Ethics in Criminal Justice

Ethics in Criminal Justice In Search of the Truth

Ethics in Criminal Justice

SAM S. SOURYAL Professor Emeritus, Sam Houston State University

First published 2015 by Anderson Publishing

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In memory of Dr. T. Henry Souryal, my mentor, my friend, and my brother. He was not ours, and he was not mine.

He was a gift from God who succeeded, a little bit, in making the world a little better, and when he was finished, he silently yet gallantly went Home.

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Contents

Preface

Foreword

Acknowledgments

On the Virtues of Man

Chapter 1 Acquainting Yourself with Ethics: A Tour of the Ethics Hall of Fame

Overview

Exhibit 1—Knowledge and Reasoning

Exhibit 2—Intellect and Truth

Exhibit 3—The Nature of Reality

Exhibit 4—The Nature of Morality

Exhibit 5—Nature of Goodness

Exhibit 6—Actions and Consequences

Exhibit 7—Determinism and Intentionalism

Exhibit 8—The Ethical Person

Review Questions

References

Chapter 2 Familiarizing Yourself with Ethics: Nature, Definitions, and Categories

Overview

Warning: The Deception of Occupational Subculture

The Philosophy of Wisdom

The Nature of Ethics

The Scope of Ethics

Ethical Theory

Credibility of Ethics

Categories of Ethical Theory: Normative and Metaethics

Normative Ethics: Deontological and Teleological

Historical Origins of Ethics

Review Questions

References

Chapter 3 Understanding Criminal Justice Ethics: Sources and Sanctions

Overview

Ethics of Natural Law

Ethics of Religious Testaments

Ethics of Constitutional Provisions

Ethics of Law

Professional Codes of Ethics

Philosophical Theories of Ethics

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Review Questions

References

Chapter 4 Meeting the Masters: Ethical Theories, Concepts, and Issues

Overview

The Stoicism School: Ethics of Freedom from Passion, Moral Fortitude, and Tranquility (Epictetus)

The Hedonistic School: Ethics of the Pursuit of Pleasure (Aristippus and Epicurus)

The Virtue School: Ethics of Knowledge and Moral Character (Plato and Aristotle)

The Religious (Scholastic) School: Ethics of the Love of God (Augustine and Aquinas)

The Naturalistic School: Ethics of Egoism and Power (Hobbes and Nietzsche)

Ethics of Utilitarianism (Bentham)

Ethics of Duty and Reason (Kant)

The Existential School: Ethics of Moral Individualism and Freedom of Choice (Sartre and de Beauvoir)

Ethics of Social Justice (Rawls)

Review Questions

References

Chapter 5 The Ambivalent Reality: Major Unethical Themes in Criminal Justice Management

Overview

The Imperative of Ethics in Criminal Justice

A House on the Sand: The Spoils of Management

The Harvest of Shame

Principle-Based Management

Rushmorean Criminal Justice Agencies

A Profile of Rushmorean Courage: Coleen Rowley, the FBI Agent Who Directed Her Boss

The Extent of Corruption in Criminal Justice Agencies

Review Questions

References

Chapter 6 Lying and Deception in Criminal Justice

Introduction and Confession

General Theory of Lying

The Origins of Lying

The Doctrine of Veracity

Can Lying Be Morally Justifiable?

Basic Rules on Lying

The Extent of Lying

Institutional Lying in Criminal Justice

Conclusions

Review Questions

References

Chapter 7 Racial Prejudice and Racial Discrimination

Overview

Glimpses of Racism in Criminal Justice

Nature of Racial Injustice

The Ethical View of Racial Injustice

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Basic Theory of Prejudice

Prejudice and Knowledge

Targets of Prejudice

Types of Prejudice: Cultural and Psychological

Basic Theory of Discrimination

Roots of Racism

Institutional Racism

Exploratory Issues in Racism

Moral Guidelines in Understanding Racism

Conclusions

Review Questions

References

Chapter 8 Egoism and the Abuse of Authority

Overview

Glimpses of Egoism in Criminal Justice

Perceptions of Egoism in Criminal Justice

The Blindness of Egoism

Types of Egoism

Official Responsibility: The Antidote for Natural Egoism

Capital Punishment as State Egoism

Egoism—Ethics of Means and Ends

Ethical Guidelines

Conclusions

Review Questions

References

Chapter 9 Misguided Loyalties: To Whom, to What, at What Price?

Overview

The Continuing Controversy

The Ideal of Loyalty

The Grammar of Workplace Loyalties

The Physiology of Personal Loyalty to Superiors

The Peculiar Nature of Personal Loyalty to Superiors

The Paradoxical Nature of Personal Loyalty to Superiors

Two Controlling Realities

Three Self-Evident Truths

Logical Findings

Cultural and Ethical Concerns

Unionized versus Nonunionized Agencies

The Goliath of Disloyalty

The Strain of Personal Loyalty to Superiors

Arguments in Support of Personal Loyalty to Superiors

Arguments Against Personal Loyalty to Superiors

The Ethical Imperative: The Duty-Based Thesis

Review Questions

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References

Chapter 10 Ethics of Criminal Justice Today: What Is Being Done and What Can Be Done?

Overview

The Dual Essence of Criminal Justice: The Social Order and the Moral Order

The Dual Practice of Criminal Justice: The Ideal Model and the Serviceable Model

Where Do We Go from Here?

Review Questions

References

Chapter 11 Ethics and Police

Overview

The Problematic Nature of Policing

The Peculiar Environment of the Police

The Semiprofessional Professionals

The Police Prerogative to Abuse Power

The Police in Search of a Soul

The Intellectual Virtue: Ethics of Democracy

The Moral Virtue: Ethics of Shunning Corruption

Hedonistic and Obligatory Corruption

The Obligatory Ethic Not to Deceive

Can Corruption Be Administratively Stopped?

Review Questions

References

Chapter 12 Ethics and Corrections (Prisons)

Overview

The Corrections Debate

Ethics of Life for Life: The Influence of Beccaria

Ethics of Life for Life: The Morality of Punishment

Ethics of Life for Life: The Moral Justifications for Prisons

Ethics of Life for Life: A Society That Loves Walls

Ethics of Life for Life: Putting Pain Back into Prisons

From the Ethics of Life for Life to the Ethics of Man and Corrections: Changing Attitudes About Prisons

Ethics of Contemporary Corrections

Ethics of Man and Corrections: What Good Is Brutality?

Ethics of Man and Corrections: The Scapegoating Theory

Ethics of Man and Corrections: The Holier-than-Thou Syndrome

Ethics of Man and Corrections: We’re All Doing Time

Ethics of Man and Corrections: Postcards from Prison

Ethics of Man and Corrections: Rehabilitation Through Inner Corrections

Corruption of Prison Personnel

Review Questions

References

Chapter 13 Ethics of Probation and Parole

Overview

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The Professional Orientation of Probation and Parole

The Borderless Community

The Yellow Wind

Romancing the Stone or Stoning the Romance: Ethics of Community-Based Corrections

The Case for Community-Based Corrections

The Case Against Community-Based Corrections

Work Strategies of Probation and Parole Practitioners

Common Unethical Practices in Probation/Parole

Ethical Choices in Probation/Parole

Review Questions

References

Chapter 14 The Truth Revealed: Enlightenment and Practical Civility Minimize Criminality

In Essence

Evolution of Enlightenment

Enlightenment Defined

The Enlightened Mind

Development of Practical Enlightenment

The Hybrid of Enlightenment and Civility

Endorsing Enlightenment

The Other Twin: Practical Civility

Practical Civility Defined

Evolution of Practical Civility

What Do the Theorists Say?

Practical Civility by George Washington

Practical Civility by James Q. Wilson

Practical Civility by Tom Morris

Practical Civility by James O’Toole

Five Stories to Remember

Significant Reflections

A Final Word

Review Questions

References

Author Index

Subject Index

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Preface

Despite advances in the legal and technological aspects of criminal justice, practitioners continue to face difficult moral choices. These include whether to arrest, use deadly force, prosecute, offer plea bargaining, impose punishment, and, from an organizational standpoint, whether to comply with policy, cooperate with supervisors, or treat the public equitably. As in other public service sectors where discretion is essential, individual and institutional ethics become major vectors. Surprisingly, while the consequences of such choices continue to cause great public anguish, the moral grounds for these choices have seldom been examined.

In a free society, issues of crime and punishment are perhaps the most deserving of the moral imperative of justice—a quality the state must extend freely to the guilty and the innocent alike. Moral behaviors need no validation by the state, because they constitute justice unto themselves. Thus, in responding to immoral behaviors, civilized governments cannot rightfully employ immoral means. Succinctly stated, the more civilized the state, the more willing it is to address the “worst in us” by the “noble means” available.

The purpose of this book is not to question the value of the law as the primary instrument of criminal justice, but to present ethics as an “umbrella of civility” under which the law can be more meaningful, rational, and obeyable. By way of analogy, if the law is compared to the Old Testament, ethics is comparable to the New Testament. They complement each other, making Christianity blissful and tolerable. This view of ethics may not impress hardened practitioners who believe that we “live by the law” but forget that we also “die by the law.” By the same token, this view may not enthuse students who are so enamored with the trimmings of criminal justice that they overlook its noble substance. To both of these groups, there is one rational reply: “No one is free until we can see the truth of what we are seeking.” Without capturing the truths of criminal justice, we are left with images that may be not only irrational, but also disgraceful.

This book rejects the cynical view that ethical knowledge and moral character are peripheral to the administration of justice. Indeed, every action in the administration of justice is directed either by the moral of a rule or policy, or by the moral judgment of the practitioner who implements it. Furthermore, the obligation to “establish justice and insure domestic tranquillity” continues to be the central force behind any act of criminal justice. Therefore, without a fresh look at our weaknesses, biases, and prejudices, the young discipline of criminal justice will grow into a degenerative field; more like a temple without a god, a body without a soul, and a theory without a meaning.

In this book, students and practitioners will be introduced to the fundamentals of ethical theory, doctrines, and controversies, and the rules of moral judgment. They will be exposed to the ways and means of making moral judgment—but not in specific situations. That is beyond the capacity of any book, and must be left to the minds and hearts of the well-informed practitioner. Knowledge will be presented in two forms: (1) a thematic perspective, which will examine ethical principles common to all components of the discipline, such as wisdom, goodness, morality, and justice, as well as the common vices of deception, racial prejudice, and egoism; and (2) an area-specific perspective, which will address the state of ethics in policing, corrections, and probation and parole.

Every academic discipline or professional field is born and slowly grows from an infant into maturity. In the process, practitioners test its limits, establish its boundaries, and legitimize its claims. During the maturation process, serious excesses and failures appear that create contradiction between the goals of the field and the means by which objectives are to be met. In attempting to reason away contradiction, an introspection usually occurs urging caution, denouncing falsity, and searching for the truth. This introspection gradually hardens, constituting the collective conscience of the discipline—its soul. Eventually, the soul becomes instrumental in halting intellectual ostentation, in exposing fallacies, and in reaffirming basic values. This collective conscience keeps a vigilant eye whenever new technology is introduced or a major policy shift is inaugurated. In time, the membership of the discipline or field comes to recognize that collective conscience and call it by its true name: professional ethics.

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The field of criminal justice is certainly young, but not too distant from maturity. It lacks a unifying philosophy that can give it autonomy and inner strength. Primary issues of crime and justice still beg for clarification. Secondary issues continue to frustrate rationality; for instance, the role of the police in maintaining order, the role of prosecutors in controlling entry into the system, the role of judges in dominating the sentencing process, the role of victims in reclaiming the central court of justice, and the role of lawbreakers in sabotaging the system by ingenious means. All such claims compete in an environment of ambiguity, egoism, and fear. The resulting picture is a mosaic of incoherence and lack of scruples. Consequently, the field has not proven successful beyond mere survival. Its efficacy has been questioned, both from within by its officials, and from without by its users. Few artificial reforms have been introduced in the area of criminal justice management, the field’s most logical instrument of reform. Top management is often controlled by a syndicate of lobbying bureaucrats who lack integrative thinking and, at times, the tenacity to reason away simple problems. Middle managers are unwitting brokers who “dance on the stairway”; they are as hesitant to face those at the top as they are reluctant to confront those at the bottom. Frontline workers operate as an army of “apparatchiks,” or functionaries. They suffer from bureaucratic fatigue, a disturbing subculture, and a confused view of reality.

The introspective voice of ethics in criminal justice is yet to be heard louder and louder as the comforting shriek of a first-born infant heralds the coming of age of his parents. Until it is, criminal justice will continue to be perceived with uneasiness and suspicion.

With these well-intended thoughts, this work is dedicated to the better understanding of ethics—the indestructible soul of criminal justice.

Sam S. Souryal

Huntsville, Texas

2014

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Foreword

As a professor of political science and a retired federal prison warden, I am very familiar with the concept of The Social Contract—we willingly give up or limit some personal liberty in exchange for the organization and protection of our government. The questions that always surround this trade are how much freedom we give up versus how much protection we really need. This is an exceptional debate to have in class, and I give my students time to digest the implications and ask them to tell me what is an acceptable balance between these opposing needs. Students love to verbally fist fight over this question that is both a theoretical abstraction and a real-life imposition. They make their arguments based on the underlying assumption that government is made up of ethical, fair-minded people who are working hard at taking care of their responsibilities while not crossing over into what some would consider to be too much government in our lives.

But this classroom discussion always takes an unusual turn when I throw in the possibility that some individuals in our government may be corrupt. That is, some of the men and women that are paid to protect us, or represent us, may have ulterior motives or rules of behavior that work counter to our expectations. Ethics in government may not always rise to the standard we expect. This is why the arguments in this book, presented in an admirably clear prose style, courageously urge readers to consider and abide by two sets of moral principles accumulated since the beginning of time, mostly by philosophers. Without such principles the world would be at a loss as to whether people are living truthfully or living deceptively. If it is the former, they would deservedly enjoy a “life worth living.” If it is the latter, their pool of knowledge would simply be limited to historical shreds of dogmas, traditions, myths, and, of course, lies. While it is true that laws are designed to enhance the former reasoning and to minimize the latter occurrences, people, especially in unenlightened environments, may be unable to tell the difference; hence, the imperative of learning and exercising moral principles. Foremost among these principles, especially in the field of Criminal Justice, are those prohibiting lying and deception, racial prejudice and racial discrimination, egoism and the abuse of authority, as well as misguided loyalties.

Also as a former leader in the United States Department of Justice, I was occasionally surprised by unprofessional staff behavior that ranged from misfeasance to malfeasance, minor violations of policy to behavior that was clearly against the law. To this day I am shocked when I read of law enforcement personnel violating their oath and the public trust, particularly when they have been fully trained in the expectations of the agency and the standards of conduct. The public holds police and correctional staff to a higher standard than others…and rightly so. Somehow it does not seem necessary to teach and train law enforcement personnel about the necessity of doing the right thing. I mean, after all is said and done, it seems rather redundant to have to tell those that enforce regulations and the law that they must comply with the same. It is axiomatic that police, correctional officers, and other agents of justice follow the rules. Indeed, it was the English philosopher Edmond Burke (1729–1797) who advocated that the most malicious sin in public service occurs when governments violate their own rules. Yet we read every day about new examples of justice practitioners being terminated, arrested, or sentenced for violating the public trust…our trust. We hear of bribes, unacceptable use of force, simple lying, theft of public property, and hundreds of other examples of immoral activity. It seems bad enough when an individual citizen violates our norms of behavior, but when a public servant does so it borders on the absurd. We have high expectations. Yet, some would say that applied ethics is relative to a situation and dependent upon an individual’s interpretation of the immediate facts. If our life is in danger, most of us do not stop to consider the relevance of Natural law, State law, or Federal law, (laws we had taken a solemn oath to observe). the morality of an appropriate response, or the constitutionality of swift action that must be taken—survival and all of that. Still, we require police, correctional, parole and probation personnel to always respond in a legal, moral, and reasonable manner. In our democratic republic we expect public servants to respond to all of us with respect.

In this book, although unethical and illegal behaviors on the part of law enforcement personnel are

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discussed, it is critical to remember that those who violate our expectations and precepts of justice and fairness are not representative of the many officials that do their work well. As one who worked in the field for over thirty years, I was very proud to be associated with colleagues who were professional, reasonable, and fair to all in their daily work. The vast majority of men and women with whom I was associated were honest public servants in every sense of the term.

Dr. Souryal’s exceptional text looks at ethics in the field of criminal justice from both the philosophical and the pragmatic points of view. From the former, he focuses on the phenomenon of enlightenment, and from the latter he focuses on the inevitable need for civility, explaining the impact of these two essential phenomena on understanding the human condition. He is an educator and presents the issue of ethical decision-making, and where it goes awry, from the clear vision of a scholar who understands and outlines the history of the field of ethics and how it relates to people in the arena of justice. Souryal presents a thematic approach to ethics and offers guidance to various justice fields on how moral decision-making can be reinforced in subfields of justice in America.

Sam Souryal does challenge the system as he considers the cause and effect of unethical behavior within the field of criminal justice. He presents concerns that force us to question if agencies are unclear as to their expectations of behavior. This text is important to all of us and helps shape the dialog in the classroom and in the field.

Dr. Peter M. Carlson

Professor of Public Administration

Christopher Newport University

Newport News, VA

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Acknowledgments

Inspiration for this book came from my students. To be precise, it came from undergraduates who were dedicated to the ideals of criminal justice, yet were dismayed by its image. They could not comprehend the “schizophrenic ballad” of criminal justice: How could it be that criminal justice practitioners serve such a “noble cause,” yet many of them are accused—and, worse still, found guilty—of so much injustice and cruelty, and so many acts of corruption?

In my early years of teaching, I responded to my students’skepticism by naively suggesting that the problem was inadequate control. So, I wrote about discipline, supervision, and other administrative tools. In later years, I also naively thought that the problem was a lack of guidance. So, I wrote about motivation, leadership, job enrichment, and similar managerial tools. In recent years it became apparent to me that, while administration and management have a major role to play, the “schizophrenic ballad” of criminal justice is the product of the ethical indifference of practitioners, especially those who claim to be administrators and managers. While many of these may appear to be efficient, effective, eloquent, and polished, in reality many may still be dishonest and immoral.

Criminal justice is essentially a moral function, and professional criminal justice agencies must operate in an environment of moral values. When these values are internalized in the soul of practitioners, agencies flourish in professionalism and decency, and when they are not, they sink in the toxicity of corruption and decay. In the latter case, the situation can be reversed only through a Herculean effort by conscientious practitioners and administrators who possess the moral fortitude to stem the tide and restore institutional morality.

The intellectual guidance offered by the works of John Kleinig, Sissela Bok, Peter Manning, Samuel Walker, Herman Goldstein, Charles Friel, and Michael Braswell was instrumental in treating this difficult subject. I quoted them frequently and liberally. I wish I was able to read their minds, to penetrate their reasoning, and to engage them in the dialectics of crime, justice, and ethical values. If I erred, however, in responding to their challenges, only my passion for justice is to blame.

My thanks are due to all those who assisted in this project, especially Gerald Jones (the constant skeptic), George Eisenberg (the interpreter of history), Adam Trahan (the silent enhancer), and Dennis Potts (the outspoken critic, the kind every doctoral program should have—and keep!). They painstakingly read several drafts of this manuscript and provided me with invaluable insights into the workings of many criminal justice agencies with which I was barely familiar. Dennis Potts, in particular, was concerned about making this book “more friendly.” I am glad I did not take his advice, because too many friendly books remain on the shelf. Perhaps that is also a reason why Mr. Potts—who had left academe when the first edition appeared—has recently returned! I owe a very special thanks to Elisabeth Roszmann Ebben, who was my editor at Elsevier/Anderson Publishing for many editions of this text. She has been helpful, patient, and always a joy to work with.

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On the Virtues of Man

Three monkeys sat in a coconut tree Discussing things as they are said to be. Said one to the others, “Now listen you two, There’s a certain rumor that can’t be true. That man descended from our noble race, The very idea is a dire disgrace. No monkey ever deserted his wife. Starved his babies and ruined their life. And you never heard of a mother monk Leaving her babies with others to bunk; Or passing them on from one to another ’Til they hardly know who is their mother. And another thing, you will never see A monk build a fence around a coconut tree And let all the coconuts go to waste. Forbidding all other monks to taste. Why, if I built a fence around this tree, Starvation would force you to steal from me. And here’s another thing a monk won’t do, Go out at night and go on a stew And use a club or a gun or a knife To take some other monkey’s life. Yes, man descended, the ornery cuss, But brother, he didn’t descend from us.”

Author Unknown

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1 Acquainting Yourself with Ethics

A Tour of the Ethics Hall of Fame

They honestly consider they are doing the right thing.

E. W. Elkington, 1907, on New Guinea Cannibals

Or are you a clear thinker examining what is good and useful for society and spending your life in building what is useful and destroying what is harmful?

Kahlil Gibran, Mirrors of the Soul

Good laws lead to the making of better ones; bad laws bring about worse. As soon as any man says of the affairs of the State, “What does it matter to me?” the State may be given up for lost.

Rousseau

The present moral crisis is due among other things to the demand for a moral code which

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