Dirty harry problem in law enforcement

Ethics In Criminal Justice CJ

8 Means and Ends: The Importance

of Consequences

On Christmas Eve 1968, Robert Anthony Williams sexually assaulted and murdered a ten-year-old girl in the bathroom of a YMCA in Des Moines, Iowa. Having wrapped her body in a blanket and placed it in his car, he fled from the scene and disposed of the body in the wilderness. Two days later, Williams contacted an attorney in Davenport, Iowa, indicating his desire to surrender to law enforce- ment. As part of an agreement reached between his attorney and the Davenport police, the officers who would transport him from Davenport back to Des Moines were not to question him. Williams had indicated he would provide details of the offense once in the presence of his attorney in Des Moines. During the subsequent transport, however, one of the police officers accompanying him gave Williams what has come to be known as the “Christian Burial Speech.” Knowing that Williams was a deeply religious man with a history of serious mental illness, the officer (addressing Williams as “Reverend”) stated:

I want to give you something to think about while we’re traveling down the road . . . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it . . . the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered.1

Following the speech, Williams led the officers to the young girl’s body. He was later tried and convicted of murder—a verdict which was upheld on appeal, despite claims that the evidence uncovered during the trip from Davenport to Des Moines should not have been admitted.

Although this case raises important legal questions concerning the admissibility of evidence and Sixth Amendment right to counsel, it also provokes crucial ethical questions about police interrogations, agreements and contracts, and the desirability of employing questionable means to achieve a desired (and desirable) end:

• Was the officer’s appeal to Williams’ conscience simply a case of good police work? • Does it matter that Williams was mentally ill and easily manipulated?

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Chapter 8 • Means and Ends: The Importance of Consequences 145

• Does it matter that the officer violated an agreement or promise not to question Williams during the automobile ride?

• Does it make a difference that the behavior of the officer ultimately led to success in finding the girl’s body and, thus, critical evidence?

To answer questions such as these, we need a means of identifying what is ultimately important, and how what we regard as important applies in principle to particular instances. As discussed in Chapter 2, we need to know what we value, and how decisions and actions pro- mote or fail to promote what we regard as valuable. Is there some sense in which finding the young girl’s body should be prioritized over procedural rules? Does our respect for individual rights take priority over what we regard as the best interests of the victim’s family and the community?

When we introduced the ethical importance of good decision-making in Chapter 2, we noted that our decisions and beliefs should be informed by good reasons, and having good reasons is often a matter of identifying and prioritizing key moral values and principles and the ways in which they apply to the issue or situation in question. We also noted that the subfield of ethics known as normative ethics consists of theories or frameworks that attempt to identify and prioritize moral values and, in so doing, provide guidelines for moral decision-making. Different ethical frameworks, however, prioritize different values, thus promoting different principles and pulling us toward different conclusions about moral issues and dilemmas: consequentialist theories focus on the consequences that our decisions or actions bring about; deontological theories focus on conforming our decisions and actions to relevant moral duties and obligations; and virtue ethics encourages us to develop good moral character, seeking to embody virtue while avoiding vice.

Given the importance and usefulness of these three basic ethical frameworks, we explore each of them in greater detail over the next three chapters. We begin in the present chapter with an examination of consequentialist theories—those that have us ask, “What will happen of I do X?” “Who will be affected and how?” and “How might other alternatives produce different outcomes?”

CONSEQUENTIALISM

According to consequentialism, actions are “right” so far as they have beneficial consequences. Thus, actions, laws, policies, etc., are morally right to the degree—and only to the degree—that they produce some good or some useful outcome.2 Actions themselves are neither inherently right nor inherently wrong; rather, moral worth attaches only to what decisions and actions bring about, not directly to the decisions or actions themselves. Some consequentialists, for example, would argue that there is nothing inherently wrong with an act of torture; instead, the moral permissibility of torture should be judged only by the good that it yields (or is expected to yield) relative to all other possible courses of action. In other words, the “means” can be justified by the “end.”

For a particular decision or action to be morally appropriate, then, it must on balance generate better consequences than all other available courses of action. If all available options produce both good and bad consequences, then the morally preferred one is the action that yields more overall good than harm.3 The desirability and permissibility of pretrial release policy, plea bargaining, determinate sentencing, capital punishment, and many other issues and dilemmas within criminal justice can be determined using the basic orientation of consequentialism: if, relative to other reasonable options, the overall benefits of the policy or practice outweigh the overall harm, then it is a “good” policy or practice.

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146 Part 3 • Normative Ethics: Theory and Application

While seemingly straightforward and intuitively appealing, several critical questions need to be addressed with respect to the logic and implications of consequentialist moral theory, each of which will be explored over the remainder of the chapter:

• What constitutes a “good” or desirable outcome? • For whom should the outcome be beneficial? • Should we focus on actual consequences? Expected consequences? Intended consequences? • Are consequences really the only thing that matters morally?

GOOD AND DESIRABLE CONSEQUENCES

What if we could substantially decrease the overall amount of physical pain in the world by giving everyone a “universal” vaccination which guards against almost all illnesses and diseases, but has the inescapable side effect of dulling emotions and permanently limiting our experience of joy? Would we willingly give up our experiences of joy for the sake of remaining in good health? What if we could completely eradicate crime in society, but doing so would require each of us to live under constant surveillance? Would we be willing to give up our experience of privacy and freedom for the sake of living without fear of criminal victimization?

To answer either of these questions, of course, we need to know whether we place greater value on health or on joyful emotions, on privacy and freedom or protection from criminal harm. If morality requires that we bring about good consequences through action or policy, we need to first know what things are good—in other words, what we value most. In and of itself, the idea that we should act so as to produce the best overall consequences does not answer this question for us. We need an additional “theory” of the good. We need to determine what matters.

By far the most widely discussed and influential variation of consequentialism is utilitarianism. Originally outlined by Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873), utilitarianism argues that actions are morally right so far as they maximize good consequences and/or minimize bad consequences; more specifically, however, classical utilitari- anism understands only one thing to be ultimately “good” or valuable—happiness. Every human being desires happiness, and each of us understands happiness to be the greatest possible kind of good. In John Stuart Mill’s words, “The utilitarian doctrine is that happiness is desirable, and the only thing desirable, as an end; all other things being desirable as means to that end.”4 In other words, wealth, status, food, love, knowledge, and many other things commonly understood as “goods” can only be understood as such because they are means by which we attain the more primary end of happiness.

Mill’s quote employs the distinction we made in Chapter 2 between values and goods that are intrinsic, and those that are instrumental. Recall that intrinsic goods are those things that are good in and of themselves or for their own sake; instrumental goods are those things that help us attain intrinsic goods. Thus, money is generally understood to be an instrumental good because its value lies in its ability to help us attain other things that are intrinsically good—by itself, money is of limited worth or utility. Happiness, however, is not a means to anything—we do not use it to get other things that are desirable. Instead, we desire happiness because the state of being happy is, by itself, something we consider to be good. Knowing that happiness is the highest of goods, we are in a better position to determine what constitutes good consequences, as well as what kinds of decisions and actions are morally permissible and desirable.

Whereas happiness is intrinsically valuable, honesty, legal rights, and other moral values and principles must be thought of as valuable only instrumentally—only to the extent that they aid in

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Chapter 8 • Means and Ends: The Importance of Consequences 147

realizing the ultimate goal of producing happiness. It may be the case that having legal rights aids in producing a more just society in which people are better able to pursue good lives. In this respect, legal rights may be morally desirable. However, the instrumental nature of legal rights also means that they can be trumped by other considerations in some situations. Rights to privacy, for instance, might be justifiably violated if doing so brings to light information that could potentially save many lives, thereby generating more happiness than unhappiness on the balance.

The Principle of Utility: Seeking the Greatest Happiness

Consider the following: Would it be morally permissible for local law enforcement to infringe upon privacy rights by surreptitiously monitoring the phone conversations of suspected drug dealers? For the U.S. government to do the same of suspected terrorists? In both examples, producing good consequences requires that we also cause harm. How do we resolve moral dilemmas such as these? We need a rational, overriding principle by which to guide our decision. According to utilitarianism, where we have a choice such as that between respecting privacy rights (a moral good) and protecting the community from harm (also a moral good), it is not only morally permissible but perhaps morally obligatory to choose that action or policy which has “the best overall consequences for everyone affected.”5 Because we know that “good” consequences are defined in terms of happiness, we can say that our decisions should be guided by an effort to bring about the “greatest happiness for the greatest number of people.”

The rational, overriding principle promoted by utilitarianism is thus the principle of utility or greatest happiness principle, which holds that:

• Actions are right to the extent that they promote happiness, and wrong to the extent that they produce unhappiness; and

• Because more than one “party” will be affected, the action which is “right” is that which produces the happiness for the greatest number of people (or, conversely, “eliminates pain for the greatest number of people”).

Actions (or laws, policies, practices, etc.) are morally justifiable only if they have a tendency to produce happiness or eliminate pain for the greater number of people relative to other courses of action.6 In some instances, the best overall consequences for everyone involved may include doing what is necessary to protect the well-being of the group, community, or the country, even if that course of action also causes harm in other respects. The goal of utilitarian decision- making is to produce the greatest balance of happiness over unhappiness. Thus, with respect to the questions posed at the beginning of this section, utilitarian logic may support infringing upon people’s privacy rights if, in so doing, we are bringing about a greater good for a greater number of people. Again, “means” such as wire-tapping might be justified by an “end” such as community safety.

Agent Neutrality: Consequences for Whom?

Thus far we have seen, according to the principle of utility or Greatest Happiness Principle, that: (1) actions are to be judged right or wrong only (or at least primarily) with reference to their consequences; (2) in considering consequences, what is important is the amount of happiness or unhappiness that is brought about; and (3) we must take into consideration the happiness and unhappiness experienced by all people affected by the decision. This last point is particularly important and worth emphasizing further, as it separates utilitarianism from another common form of consequentialism—that of ethical egoism (see Box 8.1).

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148 Part 3 • Normative Ethics: Theory and Application

BOX 8.1

The Rationale for Ethical Egoism

Ethical egoism suggests that self-interest is not a psychological motivation but a moral principle. We act rightly whenever we act out of consideration for our own interests, and wrongly whenever we do not. On its face, ethical egoism seems objectionable. Thus, on what basis or by what reasons might we legitimately support such a principle? The most common justifica- tions for ethical egoism are as follows:

• We know what is in our own interests, while we can know the needs and interests of other people only imperfectly. If we attempt to look after the needs and interests of others, we may well do more harm than good. If we limit our concern to ourselves, we are more likely to “get it right.”

• Looking out for other people’s interests is akin to invading their privacy. We should “mind our own business.”

• Aiding or assisting others is degrading to them— it is an assault to their dignity and self-respect. In a way, it suggests that others are incapable of meeting their own needs and caring for their own interests. In taking care of others, we may even be fostering a cycle of passivity and dependence, discouraging them from being or becoming self-reliant.

• Each of us has one—and as far as we know only one—life to live. Thus, we have a single oppor- tunity to find success, fulfillment, or happiness. Altruism would have us sacrifice that opportunity (or parts of it) for the sake of other people or the common good. Consequently, altruistic obliga- tions inhibit the development of outstanding individuals and, because great societies are achieved through the work and insight of great individuals, we should allow space for outstanding individuals to flourish.

As an example, consider cases such as mandated drug treatment or involuntary mental health intervention. These paternalistic practices involved are premised upon the notion that educated and trained professionals are in a position to understand the interests of others and assist them in overcoming their maladies. As we have

seen, however, ethical egoism questions whether we can ever know the needs and interests of others. Consequently, not only might paternalistic practices be misguided and unfruitful, they may also be construed as invasions of privacy and affronts to the dignity of those whom we are attempting to aid. Ethical egoism might raise the following concerns:

• Treatment services are not based on the patient’s expressed wants, needs, or desires, but on the professional’s “expert” knowledge of what the patient needs. In effect, experts presume to know patients’ needs and interests better than the patients themselves do. Are these assumptions accurate, or might they do more harm than good?

• Some have argued that patients who are treated against their will eventually come to appreciate the services they have received. The argument is that persons who are mentally ill or drug dependent are not—because of their illness—in a position to know what is in their best interests. Because of this, they may initially resist treatment. Once they are “better,” how- ever, they come to realize that treatment was in their best interest and are grateful for the inter- vention. Would you agree that persons who are drug dependent or suffering from a mental disorder such as major depression or schizo- phrenia are incapable of knowing their own interests because of their “illness?” Do you agree that many people who are treated without consent might eventually be thankful for the intervention?

Source: Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul (Eds.), Self-Interest (Cambridge, MA: Cambridge University Press, 1997), pp. 286–307; James Rachels, The Elements of Moral Philosophy (New York: McGraw-Hill, 2002); Ayn Rand, The Virtue of Selfishness (New York: Signet, 1964); Alen A. Stone, Mental Health Law: A System in Transition (Washington, DC: U.S. Government Printing Office, 1975); J. Beck, and E. Golowka, “A Study of Enforced Treatment in Relation to Stone’s ‘Thank You’ Therapy,” Behavioral Sciences and the Law, 6(4), 559 (1988).

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Recall from Chapter 6 that ethical egoism demands that our decisions be guided by self-interest that each of us should—indeed, is morally obligated to—act so as to satisfy our own best interests or maximize our personal welfare. Ethical egoism is consequentialist in that, like utilitarianism, it is concerned primarily with the consequences of our actions. However, where ethical egoism argues that what matter most are consequences for ourselves, utilitarianism holds that our decisions should produce the greatest happiness for the greatest number of people. The“all people affected”aspect of the principle of utility means that no one person’s happiness is more important than anyone else’s. In other words, each person’s welfare is equally important. As John Stuart Mill wrote,

The happiness which forms the utilitarian standard of what is right . . . is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator.7

Thus, utilitarianism requires that we weigh equally the happiness of everyone affected by our actions, without placing more or less importance on that of anyone (including ourselves). In fact, in some cases, the morally right action may be one in which we endure harm or pain in the interest of bringing about happiness or reducing suffering for a greater number of people. We cannot, then, consider our own happiness to be more important than anyone else’s—much like we cannot (or should not) make distinctions on the basis of personal relationships, wealth, status, race, gender, age, or any other potential source of bias. Utilitarianism demands that we become “disinter- ested spectators” in making a rational assessment of what consequences will result from our actions and in determining which course of action will have the most beneficial consequences for everyone (see Box 8.2).8 We are to be objective, unbiased, “neutral” decision-makers, with self-interest, the welfare of family, friends, colleagues, and so on granted no special moral attention.

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BOX 8.2

Plea Bargaining and the Greatest Happiness Principle

The practice of plea bargaining is one that is widely employed in criminal justice, yet has been attacked from a variety of perspectives. In effect, a plea bargain is an agreement between a defendant and the prosecution whereby the latter reduces charges or recommends a reduced sentence in exchange for the defendant pleading guilty before (or, on occasion, during) trial. Plea bargaining became a popular means of resolving criminal cases in the early decades of the twentieth century and, today, over 90 percent of crim- inal cases are disposed of through plea bargains.

Utilitarianism would have us consider the conse- quences of plea bargaining for everyone affected by its practice. Morally “good” practices are those that pro- duce the greatest happiness (or eliminate the greatest

pain) for the greatest number of people. In the case of plea bargaining, we would need to consider the ways in which it affects the defendant, prosecution, victim(s), and the greater community. Because each of these parties will be affected, the morality of plea bargaining becomes a matter of whether it tends to produce the “greatest happiness for the greatest number of people” when compared with alternative responses (in this case, a criminal trial). What consequences—good and bad— are produced by the practice of plea bargaining? Do the “good” consequences sufficiently outweigh the “bad” such that plea bargaining can be morally justified on utilitarian grounds?

Following is a list of possible effects, both bene- ficial and detrimental, to each of the major parties

(continued)

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150 Part 3 • Normative Ethics: Theory and Application

MEASURING HAPPINESS: QUANTITATIVE HEDONISM

If our guiding moral principle is one which obligates us to attempt to maximize the happiness of everyone affected by our decisions and actions, we need to know a bit more about what “happiness” is and how we are to “measure” it for purposes of choice-making. Although the answer to each of these questions is a matter of continuing dispute within ethics, it may be valuable to consider the responses of Bentham and Mill themselves.

affected. As you read through them, weigh the costs and benefits and ask yourself whether the practice of plea bargaining on the whole passes the test of greatest happiness. If so, are there other reasons that plea bargaining might not be morally desirable?

• Prosecution. By most accounts, the party most positively affected by the practice of plea bargaining is the prosecution. Reaching a compromise with the defendant saves the prosecution countless hours of preparation, the time and monetary costs of trial, and ensures a conviction. This latter point is significant, as prosecutors often face strong administrative and political pressures to maintain a high conviction rate. This tension only increases where district attorneys are elected and must appease the public to secure reelection. Particularly in cases where the prosecution’s case is weak, plea bargaining can serve a variety of interests with relatively few negative consequences.

• Victim(s). Critics have argued that plea bargaining often leaves victims feeling as though justice has not been done. Defendants often receive more lenient sentences than would have been imposed by a judge following a conviction. We might imagine how a rape victim would feel upon learning that the offender had pled guilty to a lesser sexual assault charge and will only serve a minimal amount of time in prison. On the other hand, victims are spared the pain of enduring— and perhaps participating in—a criminal trial. As well, even though a lesser sentence may be imposed, victims are not exposed to the uncer- tainty that comes with not knowing whether a jury will reach a guilty verdict. In other words, the victim is assured that the offender will be punished in some fashion and to some extent.

• Defendant. Although on the surface it may seem as if the defendant has the most to gain from plea bargaining (e.g., a lesser charge, reduced

sentence), the alleged offender may also be most negatively affected by the process. Defendants find themselves in the unattractive predicament of having to choose between pleading guilty and thus ensuring their own punishment, or braving the uncertainty of a criminal trial that may or may not bring a conviction on a more serious charge and/or a harsher punishment. This dilemma is especially troubling in cases involving innocent defendants who may fear being found guilty by a jury following an unsuccessful defense. Those defendants who are poor, represented by public defenders, and/or do not understand the legal process may be especially at risk. Critics have argued that plea bargaining exploits the fear and uncertainty that defendants feel, thereby coercing them into surrendering their constitutional (Sixth Amendment) right to a trial by jury.

• Community. In some ways, plea bargaining serves the interests of the community. Firstly, the costs associated with criminal trials are shouldered by taxpayers. If most criminal cases went to trial, the financial burden on taxpayers would increase substantially. As well, in those cases involving defendants who present a continued danger to the community (e.g., violent offenders, drug dealers), plea bargaining offers a more certain means of ensuring public protection—even if for a shorter period of time. On the other hand, if the public feels that criminals are “getting off easy” and/or that innocent persons are being coerced into pleading guilty to crimes they did not commit, pubic confidence in and respect for the legal system may be undermined.

Source: Jeff Palmer, “Abolishing Plea Bargaining: An End to the Same Old Song and Dance,” American Journal of Criminal Law, 26 (3), 505–535 (1999); Michael Gorr, “The Morality of Plea Bargaining,” Social Theory and Practice, 26 (1), 129–151 (2000); Kenneth Kipnis, “Criminal Justice and the Negotiated Plea,” Ethics, 86 (2), 93–106 (1976).

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HEDONISTIC GOOD Bentham defined “good” not simply as happiness, but more specifically as pleasure. What is “good” is happiness, and what makes people happy is pleasure. Bentham’s position on this matter followed a philosophical tradition dating as far back as the ancient Greeks known as hedonism (hedone = a state in which pleasure is present or a quality that produces pleasure). Hedonism is a simple and popular theory which suggests that pleasure and pain are the only things we can say are intrinsically good or intrinsically bad.9 Everything that we normally consider good is good only because it in some way produces pleasure; while anything bad is bad because it produces pain. Thus, pleasure is considered central to human motivation, choice, and action—including moral considerations. While there has been long-standing disagreement about what kinds of things are pleasurable, all hedonists favor the basic idea that pleasure—whether linked to good food, wine, sex, or to family and friendship, tranquility, or knowledge—is the “ultimate good” in life and the only thing worth pursuing.

Bentham’s utilitarianism fits squarely within this broader tradition of hedonism. More fundamentally, Bentham’s moral philosophy assumes that human beings are by nature hedo- nistic or pleasure-seeking. Indeed, all human behavior ultimately is motivated by pleasure and/or pain alone. Thus, we naturally seek to maximize pleasure while avoiding pain. This is the principle of psychological hedonism: the claim that the pursuit of pleasure is a fact of human nature. As Bentham famously wrote, “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do . . . ” In terms of normative implications, psychological hedonism suggests that we can determine what we should do by appealing to what we naturally seek—happiness in the form of pleasure (see Box 8.3).

THE FELICITY CALCULUS How do notions of happiness and pleasure assist us in making moral decisions? Bentham argued that we can make moral decisions by considering the amount of pleasure or pain that our actions bring. More specifically, he believed that we can quantify such pleasures and pains along a number of dimensions. Bentham described this process of categorizing and measuring pleasures as the felicity calculus (also sometimes referred to as the “hedonic calculus,”“calculus of pleasures,” or simply the “utilitarian calculus”). To aid our moral decision- making, pleasure can be measured by seven dimensions:

• Intensity of pleasure—how strong is it? • Duration of pleasure—how long does it last? • Certainty of pleasure—how sure are we that it will be experienced? • Proximity of pleasure—how soon will it be experienced? • Fecundity—will the pleasure lead to or produce other pleasures as well? • Purity—how free will the pleasure be from pain? • Extent—how many people are affected?

Bentham suggested that whenever we are contemplating an action, we should analyze its consequences in terms of these seven dimensions of pleasure, contrasting it with alternative courses of action.10 For instance, suppose you are trying to decide whether to stay home and study for a midterm exam tonight or go out with friends. In making your decision, you should consider how intense the pleasures of studying versus going out with friends are, how long those pleasures will last, how certain you are that these respective pleasures will occur, how soon you will experience them, whether they will lead to further instances of happiness, how free from pain either or both will be, and whether they each will bring pleasure to other people as well. Your felicity calculus might look something like Table 8.1 (numbers in parentheses are “hedons” or

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“happiness units” along a ten-point scale with the score of “1” representing very low happiness and the score of “10” representing very high happiness).

Admittedly, the above example is drawn from decision-making in everyday life rather than from moral choice-making; however, the same “calculus” applies to the decisions we make that have ethical implications. To illustrate, if you were considering whether to lie to a friend in order to protect that person’s feelings, to have an abortion in order to not be subjected to parenting as a

BOX 8.3

Hedonism, the “War on Drugs,” and “Noble-Cause” Corruption

Though remaining within the tradition of hedonism, Bentham made some important modifications. In par- ticular, his utilitarianism represents a variation of social hedonism (as distinguished from egoistic hedonism). Social hedonism regards pleasure as the ultimate good, but demands that we consider the pleasures and pains of others in our moral contemplations. In fact, utilitarianism demands that, at times, we place the interests of others above our own if in so doing the result is happiness to a greater number of people. Indeed, the Greatest Happiness Principle demands that our actions bring the greatest amount of pleasure to the greatest number of people. This is the social and altruistic element of utilitarianism, and this is what distinguishes it from the tradition of egoistic hedonism in moral philosophy.

One prominent issue in criminal justice ethics that is an interesting illustration of this difference is police corruption—particularly as it intersects with the “war on drugs.” Indeed, drugs are a significant force in police deviance, with as many as half of all convic- tions in police corruption cases involving drug-related crimes. As we saw in Chapter 5, much corruption in law enforcement, courts, and corrections can be explained through egoism—selfish desires for personal gain. In other cases, however, corruption might be better understood as stemming from socially hedonis- tic incentives; that is, a desire to produce good consequences for others. In their discussion of drug- related police corruption, for instance, Kappeler, Sluder, and Alpert describe four types of corruption that can be linked with drugs:

• Use corruption occurs where police officers use illegal drugs. In one study, as many as 20 percent of officers admitted to smoking marijuana.

• Economic corruption occurs where officers use their power and discretion for personal

monetary gain, such as by keeping drug money confiscated from offenders.

• Police violence may occur in the context of extracting confessions or information from drug suspects.

• Subjugation of a defendant’s rights occurs where police commit perjury or plant drugs on a suspect in the interest of obtaining a confession or getting a conviction.

While the first two of these forms of corruption would seem to be explicable in terms of egoistic hedonism (i.e., self-interested pursuit of pleasure or personal gain), the latter two (use of violence and subjugation of rights) might be linked to what is some- times called noble-cause corruption. Rather than a purely egoistic form of corruption, noble-cause corrup- tion occurs when police officers violate ethical and legal obligations in the interest of achieving the “good” ends of police work. Getting the “bad guys” and protecting communities and potential victims are seen as more important than ethical and procedural restrictions on police conduct. Planting evidence at a crime scene, for instance, may result in the apprehension and conviction of a notorious offender who has avoided criminal prosecution and continues to present a significant danger to the community. While “noble- cause” corruption is by all accounts still unethical and often illegal, would you consider the latter two types of drug-related corruption to be less morally reprehensible than the first two?

Source: Roy Roberg, Kenneth Novak, and Gary Cordner, Police and Society, 3rd ed. (Los Angeles, CA: Roxbury, 2005), pp. 304–305; Victor Kappeler, Richard Sluder, and Geoffrey Alpert, Forces of Deviance: Understanding the Dark Side of Policing, 2nd ed. (Prospect Heights, IL: Waveland, 1998), pp. 166–173.

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teenager, or to take sick leave from work when not sick (a type of “stealing”) in order to have some time off from a stress-filled period in your life, you could apply the same formula. To be clear, however, there are some obvious problems with this approach. One of these problems is that Bentham focused on the quantity of pleasure as opposed to its quality. In the above example, the felicity calculus would have you go out with friends rather than study for your exam. For at least some people, this would seem unsettling. So, what is missing from the formula?

Quality of Pleasure: Quantitative versus Qualitative Hedonism

Bentham’s utilitarianism describes “good” in terms of pleasure and, more specifically, the quantity of pleasure that results from our actions. As we have seen, this is consistent with the doctrine of hedonism—that pleasure and pain are the only things that we can say are intrinsically good and bad, with everything else being in some way dependent on or secondary to pleasure and pain. However, even within the tradition of hedonism, there has been some debate regarding the inter- pretation of happiness and pleasure for purposes of moral decision-making.11 Perhaps the most notable detractor from Bentham’s original formulation of utilitarianism was his disciple, John Stuart Mill (Mill’s father was a friend of Bentham’s and a key figure within his intellectual circle). Though working within the utilitarian tradition established by Bentham, Mill sought to rework

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TABLE 8.1 Bentham and Measuring Pleasure

Studying for the Exam Going Out with Friends

Intensity Not intensely pleasurable; perhaps even more painful than pleasurable (2)

Moderately to very intense, depending upon the specifics of the evening (7)

Duration Potentially long lasting; though studying is short lived, the knowledge you gain will last indefinitely (9)

Short lived; likely lasts only a few hours (2)

Certainty Not very certain that it will be pleasurable; in fact, more certain that it will be painful (3)

Fairly certain that you’ll have a good time (7)

Proximity More than likely, you won’t experience the pleasure until later in life, although doing on the exam could be pleasurable in the near future (4)

Pleasure will be experienced in the very near future (9)

Fecundity There are many additional benefits that come from studying: knowledge, wisdom, better career prospects, income, etc. (9)

Probably will not lead to other pleasures, although you could meet new friends, contacts, learn new things, etc. (2)

Purity Probably not free from pain, unless you really enjoy the subject (2)

Could lead to some pain (e.g., arguments with friends, hangover), but overall probably more pure than not (7)

Extent In the near future, studying probably only benefits you; but it is possible that your knowledge could benefit many other people in the future (4)

May bring pleasure to your friends as well, but mostly affects your happiness (5)

Score 33 39

Ethics, Crime, and Criminal Justice, Second Edition, by Christopher R. Williams and Bruce A. Arrigo. Published by Prentice Hall. Copyright © 2012 by Pearson Education, Inc.

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154 Part 3 • Normative Ethics: Theory and Application

what he understood as several problematic dimensions of Bentham’s original formulation. In particular, while Bentham saw pleasure as good and pain as bad, John Stuart Mill argued that there are degrees of goodness associated with different types of pleasures. In other words, we should understand some pleasures as better than others.

Given the formulation of the felicity calculus put forth by Bentham, we could easily conclude that we should go out with friends rather than study for our examination, or that watching reality television is better than pursuing knowledge in the arts and sciences. These sorts of prospects were especially troubling to Mill. In fact, he believed that utilitarianism needed to be reworked in order to demonstrate that certain pleasures (e.g., reading Shakespeare) were more important than, better than, or of a higher quality than other pleasures. As Mill saw it, the problem was that the felicity calculus was purely quantitative in nature, with no regard for qualitative differences in types of pleasures. In turn, Mill claimed that our concern should not be with the quantity of pleasure, but with its quality.12

Mill argued that some kinds of pleasures are of higher quality than other kinds. Thus, “lower” pleasures such as eating, drinking, and sexual activity are qualitatively different from the “higher” pleasures of intellectual, creative, and spiritual activity.13 The pleasure of studying for and doing well on an exam is of a higher quality than that of going out with friends and having a few drinks; the pleasure of reading classic literature is greater than that of reading a sports magazine; and the pleasure of doing volunteer work to help persons in need is of a higher quality than that of going fishing. In cases such as these, Mill argued that there are important differences between types of pleasures, and that these differences are a function of the quality of enjoyment being experienced: “It is quite compatible with the principle of utility to recognize the fact that some kinds of pleasures are more desirable and more valuable than others.”14

As an example, Mill suggested that, “anyone who has experienced the pleasure of solving a mathematical equation will attest to the fact that it is indeed superior in kind to the pleasure of eating an exquisite meal.” Even though the “lower” pleasure of eating an exquisite meal may be more intensely gratifying, the “higher” pleasures tend to be of more benefit in the long run. As most of us have experienced, the pleasure associated with eating a good meal comes and goes in a matter of hours. Even though it may be intensely pleasurable during the time we consume the food, it does not offer any long-term pleasure—and may even produce long-term pain (e.g., overeating, weight gain). “Higher” pleasures—though not always immediately and intensely experienced—are capable of contributing to our continued happiness.

Although Mill accepted the basic principle of hedonism (i.e., that pleasure is the basis of determining what is good), he clearly believed some pleasures were better than others.15 The question then becomes, “By what or whose criteria are we to make such determinations?” For Bentham, pleasure is “measured” in terms of duration, certainty, fecundity, and as forth. However, for Mill “better” pleasures are those that possess a higher quality.16 With quality of pleasure in mind, Mill essentially reformulated the Greatest Happiness Principle from “greatest happiness for the greatest number of people,” to the greatest quantity and quality of happiness for the greatest number of people. The problem with this reformulation is that many people do not know which qualities are desirable and valuable and, thus, are unaware of those qualities that should be taken into consideration in the Greatest Happiness Principle. So, how should qualities of pleasure be judged?

In response, Mill claimed that “Of two pleasures, if there be one to which all or almost all who have an experience of both give a decided preference . . . that is the more desirable pleasure.”17 In determining which types of pleasures are of higher quality, we must rely on the opinions of those who have experienced various types. In other words, establishing the quality of a pleasure requires a judge or an “expert” on the subject. This person can distinguish between them. Thus, for example, we cannot expect a person who has never solved a complex mathematical equation to be able to distinguish the happiness derived from it versus the pleasure experienced

Ethics, Crime, and Criminal Justice, Second Edition, by Christopher R. Williams and Bruce A. Arrigo. Published by Prentice Hall. Copyright © 2012 by Pearson Education, Inc.

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Chapter 8 • Means and Ends: The Importance of Consequences 155

while watching football. Following Mill’s utilitarian theory, anyone who has experienced both of these types of pleasure clearly should recognize that solving a difficult arithmetic problem produces happiness that exceeds the pleasure experienced from watching football. Of course, many people have no point of reference when it comes to deciphering complicated mathematical equations. As such, they are not in a position to make a distinction between the quality of happi- ness that follows from doing this successfully versus enjoying an athletic event on television. In fact, given the choice, we might suspect that most people would choose the pleasure of watch- ing football. For Mill, this possibility was the source of considerable concern. The “uncultivated cannot be competent judges of cultivation,” he argued, as their preference for “lower” desires and pleasures may lead to the eventual degeneration of entire cultures.