THE ETHICS of PUNISHMENT and CORRECTIONS

1

Lecture Slides prepared by Mark Kellar to
Accompany
AJ 482/582 Kelly Cheeseman Dial

• THE ETHICS of PUNISHMENT and CORRECTIONS

2
PUNISHMENT

• The five essential elements of punishment
• Two people involved, the punisher and the one
  being punished
• The punisher inflicts harm on the one being
  punished
• The punisher is authorized by law to inflict the
  punishment
• The one being punished has been judged to be in
  violation of a criminal law
• The inflicted harm is meted out specifically as
  punishment for that violation of criminal law

3
TREATMENT

• In correctional terminology, treatment is
  anything used to induce behavioral change.
• The goals of treatment are
• elimination of dysfunctional or deviant behavior
• encouragement of productive, normal behavior

4
PUNISHMENT/TREATMENT

• Suggested guidelines for punishment
• Protection of individual liberty
• Minimal intrusion in criminals lives
• Justification of each intrusion
• Crime should be prevented according to the
  requirements of justice

5
PUNISHMENT and CORRECTIONS

• Rationales
• The social contract provides the rationale for
  punishment and corrections
• We avoid social chaos by giving the state the
  power to control us
• The state is limited in the amount of control it
  can exert over individuals
• For consistency with the social contract, the
  state should exert its power only to protect
• Any further interventions with civil liberties
  are unwarranted

6
PUNISHMENT and CORRECTIONS

• Correctional Goals
• Retribution
• Reform
• Incapacitation
• Deterrence
• Rehabilitation
• The two major justifications for punishment and
  treatment are retribution and prevention
• Can treatment and punishment occur
  simultaneously?
• Can a punishment system in which "just"
  punishment is relative and changes with time be
  ethical or moral?

7
PUNISHMENT and CORRECTIONS

• During the Enlightenment, criminals were seen as
  sinners with no ability to change their behavior
• Punishment and incapacitation were seen as the
  only logical ways to respond to crime
• Bentham and Beccaria saw criminals as rational
  beings with free will thus, they saw punishment
  as a deterrent
• The positivist school gave rise to the idea that
  all criminal acts were symptoms of an underlying
  disorder

8
PUNISHMENT and CORRECTIONS

• Treatment programs created in the last hundred
  years assume that offenders criminal activity
  can be reduced by
• treating psychological problems such as
  sociopathic or paranoid personalities
• addressing social problems such as alcoholism or
  addiction
• resolving more practical problems, such as
  chronic unemployment, with vocational training
  and job placement

9
PUNISHMENT and CORRECTIONS

• Retribution views punishment as an end in itself
• Members of society implicitly agree to society's
  rules and right to punish
• Retributive rationale requires punishing
  individual offenders because they deserve it

10
PUNISHMENT and CORRECTIONS

• Social contract theory says the state, not the
  victim's family, should execute a killer
• The criminal act distorts the balance and
  equality of social relationships
• Only punishment or similar deprivation can
  restore the balance that existed before the
  criminal act

11
PUNISHMENT and CORRECTIONS

• Bentham Criminal offenses deserve punishment
  that balances the pleasure or profit of the
  offense
• Neoclassicists Characteristics of the offender
  should influence the punishment decision
• In todays correctional climate
• Determinate sentencing focuses on the seriousness
  of the offense
• Indeterminate sentencing tailors the sentence to
  the individual offender
• Retributivists Balance is restored when
  offenders have suffered as much as their victims

12
PREVENTION

• Assumes that something should be done to the
  offender to prevent future criminal activity
• Preventive methods include
• Deterrence
• Incapacitation
• Treatment

13
DETERRENCE

• Specific Deterrence
• Preventing a particular offender from deciding to
  commit another offense
• Teaching through punishment
• General Deterrence
• Prevent others in general from deciding to engage
  in wrongful behavior
• Teaching by example

14
DETERRENCE

• Some say punishment does not deter because it is
  inconsistent, uncertain, and slow
• A deterrent effect would result if punishment was
  applied more consistently and with less delay
• If we know that a term of imprisonment will not
  deter an offender, can it be justified?
• Can we justify a prison term that is more than
  what is needed to deter one individual, on
  grounds that it will deter others?

15
INCAPACITATION

• Holding an offender until there is no risk of
  further crime
• Because incapacitation is predictive
• We might release an offender who commits further
  crimes
• We might not release an offender who would not
  commit further crimes

16
INCAPACITATION

• Selective incapacitation The policy of
  incarcerating career criminals for longer than
  others who commit similar offenses
• Effectively, we incarcerate career criminals not
  for their last offense, but to prevent future
  offenses
• Critics of three-strikes lawsa form of selective
  incapacitationchallenge
• Incarcerating offenders well past their
  crime-prone years
• The extraordinary expense of doing so

17
INCAPACITATION

• Some overestimate the amount of time an offender
  will serve in prison by failing to factor in good
  time, time served, and parole
• Some underestimate the amount of time an offender
  will serve in prison because states have
  drastically reduced use of parole and other forms
  of discretionary release

18
TREATMENT

• Treatment is considered beneficial for both
  society and the individual offender
• The control over the individual is just as great
  as with punishment
• Courts define treatment as that which
  constitutes accepted and standard practice and
  which could reasonably result in a cure
• Much of the treatment in the correctional
  environment is either implicitly or directly
  coerced
• No single program works for all offenders

19
PUNISHMENT

• The American criminal justice system has adopted
  prison as a standard form of punishment
• Imprisonment does not carry the physical pains of
  flogging or mutilation
• Imprisonment is painful because it involves
• banishment,
• condemnation,
• separation from loved ones,
• deprivation of freedom, and
• an assault on one's self-esteem
• Prisons are extremely expensive

20
PUNISHMENT

• The urge to react to harm with hostility is part
  of human nature thus, punishment is a natural
  law
• The principle of forfeiture When one intrudes
  on an innocent person's rights, one forfeits a
  proportional amount of one's own rights
• By causing harm to another, one forfeits the
  right to be free from punishment
• Punishment should not be used as a means to any
  other end but retribution

21
CAPITAL PUNISHMENT

• Cannot be corrected in the event of error
• A crime upsets the moral order, which can only be
  restored to balance by punishment equal to the
  seriousness of the offense
• Does failure to apply capital punishment
  differentially open the door to bias and misuse?
• The U.S. Supreme Court has ruled against
  executing the mentally ill, the retarded, and
  people under 18 when they committed their crime

22
CAPITAL PUNISHMENT

• Abolitionists emphasize the inherent worth and
  dignity of each individual
• Some view capital punishment as a cheapening
  human life and encouraging to bloodlust
• The methods and procedures of capital punishment
  continue to evoke questions and concerns
• Should all murderers be subject to capital
  punishment, or do some deserve it and not others?

23
PRIVATE CORRECTIONS

• Private prisons are built by a private
  corporation, then leased to the state or actually
  run by the corporation, which bills the state for
  the service
• Ethical issues include
• Abuses of the bidding process
• Limited economic benefit to local communities
• Private prisons have a history of substandard
  performance

24
PRIVATE CORRECTIONS

• Supporters claim private prisons save money by
• Greater efficiency
• Reduced operational costs
• Less red tape
• Economies of scale
• A General Accounting Office study found that
  private and public institutions cost about the
  same
• Private corrections tend to pay lower salaries
  than state corrections departments
• Officers often transfer to state corrections
  departments after they are trained
• Turnover is high in both private and state
  corrections

25
CORRECTIONAL PROFESSIONALS

• Institutional correctional personnel consist of
• Correctional officers and supervisors
• Treatment professionals (i.e., educators,
  counselors, psychologists, and others)
• Correctional officers have discretionary powers,
  such as charging an inmate with a disciplinary
  infraction versus delivering a verbal reprimand
• Disciplinary committees also exercise discretion
  when making a decision to punish an inmate for an
  infraction

26
CORRECTIONAL PROFESSIONALS

• Correctional officers have a full range of
  control, including denial of liberty and
  application of physical force
• Treatment personnel have a responsibility to the
  correctional client
• The needs of inmates must be balanced against the
  larger needs of the system or institution

27
CORRECTIONAL OFFICERS

• In the 1970s, prison guards adopted correctional
  officer as a more descriptive professional title
• The period also saw such dramatic changes as
• Increased on-the-job danger
• Loss of control
• Increased stress
• Racial and sexual integration
• Deviant behavior among correctional officers
• Unionization
• Higher standards of professionalism
• Expanded bureaucratization

28
CODE of ETHICS
The American Correctional Association recommends
these behaviors
Act professionally
Reinforce good behavior
Practice the Golden Rule
Maintain honesty and integrity
Be consistent
Encourage teamwork
Use professional language
Respect inmates/coworkers
Be assertive, not aggressive
Dont abuse sick leave
Act impartially
Be truthful with inmates
Confront bad behavior
Admit mistakes
29
CORRECTIONAL OFFICER SUBCULTURE

• Correctional officers
• May consider inmates, superiors, and society in
  general as the enemy
• Accept use of force as a routine job element
• Show a tendency to redefine job roles to meet
  minimum requirements only
• Show a willingness to use deceit to cover up
  wrongdoing by staff

30
CORRECTIONAL OFFICER SUBCULTURE

• Norms of the correctional officer subculture
  include
• Always go to the aid of another officer
• Don't lug drugs
• Don't rat
• Never make a fellow officer look bad in front of
  inmates
• Always support an officer in a dispute with an
  inmate
• Always support officer sanctions against inmates
• Don't be a white hat
• Maintain officer solidarity against all outside
  groups
• Show positive concern for fellow officers

31
RELATIONSHIPS WITH INMATES

• The majority of the institutional population,
  both guards and inmates, prefer to live in peace
• Yet both feel they must take sides when conflict
  occurs
• Prisoners sometimes come to the aid of officers
  in physical confrontations, but
• In general, inmates support fellow inmates and
  guards support fellow guards
• A brutal guard may be protected by his fellows,
  and a racist guard will not be sanctioned
• An assaultive inmate will not be kept in check by
  other inmates unless his actions are seen to hurt
  their interests

32
RECIPROCITY in SUPERVISION

• Officers become dependent on inmates for
  completion of important tasks
• In return, officers may overlook inmate
  infractions and allow a degree of favoritism
• Officers who become personally involved with
  inmates compromise their professional judgment
• An officer who is too close to inmates is not to
  be trusted
• Prison management, for the most part, relies on
  information supplied by snitches

33
OTHER CONSIDERATIONS

• Officers have the power to make life difficult
  for inmates they do not like
• The officers powerlessness relative to superiors
  and society in general leads some to take
  advantage of the only power they do haveover the
  inmates
• An alliance sometimes forms between guards and
  inmates that is not unlike foreman-employee
  relationships
• Officers insist that you can be friendly with
  inmates, but you can never trust them
• Mature officers learn to live with this
  inconsistency

34
TYPES of OFFICERS

• Violence-prone use the role of correctional
  officer to act out an authoritarian role
• Time-servers serve time in prison much the same
  as most inmates do (trying to avoid trouble and
  hoping nothing goes wrong on their shift)
• Counselors seek to enlarge their job
  description perceive their role as inmate
  counselor/helper
• Good officers
• Treat inmates fairly and dont show favoritism
• Dont always follow rules to the letter
• Use force only when necessary
• Treat inmates professionally and respectfully
• Treat inmates as anyone would want to be treated

35
ADDITIONAL CONCERNS

• Like police, many correctional officers feel that
  court decisions and administrative goals have not
  supported their needs
• Correctional officers report experiencing much
  job-related stress
• Stress-related illnesses such as hypertension are
  common among correctional officers
• So, too, are social problems such as alcoholism
  and divorce

36
USE of FORCE

• Physical force is often necessary in prison
  situations
• Prior to the 1980s, overt physical force was used
  routinely in U.S. prisons
• This force was often excessive, even brutal
• Today, the incidence of excessive force is less
  common, but it is still used in some institutions
• Excessive physical force is commonly reported in
  prisons around the world
• When correctional officers fail to maintain
  proper order, inmate gangs may fill the void and
  use force on rival inmates

37
CORRUPTION

• Officer and administrator misconduct in prison
  settings is not uncommon
• Examples
• Bribery for access to legitimate activities
• Bribery to protect illicit activities
• Mistreatment/harassment/extortion of inmates
• Gross mismanagement (e.g., prison industries)
• Possible solutions
• Proactive investigation and detection
• Reduced opportunities
• Comprehensive psychological screening
• Improved working conditions
• Strong, ethical supervisory role-models

38
LOYALTY and WHISTLEBLOWING

• Loyaltyesprit de corpsis one reason officers do
  not report wrongdoing
• Unwillingness to violate a code of silence is
  another
• Although the term whistle-blower has negative
  connotations, it actually describes someone who
  is responding to a higher ethical code than those
  whose behavior is exposed

39
DETENTION OFFICERS in JAILS

• In many respects, local jail officers have more
  difficult responsibilities than state prison
  officers
• Jail population is transitory and often unstable
• Offenders may come into jail intoxicated, suffer
  from undiagnosed diseases or psychiatric
  conditions, or be suicidal
• Visitation is more frequent, and family issues
  are more problematic
• The constant activity and chaotic environment of
  a jail often create unique ethical dilemmas

40
TREATMENT STAFF

• The professional goal of all treatment
  specialists is to help the client
• This goal may be fundamentally inconsistent with
  the punitive prison/jail environment
• A dilemma of treatment programs is deciding who
  is to participate
• Psychiatrists in corrections may feel that they
  are being used more for social control than
  treatment

41
TREATMENT ISSUES

• Disruptive inmates needing treatment pose
  security risks thus, intervention often takes
  the form of control rather than treatment
• Some allege that psychotropic drugs are used to
  control inmates, rather than for legitimate
  treatment purposes
• The principle of responsibility mandates that
  psychologists prevent distortion, misuse, or
  suppression of their psychological findings by
  their employing institution/agency
• Institutional psychologists may feel that their
  findings are compromised by custody concerns

42
TREATMENT ISSUES

• The fact that prisoners are captive audiences
  makes them attractive subjects for
  experimentation
• Inmates assume that release is tied to
  compliance what may appear to be voluntary
  participation may actually be the inmate
  complying because he feels he has no choice
• Emphasis on security puts the treatment worker in
  a role of a custodian with professional training
  being used only to better control inmate behavior
• Emphasis on treatment puts the treatment worker
  in an antagonistic role in relationship to the
  security staff

43
TREATMENT ISSUES

• Faith-based treatment programs in prison raise
  ethical issues
• Should the state support those religious programs
  that are successful in lowering rates of
  recidivism?
• Should inmates of other faiths join these
  programs at the risk of abandoning the principles
  of their first religion?

44
MANAGEMENT ISSUES

• Access
• Should access be denied to outside parties
  seeking to enter the institution to provide
  treatment services to inmates?
• What if the presence of these outsiders poses a
  threat to security?
• Budget
• Should funding of treatment programs for inmates
  take priority over funding safety resources for
  staff, or vice versa?

45
MANAGEMENT ETHICAL GOALS

• Treat staff fairly and impartially
• Make merit-based promotions
• Show no prejudice
• Lead by example
• Develop a clear mission statement
• Develop a code of ethics that is a list of dos,
  not a list of donts
• Create a performance-based culture, not a
  seniority-based culture
• Solicit staff input on new policies
• Be respectful
• Create an culture that values ethical behavior

46
MANAGEMENT and the COURTS

• During the 1970s and 1980s, prisons across the
  country were held legally responsible for
  substandard conditions
• Many administrators were held accountable for
  constitutional violations that they knew of or
  should have known of within their correctional
  systems
• Administrators were faced with the ethical
  decision of supporting either the longstanding
  policies of their institutions or constitutional
  standards

47
SEXUAL HARASSMENT

• Historically, prison work was male-dominated
• Recently the number of female corrections
  officers has increased
• The arrival of female employees has brought
  charges of work place gender discrimination and
  hostile work environments
• Administrators have an obligation to eliminate
  sexual harassment and discrimination in prisons

48
MISTREATMENT of INMATES

• A sensitive problem for administrators
• If seen as too sympathetic to the plight of
  inmates, the staff feels they are not supported
• If seen as too protective of staff, the
  misconduct continues or even accelerates
• Allegations require firm, fair, impartial
  responses

49
MANAGEMENT and UNIONS

• Correctional officer unions
• have been successful in some states in obtaining
  greater benefits for their members
• have not been especially effective at promoting
  professionalism and ethics among their members

50
CROSS-SEX SUPERVISION

• Until the 1970s, women were barred from working
  in mens prisons
• Today, women perform both correctional officer
  and supervisory duties in many male prisons
• Most research indicates that females perform
  equally as well as men
• Some studies indicate that women are actually
  more effective with male inmates because of their
  non-threatening manner
• More male officers are now assigned to female
  prisons
• Not unexpectedly, the number of sexually-based
  complaints has risen

51
SUPERMAX PRISONS

• Prison authorities have long segregated the most
  notorious prisoners into special units
• Today, some states have constructed the most
  secure facilities, referred to as supermax
  prisons
• Supermax conditions are extremely harsh,
  including individual separation of all inmates
  around the clock and limited recreational
  activity
• Despite a number of court challenges, the prisons
  continue to operate, but remain under close
  judicial scrutiny

52
THE ZIMBARDO EXPERIMENT

• In the 1970s, a mock prison was set up in the
  basement of a building on the grounds of Stanford
  University
• College men were arbitrarily assigned to be
  guards or inmates
• Many of the guard subjects became brutal toward
  the inmate subjects
• Many of the inmate subjects became docile and
  submissive
• Behavioral changes in both groups were so
  profound that the experiment was canceled after
  six days
• The study illustrates the profound effect of a
  prison experience