Making Ethical Choices

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CHAPTER 14

• Making Ethical Choices

Lecture slides prepared by Lisa J. Taylor
2
Review of Major Themes

• There is presence of authority, power, force, and
  discretion in each of the sub-systems of the
  criminal justice.
• Informal practices and value systems among
  criminal justice actors vary from formal
  principles of behavior.
• The importance of ethical leadership.
• The tension between deontological ethical systems
  and teleological or meansend ethical analysis.
  

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The Threat of Terrorism

• 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.

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The Just War Debate

• Philosophers have debated the idea of just wars
  since the time of Cicero (c. 10643 B.C.)
• Natural Law War is acceptable
• To uphold the good of the community
• When unjust injuries are inflicted on others
• To protect the state
• Positivist Law (man-made) when international law
  is followed e.g. United Nations.

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Justification for War Includes

• A grave, lasting, and certain threat.
• No other means to avert the threat.
• A good probability of success.
• The means must not create a greater evil than the
  threat responded to.

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Ethical Justifications for Warand Means Utilized

• Utilitarianism when the benefits outweigh the
  negatives e.g., when there is a grave threat and
  civilian deaths are minimized
• Ethical formalism use of aggression can be
  justified with
• principle of forfeiture
• principle of double effect

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Response to Terrorism

• Can just war arguments be applied?
• Can Dirty Harry arguments be applied?

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Response to 9/11

• There has been a fundamental shift in the goals
  and mission of law enforcement and public safety.
• New goals include more national law enforcement
  and a reduction of civil liberties.
• There is a greater emphasis on surveillance and
  crime control.
• There are increasing links between local law
  enforcement and immigration services and federal
  law enforcement.

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After 9/11

• Detainments and greater governmental secrecy
• The Patriot Act and the Department of Homeland
  Security
• Wiretapping and threats to privacy
• Renditions and secret prisons
• Guantanamo and the Military Commissions
• The use of torture

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Attorney General Eric Holder(2012)

• Publicly said the Authorization for the Use of
  Military Force (AUMF) gave the President the
  power to order targeted killings of
  individualseven American citizensbelieved to
  have engaged in terrorist activity in the U.S.
• This was after a targeted drone attack killed
  Anwar al-Awlaki, an American radical cleric
  believed to be responsible for soliciting and
  initiating several terror plots in the U.S.
• The ACLU and other organizations are engaged in
  a Freedom of Information Act request to obtain
  the memo and what evidence existed to justify the
  killing.

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Detainments and Government Secrecy

• Immediately after 9/11, hundreds 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 offices. Many were
  detained on minor violations of their visa and
  held for months in federal facilities and county
  jails without hearings.
• Names and even the number of detainees were
  withheld for months.
• Deportation hearings were closed to the media and
  public.

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Japanese Internment Camps(WWII)

• Japanese-American internment was the relocation
  and internment by the United States government in
  1942 of about 110,000 Japanese Americans and
  Japanese who lived along the Pacific coast of the
  U.S., to camps called "War Relocation Camps," in
  the wake of Imperial Japan's attack on Pearl
  Harbor.
• In 1988, Congress passed and President Ronald
  Reagan signed legislation which apologized for
  the internment. The legislation indicated that
  government actions were based on "race prejudice,
  war hysteria, and a failure of political
  leadership.
• The U.S. government eventually disbursed more
  than 1.6B in reparations to Japanese Americans
  who had been interned and their heirs.

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The Patriot Act

• Authorizes federal agents to spy on Americans
  without probable cause or reasonable suspicion.
• Allows authorities to share with state
  prosecutors information obtained via FISA search
  warrants which do not require probable cause.
• Authorizes deportation of anyone who financially
  supports a terrorist organization.
• Requires all Arab-born citizens to register under
  the National Security Entry-Exit Registration
  system.
• The Act was extended in 2006 (to 2009), with
  modifications.

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Wiretapping and Threats to Privacy

• Patriot Actsneak and peek, national security
  letters, pen registers
• Data mining programs
• Presidential secret warrantless wiretappings
• DNA data banks

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Renditions and Secret Prisons

• Renditionskidnapping suspects in Canada, Sweden,
  Germany, and Italy sometimes without knowledge or
  approval of governments
• Secret prisonssubjects of renditions taken to
  countries to be tortured or to secret prisons
  (closed in 2006?)

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Guantanamo and the Military
Commissions Act

• Hamdi v. Rumsfeld (2004)U.S. citizens could not
  be held indefinitely without charges even if they
  were labled enemy combatants.
• Rasul v. Bush (2004)Detainees in Guantanamo
  could challenge their detention in U.S. federal
  courts.
• Clark v. Martinez (2005)Government may not
  indefinitely detain even illegal immigrants
  without some due process.
• Hamdan v. Rumsfeld (2005)Military commissions,
  set up as a type of due process for the
  detainees, were outside the Presidents power to
  create and were, therefore, invalid.

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Military Commissions Act

• Congress passed the Act after Hamdan v. Rumsfeld
  invalidated presidential decree.
• Widespread criticism that the Act ignored ancient
  right of habeas corpus.
• Boumediene v. Bush (No. 06-1195, Decided June 12,
  2008)the Supreme Court rejected the military
  commissions as a due process substitute for
  federal courts and habeas corpus also, Detainee
  Treatment Act was not a substitute for habeas
  corpus rights.

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Torture

• Deliberate infliction of violence and, through
  violence, severe mental and/or physical suffering
  upon individuals
• 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
• Waterboarding

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Torture

• Justification
• Utilitarianism (doctrine of necessity)
• Does torture result in the truth?
• Does it matter?
• Where?
• Guantanamo
• Secret prisons
• Bagram prisonAfghanistan
• Abu GhraibIraq

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Thinking Point

• In May of 2010, Faisal Shahzad made an attempt to
  set off a car bomb in Time Square. Shahzad has
  since been charged with an act of terrorism and
  mass destruction. Shahzad became a U.S. citizen
  in April of 2009. He had recently reentered the
  country after spending five months in Pakistan.
  Shahzad claims he acted alone in his attempt.
• Knowing Shazads history, would it be ethical to
  use certain torture methods to ensure he is being
  honest?

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Crime Control and Means-End Thinking

• The desired end (deterring/preventing terrorist
  attack) is seen as justifying such means as
  restricting
• privacy rights
• due-process rights
• rights to associate (as when individuals are
  deported simply for associating with groups that
  have been defined as terrorist)
• right not to be tortured (water boarding and
  other coercive interrogation techniques)

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The Crime Control Approach

• A utilitarian approach can be used to justify
  invasive or restrictive police actions
• The end must itself be good.
• The means must be a plausible way to achieve the
  end.
• There must be no alternative, better means to
  achieve the same end.
• The means must not undermine some other equal or
  greater end.

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Crime Control vs. Human Rights

• Crime Control

• Rights Based Policing

• Dirty Harry reasoning
• Ends-means thinking
• Doctrine of necessity
• Utilitarianism

• Emphasis on law
• Emphasis on due process
• Emphasis on inalienable rights
• Ethical formalism

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Rights Based Police Standards (UK)

• To fulfill 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 confidentiality
• 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

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Is War on Terror Related to Criminal Justice
Ethics?

• The War on Terror has affected police policies
  and added new responsibilities.
• Powers created to fight terror have been used
  against garden variety criminals and
  governmental surveillance/spying has been used
  against American citizens.
• The Patriot Act renewal had provision for
  speeding death penalty appeals.
• There are routine partnerships (and conflicts)
  between local law enforcement and DHS.
• Civil liberties take centuries to create, but
  only a few generations to destroy (Wilson).

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NYPDs Intelligence/Surveillance Activities

• Intelligence division 1000 employees.
• Led by ex-CIA agent.
• Unit includes 2 dozen civilian experts, lawyers,
  academics, linguists, and other specialists in
  addition to law enforcement officers.
• Unit monitors jihad websites and gathers tips
  regarding terrorist activity.
• Use cameras on mosques and Muslim-frequented
  businesses, collected license plate numbers, and
  engaged mosque crawlers to infiltrate mosques
  and neighborhoods.
• Privacy concerns raised by the ACLU and Arab
  Islamic rights organizations

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Dirty Harry Problem

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

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Nga Truong Coerced Confession(2008)

• Police received a hysterical call from an
  apartment where a Vietnamese-American teenager
  lived with her 13-month-old son, Khyle, her
  boyfriend, her mother, and her siblings.
• Khyle wasn't breathing, and later, a doctor at a
  nearby hospital pronounced him dead.
• Truong later admitted to suffocating her son. She
  was arrested and spent almost three years
  awaiting trial for murder.
• Police told her that if she confessed, she will
  get help and leniency in the juvenile court.
• She made the coerced admission, thinking she
  could go on with her life, but not processing at
  16 years old that she just admitted to homicide.