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Ethics in Criminal Justice


2


Ethics in Criminal Justice In Search of the Truth


SAM S. SOURYAL Professor Emeritus, Sam Houston State University


3


First published 2015 by Anderson Publishing


Published 2015 by Routledge


2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN


and by Routledge


711 Third Avenue, New York, NY 10017, USA


Routledge is an imprint of the Taylor & Francis Group, an informa business


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Designer: Matthew Limbert


Sixth Edition: © 2015 Taylor & Francis. All rights reserved.


Fifth Edition: 2011


Fourth Edition: 2007


Third Edition: 2003


Second Edition: 1998


First Edition: 1992


No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or


hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from


the publishers.


Notices


No responsibility is assumed by the publisher for any injury and/or damage to persons or property as a matter of products liability, negligence or


otherwise, or from any use of operation of any methods, products, instructions or ideas contained in the material herein.


Practitioners and researchers must always rely on their own experience and knowledge in evaluating and using any information, methods,


compounds, or experiments described herein. In using such information or methods they should be mindful of their own safety and the safety of


others, including parties for


Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to


infringe.


This book and the individual contributions contained in it are protected under copyright by the Publisher (other than as may be noted herein).


Library of Congress Cataloging-in-Publication Data


Application Submitted


British Library Cataloguing-in-Publication Data


A catalogue record for this book is available from the British Library


ISBN 978-0-323-28091-4 (pbk)


4


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.


5


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


7


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


10


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


13


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


14


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.


15


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


16


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 is intellectually respectable.


R. Niebuhr


What You will Learn from this Chapter


To understand the foundation of ethics, you should learn about the virtue of knowledge and reasoning, the sources of intellect, the nature of truth, the nature of reality, the nature of morality, the nature of goodness, the relationship between actions and consequences, determinism and intentionalism, and the image of the ethical person.


You will also learn about the reasoning process, Plato’s divided line, the definition of morality and ethics, the grammar of goodness, the principle of summum bonum, and the utilitarianism measure.


Key Terms and Definitions


Reasoning is a pure method of thinking by which proper conclusions are reached through abstract thought processes. The Divided Line is Plato’s theory of knowledge. It characterizes four levels of knowledge. The lowest of these are conjecture and imagination because they are based on impressions or suppositions; the next is belief because it is constructed on the basis of faith, images, or superstition; the third is scientific knowledge because it is supported by empirical evidence, experimentation, or mathematical equations; and the highest level is reasoning. Theory of Realism is Aristotle’s explanation of reality. It includes three concepts: rationality, the ability to use abstract reasoning; potentiality and actuality, the “capacity to become” and the “state of being”; and the golden mean, the middle point between two extreme qualities. Ethics is a philosophy that examines the principles of right and wrong, good and bad. Morality is the practice of applying ethical principles on a regular basis. Intrinsic Goods are objects, actions, or qualities that are valuable in themselves. Nonintrinsic Goods are objects, actions, or qualities that are good …


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