed before his conviction was reversed by the Court of

Appeals for the Eleventh Circuit. The prosecutor in that case allowed false testimony to be

introduced. Once the appellate court overturned the conviction, the state declined to retry

the case (reported in Kirchmeier et al., 2009: 1339). Recall from Chapters 5 and 7 that the

prevalence of “testilying” by police offi cers is unknown, but many believe that it is fairly

widespread. Researchers, observers, and especially defense attorneys believe that testily-

ing would not occur as much if not for the active or passive acceptance of the practice by

prosecutors (Cunningham, 1999).

Many of the cases where an innocent person eventually is exonerated involve jail-

house informants. In one case, the convicted man alleged that the informant was prom-

ised a favorable sentence in which he would be sent to a federal prison instead of state

prison in return for his testimony that the convicted man confessed to him while they were

cellmates in jail. During the trial, when asked by the defense attorney if anything had been

promised to him for his testimony, the informant committed perjury by answering that

he had not been promised anything, and the prosecutor allowed the perjury to take place,

knowing that he was lying (Lindell, 2007).

Misconduct also occurs when prosecutors intentionally use scientifi c evidence that

they know to be false. There are proven instances where prosecutors put on the stand so-

called experts that they knew were unqualifi ed and/or their expertise was without merit

(Gershman, 2003). Prosecutors may bolster a witness’s credentials or allow him or her to

make gratuitous and unsupported claims on the witness stand, such as to state “unequivo-

cally” that the fi ngerprint, hair, or lip print was the defendant’s. Giannelli and McMunigal

(2007) describe a long list of expert witnesses who became well known for their pro-

prosecution bias and outlandish testimony in the area of bite marks and other areas. So-

called experts include Louise Robbins (who testifi ed in one notorious case that a boot

mark matched the defendant’s even though no other forensic examiner agreed), Joyce

Gilchrest (whose testimony was discounted in several exonerations), Fred Zain (from the

West Virginia state crime lab whose test results could not be replicated by others), and

Michael West (who supposedly invented a way to use light to identify bite marks on mur-

der victims and always seemed to fi nd a match to the suspect). These experts continued to

be used by prosecutors even after appellate courts had excoriated their testimony and they

were widely criticized by peers.

Prosecutors have had experts suppress information that was favorable to the defense

and not put it in their report or not conduct tests that might be helpful to the defense.

Sometimes expert reports are provided to the defense, but delay is used to undercut

the ability of the defense to use the information. In other cases, experts are asked not to

write a report at all if their fi ndings do not help the prosecution, or prosecutors have the

report fi led as inconclusive so that they do not have to provide it to the defense (Gian-

nelli and McMunigal, 2007). In their closing arguments, prosecutors may overstate the

expert’s testimony so “is consistent with” becomes “matched” (Gershman, 2003: 36).

In some egregious cases, prosecutors have simply lied about physical evidence, such as

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stating that the red substance on a victim’s underpants was blood when, in fact, it was

paint (Gershman, 2003: 36).

The most common charge leveled against prosecutors, failure to disclose evidence,

stems from a duty to reveal exculpatory evidence to the defense. The right was estab-

lished in Brady v. Maryland (373 U.S. 83[1963]). A “Brady motion” requests all evidence

that is “likely to lead to a different outcome.” However, some prosecutors who withhold

evidence argue that “It wasn’t important” or “I didn’t believe it.” These rationalizations

ignore a basic difference between the role of the prosecutor and the role of the defense at-

torney. Whereas the defense attorney’s only mission is the defense of his or her client, the

prosecutor’s role is to seek justice. This means that all evidence should be brought forward

and shared so “truth shall prevail.” In fact, the ABA’s Standing Committee on Ethics and

Professional Responsibility has concluded that a prosecutor’s ethical duty to share excul-

patory information exceeds even the requirements of the Brady holding; however, there

are numerous cases where prosecutors withhold important information from the defense

(Kirchmeier et al., 2009). In the Ted Stevens case described in the In the News box, the

prosecutors’ misconduct led to their public chastisement and loss of a conviction.

When prosecutors are too zealous in their attempts to obtain a conviction, their

role as offi cer of the court is ignored and they become judge and jury. A Chicago Tribune

in the N E W S P R O S E C U T O R M I S C O N D U C T

Ted Stevens was a veteran Republican lawmaker, suspected of padding his pockets with the

fruits of his long tenure in Congress while serving the citizens of Alaska. Before he died in an air-

plane crash in August 2010, a federal investigation (labeled “Operation Polar Pen”) regarding his

reported acceptance of improper benefi ts led to charges of confl ict of interest and bribery. The

prosecutors, however, were scolded repeatedly throughout the trial for withholding evidence

from the defense. Arguably, they felt outgunned by the expensive legal team assembled by Ste-

vens and sought to maximize any advantage. Whatever the reason, their ethical lapses ended

up costing them the case. Stevens was convicted in 2008, but after an FBI special agent fi led

a whistleblower complaint, the judge threw out the conviction in April 2009 and Stevens was

set free. The FBI agent complained that prosecutors tried to hide a witness and did not share

transcripts where Bill Allen, their star witness, made contradictory statements during interviews,

and prior statements contradicted what he said on the stand. The prosecutors face investigation

and possible sanction from the Offi ce of Professional Responsibility of the Justice Department.

William Welch II, the lead prosecutor, stepped down as head of the Justice Department’s public

integrity section.

The case led to demands for retrials from other Alaska defendants tried by the same team

and using the testimony of Bill Allen, the witness. It came to light that he had been accused

of having sex with underage girls and the Justice Department prosecutors used those pending

charges as leverage for his testimony, a fact not shared with defense attorneys in these other

cases. Justice Department offi cials have announced new training initiatives to educate prosecu-

tors on discovery duties and created an offi cial to review discovery decisions.

SOURCES: Perksy, 2009; Johnson, 2009.

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investigation found that between 1963 and 2002, 381 defendants across the country had

a homicide conviction thrown out because prosecutors concealed exculpatory evidence

or presented evidence they knew to be false. Of the 381 defendants, 67 had been sen-

tenced to death and were exonerated by DNA evidence or independent investigations.

Nearly 30 of the 67 on death row were freed, but they served between 5 and 26 years be-

fore their convictions were reversed. The prosecutorial misconduct included the following

(Armstrong and Possley, 2002):

Concealed evidence that discredited their star witnesses, pointed to other suspects, or •

supported defendants’ claim of self- defense

Suppressed evidence that the murder occurred during a time when the defendant had •

an alibi

Depicted red paint as blood •

Portrayed hog blood as human •

Suppressed statements of eyewitnesses that offenders were white when prosecuting •

two black men

Received a knife from a crime scene from police but hid it, and when defendant ar- •

gued that he killed after he had been stabbed with the knife, the prosecutor challenged

the defense because of the absence of a knife

Hid a victim’s gun when the defendant argued self- defense •

Hid an iron pipe the victim had used to attack the defendant •

Hid a blood- spatter expert’s report that supported the defendant’s version of events •

Withheld evidence suggesting that a police informant had framed the defendant •

Concealed evidence indicating that their chief witness was the killer, not the •

defendant

News reports of prosecutorial misconduct occur periodically. In Georgia, the prosecu-

tor in the Genarlow Wilson case released a videotape of teenagers having sex in response

to an open- records request without blurring the faces of the alleged victims or suspects.

The prosecutor said that the law required him to release the tape; critics argue that he

released the tape to discredit Wilson’s case that he should not have been charged because

it was consensual sex between teenagers. Some argue that the prosecutor’s action in releas-

ing the tape could even be defi ned as distributing child pornography (McCaffrey, 2007).

A former federal prosecutor and a State Department security offi cer were indicted

on charges that they lied during the trial of a suspected terrorist. The two were charged

with conspiracy, obstruction of justice, and making false statements in connection with the

2003 prosecution of Karim Koubriti and others who were suspected of being members of

a sleeper cell. The convictions were overturned because of gross prosecutorial misconduct.

It was alleged that Richard Convertino, the prosecutor charged, presented false informa-

tion at a sentencing hearing in order to get a favorable sentence for an informant and failed

to turn over exculpatory evidence to the defense. Convertino alleged that he was the target

of a smear campaign because of his whistleblower lawsuit against the government. In the

subsequent trial, both men were acquitted of all charges (Eggen, 2006; Hsu, 2007).

A government aviation lawyer working with the prosecutors of the Zacarias Mous-

saoui trial was admonished by the trial judge for improperly coaching witnesses. Mous-

saoui was alleged to have been involved in the 9/11 attack, and government officials

sought to try him for the World Trade Center deaths, arguing that his knowledge could

have prevented the attack from happening. The prosecution was seriously damaged when

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the judge refused to allow testimony of aviation offi cials after it was discovered that the

lawyer Carla Martin had shared trial transcripts with the witnesses and tried to shape their

testimony to help the prosecution’s case (Markon and Dwyer, 2006).

Prosecutors who engage in acts such as those described above not only risk losing

the immediate case, but they also lose their credibility and undercut the trust and faith we

place in the justice system.

J U D I C I A L M I S C O N D U C T

Public exposes of judicial misconduct are fairly rare. Operation Greylord, in Chicago, took

place in the 1980s. As a result of an FBI investigation, 92 people were indicted, including

17 judges, 48 lawyers, 10 deputy sheriffs, 8 police offi cers, 8 court offi cials, and a mem-

ber of the Illinois legislature; and 31 attorneys and 8 judges were convicted of bribery.

Judges accepted bribes to “fi x” cases—to rule in favor of the attorney offering the bribe.

Not unlike law enforcement’s “blue curtain of secrecy,” not one attorney came forward to

expose this system of corruption, even though what was occurring was fairly well known

( Weber, 1987: 60). The In the News box describes a judicial scandal in Pennsylvania where

judges almost literally “sold” the youthful offenders to a private correctional facility.

in the N E W S J U D I C I A L M I S C O N D U C T

Former Luzerne County, Pennsylvania, judges Michael Conahan and Mark Ciavarella were charged

with racketeering, money laundering, fraud, bribery, and federal tax violations for accepting mil-

lions of dollars in return for sending juveniles who appeared before them to a private correc-

tional facility. Conahan had earlier shut down the county- run youth corrections center so they

would have to send the kids to the private facilities. The judges conducted hearings without ap-

pointing lawyers for the juveniles and then sent them to the private facilities for minor offenses.

The scandal has led to overturning hundreds of juvenile convictions and releasing many of

the juvenile offenders sent to the facility. No one can explain why the scheme was not exposed

years ago and continued without prosecutors, probation offi cers, or defense attorneys question-

ing what was happening. But red fl ags were raised. A newspaper had done an exposé on harsh

juvenile sentencing in 2004; and a defense attorney had fi led a complaint with the state judicial

disciplinary board in 2006, but it failed to act until after the two judges had been indicted by

the federal grand jury. The investigation began after another judge in the jurisdiction went to

the FBI with his suspicions. The judges are also being investigated for possibly “fi xing” criminal

cases where serious offenders received light sentences. Both judges pleaded guilty in a plea bar-

gain in February 2009, but retracted their guilty pleas when the sentencing judge required that

they admit their sentencing of juvenile delinquents was directly affected by kickbacks. In July

2010, Conahan pleaded guilty to a racketeering conspiracy charge; he will be sentenced some-

time in the fall of 2010. As of August 2010, there was no plea agreement with Ciavarella and the

case is scheduled for trial in February 2011.

SOURCES: Rubinkam, 2009; Grezlak and Strupczewski, 2009; Philadelphia Inquirer, 2010.

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Thankfully, such cases are extremely rare. Judges, for the most part, are like police

offi cers and prosecutors. They strive to fulfi ll their role with integrity and honesty, taking

care to protect the appearance and reality of justice. In some cases, however, neutrality

is questioned when judges voice strong opinions on issues or cases. Talking to the media

used to be rare, but now some judges have apparently decided it is acceptable to express

their views, take a stand, and act as advocate. Many question this role for judges. In some

cases, judges have been asked to recuse themselves—to step down and allow another

judge to take over the trial—because they have indicated to news media that they already

had opinions on a case before it was concluded.

Even Justice Antonin Scalia of the Supreme Court has been the target of such a re-

quest. In 2006, Justice Scalia, in a public speech, opined that giving full due- process rights

to detainees in Guantanamo was “crazy” and also made remarks referring to his son, who

was serving in Iraq at the time. Several groups demanded that the Justice recuse himself

from the case of Hamdan v. Rumsfeld (126 S. Ct. 2749 [2006]) because the case was about

that very subject (what, if any, due- process rights in American courts the detainees de-

served). Justice Scalia did not recuse himself, and Hamdan did win his case, with the

Supreme Court holding that detainees deserved some due process and that the military

commissions that were created at the time were not suffi cient. Scalia was in the dissent,

however, so arguably one might conclude that he had already made up his mind before

the case was decided (Lane, 2006).

In the 2007 Model Code of Judicial Conduct, one of the most debated areas was how

judges should comport themselves in terms of public speaking and political engagement.

The ideal, of course, is that judges should not have any preconceived ideas of who is right

or wrong in any controversy they will rule on, but the reality is that judges do not live in

a vacuum and, of course, have opinions, values, and beliefs regarding the issues of our

times. As mentioned in Chapter 8, the rules have been changed to accommodate First

Amendment challenges that were upheld in Minnesota v. White (536 U.S. 765 [2002])

(McKoski, 2008).

Some question judges’ motives in allowing cameras in the courtroom. Some argue

that judges, as well as defense attorneys, prosecutors, and witnesses, become too inter-

ested in their appearance in the media rather than the interests of justice. There seems to

be real concern that judges and lawyers play to the camera, perhaps to the detriment of

swift resolution of the case. In general, judges who are more concerned with their public

image than maintaining the judicial integrity of their offi ce may make biased decisions.

Judges who must be reelected to maintain their positions may be more vulnerable to wor-

rying about their public image.

Courtroom decorum is established by the judge, and if judges display an irreverent

or self- aggrandizing attitude or fl aunt the law, their behavior degrades the entire judicial

process. Some judges seem to be overly infl uenced by their power—as was the case of

one district court judge who instructed courtroom workers to address him as “God.”

Most courtroom gossip includes the idiosyncrasies of some judges, such as the judge

who was reputed to keep a gun under his robes and point it at tardy attorneys; the judge

who arrested citizens in the hallway outside his courtroom for “creating a public distur-

bance” because they were talking too loud while he was holding court; the judge who

ordered a woman arrested for contempt when she wrote a scathing letter to a newspaper

regarding his competence; the judge who sentenced a man to probation for killing his wife

(excusing such behavior in open court with a statement indicating that the nagging victim

deserved it); and the judge who signed an order of execution with a smiley face. These

individuals illustrate that putting on a black robe doesn’t necessarily give one the wisdom

of Solomon.

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Swisher (2009) lists and discusses various forms of judicial misconduct, including

failing to inform defendants of their rights, coercing guilty pleas, exceeding sentencing au-

thority, exceeding bail authority, denying full and fair hearings or trials, abusing the crimi-

nal contempt power, ignoring probable cause requirements, denying defendants’ rights,

and penalizing defendants for exercising their rights. Other forms of unethical behavior

are less blatant. Judges have a duty to conclude judicial processing with reasonable punc-

tuality. However, there are widespread delays in processing, partly because of the lack of

energy with which some judges pursue their dockets. In the same jurisdiction, and with a

balanced assignment of cases, one judge may have only a couple dozen pending cases and

another judge may have literally hundreds. Some judges routinely allow numerous con-

tinuances, set trial dates far into the future, start the docket call at 10:00 a.m., conclude the

day’s work at 3:00 p.m., and in other ways take a desultory approach to swift justice.

There are continual news examples of judges who evidently do not uphold the high

standards of behavior that should be associated with the black robes. In Boston, an im-

migration judge was suspended for a year because he referred to himself as Tarzan when

hearing a case involving a Ugandan woman named Jane. Another judge deported a man

without bothering to check to see that his tax records and birth certifi cate were authen-

tic (they were). Attorney General Alberto Gonzales wrote a strongly worded memo to all

federal immigration judges at the time insisting that they abide by rules of professional

decorum (Simmons, 2006).

It was reported that 128 complaints were fi led to the Judicial Conduct Commission

against Utah judges in 2005. Two high- profi le cases involved a judge who was arrested on

drug charges and another who was charged with violating the law for not deciding juvenile

cases by deadlines set by law. Members of the Utah Judicial Conduct Commission argue

that Utah judges have fewer misconduct charges than other states, where judges have been

disciplined for DUI, sexual harassment, and “using a sexual device while on the bench”

(Fattah, 2005). Pimental (2009) notes that while egregious cases of judicial misconduct ap-

pear in the news (i.e., sexual misconduct or bribery), the more prevalent forms of miscon-

duct may only be known to the attorneys who practice before the judge (i.e., favoritism,

racial or gender bias, arbitrary decision making). However, it is extremely rare for attorneys

to fi le complaints against judges. In fact, Pimental notes one case in which an attorney re-

ported that his client bribed a judge, and, as a result, the attorney was sanctioned by the bar

association for revealing client confi dences. Nothing happened to the judge (2009: 938).

In other news, a state district judge in El Paso has been indicted for mail fraud, wire

fraud, and lying to a federal agent for allegedly taking cash bribes and sex from defen-

dants in his court. Judge Thomas Porteous, a federal judge based in New Orleans, was

fi nally impeached by the House of Representatives in the winter of 2010 for bribery, per-

jury, and improper conduct even though he had been suspended from hearing cases back

in 2008 (but continued to receive his salary of $174,000). The Senate must also vote on his

impeachment and is expected to complete hearings sometime in 2010. Another federal

judge, Samuel Kent of Texas, resigned before his impeachment process was completed

in 2009. His misconduct involved sexual harassment and assault of female employees

and obstruction of justice in the investigation that ensued when one of his victims fi led

complaints against him (Alpert, 2010). A New York state judge, Thomas Spargo, was

found guilty of bribery and sentenced to prison. Mississippi judge Bobby DeLaughter

pleaded guilty to obstruction of justice in 2009. DeLaughter was accused of giving a favor-

able ruling in a case in return for consideration for a federal judgeship. The case involved

Richard Scruggs, an extremely powerful attorney who was being sued by a colleague for

fees from the multi- billion dollar tobacco suit he won. The fall from grace for DeLaughter

was uniquely sad in that he had obtained fame as the courageous district attorney who

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prosecuted the killer of civil rights leader Medgar Evers (this case was the basis for the

movie Ghosts of Mississippi).

We must be careful not to paint with too broad a brush. Only a few judges are involved in

the most egregious examples of unethical behavior, such as taking bribes or trampling the due-

process rights of defendants, just as only a small percentage of police offi cers, defense attor-

neys, and prosecutors commit extreme behaviors. Most judges are ethical and take great care

to live up to the obligations of their role. However, as with the other criminal justice profes-

sionals, sometimes there are systemic biases and subtle ways in which the principles of justice

and due process are subverted. It cannot be ignored that the justice system is assailed as viola-

tive of the rights of defendants, especially minorities. There are also judges who exhibit the

very best of judicial neutrality, courage, and fairness, as the Walking the Walk box illustrates.

Justice on Trial? One of the reasons that many people distrust our justice system is that there seems to be a

small—but steady—stream of cases in which prosecutors, along with police, deliberately

ignore evidence, destroy exculpatory evidence, lie about evidence, or do not share excul-

patory evidence with the defense. Radelet, Bedau, and Putnam (1992) gathered together

Judge Justice. In a perfect marriage of name and career,

William Wayne Justice became part of the fabric of

Texas history, beloved and reviled for his defi nition of

justice, but always standing firm for what he believed

was right. Justice’s father was a criminal defense attorney

in Athens, Texas. His career in law was inevitable; his fa-

ther added the boy’s name to the door of his criminal de-

fense fi rm when he was only seven. He obtained his law

degree in 1942 and served four years in the army during

World War II before joining his father’s practice. In 1961,

he was appointed U.S. attorney for the Eastern District

of Texas. In 1968, President Lyndon Johnson appointed

him to the federal bench. Almost immediately, he was

presented with a case that created controversy and en-

emies. He held that a junior college’s policy of requiring

men to have short hair was unconstitutional—a holding

that did not sit well with the conservative small town of

Tyler, where he lived. In 1970, in United States v. Texas,

he held that Texas was violating the law by continuing

to racially segregate schools. He held for the plaintiffs in

class action suits against the juvenile corrections system

and ruled that the children of illegal aliens should be able

to attend public schools free of charge just as citizens

did. In one of his most famous cases, Ruiz v. Estelle,

Justice agreed with Texas prisoners that using building

tenders (inmates who guarded other inmates) and a

host of other policies and conditions violated their con-

stitutional rights, and he put the prison system under a

federal monitor for over 20 years.

During the course of the 41 years he was a federal

judge, Justice experienced a steady stream of death

threats, hate mail, and shunning from neighbors, ac-

quaintances, and colleagues for his unpopular holdings

and unabashedly activist approach to legal interpreta-

tion. A bumper sticker at one time referred to him as

“the most hated man in Texas,” and he faced threats of

impeachment. Through it all, however, he kept his name

in the phone book, regularly worked out at the YMCA,

and reported that he never lost sleep over his deci-

sions. His biographer claims that Judge Justice single-

handedly changed the legal landscape, not just for

Texas, but for the nation. Others note that he dragged

Texas “kicking and screaming” into the 20th century.

Indeed, his early rulings seem obvious to us today, but

at the time, he stood against a tide of widespread resis-

tance and anger. His decisions for the rights of illegal

immigrant children, the poor, prisoners, and minorities

did not make him a hero of the majority. However, as

he has remarked, “Sometimes the majority are wrong.”

Judge Justice died in 2009 at the age of 89.

W A L K I N G T H E W A L K

Source: Gamino, 2009.

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dozens of capital cases where innocent defendants were convicted of crimes they did not

commit. Some were sentenced to death. False convictions occurred because of incompe-

tent defense counsel and unethical and illegal practices on the part of prosecutors and po-

lice, but also because judges, who are supposed to ensure that the process is fair, evidently

did not do their job.

Scott Christianson (2004) described 42 cases where innocent people were convicted.

The errors occurred largely through the actions of police, prosecutors, and judges who

neglected their duty to be objective offi cers of the court and traded neutrality for an in-

dividual ends- based approach to their duties. Eyewitness perjury (sanctioned by the

prosecutor), ineffective counsel, the use of false confessions, police misconduct, fabri-

cation of evidence, and misuse of forensics were the reasons that these innocent people

were convicted. Their stories are chilling reminders that innocent people can end up in

prison.

The Delma Banks case illustrates the problem. Banks was convicted based on the

testimony of a police informant and a long- time drug offender who was promised a

shorter sentence and coached to provide details of the crime scene. Neither of these facts

was brought out at trial. Further, the jury pool was race- coded by prosecutors, and all

African American jurors were excluded. Reanalysis of forensics indicated that the vic-

tim was killed when Banks was out of town. Lawyers for Banks were denied a clemency

hearing from the State Board of Pardons and Paroles despite the new evidence and the

fact that the transcript of the coaching was deliberately withheld from the defense for

close to 19 years and fi nally surrendered only when ordered by a federal district judge.

The reason the board denied the petition? It was fi led one week late (Pasztor, 2003a,

2003b). The U.S. Supreme Court issued a writ of certiorari and granted a stay of ex-

ecution, and, evidently refusing to ignore the distinct possibility that an innocent man

was to be executed, overturned the verdict and remanded the case for a new trial (Pasz-

tor, 2003b; Banks v. Dretke, 540 U.S. 668 [2004]). Others have been executed, and only

afterward did evidence or perpetrators’ confessions exonerate the accused and expose

the prosecution’s misconduct that led to the miscarriage of justice (Radelet, Bedau, and

Putnam, 1992).

Whereas some of the cases described by Radelet, Bedau, and Putnam involved pure

and extreme racial prejudice, probably a more prevalent factor in false convictions is a

more subtle form of racism. Many in the criminal justice system tend to prejudge the guilt

of the accused, especially if they are black men. There is a pervasive stereotypical belief

that all defendants are guilty, and most defendants are black. This thought pattern shapes

and distorts decision making on the part of prosecutors who sift and use evidence in a way

that will support their predetermined beliefs.

Racial bias in wrongful convictions has been attributed to individual factors and

structural factors. Structural factors include systemic bias against minorities in all institu-

tions of society (political, economic, and social) that leads to different opportunities and

treatment. Individual factors include: (Schehr and Sears, 2005):

Racism •

Higher error rate in cross- racial identifi cation •

Stereotyping •

Lack of resources of the defendant •

There is a divergence in the perceptions of blacks and whites regarding the fairness

of the system. For instance, in a Gallup Poll, 71 percent of whites said murder charges

against O. J. Simpson were probably or defi nitely true, but only 28 percent of blacks

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agreed (reported in Mitchell and Banks, 1996: Bl). Is this a refl ection of a different way of

measuring evidence or a different perception of trust in law enforcement and legal profes-

sionals’ ability to collect and interpret evidence? Is the lack of trust warranted? Unfortu-

nately, the answer to that question is probably yes.

In 2000, the Cincinnati Inquirer published the results of an investigation where

they found 14 cases where prosecutors had used various forms of misconduct in capi-

tal cases (reported in Kirchmeier et al., 2009). In a study conducted by the Colum-

bia Law School, 68 percent of all death verdicts handed down between 1973 and 1995

were reversed because of serious errors. Between 1993 and 2002, 90 death row inmates

were exonerated of the crimes of which they were accused. The errors involved de-

fense lawyers’ incompetence, and also police and prosecutors suppressing exculpatory

evidence or engaging in other types of professional misconduct. Almost 10 percent of

the cases sent back for retrial resulted in not- guilty verdicts. The study concluded that

the high rate of errors occurred because of the indiscriminate use of the death pen-

alty and factors such as race, politics, and poorly performing law enforcement systems

(Columbia Law School, 2002). In this study, 328 cases over the last 15 years in which

the individuals were exonerated (usually by DNA) were examined. The study authors

allege that there may be thousands of innocent people in prison. Most of the cases

that reach national attention are homicide (199 cases) and rape (120 cases), so less seri-

ous cases—which may also suffer from the errors of mistaken eyewitness testimony,

evidence withholding, and other misconduct—go undiscovered. In 125 cases, a mis-

taken verdict depended upon false confessions, usually of the mentally ill, the mentally

retarded, and juveniles.

Prosecutors have objected to the study’s methodology, arguing that the study counted

cases where the evidence was weak but the defendant might still be guilty. Further, they

argue that the number of exonerations is quite small compared to the number of convic-

tions. (Liptak, 2004; Columbia Law School, 2002).

As of August 2010, the national Innocence Project website states that more than

250 people have been exonerated by DNA evidence as a result of their efforts. The

Innocence Project consists of an affi liation of groups of lawyers in many states that identify cases where people may have been falsely convicted and there is DNA evi-

dence still on fi le that could be used to prove or disprove their protestations of inno-

cence. This organization has been pivotal in getting the wrongly accused off death row

and freed from prison. (To read more about the project, you can visit their website,

www.innocenceproject.org, which lists some of the Innocence Project affi liates around

the country.)

A typical case is one from Dallas County, Texas, in which a man was sentenced to life

in prison in 1981 for rape. After the Innocence Project tested the DNA evidence, the man

was cleared of the rape. He was the 15th inmate from Dallas County to be freed by DNA

evidence since 2001, and the 30th wrongfully convicted inmate exonerated in Texas, the

highest number of any state. The man had been convicted partially based on an eyewitness

who picked him from a photo lineup, but experts report that eyewitness testimony is noto-

riously unreliable. Partially as a response to this case, the district attorney in Dallas County

began a program where law students, supervised by Innocence Project lawyers, reviewed

about 450 cases in which convicts had requested DNA testing (Associated Press, 2008c).

Another DNA case, involved four sailors, the “Norfolk Four,” who were convicted of

rape and murder in 1997. They allege that they falsely confessed to the crime because of

the coercive interrogation tactics of a police investigator. There was no other evidence to

link them to the crime. Before they were brought to trial, another man, who knew the vic-

tim, confessed, admitting he did it alone, and his DNA was found at the crime scene, yet

Innocence Project An organization staffed by lawyers and law students who reexamine cases and provide legal assistance to convicts when there is a probability that serious errors occurred in their prosecution.

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the prosecutors continued with their case against the Norfolk Four. One of the Norfolk

Four served eight years before being released, but the other three were still in prison un-

til being pardoned by Virginia’s governor in August 2009. The pardon was conditional,

however; the men were released on parole and had to register as sex offenders. The case

may become a movie; it is reported that John Grisham has expressed his intent to write a

screenplay (Jackman and Kumar, 2009).

Another study reviewed different sources to estimate wrongful convictions and con-

cluded that the range was 1 percent to 15 percent, depending on which sources were used

(inmate reports illustrated the higher figure) (Poveda, 2001). Even at the lower range,

however, the number of innocent people imprisoned is substantial, given that close to 2

million are incarcerated in prisons and jails. In one study using a sample of 798 criminal

justice professionals in Ohio, respondents perceived system errors resulting in wrongful

convictions occurred at a rate of 0.5 to 1 percent of all felony cases in their own jurisdic-

tion and in 1 to 3 percent of all felony cases across the country. They also indicated that

an acceptable rate was less than 0.5 percent (Ramsey, 2007). The Quote and Query box

presents two questions. How one might answer them depends on one’s perceptions of the

costs involved in wrongful convictions.

QUOTE && QUERY Is it better for 100,000 guilty men to walk free rather than have one innocent man

convicted? The cost- benefi t policy answer is no.

—SOURCE: (PROSECUTOR) QUOTED IN LIPTAK, 2004: 3.

No rate of preventable errors that destroy people’s lives and destroy the lives of

those close to them is acceptable.

—SOURCE: (LAW PROFESSOR) QUOTED IN LIPTAK, 2004: 3.

? Do either of these statements represent ethical formalism? Which statement represents utilitarian thinking? Why does it have to be a choice between letting guilty

people go free and punishing innocents?

In an interesting study that compared a group of those who were released from prison

based on exonerations and those who were executed, the authors found that there may

have been at least a dozen possible executions of innocents (Harmon and Lofquist, 2005:

592). In the cases where the defendant was executed, they found that it was more likely that

there were no allegations of perjury, there were multiple types of evidence, the defendant

had prior felony records, and the attorneys were public defenders. The study revealed, for

instance, that inmates were 9 times more likely to be released if they had a private attorney

at trial (although there was no difference in the type of attorney at the appellate level).

Inmates were 27 times more likely to be released when there were allegations of perjury

(Harmon and Lofquist, 2005: 511).

Some of the reasons for false convictions include the following (Schehr and Sears, 2005):

Mistaken eyewitness testimony •

Perjury by informants •

Police and prosecutorial misconduct •

False confessions •

“Junk science” •

Ineffective assistance of counsel •

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Racial bias •

• Confi rmatory bias (when a specifi c suspect has been fi xated upon and other pos- sibilities are ignored)

The state of Texas executes the most people and also has freed the most offenders.

The In the News box describes a case where the exonerated inmate could not be released

because he died in prison. Cases such as Clarence Brandley, James Curtis Giles, and Joyce

Ann Brown, discussed previously, create real doubt that only guilty parties are executed.

Randall Dale Adams, another freed inmate, was the subject of the documentary The Thin

Blue Line. He was convicted in 1976 of killing a Dallas police offi cer who stopped a car

driven by David Harris. Harris said Adams was the gunman. Adams said he wasn’t even in

the car. The state relied on an eyewitness who had picked someone else out of a lineup, and

the testimony of Harris, a 16- year- old with a long juvenile record. Harris eventually con-

fessed that he killed the offi cer alone. The prosecutor withheld the fact that he had made a

deal with Harris to testify and hid his lengthy criminal record. Adams spent years in prison

and on death row before fi nally being released (Hall, 2002; Kirchmeier et al., 2009).

Ordinarily, state courts that lean too far in either a liberal or conservative direction

would be adjusted by appellate decisions. It is also true, however, that the federal circuit

courts have their own reputations for being either too conservative or too liberal, or in the

case of the Fifth Circuit, “insolent.” The Fifth Circuit court has been admonished by the

U.S. Supreme Court because of what some call its “insolence” in ignoring the holdings

of Supreme Court decisions in rehearings. In the case of Thomas Miller- El, the Supreme

Court ruled in favor of the defendant’s appeal based on systematic exclusion of black

jurors and remanded the case to the Fifth Circuit. The judges on the Fifth Circuit then

used a dissent by Clarence Thomas to deny relief. The case was appealed to the Supreme

Court again, and it once again granted relief and rebuked the court, ordering the Fifth

Circuit to apply its legal reasoning (Liptak and Blumenthal, 2004; Miller- El v. Dretke, 125

St. Ct. 2317 [2005]).

The ideal, or vision, of our justice system is that it is fair, unbiased, and, through the

application of due process, arrives at the truth before finding guilt and assessing pun-

ishment. The reality is that the law is administered by humans with human failings and

that errors and misconduct result in innocent people being convicted, incarcerated, and

sometimes executed. There is also a pervasive theme of racism in these miscarriages of

confi rmatory bias Fixating on a preconceived notion and ignoring other possibilities, such as in regard to a specifi c suspect during a police investigation.

in the N E W S P A R D O N U S

In February 2010, Charles Baird, a criminal district court judge in Austin, Texas, took the case

of Tim Cole, who was convicted of a rape and murder. Later DNA evidence was matched to the

real killer, who also had written letters to prosecutors about a decade earlier confessing to the

crime and explaining that Cole was not involved and was innocent. Judge Baird issued an order

detailing his fi ndings that evidence proved Cole was innocent. The next month, Governor Rick

Perry pardoned Cole. This was welcome news to Cole’s family, even though Tim Cole was dead.

He had died nine years earlier in prison from asthma. The pardon was the fi rst posthumous

pardon ever issued as far as anyone can remember.

SOURCE: Janey, 2010.

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justice. This indicates that something else is at work besides individuals not performing

their duties and that what is wrong is more fundamental than simply bad or unethical

decision making. Even more pervasive than racism, perhaps, is the confi rmatory bias that

is endemic in the system. When everyone believes that defendants are always guilty, due

process is an empty promise.

Explanations for Misconduct In response to a question about why prosecutors commit the various forms of miscon-

duct described above and in Chapter 9, one commentator explained succinctly, “Because

they can.” The offi ce of the prosecutor is one of the least scrutinized in the criminal jus-

tice system and has not experienced the intense analysis directed to law enforcement or

the courts. Hidden from public view are the decisions as to whom to prosecute and what

charges to fi le.

The Supreme Court has ruled that prosecutors cannot be subject to civil suits

against them even in cases of egregious rule breaking, if it concerns their adversarial

function or prosecutorial decisions. They have limited immunity for actions taken dur-

ing the investigative phase of a case and for administrative activities. Thus, lying for

a warrant, coercing confessions, or making false statements to the press could expose

them to liability (Kirchmeier et al., 2009; Zacharias and Green, 2009). However, when

Thomas Lee Goldstein was wrongfully convicted in Los Angeles County partially due

to the prosecutor’s misconduct, he was barred from suing because the prosecutor’s ac-

tion fell under his immunity protections. In this case, the prosecutor used a jailhouse

informant who testifi ed that Goldstein confessed, but the informant lied on the stand

that he had never been an informant in the past. In fact, he had and had received money

for previous testimony in another case. The prosecutor allowed the perjury to stand.

Goldstein had his case overturned and was exonerated and is now suing on a theory of

misconduct during the administrative functions of the prosecutor role (Zacharias and

Green, 2009). It is unlikely that such a legal theory will result in success, however,

since the Supreme Court expressed resistance to reducing immunity for prosecutors

in the recent case of Pottawattamie County v. McGhee and Harrington (129 S. Ct. 2002

[2009]). Although the case was dismissed when the parties settled, during oral argu-

ments, the justices seemed concerned that reducing the immunity of prosecutors would

make them more hesitant to aggressively prosecute crime and subject them to frivolous

lawsuits. The case involved two men who were wrongfully convicted when they were

teens and served almost 30 years in prison because a prosecutor helped assemble and

present false testimony against them and hid evidence that implicated the relative of

a city offi cial. They settled for $12 million with the county before the Supreme Court

made any decision whether or not the immunity of prosecutors extends to the acts of

preparing false testimony to be used in court.

Raeder (2007) argues that one of the reasons for prosecutorial misconduct is that

the Model Rules and Standards do not cover many of the activities described as miscon-

duct, or they refer to them obliquely with no clear guidance. Furthermore, there are few

complaints against prosecutors, except in high profi le cases. Gershman (1991) writes that

prosecutors misbehave because it works and they can get away with it. Because miscon-

duct is scrutinized only when the defense attorney makes an objection and then fi les an

appeal (and even then the appellate court may rule that it was a harmless error), there is a

great deal of incentive to use improper tactics in the courtroom. The most important fact

uncovered in the Chicago Tribune investigation was that not one of the prosecutors was

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convicted of a crime, and none was even disbarred. Some became judges or district attor-

neys, and one became a congressman! (Armstrong and Possley, 2002)

Aronson and McMurtrie (2007), in their discussion of prosecutorial misconduct, de-

scribe noble- cause corruption, only with different terminology. They identify the issue

as “tunnel vision,” arguing that prosecutors work under a bias that defendants are guilty,

therefore they ignore exculpatory evidence. Similar to the problems this causes with police

investigators, these authors discuss the presence of confi rmatory bias (human tendency to

seek to confi rm rather than disconfi rm), selective information processing (only recogniz-

ing evidence to fi t one’s theory), belief perseverance (believing one’s original theory of the

case despite evidence to the contrary), and avoidance of cognitive dissonance (adjusting

beliefs to maintain existing self perceptions). Medwed (2009) also discusses the prosecu-

tor’s “conviction psychology” and noted the fact that prosecutors work closely with police

offi cers and victims and their families, and the emotional connections make it diffi cult to

maintain professional objectivity in cases.

Another possible issue is that immunity of judges insulates them from the effects of

their decisions, although their decisions are public and can create storms of controversy.

Their case holdings can be scrutinized and their courtroom behavior may be grounds

for an appeal. Even so, it is diffi cult for attorneys to challenge judges’ actions or testify

against them in disciplinary proceedings (Swisher, 2009). Thus, some judges evidently

believe they are invulnerable and use the offi ce as a personal throne. In the Pennsylvania

case where two judges received kickbacks for sending kids to a private prison, employees

and lawyers explained that anyone who criticized the judges, even slightly, found them-

selves facing retaliation. Judges have immense powers and, as the saying goes, “power

corrupts.”

Responding to Misconduct To enforce rules of ethics, the ABA has a standing committee on ethical responsibility

to offer formal and informal opinions when charges of impropriety have been made.

Also, each state bar association has the power to sanction offending attorneys by pri-

vate or public censure or to recommend a court suspend their privilege to practice law.

Thus, the rules enforced by the state bar have essentially the power of law behind them.

The bar associations also have the power to grant entry into the profession because one

must ordinarily belong to the bar association of a particular state to practice law there.

Bar associations judge competence by testing the applicant’s knowledge, and they also

judge moral worthiness by background checks of individuals. The purpose of these re-

strictive admission procedures is to protect the public image of the legal profession

by rejecting unscrupulous or dishonest individuals or those unfi t to practice for other

reasons. However, many believe that if bar associations were serious about protecting

the profession, they would also continue to monitor the behavior and moral standing of

current members with the same care they seem to take in the initial decision regarding

entry (Elliston, 1986).

Disciplinary committees investigate a practicing attorney only when a complaint is

lodged against him or her. The investigative bodies have been described as decentralized,

informal, and secret. They do little for dissatisfi ed clients because most client complaints

involve incompetence and/or lack of attention; these charges are vague and ill- defi ned

(Marks, Raymond, and Cathcart, 1986: 72). Many bar disciplinary committees are hope-

lessly understaffed and overburdened with complaints. Complaints may take years to in-

vestigate, and in the meantime, if prospective clients call, they will be told only that the

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attorney is in good standing and has no substantiated complaints. A study of attorney

discipline by an organization for legal reform reported that only 3 percent of investiga-

tions by state disciplinary committees result in public sanctions and only 1 percent end in

disbarment (San Antonio Express News, 2002).

While individuals with complaints against their lawyers in the civil arena receive

little satisfaction, criminal defendants are arguably even less likely to have anyone care or

rectify incompetence or unethical behavior on the part of their attorney. “You get what

you pay for” may be true to an extent, but even that phrase does not truly represent the

possibility of a family mortgaging its home, signing over cars, and emptying its bank

account for an attorney who promises to represent a family member against a criminal

charge and then fi nding that the attorney will not answer calls, doesn’t appear in court,

or is unprepared and forgets to fi le necessary motions. One of the most common com-

plaints against attorneys is that they do not diligently work on a case and allow deadlines

to pass or miss court dates. Criminal defense attorneys could face civil suits for their

incompetence or poor work performance, sanctions from their bar association, and even

be cited by courts for contempt, but events such as those described in the In the News

box are fairly rare.

As mentioned earlier, it is extremely rare for prosecutors to be censured for mis-

conduct; however, it has happened in a few cases. In Arizona, Kenneth Peasley, a pros-

ecutor who was once named Prosecutor of the Year by the Arizona Bar Association, was

disbarred for soliciting and using false testimony (Kirchmeier et al., 2009). Mike Nifong,

in the Duke University lacrosse case, endured a highly publicized disbarment in 2007 be-

cause of his actions (described in Chapter 9). However, there are generally few controls on

the behavior of prosecutors in the courtroom. Voters have some control over who becomes

a prosecutor, but once in offi ce, most prosecutors stay in the good graces of a voting pub-

lic unless there is a major scandal or an energetic competitor. In cities, most of the work

is conducted by assistant prosecutors, who are hired rather than elected. Misconduct in

the courtroom is sometimes orally sanctioned by trial judges. Perhaps an appellate deci-

sion may overturn a conviction, but prosecutors are rarely punished even when cases are

overturned. Many times, when there is clear misconduct in the prosecutor not turning

in the N E W S A L A W Y E R D I S B A R R E D

A lawyer in New York was disbarred for incompetent defense and other actions. Among the

charges was a case where he accepted $20,000 to conduct an immigration deportation appeal,

but then did nothing and did not fi le the appeal. The client was deported, and the lawyer re-

fused requests from the family to give back any of the money. The lawyer also refused to return

clients’ bail money after it was returned by the court.

In another case, this lawyer had a criminal client sign a deposit fee agreement stating that

the $10,000 deposit was nonrefundable regardless of how much time was spent on the case.

The defendant signed the deposit agreement, and immediately afterward the attorney was dis-

qualifi ed from representing the client because he was also representing a co- conspirator. He

refused to return any of the deposit money.

SOURCE: Lin, 2006.

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over exculpatory evidence or other forms of misconduct, the court rules it is harmless

error and does not even overturn the conviction. Some states have created more strin-

gent responses to prosecutorial misconduct and will overturn cases even if there is no

way to prove that such misconduct affected the outcome of the case (Kirchmeier et al.,

2009). When a prosecutor violates the Batson ruling to not use peremptory challenges in

a racially discriminatory manner, there should be some sanction; however, the prosecutor

must show only that he or she had some other reason for exclusion and the legal standard

is whether there is any explanation for the exclusion, even if implausible (Purkett v. Elem,

514 U.S. 765 [1995]). Statistics from the Equal Justice Initiative, a legal advocacy group,

indicate that black jurors are dismissed at a blatantly disproportionate rate compared to

white jurors. In some jurisdictions, blacks were removed three times as often as whites

and, in another jurisdiction, 80 percent of blacks were struck from capital cases by pros-

ecutors (New York Times, 2010c).

There is little reason for the prosecutor who sees injustice occur in the offi ce to come

forward. In Garcetti v. Ceballos (547 U.S. 410[2006]), the Supreme Court ruled against a

prosecutor who objected to misconduct occurring in the offi ce where he worked. In this

case, Richard Ceballos was an attorney for the Los Angeles County District Attorney’s

offi ce. He submitted a memorandum to his superiors detailing his fi ndings that a search

warrant obtained by law enforcement offi cers had serious fl aws and recommended the

case be dismissed. Instead, his supervisor continued the prosecution. Ceballos, against

orders, provided the defense with a copy of his memorandum and was called as a de-

fense witness. He was subsequently passed over for promotions and sanctioned in other

ways, and fi led a Section 1983 claim arguing that his First Amendment rights were vio-

lated. The Supreme Court, in a 5–4 decision, held that the First Amendment did not ap-

ply to public servants in the course of their public duties. Sadly, this decision may act as

a barrier to public offi cials who attempt to challenge what they believe to be miscarriages

of justice.

Some have argued that the seemingly widespread evidence of prosecutorial mis-

conduct supports rethinking prosecutorial immunity, and perhaps employing criminal

sanctions against prosecutors, and establishing independent commissions to investigate

innocence (Raeder, 2007). Zacharias and Green (2009) proposed that Model Rule 1.1 re-

quiring all attorneys to display a level of competency could be used against prosecutors

who use evidence that they should know is false or withhold evidence from the prosecu-

tion. The advantage of using the competency rule rather than the rule prohibiting the use

of false testimony is that the “knowing” standard is diffi cult to meet (the prosecutor has

to “know” the evidence is false), but competency would be an easier standard to meet

when prosecutors engage in acts that result in innocent people being convicted. Others ar-

gue that training is necessary, with perhaps requiring prosecutors to work with Innocence

Commissions, to counteract the psychology of conviction at all costs. It has also been sug-

gested that prosecutors’ offi ces should have ethics offi cers and sanction employees who

cross over the line. There should also be clear and public policies in each prosecutor’s

offi ce concerning the use of jailhouse informants and turning over exculpatory material

(Kirchmeier et al., 2009).

While the number of Innocence Project affi liates is growing and the groups have been

successful in identifying cases and prevailing in court, they can’t be the only solution to the

problem of false convictions. Unfortunately, most of these projects are under- resourced

and overwhelmed. Some argue that what is needed is a model such as Great Britain’s

Criminal Cases Review Commission, which is a governmental agency rather than a vol-

unteer and/or private organization. Others (Schehr and Weathered, 2004) question the

effi cacy of Britain’s model, arguing that

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It is subordinate to the Court of Appeal and thus deferential to it. •

It relies on untrained caseworkers to review cases. •

It relies on petitioners to raise claims. •

It is understaffed and pays too little attention to each case. •

Others argue that the Innocence Project affi liates can serve an important purpose, but

that they must be better funded and not left to the vagaries of budget cuts. Medved (2009)

argues for innocence divisions in prosecutors’ offi ces. Craig Watkins, the district attorney

of Dallas County, instituted such a division when he was elected in 2007. The unit re-

views DNA cases that have been identifi ed by the Innocence Project of Texas and all cases

where DNA evidence has identifi ed unknown suspects in addition to the defendant. As

of August 2010, the unit has thus far exonerated 40 people and is reviewing hundreds of

other cases (Raeder, 2007; Medved, 2009: 63). Also, recall from Chapter 8 that the ABA

added two sections to Rule 3.8 for prosecutors that concerned their ethical duty to inves-

tigate and remedy when there is a chance that an innocent person has been convicted. In

contrast, some prosecutors actively resist post- conviction DNA testing, and, as the In the

News box illustrates, there are other examples that indicate that prosecutors’ offi ces may

be more concerned with protecting their convictions than discovering if innocent people

have been convicted.

As mentioned above, DNA has been the vehicle by which many innocent prisoners

have obtained their release from prison. Even after many years, a small amount of preserved

DNA evidence could exclude someone or help to identify the real perpetrator of a crime.

Some states have mandated DNA testing of old cases when the inmate requests it. Some

locales have instituted prosecution divisions that review cases where DNA still exists. Still

other offi ces, however, actively oppose retesting of DNA. In District Attorney v. Osborne

(129 S. Ct. 2308 [2009]), the Supreme Court, in a 5–4 decision led by the conservative ma-

jority, ruled that defendants had no constitutional right to DNA evidence, even if it was still

held by the state and even if they were willing to pay for its testing. In this case, the prisoner

argued that the testing done in his trial matched him only to 1 in 6 black men and more

advanced tests available today could determine more accurately that he was not the rapist.

The state, in this Alaska case, argued that such a right would jeopardize the fi nality of case

decisions when the trial was otherwise fair. One wonders, however, how a trial could be

thought of as fair if an innocent person was convicted. One also wonders why the Supreme

in the N E W S S H O W M E Y O U R G R A D E S !

The Northwestern University Journalism School’s Innocence Project has been instrumental in

overturning 11 convictions, embarrassing the Cook County prosecutor’s offi ce in the process. In

early 2010, they faced a legal challenge of their own when the chief prosecutor in Chicago fi led

motions to demand students turn over grades, e- mails, notes, and course evaluations. She be-

lieves that their discovery of evidence was infl uenced by grades received—specifi cally, that they

manufactured evidence to obtain good grades. The director of the Innocence Project alleges

harassment and retaliation, and pledges to fi ght the order.

SOURCE: Folkenfl ik, 2010.

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Court would not consider access to such evidence a part of due process. The last section in

this chapter returns again to the theme that justice is created or thwarted by the actors in the

system.

Judicial Independence and the Constitution Recall that discretion is the ability to make a decision and that discretion exists at each

stage of the criminal justice system. Professionals at each stage have the opportunity to

use their discretion wisely and ethically, or, alternatively, they may use their discretion un-

ethically. In the courts, prosecutors have discretion to pursue prosecution or not, defense

attorneys have discretion to accept or refuse cases and choose trial tactics, and judges have

discretion to make rulings on evidence and other trial procedures, as well as decide on

convictions and sentences.

One view of law is that it is neutral and objective and that formal and absolute rules

of law are used in decision making (Pinkele and Louthan, 1985: 9). However, the reality is

that lawmakers, law enforcers, and lawgivers are invested with a great deal of discretion in

making and interpreting the law. Far from being absolute or objective, the law is a dynamic,

ever- changing symbol of political will. If we accept that discretion is an operating reality in

the justice system, we must ask in what ways legal professionals use this discretion. If indi-

vidual value systems replace absolute rules or laws, the resulting decisions may be ethical

or unethical. For instance, a judge may base a decision on fairness or on prejudicial beliefs

(e.g., that blacks are more criminal and deserve longer sentences, or that women are not

dangerous and should get probation).

There are many other situations where one’s biases and prejudices may not be so eas-

ily identifi ed. Judges’ rulings on evidentiary matters are supposed to be based on rules of

evidence, but sometimes there is room for interpretation and individual discretion. While

most judges use this discretion appropriately and make decisions in a best effort to con-

form to the spirit of the evidentiary rule, other judges use arbitrary or unfair criteria, such

as personal dislike of an attorney, disagreement with a rule, or a desire for one side or the

other to win the case.

In this text, we address the ethical issues in the implementation, rather than the cre-

ation, of law. As you learned in political science or government classes, the creation of law

is political. Laws are written by federal and state representatives who supposedly enact the

public will. One might think that once a law is created, its implementation would be fairly

straightforward, but it should be clear by now that this is not the case. An appellate court

can change over time and be infl uenced by political shifts in power. Far from being static,

the implementation of law refl ects political realities, in direct contrast to the ideal of judi-

cial independence that is the cornerstone of our system of government.

If the judiciary is not independent of political powers, this calls into question the very ex-

istence of the checks and balances upon which this country’s government is constructed. For

instance, many Democrats suspected that the political composition of the Supreme Court

had a great deal to do with its decision in the case challenging the Florida vote after the

Bush–Gore presidential election in 2000. Whether or not the allegations are true, it should be

obvious that the strength of the justice system rests on the independence of its judiciary.

In 2005, several leaders in Congress publicly chastised the federal judiciary because

they did not like the decisions that the federal judges had been handing down, and then, in

turn, were criticized by others who argued that the essence of separation of powers is that

federal judges are not infl uenced, intimidated, or ordered by legislative leaders to enact

anyone’s political agenda. The Quote and Query box illustrates the controversy.

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QUOTE && QUERY [T]he time will come for the men responsible for this to answer for their

behavior. . . [I want to] look at an arrogant, out- of- control, unaccountable

judiciary that thumbed their nose at Congress and the president.

—SOURCE: TOM DELAY, U.S. HOUSE OF REPRESENTATIVES MAJORITY LEADER,

SPEAKING IN RESPONSE TO THE TERRI SCHIAVO CASE, MAY 2005, AS QUOTED IN

ALLEN, 2005.

Attempts to intimidate judges into deciding pending cases in a particular way

with threats of impeachment or investigation, as has been the recent practice of

some members of Congress, have no place in a functioning democracy.

—SOURCE: AMERICAN JUDICATURE, 2005.

? Do you think that members of Congress should be sanctioned for threatening impeachment when they don’t like the decisions of federal judges? If not, who does

serve as oversight for judges who are appointed for life?

The political uproar over the fi rings of eight federal prosecutors in 2007 by the Bush ad-

ministration may have seemed overblown to some people. After all, why shouldn’t a presi-

dent be able to hire and fi re at will? However, what was at stake was the very essence of the

separation of powers that is the greatest strength of our system of government. Traditionally,

when a new president comes into offi ce, he engages in a process whereby those affi liated with

the old administration are removed and new employees are placed into those positions. That

has been done in all sectors of executive government, including the Justice Department, by

Democrat and Republican administrations alike, with very little criticism. What happened in

2007, however, was that, apparently, in the middle of the term of offi ce, there was a “hit list” of

federal prosecutors who were removed not for incompetence or poor performance, but rather,

because White House aides relayed a message to Justice Department offi cials that these indi-

viduals should be replaced with others who were more loyal to the Bush administration.

Observers noted that the prosecutors targeted for fi ring were those who either pursued

prosecutions against Republicans or were too slow to respond to pressure to pursue pros-

ecutions against Democrats. In effect, the fi rings were politically motivated, not a “house

cleaning” at the beginning of a term of offi ce. When Attorney General Alberto Gonzales

responded to the congressional inquiry in an unsatisfactory way (saying more than

70 times that he couldn’t remember), he ultimately had to resign because of the scandal

(Carr and Herman, 2007). In 2008, the Justice Department released a scathing 400- page

report charging ethical violations in the firing of U.S. attorneys such as David Iglesias

in New Mexico; however, it received very little press since Wall Street’s fi nancial crisis

eclipsed all other news stories at the time (Johanek, 2008).

If the justice system, including prosecutors and judges, is a pawn or an agent of politi-

cal power, due process is a sham and the very essence of democracy is threatened. The

importance of due process is that even criminals and enemies of the state are given due-

process rights that protect them from errors in the deprivation of life, liberty, and property.

If due process is reserved only for those who are not enemies of the state, all are threatened

because anyone may become an enemy. If for some reason state power would become

despotic, it would be likely to label as enemies anyone favoring open government and de-

mocracy. What this illustrates is that the law (and the nature of its protections) is more im-

portant than the state and, indeed, is even more important than threats to the state. Those

who are more infl uenced by political allegiance than allegiance to due process and civil

liberties create a weak link in the mantle of protection against despotic state power.

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The U.S. Supreme Court, as the ultimate authority of law in this country, decides con-

stitutionality, and these interpretations are far from neutral, despite the myth of objective

decision making. This is the reason that the selection of Supreme Court justices (as well as

all federal judges) is such a hard- fought political contest. Ideological positions do make a

difference, and no one is fooled that a black robe removes bias. The latest confi rmations of

John Roberts as Chief Justice (during the Bush administration) and Sonia Sotomayor and

Elena Kagan (during the Obama administration) illustrate this. The most recent confi rma-

tion hearing, of Elena Kagan in 2010, was a replay of past hearings with opponents and

proponents lined up predictably on ideological sides.

J U D I C I A L A C T I V I S M

Our law derives from the Constitution. Two basic philosophies regarding how to apply

constitutional principles are at work in the legal arena. The fi rst group might be called

strict constructionists because they argue that the Constitution should be implemented as written, and if any changes are to take place in rights, responsibilities, or liberties, the

changes should take place through the political system (Congress).

The extreme view of this position is that if a right isn’t in the Constitution, it doesn’t

exist. So, for instance, the right to be free from state interference in the decision to abort

one’s fetus does not exist in the Constitution; therefore, it doesn’t exist and cannot be

created except through the actions of duly elected representatives. Strict constructionists

argue that just because something should be a right doesn’t mean that one can decide the

framers meant for it to be a right. Judges should not create law.

Interpretationists (or activists) have a looser reading of the Constitution and read into it rights that the framers might have recognized or that should be recognized because

of “evolving standards.” They argue that the Constitution is meant to be a living document

and that the language of the framers was intentionally written as to accommodate inter-

pretation based on changing times and circumstances. Concepts such as due process, for

instance, from the Fifth and Fourteenth Amendments, are fl exible so they can be used to

address new questions and new concerns. Interpretationists place less emphasis on prec-

edent, minimize procedural obstacles (such as standing, ripeness, and federalism), and

offer less deference to other political decision makers (e.g., they use the strict scrutiny test

rather than the rational relationship test when evaluating governmental actions). When

the Court was in its most activist phase during the Warren Court (1953–1969), it delivered

broad opinions that have had dramatic effects on the political and legal landscape (Wolfe,

1991). The debate as to whether the Constitution should be strictly construed or liberally

interpreted is an old one, as the Quote and Query box indicates.

QUOTE && QUERY When we are dealing with words that also are a constituent act, like the

Constitution of the United States, we must realize that they have called into life a

being the development of which could not have been foreseen completely by the

most gifted of its begetters.

—SOURCE: OLIVER WENDELL HOLMES, JR., SUPREME COURT JUSTICE, 1902–1932, AS

QUOTED IN WOLFE, 1991: 36.

? Does this quote by Holmes indicate he was a strict constructionist or an interpretationist?

strict constructionist The view that an individual has no rights unless these rights are specifi ed in the Constitution or have been created by some other legal source.

interpretationist An approach to the Constitution that uses a looser reading of the document and reads into it rights that the framers might have recognized or that should be recognized as a result of “evolving standards.”

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Critics of judicial activism point out that just because judicial activists have been

promoters of civil liberties and socially progressive causes, such as integration and free

speech, there is no absolute necessity that activism could or would always champion such

individual rights. Activism could, for instance, be just as likely to recognize greater rights

of the state to restrict individual liberties (Wolfe, 1991).

Proponents of activism argue that the federal government itself has not been

content to stay within the boundaries of its enumerated powers as specified in the

Constitution, and that proliferation of the federal government’s reach into all areas of

criminal and civil law through the expansive interpretation of the Commerce Clause

requires greater judicial checks. Furthermore, there are limits to judicial power, in-

cluding impeachment, confirmation, congressional definition of appellate powers, and

the power to override a Supreme Court opinion through a constitutional amendment

(Wolfe, 1991). The Warren Court was called activist or liberal because it recognized a

whole range of civil liberties and due- process rights for groups that had been histori-

cally disenfranchised. The source of such rights was found in an expansive reading of

the Constitution and based on the idea of “fundamental liberties”—those freedoms

and protections that the framers would have recognized if they had been asked. Cen-

tral to this view is the idea of natural rights. Recall that the natural law ethical system holds that there are natural laws of ethics that humans may or may not discover. Sev-

eral of the authors of the Bill of Rights were natural law theorists; thus, taken out of the

context of their time, they would probably recognize that humans have the following

rights:

To be free •

To be treated equal to other groups •

To be able to make decisions about personal matters without governmental •

interference

To be free from torture and punishments that degrade the human spirit •

To have some protections against state power •

In addition, there may be recognition that humans also have rights

To basic necessities to survive •

To avail themselves of opportunities to better themselves •

The fi rst set of rights leads to less government; the second set leads to more govern-

ment. That is why the political terms conservative and liberal are not strictly comparable to

“strict constructionist” and “interpretationist” and why there is such confusion when these

terms are being used to describe judicial and political appointees and elected offi cials.

“Liberals” argue that if the Warren Court hadn’t interpreted the Constitution to recognize

civil rights, blacks would still be eating at separate lunch counters. Constructionists argue

that if interpretationists had their way, government and the courts would be involved in

every decision from birth to death.

The Supreme Court’s “activism” has been intimately tied to who has been on the

bench. Observers note that it has moved back to a constructionist stance, because of the

confi rmations of John Roberts, Samuel Alito, Clarence Thomas, and Antonin Scalia. In

recent holdings, the Court has restricted the coverage of the Miranda warnings, upheld

federal anti- abortion laws, cut back on free- speech rights of public school students, strictly

natural rights The concept that one has certain rights just by virtue of being born, and these rights are not created by humans, although they can be ignored.

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enforced procedural requirements for bringing and appealing cases, and limited the ability

to use racially conscious measures to achieve or preserve integration.

One can predict case decisions based on the justices’ ideological positions, with

Scalia, Alito, Thomas, and Roberts almost always voting in a block and usually win-

ning in 5–4 decisions when Justice Anthony Kennedy provides the swing vote. What

is interesting is that so- called “liberal” justices were appointed by Republican presi-

dents: Justices John Paul Stevens (appointed by Gerald Ford), Justice David Souter

(appointed by George H.W. Bush), and Sandra Day O’Connor (appointed by Ron-

ald Reagan) were not considered activist or liberal when they were appointed but

moved in that direction compared to the justices that have been appointed since

then (Greenhouse, 2007). It is expected that Sonia Sotomayor and Elena Kagan will

not change this formula since they replace justices who voted with the liberal block

(Souter and Stevens).

Judges’ political leanings shouldn’t influence their decisions, but it is hard to

argue that there is no correlation. Even an analysis by the Justice Department deter-

mined that immigration judges (also called hearing examiners) who were hired by

the George W. Bush White House based on a political affiliation requirement and

their views on immigration and abortion were less likely to grant asylum than judges

hired with politically neutral criteria. Using such criteria was determined to be illegal

and abandoned, but the immigration hearing examiners continue to remain in place

(Savage, 2008).

One thing is clear: a judge is human and carries baggage of personal, political, and

social bias. Judges no doubt strive for objectivity, and we attempt to protect their inde-

pendence, but individual ethics clearly are important considerations in any discussion of

judicial discretion. The law is subject to interpretation; thus, individual ethics play a part

in the use of the powers given to the judiciary.

C O N C L U S I O N

One might expect that the public’s respect and trust for legal professionals, as guardians of

the justice system, would be high, but that is not the case. Part of the reason is the ability to

take either side in a controversy. We should not forget that attorneys and judges protect the

bedrock of our structure of laws.

In criminal justice, it is crucial that legal professionals remember and believe in the

basic tenets of due process and be ever vigilant against the infl uence of prejudice or bias

in the application of law toward the pursuit of justice. Unfortunately, there are cases where

defense attorneys, prosecutors, and judges do not uphold the ethical standards of their

profession and instead engage in various forms of misconduct. Although the types of mis-

conduct vary depending on one’s role in the system, each can be explained by individual

enrichment (money, status, or time), or by ends/means thinking due to confi rmatory bias

(similar to noble- cause corruption for police offi cers).

There is a need to improve the ethics of the system, as evidenced by the Innocence

Project’s exonerations of hundreds of people who ended up in prison because of the fail-

ings of the system and system actors. It is important to remember that the law, despite

those who advocate strict constructionism, can never be truly objective or formulistic. Ev-

ery decision is made through a reasoned and, one hopes, ethical application of the law

rather than by a robotic question and answer. The law must be seen as a living entity, and

legal professionals are its life’s blood.

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C H A P T E R R E V I E W

1. Detail the types of misconduct that have been associated with defense attorneys, pros-

ecutors, and judges.

Misconduct by defense attorneys includes ignoring cases, incompetence, and going over

the line when defending clients, including presenting false evidence. The types of pros-

ecutorial misconduct include withholding exculpatory evidence, misusing pretrial pub-

licity, using preemptory challenges to exclude jurors, and using false evidence in court.

Misconduct by judges includes allowing bias (including bribery) to infl uence their deci-

sion making and acting arbitrarily and otherwise abusing their power.

2. Explain the reasons why such misconduct occurs.

The reason why misconduct occurs is that the disciplinary functions carried out by the

state bar associations rarely result in serious sanctions. Prosecutors experience very little

oversight and seldom suffer from sanctions when violating the ethical rules in their zeal to

obtain a conviction. Court often rule such misconduct as harmless error. Judges are feared

by employees and lawyers who hesitate to fi le complaints against them.

3. Describe the Innocence Projects, how many individuals have been found to be wrongly

imprisoned, and why.

These are loose associations of lawyers who identify cases where the prisoner may

be innocent and investigate, often resulting in a new trial and exoneration. Thus far,

Innocence Projects across the country have succeeding in obtaining exonerations for more

than 250 individuals.

4. Discuss some proposals to improve the justice system and reduce ethical misconduct.

Suggestions to improve the system have been to institute offi cial Innocence Projects or

fund them with public money. Some prosecutors have established divisions to investigate

wrongful convictions. Suggestions also include more training and ethics offi cers. Also,

some have suggested re- evaluating prosecutorial immunity and using civil and criminal

sanctions against prosecutors who create and use false evidence and engage in other forms

of misconduct to obtain convictions.

5. Understand the concepts associated with judicial activism or constructionism and

how this issue relates to ethical misconduct.

An activist judge is one who believes such concepts as due process and liberty rights are

evolving and the founding fathers did not mean for the rights enumerated in the Constitu-

tion to remain static throughout time. Constructionists argue that legislators should make

law, not judges. One’s opinion regarding this—and one’s values, opinions, and biases in

general—affect decision making, so judges’ opinions on cases can be predicted ahead of

time in many cases. This calls into question judicial neutrality and reminds us that, in the

end, our system of laws is a system of people who enforce the law, and thus it is only as

good or bad as the people in the system.

K E Y T E R M S confi rmatory bias

Innocence Project

interpretationist

natural rights

strict constructionist

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C H A P T E R 1 0 | E t h i c a l M i s c o n d u c t i n t h e C o u r t s a n d Re s p o n s e s 3 1 1

S T U D Y Q U E S T I O N S

1. What is the evidence that shows the public mistrusts attorneys?

2. What are the four types of ethical violations that have been associated with

prosecutors?

3. Discuss the number of innocents who may be imprisoned. What are the sources for

the estimates? What are the criticisms of the sources?

4. What factors have been identifi ed as contributing to false convictions?

5. What is the evidence to indicate a pervasive pattern of racial bias in the system?

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Using ethical and moral criteria, write an essay on (or discuss) courtroom practices:

the use of videotaped testimony, allowing television cameras into the courtroom and

jury room, victim statements during sentencing, preventive detention, neighborhood

justice centers, the use of a waiver to adult court for violent juvenile offenders, and any

others that have been in the news recently.

2. After watching a movie that presents a legal dilemma (e.g., Presumed Innocent, 12 An-

gry Men, Philadelphia, or Michael Clayton), write an essay on (or discuss) the ethical

dilemmas of the characters. Use one or more of the ethical frameworks provided in

Chapter 2.

3. Write an essay on (or discuss) judicial activism. Present the arguments on both sides

of the question as to whether judges should interpret or simply apply the Constitution.

Provide more current examples (the current Supreme Court docket) and predict how

justices will decide. If one can predict the decisions of the justices on the Supreme

Court, where does that leave the idea that no case is prejudged?

E T H I C A L D I L E M M A S

Situation 1

You are a defense attorney who is defending a man against a charge of burglary. He tells

you that he was drunk on the night in question and doesn’t remember what he did. He

asks you to put him on the stand, and when you do, he responds to your questions by stat-

ing unequivocally that he was home watching a television show, describing the show and

plotline. You understand that you cannot participate in perjury, but to call attention to his

inconsistent stories would violate other rules, such as confi dentiality and zealous defense.

What do you do?

Situation 2

You are a member of a jury. The jury is hearing a child molestation case in which the defen-

dant is accused of a series of molestations in his neighborhood. You have been advised by

the judge not to discuss the case with anyone outside the courtroom, and especially not with

anyone on either side of the case. Going down in the elevator after the fourth day of the trial,

you happen to ride with the prosecutor in the case. He tells you that the man has a previous

arrest for child molestation, but that it has not been allowed in by the judge, as being too

prejudicial for the jury. You were fairly sure that the guy was guilty before, but now you defi -

nitely believe he is guilty. You also know that if you tell the judge what you have heard, it will

probably result in a mistrial. What would you do? What should happen to the prosecutor?

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3 1 2 P A R T I I I | L a w

Situation 3

You are a court administrator and really like Judge Sonyer, your boss. He is pleasant, punc-

tual, and hardworking. One day, you hear him talking to the prosecutor in chambers. He is

talking about the defendant in a trial that is about to start, and you hear him say that “the

son- of- a- bitch is as guilty as sin.” You happen to be in law school and know that, fi rst, the

prosecutor and judge should not be talking about the case without the presence of the de-

fense attorney, and, second, the judge has expressed a pre- existing bias. The judge’s state-

ment is even more problematic because this is a bench trial and he is the sole determiner

of guilt or innocence. What would you do?

Situation 4

You are a federal judge and are about to start a federal racketeering trial that is quite com-

plicated. Prosecutors allege that certain lobbyists funneled money into political campaigns

by “washing” it through individual employees of a couple of large corporations. Still, the

evidence seems equivocal—at least what you’ve seen so far. You get a call from one of your

state’s U.S. senators (who is not implicated in the case, although members of his party are),

and the conversation is innocuous and pleasant enough until the senator brings up the

case and jocularly pressures you to agree with him that it is a “tempest in a teapot.” Then

he mentions that a higher, appellate- level judgeship will be opening soon and that he is

sure you would like his support on it. The message is not subtle. What would you do?

Situation 5

You are a defense attorney who sees a judge in your jurisdiction having dinner with a pros-

ecutor. Both are married to other people. You happen to have a case in front of this judge

and the prosecutor is your opponent. You consider that you could request the judge recuse

himself from the case, but this may create animosity, and if he refuses, it could be detrimen-

tal to your client. Alternatively, you could keep quiet and use the information on appeal, but

this may mean your client spends years in prison. Finally, you could do nothing and hope

that the judge is not biased toward the prosecution in his rulings. What would you do?

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P A R T I VP A R T I V

Corrections

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• 315 •

C h a p t e r O b j e c t i v e s

1. Provide the defi nitions of punishment and treatment and their rationales.

2. Describe how the ethical frameworks justify punishment.

3. Describe the ethical rationales for and against capital punishment.

4. Describe the ethical codes for correctional officers, treatment professionals, and probation and parole

offi cers.

5. Explain how occupational subcultures affect adherence to professional ethics codes.

The Ethics of Punishment and Corrections

Imagine that you are arrested and convicted of a drug crime. Because of harsh drug laws

in your state, you are sent to prison for three years. Nothing in your background prepares

you for the experience. Your family and friends are horrifi ed; you are terrifi ed. Jail was

bad enough, but this is a small county and only six other women were housed there who,

despite constant verbal taunting, were relatively harmless. Now, however, you arrive at

the state women’s facility. The whole process, from the long bus ride to the prison, to the

humiliating public shower and delousing, to the body- cavity search, to the yelling of the

correctional offi cer in charge that “all you crack ho’s better get moving” has been confus-

ing, overwhelming, and soul- destroying.

Once you fi nally are settled in your cell, your cellmate tells you that a woman can

do certain things for the guards in this prison to make the time pass easier. Further, she

says, if you catch the eye of a certain guard, you won’t have any choice in the matter be-

cause he doesn’t like to be refused. You think she is exaggerating. After all, things like that

don’t happen in real life, only in the movies. You are wrong. By the end of your fi rst six

months in prison, the person you used to be and why you are being punished are distant

memories.

Two famous quotes resonate throughout the discussion of ethics in corrections.

The fi rst is from Dante’s Divine Comedy: “Abandon all hope, ye who enter here.” This

inscription at the portal to hell, often scrawled as graffi ti in prisons, unfortunately encap-

sulates what some prisons mean to those who are sent there. The second quote, by Fyodor

Dostoyevsky, who was reputed to have said, “The degree of civilization in a society can

P A

T G

R E

E N

H O

U S

E /

B o

st o

n G

lo b

e /

L a n

d o

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3 1 6 P A R T I V | C o r re c t i o n s

be judged by entering its prisons,” cautions that the best of us still have certain duties of

respect and care toward the worst of us.

Once someone has been found guilty of a criminal offense, the type of punishment

must be determined. Punishments range from a suspended sentence to death. Sometimes

punishment includes treatment, at least in name. During incarceration, the wrongdoer may

be required to participate in treatment programs or self- help groups such as Alcoholics

Anonymous. Probationers may be required to go to drug- treatment programs; they may

even be required to get their GED or obtain some type of job training. In addition to for-

mal, legal punishments, there are informal, extra- legal punishments that should not exist,

but unfortunately do exist. Inmates are raped and beaten, more often by other inmates,

but sometimes by guards. Their personal property is destroyed. They get sick or injured

and receive no treatment. Prisoner advocates maintain that these events should never be

part of the formal punishment of prison, but others believe that the prisoner “shouldn’t do

the crime if he (or she) can’t do the time.”

According to one author (Leiser, 1986: 198), fi ve elements are essential to the defi ni-

tion of punishment:

1. There are at least two persons—one who inflicts the punishment and one who is

punished.

2. The person who infl icts the punishment causes a certain harm to the person who is

being punished.

3. The person who infl icts the punishment has been authorized, under a system of rules

or laws, to harm the person who is punished in this particular way.

4. The person who is being punished has been judged by a representative of that author-

ity to have done what he or she is forbidden to do or failed to do what he or she is

required to do by some relevant rule or law.

5. The harm that is infl icted upon the person who is being punished is specifi cally for

the act or omission mentioned in condition 4.

We also need to defi ne treatment. According to correctional terminology, treatment may be anything used to induce behavioral change. The goal is to eliminate dysfunctional

or deviant behavior and to encourage productive and normal behavior patterns. In prison,

treatment includes diagnosis, classifi cation, therapy, education, religious activity, voca-

tional training, and self- help groups.

The infl iction of punishment and even treatment is usually limited by some ratio-

nale or guideline. For instance, von Hirsch (1976: 5) presents the following restrictive

guidelines:

The liberty of each individual is to be protected as long as it is consistent with the •

liberty of others.

The state is obligated to observe strict parsimony in intervening in criminals’ lives. •

The state must justify each intrusion. •

The requirements of justice ought to constrain the pursuit of crime prevention (that •

is, deterrence and rehabilitation).

This chapter and the next two follow the format we have established in the previ-

ous sections on law enforcement and legal professionals. In this chapter, we will first

explore relevant issues such as the various rationales for punishment and capital punish-

ment in particular, present the formal codes of ethics for correctional professionals and

describe occupational subcultures that sometimes confl ict with the formal code of ethics.

punishment Unpleasantness or pain administered by one in lawful authority in response to another’s transgression of law or rules.

treatment Anything used to induce behavioral change with the goal of eliminating dysfunctional or deviant behavior and encouraging productive and normal behavior patterns.

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C H A P T E R 1 1 | T h e E t h i c s o f P u n i s h m e n t a n d C o r re c t i o n s 3 1 7

In Chapter 12, we will discuss some ethical dilemmas for correctional professionals that

arise because of the discretion inherent in these roles. In Chapter 13, we will review past

and current instances of misconduct by correctional professionals, explanations proposed

for such behavior, and suggestions for improving the ethical climate in corrections.

Rationales for Punishment and Corrections Does society have the right to punish or correct miscreants? If it does, where does that right

come from? The rationale for punishment and corrections comes from the social contract.

In the same way that the social contract forms the basis for police power, it also provides

a rationale for further control in the form of punishment and corrections. Recall that ac-

cording to this theory, we avoid social chaos by giving the state the power to control us. In

this way we protect ourselves from being victimized by others by giving up our liberty to

aggress against others. If we do step outside the bounds of this agreement, the state has the

right to control and punish us for our transgressions. Concurrently, the state is limited in

the amount of control it can exert over individuals. To be consistent with the social con-

tract, the state should exert its power only to accomplish the purpose of protection; any

further interventions in civil liberties are unwarranted.

Corrections pursues a mixture of goals, including retribution, reform, incapacitation,

deterrence, and rehabilitation. The long- standing argument between proponents of pun-

ishment and proponents of treatment reveals a system without a clear mandate or ratio-

nale for action. Garland (1990) writes that the state’s goal of punishment is problematic

because it is marked with inconsistencies between the intent and the implementation. The

moral contradictions are that it seeks to uphold freedom by means of its deprivation, and

it punishes private violence by infl icting state violence. Can treatment and punishment

occur at the same time? Some argue that because punishment has the goal of infl icting

pain on an individual, it is fundamentally incompatible with the goal of treatment. Others

argue that there is no reason that positive change cannot occur in a correctional setting.

One of the most problematic issues in justifying what we do in the name of punish-

ment is that what we do to offenders changes over time (and place). If what is considered

to be appropriate punishment changes, how can any particular punishment be considered

to be just under some form of universalism or natural law theory? In other words, in earlier

centuries we might have hanged a pickpocket. Was that just, or is it just today to incarcer-

ate the person? Is it just to incarcerate drug users today when in times past (or, perhaps,

in future times) they would not be imprisoned at all? Prisoners in different prisons have

vastly different sentences. How can the worst prison be fair if it is just chance whether a

prisoner ends up there or in a prison with better living conditions?

An important question to ask is: “Whom are we punishing?” Studies show that only a

small minority of individuals who commit crimes end up in prison; furthermore, we may

assume that those individuals are not representative of the larger population. Those in our

jails and prisons are there not only because they committed crimes, but also because they

are poor, members of a minority group, or powerless. Certain types of criminals tend to

avoid the more punitive sanctions of the corrections system. For instance, businesses rou-

tinely bilk consumers out of billions of dollars annually and chalk up the punitive fi nes

imposed to operating expenses; property offenders in prison cost us far less, but we pun-

ish them more severely. Streams and land are routinely polluted by industrial waste, but,

again, punitive fi nes are the typical sanctions, and these cannot begin to restore what has

been taken away in the fl agrant pursuit of fi nancial profi t. Such costs are typically passed

on to the consumers, so taxpayers suffer the crime and then also pay the fi ne.

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3 1 8 P A R T I V | C o r re c t i o n s

Long ago, criminals were viewed as sinners with no ability to change their behavior,

so punishment and incapacitation were seen as the only logical ways to respond to crime.

Jeremy Bentham (1748–1832) and Cesare Beccaria (1738–1794) viewed the criminal as ra-

tional and as having free will and, therefore, saw the threat of punishment as a deterrent.

Neoclassicists such as Adolphe Quetelet (1796–1874) and André- Michel Guerry (1802–

1866) recognized that insane persons and juveniles could not be held entirely responsible

for their actions and, therefore, believed that they should not be punished. The insane and

the young were treated differently because they were considered to be moral infants, not

possessing the sense to refrain from wrongdoing.

In the 1800s, the positivist school looked for differences between criminals and non-

criminals. The search for differences eventually, in the 1960s and 1970s, led to the short-

lived rehabilitative era and the treatment ethic—the idea that all criminal acts were symptoms of an underlying pathology. The treatment programs created in the last hun-

dred years or so operate under the assumption that we can do something to offenders to

reduce their criminal activity. That “something” may involve

Treating a psychological problem, such as a sociopathic or paranoid personality •

Addressing social problems, such as alcoholism or addiction •

Resolving more pragmatic problems, such as chronic unemployment, with vocational •

training and job placement

Obviously, the perception of the criminal infl uences the rationale for correction and

punishment. The two major justifi cations for punishment and treatment are retribution and prevention. The retributive rationale postulates that punishment is an end in itself, whereas the prevention approach views punishment as a means rather than an end and

embraces other responses to crime. The retributive rationale is probably more consistent

with a view of the criminal as rational, and the prevention rationale, with certain excep-

tions, is more consistent with the view of the criminal as somehow less responsible for his

or her behavior, both morally and legally.

R E T R I B U T I O N

As mentioned before, the social contract provides the rationale for punishment. The

retributive rationale for punishment is consistent with the social contract theory. Sim-

ply stated, the retributive rationale is that the individual offender must be punished

treatment ethic The idea that all criminal acts are symptoms of an underlying pathology.

retribution A rationale for punishment that states that punishment is an end in itself and should be balanced to the harm caused.

prevention A rationale for punishment that views it as a means rather than an end and embraces any method that can avoid crime, painful or not (includes deterrence, rehabilitation, and incapacitation).

White Collar Crime: Fair Punishment?

Many people think that white collar (“suite”) criminals

do not get punished as severely as “street” criminals.

There is some truth to that. Even though Tyco Interna-

tional’s Dennis Kozlowski, WorldCom’s Bernie Ebbers,

and, of course, Bernie Madoff received long prison sen-

tences, many do not. Michael Milken was the king of

junk bonds and insider trading in the early 1990s and his

“cost” of two years in prison gained him $500 million to

spend when he was released. Enron’s Jeffrey Skilling and

Andrew Fastow will serve several years in prison, but

HealthSouth’s Richard Scrushy was acquitted, as was

Global Crossing’s Gary Winnick. Observers note that

white collar criminals face harsher sentences today than

they did in the early 1990s. The wide- scale fraud and ille-

galities that resulted in many investors losing their retire-

ment holdings in the early 2000s led to calls for serious

punishments, such as the 15- year sentence received by

Adelphia’s John Rigas. In the late 2000s, we experienced

an even bigger financial scandal, but the names of the

players behind the derivatives market and stock market

crash are not as clearly identifi ed. In fact, it is unlikely

that the largest fi nancial crisis in modern history will re-

sult in anyone serving prison time. More to the point, it

is not even clear if their activities broke any laws.

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C H A P T E R 1 1 | T h e E t h i c s o f P u n i s h m e n t a n d C o r re c t i o n s 3 1 9

because he or she deserves it. Mackie (1982: 4) describes three specific types of

retribution:

Negative retribution • dictates that one who is not guilty must not be punished for a

crime.

Positive retribution • demands that one who is guilty ought to be punished.

Permissive retribution • allows that one who is guilty may be punished.

This formulation states that retribution may support punishment, but may also limit

it. There are limits as to who may be punished (only those who commit crimes) and re-

strictions on the amount of punishment (only that suffi cient to balance the wrong). Fur-

ther, this formulation implies that punishment need not be administered in all cases. The

exceptions, although not discussed by Mackie, may involve the concepts of mercy or di-

minished responsibility.

Another retributivist justifi cation for punishment is that it is the only way the individ-

ual can achieve salvation. Thus, we owe the offender punishment because only through

suffering can atonement occur, and only through atonement or expiation can the offender achieve a state of grace. Some would strongly object to this interpretation of religious eth-

ics and argue that Christianity, while supportive of just punishment, does not necessarily

support suffering as the only way to achieve a state of grace: There must be repentance,

and there is also room for forgiveness.

One other view consistent with retribution is that punishment balances the advantage

gained by a wrongdoer. The criminal act distorts the balance and parity of social relation-

ships, and only a punishment or similar deprivation can restore the natural balance that

existed before the criminal act.

What is an appropriate amount of punishment? This is a diffi cult question even for

the retributivist. The difference between a year in prison and two years in prison is mea-

surable only by the number of days on the calendar, not by how it is experienced by differ-

ent people. Should this be considered during sentencing? Punishment of any kind affects

individuals differently. For instance, a whipping may be worse than death for someone

with a low tolerance for pain, better than prison for someone with a great need for free-

dom, and perhaps even pleasurable for someone who enjoys physical pain. Prison may be

experienced as an inconvenience for some, and such a traumatic experience for others that

it may induce suicide. Our current system of justice seldom recognizes these individual

vulnerabilities or sensitivities to various punishments.

Sentencing studies routinely show little or no agreement regarding the type or amount

of punishment appropriate for a wrongdoer. Disparity in sentencing is such a problem

that many reforms have been aimed at reducing or even eliminating judges’ discretion,

such as determinate sentencing and sentencing guidelines. Yet, when legislators take on

the task themselves by setting determinate sentences, their decisions are arrived at by ob-

scure methods, probably more infl uenced by political pressure and compromise than by

the application of fair and equitable standards.

The justice model and the just deserts model, developed in the late 1970s and early

1980s, came about partly as a backlash to the abuses of discretion that characterized the

rehabilitative era of the 1970s, and led the way to the current punitive era. Basically, the

justice model holds that individuals are rational and that, even though free will may not exist perfectly, the concept must serve as a basis for the criminal law. Punishment is to

be used for retribution, not deterrence, treatment, or any other purpose. This model pro-

moted a degree of predictability and equality in sentencing by reverting to earlier retribu-

tive goals of punishment and restricted the state’s right to use treatment as a criterion for

expiation Atonement for a wrong to achieve a state of grace.

justice model Fogel’s conceptualization that the punishment of the individual should be purely retributive and balanced to the seriousness of the crime.

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3 2 0 P A R T I V | C o r re c t i o n s

release. Finally, prisoners should be seen as volitional, responsible humans, not as patients

(Fogel, 1975).

The just deserts model, appearing about the same time as the justice model, was also retributive and based punishment on “commensurate deserts” (von Hirsch, 1976: xxvi).

As the spokesperson for this view, von Hirsch (1985: 138) disagreed with combining re-

tributive and deterrent or incapacitative goals. According to von Hirsch, crimes should

be weighed in seriousness based on their recidivism potential. Offenders who commit

similar crimes should be punished equally, but the rank ordering of crimes is determined

by recidivistic potential. This system—categorical incapacitation—combines deserts and

prevention, but in a way that, according to von Hirsch, is not unjust to the individual of-

fender. Von Hirsch continued to champion the retributive rationale for punishment well

into the 1990s, in opposition to those he called the new rehabilitationists, who advocate treatment (von Hirsch, 1985: 150; von Hirsch and Maher, 1992).

Garland (1990) offered a different view, proposing that the emphasis of society should

be on socializing and educating citizens. The punishment that was still necessary for those

who broke the law should be viewed as morally expressive rather than instrumental and

should be retributive rather than attempt prevention goals. Feeney (2005) continues this

idea that sentencing should be purely retributive, and be “morally signifi cant” in that it

expresses condemnation of the behavior. Both of these writers are similar to the earlier just

deserts theorists in that they believe punishment should be retributive rather than serve

the goals of deterrence.

Our current time has been described as the era of penal harm; this refers to the idea that the system intentionally infl icts pain on offenders during their imprisonment, be-

cause merely depriving them of liberty is not considered suffi ciently painful (Clear, 1996;

Cullen, 1995). No one doubts that we have become more punitive in sentencing and that

offenders are serving more time in prison. The interested reader can also go to government

sources, such as the Bureau of Justice Statistics, to see how imprisonment patterns have

changed over the years. The national incarceration rate of 150 per 100,000 in the 1980s has

increased to 952 for men and 68 for women in 2008, with minorities having even higher

rates of imprisonment. There are now about 1.7 million people under federal and state

jurisdiction (Sabol, West, and Cooper, 2009).

P R E V E N T I O N

Three common justifi cations or rationales for punishment can all be subsumed under a

general heading of “prevention.” Prevention assumes that something should be done to

the offender to prevent future criminal activity. There are three possible methods of pre-

vention: deterrence, incapacitation, and treatment. Each of these goals is based on certain

assumptions that must be considered in addition to the relevant moral questions. For in-

stance, it is a factual question as to whether people can be deterred from crime, but it is a

moral question as to what we should do to an individual to ensure deterrence.

DETERRENCE There are two types of deterrence. Specifi c deterrence is what is done to offenders to prevent them from deciding to commit another offense. General deterrence is

what is done to an offender to prevent others from deciding to engage in wrongful behav-

ior. The fi rst teaches through punishment; the second teaches by example.

Our right to deter an individual offender is rooted in the same rationale used to sup-

port retribution. By virtue of membership in society, individuals submit themselves to so-

ciety’s controls. If we think that someone’s actions are damaging, we will try various means

just deserts model Fogel’s conceptualization that the punishment of an individual should be limited by the seriousness of the crime, although treatment could be offered.

new rehabilitationists Theorists and researchers who believe that evidence shows that rehabilitative programs do result in lower recidivism.

penal harm The idea that the system intentionally infl icts pain on offenders during their imprisonment or punishment, because merely depriving them of liberty is not considered suffi ciently painful.

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to persuade him or her to cease that activity. The implicit assumption of a deterrence phi-

losophy is that in the absence of controls, society would revert to a jungle- like, dangerous

“war of all against all”; we need the police and offi cial punishments to keep us in line.

Under this rationale, the true nature of humankind is perceived to be predatory and held

in check only by external controls. Deterrence advocates support deterrence as a justifi ca-

tion of punishment. The Quote and Query box enumerates the key points of view in this

justifi cation for punishment.

QUOTE && QUERY 1. Those who violate others’ rights deserve punishment.

2. However, there is a countervailing moral obligation not to deliberately add to

the amount of human suffering, and punishment creates suffering.

3. Deterrence results in preventing more misery than it creates, thereby

justifying punishment.

—SOURCE: ADAPTED FROM VON HIRSCH, 1976: 54.

? Is this utilitarian thinking or ethical formalism? Explain your answer. The rationale of specifi c deterrence depends on the effectiveness of punishment in

deterring future bad acts by the individual being punished. The support for general de-

terrence is even more problematic. First, it becomes much harder to justify even if there

is evidence of effectiveness. If we know that a term of imprisonment will not deter an

offender but can deter others, can it still be justifi ed? A clear example of this situation is

the so- called passion murderer who probably does not need specifi c deterrence because

the chance of killing again is slim. However, he or she is usually given a long sentence to

make it clear that killing will not be tolerated. (There is, of course, also a good retributive

rationale for the long sentence.) Under general deterrence, the offender is only a tool to

teach a lesson to the rest of us. The sociologist Emile Durkheim believed that the value of

criminals is in establishing the parameters of acceptable behavior. Their punishment helps

the rest of us defi ne what is “good.”

If one’s goal is purely general deterrence, there does not necessarily have to be an

original crime. Consider a futuristic society wherein the evening news routinely shows

or describes the punishments received by a variety of criminals. The crime—or the pun-

ishment, for that matter—does not have to be real to be effective. If punishing innocent

people for crimes they might do were just as effective as punishing criminal offenders, this

action might satisfy the ends of deterrence, but would obviously not be acceptable under

any system of ethics—except perhaps act utilitarianism. The movie Minority Report pre-

sented a somewhat related ethical issue in that it portrayed a future where the government

knew ahead of time when individuals would commit a crime and punished them for what

they were going to do. The idea of punishing an individual for reasons other than their

own acts seems wrong because it violates the retributive justifi cation of punishment, but it

certainly might be more effective to prevent crime than punish it after the fact.

INCAPACITATION Another purpose of punishment is to prevent further crime through incapacitation. Strictly speaking, incapacitation does not fi t the classical defi nition of pun-

ishment, for the purpose is not to infl ict pain but only to hold an offender until there is no

risk of further crime. The major issue concerning incapacitation is prediction. Unfortu-

nately, our ability to predict is no better for incapacitative purposes than it is for deterrence

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purposes. Two possible mistakes are releasing an offender who then commits further

crimes and not releasing an offender who would not commit further crimes.

Carrying the goal of incapacitation to its logical conclusion, one would not have to

commit a crime at all to be declared potentially dangerous and subject to incapacitation.

We now incarcerate career criminals for life—not for their last offense, but for what they

might do if released. These “habitual- felon laws” are justifi ed by the prediction that these

criminals will continue to commit crimes. Some argue that a small group of offenders com-

mit a disproportionate share of crime and that those individuals can be identifi ed by pre-

dictive elements such as prior convictions, prior incarcerations, juvenile convictions and

detentions, use of heroin or barbiturates, and lack of employment (Greenwood, 1982).

Selective incapacitation is a policy of incarcerating these individuals for longer periods of

time than other criminals. Other studies, however, have indicated that our ability to pre-

dict who would commit further crime is actually poor, with an error rate of 48 percent

( Auerhahn, 1999). Obviously, there are grave ethical issues in using these predictive de-

vices to increase sentences when the error rate is so high.

Three- strikes laws are defended under an incapacitative rationale because it is ar- gued that repeat offenders are more likely to commit future crimes, so they should be held

for long periods of time. More than half of all states now have some type of three- strikes

or habitual- offender laws, but only a few states, such as California, have laws that impact a

large number of offenders (King and Mauer, 2001).

Critics argue that for both practical and ethical reasons, the California three- strikes

sentence is bad policy. It incarcerates those who are past their crime- prone- age years; it

incarcerates nonviolent offenders for long periods of time; and it is so expensive that it

draws resources away from other social needs, such as schools. Further, it is unfairly dis-

proportionate to the crime. Some offenders convicted of fairly minor third felonies have

received 25 years to life in prison (King and Mauer, 2001; Zimring, Hawkins, and Kamin,

2001). Another troubling aspect of three- strikes laws is that African Americans tend to be

disproportionately affected (Cole, 1999).

The U.S. Supreme Court ruled in March 2003 that California’s three- strikes law

was not grossly disproportionate and deferred to the state’s authority in setting pun-

ishments (Lockyer v. Andrade, 538 U.S. 63 [2003] and Ewing v. California, 538 U.S. 11

[2003]). Clearly, if three- strikes laws are changed, it will be through state courts ruling

that the long sentences violate state constitutional rights or state legislatures changing

the law. In the Policy Box, the law, policy, and ethics of the three- strikes movement are

untangled.

TREATMENT If we can fi nd justifi cation for the right to punish, can we also fi nd justifi - cation for treatment? Treatment is considered to be benefi cial to the individual offender as

well as to society. This is a very different approach from the moral rejection implicit in re-

tributive punishment. Treatment implies acceptance rather than rejection, support rather

than hatred. However, the control over the individual is just as great as with punishment;

some people would say it is even greater.

What is treatment? We sometimes consider anything experienced after the point of

sentencing to be treatment, including education, prison discipline, and religious services.

A court was obliged to defi ne treatment in Knecht v. Gillman (488 F.2d 1136 [1973]). In-

mates challenged the state’s right to use apomorphine, a drug that induces extreme nausea

and a feeling of imminent death, as a form of aversive conditioning. In its holding, the

court stated that calling something “treatment” did not remove it from Eighth Amend-

ment scrutiny. In other words, merely labeling some infl iction of pain as treatment would

not necessarily render it immune from legal challenge as cruel and unusual punishment.

three- strikes laws Sentencing legislation that imposes extremely long sentences for repeat offenders—in this case, after three prior felonies.

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Treatment was further defi ned as that which constitutes accepted and standard practice

and which could reasonably result in a “cure.”

The Supreme Court has also ruled on whether prison officials can administer

antipsychotic drugs against the will of the prisoner. Despite arguments that even prisoners

have an inherent right to be free from such intrusive control, the Court held, in Washington v.

Harper (494 U.S. 210 [1990]), that an inmate’s right to refuse such medication did not

outweigh the state’s need to administer it if there was a showing that the inmate posed a

security risk.

What we think needs to be cured is another issue. Recall the discussion of whether

our society could be characterized by consensus or confl ict. Treating a deviant may be

justifi able if one believes that society is basically homogeneous in its values and beliefs,

but viewed from a confl ict perspective, treatment may look more like brainwashing and

a coercive use of power. Civil libertarians would point out that it is no accident that

political dissidents in totalitarian states are often handled as if they have mental prob-

lems and are treated with mind- altering drugs and other brainwashing regimens. The

greater intrusiveness inherent in treating the mind is sometimes considered worse than

punishment.

According to some experts, treatment can be effective only if it is voluntary; others

disagree. It is true that much of the treatment that inmates and other correctional clients

participate in is either implicitly or directly coerced. Providing treatment for those who

want it is one thing; requiring those who are resistant to participate in psychotherapy,

group therapy, or religious activities is quite another. It is not justifi able under a retributivist

Many states have three- strikes legislation, and this type of sentencing has been around for a long time (also called habitual- felon laws). The basic assumption is that the second or third felony is more serious than the fi rst felony and/or that punishment must be made harsher because it did not deter the fi rst time. The fi rst is a deontological rationale; the second is a utilitarian rationale. Opponents argue that these sentences are contrary to our justice system in that they pun- ish the offenders twice for the same offense.

Law With the rulings by the Supreme Court, it is clear that no fed- eral constitutional right is violated by a state habitual- criminal sentencing law. State courts could interpret state constitutional rights to be broader, and legislatures, of course, can change the law if the public pressures them to do so. In California, for instance, there are still attempts to change the law at least to exclude minor property offenders from its reach and to re- duce the 25- year sentence for second- strike offenders.

Policy There is great disparity among jurisdictions in how pros- ecutors apply habitual sentencing laws. Some jurisdictions

account for the majority of three- strikes offenders in the system, while others use it hardly at all. Thus, whether or not an offender receives a life sentence may depend, partially, on the county or state in which the crime was committed. As long as prosecutors have discretion in whether to charge under three- strikes statutes, such dis- parity will continue. Some argue also that three- strikes and habitual- offender laws are used disproportionately against minorities.

Ethics Although prosecutors have discretion in whether to charge offenders under three- strikes statutes, there are ethical and unethical criteria for such decisions. Ethical criteria would be the danger posed to the public based on the felonies the offender has committed, whereas unethical criteria would include political pressure or the race of the offender. More problematic are other criterion, such as using three strikes when an offender insists on a trial and won’t plead guilty, or when an offender will not cooperate and testify against a crime partner.

Three StrikesPOLICY ISSUES

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ethical system. Is it consistent with a prevention perspective? The answer is yes, as long as

the results support the intervention.

The evaluation literature on rehabilitative treatment programs could fill a room.

We now have more than 40 years of evaluations, as well as dozens of meta- analyses and

exhaustive reviews of the literature on rehabilitation. It is simply not true that “nothing

works,” as was widely believed through the 1980s and 1990s. However, what works is more

complicated than one program for all offenders. One interesting fi nding that comes from

evaluation research is that, evidently, sometimes a program works because of the staff

characteristics, not the modality of the program. Thus, we can see again that the individual

ethics and performance of public servants (treatment professionals in corrections) have a

great deal to do with how well the system (in this case, treatment) works.

Ethical Frameworks for Corrections The various rationales for punishment just described are well established and can be

found in corrections textbooks. The ethical systems that were introduced in Chapter 2 are

discussed less commonly in corrections texts, but they form the underlying philosophi-

cal rationale for the goals or missions of retribution and prevention (including deterrence,

incapacitation, and treatment).

U T I L I T A R I A N I S M

The principle of utilitarianism is often used to support the last three rationales of punish-

ment: deterrence, incapacitation, and treatment. According to utilitarianism, punishing or

treating the criminal offender benefi ts society, and this benefi t outweighs the negative ef-

fect on the individual offender. It is a teleological argument because the morality of the

punishment is determined by the consequences derived—reduced crime. Jeremy Ben-

tham was the major proponent of the utilitarian theory of punishment and established

basic guidelines for its use.

Bentham believed that punishment works when it is applied rationally to rational peo-

ple, but is not acceptable when the person did not make a rational decision to commit the

crime, such as when the law forbidding the action was passed after the act occurred, the

law was unknown, the person was acting under compulsion, or the person was an infant,

insane, or intoxicated (Bentham, 1843; also see Beccaria, 1977). The utility of the punish-

ment would be lost in these cases; therefore, punishment could not be justifi ed (Borchert

and Stewart, 1986: 317). Bentham’s basic formula for punishment provides that the utility

of punishment to society (by deterring crime) outweighs the negative of the punishment

itself (it is negative because it is painful). Utilitarian theory also supports treatment and

incapacitation if these can be shown to benefi t society. If, for instance, treatment and pun-

ishment were to have equal amounts of utility for society, treatment would be the more

ethical choice because it has a less negative effect on the individual. Likewise, if incapaci-

tation and punishment would be equally effective in protecting and providing utility to

society, the choice with the least negative utility would be the ethical one.

Some argue that the harms inherent in imprisonment in either jail or prison are so

extreme that they must be counterbalanced by rehabilitative programs in order to result

in a greater good (Kleinig, 2001b). It is certainly true that minor offenders should not be

incarcerated, because the harm caused by incarceration far exceeds the harm they caused

to a victim or society. It is also problematic when drug users are incarcerated because it is

hard to identify the harm caused to others by their actions, especially as weighed against

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the harms that they may endure in this nation’s jails and prisons, such as beatings, eco-

nomic exploitation, rape, and gratuitous abuse by correctional offi cers. The In the News

box illustrates the type of extra- legal punishments that are meted out in prison.

E T H I C A L F O R M A L I S M

While utilitarianism supports the prevention goals above, ethical formalism clearly sup-

ports a retributive view of punishment. It is deontological because it is not concerned with

the consequences of the punishment or treatment, only its inherent morality. It would

support the idea that a criminal is owed punishment because to do otherwise would not

be according him or her equal respect as a human. However, the punishment should not

be used as a means to any other end but retribution. Treatment is not supported by ethi-

cal formalism because it uses the offender as a means to protect society. The Quote and

Query box presents Immanuel Kant’s views.

QUOTE && QUERY Juridical punishment … can be infl icted on a criminal, never just as instrumental

to the achievement of some other good for the criminal himself or for the civil

society, but only because he has committed a crime; for a man may never be

used just as a means to the end of another person…. Penal law is a categorical

imperative, and woe to him who crawls through the serpentine maze of utilitarian

theory in order to fi nd an excuse, in some advantage to someone, for releasing

the criminal from punishment or any degree of it, in line with the Pharisaical

proverb “it is better that one man die than that a whole people perish”; for if

justice perishes, there is no more value in man living on the earth…

—SOURCE: IMMANUEL KANT, THE SCIENCE OF RIGHT, 1790

? Do you understand what Kant was trying to say? Rephrase the passage to make it more simple and current.

Several arguments support this retributive rationale. First, Mackie (1982) discusses

the universal aspects of punishment: the urge to react in a hostile manner to harm is an

element inherent in human nature; therefore, one might say that punishment is a natural

law. Another supporting argument is found in the principle of forfeiture, which postulates

in the N E W S F A I R P U N I S H M E N T ?

Bernie Madoff is arguably the biggest swindler in history, being the architect of a Ponzi scheme

that was reputed to have defrauded investors in the neighborhood of $65 billion. Caught and

convicted, he is serving a 150- year sentence. The 71- year- old was evidently beaten by a fellow

inmate in March 2010 and suffered a broken nose, fractured ribs, and cuts to his face and head.

He was moved to a medium security prison that has a lower level of inmate disturbances.

SOURCE: Bone, 2010.

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that when one intrudes on an innocent person’s rights, one forfeits a proportional amount

of one’s own rights. By restraining or hurting a victim in some way, the aggressor forfeits

his or her own liberty; in other words, he or she forfeits the right to be free from punish-

ment (Bedau, 1982). The major point to remember about ethical formalism as an ethical

rationale for punishment is that it does not need to result in any good end, such as deter-

rence. The offender should receive punishment because he deserves it, not because it will

result in something useful for him or society.

E T H I C S O F C A R E

The ethics of care would probably not support punishment unless it was essential to help

the offender become a better person. This ethical system defi nes good as that which meets

everyone’s needs—victims and offenders alike. Several authors have discussed the ethics

of care in relation to the justice and corrections system. For instance, Heidensohn (1986)

and Daly (1989) discuss differences in the perception of justice from a care perspective

versus a retributive perspective—as female and male perceptions, respectively. The female

care perspective emphasizes needs, motives, and relationships, while the male retributive

perspective emphasizes rights, responsibilities, and punishments.

The corrections system, ideally, is supported by a caring ethic because it takes into

account offender needs. Community corrections, especially, emphasizes the relationship

of the offender to the community. From this perspective, one should help the offender to

become a better person because that is what a caring and committed relationship would

entail. Retributive punishment and deterrence are not consistent with the ethics of care.

However, some say that retribution and a care ethic are not, nor should they be consid-

ered, in opposition to each other. Restorative justice, which is discussed in more detail in

Chapter 13, might be considered the merger of the two in that this approach views the of-

fender as responsible for the wrong committed, but the responsibility is satisfi ed by repa-

ration to the victim rather than by punishment and pain.

R A W L S I A N E T H I C S

John Rawls presents an alternative to utilitarianism and retributivism. Rawls’s defense of

punishment starts with Kant’s proposition that no one should be treated as a means, and

with the idea that each should have an “equal right to the most extensive basic liberty

compatible with a similar liberty to others.” According to Rawls, a loss of rights should

take place only when it is consistent with the best interests of the least advantaged. Rules

regarding punishment would be as follows (cited in Hickey and Scharf, 1980: 169):

1. We must punish only to the extent that the loss of liberty would be agreeable were

one not to know whether one were to be the criminal, the victim, or a member of the

general public [the veil of ignorance].

2. The loss of liberty must be justifi ed as the minimum loss consistent with maintenance

of the same liberty among others.

Furthermore, when the advantage shifts—when the offender instead of the victim

or society becomes the one with the least advantage—punishment must cease. This the-

ory leaves a lot of unanswered questions. For instance, if victims were chosen carefully

(e.g., only those who would not suffer fi nancially or emotionally) and the criminal were

from an impoverished background, the criminal would still be at a disadvantage and, thus,

not morally accountable for his or her actions. This rationale for punishment promotes

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the idea that the criminal act creates an imbalance between offender and victim, and that

punishment should be concerned with regaining that balance. The utilitarian thread in this

proposition is that by having this check- and- balance system in determining punishment,

all of society benefi ts.

Punishments We have discarded many punishments that were acceptable in earlier times, such as fl og-

ging, hanging, banishment, branding, cutting off limbs, drawing and quartering, and pil-

lories and stocks. Although we still believe that society has the right to punish, what we do

in the name of punishment has changed substantially. As a society, we became gradually

uncomfortable with infl icting physically painful punishments on offenders, and as these

punishments were discarded, imprisonment was used as the substitute.

Inside prison, we have only relatively recently abandoned physical punishments as

a method of control (at least formally), but that is not to say that prisons are not injuri-

ous. In addition to the informal corporal punishments that are infl icted by offi cers and

fellow inmates, prison is painful because it consists of banishment and condemnation; it

means separation from loved ones and involves the total loss of freedom. More subtly, it is

an assault on one’s self- esteem and prevents the individual from almost all forms of self-

defi nition, such as father, mother, professional, and so on. About the only self- defi nition

left is as a prison “tough guy” (or woman)—a stance that destroys the spirit and reduces

the individual to a baser form of humanity.

The Eighth Amendment protects all Americans from cruel and unusual punishment. Although what is “cruel and unusual” is vague, several tests have been used to defi ne the terms, such as the following, discussed in Furman v. Georgia (408 U.S. 238,

92 S.Ct. 2726, 33 L.Ed.2d 346 [1972]):

Unusual • (by frequency). Punishments that are rarely, if ever, used thus become un-

usual if used against one individual or a group. They become arbitrary punishments

because the decision to use them is so infrequent.

Evolving standards of decency • . Civilization is evolving, and punishments considered

acceptable in the past century are no longer acceptable in this century.

Shock the conscience • . A yardstick for all punishment is to test it against the public

conscience. If people are naturally repelled by the punishment, it must be cruel and

unusual by defi nition.

Excessive or disproportionate • . Any punishment that is excessive to its purpose or dis-

proportionately administered is considered wrong.

Unnecessary • . Again, we are looking at the purpose of the punishment in relation to

what is done. If the purpose of punishment is to deter crime, we should administer

only an amount necessary to do so. If the purpose is to protect and the offender pres-

ents no danger, prison should not be used.

These tests have eliminated the use of the whip and the branding iron, yet some say

that we may have done nothing to move toward humane punishment and that, instead,

we may have moved away from it. It may be that corporal punishment, at least the less

drastic kinds such as whipping, is actually less harmful than a prison sentence. After all, a

whipping takes perhaps days or weeks to get over, but a prison sentence may last years and

affect all future earnings.

Some sentences given to offenders, especially some conditions attached to a probation

sentence, have been criticized as being inhumane. Although typical probation conditions

cruel and unusual punishment Punishment proscribed by the Eighth Amendment.

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include performing community service, paying court costs and/or restitution, fi nding em-

ployment, and submitting to drug tests, other conditions are more problematic. Someone

convicted of driving while intoxicated (DWI) may be required to donate blood to a blood

bank, but if he or she has a phobia about needles or is a Jehovah’s Witness, this punish-

ment may be worse than jail.

So- called “shaming” conditions include DWI offenders having special license plates

that indicate to other drivers that the driver has been convicted of DWI; probation offi cers

putting up signs in the yard or nailing them to the door of convicted sex offenders’ homes,

warning people that a sex offender lives there; announcing to one’s church congregation

one’s criminal conviction and asking for forgiveness; and taking out an advertisement in

the town newspaper for the same purpose. These types of shaming punishments hark

back to the days of the stocks and pillory, when punishment was arguably effective more

because of the community scorn received than the physical pain involved. Some believe

that this is not a useful or helpful trend. For instance, one American Civil Liberties Union

(ACLU) spokesperson called such punishments “gratuitous humiliation that serves no

social purpose” (cited in Book, 1999: 653). Whitman (1998) argued that the use of such

penalties is contrary to a sense of dignity and creates an “ugly complicity” between the

state and the community by setting the scene for “lynch justice.” There is even a question

as to whether such punishments are legal, because some state laws typically demand that

probation conditions have a “rehabilitative function.” In general, however, judges have

imposed these punishments without much serious challenge. Legally, they seem to be ac-

ceptable, but what about ethically?

We could also examine these conditions in light of the ethical systems discussed ear-

lier. One issue is the effect that “shaming” conditions have on family members of offenders

and whether these conditions constitute a type of extra- legal punishment for them with-

out any due- process procedures of trial and conviction. Punishments such as house signs

and other public disclosures subject family members to stigma along with the offender.

Braithwaite (2000), Karp (1998), and others distinguish between stigmatizing shaming and reintegrative shaming. The fi rst is a rejection of the individual and has negative effects; the second is only a rejection of the person’s behavior and creates a healthier relationship between

the individual and his or her community. Braithwaite (2000) is the best- known spokesperson

for reintegrative shaming. He argues that shame is different from guilt because it comes from

one’s beliefs about how one’s community feels about the crime. He argues that societies that

don’t have shame attached to certain crimes have a lot of that type of crime. Thus, what is

necessary to reduce crime is a return to the concept of shame, but not stigmatizing shame.

All states now have sex offender registries. These are listings of those convicted of sex

crimes, and the offender must report his or her address to the registry. Some states’ sex

offender registries are made public so anyone can fi nd out if any convicted sex offenders

live in their neighborhood. The stated purpose of such registries has been to help parents

protect their children, but there have been troubling reports of sex offenders being the

target of vigilante justice. Many offenders have been harassed and threatened, the house of

one was set on fi re, and garbage was thrown all over the lawn of another. A sex offender in

New Hampshire was stabbed, two were killed in the state of Washington by the same man

and, in 2006, a man in Maine evidently targeted sex offenders and killed two before killing

himself. This case also illustrates that sex offender registries are inclusive of individuals

that may not fi t the typical stereotype of a sex offender. One of the victims in the Maine

case was a young man who had been convicted of statutory rape because of consensual sex

with his teenage girlfriend. Even though no sex offender deserves to die at the hand of a

gunman, certainly the death of this young man, who was clearly not the predator that most

people think of when they hear the term “sex offender,” is a tragedy (Fahrenthold, 2006).

stigmatizing shaming The effect of punishment whereby the offender feels cast aside and abandoned by the community.

reintegrative shaming Braithwaite’s idea that certain types of punishment can lead to a reduction of recidivism as long as they do not involve banishment and they induce healthy shame in the individual.

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S U P E R M A X P R I S O N S

So- called “supermax” prisons hark back to the days of the Eastern State Penitentiary, with

24- hour isolation and no programs of self- improvement to salvage the waste and pain

of time served (Pollock, 2004). The criticism of these prisons has been directed both to

the conditions and to the criteria and procedures used for transferring prisoners to them.

Pelican Island in California, the most notorious supermax facility, was the target of a court

case, Madrid v. Gomez (889 F.Supp 1146 [N.D. Cal. 1995]), in which the courts held the

state responsible for brutality and lack of medical care. The case also exposed the practice

of guards covering up for each other and the power of union offi cials in squelching offi cial

investigations (Martin, 2003).

The other problem with the supermax prisons has been who is sent there. There

are allegations that the prisons are being used for troublemakers who are not especially

dangerous. Some report that mentally ill offenders who cannot control their behavior are

sent to supermax prisons and become even more ill because of the isolation and lack of

medical services. Haney (2008) reports other research that indicates that 45 percent of su-

permax prisoners suffer from some psychological impairment—either diagnosed mental

illness, severe psychiatric symptoms, psychotic or self- injurious episodes, or brain dam-

age. Haney himself reports that he found up to two- thirds of supermax prisoners suffer

psychological problems (2008: 964).

After a supermax had been built in Ohio, it was found that only half the beds could be

fi lled with those in the prison system who met the original criteria for transfer, so offi cials

moved death row inmates to the supermax (Wilkinson v. Austin, et al., 125 S.Ct. 2384

[2005]). The supermax in this case was similar to all the other supermaxes in having the

following characteristics:

Human contact was strictly prohibited. •

Cell lights were on 24 hours a day. •

Inmate exercise was for only one hour a day and in a small room indoors. •

The transfer was of indefi nite duration and reviewed only annually. •

Transfer to supermax disqualifi ed the inmate from parole consideration. •

These prisons have been described as soul- destroying. They involve horrifi c depriva-

tions of some of the most basic elements of what most people take for granted, including

social support, self- esteem, and hope. Haney (2008) describes the supermax as having

an “ideological toxicity,” an “ecology of cruelty,” and a “dynamic of desperation.” He ex-

plains that the ideology of the supermax is toxic in that it is purely punishment with no

redeeming elements of rehabilitation or hope. It is the “penal harm” ideology magnifi ed.

“Ecology of cruelty” refers to the architecture and policies of supermaxes that are struc-

tured to employ more and more punishment to the inmates inside. Because there are no

available rewards to encourage positive behavior, the cycle of punishment spirals to levels

that become normal to those working within the institution but are objectively horrifi c.

Haney describes the “dynamics of desperation” as the inevitable tension that exists be-

tween the guards and guarded and the tendency for relationships between them to esca-

late into cruelty. Inmates react in seemingly irrational violence and/or unruliness because

of the powerlessness of their environment, and offi cers react with greater and greater force,

going through a cycle where each side’s hatred of the other is reinforced. In this sense,

Haney argues, the prison affects not only the inmates, but also the guards who become de-

sensitized to its violence and become cruel enforcers because the environment reinforces

the notion that the inmates do not deserve to be treated as human (2008: 960). Offi cers are

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faced with moral crises when their behavior is normalized to a level of cruelty that would

seem abnormal to anyone not inured to the environment of a supermax.

Haney portrays the supermax as incapable of coexisting with treatment or counsel-

ing. Treatment professionals must wear bulletproof vests and sit outside the bars of an

inmate’s cell with an offi cer standing by. In some units, he describes “programming cages”

set up in a semicircle in a surreal parody of group therapy. If the inmates require such

Hannibal Lector–like security, one wonders how they could ever benefi t from therapy.

How do treatment professionals in such environments reconcile their codes of ethics with

the elements of the supermax? If supermax prisons must be used at all, they should be

used with the greatest of care and with the greatest attention to how the environment af-

fects the individuals housed there.

P R I V A T E P R I S O N S

In much of the foregoing discussion, we described punishment as a state function. How-

ever, the state may delegate the authority to punish. Private prisons are built and then

leased to the state or, in some cases, actually run by the private corporation, which bills the

state for the service. Many have objected to the profi t motive being introduced into correc-

tions and point to a number of ethical issues raised by private “profi teers” (Pollock, 2004).

First, there are potential abuses of the bidding process, as in any situation where the gov-

ernment contracts with a company for services or products. Money may change hands to

ensure that one organization receives the contract; companies may make informal agree-

ments to “rig” the bids; and other potentially corrupt practices may go on. Legal as well as

ethical issues abound when private and public motives are mixed.

In the building phase, private corporations may cut corners and construct buildings

without meeting proper standards for safety. Managing the institution also raises the pos-

sibility that a private contractor will attempt to maximize profi ts by ignoring minimum

standards of health and safety and will, if necessary to this end, bribe inspectors or moni-

tors to overlook the defi ciencies. It has certainly happened in other areas, such as nursing

homes, that those who contract with the state government and receive state monies reap

large profi ts by subjecting clients to inhumane conditions. Some believe that punishment

and profi t are never compatible and that linking the two has led to a variety of historical

abuses (such as the contract labor system in the South).

Private corporations argue that some state systems subject them to endless and pica-

yune rules and continually audit them to the point where it appears that state prison offi -

cials are trying to fi nd noncompliance in order to cancel contracts. There is probably some

truth that some corrections department offi cials are not happy to have legislators approve

the use of private contractors and would like to see them fail.

Private prisons hold about 7.2 percent of all prisoners in the country (Bureau of Justice

Statistics, 2006: 3). Corrections Corporation of America and the GEO Group (formerly

Wackenhut Corrections Corporation) are the largest players in the private prison industry,

holding a little more than half of all private prison beds (more than 60,000 beds in the

United States alone). In late 1998, Corrections Corporation of America (CCA) merged

into the Prison Realty Trust (PRT), an accounting move that allowed the entity to be ex-

empt from tax liability as long as it distributed 95 percent of its earnings to its stockholders

(Geis, Mobley, and Shichor, 1999). The company was affected by a rash of scandals, in-

cluding escapes, violence, under- trained offi cers, and understaffi ng (Parenti, 1999: 219).

The GEO Group is considered number two among the private prison providers. It

also runs mental health facilities and addiction treatment centers. In the late 1990s, the

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company had a number of incidents that affected its reputation and fi nancial standing

(Greene, 2001). Lawsuits in states concerned the use of tear gas (Louisiana), failing to pre-

vent sexual abuse (Texas), paying $3 million to a member of the state’s prison policy panel

(Florida), and a murder rate higher than that of the state- run institutions (New Mexico)

(Solomon, 1999; Fecteau, 1999). In addition to the “big two,” more than a dozen smaller

companies across the nation are competing for the private prison bids put out by the

states.

Proponents argue that private corrections can save the state money. In California, for

instance, Governor Schwarzenegger is promoting the use of private prisons, which are

supposedly $3,200 to $7,800 less per year per inmate than state- run institutions. Correc-

tions Corporation’s contract with California was around $632 million in 2008 for housing

10,000 inmates, which isn’t a large portion of the more than 140,000 inmates in California

prisons (Morain, 2010). Private corporations are said to be more effi cient; they can build

faster with less cost and less red tape, and they have economies of scale (they can obtain

savings because of their size). States and local governments are bound by a myriad of bid-

ding and siting restrictions, unlike private corporations.

Some studies have concluded that private prisons produce results equal to those of

state institutions for less cost. Bourge (2002) describes a study by Segal and Moore that

examined 28 governmental and institutional studies, comparing public and private fa-

cilities, and found that 22 of the private prisons had cost savings of 5 to 15 percent. They

concluded that there is “signifi cant evidence” that private facilities can provide quality

comparable to that of state institutions. However, critics argue that studies that look only

at costs and ignore higher assault rates in private prisons and other indices of quality of

service are fl awed. Also, a General Accounting Offi ce (now the Government Account-

ability Offi ce) meta- analysis concluded that private and public institutions cost about the

same (General Accounting Offi ce, 1996). Any profi ts realized by a private entity being

“leaner and meaner” are offset by the profi t margin that private companies maintain and a

regulatory system that the state must put in place to make sure that contract specifi cations

are adhered to.

In an example of what can go wrong with private prisons, a Texas contract was pulled

from the GEO Group when it was discovered that a juvenile facility did not meet basic

standards. It was reported that three of the state monitors who were supposed to be check-

ing to make sure that the facility met state standards had worked for the GEO Group

and reported no violations. Six state employees were fi red and one resigned (M. Ward,

2007a).

There have been issues concerning the evaluators as well. The evaluation by Segal and

Moore, for instance, was funded by a libertarian think tank that arguably would be inclined

to promote private enterprise over government involvement (Bourge, 2002). The biggest

scandal in private prison evaluation research concerned Charles Thomas, a University of

Florida professor who published many articles and books as “objective” evaluations of

private prisons. Thomas testifi ed before Congress and state legislatures considering pri-

vate prison contracts. He consistently promoted the effectiveness and effi ciency of private

prisons, presumably as an independent, objective evaluator. However, his objectivity was

called into question when it was discovered that he was a highly paid consultant of Cor-

rections Corporation of America and owned more than $500,000 in CCA stock. He was

sanctioned by the state of Florida in 1999 for violating its confl ict of interest laws (Geis,

Mobley, and Shichor, 1999; Mobley and Geis, 2002).

Ogle (1999) argues that private correctional facilities operate in a Catch- 22, where or-

ganizational imperatives are contradictory. On the one hand is the corporate imperative

of profi t; on the other hand is the public service imperative of legitimacy. The two clash

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when the most profi table way to run a prison confl icts with the perceived just or humane

way to run a prison. When the private corporation is pursuing profi t, it uses adaptations

such as compromise and avoidance techniques or defi ance and manipulation techniques

to circumvent governmental mandates for services and contract fulfi llment. A more ab-

stract and subtle criticism of private corrections is that if people are making money from

incarcerating offenders, where is the incentive to correct them?

C A P I T A L P U N I S H M E N T

What sets capital punishment apart from all other punishments is its quality of irrevoca-

bility. This type of punishment leaves no way to correct a mistake. For this reason, some

believe that no mortal should have the power to infl ict capital punishment because there is

no way to guarantee that mistakes won’t be made. The growing number of innocent men

and women who came perilously close to being executed indicates that we have an im-

perfect system (Radelet, Bedau, and Putnam, 1992; Christianson, 2004; Associated Press,

2008b).

Public support for capital punishment has swung up and down. Public opinion polls

reveal that public support for the death penalty declined gradually through the 1960s,

reaching a low of 44 percent in 1966, but has increased over the past 30 years. In the late

1990s, 75 to 80 percent supported the death penalty (Britt, 1998). Public support seems

to be declining in more recent years. In a poll in 2008, only 63 percent of Americans sup-

ported capital punishment (Harris Poll, 2008).

Research indicates that certain groups are more likely to favor the use of capital pun-

ishment; for instance, support is higher by 20 to 25 percentage points among whites as

compared to blacks. Membership in fundamentalist Protestant churches predicts higher

support for the death penalty as well. Political conservativism also predicts support. In-

terestingly, church activity negatively predicts support (the more active one is in one’s

church, the less likely one is to support the death penalty). Women are also less likely than

men to support the death penalty. In one study, researchers found that black Protestant

fundamentalists showed the least support for the death penalty, while white fundamental-

ists showed the most support (Britt, 1998).

Retentionists (who believe that we should continue to utilize capital punishment)

and abolitionists (who believe that we should not execute anyone) both use utilitarianism,

ethical formalism, and religion as moral justifi cations. Retentionists argue that capital pun-

ishment is just because it deters others from committing murder and it defi nitely deters

the individual who is executed. This is a utilitarian argument. They also argue that capital

punishment is just because murder deserves a proportional punishment. This argument

is more consistent with ethical formalism. Finally, they argue that the Bible dictates an

“eye for an eye.” This is, of course, a (Judeo- Christian) religious justifi cation for capital

punishment.

Abolitionists argue that capital punishment has never been shown to be effective in

deterring others from committing murder, and, therefore, the evil of capital punishment

far outweighs any potential benefi ts for society because there is no proof that it actually de-

ters. This is a utilitarian argument. Abolitionists might also utilize the categorical impera-

tive under ethical formalism to argue that deterrence is using the individual as a means

to an end. Finally, abolitionists would point to the religious command to “turn the other

cheek,” an argument against any Christian justifi cation for capital punishment.

The reason why utilitarianism can be used to justify or oppose capital punishment

is that the research on deterrence is mixed. Those who have summarized the evidence

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marshaled on both sides of the deterrence question found little support for the proposi-

tion that executions are useful deterrents, although there are contrary fi ndings by other

researchers (Walker, 1985: 79; Kronenwerter, 1993; Land, Teske, and Zheng, 2009). How-

ever, despite the lack of research for general deterrence, many are still convinced that it

does deter, at least the individual offender. Ethical formalism supports capital punish-

ment; however, the imperfect nature of the system is problematic. Recall that under the

categorical imperative, you should act in a way that you can will it to be a universal law. In

this case, knowing that innocent people may be sentenced to death, could you agree that

murderers should be executed if you did not know whether you were the victim, the mur-

derer, the judge, or any citizen?

Religion, also, can be and has been used to support and condemn capital punish-

ment. As with other issues, Christians have pointed to various verses in the Bible to justify

their position. Kania (1999), for instance, presents a comprehensive religious justifi cation

for capital punishment, along with a social contract justifi cation.

Questions also arise about the methods and procedures of capital punishment. Should

all murderers be subject to capital punishment, or are some murders less serious than oth-

ers? Should we allow defenses of age, mental state, or reason? If we do apply capital pun-

ishment differentially, doesn’t this open the door to bias and misuse? Evidence indicates

that capital punishment has been used arbitrarily and discriminatorily in this country. One

study, cited by the Supreme Court, indicated that minorities are more likely to be executed

when their victims are white; in Georgia, black offenders charged with killing a white per-

son were 4.3 times more likely to be sentenced to death than those charged with killing a

black person. Yet the Supreme Court stated that this evidence of statistically dispropor-

tional administration is not enough to invalidate the death penalty (McClesky v. Kemp, 481

U.S. 279 [1987]).

Because our justice system is based on rationality, executions of persons with mental

illness and mental retardation have been vehemently criticized. The Supreme Court has

ruled that executing the mentally ill is cruel and unusual (Ford v. Wainwright, 411 U.S. 399

[1986]). Miller and Radelet (1993) present a detailed account of the Ford case, describ-

ing the mental deterioration of Ford and the long ordeal of appeals before the Supreme

Court fi nally ruled. They also point out the ethical issues involved when psychiatrists,

other medical professionals, and psychologists participate in procedures that involve cer-

tifying someone as death ready and then assist in the administration of the chosen method

of execution. These professions have deep and divisive arguments regarding the seem-

ing inconsistency between identifying oneself as a helping professional and then helping

someone be put to death.

In Atkins v. Virginia (536 U.S. 304 [2002]), the Supreme Court held that a man with an

IQ of 59 could not be put to death, fi nding that the evolution of decency and public opinion

supported such a decision. The holding does not answer all the questions that it raises, how-

ever, in how serious mental retardation must be to serve as a bar to capital punishment.

In Roper v. Simmons (125 S.Ct. 1183 [2005]), the Court, in a narrow ruling (5–4), held

that juvenile offenders could not be classifi ed as the “worst” offenders; therefore, death

sentences of juveniles would be cruel and unusual and violate the Eighth Amendment.

In Kennedy v. Louisiana (554 U.S. 407 [2008]), the Supreme Court held that the death

penalty was not proportional to the crime of rape and thus would be a violation of the

Eighth Amendment. Note that the question of culpability and whether or not the death

sentence is a just sentence for mentally ill, retarded, or juvenile offenders, and the type of

crime for which it is a just punishment, are both legal and moral questions.

The 2006 renewal of the Patriot Act added a provision that changed federal habeas

corpus procedures to speed up death penalty appeals for states that are qualifi ed. To be

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qualifi ed, a state has to show that it has competent legal representation; however, it is

completely up to the discretion of the U.S. attorney general as to whether or not a state

is qualifi ed. Once qualifi ed, states can “fast track” a death penalty appeal, which means

that prisoners have less time to file appeals and federal appellate judges can consider

fewer issues (Copp, 2006). Critics argue that, given the woefully inadequate representa-

tion of some on death row, such a procedure is certain to result in innocent people being

executed.

More recently, the Supreme Court ruled on a challenge to the method of execution.

Opponents argued that lethal injection is cruel and unusual because the drugs adminis-

tered do not prevent the sensation of pain, but they do paralyze; therefore, the individual

suffers but is unable to scream or otherwise indicate distress. In Baze v. Rees (553 U.S. 35

[2008]), the Court held that there was no evidence of substantial or an objectively intoler-

able risk of serious harm (pain). The arguments supporting the current “cocktail” of drugs

used to execute prisoners fall into two camps. The fi rst is that offenders should experience

pain because, after all, they killed somebody. The second argument is that offenders do

not experience pain under these drugs. The fi rst argument is a philosophical one; the sec-

ond is a factual one.

Unless the Supreme Court revises its current position, which seems unlikely, the

legality of executions is not in question. However, the procedures used to arrive at the

decision to execute may continue to be challenged. Recently the infl uential American

Law Institute announced its lack of support for the death penalty. The institute created

the Model Penal Code in 1962, and its legal discussion of the death penalty was used

by the Supreme Court to support their decision to uphold it. Now, however, the group

has concluded that capital punishment in this country is “irretrievably broken” and has

withdrawn their intellectual rationale for it (Liptak, 2010). The morality of capital punish-

ment is still very much a topic of debate, and it elicits strong feelings on the part of many

people.

C O M M U N I T Y C O R R E C T I O N S

Community corrections encompass probation, parole, work release, educational re- lease, halfway houses, and other forms of supervision in the community. The concept of

community corrections is supported by the ethics of care; it promotes meeting the needs

of the offender and the victim (through restitution). A prison sentence is basically a rejec-

tion or banishment; however, community supervision represents the concepts of accep-

tance and integration with the community. Even parole, coming after a prison sentence,

originally operated with the philosophy of reintegration. Utilitarianism also supports com-

munity corrections because the benefi t to the community by not banishing the offender to

prison is both fi nancial and emotional.

QUOTE && QUERY [Community corrections] signifi es moral concern for the individual, one that is

consistent with the natural law ethics of “dignity of man,” the constitutional ethics

of individualized treatment and perhaps the religious ethics of redemption.

—SOURCE: SOURYAL, 1992: 356.

? Explain how community corrections are either consistent or inconsistent with the various ethical systems.

community corrections A term that encompasses halfway houses, work release centers, probation, parole, and any other intermediate sanctions, such as electronic monitoring, either as a condition of probation or as a sentence in itself that takes place in the community rather than prison.

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Even a retributive philosophy can support community corrections because some

crimes are simply not serious enough to justify a prison sentence. Probation and parole

sentences involve supervision but also usually require meeting some other conditions.

Some of these conditions pose special issues of privacy, liberty, and impact on others. For

instance, should conditions specify whom the offender can associate with? Mandate that

the offender go to church? Dictate to the offender where he or she can live or what type of

job he or she can have? Require the use of contraception?

Electronic monitoring programs, usually using ankle bracelets and a telephone, raise

issues of privacy. Such sanctions are said to blur the line between the offender and his

or her family. Electronic monitoring sometimes involves a camera connected to the tele-

phone. When the offender calls into a monitoring station, the monitor can see past the

offender into the home. Is this a violation of family members’ privacy, or do we consider it

a consent entry? In general, probation and parole require consent for warrantless searches,

but is it really consent when the option is prison? And even if the offender gives consent,

can he or she give consent for other family members who are also affected?

Some contend that we are needlessly “widening the net” (net widening) of correc- tions by putting more and more people on some form of correctional supervision. Further,

the use of surveillance techniques against offender populations is spilling over into other

contexts. For instance, drug testing started with probationers and now seems to be com-

mon in the workplace. Other forms of surveillance started with correctional populations

but then became accepted practices in other applications. Metal detectors are used now in

a number of settings, and some workplaces use a polygraph, monitor employees’ calls, use

video cameras, track e- mails, and in other ways apply the surveillance practices created for

lawbreakers to the rest of us (Staples, 1997). Some worry that we have become so used to

these incursions on privacy that basic freedoms are being infringed upon without much

opposition from the population; in fact, one often hears, “If you’re not doing anything

wrong, you shouldn’t have anything to worry about.” Some argue that this accepting at-

titude toward “big brother” would be an anathema to previous generations.

The danger of intermediate sanctions is that because they are typically so innocuous,

they are used more frequently for offenders who may not have received any formal system

response in years past. Unfortunately, what sometimes happens is that the offender, once

in the system, fails because of technical violations (rule violations, not new crimes) and

becomes more and more immersed in the system. Can we foresee a time when a large

portion of the population is on some type of governmental monitoring status? Some say

it is already here. We may be happy to note that tax monies may not be burdened by

such monitoring because offenders are usually charged supervision fees to pay for the

technology.

Other than providing employment for the legions of criminal justice students who are

graduating from colleges and universities, are there good reasons for the dramatic expan-

sion of the net of corrections? Perhaps the dramatic increase of those under correctional

supervision has led to the substantial drop in crime? Researchers continue to debate this

question, but even if it were possible to assess the relationship, the ethical issue would not

be resolved.

Formal Ethics for Correctional Professionals The American Correctional Association’s (ACA) Code of Ethics outlines formal ethics

for correctional offi cers and other correctional personnel. This code has many similarities

to the Law Enforcement Code of Ethics presented in Chapter 5. For instance, integrity,

net widening The concept that some intermediate sanctions are used for those who would not have received any formal correctional sanction before, so instead of diverting those who would have been sentenced to harsher sanctions, the program increases the total number under correctional supervision.

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respect for and protection of individual rights, and service to the public are emphasized

in both codes, as are the importance and sanctity of the law. Also, the prohibition against

exploiting professional authority for personal gain is stressed in both codes.

The ACA code indicates that members should exhibit honesty, respect for the dig-

nity and individuality of human beings, and a commitment to professional and compas-

sionate service. The following principles are identifi ed: protect legal rights; show concern

for the welfare of individuals; promote mutual respect with colleagues and criticize only

when warranted; respect and cooperate with all disciplines in the system; provide public

information as consistent with law and privacy rights; protect public safety; refrain from

using one’s position to secure personal privileges or advantage or let these impair objec-

tivity; avoid confl icts of interest; refrain from accepting gifts or services that appear im-

proper; differentiate one’s personal views from professional duties; report any corrupt or

unethical behaviors; refrain from discriminating because of race, gender, creed, national

origin, religious affi liation, age, disability, or other prohibited categories; preserve the in-

tegrity of private information; abide by civil service rules; and promote a safe, healthy,

and harassment- free workplace (ACA Code, available at www.aca.org/pastpresentfuture/

ethics.asp.)

In an interesting discussion of implementing an ethics program for correctional of-

fi cers, Barrier et al. (1999) described how offi cers presented elements of what they thought

were important in an ethics code:

Acting professionally •

Showing respect for inmates and workers •

Maintaining honesty and integrity •

Being consistent •

Acting impartially •

Being assertive but not aggressive •

Confronting bad behavior but reinforcing good behavior •

Standardizing rule enforcement •

Respecting others •

Practicing the Golden Rule •

Encouraging teamwork •

Using professional language •

Not abusing sick leave •

Telling inmates the truth •

Admitting mistakes •

The American Jail Association has a similar code of ethics for jail offi cers. The pre-

amble states that the jail offi cer should avoid questionable behavior that will bring disre-

pute to the agency. The code mandates that offi cers keep the institution secure, work with

everyone fairly, maintain a positive demeanor, report what should be reported, manage

inmates even- handedly without becoming personally involved, take advantage of training

opportunities, communicate with individuals outside the agency in a way that does not

bring discredit, contribute to a positive environment, and support professional activities

(American Jail Association, available at www.aja.org/ethics.aspx).

Formal ethical guidelines for probation and parole offi cers are provided by the Ameri-

can Correctional Association Code of Ethics, and possibly by their own state ethics codes.

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http://www.aca.org/pastpresentfuture/

http://www.aja.org/ethics.aspx

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Federal probation offi cers subscribe to the Federal Probation and Pretrial Offi cers Asso-

ciation’s ethical code. The formal ethics of the profession is summarized by the ideal of

service—to the community and to the offender. As with other codes, the federal probation

offi cer is exhorted to maintain “decorum” in one’s private life, avoid granting or receiving

favors or benefi ts that are connected to the position, uphold the law with dignity, strife for

objectivity in performance of duties, “appreciate the inherent worth of the individual,”

cooperate with fellow workers and related agencies, improve professional standards and

recognize the offi ce as “a symbol of public faith” (Federal Probation and Pretrial Offi cers Association, available at www.fppoa.org/fppoa_codeofethics.asp.)

Ethical codes exist for other correctional professionals as well. Treatment profession-

als typically belong to a professional organization and this organization will have a code of

ethics, such as the National Association of Social Workers Code of Ethics or, for psychia-

trists, the Principles of Medical Ethics with Annotations Especially Applicable to Psychia-

try. Mental health counselors adhere to the code of ethics of the American Mental Health

Counselors Association, and psychologists follow the Ethical Principles of Psychologists

and Code of Conduct. There are also organizations or separate divisions of professional

organizations specifi cally for correctional workers in that profession, such as the Criminal

Justice Section of the American Psychological Association. Finally, the American Correc-

tional Health Services Association and the American Association for Correctional and Fo-

rensic Psychology also have their own ethical codes to guide their members. The American

Association for Correctional and Forensic Psychology’s code includes the following sec-

tions: Offender’s Right to Dignity and Respect, Avoid or Minimize Harm, Maintain and

Advocate for Competent Mental Health Services and Rights, and Social Responsibility.

The Ethical Principles of Psychologists promote fi ve aspirational principles: benefi cence

(do no harm), fi delity and responsibility (create relationships of trust), integrity (honesty

and truthfulness in science and practice), justice (fairness), respect for rights and dignity

(protect privacy and self- determination) (cited and described in Bonner and Vandecreek,

2006; Ward, Gannon, and Vess, 2009).

The American Correctional Health Services Association is an affi liate of the Ameri-

can Correctional Association and has developed a code of ethics for health care providers

in correctional facilities, including medical care workers as well as mental health profes-

sionals. In developing this code, they surveyed their members and consensus emerged as

to the leading principles that should guide professionals in providing health care in correc-

tions: respect for human dignity, benefi cence, trustworthiness, autonomy, prevention of

harm, and promotion of a safe environment. The code includes “should” statements such

as “Respect the law and also recognize a responsibility to seek changes in those require-

ments that are contrary to the best interest of the patient.” And “Honor custody functions

but not participate in such activities as escorting inmates, forced transfers, security super-

vision, strip searches, or witnessing use of force” (described in Bonner and Vandecreek,

2006). All of these codes in general or specifi c language attempt to provide guidance to

members who strive for ethical performance of their duties.

Occupational Subcultures in Corrections Another similarity between the corrections fi eld and law enforcement is that sometimes

the ideal behavior described in the ethical codes is different from the subcultural norms.

Although the ethical codes clearly call for fair and objective treatment, integrity, and high

standards of performance, the actual practices found in some agencies and institutions

may be quite different.

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3 3 8 P A R T I V | C o r re c t i o n s

T H E C O R R E C T I O N A L O F F I C E R S U B C U L T U R E

The correctional offi cer subculture has not been described as extensively as the police

subculture, but some elements are similar. First of all, the inmate may be considered the

enemy, along with superiors and society in general. Moreover, the acceptance of the use

of force, the preference toward redefi ning job roles to meet only minimum requirements,

and the willingness to use deceit to cover up wrongdoing seem to have support in both

subcultures (R. Johnson, 2002; Crouch, 1980; Grossi and Berg, 1991).

In an excellent study of the offi cers’ world, Kauffman (1988: 85–112) notes the fol-

lowing norms of the correctional offi cer subculture:

Always go to the aid of another offi cer • . Similar to law enforcement, the necessity of

interdependence ensures that this is a strong and pervasive norm in the correctional

offi cer subculture. Kauffman describes a “slam” in Walpole Prison as when the offi cer

slams a heavy cell door, which reverberates throughout the prison building, bringing a

dozen offi cers to his or her aid in minutes—an obvious parallel to the “offi cer down”

call in law enforcement.

Don’t lug drugs • . This prohibition is to ensure the safety of other offi cers, as is the

even stronger prohibition against bringing in weapons for inmates. The following

norm against “ratting” on a fellow offi cer may exclude informing on an offi cer who is

a known offender of this lugging norm.

Don’t rat • . In ways similar to the law enforcement subcultural code and, ironically, the

inmate code, correctional offi cers also hate those who inform on their peers. Kauff-

man notes two subordinate norms: Never rat out an offi cer to an inmate, and never

cooperate in an investigation or, worse yet, testify against a fellow offi cer in regard to

that offi cer’s treatment of inmates.

Never make a fellow offi cer look bad in front of inmates • . This applies regardless of what

the offi cer did, for it jeopardizes the offi cer’s effectiveness and undercuts the appear-

ance of offi cer solidarity.

Always support an offi cer in a dispute with an inmate • . Similar to the previous provi-

sion, this prescribes behavior. Not only should one not criticize a fellow offi cer, but

one should support him or her against any inmate.

Always support officer sanctions against inmates • . This is a specific version of the

previous provision, which includes the use of illegal physical force as well as legal

sanctions.

Don’t be a white hat • . This prohibition is directed at any behavior, attitude, or ex-

pressed opinion that could be interpreted as sympathetic toward inmates. Kauffman

also notes that this prohibition is often violated and does not have the strong subcul-

tural sanctions that accompany some of the other norms.

Maintain offi cer solidarity against all outside groups • . Similar to police offi cers, correc-

tional offi cers feel denigrated and despised by society at large. This norm reinforces

offi cer solidarity by making any other group, including the media, administration, or

the public, the out- group.

Show positive concern for fellow offi cers • . This norm promotes good will toward other

offi cers. Two examples are (1) never leave another offi cer a problem, which means

don’t leave unfi nished business at the end of your shift for the next offi cer to handle,

and (2) help your fellow offi cers with problems outside the institution, which means

lending money to injured or sick offi cers or helping in other ways.

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If a correctional offi cer violates the subcultural code, the sanctions are felt perhaps

even more acutely than by police offi cers, because one must work closely with other cor-

rectional offi cers all day long. Whereas police offi cers cite the importance of being able

to trust other offi cers as backups in violent situations, one could make the argument that

correctional offi cers have to trust each other more completely, more implicitly, and more

frequently, given that violence in some institutions is pervasive and unprovoked, and that

the correctional offi cer carries no weapon. An offi cer described to Kauffman (1988: 207)

the result of violating peer trust:

If an incident went down, there was no one to cover my back. That’s a very im-

portant lesson to learn. You need your back covered and my back wasn’t covered

there at all. And at one point I was in fear of being set up by guards. I was put in

dangerous situations purposely. That really happened to me.

Fear of violating the code of silence is one reason that offi cers do not report wrongdo-

ing. Loyalty is another reason. Correctional offi cers feel a strong esprit de corps similar to

the previously discussed loyalty among police. This positive loyalty also results in covering

for other offi cers and not testifying or reporting offenses. McCarthy (1991) discusses how

theft, traffi cking in contraband, embezzlement, and misuse of authority went unreported

by other correctional offi cers because of loyalty and subcultural prohibitions against “rat-

ting.” The In the News box describes a rare case where offi cers were found guilty, despite

support from their union.

A pattern of complicity also prevents reporting. New offi cers cannot possibly follow

all the many rules and regulations that exist in a prison and still adequately deal with in-

mates on a day- to- day basis. Before long they fi nd themselves involved in activity that

could result in disciplinary action. Because others are usually aware of this activity and do

not inform supervisors, an implicit conspiracy of silence develops so no one is turned in

for anything because each of the others who might witness this wrongdoing has engaged in

behavior that could also be sanctioned (Lombardo, 1981: 79).

Hamm (1989) discussed what happened when correctional professionals did come

forward. He pointed out that whistleblowers sometimes are pursuing self- interest or per-

sonal goals by informing. Sometimes there are minimal costs; however, in instances where

the individual goes against the subculture, there may be serious consequences. In the

in the N E W S “ T H E P R O G R A M ”

A rogue disciplinary system enacted by a group of guards at Riker’s Island used beatings and

extortion by other inmates to keep order in a facility where young offenders aged 16 to 18 were

housed with adults. One of the guards was sentenced to six years for his part in the group’s ac-

tivities. The Correction Offi cers’ Benevolent Association argued that it was simply a scheme by

the inmates to get money from the state, but the judge ruled the offi cer’s testimony “unbeliev-

able and contrived.” At least three other guards have been charged and may be tried and, if

found guilty, could spend up to 25 years in prison for what is considered to be organized crime

activity.

SOURCE: Raftery, 2010.

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3 4 0 P A R T I V | C o r re c t i o n s

Walking the Walk box, one correctional administrator went against the pattern of cover-

ups in a state system, and his actions eventually cost him his career.

The correctional offi cer code, and sanctions against whistleblowers, varies from in-

stitution to institution, depending on factors such as permeability, the administration, the

level of violence from inmates, architecture, and the demographic profi le of offi cers. Dis-

trust of outsiders, dissatisfaction, and alienation are elements of both the police subculture

and the correctional offi cer subculture. In both professions, individuals must work with

sometimes unpleasant people who make it clear that the practitioner is not liked or appre-

ciated. Further, there is public antipathy (either real or perceived) toward the profession,

which increases the social distance between criminal justice professionals and all others

outside the profession. The working hours, the nature of the job, and the unwillingness to

talk about the job to others outside the profession intensify the isolation that workers feel.

One additional point to be made about the occupational subculture is that both

law enforcement and corrections have experienced an infl ux of minorities, the college-

educated, and women. These demographic changes no doubt have altered the dynamics

of the subculture in both fi elds.

It should also be pointed out that some researchers believe that some of the values

embedded in the correctional offi cer subculture may not be shared by most offi cers—a

concept referred to as pluralistic ignorance. This refers to the idea that a few outspoken and visible members do not refl ect the silent majority’s views. In a prison, this may mean

that a few offi cers endorse and publicize subcultural values, whereas the majority of of-

fi cers, who are silent, privately believe in different values (R. Johnson, 1996: 130). Kauff-

man (1988: 179) found this to be true in attitudes toward the use of force (where the silent

majority did not endorse it to the extent of the verbal minority) and toward the value of

treatment (which was silently supported).

pluralistic ignorance The prevalent misperception of the popularity of a belief among a group because of the infl uence of a vocal minority.

Tom Murton found his career dramatically altered when

he was hired by the Arkansas Department of Correction

as its director of corrections. He had been instrumental

in setting up the prison system for the state of Alaska

in the late 1950s and was teaching at Southern Illinois

University when he was hired by Governor Winthrop

Rockefeller, who wanted to modernize the Arkansas

prison system. Upon arriving in 1967 to head the Tucker

prison farms, he discovered abuses and inhumane con-

ditions, described later in several writings by Murton

and immortalized in the movie Brubaker. The U.S. Su-

preme Court case of Holt v. Sarver (442 F.2d 304 [8th

Cir. 1971]) also documented the abuses, which included

subjecting prisoners to electric shocks, staff taking food

meant for prisoners and feeding them a disgusting gruel,

forcing inmates into a metal box for long periods of time

as a punishment, allowing prisoners to guard and infl ict

brutal discipline on other prisoners, and other inhu-

mane treatments. Murton began to address these issues

and received information that more than 200 inmates

had disappeared and were listed as escapees. Acting

on the information of one informant, he dug up (on the

grounds of the prison) two bodies that had injuries ex-

actly as the inmate had described. One had been decap-

itated, and one had a crushed skull. Even though one of

the bodies was eventually positively identifi ed as a miss-

ing inmate, opposing testimony at the legislative hearing

called in response to his investigation proposed that the

bodies were from an old church cemetery. Instead of

pursuing the matter further and digging up more bodies

or testing them in any way for age and other identifying

marks, state offi cials fi red Murton and threatened him

with prosecution as a grave robber if he didn’t leave

the state. He never worked in corrections again.

W A L K I N G T H E W A L K

Sources: Murton and Hayams, 1969; Murton, 1976.

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T R E A T M E N T P R O F E S S I O N A L S

While there may be subcultural elements from correctional offi cers that migrate to those

who work in treatment roles in correctional facilities, there doesn’t seem to be much re-

search documenting it. Thus, we can only assume that when treatment professionals

such as psychologists and counselors work in a prison or other correctional facility, they

are not a part of the correctional offi cer subculture, but they may have a different, albeit

weaker subculture of their own. Similarly, correctional medical care professionals may be

infl uenced in greater or lesser ways by the “penal harm” atmosphere that pervades some

correctional institutions where inmates are seen as not deserving of the care associated

with medical services outside the prison. The profession’s ethical code responds to this

tendency. Ethical issues exist for treatment professionals that are different from those of

correctional offi cers, and these will be described in the next chapter.

T H E P R O B A T I O N / P A R O L E O F F I C E R

S U B C U L T U R E

The subculture of probation and parole offi cers has never been documented as exten-

sively as that of police and correctional offi cers. Because of differences between these pro-

fessions, the subculture of the former is not as pervasive or strong as that of the latter.

Probation and parole offi cers do not feel as isolated as police or correctional offi cers do.

They experience no stigmatization; they have normal working hours; they do not wear a

depersonalizing uniform; and they have a less obviously coercive relationship with their

clients. These factors reduce the need for a subculture. Still, one can probably identify

some norms that might be found in any probation or parole offi ce:

Cynicism • . They have a norm of cynicism toward clients. The subculture promotes the idea that clients are inept, deviant, and irredeemable. Probation and parole pro-

fessionals who express positive attitudes toward clients’ capacity for change are seen

as naïve and guileless.

Lethargy • . At least in some offi ces, there is a pervasive subcultural norm of lethargy or

minimal work output. This norm is supported by the view that offi cers are underpaid

and overworked.

Individualism • . A norm of individualism can be identifi ed. Although parole and pro-

bation offi cers may seek opinions from other professionals in the offi ce, there is an

unspoken rule that each runs his or her own caseload. To offer unsolicited opinions

about decisions another person makes regarding his or her client violates this norm of

autonomy.

Even though there does not seem to be the “blue curtain of secrecy” to the same ex-

tent as is found in policing, there no doubt is a norm against informing on colleagues for

unethical or illegal behaviors. This relates somewhat to the norm of individualism, but is

also part of the pervasive occupational subculture against informing on colleagues. Proba-

tion and parole offi cers may see and hear unethical behaviors and not feel comfortable

coming forward with such information. If they work in an offi ce where the norm against

exposing such wrongdoing is strong, they may indeed suffer sanctions similar to those of

police and correctional offi cers for exposing others’ wrongdoing.

Some offi ces develop norms that accept unethical practices and lethargy. Once this

occurs, it becomes a diffi cult pattern to change. If it is already present, a single offi cer will

cynicism A trait of those who work in corrections, characterized by a pessimistic view of human nature and their ability to change.

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3 4 2 P A R T I V | C o r re c t i o n s

have a hard time not falling into the pattern. If all offi cers feel overwhelmed by their case-

loads and their relative lack of power to do anything about failure, the result may be that

they throw up their hands and adopt a “who cares?” attitude. If the supervisor does not

exhibit a commitment to the goal of the organization, does not encourage workers, treats

certain offi cers with favoritism, or seems more concerned with his or her personal career

than with the needs of the offi ce, there is an inevitable deterioration of morale. If the orga-

nization does not encourage and support good workers, it is no wonder that what develops

is an informal subculture that encourages minimum effort and treats organizational goals

with sarcasm and cynicism.

C O N C L U S I O N

In this chapter, we have looked at some of the ethical rationales for punishment. What

we do to offenders is infl uenced by our views on things such as free will and determin-

ism, the capacity for individual change, and the basic nature of humankind. Punishment

has always been used against those who hurt other members of society and thus might

be considered consistent with natural law. However, the limits of punishment have been

subject to the laws and mores of each historical era. Today, our punishments primarily

consist of imprisonment or some form of restricted liberty, such as probation or parole.

The death penalty continues to be used; however, the controversy surrounding it contin-

ues as well.

Formal ethics for those who work in corrections come from their professional orga-

nizations, such as the American Correctional Association. Common to all the codes is

adherence to the law, respect for persons, and maintaining objectivity and professional

standards of competence. Similar to police offi cers, there are elements in occupational

subcultures that sometimes confl ict with and subvert formal ethics.

C H A P T E R R E V I E W

1. Provide the defi nitions of punishment and treatment and their rationales.

According to Leiser, punishment is defi ned as follows: There are at least two persons— one who infl icts the punishment and one who is punished; a certain harm is infl icted; the

punisher has been authorized, under a system of rules or laws; the punished has been

judged by a representative of that authority by some relevant rule or law; and the harm

that is infl icted upon the person who is being punished is specifi cally for the act or omis-

sion relevant to such law. The defi nition of treatment is that which may create behavioral

change. The rationale for punishment and treatment is the social contract. Further, specifi c

rationales for punishment include retribution, deterrence, incapacitation, and treatment.

2. Describe how the ethical frameworks justify punishment.

Utilitarianism is often used to support the three rationales of punishment: deterrence, in-

capacitation, and treatment. According to utilitarianism, punishing or treating the criminal

offender benefi ts society, and this benefi t outweighs the negative effect on the individual

offender. Ethical formalism clearly supports a retributive view of punishment. It is deonto-

logical because it is concerned not with the consequences of the punishment or treatment,

only its inherent morality. The punishment should not be used as a means to any other

end but retribution. The ethics of care would probably not support punishment unless it

was essential to help the offender become a better person.

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3. Describe the ethical rationales for and against capital punishment.

Retentionists (who believe that we should continue to utilize capital punishment) and

abolitionists (who believe that we should not execute anyone) both use utilitarianism,

ethical formalism, and religion as moral justifi cations. Retentionists argue that capital pun-

ishment is just because it deters others from committing murder and it defi nitely deters

the individual who is executed. This is a utilitarian argument. They also argue that capital

punishment is just because murder deserves a proportional punishment. This argument is

more consistent with ethical formalism. Finally, they argue that the Bible dictates an “eye

for an eye.” This is, of course, a (Judeo- Christian) religious justifi cation for capital punish-

ment. Abolitionists argue that capital punishment has never been shown to be effective

in deterring others from committing murder, and, therefore, the evil of capital punish-

ment far outweighs any potential benefi ts for society because there is no proof that it actu-

ally deters. This is a utilitarian argument. Abolitionists might also utilize the categorical

imperative under ethical formalism to argue that deterrence is using the individual as a

means to an end. Finally, abolitionists would point to the religious command

to “turn the other cheek” an argument against any religious (Christian) justifi cation for

capital punishment.

4. Describe the ethical codes for correctional offi cers, treatment professionals, and pro-

bation and parole offi cers.

Codes come from professional organizations such as the American Psychological Asso-

ciation, or more specifi c organizations for correctional personnel such as the American

Correctional Association. Elements of codes for correctional offi cers, treatment person-

nel, and those who work in community corrections all seem to include the following ele-

ments: integrity, respect for and protection of individual rights and autonomy, service to

the public, sanctity of the law, and prohibitions against exploiting professional authority

for personal gain.

5. Explain how occupational subcultures affect adherence to professional ethics codes.

Subcultural elements are, in some ways, similar to those of law enforcement—the inmate

is the “enemy” along with superiors and the public, acceptance of the use of force, the

preference toward redefi ning job roles to meet only minimum requirements, and the will-

ingness to use deceit to cover up wrongdoing for fellow offi cers. Treatment and probation/

parole subcultures are not strong, probably because they do not share the same character-

istics of the job as law enforcement and correctional offi cers. Generally, the major issue

of these subcultures seems to be an attitude toward the client/offender that is pessimistic

and cynical, and, in some offi ces, a culture of lethargy that promotes doing the least work

possible.

K E Y T E R M S community corrections

cruel and unusual

punishment

cynicism

expiation

just deserts model

justice model

net widening

new rehabilitationists

penal harm

pluralistic ignorance

prevention

punishment

reintegrative shaming

retribution

stigmatizing shaming

three- strikes laws

treatment

treatment ethic

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3 4 4 P A R T I V | C o r re c t i o n s

S T U D Y Q U E S T I O N S

1. Defi ne punishment using the elements provided by Leiser.

2. What are the three different objectives or approaches to prevention? Explain some is-

sues with each.

3. How would Bentham defend punishment? Contrast that position with Kant’s

position.

4. What are the criticisms of the supermax prison? Compare them to the Supreme

Court’s defi nition of cruel and unusual punishment.

5. What are the arguments for and against private prisons?

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) the “pains” of different types of punishment for dif-

ferent people, including yourself. Would you rather spend a year in prison or receive

a severe whipping? Would you rather spend a year in prison or receive fi ve years of

probation with stringent restrictions? Would you rather spend a year in prison or pay a

$30,000 fi ne?

2. Write an essay on (or discuss) your views on the justifi cation for punishment. If you

knew for certain that prison did not deter, would you still be in favor of its use? Why?

If we could predict future criminals, would you be willing to incapacitate them before

they commit a crime in order to protect society? Explain.

3. Write an essay on (or discuss) your views on the use of capital punishment and the

reasons for your position. Now take the opposite side, and give the reasons for this

view.

E T H I C A L D I L E M M A S

Situation 1

A legislator has proposed a sweeping new crime and punishment bill with the following

provisions for punishment. Decide each issue as if you were being asked to vote on it:

• Mandatory life term with no parole for any crime involving a weapon

• Corporal punishment (using an electrical apparatus that infl icts a shock) for all per-

sonal violent crimes

• Mandatory fi ve- year prison sentences for those convicted of DWI

• Public executions

• Abolition of probation, to be replaced with fi nes and prison sentences for those who

are not able to pay or are unwilling to do so

Situation 2

Another legislator has suggested an alternative plan with the following provisions. Vote on

these:

• Decriminalization of all drug crimes

• Mandated treatment programs for all offenders who were intoxicated by alcohol or

other drugs at the time of the crime

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• Restructuring the sentencing statutes to make no sentence longer than fi ve years, ex-

cept homicide, attempted homicide, robbery, and rape

• Implementation of a restitution program for all victims whereby offenders stay in

the community, work, and pay back the victims for the losses and/or injuries they

received

Situation 3

Your state is one of the few that allows relatives of homicide victims to witness the execu-

tion of the perpetrator. Your brother was killed in a robbery, and the murderer is about to

be executed. You receive a letter advising you of the execution date and your right to be

present. Would you go? Would you volunteer to be the executioner?

Situation 4

Your house has been burglarized. Your community has a new sentencing program, and the

program’s directors have asked you to participate along with the offender who burglarized

your house. As you understand it, this means that you would be sitting down with repre-

sentatives from the police department and court system and the offender and his family.

The group would discuss and come to an agreement on the appropriate punishment for

the crime. Would you do it? Why or why not?

Situation 5

You are a legislator who is the chairman of a committee that is making decisions about

whether to build a new prison or contract with a private prison provider. You are visited

by a lobbyist for one of the companies that is being considered and he explains that the

company is sponsoring a “fact fi nding” trip to Scandinavia and other parts of Europe to

tour several prisons and meet with correctional offi cials. He invites you and your spouse

to go with the group. You would stay in very nice hotels and have social and entertainment

events as well as the offi cial activities—everything would be paid for by the company. He

explains that because it is a fact fi nding or educational trip for you, it does not violate your

state’s laws or ethics code. Would you go?

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• 347 •

C h a p t e r O b j e c t i v e s

1. Describe the role confl ict of correctional offi cers.

2. List and describe some ethical issues for correctional offi cers.

3. Describe the different challenges that face jail offi cers as compared to correctional offi cers in prisons.

4. Explain the role confl ict of treatment professionals and provide examples.

5. Describe the ethical issues of probation and parole offi cers.

Discretion and Dilemmas in Corrections

Institutional correctional personnel can be divided into two groups: (1) correctional

offi cers and their supervisors, and (2) treatment professionals, a group that includes educa-

tors, counselors, psychologists, and all others connected with programming and services.

These groups have different jobs and different ethical issues. There are also community

correctional professionals, including probation and parole offi cers and staff in work re-

lease and halfway houses. All correctional professionals share the two goals of protecting

society and assisting in the reform of the criminal offender.

Throughout this text, discretion has been shown as pivotal in each phase of the crimi-

nal justice system. In corrections, discretion is involved when a correctional offi cer chooses

whether to write a disciplinary ticket or merely delivers a verbal reprimand; this is similar

to the discretion that police have in traffi c stops. Discretion is also involved when the disci-

plinary committee makes a decision to punish an inmate for an infraction: the punishment

can be as serious as increasing the length of a sentence through loss of good time or as

minor as a temporary loss of privileges. This type of discretion is similar to the discretion

of the prosecutor and judge in a criminal trial. Offi cers make daily decisions regarding

granting inmates’ passes, providing supplies, and even answering questions. Probation

and parole offi cers have discretion in when to fi le a violation report or what to recommend

if a client violates one or more conditions of their supervision.

As always, when the power of discretion is present, the potential for abuse is also

present. Sometimes correctional professionals have the power to do things that they don’t

have the legal authority to do. That is, some offi cers can deny an inmate a pass to go to

the doctor even though, according to the prison rules, the inmate has a right to go. When

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offi cers exceed their authority, inmates’ only recourse is to write a grievance. Professional

ethics, as provided in a code of ethics, should guide offi cers and other staff members in

their use of discretion and power, but, as with law enforcement and legal professionals,

adhering to a code of ethics is infl uenced by the occupational subculture and institutional

values. There are also examples where correctional offi cers become as criminal as the in-

mates they are supposed to be supervising, as the In the News box indicates.

Correctional Offi cers Correctional offi cers (COs) are similar to police offi cers in that their uniform represents

the authority of the institution quite apart from any personal power of the person wearing

it. Some COs are uncomfortable with this authority and do not know how to handle it.

Other COs revel in it and misperceive the bounds of authority given to them as a repre-

sentative of the state. The following statement is a perceptive observation of how some

COs misuse the authority they have:

[Some officers] don’t understand what authority is and what bounds you have

within that authority. . . . I think everyone interprets it to meet their own image of

themself. “I’m a corrections offi cer! [slams table] You sit here! [slam] You sit there!”

rather than, “I’m a person who has limited authority. So, you know, I’m sorry, gen-

tlemen, but you can’t sit there. You are going to have to sit over there. That’s just the

rules,” and explaining or something like that the reason why. (Kauffman, 1988: 50)

This observer obviously recognizes that the uniform bestows the authority of rational

and reasonable control, not unbridled domination. The power of the CO is limited. In ac-

tuality, it is impossible to depend on the authority of the uniform to get tasks accomplished,

and one must fi nd personal resources—respect and authority stemming from one’s per-

sonal reputation—in order to gain cooperation from inmates. Some offi cers who perceive

themselves as powerless in relation to the administration, the courts, and society in general

may react to this perceived powerlessness by misusing their little bit of power over inmates.

They may abuse their position by humiliating or abusing those in their control. As dis-

cussed in the Walking the Walk box, Chaplain James Yee stood up to what he believed were

abuses of power in the Guantanamo detainment facility and paid a heavy price for it.

Thus, in ways somewhat similar to those of police offi cers, correctional offi cers have

power over offenders. They have the full range of coercive control, including loss of liberty

through physical force if necessary. Their power may be misused. Blatant examples are an

in the N E W S C O S O N T H E T A K E

In 2008, seven correctional offi cers were caught in Riker’s Island, New York, in a scheme where

they accepted money to smuggle contraband into the jail. They had agreed to deliver drugs,

cigarettes, and cash to inmates who paid them up to $2,700 for each delivery. The corrections

system had fi red three of the offi cers on “unrelated reasons” after they were arrested by under-

cover offi cers who posed as associates of the prisoners.

SOURCE: NY1 News, 2008.

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offi cer who beats an inmate or coerces sex from an inmate. The possibility for these abuses

of power exists because of the powerlessness of the offender relative to the offi cer. Inmates

have even less power against offi cer abuses than do citizens on the street against police of-

fi cers’ abuses of power. Sensitivity to ethical issues in corrections involves recognition and

respect for the inherent powers and concurrent responsibilities of the profession.

During the rehabilitative era of the 1970s, professional security staff in corrections

exchanged the old label of guard for a new one—correctional offi cer. Crouch (1986) examined how changing goals (from custody to rehabilitation) in the 1970s and 1980s

created role confl ict and ambiguity for the correctional offi cer. Also in the 1970s, federal

correctional offi cer The term that replaced the old label of guard, indicating a new role.

James Yee was raised as a Lutheran in a Chinese Ameri-

can family in New Jersey. He converted to the Muslim

faith after graduating from West Point in 1990. Yee left

the army for a short time, but then came back into the

army as a chaplain. In 2002, he was sent to Guantanamo

to minister to the prisoners. For 10 months, from

November 2002 to September 2003, he witnessed hos-

tile acts toward the prisoners, including beating and hu-

miliation by military police and interrogators. He saw

religion used as a weapon. Prisoners were made to bow

down in the middle of a satanic circle and profess that

Satan was their god, not Allah. Detainees were mocked

during prayer and teased sexually by female soldiers.

Detainees begged Yee to take away their copies of the

Quran because, allegedly, the military police would de-

face the holy books.

Chaplain Yee began to be known as a prisoner ad-

vocate. He ministered to the detainees and tried to inter-

vene to stop the abuse they endured. As he explained, “I

was not willing to silently stand by and watch U.S. sol-

diers abuse the Quran, mock people’s religion, and strip

men of their dignity—even if those men were prisoners.”

He advocated openly for the prisoners, especially against

actions that were taken against the religious practices of

the Muslim prisoners. His advocacy brought him into

conflict with his superiors. “I believed that the hostile

environment and animosity toward Islam were so in-

grained in the operation that Major General Miller and

the other camp leaders lost sight of the moral harm we

were doing.”

He became concerned especially about the young

detainees. Boys as young as 12 to 14 years old, who had

been seized as they engaged in hostilities against Ameri-

can soldiers in Afghanistan, were detained at Guantan-

amo. Once there, they were held with no idea as to when

they would be released, or even if they would be. They

may have been interrogated with coercive measures,

and they experienced day-to-day treatment by guards

that is typical of the worst prisons. Yee asked himself

how these young men would turn out and what they

would think of America. Despite the pervasive attitudes

that he experienced that discouraged any attempt to ad-

vocate for prisoners, he continued to do so.

On his fi rst leave from Guantanamo, in September

2003, Yee was arrested at the airport coming back into

the United States, and accused of being a spy. He was

imprisoned for 76 days under conditions of sensory de-

privation and interrogated. Yee’s wife and daughter were

subjected to interrogation as well.

Eventually the treason and spying charges were

dropped. Because Yee was carrying names of detain-

ees and interrogators, he was charged with mishan-

dling classifi ed information. He was also charged with

pornography because of pictures on his computer, and

with adultery for an affair he had had with another of-

fi cer. Even those charges were dropped in 2004. General

Miller (the superior offi cer he had criticized at Guantan-

amo) was quoted as saying that the reason charges were

dropped was that national security would be compro-

mised in any prosecution; however, nothing in the record

indicated that Yee was, in any way, a spy. He was never

formally exonerated nor was he ever issued an apology,

even though his life had been torn apart by the accusa-

tions and he ended up with $260,000 in legal bills.

Yee believes that there was a plan to discredit him

(by accusing him of being a spy) in case he exposed

the treatment of the Guantanamo detainees. He left the

military in 2005, with an honorable discharge, and to-

day continues to speak out against what the United

States has done in Guantanamo.

W A L K I N G T H E W A L K

Sources: Buchholz, 2008: Gl, G4; Lewis, 2005; Yee and Molloy, 2005.

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courts recognized an expanding number of prisoner rights, including the rights to exercise

religious beliefs, obtain medical care, and enjoy some due process. The disruption in the

“old way” of doing things created real chaos, and the 1970s and 1980s brought danger, loss

of control, and stress for offi cers. In addition to increasing prisoner rights, the advent of

unionization, professionalism, and bureaucratization changed the guard’s world (Crouch,

1980, 1986; Silberman, 1995; R. Johnson, 2002).

The prisoners’ rights era of the 1970s gave way to the “due deference” era of today,

where courts are more apt to defer to prison offi cials. Now, when responding to prisoner

challenges, prison offi cials only have to prove a “rational relationship” between prison

policies or procedures and the correctional goal of safety and security (Pollock, 2004). The

Prison Litigation Reform Act of 1996 (PLRA) drastically curtailed the ability of inmates to

fi le lawsuits and made it nearly impossible for federal courts to order consent decrees or

order injunctive relief. It also limited attorney’s fees.

Today, the prison is not the same as it was before the rights and rehabilitation era of

the 1960s and 1970s, and correctional offi cers probably think that inmates still have too

many rights. However, the courts’ retreat into due deference has arguably led to a new era

of penal harm. When legal rights are limited, professional ethics must step into the breach

to guide what is appropriate treatment of those in custody.

R E L A T I O N S H I P S W I T H I N M A T E S

One would assume that the general relationship between offi cers and inmates is one of

hatred. That is not necessarily the case. As Martin (1993), a prisoner writer, points out, the

posturing and vocalization from either side come from a small number, with the majority

of inmates and offi cers living in an uneasy state of truce, hoping that no one goes over the

line on either side. The Quote and Query box points out the extremes in relationships

between convicts and guards.

QUOTE && QUERY Some convicts hate all prison guards. They perceive them as the physical

manifestation of their own misery and misfortune. The uniform becomes the

man, and they no longer see an individual behind it. . . . Many guards react in

kind. The hatred is returned with the full force of authority. These two factions

become the real movers and shakers in the prison world. They aren’t a majority

in either camp, but the strength of their hatred makes its presence known to all.

—SOURCE: MARTIN, 1993: 94–95.

? How would one reduce the level of hate between these small numbers of prisoners toward guards and guards toward prisoners?

The majority of guards and inmates prefer to live in peace and understand that they

have to treat each other with some modicum of respect in order to get along. Unfortu-

nately, both believe they must take sides when confl ict arises. Even though prisoners have

come to the aid of offi cers in physical confrontations, in general, inmates support their

fellow inmates and guards support their fellow guards, regardless of how little support

the individual deserves. Thus, a brutal guard may be protected by his fellows, and a racist

guard will not be informally or formally sanctioned. Likewise, an assaultive inmate will not

be kept in check by his peer group unless his actions are perceived to hurt their interests.

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An offi cer’s ethics and professionalism are seriously threatened when relationships

with inmates become personal. Gresham Sykes (cited in Crouch, 1980) discussed the is-

sue of reciprocity in supervision: offi cers become dependent on inmates for task comple- tion and smooth management of the housing unit; in return, COs may overlook inmate

infractions and allow some favoritism to enter their supervision style. An example of a

type of reciprocal relationship that may lead to unethical actions is that between an of-

fi cer and an informant. Several authors have described how rewarding informants some-

times creates tension and trouble in a prison environment even though management often

depends on the information (Hassine, 1996; Marquart and Roebuck, 1986).

COs who become personally involved with inmates compromise their professional

judgment. Involvement is possible because of proximity and close contact over time,

combined with shared feelings of victimization by the administration. Offi cers may start

to think they have more in common with inmates than with the administration, especially

now that offi cers are more likely to come from urban areas, come from minority groups,

and be more demographically similar to the inmates they supervise. Identifi cation and

friendship may lead to unethical conduct, such as ignoring infractions or doing illegal fa-

vors for an inmate. McCarthy (1991) writes of this exchange relationship as an incentive

for further corruption. He also points out that lack of training, low visibility, and unfet-

tered discretion contribute to a variety of corrupt behaviors.

An extremely problematic situation arises when the offi cer becomes sexually involved

with an inmate (or inmates). Sexual relationships run a continuum of coercion from “true

love” to rape. Coercion is more likely to be present with a female inmate and a male

offi cer (Pollock, 2004). Some research indicates that just as many female offi cers become

involved with male inmates as male offi cers with female inmates, and there are instances

of homosexual relationships between offi cers and inmates as well (Marquart, Barnhill,

and Balshaw-Biddle, 2001). In Dial and Worley’s (2008) research, out of a sample of 367

male inmates, 63 percent reported no boundary violations with offi cers, but 14 percent

reported that they had a sexual relationship with an offi cer. In most cases, this was with a

female offi cer. Correctional offi cers go down a “slippery slope” of developing a personal

relationship with an inmate by talking about their private life, then sharing pictures, then

perhaps talking with the inmate’s family outside of the prison. Even if the offi cer wanted to

retreat from such a relationship, they cannot because they fear exposure. Many times the

inmate “grooms” the offi cer to be a “mule” (carrying in illegal contraband) by developing

the sexual relationship; in these cases, it is the offi cer who ends up being coerced instead

of the other way around. Regardless of how benign the relationship, these relationships

reciprocity Sykes’s term denoting the situation in which offi cers become indebted to inmates and return favors.

in the N E W S T O O C L O S E !

The U.S. Attorney’s Offi ce for the Eastern District of Virginia announced in a news release that

a female correctional offi cer for the Federal Bureau of Prisons had pleaded guilty to bribery

and carnal knowledge with an inmate. She faces up to 15 years in prison, a $250,000 fi ne, and

supervised release for the bribery charge and fi ve years for carnal knowledge. She admitted to

a sexual relationship with an inmate and also admitted that she would bring in contraband to

him such as cell phones, cigarettes, and alcohol, in return for cash and gifts.

SOURCE: U.S. Attorney’s Offi ce, 2008b.

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are unethical and, in many states, illegal. The In the News box describes a situation where

love may have led to an offi cer experiencing prison from the other side of the bars.

The subcultural norms against sympathizing with or becoming too friendly with in-

mates may be seen as a tool to prevent offi cers from becoming personally involved with in-

mates and compromising their professional integrity. An offi cer who is too close to inmates

is seen by other offi cers as untrustworthy. The offi cer subculture minimizes this possibility

with a view of inmates as animalistic and not worth human sympathy. The negative ef-

fect of this is that positive elements of relationships between offi cers and inmates are lost.

How they are treated by COs is sometimes described by inmates as more painful than any

physical deprivations. Kauffman (1988) notes that inmates themselves make it diffi cult for

COs to continue to hold sympathetic or friendly views because of their negative behaviors.

Just as offi cers may act in unethical ways when they like an inmate, they also may

abuse their authority with inmates they do not like. These extra-legal harassments and

punishments may include “forgetting” to send an inmate to an appointment, making an

inmate stay in “keeplock” longer than necessary, or pretending not to hear someone locked

in a cell asking for toilet paper or other necessary items. Lombardo (1981, 1989) noted

the practices of putting an inmate in “keeplock” on a Friday even without a supportable

charge because the disciplinary committee would not meet until the following Monday

to release the inmate; the use of profanity toward inmates even in front of families; not

notifying an inmate of a visitor; and losing passes. During the time period she studied,

Kauffman (1988) noted that offi cers sometimes fl ushed cell toilets to aggravate inmates,

dumped good food into the garbage, withheld toilet paper or matches, made up “tips” re-

porting contraband in a cell that resulted in a shakedown, scratched artwork, and in other

innumerable informal ways made the targeted inmate’s life miserable.

Because prisoners are in a position of need, having to ask for things as simple as permis-

sion to go to the bathroom, offi cers have the power to make inmates feel even more depen-

dent than necessary and humiliated because of their dependency. The relative powerlessness

of offi cers in relation to their superiors, the administration, and society in general creates a

situation where some take advantage of their only power—that over the inmate. The gulf

between the status of guard and guarded is the theme of the Quote and Query box.

QUOTE && QUERY I never shake hands with an inmate. . . . They neither are nor ought to be viewed

as equals.

—SOURCE: GEORGE BETO, ADMINISTRATOR OF TEXAS PRISON SYSTEM, 1962–1972,

QUOTED IN DILULIO, 1987: 177.

[T]he sergeant had succeeded in making me feel even more isolated from the

world that existed outside the prison walls. I was no longer so proud to be an

American. I was just a convict without rights. . . .

—SOURCE: VICTOR HASSINE, INMATE, 1996: 52.

Because legitimate power is so unevenly distributed between the keepers and the

kept, left to its own inertia abuses of that power will inevitably creep into any

prison without diligent and sensitive oversight.

—SOURCE: PATRICK MCMANUS, STATE CORRECTIONAL OFFICIAL, REPORTED IN

MARTIN, 1993: 333.

? Should the attitude of correctional professionals be that inmates are not worthy of a handshake, or does that isolation from the “community of man” create the

potential for abuse?

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For offi cers, the potential of injury or being taken hostage is never far from their mind,

and may affect to a certain extent their supervision of inmates, for it is potentially dan-

gerous to be personally disliked. Also, on a day-to-day basis, inmates are not that much

different from anyone else. Some are friendly, some are funny, and some are good conver-

sationalists. This strange combination of familiarity and fear results in a pervasive feeling

of distrust. Offi cers insist that “you can be friendly with inmates, but you can never trust

them.” Mature offi cers learn to live with this basic inconsistency and are able to differenti-

ate situations in which rules must be followed from those in which rules can be relaxed.

Younger and less perceptive offi cers either take on a defensive attitude of extreme distrust

or are manipulated by inmates because they are not able to tell the difference between

good will and gaming.

Offi cers, of course, are individuals, and they respond differently to the demands and

job pressures of corrections. However, certain types have been identifi ed by R. Johnson

(2002):

The violence-prone • , who use the role of correctional offi cer to act out an authoritarian

role.

Time-servers • , who serve time in prison much the same way as the inmates do, avoid-

ing trouble and hoping that nothing goes wrong on their shift.

Counselors • , who seek to enlarge their job description and perceive their role as includ-

ing counseling and helping the inmate rather than merely locking doors and signing

passes. This type of offi cer has been called the human service offi cer and incorpo- rates the tasks of providing goods and services, acting as a referral agent or advocate,

and helping with institutional adjustment problems.

Changes over time have taken away many of the service functions that COs

used to perform. In his update of an older study, Lombardo (1997) found that in the

10 years following his first study, much of the ability of COs to grant favors had been

taken away. For instance, telephones in the yard eliminated the need for COs to run

interference for inmates and get them a pass to make a phone call. This situation in-

creased the autonomy of inmates, but it reduced the ability of the COs to develop

helping relationships with inmates, or, to put a more negative interpretation on their

loss, it reduced their ability to create debts from the inmate—favors owed in return for

favors given.

COs have much less discretion today, and practically every decision that in the past

had been made by a CO is now made by sergeants and specialized offi cers. COs think

they have much less power today to grant favors and, thus, have less control over inmates.

One type of control they do have is the use of force, albeit one that is and should be re-

strained by legal and ethical norms.

U S E O F F O R C E

The use of force is a legal and sometimes necessary element of correctional supervision,

and most observers say that the serious abuse that occurred in prisons in the past simply

does not take place today. For instance, “tune-ups” in the Texas prisons involved “ver- bal humiliation, profanity, shoves, kicks, and head and body slaps,” “ass-whipping,” and

using blackjacks and batons to infl ict injury (Crouch and Marquart, 1989: 78). Murton

(1976) described a litany of abuses that occurred in Arkansas prison farms, including the

Tucker telephone, an electrical device that was attached to the genitals of inmates to deliver severe shocks as a form of torture.

human service offi cer The corrections offi cer who perceives the role to include infl uencing and interacting with the offender.

“tune-ups” “Lessons” taught to inmates by Texas prison guards that involved verbal humiliation, profanity, shoves, kicks, and head and body slaps.

Tucker telephone An electrical device attached to the genitals of inmates that delivered severe shocks as a form of torture; formerly used at an Arkansas prison farm.

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One prison warden described hanging inmates on cell bars so their feet did not touch

the fl oor and leaving them overnight, or making them stand on a 2-by-4 or a barrel for

hours; if they fell off, the time would start again (Glenn, 2001: 25–26). This same warden

described a situation in which an inmate tried to escape, was shot, and then was hung on

the front gate, bleeding, for the fi eld hoe squads to see as they came back from the fi elds.

This was described by Glenn as an “effective . . . object lesson” rather than brutality (2001:

44). Glenn also described a prison captain who played a “game” with inmates whom he

believed weren’t working hard enough on the hoe squad. The captain had them tied and

stripped, and then lowered his pants and threatened to sodomize them (2001: 69).

Ironically, as violence by offi cers decreased in the late 1970s and 1980s, it opened the

door to the violence of inmate gangs and cliques. Inmates in the 1980s had less to fear

from guards but more to fear from one another as racial gangs and other powerful cliques

or individuals solidifi ed their control over prison black markets. There was a time in the

1970s and 1980s when offi cers described some prisons as “out of control.” There were

prisons where guards were afraid to walk into living units and inmates literally controlled

some parts of the prison (Carroll, 1998; Taylor, 1993).

Bowker (1980) and other authors who described the victimization of inmates by cor-

rectional offi cers explained the violence by the offi cers’ pervasive sense of fear and a CO

subculture that tolerated, if not encouraged, such victimization. Crouch and Marquart

(1989) and Crouch (1986) also discussed the use of violence as a rite of passage for the

correctional offi cer, a way to prove oneself as competent. Today, illegal uses of force are

not pervasive, but they do still exist (Pollock, 2004; Prendergast, 2003). Evidence that beat-

ings still occur can be found in court cases. For instance, in Hudson v. McMillian (503 U.S.

1 [1992]), the U.S. Supreme Court dealt with a case involving an inmate who had been

forced to sit in a chair while two offi cers hit him in the head and chest area, with a lieuten-

ant looking on. The state argued that because there was no “serious injury,” there was no

constitutional violation, because cruel and unusual punishment had to involve serious in-

jury. Although some justices agreed with this logic, the majority held that injuries need not

be serious to constitute a constitutional violation if the injury was gratuitous.

As with the use of force in law enforcement, policy defi nitions of necessary force are

vague. This may mean that the resort to violence is absolutely the last alternative available,

or it may mean that force is used when it is the most convenient way to get something ac-

complished (Morris and Morris, cited in Crouch, 1980: 253).

In 1999, nine Florida guards were indicted for the murder of an inmate. The inmate

died from his injuries, which included broken ribs, swollen testicles, and innumerable cuts

and bruises. He was on death row for killing a prison guard in a botched escape attempt

in 1983. Prosecutors alleged that he was killed because he was planning to go to the media

with allegations of widespread abuse in the prison. The accused guards insisted that he

killed himself by fl inging himself against the concrete wall of his cell or, alternatively, that

he was killed by other inmates (Cox, 2000). Three offi cers were acquitted in the case in

February 2002 (New York Times, 2002). This case and others illustrate the tendency for

jurors to believe offi cers, especially when the inmate is particularly unsympathetic as this

man was.

If the guards did beat the inmate in the Florida case, the offi cers involved probably

viewed the beating as utilitarian in that beatings serve as warnings to all inmates that they

will receive similar treatment if they attack COs. Thus, the action protects all offi cers from

inmate aggression to some extent. Offi cers might also defend the action on retributive

grounds because the inmate would probably not be punished for the attack through legal

channels. However, these retaliations always represent the most brutal and inhumane as-

pects of incarceration and damage the integrity of all correctional professionals.

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M A I N T A I N I N G M O R A L I T Y I N P R I S O N

Correctional offi cers report that they experience a great deal of stress, and stress-related ill-

nesses such as hypertension are common among offi cers, as well as social problems such

as alcoholism and divorce. Some reports indicate that these problems exist in higher num-

bers with correctional offi cers than with police offi cers. Correctional offi cers feel criticized

and even scorned by many, so it is little wonder that they adapt to their role by sometimes

unethical and egoistic patterns of behavior. Yet, it is important to understand the conse-

quences of such a position. Kauffman (1988: 222) talked to offi cers who reported that they

had lost their morality in the prison:

These offi cers experienced anguish at the change that was wrought in them by

the prison environment: Initially, many attempted to avoid engaging in behavior

injurious to inmates. . . . As their involvement in the prison world grew and their

ability to abstain from morally questionable actions within the prison declined,

they attempted to neutralize their own feelings of guilt by regarding prisons as

separate moral realms with their own distinct set of moral standards or by view-

ing inmates as individuals outside the protection of moral laws. When such ef-

forts failed, they shut their minds to what others were doing and to what they

were doing themselves.

Without a strong moral and ethical code, correctional offi cers may fi nd themselves

drifting into relativistic egoism: Behavior that benefi ts the individual is considered to be

acceptable, despite long-term effects or inconsistencies with their duty and their personal

value system. The result is a feeling of disillusionment and anomie, and the side effects

can be serious dissatisfaction and depression. To maintain a sense of morality in an in-

herently coercive environment is no easy task, yet a strong set of individual ethics is prob-

ably the best defense against being changed by the negative environment of the prison.

Not surprisingly, COs and inmates tend to agree on a description of a good offi cer as

one who treats all inmates fairly with no favoritism but who does not always follow rules to

the letter. Discretion is used judicially; when a good offi cer makes a decision to bypass rules,

all involved tend to agree that it is the right decision. A good offi cer is not quick to use force,

or afraid of force if it becomes necessary. A good offi cer treats inmates in a professional

manner and gives them the respect they deserve as human beings. A good offi cer treats

inmates in the way anyone would like to be treated. If an inmate abuses the offi cer, that

inmate will be punished, but through formal, not informal, channels. In some cases, the

offi cer will go far outside regular duties to aid an inmate who is sincerely in need; however,

he or she can detect game playing and cannot be manipulated. These traits— consistency,

fairness, and fl exibility—are confi rmed as valuable by research (Johnson, 2002).

J A I L O F F I C E R S

Little has been written about jail offi cers, who may be sheriff deputies who must complete

their assignment at the jail before they can be “promoted” to street patrol. Sometimes jail

offi cers are street deputies who are transferred back to the jail as punishment. In other

situations, jail offi cers are not deputies and have a separate title and lower pay scale. In all

these situations, the tasks and skills associated with managing jail inmates are discounted

or ignored. There is a need for greater recognition of the profession of jail offi cer; the posi-

tion should not merely be a dreaded rite-of-passage assignment, a punishment, or a step-

ping-stone to deputy status, because the body of knowledge required to perform the job

well is different from that which a street deputy needs. Recently there has been an attempt

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to professionalize the image of jail offi cers, starting again with a code of ethics (discussed

in the last chapter).

Arguably, the job of jail offi cer is even more diffi cult than that of correctional offi cer

because jail offi cers must deal with a transitory population rather than a fairly stable one.

Inmates include truant children, violent criminals, misdemeanants, mentally ill, and men-

tally challenged. Offenders may come into jail intoxicated, have undiagnosed epilepsy or

other diseases, suffer overdoses, or be suicidal. Visitation is more frequent, and family is-

sues are more problematic in jails than prisons. The constant activity and chaotic environ-

ment of a jail often create unique ethical dilemmas.

Many jail inmates, especially those with mental illness, cannot or will not follow rules.

Prisoners and guards alike do not tolerate their irrational behavior very well. Jail offi cers

tend to deal with all troublesome behavior as a discipline issue. Is throwing feces a behav-

ioral problem or an indication of mental illness? Sometimes it is both. When the person is

placed in isolation (as in segregation), the situation may bring on hallucinations, anxiety

attacks, and distorted thinking (Turner, 2007). Mentally ill inmates are more likely to be

charged with rule violations, including physical or verbal assaults on staff members, and

more likely to be injured, yet jail offi cers are not trained to be mental health specialists.

Unfortunately, in jails one can fi nd the same type of unethical behavior that one fi nds

with police and correctional offi cers. Jail offi cers can be uncaring and insensitive to human

needs. Then again, some jail offi cers may be described as human service offi cers who seek

to enrich their job by taking on more of a counseling role with inmates.

LAW Some acts committed by correctional offi cers are crimes. Having sex with an in- mate is a felony in some states; obviously, smuggling drugs is a crime and an offi cer who

smuggled would probably end up with a prison sentence himself. Taking items out of the

prison is against the rules, and could be considered bribery if the offi cer received money or

anything of value for transporting the contraband. In this case, while taking the letter out

is obviously against the rules, since the offi cer is not receiving anything of value from the

inmate to do so, there may be no law involved.

POLICY Policies against taking letters out of the institution for inmates exist because such activities bypass censorship and intelligence-gathering procedures. While in this case, it

could be that it is only an innocent birthday card, it could also be a code for something

else that gang intelligence offi cers would fl ag. It could also be a situation where the inmate

was under a judicial order to not make contact with his daughter. Another consideration

is that the inmate may be testing the offi cer to see if he may be willing to do more serious

acts in the future. If he does take the letter out against the rules, the inmate has gained a

little control over him because he can report the offi cer and get him in trouble. Next time,

he may ask the offi cer to do something a little more serious and, then the next time, some-

thing more serious, so that the offi cer becomes entirely controlled by the inmate. Policies

exist for a reason, even if they may not make sense in one particular case.

?? DILEMMA: An inmate asks you to mail a letter for him because he’s on daylock with no privileges. He tells you that you can open the envelope and look at it in order to make sure it is okay; it is only a birthday card for his daughter. If it doesn’t

get in the mail today, she will not get it in time. He is a good inmate, never gives you any trouble, and has actually helped you out

a few times with more troublesome inmates. You believe that there is nothing wrong with the card, think the guy got a bad deal

with the discipline anyway because he was only out of place and that usually gets only a warning, not daylock. You also know that

if you do the favor for him, he will continue to be a help to you on the tier. What should you do?

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ETHICS An egoistic rationalization would be that a favor done for the inmate may result in benefi t to the offi cer because the inmate owes him; however, as noted above, it may

backfi re because the offi cer will also “owe” the inmate in order for him to keep quiet about

the rule violation. A utilitarian rationale would weigh up the costs and benefi ts to all con-

cerned, but, as usual with utilitarian reasoning, there is no way to know all of the possible

ramifi cations of the act ahead of time, or even what the true nature of the act is (innocent

card or something else). An ethical formalist would abide by the duties of the role, which,

in this case, is to obey the policies about not carrying out letters. Ethics of care reason-

ing would attempt to solve the problem so the offi cer may take the card and talk to his

sergeant or lieutenant to see if an exception to the suspension of mail privileges could be

granted. This way would meet the needs of the inmate, protect the offi cer from any nega-

tive effect of breaking the rule, and protect the institution since the superior offi cers would

presume to know more about the circumstances of the inmate and whether the card was

innocent or not.

Treatment Staff A number of ethical issues that correctional treatment personnel may be faced with are

similar to those experienced in a more general way by all treatment professionals, so avail-

able sources dealing with ethics in the helping professions would also be applicable to

those who work in the corrections fi eld (see, for instance, Corey, Corey, and Callanan,

1988; Braswell, Miller, and Cabana, 2006). However, the unique issues facing correctional

treatment professionals derive from their dual goals of treating the individual and being

an employee (or contractor) of the state with a corresponding duty to maintain safety and

security (whether in an institution or community setting).

The professional goal of all treatment specialists is to help the client, but sometimes

helping the client is at odds with the safety and security of the institution. For instance,

prison psychologists may be privy to information or confessions that they feel bound to

hold in confi dence, even though this may jeopardize the security of the prison. Assessing

risk also involves mixed loyalties. Any treatment necessarily involves risk. How much risk

one is willing to take depends on whether the public should be protected at all costs, in

which case few people would ever be released, or whether one thinks the public must risk

possible victimization in order to give offenders a chance to prove themselves.

Another dilemma is the administration of treatment programs. If a program has po-

tential, someone must make decisions on who is accepted into the program. Ideally, one

would want similar people in the treatment program and in a control group, but it is hard

sometimes to justify withholding the program from some people who may sincerely wish

to participate. Laypersons have diffi culty understanding the concepts of random sampling

and control groups. There sometimes is pressure to admit anyone who sincerely wants a

chance to participate, despite what this might do to experimental design.

Another, more basic issue is whether to provide treatment to people who do not want

it. One of the elements of codes of ethics for treatment professionals is that one should

respect the autonomy of individuals, and this generally is interpreted to mean no forced

treatment. In corrections, however, treatment professionals are often involved in what may

be considered coerced treatment. In particular, psychiatrists and psychologists have to

reconcile their professional ethics in two fi elds—corrections and psychiatry—and at times

this is hard to do. Psychiatrists in corrections, for instance, believe at times that they are

being used for social control rather than treatment (Tanay, 1982). Disruptive inmates, al-

though needing treatment, pose security risks to prison offi cials, so intervention, especially

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the use of antipsychotic drugs and barbiturates, often takes the form of control rather than

treatment, as the Quote and Query box illustrates.

QUOTE && QUERY As it was, John’s illness needed to be controlled, not because he was unhappy

with it, but because those around him found it objectionable. What can the

psychiatrist do in cases like this?

—SOURCE: DISCUSSING AN INMATE WHO WAS NOT VIOLENT BUT WAS EXTREMELY

TALKATIVE, LOUD, AND INCLINED TO DISCUSS HIS DELUSIONS, AS QUOTED IN

ARBOLEDA-FLOREZ, 1983: 52.

? Should psychiatrists use drugs to quiet an inmate who is not violent? The practice of using antipsychotic drugs is especially problematic for treatment pro-

fessionals. Although the Supreme Court determined in Washington v. Harper (494 U.S. 210

[1990]) that the administration of such drugs to unwilling inmates is not unconstitutional,

the practice must be scrutinized and held to due-process protections in order to uphold

professional ethical standards. Some allege that psychotropic drugs are used to control in-

mates, rather than used for legitimate treatment purposes. There are pervasive stories from

ex-inmates of inmates being maintained on high dosages of drugs during their prison stay.

Once released, they may go through withdrawal and have no assistance from community

mental health facilities because of governmental cutbacks in services (Martin, 1993).

Psychologists in correctional settings have two ethical codes to follow: the American

Psychological Association’s Ethical Principles of Psychologists and Code of Conduct, and

the code for the American Association for Correctional and Forensic Psychologists. Some

principles of the Ethical Principles of Psychologists seem especially relevant to corrections.

For instance, in Standard 3.11, psychologists who are providing services through other orga-

nizations are instructed to provide information beforehand to clients about (1) the nature and

objectives of the services, (2) the intended recipients, (3) which of the individuals are clients,

(4) the relationship the psychologist will have with each person and the organization, (5) the

probable uses of services provided and information obtained, (6) who will have access to

the information, and (7) the limits of confi dentiality. This obviously affects institutional psy-

chologists, who must make clear to inmates their responsibility to custody concerns.

Other principles also refl ect the reality of correctional placements. For instance, in

Standard 3.10, psychologists are mandated to obtain informed consent for treatment;

however, the ethical code recognizes that some activities without consent may be man-

dated by law or governmental regulation. The standard does state that when treatment is

court-ordered, the individual must be informed of the nature of the anticipated services

and any limits of confi dentiality.

Haag (2006) describes some ethical dilemmas of prison psychologists in Canada,

which apply to the United States as well. In his discussion, he mentions issues of:

Confi dentiality • : The inability to keep prisoners’ secrets

Protection of psychological records • : Whether or not psychologists should create

“shadow fi les” that are not subject to view by other staff

Informed consent • : Whether consent is possible from a coerced population

Assessment • : What the psychologist’s role is when assessment is used for correctional

purposes

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Corroboration • : The importance of not accepting everything the inmate says, as the in-

mate may be engaged in “impression management”

Refusal of services • : Whether psychologists should honor an inmate’s refusal of psy-

chological services

Nondiscrimination • : Treating all inmates equally regardless of group membership or

individual characteristics

Competence • : The importance of being aware of the boundaries of one’s competence

Knowledge of legal structure • : Being aware of the rights of the parties involved

Accuracy and honesty • : Making clear the limits of predictive validity of psychological

assessments

Misuses of psychological information • : Refusing to allow fi le information to be misused

to damage an inmate’s interests

Multiple relationships • : Avoiding dual roles (such as assessment and treatment), which

is problematic and creates confusion for the client

Lichtenberg, Lune, and McManimon (2004) use the 1971 movie A Clockwork Or-

ange to discuss issues of voluntariness and morality in treatment. The movie is a critical

treatment of behavior modifi cation and illustrates the fear that manipulating people’s

minds through aversive conditioning takes away, in some respects, the essence of what

it means to be a free individual. Although the fi lm is a satire and obviously an extremely

drawn portrait of the power of aversive conditioning, the central idea—that when peo-

ple have been conditioned, they are not rationally choosing good because they cannot

freely choose evil—is relevant and important to our discussions of moral culpability, as

well as the ethics of trying to change individuals who do not want to be changed.

As in the legal profession, confi dentiality is an issue for psychologists. The ethical

principles (Standard 4.01) address this issue. Psychologists have a primary obligation

and take reasonable precautions to protect confi dential information obtained through or

stored in any medium, recognizing that the extent and limits of confi dentiality may be

regulated by law or established by institutional rules or professional or scientifi c relation-

ship. Treatment professionals in corrections must inform their clients, whether they are

prison inmates or on some form of supervised release in the community, of the extent or

limitations of the confi dentiality. It may be that there is no confi dentiality at all when the

counselor, psychologist, or other professional is employed by the court. In any environ-

ment, psychologists and counselors must be aware of the Tarasoff rule (Tarosoff v. Regents

of the University of California, 17 Cal. 3d 425 [1975]), from a case that held a psychologist

liable for not warning a victim of imminent harm from one of their clients. Treatment pro-

fessionals do have legal duties to third persons if they have cause to reasonably believe that

one of their clients is going to harm that person.

Treatment and security concerns clash in many instances. The treatment professional

must choose between two value systems. To emphasize security concerns puts the psy-

chiatrist or counselor in a role of a custodian with professional training used only to bet-

ter control inmate behavior. To emphasize treatment concerns puts the professional in an

antagonistic role vis-à-vis the security staff, and he or she may be in situations where these

concerns directly confl ict.

Glaser (2003) argues that these concerns are especially relevant to professionals in

sex offender treatment programs. He argues that the values and mission of sex offender

treatment is at odds with traditional ethical codes. He notes specifi cally: the protection of

society overriding client interest, advocacy for involuntary treatment, breaches of confi -

dentiality, no choices for the client regarding modality or therapist, treatment programs

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utilizing unqualifi ed staff, and therapy that infringes on dignity and autonomy. The con-

cern is that therapists who work in treatment programs with the foregoing elements are

in an ethical vacuum. Traditional ethical codes don’t apply, but they have no code that

accommodates the unique elements of sex offender treatment.

Faith-based treatment programs, such as the Prison Fellowship Ministries, a

Washington, D.C., group headed by former Watergate fi gure Charles “Chuck” Colson,

can be found in many prisons. The program is Christ-centered, biblically rooted, and

values-based, and it emphasizes family and community. Inmates volunteer for the pro-

gram (M. Ward, 1996). The InnerChange Freedom Initiative, introduced in 1997 in the

Texas prison system, has shown reduced recidivism. During a two-year study period, only

8 percent of program participants returned to prison, compared to 20 percent for the con-

trol group (Criminal Justice Policy Council, 2003). Having such programs in prison raises

several issues. Some argue that the programs violate the separation of church and state

and are an unconstitutional violation of freedom of religion. If a Christian program offers

hope for early release or other advantages, Muslims or those following other religions may

participate only if they also compromise their faith. Individuals associated with such pro-

grams must take care not to intrude upon the religious freedom of inmates and not use the

benefi ts of the program to coerce religious conformity.

Probably the most prevalent issue for treatment professionals is how to maintain

one’s commitment to a helping profession while being in an environment that does not

value the goals and mission of treatment. This dichotomy of treatment versus punishment

creates a myriad of ethical issues for treatment professionals.

Another area that must be considered under the general heading of treatment is that

of medical services. There have been a number of scandals concerning the level of medical

care in prisons around the country (Associated Press, 2002). Court cases and exposés have

documented the sometimes deadly consequences when the medical needs of inmates are

ignored or not met. Vaughn and Smith (1999) described several different ways in which

medical services—or more specifi cally, the lack of such services—created pain and suf-

fering for inmates. Sometimes poor medical care is a result of neglect or lack of resources,

but sometimes the medical staff simply did not care, believed that prisoners should suf-

fer, and/or did not believe that inmates were sick or injured. The authors suggest that the

medical staff itself sometimes furthers penal harm by withholding medical services and

justifi es such actions by a type of ethical relativism in which inmates aren’t seen as deserv-

ing the same type of care as others.

One example of where custody and medical care confl ict is in the case of shackling

pregnant prisoners. In some states, female prisoners would be routinely shackled with leg

chains even when they were in labor, and the chains would not be removed unless escort

offi cers were ordered to do so by doctors. Opponents argued that there was no safety or

security issue because when a woman was giving birth, she was unlikely to escape or as-

sault someone. In a case before the Eighth Circuit, Shawanna Nelson experienced intense

pain when she could not adjust her position during the late states of labor because she was

shackled to the hospital bed. She may also have experienced injuries due to the shackling.

The Eighth Circuit held that shackling in late stages of labor was cruel and unusual punish-

ment (Nelson v. Norris, No. 07-2481, U.S. Court of Appeals, Eighth Circuit, July 18, 2008).

Since escort offi cers have discretion to decide whether or not to keep a female offender

under their supervision shackled during labor, this is an ethical issue as well as a legal one.

Others argue that medical professionals in American prisons have begun to fi ll roles

that may be inconsistent with their allegiance to medical ethics—for instance, assisting

in body-cavity searches and testing for drugs. These control activities are not a part of

the helping profession of medicine and may interfere with the medical professional–client

relationship (Kipnis, 2001).

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LAW There is probably no law that requires you report what the inmate has told you nor any law that prevents you from doing so. You clearly have a responsibility to do something,

and you have a legal obligation inherent in your job to protect the safety and security of the

institution, but what that means in any given case is unclear.

POLICIES The policies of the institution would dictate that you report the threat to your supervisor, who would report it to custodial staff. The inmate may be pulled from

general population for his own protection, or, in some facilities, he may be called to the

lieutenant’s offi ce to have him directly report the threat. He either would deny he said

anything and be sent back to the tier, or he would admit the threat and then the perpe-

trators would be interviewed. They would know who reported them. This ham-handed

approach to reported threats sometimes gets victims seriously injured and ensures that

few inmates come forward when threatened. Some institutions may have more effec-

tive responses to sexual threats, especially those which have instituted such procedures

in response to the Prison Rape Elimination Act.

ETHICS This is a situation that has no clear right or wrong response. Ethical formalism would identify the duty to ensure the safety and security of the institution, but that might

lead to different choices depending upon how you feel you could accomplish your duty.

Utilitarianism also would not support a decision that would create more harm by setting

up the inmate as a snitch. It may be that the inmate could be moved to a different tier or

even transferred to a different prison without a reason given. This would remove him from

the possibility of harm without the “snitch jacket.” Still, prisons are small towns and gos-

sip travels fast. If you told anyone, it is possible it would get back to the perpetrators. No

ethical system (except perhaps egoism) would support doing nothing, but how exactly to

protect the inmate depends on the personnel and procedures in any specifi c prison.

Probation and Parole Offi cers Community corrections has a more positive and helpful image than does institutional

corrections. However, even in this subsystem of the criminal justice system, the ideals of

justice and care become diluted by bureaucratic mismanagement and personal agendas.

?? DILEMMA: You are a correctional counselor with an MSW. Although you don’t have time to “counsel” inmates since you have a caseload of 1,000 and barely have time to simply process classifi cation paperwork, periodically an inmate is open to talking and

you feel that you make a difference when you take the time to talk to them. One inmate, Jerome, has been talking to you sporadically

for over a year. You feel some affi nity for him since he is young, doesn’t seem to have much of a criminal identity, and seems to be try-

ing to make better decisions for himself. He is participating in the prison’s Narcotics Anonymous program, is getting his GED, and works

in the prison library. One day he’s clearly troubled by something so you put your papers aside and invite him to sit down. It turns out

that some gang members in his tier are pressuring him for sex. He’s being taunted and harassed every day, and they either want him

to “put out” or act as a mule for their drug business. Since he’s obtained a lower security classifi cation he is able to travel with more

freedom in the facility, and they want him to deliver their drugs for them. If caught, he would face many years added to his sentence.

If he doesn’t do it, he may become a rape victim. You tell him that the only thing to do is report the threat and seek protective custody.

He absolutely refuses to do so because it would mean that all the time he has spent in the GED program would be wasted (you can’t

participate in it in the protective custody wing) and he would lose his job in the prison library. Should you report what he told you?

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Professionals in community corrections do not have the same power as police or correc-

tional offi cers to use physical force, but they do have a great deal of nonphysical power

over the clients they control. Similarly to other treatment personnel, ethical dilemmas for

probation and parole offi cials often revolve around the dual goals of promoting rehabilita-

tion for the client and safety and security for the community.

Discretion in probation exists at the point of sentencing: probation offi cers make rec-

ommendations to judges concerning sentences. Discretion also exists during supervision

in the following ways:

Probation offi cers decide when to fi le violation reports. •

They decide what recommendation to make to the judge during revocation hearings. •

They make numerous decisions along the way regarding the people on their •

caseload.

Parole board members or their designees make decisions regarding release, and pa-

role offi cers have the same discretion in managing their caseload that probation offi cers

do. What criteria are used for these decisions? Usually, the risk to the public is the primary

factor for decision making on the part of probation and parole offi cials, but other consid-

erations also intrude. Some of these other considerations are ethical; some might not be,

such as race, type of crime, family ties, crowding in institutions, who the victim was, what

the judge wants, and publicity concerning the crime.

Probation officers write presentence reports to help judges decide sentences, but

research has found that there may be errors in the information presented and that some

offi cers are not as thorough as others in gathering information. This may not make much

difference if it is true, as some have found, that probation officers’ recommendations

and judges’ decisions are determined almost completely by the current offense and prior

record (Whitehead, 1991).

Probation and parole offi cers have the authority and power to recommend revocation.

This power is also limited because probation and parole offi cers’ recommendations can

be ignored by the judge or the parole hearing offi cer. Yet the implicit power an offi cer has

over the individuals on his or her caseload must be recognized as an important element of

the role, not to be taken lightly or misused.

Probation and parole offi cers have been described as adopting different roles on the

job. Recall the typologies offered to describe how police offi cers approached their role and

how their “type” might affect their decisions; the same discussion can be applied to proba-

tion and parole offi cers. They have also been described by their orientation to the job and

individual adaptation to organizational goals. For instance, Souryal (1992) summarizes

other literature in his description of the following types:

The punitive law enforcer •

The welfare/therapeutic practitioner •

The passive time server •

The combined model •

Different ethical issues can be discussed in relation to each of these types. For in-

stance, the punitive law enforcer may need to examine his or her use of authority. This offi cer may have a tendency to use illegal threats and violate the due-process protections

that each client deserves. The welfare/therapeutic worker may need to think about natural law rights of privacy and autonomy. These offi cers have a tendency to infringe on

clients’ privacy because of their mindset that they are helping the client (and, indeed, they

punitive law enforcer The type of offi cer who perceives the role as one of enforcer, enforces every rule, and goes “by the book.”

welfare/therapeutic worker The type of offi cer who perceives the role as one of counselor to the offender and who helps to effect rehabilitative change.

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might be), but the client may prefer less help and more privacy. The passive time server may violate professional ethics in not performing duties associated with the role.

All of us may have some tendency to be a time server in our respective professions. It

is important to continue to take personal inventories and ask whether we are still putting

in a “day’s work for a day’s pay.” As is the case for many of the other criminal justice pro-

fessionals we have discussed in this book, parole and probation offi cers often have a great

deal of fl exibility in their day. They leave the offi ce to make fi eld contacts, and they often

trade weekdays for weekend days because weekends are more conducive to home visits.

This fl exibility is necessary if they are to do the job, but some abuse it and use the free-

dom to accomplish personal tasks or spend time at home. Some offi ces have attempted

to prevent this behavior by instituting measures such as time clocks and strict controls on

movements, but these controls are inconsistent with professionalism and not conducive to

the nature of the task.

C A S E L O A D S U P E R V I S I O N

Discretion exists not only at the recommendation-to-release stage but also throughout su-

pervision. Offi cers do not make the decision to revoke, but they do make the decision

to fi le a violation report and make a recommendation to the judge or the parole hearing

examiner to continue with supervision status (perhaps with new conditions), or recom-

mend revocation and a prison sentence. Many do not submit violation reports automati-

cally upon discovery of every offender infraction. In this way, they are like police offi cers,

who practice selective enforcement of the laws. Like police offi cers, some of their criteria

for decision making are ethical and some are not. Also like police offi cers, the individual

offi cer may face ethical dilemmas when the law doesn’t seem to take into account social

realities, such as poverty.

The discretion to decide when to write a violation report is a powerful element in the

control the offi cer has over the offender, but this can obviously be a diffi cult decision to

make at times. If the offi cer excuses serious violations (e.g., possessing a fi rearm or con-

tinuing drug use) and the decision to do so is based on personal favoritism, fear, or bribery,

that offi cer is putting the community at risk and is unethical in making the decision to

do so. Situations in which the offi cer sincerely believes the offender made a mistake, has

extraordinary excuses for such misbehavior, and is a good risk still present a danger to the

community. Is the decision any more ethical because of the offi cer’s belief in the offender?

Would it be more ethical to conduct oneself “by the book” and always submit violation

reports when the offender commits any violation, including a purely technical one?

Probation and parole offi cers are presented with other dilemmas in their supervision

of offenders. For instance, the offender often acquires a job without the employer’s knowl-

edge of his or her previous criminality. Is it the duty of the offi cer to inform the employer

and thereby imperil the continued employment of the offender? What about offenders’

becoming personally involved with others and refusing to tell them about their past his-

tory? Does the probation or parole offi cer have a duty to the unwary party, especially if

the offender is on probation or parole for an assaultive offense? If the probation or parole

offi cer knows or suspects that the offender is HIV-positive and the offender begins an in-

timate relationship with someone, does the offi cer have a duty to warn the other party?

Most states protect the confi dentiality of victims of AIDS, and in these cases the offi cer

has a legal duty not to disclose.

What is the probation or parole offi cer’s responsibility to the offender’s family? If

family members are unwilling to help the offender and perhaps fear his or her presence,

passive time server The type of offi cer who does the bare minimum on the job to stay out of trouble.

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should the officer find a reason for revocation? Again, these questions revolve around

competing loyalties to public and client. The correctional professional must balance these

interests in every decision, and the decisions are often not easy to make.

Similar to the police offi cer, at times the probation offi cer’s role as a family member

or friend confl icts with the professional role. Family members and/or friends may expect

special treatment or expect that the offi cer will use his or her powers for unethical pur-

poses, such as using offi cial records to fi nd out information about someone. These are

always diffi cult dilemmas because family and friends may not be sympathetic to the in-

dividual’s ethical responsibilities to the organization and to society at large. Probation and

parole offi cers are likely to have overlapping circles of acquaintances and family connec-

tions with those on their caseloads, especially in small towns. Confi dentiality and favorit-

ism are issues that come up frequently.

The offi cer also has to contend with the issue of gratuities. Again, similar to the police

offi cer, probation or parole offi cers may be offered special treatment, material goods, or

other items of value because of their profession. In most cases, the situation is even more

clearly unethical for probation and parole offi cers because the gift is offered by a client

over whom decisions are made, as opposed to police offi cers who may or may not ever be

in a position to make a decision regarding a restaurant or convenience store manager.

Probation departments have clear rules against any “business relationships” with pro-

bationers, and this makes sense, but probation offi cers in small towns ask, “How can I

avoid a business relationship with a client when the only coffee shop in town is run by one

of my clients? Am I never to go there during the years he is on probation?” In the same

manner as police, probation and parole offi cers may believe that some gifts offered are

given in the spirit of gratitude or generosity and not to infl uence decision making.

Some probation or parole offi cers encounter ethical confl icts when they seek part-time

employment at counseling centers. They may have counseling or drug treatment licenses

that allow them to run groups and engage in individual counseling to earn extra income.

This becomes an ethical issue when their part-time employment may involve working with

correctional clients. Because their role as private counselor would confl ict with their role

as professional correctional supervisor, ethics boards have ruled that such employment is

acceptable only when the counselor does not interact with their own clients.

Because probationers may appear to be similar to the probation or parole offi cer in

socioeconomic status, family background, lifestyle, or personal value systems, they have

a greater tendency to feel affi nity and friendship for some clients. Some probation offi cers

have been known to have clients babysit for them, to rent a room in their house, or to

socialize with them and their families. Obviously, these personal relationships hinder the

ability to perform one’s offi cial function as a protector of the community and enforcer for

the legal system. Personal relationships of any type—romantic, platonic, or fi nancial—are

simply not appropriate or ethical for the probation and parole professional.

P A R O L E

We have been discussing probation and parole offi cers simultaneously above, but there

are some important distinctions between the two. First, parolees are perceived to be more

of a threat to the community, so the supervision role of parole offi cers is emphasized much

more strongly than in probation, where supervision is balanced with a service/counseling

emphasis. Further, paroled offenders are usually older and have a longer criminal record,

so the relationship between supervisor and client might be different. The problems faced

by parolees are quite different from those faced by probationers.

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The Bureau of Justice Statistics reports that 581,000 prisoners were released to pa-

role in 2008. There are about 825,000 parolees, comprising about 17 percent of the com-

munity corrections population (probationers comprise the vast majority of community

corrections clients) (Glaze and Bonczar, 2009: 6). Because of the drastic increase in the

number of those incarcerated during the 1980s even though the use of parole decreased,

the sheer number of those eligible has been swelling the ranks of parole caseloads. Most

have the same low levels of education and vocational skills that they had going into

prison and have not had access to many, if any, rehabilitative programs in prison. Fur-

ther, many of those newly released will be those who maxed out—meaning that they

completed their entire sentence with no requirements to be supervised (Talbot, 2003;

Glaze and Bonczar, 2009).

Many of those released from prison return. According to a Justice Department study,

67 percent of released inmates were charged with at least one serious crime within three

years. The study tracked 272,111 released inmates in 15 states (K. Murphy, 2002). Other

study fi ndings indicated that the recidivism rate of offenders is worse than 20 years ago,

not better, despite the longer sentences imposed. Men were more likely than women to

recidivate (68 percent compared to 57 percent); blacks were more likely to recidivate than

whites (73 percent compared to 63 percent); and young people (under 18) were more

likely to recidivate than older offenders (45 and above) (80 percent compared to 45 per-

cent). Offenders with the highest recidivism rates included car thieves, those convicted of

receipt of stolen property, burglars, and those convicted of robbery.

Our incarceration rates—currently some of the highest in the world—have had a tremen-

dously negative impact on communities. Entire neighborhoods are affected when a large per-

centage of their population is sent away for years at a time. Generational effects are obvious;

children of inmates are six times as likely to be delinquent (Mauer, Chesney-Lind, and Clear,

2002). More subtle effects exist as well. The economy and the social fabric of a community

are also affected when large numbers of young people are removed. Community corrections

professionals have some power in this scenario. They can make release recommendations and

affect revocation rates. They can help offenders with reentry problems, or they can blindly en-

force every bureaucratic rule.

Recall that under ethical formalism, to be an ethical professional, one must do one’s

duty. What is the parole offi cer’s duty? Some offi cers believe that they have met their ethi-

cal duty by explaining the rules to a parolee and then catching the person if he or she

“messes up.” Others see a more expanded role wherein the offi cer has some duty to help

the offender readjust to society. This may involve taking some responsibility for counsel-

ing the offender, referring him or her to services, acting as a troubleshooter or mediator in

confl ict with family or others, and acting as an advocate in obtaining help. In other words,

this offi cer takes a proactive approach to the parolee’s success. Is fi ling a violation report a

success (because the offender was caught) or a failure (because the offender did not suc-

ceed)? How an offi cer feels about the answer to that question may indicate how they view

their role.

A V O I D I N G B U R N O U T A N D D I S I L L U S I O N M E N T

Whitehead (1991) discusses probation and parole offi cers’ frustration over incompetents

being promoted, low wages, and high caseloads that lead to burnout. Souryal (1992) notes

that low pay, a public view that probation and parole are ineffective, and the politiciza-

tion of parole and probation are factors in professionals’ feeling that their role is ambigu-

ous, contradictory, and politically vulnerable. Disillusionment becomes almost inevitable.

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Although these issues are present in many organizations, they are especially problematic

in a profession that requires a great deal of emotional investment on the part of the prac-

titioner. The problems of burnout and how to address it are beyond the scope of this dis-

cussion, but it does bear noting that burnout may lead to unethical acts. When offi cers

“just don’t care anymore,” they may not take their duties seriously and/or use their discre-

tion in inappropriate ways.

LAW At this point, she has not broken any laws that you know of and there is no law that requires you to do anything. The enabling probation law in your state probably includes

the provision that an offender can be revoked for technical violations—these are rules that

are not new crimes. In her case, she is violating the general rule of no-association. You

could write a violation report on her and a judge may revoke her probation and send her to

prison, although, typically, mere technical violations do not warrant revocation.

POLICY There are formal policies and informal policies in every probation offi ce. The formal policy is that an offi cer should write a violation report when he or she becomes

aware of a violation. The informal policy varies from offi ce to offi ce in how serious and/or

how many “technicals” deserve a violation report. Some offi ces are stricter than others. An

offi cer may go to his or her supervisor with this issue, but that only transfers the dilemma

from the offi cer to the supervisor; there is still an ethical decision to be made when law and

policy do not absolutely dictate a response.

ETHICS Ethical formalism would apply the categorical imperative, and in this case it seems that universalism might dictate a different response from simply fi ling a violation

report, but what response is best is still a problem. Utilitarianism also would probably not

support revocation since the harm to her and her children outweigh the existing benefi t

(and you can’t predict with certainty what might happen in the future, so that is hard to

weigh against the certain harm of revocation). Ethics of care would attempt to satisfy all

needs, so if her need was fi nancial assistance, the best solution would be to try and help

her fi nd another way to pay her rent, such as subsidized housing, a halfway house that al-

lows children, or some other solution. This would meet the need she expressed, so if she

still chooses the man over her freedom and children, at least the offi cer can be satisfi ed

that it was her decision and not economic necessity. Both utilitarianism and ethical formal-

ism would also be consistent with this approach.

?? DILEMMA: You are a probation offi cer with a large caseload. One of your “clients” is a young woman who is a single mother. She is on probation for theft. She shoplifted food and baby formula from a grocery chain that had a no-tolerance policy for

shoplifters. She has been doing okay on probation in terms of reporting and staying out of trouble (as far as you know). One day,

you make a surprise home visit and fi nd that she is at work, and her new boyfriend is watching her two toddlers. He sets off alarm

bells and so you run a criminal background check on him when you return to the offi ce. It turns out that he has been in prison

for assault and has many arrests for drugs, assault, and other crimes. There are indications that he belongs to a criminal gang that

controls a good portion of the drug market in your town and has also been implicated in armed robberies. You call her in and talk

to her about the man, and she tells you that he is paying her rent and she can’t get along without him. You insist that she avoid

contact because one of her conditions is no association with known criminals. More importantly, you don’t trust him with her young

children and know that it is only a matter of time before she is drawn into criminal acts with him. She tells you that you might as

well revoke her probation right now because she can’t pay her rent without his help. What would you do?

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C O N C L U S I O N

In this chapter, we touched on some of the ethical issues that correctional personnel face

in institutional corrections and in the community. Discretion exists at each stage of the

criminal justice system, and each of the correctional professionals we have introduced

in these chapters has discretion in different ways. The diffi cult decisions for correctional

offi cers arise from the personal relationships that develop with inmates, the trust that is

sometimes betrayed, the favors that seem harmless, and the coercive environment that

makes violence normal and caring abnormal. Correctional treatment personnel have their

own problems in resolving confl icts between loyalty toward clients and toward the system.

Community correctional professionals also must balance public safety with client inter-

ests. They often, especially in small towns, have diffi culty in their supervisor role when it

overlaps with other community relationships.

To be in a helping profession in a system geared for punishment is a diffi cult chal-

lenge for anyone, and the temptation to retreat into bureaucratic compliance or, worse,

egoistic relativism is always present. Arguably, the criminal justice system operates as well

as it does only because of the caring, committed, honest people who choose it as a career.

C H A P T E R R E V I E W

1. Describe the role confl ict of correctional offi cers.

Prisons experienced changing goals (from custody to rehabilitation) in the 1970s and

1980s, and this created role confl ict and ambiguity for the correctional offi cer. Also in

the 1970s, federal courts recognized an expanding number of prisoner rights, including

the rights to exercise religious beliefs, obtain medical care, and enjoy some due process.

The disruption in the old way of doing things created real chaos, and the 1970s and 1980s

brought danger, loss of control, and stress for offi cers.

2. List and describe some ethical issues for correctional offi cers.

Offi cers’ uniforms bestow authority, not unbridled domination, and each offi cer learns

how to utilize this authority. Most do so in ethical ways, although some offi cers abuse their

position. Relationships with inmates present other ethical issues. Offi cers tend to support

other offi cers against inmates, even when the offi cer is wrong. However, reciprocity and

personal relationships with inmates also can be an issue and potential problem for offi cers;

offi cers may like an inmate too much and compromise security, or utilize their position to

coerce or harass an inmate. Correctional offi cers report that they sometimes experience a

great deal of stress from their role. They are generally disliked by inmates and scorned by

society. Some lose their morality in the negative environment of a prison.

3. Describe the different challenges that face jail offi cers as compared to correctional

offi cers in prisons.

Jail offi cers have become more professional in recent years, but the position is still some-

times used as a dreaded rite-of-passage assignment, a punishment, or a stepping-stone to

deputy status. The jail offi cer deals with a transient population that includes juveniles, the

mentally ill or intoxicated, and those with other health problems. There is more interac-

tion with relatives of offenders because the jail is in the community; this also means the jail

offi cers may know or be neighbors of offenders or relatives of offenders. Contraband and

other issues are a major problem in jails.

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3 6 8 P A R T I V | C o r re c t i o n s

4. Explain the role confl ict of treatment professionals and provide examples.

Correctional treatment professionals have dual goals of treating the individual and pro-

tecting the safety and security of the institution and/or the community. Sometimes this

creates confl ict—for instance, prison psychologists may be privy to information or con-

fessions that they feel bound to hold in confi dence, even though this may jeopardize the

security of the prison. Treatment professionals must assess risk to the community in every

decision to allocate more freedoms for clients. Allocating treatment resources is also an is-

sue, specifi cally how to determine who should have access to treatment programs.

5. Describe the ethical issues of probation and parole offi cers.

Ethical issues arise in the probation or parole offi cers’ ability to fi le violation reports or (for

probation offi cers) recommend sentencing in that there are ethical and unethical criteria for

such decisions. There is also discretion in managing the caseload, including issues of gratuities,

relationships with clients, and when family or friends expect special favors or treatment.

K E Y T E R M S

S T U D Y Q U E S T I O N S

1. How do COs have discretion similar to police offi cers and court personnel?

2. Describe the role ambiguity that COs faced in the 1970s and 1980s. What are the role

types of offi cers identifi ed by R. Johnson?

3. What are the ethical issues identified by Haar for treatment professionals in

corrections?

4. Explain the two areas where probation and parole offi cers have discretion.

5. What are the role types of probation and parole offi cers? Describe them.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) the range of legal rights that you believe prisoners

should have. Look at international treaties on human rights, the ACA standards, and

other sources before you write your essay.

2. Write an essay on (or discuss) how you would put together a policy manual for treat-

ment professionals who work in a prison or jail. Evaluate the professional codes and

identify problematic controversies, and then create a policy that can accommodate a

confl ict (such as confi dentiality).

3. Write an essay on (or discuss) whether probation and parole offi cers should have the

power to carry weapons (in some states they are required to, in others they are prohib-

ited from doing so).

correctional offi cer

human service offi cer

passive time server

punitive law enforcer

reciprocity

Tucker telephone

“tune-ups”

welfare/therapeutic worker

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E T H I C A L D I L E M M A S

Situation 1

You are a prison guard supervising a tier. One of the inmates comes to you and asks a fa-

vor. He wants you to check to see why he hasn’t been called down to the admin building to

see a counselor, because he put in a slip to see his counselor that morning. You know that it

is likely he won’t be called out today, and you could tell him that, or you could make a call,

or you could do neither. Which would you do? Why?

Situation 2

As a new CO, you soon realize that a great deal of corruption and graft are taking place in

the prison. Guards routinely bring in contraband for inmates in return for money, food

bought for the inmates’ mess hall fi nds its way into the trunks of staff cars, and money is

being siphoned from inmate accounts. You are not sure how far up the corruption goes.

Would you keep your mouth shut? Would you go to your supervisors? What if, in expos-

ing the corruption, you implicate yourself? What if you implicate a friend?

Situation 3

You are a prison psychologist, and during the course of your counseling session with one

drug offender, he confesses that he has been using drugs. Obviously, this is a serious viola-

tion of prison rules. Should you report him? What if he tells you of an impending escape

plan?

Situation 4

You are a parole offi cer whose caseload includes a single mother with three hyperactive, at-

tention-defi cit-disordered young children. She receives no support from her ex-husband.

Her own mother wants nothing to do with her or the children, believing that “God is pun-

ishing her.” The parolee works as a topless dancer but hates it. She continues dancing be-

cause it pays the bills so well. You know that she smokes marijuana on a fairly regular basis

in an effort to deal with stress. Obviously, this is a violation of probation. However, if you

fi le a violation report on her, she will go back to prison. You know she is doing the best she

can with her kids, she is heavily involved with their school, and they are strongly bonded

to her. You worry about what will happen to the kids. What would you do?

Situation 5

You are a prison counselor and have a good relationship with the other counselors. You all

go out drinking after work sometimes, and in general you like and respect everyone. Re-

cently you’ve noticed that something seems to be going on with one of the other counsel-

ors. Stella is usually outgoing and cheerful, but lately she seems distracted and upset. You

see her in the parking lot one evening and ask her what is wrong. She confi des to you that

she is in love with an inmate. She knows it is wrong, but she says that they had an instant

chemistry and that he is like no man she has ever known. She has been slipping him love

notes, and he has also been writing her. You tell her that she has to stop it or else quit her

job. She tearfully tells you that she can’t let him go, she needs her job, and you’ve got to

keep quiet or you’ll get her fi red. What would you do?

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• 371 •

David Armstrong was feared by inmates in the Bureau of Prison’s supermax prison in

Florence, Colorado. He was a part of a group of correctional officers (COs) known as

the Cowboys, who worked the Special Housing Unit (SHU), the segregation unit of the

prison. Allegedly, Armstrong was one of the ringleaders of the group who, after several cor-

rectional offi cers had been injured in 1995, got the green light from their captain to “teach

some inmates a lesson” by vicious beatings. At fi rst the group selected defi ant, violent

inmates for “treatments.” The COs would punch, kick, and choke the inmates, or drop

them, handcuffed, headfi rst on the concrete fl oor. They would then fabricate a story about

why they had to use force, even to the point of infl icting injuries on themselves to justify

the use of force. From 1995 through 1997, the group conducted these systematic beatings,

eventually targeting not only violent inmates but gradually including mouthy and trouble-

some inmates as well. The Cowboys also threatened other offi cers, at one point promising

that any offi cer who snitched would be taken out to the parking lot and beaten.

The group stuck together. Six of the seven were ex-military; several had gone through

the Bureau of Prisons’ training academy together and arrived at United States Penitentiary

(USP) Florence together. The key phrases were “Lie ’til you die” and “What happens in

SHU stays in SHU.” A Catholic priest and other staff members heard complaints from

inmates and tried to get the warden to listen, but most believed that the inmates were

C h a p t e r O b j e c t i v e s

1. Describe types of misconduct by correctional offi cers, including the typologies of misconduct by Souryal

and McCarthy.

2. Describe types of misconduct by community corrections professionals.

3. Explain the Zimbardo experiment and what it might imply for correctional professionals.

4. Provide other explanations for misconduct.

5. Present some suggestions to decrease misconduct by correctional professionals.

Correctional Professionals: Misconduct and Responses

Ji m

W e st

/ A

la m

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3 7 2 P A R T I V | C o r re c t i o n s

lying because, after all, inmates always lied. The Cowboys eventually broke up. Some, like

Armstrong, were promoted and transferred. After he left Colorado and was working in a

federal prison in Pennsylvania, he evidently had trouble breaking old habits and was dis-

ciplined repeatedly for his treatment of inmates. Then, in 1998, he was visited by an FBI

agent who wanted to know what had happened in Colorado.

The ensuing FBI and Department of Justice investigation took fi ve years and resulted

in a grand jury indictment that listed more than 55 acts of beatings, intimidations, and lies.

A nine-week trial with more than 60 witnesses ended with two weeks of jury deliberations.

Armstrong was the government’s star witness, and on the stand he described beating after

beating, explaining that there were so many he couldn’t remember them all. Why did he

violate the “lie ’til you die” command? It may have been the plea bargain the government

offered him in return for his testimony, or it may have been that he had terminal cancer

and sought some type of redemption for what he had done before his death. On the wit-

ness stand, he could hardly talk and required an oxygen tank to breathe.

Armstrong might have been remorseful, or he might have been trying to make the best

deal for himself, but the seven accused COs denied everything. Despite Armstrong’s and

other guards’ testimony, the jury acquitted four offi cers of all charges and convicted three

others of only some of the charges (Prendergast, 2003). The story of the Cowboys is not

typical of correctional professionals today, but it does illustrate the diffi culties of prevent-

ing, monitoring and investigating, and responding to correctional offi cer misconduct. The

prison is a closed world, and outsiders may never know what happens inside the walls.

The vast majority of news items and academic attention in the area of ethics and miscon-

duct has been directed to misconduct by correctional offi cers in prisons and jails, with very

little attention given to probation and parole offi cers and even less to treatment professionals

in corrections. Maybe the prevalence of misconduct is much lower with these other profes-

sional groups. That seems unlikely, but until more research is conducted, it is diffi cult to say.

Misconduct and Corruption McCarthy (1991, 1995) and Souryal (1999a) discuss the major types of corruption by

correctional officers and other officials in institutional corrections. Categories include

theft, trafficking, embezzlement, and misuse of authority. Under misuse of authority,

McCarthy (1991) details the following:

Accepting gratuities for special consideration for legitimate purposes •

Accepting gratuities for protection of illicit activities •

Mistreatment/harassment or extortion of inmates •

Mismanagement (e.g., prison industries) •

Miscellaneous abuses •

Souryal (1999a), in another typology, describes the types of corruption as falling into

the following categories:

Arbitrary use of power (treating workers or inmates preferentially or in a biased •

fashion)

Oppression and failure to demonstrate compassion/caring •

Abusing authority for personal gain (extortion, smuggling, theft) •

In a more recent typology, Souryal (2009: 28–29) describes corruption sociologically

as the use of arbitrary power, legally as the use of oppression or extralegal methods, and

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ethically as the failure of offi cers to demonstrate compassion or keep a promise. He de-

scribes acts of misfeasance (illegitimate acts done for personal gain), acts of malfeasance

(acts that violate authority), and acts of nonfeasance (acts of omission such as ignoring

rule violations).

Bomse (2001) identifi es different types of prisoner abuse as follows:

Malicious or purposeful abuse. • This is the type of abuse infl icted by individual offi -

cers intentionally, including excessive use of force; rape and sexual harassment; theft

and destruction of personal property; false disciplinary charges; intentional denial of

medical care; failure to protect; racial abuse and harassment; and excessive and hu-

miliating strip searches.

Negligent abuse. • This type of abuse is also infl icted by individual offi cers, but not in-

tentionally, and includes negligent denial of medical care; failure to protect; lack of

responsiveness; and negligent loss of property or mail.

Systemic or budgetary abuse. • This type of abuse is system-wide and refers to policies,

including overcrowding; inadequate medical care (systematic budget cutting); failure

to protect; elimination of visits or other programs; co-payments and surcharges; and

use of isolation units.

In the 1990s, investigations in several states uncovered abuses, including sexual

abuse of inmates, brutality, bribery at the highest levels, and drug smuggling (Carroll,

1998; Houston, 1999). In Pennsylvania, an associate superintendent testifi ed before an in-

vestigative committee of the state legislature of confi rmed cases where offi cers had beaten

a fellow offi cer; were caught smuggling contraband to inmates, including drugs; assisted

an inmate in beating another inmate; raped an inmate; became sexually involved with an

inmate; came to work under the infl uence of cocaine; embezzled inmates’ funds; gam-

bled with inmates; and conducted a “mock lynching” of a black inmate (cited in Hassine,

1996: 149–152).

Also in the 1990s, prison guards in Corcoran, California, were accused of setting up

gladiator-type fi ghts between inmates and encouraging or allowing prisoner rapes. One

former guard testifi ed that a “loudmouth” prisoner was placed with a prison rapist known

as the “Booty Bandit” (Arax, 1999: A3). Other guards were accused of unlawful use of

force by shooting an inmate during one of the gladiator fi ghts. Eventually, several guards

received federal indictments and were tried for the killing, as well as the other acts of op-

pression. Some argue that the offi cer union “tainted” the jury pool by running television

ads before the jury selection, showing offi cers as tough, brave, and underappreciated. The

television ads, with the tagline of “Corcoran offi cers: They walk the toughest beat in the

state,” aired only in the Fresno area, where the trial was held. The accused guards were

acquitted even though former guards and other experts supported the inmates’ allegations

(Lewis, 1999).

California’s Department of Corrections has been described as corrupt “from the top

down” because investigations of wrongdoing seemed to be thwarted by powerful union

leaders. There have been allegations that members of the independent Offi ce of Inspec-

tor General were fi red at the behest of the correctional offi cer union. During legislative

hearings about a Folsom riot that was said by some to have originated through guards

conspiring with one of the gangs, one legislator received death threats, and witnesses

were put under protective custody (Thompson, 2004). The riot and its cover-up evi-

dently led directly to the suicide of an offi cer who attempted to thwart the riot but was

stopped by a supervisor. He left a message: “My job killed me” (Warren, 2004a). Several

wardens and assistant wardens resigned, took early retirement, or were fi red over the

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Folsom Prison riot scandal, and dozens of correctional offi cers were fi red for wrongdo-

ing (Warren, 2004b).

Donald Vodicka, a 15-year correctional offi cer veteran in California, testifi ed in a crimi-

nal case that the code of silence was pervasive, especially at the Corcoran and Pelican Bay

prisons, and that a whistleblower would not be protected by the Department of Corrections

against fellow guards. He described the activities of a group of offi cers at Salinas Valley State

Prison, called “the Green Wall.” His story is presented in the Walking the Walk box.

Advocates, journalists, and inmates have reported systematic abuses in another

California prison in Susanville. Inmates have reportedly been strip searched and made to

stand for hours in the snow, and guards allegedly tried to provoke attacks between inmates,

spread feces on cell doors, and used excessive force. Inmates who fi led grievances against

D. J. Vodicka looks like someone you wouldn’t want to

anger. At six feet, six inches tall and 300 pounds, with

a shaved head and an inscrutable look honed by a hitch

in the military and 16 years as a correctional offi cer, he

is definitely not the picture of a liberal do-gooder. Yet

Vodicka gave up his career, and even some friends, and

risked his safety when he broke rank with other correc-

tional officers and exposed “the Green Wall” for their

abuse of inmates. The phrase was adopted by a group

of offi cers at the Salinas Valley State Prison in California

after a prison disturbance on Thanksgiving Day in 1998;

more than a dozen officers were injured in the melee.

The prison suffered from the effects of understaffi ng and

too many inexperienced offi cers combined with some of

the worst offenders in the California prison system. The

desire to teach the inmates a lesson and keep control of

a dangerously unstable institution allegedly led to of-

fi cers using illegal force, planting evidence on inmates,

and utilizing a pattern of intimidation and threats upon

inmates. Even other offi cers were threatened in order to

keep their activities under the radar of prison offi cials.

When he was asked by his superior to write a re-

port on the activities of the Green Wall, Vodicka fol-

lowed orders, as he had always done in his military

career and his years with the California Department of

Corrections. He did not feign ignorance, as others did,

but wrote a report that detailed the green armbands, la-

pel pins, and ink pens used by members, the incident

where one member received an engraved green-handled

knife upon his promotion, the graffi ti scrawled on walls

and desks proclaiming the group, and the evidence that

indicated that Green Wall members were well known

in the institution and even tacitly supported by the

warden. Instead of dealing with the situation through

proper disciplinary channels, the lieutenant who asked

for the report was summarily transferred and the report

was leaked to other correctional offi cers, leading to a

situation where Vodicka was transferred for his own

safety. The news that he was a “rat” traveled with him

to the new prison. He encountered hostile remarks and

ostracism there until the day he ran to respond to an

emergency alarm, turned around and found that the

offi cers behind him had stopped behind a gate, leaving

him alone in a yard full of brawling, violent inmates.

Their excuse was that they were waiting for a sergeant.

Realizing his vulnerability, Vodicka left the prison that

day, never to return.

In 2004, he testifi ed before a California state senate

committee about the Green Wall and how prison admin-

istrators did little or nothing to stop the illegal activities,

nor did they punish those who were retaliating against

him for speaking out. The hearings led to the resignation

of some offi cials and a broad effort by the Department

of Corrections to “clean house” at Salinas Valley. Even-

tually Vodicka won a whistleblower lawsuit against the

Department of Corrections, but he continues to live in

an undisclosed location because his safety is still com-

promised by his decision to stand up against the Green

Wall. He continues to be perceived by many correc-

tional offi cers in the system as disloyal. Others argue that

Vodicka displays the right kind of loyalty—loyalty to the

law, to the truth, and to the citizens of the state who em-

ployed him, rather than the criminals in green uniforms

who forgot what it meant to be public servants.

W A L K I N G T H E W A L K

Sources: Vodicka, 2009; Arax, 2004.

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offi cers were allegedly retaliated against and threatened. Reports indicate that the Depart-

ment of Correction’s own staff members sent to the prison in 2007 documented some

abuses, but nothing was done with their report. These staff researchers, after visiting the

facility, concluded that guards believed they could carry out extreme forms of punishment

against inmates because it was a behavioral modifi cation unit for inmates who had been

identifi ed as disruptive in other prisons. They urged state offi cials to begin a formal investiga-

tion, but instead, the lead author of the report, a 15-year employee, alleges he was retaliated

against and has now fi led a whistleblower lawsuit against the Department of Corrections. In

response to a series of newspaper stories about the prison, the Department of Corrections

indicated they would begin an internal investigation (Piller, 2010a, 2010b, 2010c).

Texas has also had its share of prison scandals. In the 1990s, James A. “Andy” Col-

lins, an ex-director of the Department of Corrections, was investigated for his business

association with a Canadian company that made VitaPro, a vegetable-based protein sub-

stance that evidently tasted bad and created digestive problems for some people. It was

discovered that Collins had locked the state into a multiyear contract with the company

and had received two payments of $10,000 from the company director. Collins resigned

as director in 1996 and immediately became a $l,000-a-day consultant to VitaPro. In 2001,

he and the director of that company were convicted by a federal jury on charges of bribery,

conspiracy, and money laundering. Collins appealed, and in 2008 a federal judge over-

turned the guilty verdict. Despite the judge’s decision to ignore the jury verdict, the scan-

dal resulted in a new ethics code and a “housecleaning” of the top ranks (M. Ward, 2008).

A more recent food scandal is described in the In the News box.

In recent years, the issue of prison rape has gained greater attention. The Prison Rape

Elimination Act (PREA), passed by Congress in 2003, mandated that every state keep a

record of prison rapes and allocated money to study the problem and develop solutions.

No longer is prison rape seen as a joke; it is defi ned as an unacceptable risk of prison life,

in the N E W S I N T E G R I T Y F O R S A L E

Farhad “Fred” Monem was a purchasing offi cer for the state prison system in Oregon. Investi-

gators allege that he worked with Doug Levene, a food broker who specialized in buying and

selling food that had to be sold quickly because it was close to an expiration date or had minor

imperfections. Monem allegedly began ordering from Levene in 1999 and saved Levene’s com-

pany, which took a turn for the better after Monem began buying huge quantities of food from

him. What also happened was that Monem asked for (according to Levene) and received a share

of profi ts; the fi rst payment was $1,500, and then regular payments began that were typically

$4,000 or $5,000 each. Eventually the payments became $10,000 to $20,000, and the men

took vacations together with their wives. But when Monem began making similar deals with

other food vendors, Levene’s profi ts fell off. Then a former employee reported the scheme to

the FBI. Monem left Oregon and returned to his native Iran before he could be questioned, after

allegedly pocketing more than $600,000 from Levene. Levene faces a federal prison sentence

for bribery. Monem will probably not return to the United States to share with Levene this time.

SOURCE: Associated Press, 2009b.

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and the responsibility of prison staff and administrators. Ignoring the problem or telling

prisoners to fi ght or submit is not an appropriate or ethical response. In the latest report

offered by the Bureau of Justice Statistics, 4.5 percent of inmates reported some type of

sexual victimization. In about 2.1 percent of these cases, the perpetrator was an inmate;

in 2.9 percent, staff members were to blame. Also, the level of victimization varied widely

from prison to prison; in one prison, for instance, fully 7.5 percent of inmates reported

sexual assault with physical force used by staff assaulters (Beck and Harrison, 2007).

One of the results of this attention to prison rape has also been more attention to

staff–inmate sexual relationships. Interestingly, with female inmates, we have come full

circle in this issue. Until the mid-1800s, female prisoners were housed together with men

in jails, with predictable results. Women were raped and sexually exploited, and they sold

themselves for food and other goods. Various scandals and exposés of prostitution rings

led to women’s reform groups pressuring legislatures to build completely separate institu-

tions for women in the late 1800s and early 1900s. These women’s prisons were staffed by

female matrons. This pattern continued until the mid-1970s, when female offi cers chal-

lenged the hiring patterns of state prison systems that barred them from working in insti-

tutions for men. They were successful in achieving the right to work in men’s prisons, but

the corollary was that men could also work in institutions for women.

In the early 1980s, fairly low percentages of male offi cers could be found in prisons

for women, and the male offi cers were restricted to public places. Today, male offi cers are

assigned to all posts inside prisons for women, including sleeping and shower areas. In

some states, more than half of the offi cers in women’s prisons are men. Thus, male offi cers

again are in positions of power over women and, again, abuses are occurring (Amnesty

International, 1999).

There are instances in women’s prisons where male COs have committed rapes of

female prisoners by force, and many more instances where they threatened and intimi-

dated women to engage in sex (Henriques, 2001; Craig, 2003). In the most egregious

case, one female inmate was raped in a federal prison when offi cials sent women to the

in the N E W S A B S O L U T E P O W E R C O R R U P T S A B S O L U T E L Y

Two administrators at a juvenile detention facility have been accused of sexually abusing the

boys housed there. Witnesses reported that the men took the boys out of their dorms in the

evenings, and various staff members saw them with the youths in darkened offi ces. Complaints

from staff members went to the central state offi ce, and one law enforcement investigation in

2005 concluded that there was abuse going on, but the internal investigator sent from the state

youth corrections agency wrote a report stating that the charges were groundless. The county

prosecutor had the same information and did nothing. Nothing was done until a volunteer

went to the media and a newspaper series in 2007 exposed the charges. In the ensuing scandal,

the director of the agency and the director of the facility resigned, several individuals were fi red,

the governor put a special monitor in charge of the agency, and a complete reorganization of

the juvenile corrections agency was threatened by the legislature. The men still have not been

tried, although one trial is set to begin in early 2011.

SOURCES: Associated Press, 2007d; Moreno, 2007; M. Ward, 2007a, 2007b.

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segregation unit of a prison for men. Offi cers took money from male inmates in return for

unlocking the women’s cell doors so the male inmates could have sex (willing or unwill-

ing) with them. When one female inmate fought back and reported her attempted rape,

she was attacked again, and raped and viciously beaten by several men (Siegal, 2001). Peri-

odically, news stories report that female inmates have been coerced to have sex with prison

or jail guards. For instance, in Oklahoma, a sheriff was indicted on 35 counts of second-

degree rape, forcible oral sodomy, and bribery by a public offi cial for allegedly coercing

and bribing female inmates to have sex with him from 2005 through 2007 (Juozapavicius,

2008). A case in Texas is described in the In the News box.

Some offi cers use their authority to search inmates as a license to grope; others un-

necessarily view women in the showers and while they are using the toilet. Although only

a few correctional offi cers would engage in or support these acts, more allow it to happen

by setting the tone of the prison. Staying silent while other offi cers sexualize prisoners by

ribald comments, allowing offi cers to demean and belittle inmates, and participating in

conversations where women are referred to by their body parts allows the true predators

to victimize. A prison culture that disparages and demeans inmates gives the green light

to brutal individuals who wear a uniform. This situation is similar to the earlier discussion

about rogue police offi cers who used the message that they could do anything in the name

of controlling crime as encouragement to commit crimes against drug dealers.

It should be noted that female offi cers also engage in sexual relationships with in-

mates. Academic studies of one state indicate that the problem of offi cers having sexual

relationships with inmates is about equally divided between female offi cers and male of-

fi cers (Marquart, Barnhill, and Balshaw-Biddle, 2001; Dial and Worley, 2008). There are

also homosexual relationships that occur between offi cers and inmates. The coercive sex-

ual assaults that occur are obviously illegal, but even consensual relationships between

inmates and offi cers are unethical and against prison rules. In some states, even consen-

sual sex is a felony because inmates are presumed not able to give full consent, being in

a dependent relationship to the offi cer. In any case, it is a violation of the offi cer (or em-

ployee) professional code and compromises prison security. Some states have considered

going back to same-sex supervision because of the problem, but that is unrealistic because

of EEOC and also because there are not enough female offi cers now to staff prisons for

women in some states.

Other misconduct that is reported in the news includes felony bribery charges and

money laundering (Associated Press, 2000: B3). Offi cers are often tempted by quite a bit

of money offered to bring items into the prison (drugs, cash, cell phones) or out of the

prison (notes or letters). Some offi cers are tempted and coerced; that is, they are offered

money but also threatened by inmates who tell the offi cers they know where they live or

where their kids go to school. In 2006, a review of disciplinary reports of the prison sys-

tem in Texas by a newspaper found a wide range of misconduct: a prison offi cial pleaded

guilty to sexually harassing employees, a personnel chief of the prison school system was

arrested for lewd conduct, a correctional offi cer was accused of raping a male convict, and

another offi cer was accused of smuggling marijuana (Ward, 2006a).

Cameras in prisons recorded a range of unethical behaviors, including a female guard

embracing an inmate, a sergeant hitting a guard in the face (to cover an unlawful use of

force by the guard), and a guard leading an inmate into a closet to have sex (Ward, 2006a).

In 2006, there were, in total, 761 arrests of 36,000 Texas correctional employees; these num-

bers compare to about 297 of 26,700 correctional employees in Florida. Not all of these

arrests involved abuse or corruption related to the job; most (484) were for DWI (Ward,

2006b). Explanations for why arrest numbers are so high include the low salaries (Texas

was 47th in correctional offi cers’ salaries), a reduction in the number of Offi ce of Inspector

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General investigators (cut in half as a budget-reduction move), high turnover, and low

standards for hiring (the state will accept applicants convicted of Class A or Class B

misdemeanors as long as they were fi ve years ago) (Ward, 2006b).

In a news investigation in 2009, it was found that from 2003 to 2008, 263 employees

of the Texas prison system were reprimanded for possessing prohibited items, and most

(75 percent) were put on a probationary status by the department of corrections. Only

35 lost their job, and only one was formally prosecuted. It should also be noted that the

contraband was most often smokeless tobacco or cigarettes, not drugs, although cell

phones and alcohol were also frequent examples of contraband. A cell phone scandal

erupted shortly before this investigation when a death row inmate called and threatened a

legislator. A shakedown resulted in the confi scation of more than 200 cell phones. Prison

officials cite low pay and high turnover for guard misconduct and indicate that these

issues are part of the reason why many offi cers who are caught are allowed to keep their

job (Associated Press, 2009a).

A Florida news article reported that prison guards were more than twice as likely as

police offi cers to violate state standards of conduct (Kleindienst, 1999). A review of recent

news from Florida revealed that a female mental health counselor in the Lake Correctional

Institution was arrested for possession of crack cocaine in September 2009. She had been

investigated for drug smuggling into the prison after a tip from an inmate (Colarossi, 2009).

A female corrections offi cer was sentenced to a year in jail for bringing in cash to a private

prison in Florida run by the GEO Group. In a bizarre story, she was held hostage by a pris-

oner who alleged she kept $4,000 she had received from an inmate’s relative to smuggle

into the prison, which is how authorities found out about the scheme (Spencer-Wendel,

2010). In a case at the Palm Beach County jail, fi ve corrections offi cers and one substance

abuse counselor were arrested for smuggling and bribery. The affi davits to support the ar-

rest from investigators report that the correctional employees took between $400 and $700

for every item smuggled into the prison, such as a cell phone or MP3 player. Allegedly one

inmate informant told investigators that 85 percent of the guards were “crooked.” Sheriff ’s

investigators admitted that an inmate could get anything he wanted in the facility. The lo-

cal investigation paralleled an FBI probe called “Operation Blind Justice,” which resulted

in indictments against 16 people on cocaine smuggling charges (LaForgia, 2010).

A federal prison in Florida also has had its share of corruption scandals. In 2008, nine

employees were charged with smuggling. In October 2009, a female correctional offi cer at

the federal prison in Coleman, Florida, was sentenced to life in prison for seeking revenge

against an inmate who grabbed her arm. She placed him in a cell with a known violent

inmate who beat him to death (Comas, 2010).

A prison scandal erupted in Maryland in 2009–2010 when widespread smuggling was

exposed. Offi cers allegedly smuggled in cell phones and other contraband for prison gang

members from the Black Guerrilla Family and had improper relationships with the in-

mates. Federal investigators received information about the prison activities from a gang

member who was arrested outside the prison. Their investigation led to indictments of

conspiracy, drugs, and weapons violations against 24 prisoners, guards, and other prison

employees. The smuggling occurred in the Metropolitan Transition Center in Baltimore,

the Maryland Correctional Institution in Jessup, and other state prisons. Federal investiga-

tors report that offi cers smuggled in vodka and champagne for prisoners, and, in one situ-

ation, couldn’t get lobster as ordered to by the inmate so substituted salmon with shrimp

and crab imperial instead, and the inmate complained. Fourteen cell phones were also

confi scated; the phones were evidently used to manage criminal activities on the outside.

In one recorded phone call, an inmate was heard complaining to a corrupt guard that

there were too many guards smuggling in contraband, making it more competitive to sell

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drugs in prison. The guard agreed, saying that it used to be only one offi cer on a shift

who might smuggle, but now it was “like seven, eight people.” The director of correc-

tions said the corruption was not widespread (Cauvin, 2009). In another related story, a

female corrections offi cer’s apartment was searched and authorities found a constitution

for the Black Guerrilla Family, gang codes, and other paperwork related to the gang’s lead-

ers. Also found were inmate ID cards, debit cards, and other correspondence connected

with known criminals and inmates. The offi cer has been accused of smuggling heroin and

cell phones into the prison’s laundry system and spying on federal agents as they met

with gang members. In one incident, this offi cer allowed prison gang members to assault

another inmate and did not report the assault until they were fi nished, but the response

of prison offi cials was only to suspend her for fi ve days. She was also disciplined for frat-

ernizing with inmates on her Facebook page. Informants reported that her smuggling and

association with inmates was known for years, but authorities allowed her to continue to

work in the prison (Fenton, 2010).

Sometimes misconduct is more benign. A picture published in the New York Post in

December 2009 drew chuckles but also dismay because it showed a female correctional

offi cer sound asleep with her mouth open while an inmate posed next to her. The picture

was taken by a fellow offi cer and sent to the paper. The female offi cer was transferred, and

the offi cer who took the picture was disciplined. Even the union condemned the offi cer’s

actions in taking the picture (Associated Press, 2009c). One wonders if the offi cer, who

had over a dozen years more service than the sleeping offi cer, took the picture in frustra-

tion over conduct that endangers other offi cers and should never have happened.

When the abuse in Iraq’s Abu Ghraib prison was exposed, many made comparisons

between the behaviors of military prison guards and those of correctional offi cers in U.S.

prisons. The comparisons were hard to ignore because several of the worst abusers were

correctional offi cers in civilian life, and the person who helped set up the Abu Ghraib

prison was Lane McCotter, an ex-head of the Texas, New Mexico, and Utah prison sys-

tems (Ward, 2004).

Allegations of misconduct in prisons and jails in the United States include the follow-

ing abuses, similar to what took place in Abu Ghraib (Butterfi eld, 2004):

Male inmates being forced to wear pink underwear as punishment (Arizona) •

Inmates being stripped as punishment (Pennsylvania) •

Inmates being made to wear black hoods (Virginia) •

Using dogs to attack inmates (Texas) •

A more recent issue concerns the tens of thousands of illegal aliens housed in immi-

gration facilities run by private corporations. A Freedom of Information Act request fi led

by the ACLU obtained a list of deaths in such facilities that uncovered troubling issues

where inmates did not receive medical care and the subsequent deaths were suppressed

or attempts were made to avoid news exposure. The investigation showed that offi cials

seemed to be more concerned with keeping the deaths out of the news and avoiding scan-

dal than trying to improve medical conditions. The ACLU also learned that more than 10

percent of deaths in immigration facilities were omitted from offi cial lists, and alleges that

the approach where Immigration and Customs Enforcement (ICE) investigates itself over

allegations of abuse and medical neglect is ineffective (Bernstein, 2010).

It cannot be denied that the very environment of an incarcerative facility sometimes

brings out the worst in people. However, similar to the discussions concerning law en-

forcement and the courts, the fact that these incidents occur should not be taken as an

indictment against the thousands of other correctional professionals who do their job

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3 8 0 P A R T I V | C o r re c t i o n s

competently and with integrity and professionalism. We focus on misconduct and how

to prevent it partly to make their job better as well, because the type of activities described

above lower morale and endanger everyone.

T R E A T M E N T P R O F E S S I O N A L S

Most news items and academic articles describe misconduct in prisons in terms of correc-

tional offi cers, but there are instances where counselors and other treatment professionals

also engage in misconduct. Sometimes they smuggle in contraband, sometimes they co-

erce or engage in consensual sex with inmates. In the last chapter, we discussed the ethical

dilemmas of treatment professionals when they have sincere confl icts about their compet-

ing goals of treatment and protection to society, but there are other acts taken by treatment

personnel that are purely egoistic.

Probably the most common issue for treatment and medical personnel is not provid-

ing the services that inmates are legally entitled to. As discussed in the last chapter, medi-

cal personnel sometimes adopt the “penal harm” philosophy of corrections and deprive

inmates of services because of a belief that they don’t deserve treatment. It is very diffi cult

to maintain a helping-profession orientation in a correctional environment. Inmates are

often unpleasant individuals and sometimes violent as well. Similarly to law enforcement’s

attitude toward certain segments of society, personnel in corrections sometimes develop

an attitude that all inmates are liars, crooks, and addicts and don’t deserve what the rest

of us do. The trouble with this line of reasoning is that once some are perceived as outside

the bounds of professional duties, it is easier to ignore duties and respect for all.

C O R R U P T I O N I N T H E C O M M U N I T Y

While most news items describe misconduct in prisons, there are also examples of ethi-

cal misconduct and criminal acts by community corrections professionals. Peter Maas’s

(1983) book Marie details a scheme in Tennessee that involved selling paroles to convicts.

In the early 1990s, ex-parole board members in Texas were found to have sold their ser-

vices as “parole consultants” to inmates and inmates’ families in order to help them obtain

a favorable release decision. The situation was brought to light when a serial killer was

arrested for yet another murder while out on parole. When how he obtained parole was

investigated, it was discovered that one of these “parole consultants” had been hired by

the inmate. Whether that had anything to do with a favorable parole decision will never be

known, and the practice was not against any state law at the time. In the wake of the inves-

tigation, rules were created that restricted such practices to attorneys (Ward, 2006c).

Today, parole decisions in Texas are criticized for being secretive and arbitrary. In one

court case concerning the revocation of parole, a federal judge, exasperated with the state

attorney for the parole board, blurted out that the attorney was misstating the law and then

had to declare a mistrial because he had prejudiced the jury. Critics argue that the parole

board operates in secrecy and makes parole decisions too quickly, on average of one every

seven minutes. There are also troubling reports that the case summaries used for such de-

cisions are often wrong, with some crimes inaccurately attributed to the wrong inmate or,

in other cases, not enough detail is provided to indicate the true seriousness of the crime.

Inmates and their lawyers do not have access to these case summaries, so they cannot cor-

rect any errors. Even legislators are frustrated, as the parole board releases so few prison-

ers that their low parole approval rates have added to the prison overcrowding problem.

Inmates have, at present, no legal right to parole or due-process rights in the parole release

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decision, but some argue that they should. Until then, it is an issue of professionalism and

ethics as to how parole board members make release decisions (Ward, 2009).

In other states, there have been scandals regarding probation departments. In

Massachusetts, probation offi cials have been accused of giving jobs to relatives and friends

of state legislators. Also, a legislator was accused of exerting pressure on the agency to pro-

mote an offi cer who gave campaign contributions to the legislator, and that same proba-

tion offi cer wrote a letter of recommendation on probation offi ce stationery for a convicted

racketeer (Levenson, 2010). In Georgia, three employees of a county-run department were

arrested when an investigation uncovered a scheme whereby probationers would pay

money to get out of performing community service sentences (Johnson, 2009). In Florida,

a state probation offi cer was sentenced in federal court to four months’ imprisonment and

three years of supervised release for accepting bribes from a probationer in exchange for

allowing the probationer to avoid mandatory drug testing and other restrictions (United

States Department of Justice news release, 2005).

To run a safe and secure prison is consistent with running an ethical prison where of-

fi cers and staff uphold and respect the rights of prisoners. The same reasoning can be ex-

tended to community corrections as well. All ethical systems support the need to respect

basic rights and use appropriate and legal force and punishments to control offender pop-

ulations. Under ethical formalism, violating rights and using illegal force against prisoners

violate one’s duty and are contrary to the categorical imperative. Under utilitarianism, it

seems obvious that if one acts in illegal ways toward inmates or probation/parole clients,

there is very little moral authority to infl uence them to become law-abiding. Research indi-

cates that the system of punishment and retribution as implemented in our prison system

does not engender remorse or guilt among prisoners, who feel that they themselves are the

victims of an unethical and illegal system (Presser, 2003).

Many correctional professionals will complete their careers and retire without having

heard about or been involved in any corrupt practices. However, the examples above

illustrate that corruption can take place anywhere an ethical culture does not exist or where

correctional workers are not monitored and encouraged to do the right thing.

Explanations for Misconduct The Zimbardo experiment of the 1970s was one of the experiments that spurred the cre-

ation of human-subjects review boards in colleges and universities. In this experiment,

college men were arbitrarily assigned to be guards or inmates, and a mock prison was set

up in the basement of a building on the grounds of Stanford University. The changes in

both groups were so profound that the experiment was canceled after six days. Zimbardo

(1982) noted that about one-third of the guards became brutal and authoritarian, and pris-

oners became manipulative and exhibited signs of emotional distress and mental break-

down. If college men who knew the experiment was artifi cial succumbed to the temptation

to infl ict their will on the powerless, is it possible that the environment itself causes people

to act in ways that they would not otherwise?

In all cases of abuse in prison, the reasons seem to be a failure of leadership and lack of

discipline, training, and supervision (Ward, 2004). Certainly that seemed to be the case in

Abu Ghraib. It can also be noted that the worst cases of abuse in civilian prisons occur when

prison leaders ignore violations on the part of staff and do not clearly convey that the mis-

sion is to run a safe and secure prison without the corrupting presence of extra-legal force.

As in law enforcement, a few correctional offi cers will be “crooks” fi rst and offi cers

second. Many others probably slide into corruption because of a lack of organizational

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support for ethical behavior. Also as in law enforcement, offi cers who are stressed and

burned out may be the most vulnerable to ethical relativism and bad decisions. Orga-

nizations experience corruption partly because they do not support and nurture ethical

workers.

A prison is an interesting place in that individuals work together over long periods of

time and, often, they live in small towns where acquaintances and family members also

work at the prison. Male and female offi cers work together long hours and in close proxim-

ity; sometimes they engage in sexual relationships; sometimes they marry; sometimes they

divorce; sometimes they have affairs with other staff members (or even inmates) while

they are married. In some prison towns, everyone seems to be related to someone and/

or has some type of relationship. While people’s personal lives are their own, sometimes

the personal lives of correctional offi cers, like police offi cers, infl uence their professional

ethics. For instance, if a disciplinary sergeant is married to a CO who has written a ticket

on an inmate, can that sergeant truly be objective when determining punishment? What

happens when an inmate accuses an offi cer of sexual harassment and the grievance offi cer

is the wife of the offi cer? Sometimes male and female COs allow a sexually charged atmo-

sphere to develop where sexual joking and innuendos are rampant, and the atmosphere

encourages offi cers to engage in the same type of behavior with inmates—obviously an

inappropriate and unprofessional interaction.

Unions have been seen by researchers as a force resistant to rehabilitation, concerned

only with individual benefi ts for members rather than the mission or goal of corrections.

Unions provide legal assistance to offi cers when they become the subject of legal attacks

and may support offi cers who, many would argue, have no business working in correc-

tions. Because of their advocacy role toward offi cers, unions sometimes place individual

offi cers’ needs over what might be best for the system or society. This is similar to police

unions that defend police offi cers who are guilty of using excessive force. Union repre-

sentatives would argue that they only ensure that the accused receive their rightful due

process after being accused.

There has been very little research done on correctional ethics, with a few exceptions

noted below. Stohr et al. (2000) developed a survey instrument to measure the ethics of

correctional workers. In their study, they could fi nd few signifi cant correlates between val-

ues or attitudes and behavior. For instance, only experience was correlated with use of

force, with older and more experienced offi cers reporting less support for the use of force.

They also found that the type of institution affected offi cers’ attitudes. Mesloh, Wolf, and

Henych (2003) conducted a study of one southern jail to measure the extent of corruption

and correlates with ethical misconduct. They found that age was positively correlated with

support for misconduct, and race and sex had no effect. Support and medical staff scored

higher on the ethics scale than did custody staff. The authors attributed the fi ndings to the

existence of a deviant subculture among correctional offi cers. As mentioned earlier, cor-

rectional managers attribute misconduct to low pay and poor screening during hiring.

Responses to Corruption? Correctional management has not developed in the way that law enforcement manage-

ment has; there are fewer texts on correctional management, and those that can be found

rarely mention ethics for supervisors and administrators (Wright, 2001). In Chapter 7,

management efforts to respond to law enforcement misconduct and corruption were de-

scribed. Surprisingly, parallel sources on correctional management efforts to respond to

misconduct are fairly sparse.

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The “trickle down” theory of ethical management is that offi cers will treat inmates

the way they perceive they are being treated by management—with fairness, compassion,

and respect, or with less than fairness, compassion, and respect. It becomes easier to jus-

tify unethical actions if one feels victimized. Obviously, if employees are expected to be

responsible, loyal, and treat each other and inmates with respect, administrators should

practice these same behaviors (Houston, 1999; Souryal, 1999a; Wright, 2001). Further-

more, staff members who are coerced by management to do unethical or illegal actions are

more likely to behave in unethical and illegal ways by their own initiative.

Correctional managers can and should generate a strong anti-corruption policy (obvi-

ously, managers should not be engaging in corrupt practices themselves). Such a policy

would include (McCarthy, 1991):

Proactive measures such as mechanisms to investigate and detect wrongdoing •

Reduced opportunities for corruption •

Screening of employees using state-of-the-art psychological tools •

Improved working conditions •

Providing good role models in the form of supervisors and administrators who follow •

the appropriate code of ethics.

Souryal (2009: 33) discusses the “civility” of a correctional institution as being infl u-

enced by the level of education required for hire, the amount of in-service training offi cers

receive, the policies regarding employees who act in unethical ways, and the presence of a

professional association or union that can effectively monitor the agency’s practices. He also

discusses the importance of integrated thinking (use of reasoning and wisdom) and moral

agility (distinguishing between shades of moral choice). To improve the ethical climate of

an agency, he advocates upgrading the quality of personnel, establishing quality-based su-

pervisory techniques, strengthening fi scal controls, and emphasizing true ethical training.

Wright (2001) offers seven principles as a guide for how administrators and supervi-

sors should treat employees: safety, fair treatment, due process, freedom of expression,

privacy, participation in decision making, and information. In regard to fair treatment, not

penalizing staff members who do corrupt acts is not treating honest offi cers fairly. As to

privacy, staff members have a right to a private life, but not when the use of drugs, alcohol,

or inappropriate sexual partners interferes with their job performance.

Ironically, the scandal at Abu Ghraib led to a national commission to examine U.S.

prison conditions, chaired by a former U.S. attorney general and a chief judge of the Third

Circuit. The Commission on Safety and Abuse in America’s Prisons spent several years

holding hearings and obtaining testimony concerning the state of prisons in this country,

and in 2006 issued its summary and recommendations. (The entire report or an executive

summary can be accessed by going to www.prisoncommission.org/report.asp.) One of

the fi ndings was that this nation’s prisons suffer from a culture of violence and a lack of

positive treatment goals. The commission also found that better safety inside prisons and

jails depends on changing institutional culture. This has to be done by enhancing the cor-

rections profession at all levels, and promoting a culture of mutual respect, grounded in

respectful behavior between staff and inmates.

Burrell (2000) directs attention to probation and proposes that in order to prevent

stress and burnout, probation (and parole) organizations should provide clear direction,

manage proactively, establish priorities if there are high workloads, ensure stability and

constancy, be consistent in expectations, manage with fairness, enforce accountability,

delegate authority, provide proper resources, maintain communication, and allow partici-

pative decision making.

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Barrier and colleagues (1999) discussed an ethics training program with correctional

offi cers, in which part of the training involved having the offi cers identify important ele-

ments of an ethics code. Many of the elements had to do with the practices of manage-

ment rather than offi cers:

Treating all staff fairly and impartially •

Promoting based on true merit •

Showing no prejudice •

Leading by example •

Developing a clear mission statement •

Creating a positive code of ethics (a list of dos, rather than don’ts) •

Creating a culture that promotes performance, not seniority •

Soliciting staff input on new policies •

Being respectful •

Getting the word out that upper management cares about ethics •

As discussed earlier, correctional administrators in the 1970s and 1980s had to deal with

court decisions that were decided in favor of prisoners. Implementation of court- ordered

changes indicated that correctional administrators sometimes barely complied with the

letter of a court ruling, much less the spirit of the ruling. The career path of an admin-

istrator, with its investment of time and energy and the mandate to be a “company man,”

often creates an immersion in bureaucratic thinking to the point that an individual loses

sight of ethical issues. For instance, protecting the department or the director from scandal

or litigation becomes more important than analyzing the behavior that created the potential

for scandal in the fi rst place. If decision making becomes infl uenced solely by short-term

gains or by avoiding scandal, decisions may be unsupported by any ethical system.

Administrators are responsible for what happens in their facility, and training, super-

vision, and careful attention to assignments can avoid many problems. Obviously, admin-

istrators and managers should take pains to avoid illegal or unethical behavior themselves.

Administrators should act as role models and never engage in behavior that may be mis-

construed as sexual coercion or be perceived by their employees as offensive. Supervisors

have a higher duty than coworkers to set a tone for an offi ce free from sexual innuendo

that may lead to a description of the workplace as a hostile work environment. Supervisors

have an ethical and legal duty to stop sexual humor, inappropriate touching, and inappro-

priate behavior before there is a complaint.

It should be noted that in cases where there is a pattern of corruption, whether it be

brutality or types of graft, it is hard to believe that administrators were not aware of what

was going on. Prisons are smaller than small towns, and like a small town, they do not have

secrets unless one is willfully ignorant of them. Top administrators often have an outward

orientation because their role is to communicate with legislators, the central offi ce, and

the community; however, a good administrator does not ignore his or her own backyard.

Management by walking around (MBWA) and having a good sense of what is happening

in the institution have always been the marks of a good administrator and are also the best

defense against having the institution ending up on the front page of the newspaper.

In community corrections, there seems to be the same management tendency to hide

or ignore wrongdoing on the part of individual offi cers. This may be a misguided utilitari-

anism in managers who are attempting to protect the organization from public scandal,

or it may be simply self-interested egoism from managers who fear that the blame will be

directed at them. For whatever reason, there seems to be a tendency to ignore offi cers who

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are obviously unable or unwilling to do the job. Some offi cers even point out that those

who are arrested for DWI or other crimes continue to work as probation and parole offi -

cers. If this is true, it’s not surprising that some probation and parole offi cers seem to have

little moral authority over the clients they supervise.

R E S T O R A T I V E J U S T I C E

Another way to respond to misconduct and corruption in corrections is to shift the orienta-

tion away from punishment and retribution. One out of every 31 Americans (7 million) are

in prison, jail, or on some form of correctional supervision. The high incarceration rate in

the United States has led to the prison-industrial complex, which has provided jobs and

profi ts to legions of companies and people. The fi eld of corrections is big business, but it

might be time to consider new approaches. Senator Jim Webb from Virginia sponsored the

National Criminal Justice Commission Act, which would examine every stage of the crimi-

nal justice system, including the use of prisons. As support for a major reexamination of

the way this nation punishes its miscreants, he notes that the United States holds 5 percent

of the world’s population but 25 percent of its prisoners. The largest single portion of prison

growth over the last 30 years has been in the area of drugs, and Webb reports that 47 percent

of all drug arrests are for marijuana and the majority of prison sentences are for nonviolent

offenses (Webb, 2009). Although the House version of the bill passed in July 2010, as of

late summer 2010, it had not reached the Senate fl oor. Regardless of what happens with this

act, it does appear that the time is ripe for rethinking our punishment system.

A major shift in the ideology of punishment may be spurred by the economic burden

that the penal harm era has generated, but there is also a moral element in that many advo-

cates consider that the pendulum has swung too far toward severe prison terms, especially

Restorative justice programs are used primarily with juve- nile and nonviolent offenders. These programs have been fi nancially supported by the federal government, and they have been widely hailed as a progressive advancement in the justice system. However, critics argue that they take away the victim’s right to seek retribution, that they create a net- widening effect, and that there are problems when the formal due process of the justice system is bypassed.

Law Typically, programs that use different sentences or different sentencing structures must have enabling legislation before they can be put into practice. In some cases, judges promote such programs and use their discretion by allowing some offenders to be diverted from the system into the programs.

Policy Policies must be established regarding who is eligible for such programs and who will make the decision as to whether an offender is referred or not. Ordinarily, the

offender and the victim must give consent for the case to be shifted to an alternative sentencing procedure. Poli- cies must also be established for when an offender “fails” and what happens when he or she does not complete the program successfully. Typically, the case is then sent back for offi cial processing. These policies do not carry the force of law, and they are often changed after the program has been in operation for some period of time. Inevitably, cases arise in which the policies do not seem to result in a fair outcome; then informal policies are often applied that do not carry the force of law or the sanction of formally ap- proved policies.

Ethics The decision makers ( judge, probation officer, restorative justice staff, attorneys) must apply the law, policy, and their own individual ethics in the decision as to who goes into the program, what the offender is required to do, and what sanc- tions are given, keeping in mind the needs of the victim, the system, and the offender.

Restorative JusticePOLICY ISSUES

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for drug offenders. There are alternative approaches that are not based on a punishment

ideology. The restorative justice movement was mentioned briefl y in Chapter 3 and also

in Chapter 11. It is an approach that seeks to provide reparation rather than retribution

(Reichel, 1997; Bazemore and Maloney, 1994). See the Policy Box for a discussion of the

law, policy, and ethics of restorative justice.

The historical origins of and analogies to restorative justice can be found throughout

recorded history. Early laws demanded victim compensation, and reparation has a much

longer history than does penal servitude. Many advocates (see Umbreit, 1994; Umbreit

and Carey, 1995; van Ness and Heetderks Strong, 1997; Perry, 2002) now believe that re-

storative justice appropriately places the emphasis back onto the victims and can be life-

affi rming and positive for the offender as well. The key is to fi nd a method of restoration

that is meaningful and somehow related to the offense instead of merely punitive labor—

such as the infamous rock pile, which is devoid of worth to the victim, the offender, or

society. The Quote and Query box is Braithwaite’s summary of restorative justice.

QUOTE && QUERY Key values of restorative justice are healing rather than hurting, respectful

dialogue, making amends, caring and participatory community, taking

responsibility, remorse, apology, and forgiveness.

—SOURCE: BRAITHWAITE, 2000: 300.

? Do you think that restorative justice principles will ever be widely adopted by the criminal justice system? Why or why not?

Peacemaking corrections also offers an approach of care and of wholesight, or look- ing at what needs to be done with both the heart and the head (Braswell and Gold, 2002).

Both restorative justice and peacemaking corrections are consistent with the ethics of care

and might be considered “feminine” models of justice because of the emphasis on needs

rather than retribution. It is said that a retributive, punitive orientation results in an of-

fender’s perception of unfairness (through denial of victim, denial of injury, or a belief

that a more serious victimization was visited upon the offender). A different model may

reduce those feelings and force the offender to squarely face his or her own responsibility.

Arguably, a restorative justice program directs attention to the injuries of the victim and

does not involve stigma, banishment, or exclusion, for the offender would not create the

opportunity to generate rationalizations and excuses for the offender’s behavior.

Programs under the rubric of restorative justice include sentencing circles, family

group counseling, victim–offender mediation, community reparation boards, and vic-

tim education programs (Umbreit, Coates, and Vos, 2002; Monahan et al., 2004). Karp

(1998) provides an interesting perspective on why restorative justice programs have re-

ceived positive responses. The public may not believe that probation or other forms of

alternative sanctions have the same moral condemnation that prison does; therefore, these

punishments are seen as cheapening or lessening the moral blame of the offender. How-

ever, shaming penalties inherent in such programs as sentencing circles emphasize the in-

dividual’s responsibility to the victim and society. Such programs instill a strong dose of

morality and redemption, and the public seems to respond to that.

Forgiveness, like mercy, is an interesting concept. When a gunman killed fi ve young

girls in an Amish schoolhouse in 2006 before killing himself, the nation was appalled and

grieved along with the Amish community. It was a truly horrifi c event, made all the more

peacemaking corrections An approach to corrections that depends on care and wholesight, or looking at what needs to be done with both the heart and the head.

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so by the gentle nature of the religious community, where violence was such a rarity. In

a truly unusual and unique turn of events, the parents of the murdered children and the

community immediately forgave the murderer and his family. In the Amish religion and

tradition, forgiveness is said to be much more important than anger or revenge. This for-

giveness was as newsworthy as the killings themselves and gave rise to many discussions

about the nature of forgiveness and how it fi ts into religion and faith (Draybill, 2006).

Dzur and Wertheimer (2002) discuss how restorative justice can further forgiveness,

but they ask the question: Is forgiveness a social good? They argue against the idea that what

is good for the individual victim is also good for everyone else. They point out that forgiving

offenders may be good for the individual victim but may not be good for the “class of vic-

tims” who have yet to be victimized. They argue that utilitarianism might support punish-

ment even if the individual victim forgives the offender because the greater good will accrue

to society from deterrence. Of course, there is no empirical approach that could determine

(or has yet determined) whether punishment deters more offenders than forgiveness.

Restorative justice programs are looked upon with favor by some victims’ rights groups

because of the idea of restoration and restitution for victims. However, the approach is ori-

ented to meeting the needs of both victims and offenders, and in some cases it may be that

the offender is needier. Would a victim reject such an approach? Should the victim be able

to veto this approach and demand traditional punishment? Is it possible for a victim to be

too vindictive? Other victims’ rights groups tend to be cautious about restorative justice

programs in general because of the focus on offenders. The anger that victims feel toward

offenders and the system that ignores their needs leaves little room for forgiveness. Most

groups advocate harsher punishments, not restorative justice; they discuss “rights” rather

than “needs” and thus draw their moral legitimacy from retribution rather than the ethics

of care. However, other sources also argue that forgiveness and restorative justice are just

as benefi cial to the victim as the offender (Morris, 2000).

Restorative justice programs may lead to a greater sense of mission for correctional

professionals and, therefore, decrease burnout and misconduct. However, there are

ethical issues with such programs. First, because such interventions are seen as benign,

they have the potential to create net widening, further enlarging the scope of correc-

tions over the citizenry. There are also questions of due process and whether restorative

justice meets the traditional goals of crime prevention (Dzur and Wertheimer, 2002).

Another issue is the potential privacy issues of the offender and other members who

are involved. One of the strengths of restorative justice interventions is the inclusion of

a number of parties, including the offender’s family, coworkers, and friends, as well as

the victim and the victim’s support group. But what if some individuals important to the

process choose not to participate? If schools even have trouble getting some parents to

involve themselves in their children’s progress, it is entirely possible that a juvenile who

is otherwise qualifi ed for a program would not be able to participate because of unwill-

ingness of family members. Even when the process is seen as a positive intervention,

whenever state actors are involved, there is a potential for coercion, and some people

react strongly to that idea.

Restorative justice programs would not be appropriate for all offenders; there will

always be a need for incarceration facilities for the violent, recidivistic offenders who need

to be incapacitated. It does, however, offer an approach that seems to be more positive for

offenders and personnel alike. It provides a more optimistic vision and mission and, one

assumes, creates better relationships between correctional professionals and offenders.

Thus, it might be an approach where there is less burnout, cynicism, and unethical behav-

ior. Even those mentioned above who must be incarcerated in prison deserve professional

treatment without extra-legal punishments or coercion.

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C O N C L U S I O N

In this chapter, we examined various forms of misconduct by correctional professionals.

Research has indicated that the very nature of a prison may encourage an abuse of power.

It was also noted that much of the misconduct may occur because of burnout and a loss

of a sense of mission by professionals, as well as poor management. Responses to ethical

misconduct and corruption in corrections lag behind the efforts previously reported in law

enforcement. Suggestions include ethics training and improving management. Restorative

justice principles may help to improve the sense of mission and commitment to ethical

behavior by correctional workers.

C H A P T E R R E V I E W

1. Describe types of misconduct by correctional offi cers, including the typology of mis-

conduct by Souryal and McCarthy.

McCarthy’s categories of misconduct include theft, traffi cking, embezzlement, and mis-

use of authority. Under misuse of authority, he includes the following: gratuities (as bribes

for legitimate or illegitimate activities), mistreatment/harassment or extortion, misman-

agement, and miscellaneous abuses. Souryal’s categories of corruption are arbitrary use of

power, oppression and failure to demonstrate compassion/caring, and abusing authority

for personal gain.

2. Describe types of misconduct by community corrections professionals.

There are not as many news stories of corruption, but there have been instances of inap-

propriate infl uences and errors in parole release decisions, nepotism in awarding jobs in

probation departments, and accepting bribes from offenders to get out of community ser-

vice obligations or drug testing.

3. Explain the Zimbardo experiment and what it might imply for correctional

professionals.

The Zimbardo experiment of the 1970s put college men into an artifi cial prison as guards

or inmates. The changes in both groups were so profound that the experiment was can-

celed after six days. About one-third of the guards became brutal and authoritarian, and

prisoners became manipulative and exhibited signs of emotional distress and mental

breakdown. It is widely used as evidence that placing people in absolute power over oth-

ers is a corrupting situation.

4. Provide other explanations for misconduct.

Some reasons for misconduct seem to be a failure of leadership and lack of discipline,

training, and supervision. Management practices that do not provide the direction, mis-

sion, oversight, and training needed contribute to misconduct. While there are a few cor-

rectional offi cers who would be deviant regardless of the environment, others probably

slide into corruption because of a lack of organizational support for ethical behavior. As in

law enforcement, offi cers who are stressed and burned out may be the most vulnerable to

ethical relativism and bad decisions.

5. Present some suggestions to decrease misconduct by correctional professionals.

McCarthy’s suggestions are largely directed to management practices, including pro-

active measures such as mechanisms to investigate and detect wrongdoing, reduced

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opportunities for corruption, screening of employees using state-of-the-art psychological

tools, improved working conditions, and providing good role models in the form of su-

pervisors and administrators. Ethics training is also suggested. Finally, restorative justice is

offered as a different approach to respond to criminal offenders that is more positive and

less conducive to the creation of a subculture that supports mistreatment.

K E Y T E R M peacemaking corrections

S T U D Y Q U E S T I O N S

1. Describe Bomse’s categories of misconduct.

2. Describe some of the reported instances of misconduct and corruption in prisons.

3. What is PREA, and what has been discovered about the prevalence of prison rape?

4. What management practices were identifi ed as contributing to an ethical workplace?

5. What are the principles of restorative justice? Contrast these with traditional models of

justice.

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) how you would implement an anti-corruption strategy

in a prison known for brutality and other forms of corruption.

2. Write an essay on (or discuss) forgiveness. Would you want to meet with the murderer

of a loved one? What would you want to ask him or her? Would you be able to forgive?

3. Write an essay on (or discuss) restorative justice. Find examples in your state. Do you

agree or disagree with the philosophy of restorative justice? Why?

E T H I C A L D I L E M M A S

Situation 1

You are a probation offi cer and have a specialized sex-offender caseload. The judge dis-

agrees with a recommendation for a prison sentence and places an offender on probation.

This man was convicted of molesting his four-year-old niece. One of the conditions of his

probation is that he notify you whenever he is around children. He becomes engaged to

and moves in with a woman who has three children under the age of 12. You believe that

the man is not repentant and that there is a good chance he will molest these children. Al-

though the woman knows his criminal history, she does not seem to care and even allows

him to babysit the young girls. The judge has indicated that he will not entertain new con-

ditions or a revocation unless there is evidence of a crime, but you understand from the

offender’s counselor that the offender continues to be sexually aroused by children. What

can you do? What should you do?

Situation 2

You are a probation offi cer with a DWI probationer who has not been reporting for any of

the court-sanctioned programs, and a motion to revoke (MTR) was supposed to be fi led.

However, a high-ranking administrator in your offi ce tells you not to fi le the MTR or take

any other negative actions because the probationer is a personal friend and, anyway, he

isn’t a “serious criminal.” What would you do?

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Situation 3

You are the director of a restorative justice program in your community. It is set up for

juvenile offenders and involves circle sentencing, in which the offender meets with family

members, school offi cials, and the victim and the victim’s relatives and friends. The circle

comes up with what should be done, and often there is no punishment per se. Rather, the

juvenile is connected with programs that can help him or her get back in school, get a job,

or receive vocational training. In the case you are reviewing, you suspect that there are real

questions as to whether or not the juvenile actually committed the burglary he is accused

of. There is no evidence to link the juvenile with the crime, and he and his court-appointed

attorney have claimed innocence. They then changed their plea and agreed to the restor-

ative justice program, perhaps because if it is completed successfully, the juvenile will have

no criminal record. Should you care whether the juvenile is innocent or not, given that the

program is restorative, not punitive?

Situation 4

You are a prison warden, and a new CO comes to you and says she has been sexually ha-

rassed by the captain. You know that the captain has been with the prison for 20 years and

has not had any negative reports in his record. On the one hand, you like him and think

he is an excellent captain. On the other hand, this CO seems earnest and believable and is

quite upset, so you believe something must have happened. What is the ethical course of

action? What is the legal course of action?

Situation 5

You are a prison counselor in a co-ed prison and have some real concerns about your co-

worker’s treatment of offenders. You hear him screaming obscenities at them in his offi ce,

and one time you saw him pat a female prisoner on the rear end and say, “Be sweet to me

and I’ll get you out of here.” No one else seems to notice that anything is wrong. Could

you have misinterpreted the exchange with the prisoner? Might it have been simply bad

taste rather than sexual harassment? Should you do anything?

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• 391 •

Making Ethical Choices

In this book, we have explored ethical issues in each of the subsystems of the criminal justice

system. We have discovered certain themes that run through each of the subsystems:

The presence of authority, power, force, and discretion •

Informal practices and value systems among criminal justice actors that are contrary •

to formal codes of ethics

The importance of ethical leadership •

The tension between deontological ethical systems and teleological or “means–end” •

ethical analysis

In this fi nal chapter, we will reiterate some of these themes and conclude with some

last thoughts regarding how to behave in an ethical manner.

Just Wars and Just Means On September 11, 2001, the United States was changed forever. The terrorist attack on

the World Trade Center was the single most devastating terrorist attack in this country

and, indeed, the world, with more than 3,000 deaths and the complete destruction of two

buildings that stood as icons of Western capitalism. Although we had experienced earlier

incidents—the 1993 bombing of the World Trade Center, the Oklahoma City bombing,

and numerous attacks on U.S. targets worldwide—nothing prepared the country for the

severity of the attack. The event traumatized a city, affected the American psyche, led to

C h a p t e r O b j e c t i v e s

1. Identify the basic themes of the book.

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

3. Describe the responses to 9/11.

4. Compare the crime control approach to the human rights model of policing.

5. Present a method to resolve ethical dilemmas.

D a n

ie l

Jo n

e s/

A la

m y

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U.S. military engagement on foreign soil in two countries, and spurred the dramatic re-

structuring of federal law enforcement. The long -term effects of this event are still unfold-

ing, but we have already seen pervasive changes in law enforcement at both the federal

and the local levels, and the country is still roiling with controversy over the responses

taken in the “war on terror,” from rendition to torture to wiretapping. This controversy is

related to criminal justice ethics because the war on terror affects not only the military and

federal agencies; every law enforcement and justice agency in the land may have occasion

to be involved. Targets of terrorist activity include not only buildings and bridges in big

cities, but also dams, power plants, schools, government buildings, and farms in the most

remote areas. Further, it is possible that the enemy combatants who have been incarcer-

ated in Guantanamo will be tried in civilian courts here in the United States. Finally, the

issues that arose in Abu Ghraib led to a national investigation of our own prison system,

and the reverberations of the scrutiny continue to be felt. The responses to the attack on

the World Trade Center also illustrate the prevalence of means–end thinking: the idea that

what would usually be wrong can be justifi ed by a good end. We see this argument over

and over again in the war on terror and, surprisingly, some people argue as if it is a new

argument, or even as if terrorism is a new threat. It isn’t.

Terrorism has been defi ned as the “deliberate, negligent, or reckless use of force against noncombatants, by state or non -state actors for ideological ends and in the ab-

sence of a substantively just legal process” (Rodin, 2004: 755). Terrorism has led to ques-

tions about what is appropriate or ethical in law enforcement investigative techniques,

individual rights vis -à -vis the government, and what is legal and ethical in the detention

and treatment of prisoners. However, it is important to note that these are not new ques-

tions. From the very earliest philosophers, there has been a struggle to defi ne and agree

upon when it is right to wage war and what means are acceptable to secure victory. There

is no coincidence in why we use the term war to denote a national challenge; by identify-

ing the problem as such, the language of war creates the justifi cation for methods. We can

see the same argument played out whether we are talking about the war on terror, the war

on drugs, the war on illegal immigrants, or the war against crime.

The traditional justifi cation for war comes from natural law, and the second comes

from positivist law. Classical “just war” theorists such as Hugo Grotius (1583–1645) have

held that natural law gives sovereigns the right to use force to uphold the good of the com-

munity, when unjust injuries are infl icted on others, and to protect the state (Grotius, 2005;

Bellamy, 2004). States are justifi ed to engage in war when any of these events exist; other-

wise, the war is unjust and immoral. However, natural law has been criticized as a justifi -

cation for war because of the likelihood that leaders use moral arguments to justify wars

that are, in reality, initiated for other means (e.g., when a sovereign engages in war against

another state under the justifi cation of self -defense or protecting a victim group, when the

true motivation is a land grab or some other reason).

The second, more recent, justifi cation for war comes from positivist law, which is man -made law. Increasingly, this is used as the only legitimate justifi cation for war; le- gal incursions into the sovereignty of other nations are justifi ed only under the auspices

of international law as provided through the United Nations and other multilateral trea-

ties and organizations. The problem with positivist law as the basis for justifying war is

that no single authoritative legal body in international relations sits above all sovereigns,

and international legal bodies do not include all countries and cover all circumstances

( Bellamy, 2004).

Because of the lack of complete coverage of positivist law, natural law justifica-

tions for war still exist. The natural law justifi cations to engage in a war not sanctioned

by the United Nations or other world body is either the defense of one’s own state or

terrorism The “deliberate, negligent, or reckless use of force against noncombatants, by state or non-state actors for ideological ends and in the absence of a substantively just legal process.”

positivist law Human-made law.

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humanitarian reasons—for instance, to protect the other country’s citizens from serious

victimization such as genocide. Intrusions in internal confl icts within states have been un-

dertaken by other states when gross humanitarian violations have occurred (such as the

ethnic cleansing campaigns in Rwanda and Bosnia). Again, however, the problem in using

these natural law or moral imperative justifi cations to engage in war is that they can be

abused and misused; therefore, limits on the moral justifi cations for war have been pro-

posed, including the following (Bellamy, 2004):

The violations must be knowable to all. •

The violations must be widespread and systematic. •

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

These are not too different from other justifi cations that have been offered by other

writers. For instance, Crank and Gregor (2005: 230) and Hicks (2004) have offered the fol-

lowing justifi cations for war:

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

There are no other means to avert the threat. •

There must be a good probability of success. •

The means must not create a greater evil than the threat responded to. •

These justifi cations seem to be consistent with a utilitarian system of ethics and are

not inconsistent with ethical formalism because of the principle of forfeiture, which states

that someone who impinges on others’ rights forfeits his or her rights to the same degree.

Even if a war can be justifi ed by natural or positivist law, there is the second question as

to what means are acceptable in fi ghting the war. Under utilitarianism, in determining “just

means,” the extent of the harm is weighed against the end or injury averted, just as when

one asks if the war itself is justifi ed. Ethical formalism does not look at the consequences

of an action to justify it; however, the principle of double effect states that if one under- takes an action that is a good, but that also results in a negative end, as long as the negative

end was not the intent of the actor, the good action and the good end can be considered

a good. For instance, if one bombs a military target and innocents are harmed during the

bombing, the act, if otherwise considered ethical, does not become unethical because of

the death of civilians. The bombing of Dresden, the use of the atomic bomb on Hiroshima

and Nagasaki, and not warning people in Coventry that the British had cracked the Nazi

code and knew that the city was about to be bombed but didn’t reveal that they knew

the information—all have been discussed as ethical conundrums during World War II.

Whether someone concludes that these were ethical actions or not, the analysis is usually

an application of utilitarianism (the goal of ending the war—which saved lives—justifi ed

the means, even though the means included the death of many innocent civilians). We

continue these same discussions today in debates about the war in Iraq and the means

employed in Iraq, Afghanistan, and the more amorphous war on terror.

There has been a good deal of argument and analysis over whether traditional “just

war” arguments can be applied to the fi ght against terrorists (Crank and Gregor, 2005;

Zohar, 2004). Smilansky (2004) argues that terrorists have no moral justifi cation, and they

attack democracies partially because the ethos and values of such countries prohibit taking

an “any means necessary” response. However, the fact is that democratic governments

have resorted to a variety of means in response to terrorist attacks that are arguably incon-

sistent with democratic values.

In Chapter 6, the “Dirty Harry problem” was presented as a question of whether

police should use any means necessary to obtain information from a criminal suspect in

principle of double effect The concept that a means taken for a good end results in the good end but also in an inevitable but unintended bad result.

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order to save a life. A more recent Harry Callahan is Jack Bauer, the hero from the televi-

sion show 24. In this show, he was confronted with “the ticking bomb scenario,” specifi -

cally, whether one should use torture to fi nd the location of a bomb that is about to go off

and kill many people. While the stakes may be higher, this is the same dilemma that faced

the fi ctional Harry Callahan, and, one might add, the same analysis may be applied: Are

bad means ever justifi ed by a good end? Interestingly, the show was even used in discus-

sions by White House spokespersons and pundits about what was ethical in responding to

the war on terror. Whether Hollywood scriptwriters are the best judge of ethics, however,

is debatable.

T H E R E S P O N S E T O 9 / 1 1

Since 9/11, we have seen a fundamental shift in the goals and mission of law enforcement

and public safety. This shift has included an expansion of the number of law enforcement

agencies and personnel, a nationalization of law enforcement, a reduction of civil liber-

ties, and a merging of immigration control and traditional law enforcement. We have seen

federal money directed to training law enforcement offi cers to act as “fi rst responders” to

critical events such as terrorist attacks. There has also been more federal money available

for hardware purchases. The trend of community or neighborhood policing that sought

to forge links between law enforcement and the community it served has been eclipsed

by these new initiatives, and federal fi nancial support for community policing has been

drastically reduced. Further, there are increasing links between local law enforcement and

immigration and federal law enforcement. Since 9/11, the nation has been involved in

moral debates over such responses as:

Detainments and governmental secrecy •

Wiretapping and threats to privacy •

Renditions and secret prisons •

Guantanamo and the military commissions •

The use of torture •

DETAINMENTS AND GOVERNMENTAL SECRECY Immediately after 9/11, hun- dreds of non -citizens were detained on either immigration charges or material witness

warrants. The Patriot Act required that all individuals on visas report to immigration of-

fi ces, and once there, many were detained for minor violations of their visa. Hundreds

were held for months in federal facilities and county jails without hearings. Despite civil

liberties groups pressing for the names of the detainees, it took months for the federal gov-

ernment to release even the numbers of individuals detained, much less their names.

The deportation hearings that were held were closed to the public and to the media,

despite legal suits to open them. Individuals were deported for extremely minor immigra-

tion violations, some of whom had lived in the United States for 30 years or more. The

detainment of individuals on material witness warrants seemed to be based on rumor,

innuendo, and a level of proof that did not even meet reasonable suspicion, (Kreimer, 2007).

WIRETAPPING AND THREATS TO PRIVACY One of the effects of 9/11 has been the loss of some privacy rights that we enjoyed before the attack. In 1978, in response to

perceived violations of privacy by our government, the Foreign Intelligence Surveillance Act

(FISA) was passed, which created the Foreign Intelligence Surveillance Court (FISC), con-

sisting of seven federal district court judges appointed by the Supreme Court’s chief justice.

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Federal agents who wanted to wiretap in this country had to go to this court and show that

their target was an agent of a foreign power and that the information sought was in further-

ance of counterintelligence. The FISA legislation originally approved only electronic eaves-

dropping and wiretapping, but was amended in 1994 to include covert physical entries and,

in 1998, to permit pen/trap orders (which record telephone numbers) and business records.

If the target is a U.S. citizen, there must be probable cause that his or her activities may in-

volve espionage, and a warrant must be requested and obtained from the FISC; however, it

is believed that the court has never denied a government request for a warrant.

The Patriot Act allowed expanded powers of federal law enforcement in search and

seizure, including provisions that allowed federal agents to “sneak and peek,” and to utilize

national security letters to circumvent warrant requirements. National security letters are

letters issued by the Federal Bureau of Investigation (FBI) to access private information

without a warrant. Recipients of such a letter, until later modifi cations of the Patriot Act,

could not ever tell anyone of the letter. Thus, a librarian who received a letter demanding

all Internet records for a particular patron, or a telecommunications agency that received

a similar request, could not tell the target of the letter or even discuss the letter with their

lawyers. It came to light that the FBI was issuing tens of thousands of these letters each

year, and many may have involved violations of law or policy. Misuse of national security

letters prompted an investigation by the Offi ce of Inspector General of the Department of

Justice and annual audits. The latest extension of the Patriot Act gave recipients at least the

right to confer with a lawyer upon receipt of a national security letter, and required annual

audits of the use of the letters (Kreimer, 2007).

The Bush administration had also pushed for several data -mining programs that ba-

sically sift through large amounts of information, tagging key words for further scrutiny

(Kravets, 2003; Moss and Fessenden, 2002; Cole, 2002), although, as far as we know the

programs were not put into operation. It also has come to light that President Bush autho-

rized secret wiretapping by the National Security Agency. These wiretaps were conducted

without warrants from the FISC. The Supreme Court refused to hear a legal challenge

to the wiretapping, brought forward by civil liberties groups. In August 2007, the Protect

America Act was passed, which allowed the government to wiretap, without a warrant,

anyone suspected of being linked to a terrorist group. In effect, this gave approval to the

secret wiretapping program after the fact.

The Protect America Act had an expiration date of February 2008, and, in that month,

Democrats and Republicans could not come to terms on the elements of the extension,

and the act expired without confi rmation. However, in July 2008, Congress agreed to a

bill that included legal immunity for telecommunications companies that cooperated with

warrantless wiretapping. The bill also changes some elements of the FISC, expanding gov-

ernment’s powers to invoke emergency wiretapping, and affi rms the position that the FISC

is the only legal authority to grant wiretaps (specifi cally opposing any presidential power

in that regard) (Lichtblau, 2008b). Critics allege that, just as in the 1960s and 1970s, unfet-

tered power to spy has been misused today in the indiscriminate use of national security

letters and spying on groups that have no possible connection to terrorism but are merely

left -leaning or groups that disagreed with the administration’s actions (Harris, 2006). For

instance, it has been reported that the Department of Homeland Security issued a “threat

assessment” of pro -choice and anti -abortion groups for a local police department, and is-

sued a report on a Muslim conference held in Georgia. These investigations of American

citizens are outside the scope of the investigative powers of the federal government (be-

cause they do not involve espionage and terrorism) and cause concern for civil libertarians

even though the reports were destroyed after concerns were raised (Savage and Shane,

2009). The Quote and Query box illustrates the concerns of many.

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QUOTE && QUERY We’re protecting freedom and democracy, but unfortunately freedom and

democracy have to be sacrifi ced.

—SOURCE: JETHRO EISENSTEIN, NEW YORK LAWYER, QUOTED IN MOSS AND FESSENDEN,

2002: A18.

? Is this claim overstating the issue?

RENDITIONS AND SECRET PRISONS Other actions that the United States has taken in response to 9/11 have occurred overseas. Offi cials in Canada, Sweden, Germany,

and Italy have declared that the CIA has kidnapped individuals in those countries and sub-

jected them to torture to discover what they knew about terrorist activities. The practice,

called rendition, is usually done with the host country’s knowledge, but in some cases no

notice was given or permission granted. When this happens, the country’s leaders object

to the U.S. practice of ignoring the sovereignty of the country and its laws (Whitlock, 2005;

Weinstein, 2007).

Italy convicted in absentia CIA operatives who kidnapped a radical Egyptian cleric

in February 2003 and smuggled him out on a U.S. military airplane. In an unusual turn of

events, 26 CIA agents were prosecuted in absentia in Milan, Italy, for this kidnapping. In

May 2008, the wife of the kidnapped man testifi ed that, after he was kidnapped by CIA

agents, he was taken to an Egyptian prison and held for 14 months. During those months,

he was beaten, shocked over all parts of his body including his genitals, and tortured in

other ways. Similar to others who were subjected to rendition, he was released with no

explanation of why he had been taken in the fi rst place (Associated Press, 2008c).

In some of the cases, the kidnapped suspects were sent to secret prisons run by the

CIA in Eastern European countries. The existence of secret prisons run by the United

States in formerly Soviet countries is an ironic and sad commentary on recent history.

After the existence of such prisons was exposed in 2006, they were allegedly closed, with

some of the detainees sent to Guantanamo (Whitlock, 2007). The Walking the Walk box

describes how the secret prisons may have been exposed.

GUANTANAMO AND THE MILITARY COMMISSIONS ACT Soon after the United States military initiated hostilities in Afghanistan, “enemy combatants” were captured and

sent to Guantanamo Bay in Cuba, a military installation that is considered American ter-

ritory. The Iraq war began, and enemy combatants from Iraq were also sent there, along

with suspected terrorists captured in other countries. Controversy continues over the le-

gal status of these detainees and what due process rights they should receive. The initial

arguments by the federal government were that the individuals did not deserve the due

-process rights granted by the American Constitution because they were not Americans

and were not on American soil; and they did not deserve the due -process rights granted by

the Geneva Conventions (the agreements made by all the major world powers after World

War II on how to treat war prisoners), because they were defi ned as enemy combatants,

not soldiers.

In Hamdi v. Rumsfeld (542 U.S. 507 [2004]), the Supreme Court held that U.S. citizens

could not be held indefi nitely without charges even if they were labeled enemy combat-

ants. In Rasul v. Bush (542 U.S. 466 [2004]), the Court held that detainees in Guantanamo

could challenge their detention in U.S. federal courts. A related case was Clark v. Martinez

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(125 S.Ct. 716 [2005]), which involved Cubans held for years in federal penitentiaries after

illegally entering the United States. In this case, the Court held that the government may

not indefi nitely detain even illegal immigrants without some due process. In Hamdan v.

Rumsfeld (125 S.Ct. 972 [2005]), the Supreme Court held that the military commissions,

set up as a type of due process for the detainees, were outside the president’s power to cre-

ate and were, therefore, invalid.

Mary McCarthy was born in 1945. She received a Ph.D.

in history from the University of Minnesota. In 1984,

she began working for the CIA as an intelligence ana-

lyst. Her specialty was Africa, and she was known as an

independent -minded analyst. She was promoted to di-

rector of intelligence programs on the National Security

Council staff and was appointed as special assistant to

the president and senior director for intelligence pro-

grams under President Clinton. In this position, she re-

viewed all clandestine operations. After President Bush

was elected, she left that position in 2001, took a sabbati-

cal, and obtained a J.D. In 2005, she was working for the

CIA again, but in the Office of the Inspector General.

That offi ce investigates complaints about unethical or il-

legal actions by federal employees, and McCarthy’s po-

sition involved investigating detainee treatment in Iraq

and Afghanistan.

In 2006, she was castigated and fi red over revealing

governmental secrets. Although the whole affair contin-

ues to be murky, it seems that, weeks away from retire-

ment, she spoke with Dana Priest, a Washington Post

reporter who wrote a series of Pulitzer Prize–winning ar-

ticles on the United States’ practice of rendition and op-

erating “black sites,” which were secret prisons in Eastern

European countries. These were the places where enemy

combatants picked up in Iraq, Afghanistan, and in coun-

tries all over the world were taken for interrogation.

The Bush administration and CIA director Porter

Goss launched an intensive investigation concerning the

leak. McCarthy reportedly failed a polygraph and then

admitted she talked to the reporter, according to CIA

sources. McCarthy and her lawyer deny that she gave in-

formation to Priest about the black sites, and the reporter

will only say that her information came from “multiple

sources.” McCarthy was fi red 10 days before her planned

retirement. Her colleagues were surprised since she was

a veteran employee with decades of service. McCarthy

has been described as “engaging, charming, persistent,

loud, and aggressive.” She evidently could not be

“snowed easily” and was, by nature, a skeptic. The rea-

son she spoke with the reporter seemed to be, according

to news stories citing her friends and colleagues, that

she was disturbed that senior offi cials were not telling

the truth to the Senate and House committees investi-

gating CIA activities regarding interrogation. She and

other CIA staff members were convinced that the inter-

rogation tactics approved by the White House violated

international treaties. Worse, congressional committees

were not aware of the extent of the interrogation tactics

used, at least from her perspective.

The news stories led to the decision to shut down

the secret prisons and move the detainees (who were

also known as “ghost detainees” since they never ap-

peared on official lists provided to the International

Red Cross) to Guantanamo. Whether Mary McCarthy

is a hero or a traitor depends on one’s perspective. It

is still unclear whether or not she was the source for

the reporter’s story about the secret prisons. Some ar-

gue that her position at the Inspector General’s offi ce

would not have given her access to such information.

Others argue that she would have had access to the in-

formation only if there had been internal complaints

from other CIA employees that laws were being bro-

ken. To some, she betrayed the secrets of her employer

and country. Most CIA agents and other observers

condemned her actions, arguing that you never leak

secrets, no matter what the reason. To others, once

McCarthy saw that the internal processes were not go-

ing to stop what she believed was unlawful and wrong,

she did something that was much more effective—

bringing the white light of public scrutiny to the ac-

tivities. As the events such as Abu Ghraib, the secret

prisons, and Guantanamo fade into memory, it is im-

portant to understand the dilemmas faced by those

who saw wrong and tried to right it. They changed

the pages of history.

W A L K I N G T H E W A L K

Sources: Smith and Linzer, 2006: A01; Smith, 2006.

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Congress then passed the Military Commissions Act, which set up procedures similar

to those struck down by the Supreme Court. In Boumediene v. Bush (553 U.S. 723 [2008]),

the Supreme Court rejected the military commissions as a due -process substitute for federal

courts and habeas corpus, and it further held that the Detainee Treatment Act with the pro-

vision of some form of appeal over the “enemy combatant” status was also not a substitute

for habeas corpus rights. The Court’s rationale is that Guantanamo is considered to be a legal

territory of the United States and therefore is subject to United States law. Dissents by Chief

Justice Roberts and Justices Scalia, Thomas, and Alito vigorously opposed the Court’s ratio-

nale and predicted “devastating” consequences (Greenhouse, 2008; Savage, 2008b).

President Obama promised that Guantanamo would be closed within the fi rst year

of his presidency, but that has not occurred and what to do with the remaining detainees

continues to be problematic. There are indications that the Obama administration will use

military commissions that will respond to the due -process concerns raised by the Court,

but there are also indications that some detainees will be tried in American courts.

TORTURE Many citizens probably would not have believed that the legality and eth- ics of torture would ever be a topic of discussion in the United States of America, yet it

is. After World War II, commanders of the Japanese and German armies were tried for

war crimes that included unnecessary killings of civilians, mistreatment of civilians, and

the use of torture against captured soldiers. One of the forms of interrogation used by

the Japanese that was later the basis for convictions was the “water cure.” We know it

today as waterboarding. In the 1940s, judicial offi cials assessing guilt in war crime trials

called it torture and convicted the military offi cers who ordered it or allowed it to hap-

pen; in 2007 and 2008, the president of the United States called it legal and necessary.

Torture is defined as the deliberate infliction of violence and, through violence,

severe mental and/or physical suffering upon individuals. Others describe it as any

intentional act that causes severe physical or mental pain or suffering. Amnesty In-

ternational considers all forms of corporal punishment as falling within the defini-

tion of torture and prohibited by the United Nations Convention Against Torture

( McCready, 2007).

As new information about the government’s activities in the wake of 9/11 comes to

light, we now know that immediately after 9/11, certain individuals suspected of being in-

volved in the planning of the attacks or of being members of Al -Qaeda were seized wher-

ever they happened to be and taken to secret locations. At fi rst they were sent to countries

such as Egypt, which used torture in interrogation. Later they were taken to secret pris-

ons run by the CIA in Eastern Europe. Finally, some were moved to Guantanamo. Ev-

idently, by 2002, various forms of coercive interrogation techniques were being used at

Guantanamo, as well as Bagram prison in Afghanistan. At these locations, allegedly, the

suspects were subjected to extreme forms of coercive interrogations, including the following

(Massimino, 2004: 74):

Subjected to loud noises and extreme heat and cold •

Deprived of sleep, light, food, and water •

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

Kept naked and hooded •

Thrown into walls •

Sexually humiliated •

Threatened with attack dogs •

Shackled to the ceiling •

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In an ironic twist, it has now been revealed that military interrogators in Guantan-

amo were trained in the techniques of coercive interrogation techniques with material

that was originally from a 1957 Air Force study of Chinese Communist techniques used

during the Korean War. The original source detailed a continuum of coercive techniques

that were used to obtain false confessions from U.S. soldiers, including practices such as

semi -starvation, fi lthy surroundings, extreme cold, and stress positions. At some point,

the chart was taken from the original source, which described how such techniques could

“brainwash” American soldiers into falsely confessing war crimes, and became included

in training materials on how to conduct coercive interrogations to obtain evidence against

suspected insurgents (Shane, 2008b).

At the Bagram prison in Afghanistan, a young taxi driver was killed by interrogators

who suspended him from the ceiling and beat his legs so badly that an autopsy revealed

his leg bones were pulverized (see the Quote and Query box). It was discovered that Dila-

war, the taxi driver, had no association at all with insurgents and that his taxi and the pas-

sengers in it had been picked at random by an Afghan guerrilla commander who told the

Americans that they were responsible for bombing a U.S. camp. Later it was discovered

that the commander himself was responsible for the bombing (Golden, 2005).

QUOTE && QUERY It became a kind of running joke, and people kept showing up to give this detainee

a common peroneal strike just to hear him scream out “Allah.” … It went on over

a 24 -hour period, and I would think that it was over 100 strikes.

—SOURCE: STATEMENT BY MILITARY GUARD. QUOTED IN GOLDEN, 2005: A16.

? How does the utilitarian ethical system justify this treatment? Does any ethical system justify it?

There were troubling indications that interrogation techniques being utilized in

Guantanamo, starting in 2001 through 2003, were contrary to the Military Field Manual

and American law. FBI agents who were at Guantanamo to assist in interrogations wrote

memoranda to their superiors objecting to what they saw, as did some military lawyers

and other offi cers. By the time the Abu Ghraib prison scandal erupted, such techniques

had been used in Guantanamo and in Bagram prison in Afghanistan. Far from being the

isolated acts of a few sadistic soldiers, these techniques were the subject of memos written

and signed by offi cials in the Offi ce of Legal Counsel and at the Pentagon.

We now know that a legal memorandum authored by lawyers John Yoo and Robert

Delahunty from the Offi ce of Legal Counsel had provided a 2002 opinion that the pres-

ident could authorize waterboarding and other forms of torture,. Yoo also wrote a 2003

memorandum with Jay Bybee that basically reiterated the justifi cation that the president

had the legal right to order torture as long as it did not result in organ failure or death

(Shane, 2008a).

Critics today argue that these legal memoranda ignored other sources of law, includ-

ing international treaties such as the Convention Against Torture, which the United States

ratifi ed in 1994, that also bar such acts (Gillers, 2004). As these memos came to light, the

authors, Bybee and Yoo, faced an investigation from the Department of Justice’s Offi ce of

Professional Responsibility and possible sanctions from their respective bar associations.

However, the fi nal report concluded that they exercised fl awed legal reasoning, but were

not guilty of professional misconduct, and recommended that they not be referred to their

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state bar associations for discipline. Steven Bradbury, associated with four memos provid-

ing legal support for the interrogation techniques, was also found not to have committed

professional misconduct. Bybee is now a federal appeals court judge, and Yoo is a law

professor (Lichtblau and Shane, 2010).

As far as can be determined, many of those who were tortured were not insurgents.

Some had stolen from military supply trucks, some had engaged in civilian crimes, some

had been captured after tips suggested that they were involved. Soldiers in Abu Ghraib

and Bagram evidently felt comfortable using extreme interrogation techniques because

they knew or had seen military interrogators use them. Once human rights are discarded

for one group, it is hard to preserve them for others.

The Quote and Query box sums up the message in the above points.

QUOTE && QUERY We take this moral high ground to make sure that if our people fall into enemy

hands, we’ll have the moral force to say, “You have got to treat them right.” If you

don’t practice what you preach, nobody listens.

—SOURCE: SENATOR LINDSEY GRAHAM, IN SUPPORT OF AN AMENDMENT BANNING

TORTURE TO MILITARY PRISONERS, QUOTED IN GALLOWAY AND KUHNHENN, 2005: A4.

? Is this argument against torture a utilitarian argument or an ethical formalist argument?

The argument that we should not use torture because our enemies then will feel free

to use torture against American soldiers is a utilitarian argument (greatest benefi t), but it

also has elements of the categorical imperative (act in such a way that you will it to be a

universal law) and the religious imperative (do unto others as you would have them do

unto you).

Kleinig (2001a) and others, even before the worst abuses were revealed, examined

the weak justification for torture and abusive practices during interrogation and also

pointed out that they have been used in Northern Ireland, Israel, South Africa, and South

America, among many other countries. The so -called “doctrine of necessity” is purely

utilitarian, as is the argument of some that there must be secrecy concerning interroga-

tion tactics so they can be more effective. To the contrary, Kleinig (2001a: 116) points out

that torture dehumanizes both victim and oppressor: “There is a loss of the moral high

ground, a compromising of values that supposedly distinguish a society as civilized and

worth belonging to.”

Whether torture is effective or not is a utilitarian argument. Some argue that it is not

effective because people will say anything to stop the torture, and interrogators can’t tell

when someone is lying (Rejali, 2007). Some military interrogators are speaking out now,

describing how they had obtained good information from high -value detainees using stan-

dard techniques and then other interrogators took over, used torture, and the detainees

stopped talking. The same sources indicate that the information that has been said to have

come from coercive interrogation tactics actually was obtained much earlier when such

techniques were not in use (Margasak, 2009). Others argue that torture does work in get-

ting information out of individuals. Even those people, however, admit that using torture

to interrogate may damage the interrogator as well as the detainee. Individuals may fi nd the

dark corners of their soul when they realize that they get some form of excitement from

inflicting pain on others. They may suffer guilt that destroys their peace of mind and

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affects them long after the detainee’s wounds have healed. It has been reported that some

interrogators are suffering post -traumatic stress syndrome (Blumenfeld, 2007).

Alan Dershowitz (2004) offers a utilitarian argument for torture—he writes that some-

times the greatest benefi t is to torture, but that it should be limited to situations in which

the benefi t is so great that it overwhelms the harm to the individual. He also proposes,

however, that any torture should be done under the auspices of a court or objective hear-

ing body that issues a type of “torture warrant.” Others (e.g., McCready, 2007) dispute the

feasibility of this proposal, arguing that any need for torture would be immediate and, if

there was time to pursue a warrant, there probably would be other ways to get that infor-

mation. Another thing to consider about the terrible effects of torturing for information

is that the innocent who knows nothing suffers the most pain. The movie Rendition is a

fi ctionalized account of what might have happened in real life in the months and years

following 9/11.

When individuals such as Dershowitz present justifi cations for torture, they invariably

use the most extreme situation—the “ticking bomb” scenario in which one knows that the

person being tortured has information about a bomb that is going to go off soon, killing

many people. Whether one accepts the utilitarian equation for such a scenario does not nec-

essarily justify the actual incidents of torture that have taken place. There is a world of dif-

ference between the ticking bomb scenario and torturing a suspect accused of stealing from

the U.S. military, or torturing a suspect to obtain his confession so that he can be punished.

The In the News box describes how the United States’ actions have been perceived

by other nations.

Crime Control versus Rights -Based Law Enforcement Utilitarianism is the ethical justifi cation for all the counter -terrorism measures we’ve dis-

cussed. These practices are justifi ed as preventing or deterring terrorism, but the argument

is crime control revisited. Fourth Amendment limits were justifi ed as necessary in the war

on drugs, and we see the same argument justifying extreme methods in the war on terror.

We have also seen the same type of abuses. Just as a few police offi cers felt they could

justify planting evidence and lying to get drug dealers off the street, and some decided

they could also steal from drug dealers because they were outside the protection of the

law itself, we have similar scandals in the war on terror. Whenever there is a threat to the

peace and safety of the population, there is the temptation and tendency to use illegal and

unethical means for protection.

in the N E W S W A R C R I M I N A L S ?

The same Spanish court that prosecuted and convicted Augusto Pinochet, the Chilean dictator

who was responsible for thousands of murders by death squads in the 1970s, has agreed to

hear charges against Bush administration offi cials, including former Attorney General Alberto

Gonzales, David Addington, Jay Bybee, and John Yoo. Spanish law allows courts to address cases

of torture or war crimes wherever they may occur, under a doctrine of universal justice.

SOURCE: Haven, 2009.

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Utilitarian reasoning is accepted as an ethical rationale, but it does not justify all ac-

tions just because they may protect us. Cohen (1987: 53) uses a utilitarian approach in the

following justifi cation for police action:

1. The end must itself be good.

2. The means must be a plausible way to achieve the end.

3. There must be no alternative and better means to achieve the same end.

4. The means must not undermine some other equal or greater end.

As we discussed in Chapter 5, the crime control approach is utilitarian and justifi es actions that otherwise would be wrong for the end of crime control. In the public service approach, which can also be described as the human rights model, values and ethics fo- cus on human rights, including the right to due process, and the fundamental duty of all

public servants is to protect those rights. In this approach, the protection of rights is more

important than the end of crime control.

A rights -based model of policing recognizes police offi cers as servants of the public good. Although crime control is important, protection of civil liberties is the fundamental

mission. A crime control approach is utilitarian, and a rights -based approach is not. Un-

der the rights -based approach, which is deontological, no end would justify taking away

human rights.

This discussion can obviously be applied to the discussion of what are acceptable

responses to terrorist threats; the threat may be great, but the loss of liberty may be greater

if we succumb to fear. Although racial profi ling has been legally and ethically condemned

as a violation of rights when it is used to catch drug dealers, it has been resurrected as an

appropriate and justifi ed response to catching terrorists. Our Supreme Court has held that

privacy is more important than catching criminals, so wiretaps have been used sparingly

and with judicial oversight. However, the prevention of terrorist attacks has changed this

balance, and many are willing to give up their privacy rights in order for the government to

protect them from terrorism.

Some argue that it is a false argument to weigh privacy or any civil liberty against

security. Writing before the attack on the World Trade Center, Alderson (1998: 23) pre-

sented a prescient argument against the “end” of security as a justifi cation for taking away

liberties:

I acknowledge that liberty is diminished when people feel afraid to exercise it, but

to stress security to unnecessary extremes at the price of fundamental freedoms

plays into the hands of would -be high police despots. Such despots are quick to

exploit fear in order to secure unlimited power.

Alderson also addressed terrorism directly: “It is important for police to maintain their

high ethical standards when facing terrorism, and for their leaders to inspire resistance to

any degeneration into counter -terrorism terror” (1998: 71).

Protection of rights can also be framed as a utilitarian argument. In the effort to pre-

vent future terrorism by Al -Qaeda or other radical Muslim groups, the greatest ally of law

enforcement in any country is the Muslim community. If the Muslim community is co-

operative with preventive efforts, it is because this community believes in the legal system

and the integrity of those within it. Observers noted that one of the reasons that British

police were able to identify the subway bombers so quickly in 2005 was the cooperation

of the Muslim community, but that later actions enraged community members and hard-

ened opinion against the police; thus, it is possible that their assistance in identifying fu-

ture perpetrators may not be forthcoming (Buchholz, 2005; Emling, 2005).

crime control approach The law enforcement concept that uses means–end or utilitarian thinking to determine good by the result, which is crime control.

public service approach The law enforcement principle whereby the values and ethos of law enforcement and justice professionals focus on human rights, including the right to due process, and the fundamental duty of all public servants is to protect those rights.

rights -based model The policing approach that recognizes the police as servants of the public good; although crime control is important, protection of civil liberties is the fundamental mission.

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The major problem in the utilitarian ethical system or means–end thinking is that we

are unable to know the outcome of our actions. Justifying otherwise unethical means by

arguing that these means will lead to a good end depends on the ability to know that the

means will result in the desired outcome. Unfortunately, this is not possible. In our haste

to protect ourselves from terrorists, it is at least conceivable that we may create more ter-

rorists (Bender, 2005). The current generation of Middle Eastern children may identify

the United States only as an aggressor. Our actions, if misunderstood, could create many

times more terrorists than the number we are trying to control today.

In engaging in renditions, operating secret prisons, and defending the right to torture,

we lose allies around the world and, in the process, threaten our future security. In this

country, those of Arab descent who came here for freedom now fi nd that their heritage

denies them that precious gift. In detaining Arab American men without the due process

that protects most citizens, we may germinate the seeds of future destruction in the chil-

dren who watch their fathers being taken away. In fact, the new threat seems to be “home

grown terrorists” who were born in the United States or have lived here most of their lives.

By engaging in acts that are associated with oppressive countries, such as torture and se-

cret prisons, we make it easier for radical clerics and others to convince adherents that this

country deserves to be a victim of terroristic acts.

By parceling out human rights for some and not for others, we also weaken civil liber-

ties for all citizens. Once we start parceling out human rights and justice differentially, it

opens the door to those who look for an excuse to abuse and victimize.

The premise of rights -based law enforcement is that some acts are never justifi ed. No

end is so important that governments can stoop to slavery, genocide, or torture. No situ-

ation ever justifi es sexism, racism, murder, rape, or intimidation. There is a suspicion of

state power in rights -based law enforcement and a fear that police will be used to oppress

the powerless. The way to avoid this is to place the protection of rights, rather than crime

control, as the central theme of policing, because the defi nition of crime and the identifi ca-

tion of who is a criminal may be subverted for political ends. The United Nations Code

of Conduct for Law Enforcement Offi cials illustrates the values and premise of the rights -

based approach: “In the performance of their duty, law enforcement offi cials shall respect

and protect human dignity and maintain and uphold the human rights of all persons”

(Article 2, reported in Kleinig, 1999).

Neyroud and Beckley (2001: 62) describe the police standards of the United Kingdom

as refl ecting an emphasis on human rights. Standards include the following provisions:

To fulfi ll the duties imposed on them by the law •

To respect human dignity and uphold human rights •

To act with integrity, dignity, and impartiality •

To use force only when strictly necessary, and then proportionately •

To maintain confi dentiality •

Not to use torture or use ill -treatment •

To protect the health of those in their custody •

Not to commit any act of corruption •

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

To be personally liable for their acts •

Because European police have had a longer history of dealing with terrorism, it is

interesting that the trend there evidently has been to move toward a rights -based model

of policing. For instance, British police have had their share of noble -cause corruption in

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dealing with Irish terrorists; Spain has dealt with Basque terrorists; Germany dealt with the

Baader -Meinhof gang in the 1970s and, more recently, with neo -Nazi groups; and so on.

In Chapter 10, we discussed the importance of an independent judiciary. This con-

cept is an essential element of the discussion here as well. It is no coincidence that the

United Nations and the European Union both mandate that a country have an indepen-

dent judiciary in order for that nation to be considered protective of human rights and

thus eligible to join the European Union. The way to freedom and democracy is through

the recognition of human rights, and the way to protect human rights is through an inde-

pendent judiciary (Keith, 2002, 196–197).

Why are we discussing terrorism and the Iraq war in a book on the criminal justice

system? The answer is that the war on terror has replaced the drug war, and the crime

control perspective has morphed into a much broader government mandate of national

security. In response to that mandate, government’s powers of investigation and control

were expanded to address terrorism. However, Crank and Gregor (2005) note cases where

the arsenal of responses against terror has been used against ordinary criminals, such as a

federal law against terroristic threats applied to a lovesick woman who wanted the cruise

ship she was on to turn around, the use of a law against weapons of mass destruction

against a methamphetamine “cook,” and the use of federal subpoena power to investigate

members of an antiwar group that sponsored a rally with signs reading “Bring the Iowa

Guard Home.” As mentioned previously, once rights and liberties are taken away from

some groups, they become more tenuous for us all.

Ethical Dilemmas and Decisions This last chapter has focused on the war on terror because it is the greatest challenge facing

this country today, but it also illustrates in dramatic ways how ethics is an unspoken and

largely unanalyzed but powerful element in how events unfold. This last section reiter-

ates the idea that ultimately ethics is about facing a dilemma and making a decision. Like

police offi cers, CIA and FBI agents may be tempted to use illegal and unethical means

to accomplish their mission. Like prosecutors, lawyers in the Justice Department and the

military justice system have been pressured to skirt the law to pursue a good end. Like

correctional offi cers, personnel who worked in Guantanamo and Bagram are exposed

to a subculture where prisoners are considered not worthy of basic respect and humane

treatment.

Throughout this book, the Walking the Walk boxes have presented individuals fac-

ing ethical dilemmas. Some of them were involved in the war on terror, such as Charles

Swift, who was assigned to defend Salim Ahmed Hamdan against the president and the

Pentagon; Mary McCarthy, who might have exposed the secret prisons; James Yee, who

defended the rights of the detainees in Guantanamo and was labeled a traitor as a result;

and Joe Darby, who revealed the abuses occurring at Abu Ghraib.

There are also others who might be labeled whistleblowers because they came forward

with information about governmental actions they believed to be wrong. Babak Pasdar, a

computer security expert, was hired to conduct a security audit of a major telecommuni-

cations carrier. In the course of his audit, he found a mysterious circuit that others called

the “Quantico circuit,” which was sending all information about telephone and e -mail

from subscribers to Quantico, Virginia. When Pasdar asked about it and objected that it

was a threat to the security of the system, he was told to forget that he ever saw it. He could

not forget it, though, and, because of his concern, ended up testifying before Congress

about what he witnessed and went public in March 2006. Pasdar is now affi liated with

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an organization that seeks to protect the privacy of Americans from secret governmental

spying (Devine, 2008: 4A).

Lieutenant Commander Matthew Diaz was a JAG lawyer for the joint military task

force at Guantanamo, in charge of holding and interrogating enemy combatants. He sup-

ported the 2004 Supreme Court decision Rasul v. Bush, granting detainees the right of ha-

beas corpus, and thought they should be allowed lawyers to represent them. He disagreed

with the government’s refusal to supply the names of the detainees after a civil rights or-

ganization had fi led a request under the Freedom of Information Act to obtain them. On

January 15, 2005, he mailed a list of detainees to the Center for Constitutional Rights in

New York. In 2006, a federal court declared that the list of names was public information,

and the government released it to the Associated Press, but Diaz was still prosecuted for

his disclosure with the government, arguing that he exposed the United States to danger.

Diaz was convicted and sentenced in May 2007 to six months’ imprisonment and was

given a dishonorable discharge (Wiltrout, 2007).

Coleen Rowley was the FBI lawyer who made headlines when she publicly reported

that offi cials in Washington ignored reports from the fi eld about Zacarias Moussaoui,

who has since admitted conspiring with Al -Qaeda. Rowley retired from the FBI in frus-

tration over the bureaucratic practices that punished those who criticized superiors who

were not doing their job in sharing and analyzing important information (Carr, 2005:

A1, A6).

It is not only whistleblowers, however, who face ethical dilemmas. Sometimes,

ethics simply means doing one’s job. General Antonio Taguba was tasked with prepar-

ing a report on Abu Ghraib. He was criticized informally, evidently for the compre-

hensiveness of the report and his strong condemnation of the practices he found there.

According to reports, his career was derailed by doing his job too well in investigating

and chronicling the abuses at Abu Ghraib and documenting the lack of leadership that

lead to the abuses.

Pasquale D’Amuro was the chief of counterintelligence at the FBI when he directed

FBI agents in Guantanamo Bay in 2002 to have nothing to do with interrogations

that included the techniques that became the focus of scandal later. There are many

others—some known, many more unknown—who faced diffi cult decisions about what

was right.

How we face and resolve dilemmas is infl uenced by our ethical systems and under-

standing that doing the right thing is not always easy, nor is it necessarily easy to determine

what is right. Some of the individuals above were and still are criticized bitterly over their

decisions. While some consider them heroes, others consider them traitors. We cannot

deny, however, that they faced their dilemma courageously and chose to do what they

considered was right, knowing they would face consequences for doing so.

In the final analysis, the approach we have taken throughout this book is perhaps

the best one when faced with any type of ethical dilemma. To review, when faced with a

dilemma one should consider law, policy, and then consider the ethical systems such as

utilitarianism and ethical formalism.

Is there relevant law? •

Are you being asked to do something or observing something that is contrary to

state, national, or military law?

Is there relevant policy? •

Does the action violate company or agency policy? If you feel the policy is wrong,

can you use offi cial channels rather than violate the policy?

Finally, what do ethical systems tell you to do? •

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Although utilitarianism may be the most pervasive ethical system used in the war on

terror and when responding to other national challenges, there are limits to what can be

done for a “good end.” One could apply ethical formalism or ethics of care to consider the

action, or, even the simpler “front page test,” which basically just asks you to consider how

you would feel if your action was described on the front page of a newspaper. If you would

not want that to happen, there may be problems with your action.

C O N C L U S I O N

The World Trade Center attack and other assaults on U.S. targets around the world have

created a sense of vulnerability and fear. The response to this fear has been to reduce civil

liberties through law, policy, and individual practices. This “end justifi es the means” think-

ing is insidious—even more so now that that threat is so much greater. If utilitarianism is

used to justify actions, then one must also show what facts exist to prove that the desired

end will be brought about and that negative side effects do not outweigh the good that

one seeks. This step seems to be missing in many current discussions. However, ethical

formalism and other systems would conclude that even if one could prove the good end

outweighs the bad means, some acts cannot ever be justifi ed. Certain human rights belong

to everyone—even terrorists. In the crime war, drug war, or war on terror, the most impor-

tant element of making ethical decisions is to apply ethical reasoning and not succumb to

fear. Our fi nal Quote and Query box makes a case for political liberty.

QUOTE && QUERY Political liberty, which is one of the greatest gifts people can acquire, is threatened

when social order is threatened. It is dismaying to see how ready many people are

to turn to strong leaders in hopes that they will end, by adopting strong measures,

the disorder that has been the product of failed or fragile commitments. Drug

abuse, street crime, and political corruption are the expression of unfettered

choices. To end them, rulers, with the warm support of the people, will often

adopt measures that threaten true political freedom. The kind of culture that can

maintain reasonable human commitments takes centuries to create but only a

few generations to destroy.

—SOURCE: JAMES Q. WILSON, CITED IN COLE, 2002: 234.

? Although Wilson’s statement is discussing the sacrifice of due process in the drug war and crime control, it has incredible relevance to the issues of terrorism.

Interestingly, it was made by a noted conservative. How do we meet the threat of

terrorists?

Most of us are lucky in that we will never have to decide whether or not to participate

in torture, violate laws against wiretapping, or expose secrets in a way that could be con-

sidered a threat to national security. Criminal justice professionals, however, will probably

encounter at least some of the dilemmas that have been described in previous chapters.

The power of discretion, authority and power, and the duty of protecting public safety cre-

ate dilemmas for these professionals that are quite different from those that most citizens

encounter. Ultimately, for criminal justice professionals as well as everyone else, the way

you resolve dilemmas throughout the course of your career will constitute, in no small

measure, the person you are.

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C H A P T E R 1 4 | M a k i n g E t h i c a l C h o i c e s 4 0 7

C H A P T E R R E V I E W

1. Identify the basic themes of the book.

The presence of authority, power, force, and discretion exists in each of the subsystems of

the criminal justice system. Informal practices and value systems among criminal justice

actors may vary from formal codes of ethics. The importance of ethical leadership exists in

each area of the system. The tension between deontological ethical systems and teleologi-

cal or “means–end” ethical analysis also exists in each area of the system, as well as in the

war on terror.

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

The traditional justifi cation for war comes from natural law, and the second comes from

positivist law. Natural law gives sovereigns the right to use force to uphold the good of

the community, when unjust injuries are infl icted on others, and to protect the state.

Positivist law justifi es war when agreed upon by international bodies such as the United

Nations.

3. Describe the responses to 9/11.

Since 9/11, the nation has been involved in moral debates over such responses as detain-

ments and governmental secrecy, wiretapping and threats to privacy, renditions and secret

prisons, Guantanamo and the military commissions, and the use of torture.

4. Compare the crime control approach to the human rights model of policing.

The crime control approach is utilitarian and justifi es actions that otherwise would be

wrong for the end of crime control. In the human rights model, values and ethics focus on human rights, including the right to due process, and the fundamental duty of all public

servants is to protect those rights. In this approach, the protection of rights is more impor-

tant than the end of crime control.

5. Present a method to resolve ethical dilemmas.

The method used throughout the book has been to evaluate the choices of action based on

relevant law, policy, and ethics. A short ethical test is the “front page test.”

K E Y T E R M S crime control approach

positivist law

principle of double effect

public service approach

rights -based model

terrorism

S T U D Y Q U E S T I O N S

1. What are some actions the federal government has taken in response to terrorism?

2. What are the arguments in support of torture? What are the arguments against

torture?

3. What are some rights recognized by the United Nations and the European Union?

4. Explain why “means–end” thinking leads to criminal actions.

5. What are the two justifi cations for a just war?

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4 0 8 P A R T I V | C o r re c t i o n s

W R I T I N G / D I S C U S S I O N E X E R C I S E S

1. Write an essay on (or discuss) the most diffi cult ethical dilemma in this chapter, and

try to answer it by considering law, policy, and ethics. Also, use the “front -page test.” This is a quick ethics test that asks if you would feel comfortable if your action were

published on the front page of the newspaper. If you would not want it to be, there

may be an ethical problem with your action.

2. Write an essay on (or discuss) an ethical or moral dilemma from your own life. Try to

solve it by using any guidelines derived from this book. Be explicit about the proce-

dure you used to arrive at a decision and about the decision itself.

3. Write a code of ethics for yourself.

E T H I C A L D I L E M M A S

Situation 1

You are a member of Congress, and the Patriot Act is coming up for a vote to renew its

provisions. What would you do, and why?

Situation 2

As a soldier in Iraq, you have pictures of fellow soldiers engaging in various acts of abuse

and torture. What, if anything, would you do with the pictures?

Situation 3

You are a new police offi cer and are talking with other offi cers before roll call. The group is

loudly and energetically proposing various gruesome torture techniques to get Al -Qaeda

operatives to talk. There is some hyperbole in the discussion, but also the sincere belief

that torture is justifi ed by the circumstances. What do you think about this position? If you

object to torture, would you make your position known?

Situation 4

You live next door to an Arab family, and you hear the husband talking negatively about

the United States. Your friends at work tell you that you should report him to the police

because he might be a terrorist. What would you do? Why?

Situation 5

You are the president of the United States, and there has been another terrorist attack us-

ing passenger airplanes. One has crashed into the Pentagon, and another is heading for the

White House. You have deployed fi ghter jets to surround the plane, and whoever is fl ying

it refuses to acknowledge the command to turn around. Your military commanders are

advising you to shoot down the plane—an act that would kill the 353 people aboard. What

would you do? Would your answer be any different if it were heading toward the Statue of

Liberty? Toward an athletic stadium fi lled to capacity?

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