Welcome to AJ 250-Issues in Criminal Justice Systems
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Rio Hondo College
Department of Public Safety
3600 Workman Mill Road
Whittier, CA 90608
Course Description: This course discusses personal and organizational values, beliefs, attitudes and ethics as they effect contemporary issues in the Criminal Justice System. Particular emphasis is placed on the historical foundations which serve as a basis of contemporary decision making.
Unit 1- email your instructor and acknowledge due dates for completed
work and final exams.
Unit 2 - An Introduction to Ethical Systems. Analyze the relationship between classical philosophical thought and individual contemporary ethical actions.Unit Overview: Ethics, Crime, and Justice: An Introductory Note to Students By Michael C. Braswell
In a general sense, ethics is the study of right and wrong, good and evil. It is a creative endeavor where a number of our beliefs and assumptions will be challenged. The study of ethics encompasses a variety of different disciplines which contribute to criminal justice including law, economics, psychology, sociology, philosophy, and theology. For the purposes of this course, the terms ethical and moral will be used interchangeably.
Our beliefs and values regarding right and wrong, good and evil are shaped by our parents and friends, by the communities we are a part of, and by our own perceptions. The study of ethics involves all aspects of who we are - our minds, hearts, relationships with each other, and the intentions and motives for our actions regarding both our inner and outer environment. Being unethical is not simply committing an evil or wrongful act, it is also a matter of being an indirect accomplice to evil by silently standing by. Unethical acts have to do with both the commission of wrongdoing and omission, allowing wrongdoing to occur. Thus, the study of ethics involves a sense of community which includes our family, neighbors, and even the air we breathe.
Three Contexts for Understanding Justice, Crime and ethics The first context is the personal one. When studying others we find ourselves questioning and testing our own personal sense of values and ethics. While our examination of the issues should be objective, it should also be personal. We need to take what we believe in and stand for on a personal level.
Another broader context is the social one through which we relate to others in our community, both directly and indirectly. Persons do not commit crimes in isolation. Crimes require circumstances and victims. The social context suggests that we cannot be concerned only with criminals after they have committed crimes but need to better understand the conditions and environments that encourage people to become criminals. The social context is not only concerned with how we judge others at being good and evil, but also how we judge ourselves in relationship to others.
The third context is perhaps the most specific one and centers around the criminal justice process. It is important that we include both personal and social contexts when exploring the criminal justice process. A new law being proposed regarding the punishment of offenders needs to be explored in terms of personal beliefs and in terms of the social context of how it will affect the community.
The Five Goals for Exploring Ethics:
The initial goal is to (1) become more aware and open to moral and ethical decisions. As we try to accomplish this goal we will discover a number of contradictions in our moral beliefs and values. We discover there is often a difference between appearances and reality - things are not often what they seem. The broad range of moral issues reminds us that where justice is concerned, our personal values, social consequences, and criminal justice outcomes are often intertwined.
We must also (2) begin developing critical thinking and analytical skills. As children we are often creative as evidenced by our imagination, but as we grow older we learn to stand in line, follow instructions, and be seen more than heard in the process of learning. In a word, we become more obedient. If we do not first ask the right questions, our solutions, no matter how well intended and efficient, simply add to our difficulties. However, critical thinking and analytical skills help us to distinguish concepts such as justice and liberty from principles such as "the end justifies the means." These skills encourage openness and perseverance rather than blind acceptance and obedience based on ignorance.
By developing these skills, we realize our third goal, (3) becoming more personally responsible. Before we can become more responsible, we must increase our ability to respond. As we persevere in an open exploration and search for the truth regarding moral and ethical issues, we will feel more empowered and have more hope in the future.
The fourth goal in ethics education is (4) how criminal justice is engaged in a process of coercion. Criminal justice is about forcing people to do things they do not want to do. Having the authority to be coercive, and the discretionary nature of such authority, creates the potential for corruption and abuse.
The fifth goal of our exploration concerns what Parker Palmer refers to as
(5) developing whole sight. Whole sight creates a vision where our minds and
hearts, thinking and feeling, work together for the common good as we explore
the ethical and moral issues we as individuals and as members of a community
Unit 3 - Theories of Moral Development. Describe the theories of utilitarianism and deontology.Unit Overview: Reading Assignment: Utilitarian and Deontological Approaches to Criminal Justice Ethics By Jeffrey Gold
Interest in professional ethics has grown steadily over the past 10 to 15 years. Higher education programs in criminology and criminal justice have largely neglected the systematic study of ethics. Even though many of the ethical issues that arise in criminal justice are common to other professions, there are other issues specifically tailored to criminology and criminal justice. The use of coercion force is a primary factor that distinguishes criminal justice from other professions.
Other factors also seem to distinguish the moral decisions of criminal justice agents from other professions. There are two distinct factors that account for this. First, criminal justice decisions are made on behalf of society as a whole, and second, the decisions made are not just incidentally, but are primarily, moral decisions. When the police officer decides to arrest someone, or when a judge gives a suspended sentence, the decisions are primarily moral ones.
Theories of justice address broad social issues including human rights, equality, and distribution of wealth. Justice is itself a branch of an even wider sphere, that of ethics. It is important that we view issues in criminal justice from the larger framework of ethics and morality. It would be a mistake to assume that criminal justice issues emerge outside of the larger social and ethical context of our culture.
This lesson explores the study of two major philosophical theories in the field of normative ethics. Normative ethics is the study of right and wrong. We ordinarily say lying, cheating, stealing, raping, and killing are wrong. The ethical theories would ask if all these things have something in common which makes them wrong. If so, what is that common characteristic? The ethical theorist wants to know if all morally right actions also have something in common. If such a common characteristic is found, it is held to be the ground or foundation or fundamental principle of ethics. There are two standard ethical theories that this lesson will examine in order to establish such a foundation.
Utilitarianism The first is utilitarianism. Utilitarianism is classified as a consequentialist ethical theory. In other words, we judge the morality of an action in terms of the consequences or results of that action. Cheating, stealing, and murder are all wrong because they produce bad or harmful consequences. Charity and benevolence are good because they produce something beneficial. The morality of an action is determined by the consequences of that action. Actions which are moral produce good consequences. Actions which are immoral produce bad consequences. Actions have consequences for many different people. According to John Stuart Mill, the fundamental good that all humans seek is happiness. Mill's view is that all people desire happiness and everything else they desire is either a part of happiness or a means to happiness. Happiness is identified with pleasure according to Mill.
Consequentialism holds that the morality of an action is determined by the consequences produced by the action. Why do we think that murder, rape, cheating, and lying are immoral? Because those actions cause pain to the victims and families of the victims. Why do we think charity and benevolence are righteous actions? Because they produce pleasure or happiness.
Since utilitarianism holds that we should produce happiness or pleasure, whose happiness or pleasure should be considered? The thief gets a certain amount of pleasure from a successful burglary. The utilitarian answer to this is that we should consider all parties influenced by the action, and calculate the pain and pleasure of everyone who is affected. If all the alternatives involve more pain than pleasure, the morally right action is the one which produces the least amount of pain. The greatest good for the greatest number creates the context for community. The proportionality of pain and pleasure must be judged in this context.
When calculating the amount of pleasure and pain produced by any action, many factors are relevant. First of all, we must consider the intensity or strength of the pleasure or pain. We must consider the duration of the pleasure or pain. In addition, we must consider the long-term consequences of an action. Finally, we must consider the probability or likelihood that our actions will produce the outcomes or consequences we intend.
To briefly summarize, the ethical theorist is interested in discovering the basic, fundamental principle of morality, a foundation upon which all moral judgments rest. The utilitarian claims to have found such a principle and identifies it as the greatest happiness principle. The entire criminal justice system can be justified on utilitarian grounds. A criminal justice system is instituted in order to lower the amount of crime, thereby lowering the amount of pain produced by crime.
Some people say that a police officer has a duty to issue a ticket regardless of the consequences. This leads us to our new moral theory: deontological ethics. Deontology is the study of duty. Deontologists have argued that human beings sometimes have a duty to perform certain actions regardless of the consequences. Police officers have a duty to issue tickets even when it does not produce the greatest good for the greatest number.
The most famous deontologist is Immanuel Kant. Kant believed that the consequentialist theory missed something crucial to ethics by neglecting the concept of duty and also a more basic morality, a good will or the intention to do what is right. In other words, the key to morality is human will or intention, not consequences. However, Kant draws a distinction between actions that are merely in accordance with duty and actions which are done for the sake of duty. He holds that only actions that are done for the sake of duty have moral worth.
Kant calls the fundamental principle of morality "the categorical imperative." It tells us what we ought to do or what we should do. The categorical imperative is unhypothetical, no "ifs" whatsoever. Just do it! You ought to behave morally, period. The categorical imperative commands absolutely and unconditionally.
What is the categorical imperative? We will focus on two formulations. The first focuses on a basic concept of ethics called "universalizability." The basic idea of universalizability is that for my action to be morally justified, I must be able to see that anyone in relatively similar circumstances would act in the same way. Morality involves fairness or equality - a willingness to treat everyone the same way. Kant's idea is that you should do only what you are willing to permit anyone else to do.
The next formulation focuses on the fact that human beings have intrinsic value (that is, value in and of themselves). Human beings should always be treated with reverence, and never treated as mere things. When we treat someone as a thing, object, or tool, it is the classic case of using someone as a means to our own end. Kant speaks of human beings as "something whose existence has in itself an absolute value."
To summarize, let us contrast deontological ethics with utilitarianism ethics. Utilitarianism is a consequentialist moral theory. We must weigh the positive results of our actions against the negative results in deciding what to do. Deontology is the study of duty. The deontologist believes they key to morality is human will or intention, not consequences. This lesson attempts to explain how the two theories, and others mentioned in the text, approach and think about ethical issues in criminal justice.
Justice and Duty
Treating people as ends and producing the greatest amount of happiness both seem to be credible guides to the moral life. Nonetheless, both theories seem to have trouble with a certain range of cases. Utilitarianism seems to have difficulty with cases of injustice, and deontology seems to have no way to handle cases of conflicting duties. We need to explore the weaker points of both theories and propose an ethic to handle their deficits.
According to utilitarianism, an action is moral when it produces the greatest amount of happiness for the greatest number of people. A problem arises when the greatest happiness is achieved at the expense of a few. If we were to follow the utilitarian calculus, the suffering of a few, even intense suffering, would be outweighed by the pleasure of a large enough majority. Slavery and oppression are wrong regardless of the amount of pleasure experienced by the oppressing class. It is always wrong to treat someone as a mere means to one's own ends. It is simply unjust to mistreat anyone in order to benefit oneself or others.
Deontology also has problems. Kant speaks extensively of duty. However, he seems to have no way to deal with cases of conflicting duties. Therefore, it appears that Kant's theory is weak where Mills is strong and vice versa. The utilitarian calculus gives us a method of determining what to do in cases of conflicting duties. An action ought to be done in a situation if, and only if: (1) doing the action (a) treats as mere means as few people as possible in the situation, and (b) treats as ends as many people as is consistent with (a), and (2) doing the action in the situation brings about as much overall happiness as is consistent with (1). This integrated approach avoids the problem of enslaving a few because such an act would violate point (1). It also avoids the problem of conflicting duties because point (2) provides a way of deciding what to do when we are faced with a conflict of duties.
Unit 4 - Principles of Justice and the Law. Explore the relationship between justice and law.Unit Overview: Reading Assignment: Deception by Police By Jerome H. Skolnick
The ideal of law and order implies that those convicted of crimes will be legally guilty. Yet for every ideal there seems to be a practical challenge. Deception is a problem concerning law enforcement officials. Deception is difficult to control in police matters, thus long-term measures must be prescribed and implemented in order to ensure control.
Normative Context of Detecting
Detecting occurs in the context of flexible moral constraints resulting from a tradition of due process of law. The social organization of police develop their own moral norms. For example, the detective may engage in deception to establish grounds for convicting and punishing offenders. The criminal justice system often supports police deception in the detecting process. The police subculture permits and sometimes encourages deception of courts, prosecutors, defense attorneys, and defendants - but rarely, if ever, allows for deception of a fellow officer. Norms regarding deception, written and implied, are a significant part of police work.
Stages of Detecting and Deception
Deception occurs at three stages of the detecting process: investigation, interrogation, and testimony. Deception is most acceptable to police, as it is to the courts, at the investigation stage. It is less acceptable during interrogation, and least acceptable in the testimonial or courtroom stage.
Courtroom testimony is given under oath and is supposed to be the truth, the whole truth and nothing but the truth. Although police freely admit to deceiving suspects and defendants, they do not admit to perjury. The police officer may lie because lying becomes a routine way of managing legal difficulties. He or she may lie to protect fellow officers or because he or she views as unfair the limitations the courts have placed on the capacity to deal with criminals. Moreover, the law permits the officer to be less than candid at the investigative stage, when he or she is not entirely convinced that the suspect is a criminal, but forbids lying about procedures at the testimonial stage, when the police officer is certain of the guilt of the accused.
In the investigative stage police are permitted to engage in trickery and deception and are trained to do so by the police organization. The distinction between appropriate and inappropriate deception in such enforcement patterns as undercover activity is the line between so-called entrapment and acceptable police conduct. Police are permitted to engage in deceptive practices provided that the deception catches a wolf rather than a lamb. In other words, there is not much concern about apprehending a guilty person through deceptive means as long as the suspect does not turn out to be innocent. The Supreme Court has ruled that without undercover activity many crimes, especially victimless crimes, could not otherwise be detected. Judicial acceptance of deception in the investigative process enhances moral acceptance of deception by detectives in the interrogatory and testimonial stages of criminal investigation, increasing the probability of its occurrence.
The line between custody and pre-custody is unclear, as is the line between conversation and interrogation. The Miranda ruling sought to resolve in-custody interrogation problems. The court has ruled the government has a heavy burden to prove that waiver of such rights (i.e., the right against self-incrimination and the right to counsel) was made voluntarily, knowingly, and intelligently. In the past, beatings, torture, and the "third degree" were used to gain confessions from suspects. The Miranda ruling sought to end this. Although Miranda did lead to reforms, officers are told by manuals that the principal psychological factor contributing to a successful interrogation is privacy, or being alone with the suspect. Officers are instructed to minimize the moral and legal seriousness of the offense, to cast blame on the victim or on society. Hence, deception and the inherent coercion of custody are closely related in modern interrogation practices. Inbau and Reid advocated a "benchmark test" that interrogation practices are permissible as long as they are not apt to make an innocent person confess.
The polygraph is a device which measures changes in the body in response to questioning by the police. The polygraph is a device which can be used to gain a confession. The ethical problem is even more complicated because some officers who employ the polygraph actually believe it detects lies, while others use it primarily as a technique of psychological intimidation.
Police are allowed considerable flexibility by the courts regarding deception. This latitude of flexibility is more prevalent in the investigation and interrogatory stages and less acceptable in the testimonial stage. Deception usually occurs in the interest of obtaining the truth. The end goal of truth often justifies for the modern detective different forms of lying and deception. Thus, the detective measures the cost of lying against the benefits to the crime victim, the general public, and the personal satisfaction of closing the case. Although police are not permitted to coerce a suspect physically, they may subject suspects to psychological coercion provided the suspect consents to being interrogated. Practically speaking, it is almost impossible to enforce consensual crime statutes - bribery, drug dealing, and prostitution - without employing deception. The law can be very inconsistent in dealing with police and police deception. This inconsistency can lead to police setting their own norms and beginning to operate by their own rules. Sometimes those rules include lying whenever it seems justified by the desired end result.
Unit Overview: Learning Police Ethics By Lawrence Sherman
Unit 5 - Ethics and Law Enforcement. Analyze the role of law enforcement in a democracy, including the use of authority, power, force, and persuasion.
The two ways to learn police ethics are: (1) learning on the job under pressure; and (2) learning police ethics in an environment free from such pressures. The second way can free new police officers from pressures and opinions involving co-workers. This second, less common way of learning police ethics also allows the police officer to be more objective and have a more clear and open mind.
Learning New Jobs
Every new job starts with a learning process called socialization. The socialization process serves to encourage "rookies" to adopt and adapt to the rules, values, and attitudes of veteran officers. In many instances, informal rules and attitudes conflict with the formal or official rules and attitudes that the general society expects police officers to adhere to. Such a dilemma puts a rookie in the middle and poses the question: Which set of rules should I follow?
Police officers often face much more difficult dilemmas than persons in other professions. They may be encouraged to steal very early in their career or perjure themselves to make sure that an arrest leads to conviction. They may also be pressured to lie in a disciplinary hearing to protect themselves or their colleagues. Of course, if a rookie joins an ethical police department he or she will face much less pressure in these areas of concern. Regardless of the situation a rookie faces, reactions to the learning process can be described as his or her moral career - how he or she change in terms of morality and the ethics of behavior. The police officer's moral career is closely connected to the occupational career which addresses the stages of growth and development in becoming a police officer.
Becoming a Police Officer
The four major stages or phases in the career of any person joining an occupation are:
1. The person's choice of occupation.
2. The introduction of that person to the occupation.
3. The person's first encounter with doing the occupation's work.
4. The metamorphosis to becoming a full-fledged member of the occupation.
The three aspects of the choice to become a police officer are:
1. The kind of person who makes the choice.
2. The reason the choice is made and the motivations for doing police work.
3. The methods people most use as police officers.
It seems that police work attracts the sons and daughters of successful tradespeople, civil servants, and especially police. A reasonable salary relative to educational requirements, job security, and the prestige of police work may represent an improvement over their parents' position. Police applicants often perceive police work as an exciting adventure, and a chance to make a positive difference in their communities. Since the 1980s, the selection process has begun to be highly selective and, as a result, successful applicants may often feel they have been included in an elite group of highly qualified people with very high levels of integrity.
The rookie's notion of high ideals about police work may not last long. New officers are quickly introduced to folklore that emphasizes how things cannot be done "by the book" and how it is often necessary to "bend the rules." Police typically use "war stories" to communicate the history and values of the department. The content of this method makes a deep impression on trainees. The war story also introduces the ethics of police work as being different from what the public, the law, or the press might expect from police officers.
When confronted with real police work, the rookie experiences a kind of "reality shock." The new police officer quickly becomes aware that he or she is part of a minority group by simply putting on the uniform. Rookies often find themselves caught between unreasonable citizen demands and the job they have to do. Over time, police officers can become cynical and begin to see the public as the enemy. The rookie may eventually come to blame the public, especially those persons who live in poor neighborhoods, for having problems and for taking advantage of social programs, such as welfare.
The result of encounters such as those faced with the public can encourage a change, a metamorphosis in the rookie's self-conception as a "cop". Police officers tend to become dependent upon other police for survival and support. Some assumptions that new police officers come to accept are (1) loyalty to colleagues is essential for survival, (2) most of the public is the enemy, and (3) police administrators are not to be trusted.
By the time the metamorphosis has been completed, most of these new values have been learned by the new officers.
The Police Officer's Moral Career
The four major aspects of moral careers in general that are directly relevant to police officers are:
1. Contingencies the officer confronts.
2. Moral experiences undergone in confronting these contingencies.
3. Apologia; the explanation for changing ethical principles.
4. Stages of moral change.
Contingencies which shape and influence the moral careers of police officers include all social pressures officers have to face to behave one way rather than another. While contingencies alone do not shape officer behavior, the role of a contingency is to push the officer in one direction or the other. The officer must choose to accept or reject various contingencies. Some contingencies will encourage ethical behavior while others will encourage unethical actions.
The moral experience is a major crossroads point. The moral experience can be an agonizing decision about which values to follow or not to follow. Contingencies always play a significant role in moral experiences regarding what the officer will choose to do in a given situation. One choice is to go along with the unethical or corrupt behavior and do nothing and another is to try to escape from the moral dilemma. A third option is to choose to leave police work altogether, and a final option would be to try to fight against the corrupt or unethical practice. Not all moral experiences are prompted by criminal acts. For example, racist jokes or language may also prompt a moral experience.
In an attempt to resolve feelings of conflict between what they think they should have done and what they actually did, many police officers invent or adopt an acceptable explanation for their behavior, called an apologia. Regardless of particular police conduct, officers are likely to find some situationally-justified reasons for doing what they did. The most important and often damaging effect of apologia is that it can allow officers to become comfortable with, and adjusted to, a certain moral standard of behavior. The progression from one apologia to another makes up the stages of moral change in a police officer.
Officers either progress, become stagnate, or regress in the moral stages of their career. Some police officers evolve into more serious stages of unethical conduct as they become more experienced. The movement from one stage to another makes up an officer's moral career in police work. Ethically speaking, police officers become better, worse, or stay the same.
Conclusion: Learning Ethics Differently
Morality is not black and white; it has many gray areas. Police officers, just as civilians, learn ethics and morality in different ways. Police issues regarding ethics are not always clear cut. There is not a list of "do's and don'ts" that the officer simply follows. Learning ethics can be a complex and perplexing process.
Unit 6 - Law Enforcement Practices. Explain the issues involved in graft, gratuities, deception, excessive force, and loyalty.Unit Overview: Ethical Dilemmas in Police Work
John Kleinig suggests that police ethics is particularly relevant because of the numbers of issues such as the discretionary nature of policing, police authority, crisis situations, temptations and peer pressure. The goals of police training typically involve all aspects of how to perform tasks related to the job. Such tasks include communication skills, multicultural understanding, and training in child abuse and the "battered woman syndrome."
Ethical dilemmas for police officers can be extracted from newspapers, textbooks, and articles. The literature identifies a variety of ethical dilemmas, including the following: gratuities, corruption, bribery, whistle blowing and loyalty, undercover tactics, the use of deception, discretion, sleeping on duty, sex on duty, use of deadly force, and police brutality. One might assume that these issues are the most problematic ethical issues in police work since they are the ones primarily addressed in the literature. However, officers themselves may not perceive these issues as the most problematic.
Barker found that officers believed that sleeping on duty and engaging in sex while on duty were the most frequent forms of misconduct, and they were also rated as relatively less serious than other forms of unethical behavior.
In the study, police officers ranked offenses from most serious to least serious: drinking on duty, police perjury, sleeping, sex on duty, and brutality.
There are several police ethics textbook authors who also teach ethics to police officers. They use ethical dilemmas and problem situations turned in by class members as the basis for half of the course content. First, the instructor defined the term ethical dilemma as a situation where: (1) the officer did not know what was the right choice of action; (2) the course of action he/she considered right was difficult to do; or (3) what was identified as the wrong course of action was very tempting. The officers in each case were asked to write down a difficult ethical dilemma or problem they had faced. It is not clear whether officers reported ethical dilemmas according to frequency or seriousness or for some other reason.
Another exercise was to have officers write down their own code of ethics in an abbreviated and simple manner. Police officers identified five common elements: legality (enforcing and upholding the law); service (protecting and serving the public); honesty and integrity; loyalty; and finally the golden rule (respect for others). The five elements that officers viewed as important to a code of ethics were also tied to the dilemmas they identified.
Legality can be discussed in terms of discretion. Service is relevant to duty issues. Honesty is related to whistle blowing and loyalty issues as well as temptations to take money from a crime scene or accepting a bribe.
Finally, the golden rule is related to incidents where it is difficult to keep one's temper. These five elements comprise four categories of dilemmas: discretion (legality), duty (service), honesty, and loyalty.
Discretion can be identified as the ability and power to make a choice of one kind or another. All ethical dilemmas involve making choices. Examples of police discretion include whether to arrest, whether to ticket, and what to do when faced with an altercation.
Another category of discretion involved situations where no clear policy may be apparent, such as in family disputes. Here, the officer may want to do the right thing, but may not be sure what the right thing is. For most officer in such a case, it may not necessarily be a question of doing something wrong but rather of finding the best solution to a difficult problem.
The last problem situation is the single most frequent type of instance identified in this category. Typically, boyfriends wanted girlfriends removed, girlfriends wanted boyfriends removed, parents wanted children removed, and husband wanted wives removed or vice versa. Police officers often expressed frustration in having to deal with what are essentially difficult, often unsolvable, interpersonal problems.
Duty involves incidents where there is a real question concerning what exactly is the duty of a police officer in a certain situation. Duty issues may also involve situations where the officer knows that the job requires a particular action, but feels that the action is either inconvenient or a waste of time. Some police officers believe they have a duty or obligation to help the poor and homeless find shelter; other officers see their job as being free from such responsibilities.
The other type of duty dilemma is more straightforward. Here, the officer knows there is a specific duty to perform. An example would be driving by the scene of an accident or avoiding it all together because it occurs at the end of a shift.
Another duty-related issue arose concerning the risk of contracting AIDS due to possible contact with injured suspects or victims. Finally, there were other miscellaneous duty issues, all under the general idea of using regular work hours to conduct personal business.
In discussing duty issues, participants learned that not all police officers view duty in the same way. It is necessary to apply an ethical framework analysis that helps officers understand that while their position may be justifiable to some extent and legal, it may still be unethical.
Under this topic, officers submitted dilemmas involving self-protection or enrichment, honesty versus the need to make an arrest, and bribery. Many officers reported situations where they were confronted with temptations or money or other goods, typically "found" at burglary scenes. While many officers would feel that it was a minor indiscretion at best to keep $20, at some point as the amount of the "found" money increased, individual officers perceived keeping it as being unethical.
Another type of dilemma involved officers trying to cover up their own wrongdoing by lying or not coming forward when they committed minor unethical or illegal acts.
Police officers also raised the issue of whether to tell the truth and lose (or risk losing) an arrest or whether to misrepresent facts to make the arrest.
Bribery is also a form of dishonesty that can be discussed under this category. It can be defined as a reward for doing something illegal or for not doing something that is required, such as taking money in exchange for not issuing a ticket.
In problem situations involving loyalty, "whistle blowing" forced officers to decide what to do when faced with the wrongdoing of other police officers. Officers' experiences ran the gamut from seeing relatively minor offenses to observing very serious violations. An example here would be whether or not to report a fellow officer who used what was considered to be excessive force.
Covering up for another officer today is more risky than ever because of the possibility of individual civil liability, and it may be that fewer officers are willing to draw the "blue curtain." Of course, reporting a fellow officer because he or she did something wrong that only the reporting officer knows about and telling the truth in an official investigation in order to avoid being disciplined represent very different types of ethical decision making.
Police officers often feel that there is nothing wrong with accepting gratuities. Discussion involving the ethics of gratuities can be unpopular with police participants, especially if the discussion takes place after lunch and many officers in the classroom have just taken advantage of half-price or free meals at a local restaurant.
Now That We Have Them, What Do We Do With Them?
For most police officers, decisions concerning whether to enforce a warrant or ticket, or whether to leave early from an assignment, are not perceived the same as police brutality or the use of deception.
Any class on police ethics needs to have a philosophical basis for it to be more than simply "airing" opinions. A first point of analysis might be to determine at what level there is disagreement. One might ask the following questions" What does the law require, or what do personal ethics require?
If there is no applicable law, and departmental policy is silent or ambiguous, the discussion can be directed to an ethical analysis of possible solutions. Discussion can be directed in at least two ways: First, participants can be divided into groups and have group members determine a solution which is justified by an ethical framework. Another approach is to ask the class as a whole what is the best solution to the dilemma and then analyze that solution using an ethical framework.
Some decisions have little or no ethical rationale supporting them. In addition, some rationales for actions can only be described as primarily self-serving. Officers are seldom forced to present ethical rationales for their decisions. Some do not like the experience.
Unit Overview: Pure Legal Advocates and Moral Agents:
Unit 7 - Ethics and Legal Professionals. Analyze variety of ethical issues faced by defense and prosecuting attorneys.
Can a good lawyer in an adversary system of criminal justice be a good person? "Good" may be taken to mean effective, or good may be viewed in its moral context to mean morally good. To be more specific, can an effective lawyer also be a morally good person? We must first better understand what me mean by a morally good person and an effective lawyer.
Morally Good Persons
A morally good person is someone who has developed morally desirable traits of character. Such a person would be inclined to act, think, and feel in certain ways that are morally desirable. What are some of the characteristics of a morally good person?
1. A morally good person is someone who is just and treats others in a similar or equal fashion. He or she is also respectful of other persons' legal and moral rights.
2. Being morally good would also require one to be truthful. A truthful person asserts only what he or she believes to be true. An untruthful person would intentionally deceive others regarding the truth.
3. A morally good person would also exhibit some degree of moral courage. Such a person would try to do the right thing if it would mean personally suffering some hardship.
4. The moral character of a person is often revealed through his or her monetary patterns and habits. For example, pimps, drug dealers, and thieves could be considered immoral in this context. The morally good person would develop morally respectable and responsible habits regarding money. One could also say that a morally good person would be liberal in this particular sense.
5. A morally good person would be a benevolent person. He or she would try to do good for others and try not to do harm. A morally good person's concern for the well-being of others would not be for some ulterior reason but rather for its own sake.
6. Trustworthiness would be characteristic of a morally good person. This is not to suggest that a person must never breach a trust if he or she is to be a morally good person. Criminals may also be loyal to each other, but that does not mean they are good.
7. A morally good person is one who does his or her own moral thinking and decision making. As a result, we can say that a morally good person possesses moral autonomy. Keeping these criteria of a morally good person in mind, we will examine moral issues concerning lawyers.
The Pure Legal Advocate Concept
The idea of being a lawyer may be defined in terms of "function" or role that a lawyer performs. A good lawyer may be defined as a person who performs the function or role of a lawyer well.
One way to define what a lawyer is has to do with performing as the client's legal advocate. Such a lawyer might be considered a pure legal advocate. An advocate focuses on one person - his or her client. The duty of the pure legal advocate is to win the case for the client by all means at his or her disposal, including difficulties to other persons and to him or herself.
Adhering to the pure legal advocate concept, a good lawyer tries to win cases by all legal means. This concept supposes that a good lawyer is simply an effective legal advocate; it is easy to suppose that the necessary and sufficient mark of an effective legal advocate is the tendency to win cases legally. A good lawyer, then, is one who is a skilled legal technician who can manipulate the rules of law to the advantage of his client's legal interests.
Such a lawyer may feel required to do certain things for his or her client that would ordinarily be regarded as being morally questionable or objectionable. For example, a defense attorney in a rape case may aggressively cross-examine the victim, whom he or she knows is telling the truth, about her sex life in order to cast doubt upon her truthfulness.
Moral Shortcomings of the Pure Legal Advocate
1 It would seem that a lawyer who is a pure legal advocate will, to some extent, fall short of being a just person. For, although the pure legal advocate does not violate the principle of treating relevantly similar cases similarly when giving special preference to a client (being a client would appear to be a relevant dissimilarity for the purposes of the adversary system), such a lawyer does, indeed, work injustices. Such a lawyer may find it necessary to violate the moral rights of individuals while staying within legal limits in order to advance the legal interests of his or her client.
2 The pure legal advocate would not appear to meet the standard of truthfulness. An obligation to being untruthful arises when it can legally contribute toward winning the case. For example, such a lawyer might remain silent when he or she knows that the client has, under oath, provided false testimony.
3 The pure legal advocate would not appear to support moral courage. The personal moral convictions of such a lawyer would seem irrelevant to his or her function. If the advocate does his or her job effectively, his or her moral perspective might prove to be problematic and counterproductive.
4 The pure legal advocate concept does not support liberality. Since pure legal advocates are not concerned with the moral character of clients or the reasons clients hire them, they can more easily take money from dishonest persons. Such lawyers can be hired, for enough money, to defend anyone regardless of what they did or are responsible for.
5 The pure legal advocate does not need to be benevolent. The advocate must become accustomed to harming others without having strong feelings of guilt, sorrow, or regret. Such feelings could interfere with serving the needs of his or her client.
6 The pure legal advocate would exhibit trustworthiness regarding his or her client, ignoring any higher moral purpose or obligation.
7 Moral autonomy would not be an issue with a pure legal advocate. His or her own moral judgment would be beside the point. If morality were relevant, it would be at the level of the judge, but of no relevance to the lawyer's function.
The Moral Agent Concept
The pure legal advocate who is committed to such a narrow and restricted role will be inclined to become an unjust, rather than a just, lawyer. Such a lawyer, unmotivated by a moral perspective, will not be morally courageous.
As a result, the advocate will fall below the minimum criteria of a morally good person. Fortunately, there is another concept of a lawyer which, while being an adversary for his or her client, strives to be more than a pure legal advocate. Such a lawyer does not hide his or her humanity by trying to be a legal technician.
The moral agent concept suggests that a good lawyer is effective in morally as well as legally advocating his client's cause.
Elliott Cohen suggests the following formulations to describe a lawyer who is
a morally good person - one who is an effective legal advocate and a moral
A. Treat others as ends in themselves and not as mere means to winning cases.
B. Treat clients and other professional relations who are relatively similar in a similar fashion.
C. Do not deliberately engage in behavior likely to deceive the court as to the truth.
D. Be willing, if necessary, to make reasonable personal sacrifices - of time, money, popularity, and so on - for what you justifiably believe to be a morally good cause.
E. Do not give money to, or accept money from, clients for wrongful purposes or in wrongful amounts. F. Avoid harming others in the process of representing your client.
G. Be loyal to your client and do not betray his or her confidence.
H. Make your own moral decisions to the best of your ability and act consistently upon them.
The Moral Agent Concept and the ABA Code of Professional Responsibility
If the legal profession is defined in the context of the moral agent, then the previous eight principles could constitute a general set of "natural laws" of legal practice.
The following is a listing of some, although not all, of the corollaries of the general principles as they occur in the ABA (American Bar Association) Code for purposes of comparison: individual justice, distributive justice, truthfulness, moral courage, liberality, non malevolence, and trustworthiness.
It may appear that the moral agent concept is well established in the ABA Code. This may not be the case. For example, the principle of moral autonomy is not as visible in the Code as some would think it should be.
Some of the principles are identified as ethical considerations (EC) or guiding principles, and include moral courage and non malevolence. Other principles compromise disciplinary rules (DR) which, if violated, can result in disciplinary actions. These principles include individual justice, distributive justice, truthfulness, liberality, and trustworthiness.
The Moral Agent Concept and the ABA Model Rules of Professional Conduct
The ABA has adopted its revised Model Rules of Professional Conduct. The Model Rules of Professional Conduct, unlike the Code, do not distinguish between ethical considerations and disciplinary rules. Instead, all the new rules are taken to be obligatory. Comments on the rules explain and offer rationales for the rules.
It is believed that the Model Rules represent an important stage of evolution toward the moral agent concept. Cohen has already discussed the pure legal advocate concept as an inadequate alternative to the moral agent concept that can have negative effects upon the moral character of lawyers as well as be destructive to society in general.
The Moral Agent Concept: Some Arguments Against it Answered
Some argue that if lawyers are given the autonomy to break confidences with clients in those instances where they believe more serious moral principles are at stake, then the confidentiality obligation lawyers owe their clients will be destroyed. As a result, clients will not continue to confide in their lawyers and may withhold information necessary to their defense as other legal concerns.
The argument in question assumes that confidentiality will be destroyed if lawyers are allowed to take exception to such confidentiality in serious moral conflicts. However, just because exceptions may be taken in extreme circumstances does not mean a general loss of the confidentiality obligation between lawyer and client.
If moral autonomy results in some clients, even some innocent ones, omitting information important to their defense, it does not necessarily follow that the problem will be serious enough to severely compromise the adversary system. For example, Bentham suggests that one such consequence would be "that a guilty person will not in general be able to derive quite so much assistance from his law advisor, in the way of concerting a false defense, as he may do at present." It is more realistic to assume that no matter what Code is in place, there will always be some lawyer that will take a case no matter what the circumstances are.
Cohen also does not believe that there is any substantial support for the idea that if lawyers accept the moral agent concept with its insistence upon lawyers' moral autonomy, the lawyer will come to serve as judge and jury. It is important to remember that the autonomous lawyer is still his or her client's advocate; it is his or her job to defend the client to the best of his or her ability.
In conclusion, we return to the question of whether a good lawyer in an adversary system can be a morally good person. If the legal profession is going to move toward the moral agent concept, some changes will have to be made in its understanding of what a lawyer is and should be. Cohen has suggested, for example, some ways in which the Code of Professional Responsibility could be revised in this direction. The Model Rules of Professional Conduct, in fact, seems to be moving in this direction.
It is suggested that it will not only require revising the Code but that the concept will also need to be internalized through appropriate education. Law schools and pre-law programs will need to cultivate an understanding of, and sensitivity to, moral problems for prospective lawyers.
Unit 8 - The Ethics of
Prosecution. Review the role of discretion in the legal system.
Unit Overview: Why Prosecutors Misbehave
By Bennett L. Gershman
The duties of a prosecuting attorney were established more than 50 years ago. The primary interest of the prosecutor is not only to win the case, but that justice shall be done. In a very definite sense, the prosecutor is the servant of the law.
Prosecutorial misconduct has been reported as far back as 1897. Much contemporary misconduct occurs in the courtroom, but the terms "courtroom" or "forensic" misconduct have never been precisely or adequately defined. Courtroom misconduct has been defined as types of misconduct that involve efforts to influence or sway the jury through various types of improper or inadmissible evidence. Forensic misconduct has been explained as any effort by the prosecutor to keep the jury from making its determination or guilt or innocence by considering the legally admitted evidence in the manner prescribed by law. Prosecutorial misconduct can also occur without the use of inadmissible evidence.
Why Misconduct Occurs
The reason courtroom misconduct occurs is that it works. There is a strong philosophical argument that prosecutor misconduct undermines and corrupts the judicial system.
Several studies have shown the importance and the effects of oral advocacy in the courtroom. Most prosecutors would agree that the opening statement is very crucial. A University of Kansas study found that if the prosecutor were to present a particularly strong opening argument, the jury would be inclined to favor the prosecution throughout the trial.
Alternatively, if the prosecutor were to provide a weak opening statement, followed by a strong opening statement by the defense, then, according to the study, the jury would favor the defense during the trial. Prosecutors thus attempt to use this strategy to their advantage, even if the circumstances of the case do not call for length or dramatic opening statements.
In a University of North Caroling study, it was discovered that the more arguments counsel raises with respect to the different substantive arguments offered, the more the jury will believe in the respective party's case. The study also found that there is not necessarily a correlation between the amount of objective information offered by counsel and the persuasiveness of the presentation. This study clearly points out the advantage of raising as many issues at trial as possible. For the prosecutor, the two studies together would support "action packed" opening remarks and dictate the same strategy for the closing arguments.
Similar advantages or incentives can be seen with respect to the problem of controlling evidence to which the jury may have access. It is common knowledge that during a trial statements are frequently made by attorneys or witnesses that may not be admissible as evidence and that are stricken from the record. Most trial evidence is often considered by jurors in reaching a verdict. It appears that inadmissible evidence has its most prejudicial impact when there is little other available evidence upon which the jury can base a decision.
Faced with a difficult case, a prosecutor might be tempted to influence the jury by focusing on an issue that might be highly prejudicial. A prosecutor who adopts an unethical strategy and improperly allows jurors to hear inadmissible evidence or testimony may jeopardize a possible conviction.
Since the prosecutor represents the government, jurors are often more likely to believe them. Prosecutors are typically perceived as the "good guys" of the legal system. As a result, they may often be tempted to use this advantage in an inappropriate way in the courtroom.
Why Misconduct Continues
One of the most fundamental reasons for the continued presence of prosecutorial misconduct is the "harmless error doctrine". It has been written that the practical objective of tests of harmless error is to more effectively utilize judicial resources by enabling appellate courts to correct prejudicial error without becoming bogged down in harmless error. However, what constitutes harmless error in one case may be reversible in another. The problem is that the stronger the prosecutor's case, the more misconduct he or she can commit without being reversed. It is clear that, by deciding as they do, courts often provide little discouragement to a prosecutor who believes that he or she does not have to be as careful about his or her conduct when he or she has a strong case.
In some instances, the court has refused to review certain potentially inflammatory statements made by the prosecutor because of the failure of the defense to object. Such a response encourages prosecutors to make remarks that they know are objectionable in the hope that defense counsel will not object.
Perhaps the ultimate reason prosecutorial misconduct persists is that prosecutors are not personally liable for their misconduct. In initiating a prosecution and in presenting a case, the prosecutor is immune from a civil suit for damages. There is a need for government officials, especially prosecutors, to have some level of immunity. However, allowing prosecutors to be completely shielded from civil liability in the event of misconduct provides little deterrent to courtroom misconduct.
It seems clear that prosecutorial misconduct exists. For the prosecutor, the temptation to violate acceptable ethical limits must often seem irresistible because of the distinct advantages that such misconduct creates in assisting the prosecutor to win a case. It will not be until the courts decide to take a stricter, more consistent approach to this problem that advances will be made in an effort to solve it. One solution might be to impose civil liability on the prosecutor who engages in misconduct with malice. This may not completely solve the problem, but it may be a step in the right direction.
Unit 9 - Ethics for Correctional Professionals. Compare and contrast the types of discretionary misconduct and give examples of each.
Unit Overview: Keeping an Eye on the Keeper:
Prison Corruption and its Control
By Bernard J. McCarthy
Prison corruption has been a problem throughout the history of corrections. Although correctional systems are relatively closed to public view, reports of corrupt practices occurring behind prison walls have, on occasion, reached the general public. In recent years, major prison scandals have been reported throughout the United States. Despite this, we know very little regarding the forms, functions, and impact of corrupt practices in corrections. This deficiency is related to a larger problem in corrections: the failure to examine the impact of staff behavior on the correctional process.
Corrupt practices in prisons range from acts of theft and pilferage to large-scale criminal operations such as drug trafficking. These forms of correctional corruption may involve inmates and employees inside and the general community outside of prison.
The impact of such practices is substantial. Corrupt correctional practices undermine respect for the justice system by both offenders and the general public. Corrupt practices may also lead to a breakdown in the control structure of the correctional organization and to the demoralization of correctional workers in institutions and the community.
The incentives for corrupt behavior are many. From the offender's point of view, they have everything to gain and very little to lose. Corrupt practices also represent a lucrative way for employees to supplement their income.
Defining Corruption in a Correctional Environment
The idea or concept of correctional corruption has often been used to describe a general weakening of the formal goals of the correctional process. Corruption is defined more specifically as the "intentional violation of organizational norms" by employees for personal gain, usually of a material nature. This definition is based in part on a review of corruption literature, particularly in the area of police corruption. Thus, prison corruption occurs when an employee violates organizational rules for his or her own personal material gain.
Certain conditions need to be satisfied before an act can be defined as corrupt. First, the action must involve individuals who are employees. Second, the offense must violate the formal rules of the organization or agency. Third, the offense must involve an employee receiving some specific, personal material gain for his or her misconduct. The importance of a standard definition of corruption is critical in building an information base regarding corrupt practices in corrections and for comparative purposes with other areas of the criminal justice system.
Types of Prison Corruption
Review of prison internal affairs case files identified several types of corrupt conduct: theft, trafficking in contraband, embezzlement, misuse of authority, and a residual or miscellaneous category. Theft generally involved reports of items reported as stolen from inmates and staff members. Trafficking in contraband involved staff members conspiring with inmates and civilians to smuggle contraband, such as drugs or money, into or out of correctional facilities. Acts of embezzlement were defined as converting state property for one's own use or advantage. This offense involved employees stealing money or materials from state accounts and from warehouses.
Misuse of authority involved the intentional misuse of discretion for personal material gain. This type of corruption is comprised of three basic offenses directed against inmates: the acceptance of gratuities or rewards from inmates for special consideration in obtaining normal prison privileges; the acceptance of gratuities for help in obtaining or protecting illicit prison activities (e.g., gambling); and the mistreatment or extortion of inmates by staff for personal material gain.
The Role of Discretion
The different types of corruption involve the misuse or abuse of discretion by correctional staff members. Corruption occurs when staff misuse discretionary power for personal gain. Three forms of discretionary misconduct are misfeasance, malfeasance, and nonfeasance.
Misfeasance refers to an improper action which an official may lawfully do. Offenses in this area include the acceptance of gratuities for special privileges or preferential treatment, the selective application of formal rewards and punishments to inmates for money, the sale of paroles or other types of releases, and the use of state resources or property for one's own personal gain.
Malfeasance refers to direct misconduct by a staff member, as opposed to the improper use of legitimate authority. Corrupt practices in this category include primarily criminal acts and include theft, embezzlement, trafficking in contraband and extortion.
Nonfeasance refers to the failure to live up to one's responsibilities or the omission of an act for which one is responsible. The two types of corrupt practices in this area are selectively ignoring inmate violations of institutional or organizational rules, and the failure to report or deter other employees who are involved in corrupt behavior.
Factors Associated With Corruption
Two factors which influence the degree of corruption experienced by a particular governmental agency are (1) the opportunities for corruption, and (2) the level of incentives to make use of those opportunities. A third factor involves politics. Correctional programs are influenced by the political process on all levels, particularly regarding the appointment of administrative staff and the allocation and distribution of resources.
The Role of Opportunities
Opportunities for corruption arise from the discretionary authority given by the legislature to correctional officials. In the prison environment, employees, particularly low-level ones, are responsible for monitoring and controlling virtually all inmate behavior and activities. These officials frequently make low-level discretionary decisions which reward and penalize behavior. These decisions affect the day-to-day existence experienced by inmates.
Special privileges in the form of extra television time, phone calls, job assignments, cell changes, and furloughs may be used to reward positive behavior. Punishments, in the form of withdrawal of privileges, transfers, or various forms of deprivation are used to control inmates.
The manner in which the staff apply these rewards and punishments have both short-term and long-term consequences for inmates. Individuals sentenced to prison experience various levels of deprivation, commonly referred to as pains of imprisonment. Such deprivation affects both the physical and psychological well-being of he inmates. The pains of imprisonment have been described by Sykes as the deprivation of liberty, goods and services, heterosexual relationships, autonomy, and security. In dealing with the "pains" associated with confinement, inmates attempt to soften the psychological and physical impact. One of the means they may utilize is to attempt to corrupt correctional employees as a way of improving the conditions of confinement.
Incentives for Corruption
The incentives for employees to engage in corrupt practices in an institutional setting are many. They may range from structural or organizational characteristics or prison management to individual or personal factors.
Three factors are primarily responsible for undermining the formal control structure of the prison: friendships with inmates, reciprocal relationships, and defaults. Corruption through friendship evolves from the close and constant contact that prisoners and guards share in their daily interactions. Corruption through reciprocity occurs in the sense that "you do something for me and I'll do something for you." Corruption through default occurs when staff members begin to rely on inmates to help them with their work, such as cell checks.
Defects in the prison organization's control apparatus lead staff members to develop informal means of control through the development of various accommodations with inmates. Correctional staff may provide certain inmates with forbidden goods and services that are restricted in return for their help. Power accommodation occurs when selected inmates are provided with access to restricted information, for example, the date and time of an impending shakedown. Status accommodations result when staff provide special deference to certain inmates.
Another factor which impacts on the problem of corruption is the type and quality of persons recruited to work in correctional facilities. Frequently the quality of manpower is uneven because of low pay and poor working conditions. Yet this trend seems to be reversing itself as the pay and working conditions continue to improve.
First, corruption is a regular and traditional feature of governmental processes. The problem of corruption can probably never be completely solved; yet, certain steps may be implemented to control or minimize the problem. First, in dealing with the problem it is necessary to develop an anti-corruption policy. This policy should define and explain what the agency means by corruption, specifying the penalties for it and explaining violating policies. Training should be provided to employees regarding the nature, causes, and impact of corrupt practices. Second, the correctional agency should develop a proactive mechanism to detect, investigate, and intervene with corrupt practices. Internal affairs and the use of routine and special audit procedures on a random basis can help ensure the proper expenditure of funds. Third, the correctional administrator should try to improve his or her management practices.
Management must also take affirmative steps toward reducing the opportunities and incentives for corruption. One way to accomplish this direction is to more effectively structure the use of discretion and make the visibility of low-level decisionmakers more public as well as more accountable. Internal reform should also include screening of employees in order to improve overall quality. Selection procedures should include psychological testing and formal pre-service training designed to screen out questionable or inappropriate employees.
A final recommendation involves the political environment. A correctional administrator should take steps to insulate their employees from pressures placed on them from external forces such as politics. By requiring merit selection and fairly administered promotion of employees, a correctional administrator reduces the impact of political interference.
In sum, controlling corruption requires a commitment by correctional administrators to improve and upgrade the general correctional environment, particularly the working conditions for staff, to protect employees from political pressures, and to replace the tendency toward complacency, as long as things are quiet, with a concern for accountability.
Final Examination: Your grade for the course will be weighted as follows: Written Assignments = 50%, Final Exam = 50%. In order to successfully complete the course you MUST complete the written assignments and, take the final examination. If you live within 50 miles of the campus, you MUST take the final examination on campus. You may contact the Learning Assistance Center at (562) 692-0921 x 4016 or 3169 to schedule taking the final exam. The Learning Assistance Center is located at the Police Academy which is on the main campus on Canyon Drive. If you live over 50 miles from the college the exam may be proctored at your location. Contact your instructor for details.
If you experience any difficulty or need any further clarification, contact the Online Coordinator, Carley Mitchell at firstname.lastname@example.org or in an emergency call him at (801) 953-6173.
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