Patty was a rich businessman’s daughter. She had the best of everything all her life. Her future would have been college, a good marriage to a successful young man, and a life of c

Copyright Information (bibliographic) Document Type: Book Chapter

Title of Book: Ethical Dilemmas and Decisions in Criminal Justice (11th edition)

Author(s) of Book: Joycelyn M. Pollock

Chapter Title: Chapter 1 Morality, Ethics, and Human Behavior

Author(s) of Chapter: Joycelyn M. Pollock

Year: 2022

Publisher: Cengage Learning, Inc.

Place of Publishing: the United States of America

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Morality, Ethics, and Human Behavior

Explain the difference between ethical issues and ethical dilemmas.

2. Give examples of how discretion permeates every phase of the criminal justice system and creates ethical dilemmas for criminal justice professionals.

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

4. Define the terms morals, ethics, duties, supererogatories, and values.

5. Describe what behaviors might be subject to moral/ethical judgments.

Ethics Is the study of right and wrong. Stealing may be tempting, but It Is Judged as wrong and unethical.

In 2020, this country experienced turmoil not seen since the 1960s. The COVID-19 pandemic killed hundreds of thousands of people, forced massive business closures, and prompted culture conflict over the wearing of masks. The killing of George Floyd in May spurred Black Lives Matter (BLM) protests across the country.

Then, the shooting of Jacob Blake in August and news coverage of other killings, such as that of Breanna Taylor, increased the number and intensity of protests. Peaceful protests have occurred in small towns and large cities across the country, but there has also been arson, looting, and vandalism. Minneapolis, Roch­ ester, Seattle, Portland, Austin, and other cities have seen their police stations vandalized and businesses destroyed. Violence between BLM protesters and counterprotesters has occurred, and killings have been perpetrated by protesters on both sides. Although the extent and severity of the protests is new, the issue of racial discrimination in the criminal justice system is not.

The last edition of this textbook was written shortly after the shooting of Michael Brown and the Fergu­ son riots. The BLM protests that occurred in 2014 were smaller and ended sooner than the current unrest but stemmed from the same root cause-perceived and/or real discriminatory treatment of Blacks by criminal justice professionals. Policy practices that affect blacks and whites differently, and the individual actions of criminal justice professionals, must be addressed, not only with legal analysis, but also by applying ethical principles. The criminal justice system can be examined using political, legal, organizational, or sociolog­ ical approaches; however, in this book, we shift the lens somewhat and look at the system from an ethics

1

2 PART I Ethics and the Criminal Justice System

ethical Issues Difficult social or policy questions that include controversy over the "right" thing to do.

ethical dilemmas Situations in which it is difficult for an individual to decide, either because the right course of action is not clear or because the right course of action carries some negative consequences.

perspective. Asking whether something is legal, for instance, is not necessarily the same as asking whether something is right.

In this text, we will explore ethical decision making. More specifically, we explore the ethical dilemmas and issues within the criminal justice system. Every day, one can read news about ethical issues or individuals who have made choices that are subject to ethical judgments. Some decisions affect very few people; however, other decisions, such as former Officer Derek Chauvin's decision to keep his knee on George Floyd's neck despite fellow officers' and bystanders' entreaties to check his pulse, eventually affected thousands of individuals. One might say, in fact, that his decision has affected the whole country in some way. The ethical analysis presented and practiced in this text can be used to analyze decisions that spark national news coverage, but can also be applied to the smallest individual decisions as well. To be an ethical person, one must make ethical choices. This book will discuss how to do that.

Ethical discussions in criminal justice focus on issues or dilemmas. Ethical issues are broad social questions, often concerning the government's social control mechanisms and the impact on those governed. These issues can be subject to legal analysis and/or ethical analysis, as the two are related but not the same. The following is a list of a few current issues in the field of criminal justice that can be subject to ethical analysis:

• Defunding police departments and channeling savings to social service programs

• Passing legislation designed to remove qualified immunity from police officers

• Decriminalizing recreational marijuana

• Reversing mandatory minimum laws for drug crimes

• Abolishing the death penalty

• Using private prisons

• Requiring police officers to carry their own liability insurance

• Instituting civilian review boards to advise police departments

• Instituting deportation against "Dreamers" (Deferred Action for Childhood Arrivals Act recipients)

• Adopting "sanctuary city" resolutions

• Instituting conviction review task forces in prosecutors' offices

• Requiring mandatory DNA collection for all misdemeanant arrestees.

The typical individual does not have much control over these issues. If one is a political or organizational leader, it is possible that it is within that person's discretion to decide some ethical issues, but generally, these choices are decided by political action or deliberation by many people.

While ethical issues are broad social questions or policy decisions, ethical dilemmas are situations in which one person must decide what to do. Either the right choice is not clear, or the right choice will be difficult because of the costs involved. Criminal justice professionals face dilemmas arising from the choices they are faced with during their employment. Dilemmas of criminal justice professionals include the following:

• A police officer's decision whether to ticket a traffic violator

• A police officer's decision to tell a supervisor that her partner has an alcohol problem

• A sheriff's decision to fire a deputy who has used excessive force

• A defense attorney's decision to take a case

• A prosecutor's decision on whether and what to charge

• A probation officer's decision on whether to file a violation report on a probationer

At times, one's belief regarding an ethical issue gives rise to an ethical dilemma. In 2000, George Ryan, then governor of Illinois, declared a moratorium on use of the death penalty in his state when five individuals on death row were exonerated with DNA evidence. One of his last acts as he left office in 2003 was to commute the sentences of all 160 prisoners on death row to life without parole. Unlike most of us,

3 Chapter 1 Morality, Ethics, and Human Behavior

Governor Ryan's position meant he could act on his belief regarding the issue of capital punishment.

Another example occurred in Orange County, Florida, where State Attorney Aramis Ayala refused to pursue the death penalty against a cop killer in 2017. In fact, she reportedly expressed her intent to never pursue the death penalty because of continued constitutional challenges to Florida death penalty sentences and the cost. After she refused to recuse herself, Governor Rick Scott signed an executive order that removed her from the case and appointed another prosecutor. He then took 23 other death penalty cases away from her and assigned them to prosecutors in neighboring counties. Ayala contested the action, but the Florida Supreme Court sided with the governor. In 2020, another case was taken from her by the governor. She has indicated she will not run for reelection because Florida law conflicts with her values and beliefs (Evans, 2017;The News Service of Florida, 2020).

It was a legal question whether her position gave her the lawful authority to uni­ laterally reject the death penalty for all cases. It was also a legal question whether the governor had the legal authority to remove her from a case in her jurisdiction, because she is an elected official. However, beyond law, it is also an ethical dilemma when an elected prosecutor does not believe in the death penalty. Does she have an ethical duty to reject it, or an ethical duty to pursue it because it is the law of the state? Would it make a difference if her position regarding the death penalty was clear and publicized before the election and voters elected her anyway?

In this book, ethical issues and ethical dilemmas will be analyzed. As you will see, the approach taken in both types of analysis is similar. Throughout the book, we approach decision making using the framework of applying law, policy, and then ethics. In each chapter, at least one ethical issue or ethical dilemma will be presented and analyzed. You will see that tools of ethical reasoning are necessary for a good analysis. For this reason, we must first explore the foundations of ethics.

I Why Study Ethics? Although the decisions faced by professionals associated with the criminal justice system-ranging from legislators who write the laws to correctional professionals who supervise prisoners-may be different, they also have similarities, especially in that these professionals all experience varying degrees of discretion, authority, and power. They have awesome power that the rest of us do not. The greater role discretion plays in a profession, the more important is a strong grounding in ethics.

Legislators have the power to define certain acts as illegal and, therefore, punish­ able. They also have the power to set the degree of punishment. Public safety is usually the reason given for criminalizing certain forms of behavior. In other cases, legislators employ moral definitions for deciding which behaviors should be illegal. "Protection of public morality" is the rationale for some laws, including those involving drugs, gam­ bling, and prostitution. While judges sometimes invalidate laws that run afoul of state and/or federal constitutions, legislators still have a great deal of discretion in setting the laws that we must live by.

How do legislators decide what behaviors to criminalize? How do judges determine whether such laws violate fundamental rights?We explore these questions in more detail in Chapter 3, which covers the concept of justice, and in Chapter 8, which begins our dis­ cussion of the law and legal professionals.

Part of the reason that legislators are not respected in this country is that we perceive that their discretion is unethically influenced by lobbyists and personal interests rather than the public good. The 2010 movie Casino Jack and the U.S. of Money is based on for­ mer lobbyist Jack Abramoff, who ended up in prison for his notorious bribing of legisla­ tors. Ironically, in 2020, he became the first person charged with violating a law that was amended specifically in response to his previous criminal offenses. After having served almost four years in prison, he had pledged to reform when he was released in 2010.

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

4 PART I Ethics and the Criminal Justice System

However, recent charges allege illegal lobbying of legislators in relation to marijuana legislation and bitcoin currency (Popper, 2020).

Police officers, who enforce the laws created by legislators, also have a great deal of discretionary power. Most of us, in fact, have benefited from this discretion when we receive a warning instead of a traffic ticket. Police officers have the power to deprive people of their liberty (through arrest), and the power to decide which individuals to investigate and perhaps target for undercover operations. They also have the power to decide that force, even at times lethal force, is warranted-this power has been the sub­ ject of recent national protests incited by the belief that they use this power in a discrim­ inatory manner. In Chapters 5 through 7, the ethical use of police discretion is discussed in more detail.

Prosecutors probably face the least public scrutiny of all criminal justice professionals­ which is ironic, because they possess a great deal of discretion in deciding whom and how to prosecute. They decide which charges to pursue and which to drop, which cases to take to a grand jury, how to prosecute a case, and whether to pursue the death penalty in homicide cases. In cases of alleged police brutality or unlawful homicide, prosecutors decide whether to take the case to a Grand Jury or not, and whether to pursue charges. Although prosecutors have an ethical duty to pursue justice rather than conviction, some critics argue that at times their decision-making seems to be influenced by politics or fac­ tors other than the goal of justice.

Defense attorneys have ethical duties to their client, but also as officers of the court. After deciding whether to take a case or not, they decide whether to encourage a client to agree to a plea deal, what evidence to utilize and how to try the case, and whether to encourage a client to appeal.

Judges possess incredible power, typically employed through decisions to accept plea bargains, rule on evidence, and decide sentencing. The higher the court, the more power possessed by the judges who sit on that court. The Supreme Court is the high­ est court in our country, and the power of Supreme Court Justices is tremendous. They resolve questions of legality even when there is no social consensus about whether something should be legal. For instance, in Obergefell v. Hodges, 576 U.S. 644, 2015, the Supreme Court held that all states must license and recognize same-sex marriages, inval­ idating any state laws that were inconsistent to this ruling. In prior cases, Supreme Court decisions have dramatically affected social disputes, e.g., abortion, affirmative action, euthanasia, same-sex relationships, and interracial marriage. The power of Supreme Court Justices to settle public conflict over "private behavior" is why nomination and appointment to the Court incites such interest and political manipulations. Chapters 8-10 explore the ethical issues of legal professionals in the criminal justice system.

Finally, correctional officials have immense powers over the lives of some citizens. Probation officers make recommendations in presentence reports and violation reports that affect whether an individual goes to prison. Prison officials decide to award or take away "good time;' and they may punish an inmate with segregation; both types of deci­ sions affect the individual's liberty. Correctional officers make daily decisions that affect the life and health of the prisoners they supervise. Parole officials decide when to file a violation report and make other decisions that affect a parolee as well as his or her fam­ ily members. In short, all correctional professionals have a great deal of discretion over the lives of those they control. The ethical issues and dilemmas of correctional profes­ sionals are discussed in Chapters 11-13.

Although the professionals discussed above face different dilemmas, they also share the following common elements:

• They each have discretion-that is, the power to decide. Although the specific deci­ sions are different, they all involve power over others and the potential deprivation of life, liberty, or property.

• They each have the duty of enforcing the law. Although this concept is obvious with police, it is also clear that each of the professionals mentioned has a basic duty to uphold and enforce all laws; they serve the law in their professional lives. You may have heard the phrase "We are a nation of laws, not men:' This means that no one is

5 Chapter 1 Morality, Ethics, and Human Behavior

supposed to be above the law, no matter how powerful; and no one is supposed to take the law into their own hands, no matter how clear the guilt.

• They must accept that their duty is to protect the constitutional safeguards that are the cornerstone of our legal system-specifically, due process and equal protection. Due process protects each of us from error in any governmental deprivation of life, liberty, or property. We recognize the right of government to control and even to pun­ ish, but we have certain protections against arbitrary or unlawful use of that power. Due process protects us against such abuses. We also expect that the power of our government will be used fairly and in an unbiased manner. Equal protection should ensure that what happens to us is not determined by the color of our skin, our gender, our nationality, or the religion we practice. Laws are for everyone, and the protection of the law extends to all of us.

• They are public servants. Their salaries come from the public purse. Public servants possess more than a job; they have taken on special duties involving the public trust. Individuals such as legislators, public officials, police officers, judges, and prosecutors are either elected or appointed guardians of the public's interests. Arguably, they must be held to higher standards than those they guard or govern. Temptations are many, and, unfortunately, we find examples of double standards, in which public servants take advantage of their positions for special favors, rather than higher standards of exemplary behavior.

The Josephson Institute (2005), which conducts ethics training for corporations and public agencies, identifies the ethical principles that should govern public servants: pub­ lic service (treating the office as a public trust), objective judgment (striving to be free from conflicts of interest), accountability (upholding open decision making), democratic leadership (observing the letter and spirit of the law), and respectability (avoiding the appearance of impropriety). Unfortunately, as the In the News box indicates, we are not so sure in this country that our public servants represent these qualities.

When PresidentTrump was elected in 2016, it was the first time in recent memory that a president's personal business interests had been criticized as creating conflicts of interest for a sitting president. The Emoluments Clause seeks to prevent the president or legislators from making decisions to benefit themselves rather than the United States as a whole. A paragraph in Article I of the Constitution reads in part, ': .. no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, orTitle, of any kind whatever, from any King, Prince, or foreign State." Potentially problematic would be foreign governments that rent office space in Trump buildings, foreign representatives who rent rooms at Trump hotels, or tax breaks from foreign governments to Trump businesses. The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit shortly after the 2016 election, arguing that the Emolument Clause has been violated. Although

I[!ii IN THE NEWS IPublic Corruption

Transparency International compiles a list of countries ranked by the perception of corruption by public officials. For years, the countries perceived as least corrupt with the highest scores have usually been Scandinavian. In 2019, Scandinavian countries predominated in the top again, with the five highest-ranked countries and their scores being: Denmark (87), New Zealand (86), Finland (85), Singapore (85), Sweden (85), and Switzerland (85). In 2016, Canada

Source: Transparency International, 2017; Transparency International, 2020.

was ranked in the ninth place, with a score of 82, and the United Kingdom came in twelfth, with a score of 81. In 2019, both countries were in the 12th place ranking. In 2016, the United States had a ranking of 18, with a score of only 74. In 2019, the Index placed the United States in the 23n1 place, with a score of 69. Not surprisingly, the most corrupt countries, according to this perception index, include Somalia (9), South Sudan (12), and Venezuela (16) in 2019.

6 PART I Ethics and the Criminal Justice System

i:t•l=l•I Areas of Ethical Concern for Criminal Justice Professionals

Relatlonshlps with Public/Clients

Ethical concerns Sexual exploitation/coercion, bribery, rudeness, racial discrimination, and negligence

Agency/Organization Overtime fraud, theft, rulebreaking, and low work ethic

Peers/Coworkers Sexual or racial harassment, cover-ups, retaliation, gossip, and taking undue credit

the case was dismissed for a lack of standing at the Federal Dis­ QUOTE&QU ERV trict Court level, the Second Circuit Court of Appeals reinstated the Part of what is needed [for public servants] case, held that CREW did have standing, and sent the case back to is a public sense of what Madison meant the lower court for trial. It is still pending. Although whether the by wisdom and good character: balanced president has violated the Emolument Clause is a new question, perception and integrity. Integrity means the danger of public servants at any level serving their personal wholeness in public and private life consisting self-interest through their public office is a perennial problem. of habits ofjustice, temperance, courage, Ethical dilemmas for professionals in the justice system arise compassion, honesty, fortitude, and disdain for within relationships with citizens, with their agency, and with each self-pity. other. Box 1.1 illustrates the different areas of ethical concern. We Source: Delattre, 1989b: 79. study ethics because it is important for criminal justice profession­

als to recognize and analyze ethical dilemmas when they are faced(t,'l Do you believe that this is asking too much with them. A study of ethics is important to any professional, and ~ of our public servants? training in ethics helps to develop critical thinking skills (Felkenes,

1987: 26). We also could note that individuals who ignore ethics do so at

their peril. They may find themselves sliding down a slippery slope of behaviors that threaten their career and personal well-being. Even if their actions are not discovered, many people suffer from a moral crisis when they realize how far their actions have strayed from their moral ideals. We can summarize this discussion with three basic points:

1. We study ethics because criminal justice is uniquely involved in coercion, which means there are many and varied opportunities to abuse such power.

2. Almost all criminal justice professionals are public servants and, thus, owe special duties to the public they serve.

3. We study ethics to sensitize students to ethical issues and provide tools to help iden­ tify and resolve the ethical dilemmas they may face in their professional lives.

I Defining Terms morals Principles of right and wrong.

ethics The discipline of determining good and evil and defining moral duties.

The words morals and ethics are often used in daily conversation . For example, when public officials use their offices for personal profit, or when politicians accept bribes from special interest groups, they are described as unethical. When an individual does a good deed, engages in charitable activities or personal sacrifice, or takes a stand against wrongdoing, we might describe that individual as a moral person. Often, the terms morals and ethics are used interchangeably. This makes sense because both come from similar root meanings. The Greek word ethos pertains to custom (behavioral prac­ tices) or character, and the term morals is a Latin-based word with a similar meaning. As Box 1.2 shows, the inquiry into how to determine right and wrong behavior has perplexed humans for thousands of years. Philosophers through the ages owe much to the great Greek philosophers who discussed what the "good life" meant.

7 Chapter 1 Morality, Ethics, and Human Behavior

Socrates, Plato, Aristotle, and the Stoics

Socrates (469-399 BCE)

Socrates associated knowledge with virtue. He believed that bad acts are performed through ignorance. The wisest man was also the most virtuous. He believed that all people acted in a way to serve their own interests, but some people, because they were ignorant, pursued short-term happiness that would, in the long run, not make them happy. True happiness could come only from being virtuous, and virtue comes from knowledge. Thus, Socrates believed his role was to strip away self-deception and incorrect assump­ tions; hence, the so-called Socratic method of questioning a person's beliefs. The concept of eudaimonia is translated as happiness, but it is much more than that and is sometimes translated as flourishing. Abraham Maslow's concept of self-actualization is like the Greek concept of eudaimonia, the idea that one's happiness involves the pursuit of excellence and virtue.

Plato (423-347 BCE)

Plato was a student of Socrates. In fact, his writings are the source for what we know about Socrates's ideas. Because his writings were largely in the form of dialogues, with Socrates as the main character in many of them, it is hard to distinguish Socrates's ideas from Plato's. Another difficulty in summarizing Plato's ideas about ethics is that he undertook a wide-ranging exploration of many topics. His writings included discussions of ethical and political concepts, as well as metaphysical and epistemological ques­ tions. In The Republic, he, like Socrates, associates virtues with wisdom. The four virtues he specifically mentions are wisdom, courage, moderation, and justice. Three of the virtues are associated with the three classes of people he describes as making up society: the rulers (wisdom), the soldiers (courage), and the merchants (moderation because they pursue lowly pleasures). Justice is the idea that each person is in the place they should be and performs to their best ability. A good life would be one that fit the nature of the person-that is, moderation for the merchant class, courage for the soldier, and wisdom for leaders. There is, of course, the need for all virtues in every life to some degree.

Arlstotle (384-322 BCE)

Aristotle was a student of Plato. Aristotle did not believe, as did Socrates, that bad behavior came from ignorance. He believed some people had weak wills and did bad things knowing they were bad. The idea of eudaimonia is part of Aristotle's discussions of what it means to live a good life. Again, this concept, al­ though translated as happiness, has more to do with flourishing or self-actualization. The good life is one devoted to virtue and moderation. The so-called Golden Mean is choosing actions between two extremes. For instance, courage is the virtue, whereas the deficiency of courage is cowardice, and the excess of courage is foolhardiness. Generosity is the mean between stinginess and wastefulness, and so on. Aristo­ tle's virtue theory is discussed more fully in the next chapter.

Stoics (Third Century BCE, Includes Zeno, Seneca, and Epictetus) The Stoic philosophical school is associated with the idea that man is a part of nature and the essential characteristic of man is reason. Reason leads to virtue. Virtue and morality are simply rational action. While Plato divided people into the three classes of leaders, soldiers, and everyone else, the Stoics sim­ ply saw two groups: those who were rational/virtuous and those who were irrational/evil. They perceived life as a battle against the passions. They argued that people should not seek pleasure but should seek virtue, because that is the only true happiness. Moreover, they should seek virtue out of duty, not because it will give them pleasure.

For further information, go to: Stanford Encyclopedia of Phllosophy: http://plato.stanford.edu; and the Internet Encyclopedia of Philosophy: www.iep.utm.edu

Morals and Ethics Morals and morality refer to what is judged as good conduct. Immorality refers to bad conduct. We would judge someone who intentionally harms a child for his own