Ethics in Criminal Justice Thomas N. Davidson, J.D.

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Ethics in Criminal Justice Thomas N. Davidson,
J.D.
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Ethics Defined

• Ethics can be defined as a branch of philosophy
  that is concerned with the study of what is
  morally right and wrong, good and bad. The term
  comes from the Greek root ethikos, which means
  character.

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Why study ethics?

• Professionals are recognized in part because
  professions include ethical standards.
• Develops analytical skills.
• Consequences for ethical errors.
• Germane to management decisions.

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Goals

• Become aware of ethical issues.
• Develop critical thinking skills.
• Become more personally responsible.
• Understand how business is involved in coercion
  and persuasion.
• Develop wholesight which means to explore
  issues with ones heart as well as ones mind.

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Normative EthicsNormative ethics is the branch
of philosophical ethics that investigates the set
of questions that arise when we think about how
ought one acts morally speaking. These theories
determine which moral standards to follow which
actions are morally right or wrong.
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Ethical Models

• Deontological ethics or deontology (Greek Deon
  meaning obligation or duty) is a theory holding
  that decisions should be made solely or primarily
  by considering one's duties and the rights of
  others. If the act is good, then ethical even if
  bad outcome and vice versa.

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Ethical Models

• Consequentialism (Teleological Model) refers to
  those moral theories that hold that the
  consequences of a particular action form the
  basis for any valid moral judgment about that
  action. Thus, on a consequentialist account, a
  morally right action is an action which produces
  good consequences. The act may look bad, but if
  good result, then ethical.

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Ethical Models

• The Kantian-Utilitarian Principle emphasis doing
  the most good at the expense of the least amount
  of people. It recognizes that there may be a
  means to an end. But it is only ethical if as few
  people as possible are treated as means to the
  end that brings good the greater number.

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Ethical Models

• Egoism is belief that one ought to do what is in
  one's own self-interest, although a distinction
  should be made between what is really in one's
  self-interest and what is only apparently so.
  What is in one's self-interest may incidentally
  be detrimental to others, beneficial to others,
  or neutral in its effect.

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Ethical Models

• Altruism is an ethical doctrine that holds that
  individuals have an ethical obligation to help,
  serve, or benefit others, if necessary at the
  sacrifice of self interest.

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Ethical Models

• The ethic of reciprocity or "The Golden Rule" is
  a fundamental moral principle found in virtually
  all major religions and cultures, which simply
  means "treat others as you would like to be
  treated." It is arguably the most essential basis
  for the modern concept of human rights. Principal
  philosophers and religious figures have stated it
  in different ways.

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The Golden Rule

• "Thou shalt not avenge, nor bear any grudge
  against the children of thy people, but thou
  shalt love thy neighbor as thyself I am the
  LORD." Moses (ca. 1525-1405 BCE) in the Torah
  Leviticus 1918
• "This is the sum of duty do naught onto others
  what you would not have them do unto you." from
  the Mahabharata (51517) (ca. 500BCE)
• "What you do not wish upon yourself, extend not
  to others." Confucius (ca. 551479 BCE)
• "What is hateful to you, do not to your fellow
  man." Hillel (ca. 50 BCE-10 CE)
• "Do unto others as you would have them do unto
  you." Jesus (ca. 5 BCE33 CE) in the Gospels,
  Matthew 712, Luke 631, Luke 1025
• "Hurt no one so that no one may hurt you."
  Muhammad (c. 571 632 CE) in The Farewell
  Sermon.

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Ethical Models

• Religion conform to Gods will.
• Codified Ethics formal written rules.
• Natural Law what is good is that which is
  natural. Hierarchy Profession virtues, American
  virtues, and Human virtures.
• Metaphysics Creator, human soul, supernatural.
• Ethics of Care meet the needs of those
  concerned.
• Ethics of Virtue conform to the Golden Mean.

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Golden Mean

• Area Defect Mean Excess
• Fear Coward Courage Reckless
• Pleasure Insensitive Control Indulgence
• Money Stingy Generous Extravagant
• Anger Apathy Gentle Hot-head
• Truth self-dep. Truthful Boastful

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Apologia

• Act or omission.
• Cognitive Dissonance.
• Rationalization that transforms the act or
  omission to being ethical.
• Cognitive dissonance is a psychological term
  which describes the uncomfortable tension that
  comes from holding two conflicting thoughts at
  the same time.

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Apologia

• I didnt get anything for it.
• It wasnt illegal.
• He made me do it.
• He had it coming.
• Everyone else is doing it.
• If I didnt some one else would have.

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Ethical Judgment Analysis
Free will
Effects to others
Motive
Model
Act or Omission
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Tort Ethical Analysis
Likelihood of Harm Gravity of Harm lt gt Cost
to reduce or eliminate the risk
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Gravity of Harm or Good

• Intensity strength of pain or pleasure.
• Duration how long it lasts.
• Certainty how sure we are of outcome.
• Propinquity how soon the pain or pleasure
  starts.
• Fecundity probability the pain or pleasure will
  be followed by more pain or pleasure.
• Purity probability the pain or pleasure will be
  followed by more of the same.
• Extent the number of people effected.

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Ethical Problem Solving

• Consider
• Benefit and harms caused by each alternative
• Which alternative
• Best respects moral rights.
• Best promotes common good.
• Does not discriminate or shows favoritism.
• Best promotes virtues.

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Things to consider

• Relativism What is good or immoral changes over
  time.
• Absolutism What is wrong is always wrong.
• Situational Ethics. I choose which model of
  ethics to follow depending on the circumstances.

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Key Terms

• Reasoning a method of thinking by which proper
  conclusions are reached through abstract thought
  processes.
• The Divided Line Platos theory of knowledge. 4
  levels of knowledge. 1) lowest level is
  conjecture imagination 2) belief based on
  faith 3) scientific knowledge 4) the highest
  level is reasoning.

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Key Terms

• Theory of Realism Aristotles explanation of
  reality. 3 concepts Rationality, ability to use
  abstract reasoning potentiality actuality, the
  capacity to become a state of being and the
  golden mean, the middle point between extreme
  qualities.
• Ethics Philosophy that examines principles of
  right and wrong.

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Key Terms

• Morality practice of applying ethical
  principles.
• Intrinsic goods objects, actions, or qualities
  that are valuable in themselves.
• Non-intrinsic goods good only for developing or
  serving an intrinsic good.
• Summum bonum principle of the highest good that
  cannot be subordinated to another.

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Key Terms

• EPJ2 guiding formula for making moral judgment.
  E is the ethical decision P is the principle
  J is the justification of the situation.
• Determinism theory that all thoughts actions
  result from external forces beyond human control.
• Intentionalism free will.

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Key Terms

• Mitigating (M) is to act in such a way as to
  cause an offense to seem less serious or the
  action of lessening in severity or intensity.
• Accentuating (A) is the act of giving special
  importance or significance to something.

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Exploring Virtue Socrates (469-399 B.C.)

• Life unexamined is not worth living.
• A belief unexamined is not worth following.
• A practice unexamined is not worth adhering to.
• Dialectic method exchange questions answers to
  establish or deny the truth of a matter.
• Socratic method the same as dialectic method
  above renamed after Socrates.

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Socratic Reasoning

• What is it?
• What is good for?
• How do we know?
• Establish the purpose of the phenomenon and
  determine its goodness by fulfilling its purpose.

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Guiding Formula for Moral Judgment

1. Select moral principle that best defines the
   problem honesty, fairness, equity, loyalty, et
   cetera.
2. Justify the situation by examining whether it
   conforms to the selected principle. If not,
   accentuating or mitigating factors that make it
   more or less fitting?
3. If situation fits exactly, then the judgment
   should be made exactly in accordance with the
   principle.
4. If it does not fit, judgment is made by
   determining a high or low likelihood that the
   situation fits the principle by examining the
   accentuating mitigating factors.

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EPJ2

• E is the ethical decision to be made.
• P is the principle.
• J is the justification of the situation.
• Square on the value of J is proposed to allow for
  justification to be ratcheted up or down
  depending on the power of accentuating or
  mitigating factors.

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EPJ2 put to the test.

• E Death penalty.
• P Sanctity of Life.
• J Protect Society
• Deterrence (A)
• Retribution (A)
• Extinguishes risk of escape and other transaction
  costs of incarceration. (A)
• Killing is intrinsically evil even when done by
  the government. (M)

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Rules of Moral Judgment

1. Intrinsic evils are the lowest levels of morality
   and should be avoided.
2. Intrinsic goodness is the highest level of
   goodness and should be sought.
3. Summum bonum is the highest moral choice and
   should be sought.
4. If intrinsic goodness cannot be achieved, the
   highest level of non-intrinsic goodness should be
   sought.
5. Whenever intrinsic evil can be avoided, the
   highest level of non-intrinsic evil should be
   sought.
6. When in doubt, apply EPJ2.

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Christian Ethical Model
Love
Justice
Holiness
Three legged stool
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Holiness

• Zeal for God riches, material goods, career
  goals are of lesser importance.
• Purity honesty morality.
• Accountability.
• Humility.
• Avoid abuses of Holiness legalism (rule
  keeping), judgmentalism (finger pointing),
  withdrawal (flight from responsibility).

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Justice

• Procedural Rights notice hearing for those
  accused of wrong doing.
• Fairness adequate notice, hearing, and
  evidence.
• Equal Protection people in similar
  circumstances are treated similarly.
• Substantive Rights those rights that are
  spelled out and that which procedural rights seek
  to protect.
• Merit cause and effect.
• Contracts fulfill promises.
• Compensation for those offended.
• Beware of abuses of Justice Harshness
  Condemnation.

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Love

• Emphasis on relationships.
• Empathy not the same as sympathy.
• Mercy empathy with legs.
• Sacrifice of rights negotiation, consideration,
  and compromise.
• Avoid abuses of Love doormat ambiguity.

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Christian Model Balance Holiness, Justice,
Love.
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Freedom from crime is not free.

• The degree to which a society achieves public
  order depends in part on the price society is
  willing to pay to obtain it.
• Resources committed to crime suppressions,
  detection, and prevention.
• The extent to which people are willing to accept
  a reduction in civil liberties.

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Government v. Liberty Tension

• In a free society there is a constant tension
  between its governments legitimate police
  function and its citizens liberty interests. It
  has and will be with us and it will never go
  away. It is a source of conflict that must be
  understood by both the police and the population
  in order for it to be controlled.

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Ethical Discretion

• Depends on ones moral commitment to both society
  and the agency served.
• Indianas Tort Claims act gives officers immunity
  from liability for using discretion as to whether
  to enforce or not enforce a law.
• Special Relationship doctrine.

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Indiana State Tort Claims Act IC 34-13-3

• Notice of tort claim 270 days for state 180 days
  for political subdivision.
• IC 34-13-3-3 Immunity of governmental entity or
  employee The performance of a discretionary
  function The adoption and enforcement of or
  failure to adopt or enforce a law, unless the act
  of enforcement constitutes false arrest or false
  imprisonment and an act or omission performed in
  good faith and without malice under the apparent
  authority of a statute which is invalid if the
  employee would not have been liable had the
  statute been valid.
• The Act provides for 23 express instances of
  immunity.

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Police Subculture

• A cultural subgroup differentiated by status,
  ethnic background, residence, religion, or other
  factors that functionally unify the group and act
  collectively on each member.
• The existence of a subculture suggests that
  officers share a number of attitudes, values, and
  beliefs that separate them from other members of
  society. These attitudes, values, and beliefs are
  transmitted from one generation to the next
  through a process of socialization.

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More Key Terms

• Principled-Based Management philosophy of
  management that is based on ethical principles,
  enlightened reasoning, moral responsibility,
  good faith.
• Integrated Thinking Based on reasoning and
  deductive logic independent of bias or interest.
• Moral Agility ability to distinguish between
  shades of moral choices.

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Lying Deceptive Interrogation

• The public does not have a constitutional right
  that the police will tell the truth.
• Public Policy undercover officers.
• Lying by the police during interrogation can be
  used as a factor to determine whether any
  statements were coerced.
• Lying under oath, however, is a crime (perjury).

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Lying Public Policy

• Acceptable when innocent lives are at stake or
• When a lie can help achieve a higher moral value,
  such as national secrets, helping a patient
  recover, or sustaining vital family relations.

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Lying in Crisis Negotiations

• What is the benefit to be gained by deceiving the
  suspect?
• What is the likelihood the deception will be
  discovered?
• What are the possible consequences if the
  deception is discovered?
• If the deception is discovered, is there a way to
  recover from it?
• Is there an alternative to deceiving the suspect?

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Justification for Deception

• Serves a legitimate purpose.
• Nexus between lie and purpose.
• Deception serves the public interest.
• Does not violate law.

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More Key Terms

• Justifiable Inequality unequal treatment
  necessary to serve legitimate social or
  governmental interests.
• Unjustifiable Inequality unequal treatment that
  does not serve a legitimate social or government
  interest.
• Discrimination injurious treatment of people on
  grounds irrelevant to situation.
• Stereotyping automatically treating someone as
  an exact duplicate and assigning characteristics
  of a group to which he belongs.

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Title VII of the Civil Rights Act of 1964

• Title VII of the Civil Rights Act of 1964
  prohibits the unequal treatment of persons based
  on race, color, national origin, religion,
  gender, age, or disability.
• Disparate treatment. Prove that you
• A member of a protected class and
• Qualified and
• Rejected, demoted, or terminated and
• Position filled by a person not in a protected
  class.

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Title VII of the Civil Rights Act of 1964

• Disparate Impact Practices or procedures that
  are not intentionally discriminatory but have the
  effect of discrimination.
• Four-Fifths Rule Minorities are hired or
  promoted at a rate less than fourth-fifths of the
  rate for the group with the highest rate of
  hiring or promoting.

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Employees prima facie case

• Belongs to a protected group
• Was qualified for the job
• Was rejected
• Position remained open and search continued
• Employer claims action was taken for legitimate
  nondiscriminatory reasons. Employee counters
  that the reasons are simply a pretext for
  discrimination.

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Police Profiling

• The Gates case raised new and revived old
  questions regarding police profiling and factors
  that lead to articulable suspicion and probable
  cause.

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Egoism in CJS

• Egoism the theory that people will naturally act
  only in fulfillment of their self interest (self
  love).
• Authority the right to control others.
• Power the means to control others.
• The sum of these three factors often leads to
  abuse of power by police.

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Official Responsibility

• Antidote for natural egoism.
• Responsibility for the cause of their actions.
• Accountability for the manner in which duties are
  carried out.
• Obligation to follow the law rules.

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Internal Affairs Investigations

• Founded.
• Unfounded.
• Exonerated.
• Undetermined.

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Tennessee v. Garner

• Deadly force by police is justified
• To protect/defend oneself or a third party from
  the threat of immanent serious bodily injury or
  death
• To interdict a forcible felony
• To apprehend a fleeing forcible felon once less
  lethal means of capture have failed, and suspect
  will get away if you dont (provide a warning
  whenever possible.).

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Use of Force Continuum
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Capital Punishment

• 16,272 murders reported to police in USA in 2008.
• 37 executions carried out in 2008.
• 111 convicted murders sentenced to death in 2008.
• 3,215 inmates on death row in 2008.
• 1977 to 2007 only 19 of 94 inmates given a death
  sentence in Indiana were executed (20).
  California 13 of 802 (1.6)

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EPJ2 put to the test.

• E Death penalty.
• P Sanctity of Life.
• J Protect Society
• Deterrence (A) Really, is it?
• Retribution (A)
• Extinguishes risk of escape and other transaction
  costs of incarceration. (A)
• Killing is intrinsically evil even when done by
  the government. (M)

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IAC Law Enforcement Oath of Honor

• On my honor, I will never betray my badge, my
  integrity, my character or the public trust. I
  will always have the courage to hold myself and
  others accountable for our actions. I will always
  uphold the constitution, my community, and the
  agency I serve.

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Meaning of the Oath

• Honor ones word is given as a guarantee.
• Betray breaking faith.
• Badge symbol of office.
• Integrity adherence to a set of values.
• Character individual qualities. . .

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Meaning of the Oath

• Courage having the strength to withstand
  unethical pressure, fear, or danger.
• Accountability answerable and responsible.
• Community Your jurisdiction.

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More Key Terms

• Malfeasance direct misconduct.
• Misfeasance improper performance.
• Nonfeasance failure to act or live up to
  responsibilities.
• Grass Eaters takes what comes along.
• Meat Eaters aggressively exploiting for gain.
• Code of Silence conflicting loyalties causing
  officers not to report misconduct by other
  officers.

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Social Order

• Secure and stable life within an orderly
  community. Focus is on social norms and legal
  sanctions.

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Moral Order

• Collective concern for superior values within the
  realm of the spiritual. Focused on the
  principles of humanity, fairness, and
  righteousness, among other standards of civility.

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Ideal Model

• A vision of law enforcement by which hard working
  police diligently handle each case on its merits.

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Serviceable Model

• Bureaucratic garage sale model. CJS awash in
  arbitrary and irrational decision-making.
  Questionable motives for making arrests, deviance
  by police, railroading, revolving door practice
  of courts, and the failure of corrections.

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Hedonistic Corruption

• Practiced for personal gain or comfort.
• Gratuities, bribery, thefts, and dishonesty.

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Obligatory Corruption

• Knowingly violating rules and regulations for
  egotistical purposes. Abuse of power and
  authority, crude, and self aggrandizement
  (increase ones power, influence, or status).

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I want to help people

• I have interview over 700 prospective police
  officers. When asked Why do you want to be a
  police officer? The answer is always some
  variation of I want to help people. These are
  sincere answers. How then do some of these young
  idealistic men and women become corrupt or brutal?

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Possible Causes

• Egoism.
• The job does not live up to expectations, so the
  officers try to stimulate their professional
  experience.
• Disillusionment (public, courts, administration).
• Greed.
• Anti-social personalities (sociopaths).
• Apologia.
• Corrupt subculture.

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What can be done?

• Talk about ethics.
• Search for the truth.
• Demand ethical solutions.
• Create an environment conducive to civility.
• Dont laugh at unethical statements or jokes.
• Reinforce ethical principles.
• Monitor your commitment to justice.
• Must be rendered first and foremost by you.
• Modeling.