What are some ethical issues in the corrections

8CHAPTER Punishment and Corrections What Should Be Done with Offenders?

learning objectives: � To understand the

distinctions among the four purposes of criminal sanctions: retribution, incapacitation, deterrence, and rehabilitation.

� To recognize the issue of disparity in sentencing, how sentencing guidelines were designed to reduce disparity, and the ethical issues involved.

� To assess the issue of correctional ethics and the situations in which ethical decisions become crucial in correctional settings.

� To understand how corporal punishment and innovative sentences can be evaluated from an ethical perspective.

� To distinguish the issue of punishment under the Eighth Amendment, and how capital punishment and life in prison can be evaluated using ethical principles.

His lack of education is more than compensated for by his keenly developed moral bankruptcy.

—Woody Allen (b. 1935)

104

THE ETHICS OF PUNISHMENT

In South Carolina, a young mother, Susan Smith, killed her two children by leaving them in a car she rolled into a lake. Smith could have been convicted of involuntary manslaughter or murder and received a death sentence, or she could have been found guilty but mentally ill. At trial, the defense pointed out that she came from a troubled background. Her parents had divorced and her father had committed suicide when she was 6. She had been molested by her stepfather at age 15 and later, even after she was married. Her mother covered up the molestation. After her divorce, her new boyfriend rejected Smith because she had

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two children. She had a long history of depression. The defense also noted that she had confessed to her crime and showed deep remorse.1

Which of these factors should be considered in deciding on a sentence? And how should an appropriate sentence be determined? In the actual case, Smith was convicted of murder and sentenced to 30 years in prison. It is easy to see that other sentencing choices were available to the judge, and that other sentences could have been imposed and defended rationally. This case illustrates why it is important to understand the underlying rationale or philosophy of sentencing.

When an offender violates the law, society attempts to accomplish some combination of retribution, incapacitation, deterrence, or rehabilitation.

• Retribution is punishment and is applied simply in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution.2 According to this concept, the more serious the crime, the more serious the punishment should be.

• Incapacitation aims to prevent further criminal behavior by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in the United States is incarceration, although other methods also are used, such as suspending a driver’s license or license to practice law in cases of crimes committed by drivers or lawyers.

• Deterrence aims to prevent crime through the example of offenders being punished. General deterrence is directed at preventing crime among the general population, whereas special (or “specific”) deterrence is aimed at preventing future crimes by the offender.

• Rehabilitation or “reformation” sees criminal behavior as a consequence of social or psychological shortcomings. The purpose of the sentence is to correct or treat these shortcomings in order to prevent future crimes.

A utilitarian rationale would clearly support sentences justified by deterrence, incapacitation, and rehabilitation if it was determined that they would benefit society in ways that would override (produce more total happiness) the harm to the offender. Formalism would support retribution only because it justifies punishment solely for the offender’s past conduct. Each of the other justi- fications aims to prevent future crimes, using punishment as a means to another end. Formalism believes using current offenders in this way is unethical. Virtue ethics supports punishment that is designed to achieve civil peace and does not deprive one of liberty unjustly (seeking real goods via moral virtues). Rehabilitation that seeks to instill moral virtue in offenders would be especially appealing for virtue ethics. Retribution and incapacitation would be less appealing because they do nothing to improve the offender’s ability to act morally. Which of these rationales (i.e., retribu- tion, incapacitation, deterrence, and rehabilitation) do you think was used by the judge in the case of Susan Smith?

In a 2003 case, Overton v. Buzzetta, the U.S. Supreme Court held that regulations limiting visitors to prisoners did not violate the Eighth Amendment because “the regulations bear a rational relation to legitimate penological interests” relating to internal prison security. Restrictions on visits by minor children, adult children, and former prisoners, as well as elimination of most visits to inmates who commit two substance abuse violations, were, therefore, upheld because they had a “valid, rational connection” to a legitimate governmental interest in operating the prison securely.3 If you were a prison warden, or policy maker, how would you balance the competing interests of operating a secure prison (ensuring retribution and incapacita- tion) with your interest in inmates maintaining close ties with their families and the community (which experience shows reduce the likelihood of recidivism—improving the likelihood of reha- bilitation and deterrence)? Which ethical principles would you rely on in resolving this dilemma?

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In moral terms, the ethics of punishment lie primarily in whether justice is done. As Aristotle said, justice consists of giving a person no more or less than he or she is due. It is difficult to determine the justice of punishment in the abstract because each offender and offense involves different motivations and circumstances. Determining the appropriate severity of punishment is a difficult task. In the case of Susan Smith, could a judge reasonably have found that she was emotionally unstable and sentence her to a prison term as punishment and then required her to undergo rehabilitation to correct her mental condition? Is it likely that deterrence or incapacitation is a significant issue in her case? Formalism would argue for punishment based solely on the severity of the offense (retribution), but if she was mentally unstable or otherwise impaired, she would not meet the “reasonable person” standard and not be blameworthy. Virtue ethics would seek justice (a moral virtue) giving her no more or less than she is due, so her background and circumstances would be relevant, especially if there was likelihood that she could become, or be restored to, a morally virtuous person. Utilitarianism would weigh the total good produced by a severe retributive sentence, a less severe punishment, or a punishment focused more on her rehabilitation. All relevant considerations, especially general deterrence and the likelihood of reoffending, would be important to weigh.

THE PROBLEMS OF SENTENCING

The lack of empirical evidence to support the four basic purposes of sentencing has contributed to concern about disparity in sentences. Disparity occurs when offenders with similar histories commit similar crimes but receive widely different sentences. Disparity must be expected, of course, when there is little agreement regarding what a sentence should accomplish. A result of disparity has been a trend toward mandatory and fixed sentences. This move toward uniformity in sentencing can be attributed to the widespread adoption of retribution and incapacitation as guiding sentencing philosophies in most jurisdictions.

Sentencing guidelines attempt to reduce disparity in sentencing by recommending a “guideline sentence” based on the seriousness of the crime and the offender’s prior record. The guidelines are developed by examining averages of past sentences imposed on various com- binations of offenders and offenses. Guideline sentences achieve the goals of proportionality and uniformity without mandating specific sentences for certain crimes or offenders. The U.S. Supreme Court ruled in 2005 that federal sentencing guidelines are not binding on judges but only advisory.4 Judges usually deviate from the guideline sentence, however, only if they provide written reasons for doing so. For example, if a sentence of 5–7 years is typical for past robbery offenders, judges may sentence outside this range only if they state their reasons for doing so. These reasons might include a particularly serious prior record or severe injury to a victim.

Sentencing guidelines make possible more accurate predictions of prison populations, and prison populations can be controlled by modifying the guidelines.5 It can be argued, however, that the size of prison populations should not be a factor in sentencing guidelines because it is unrelated to a particular crime in question. Prison populations are a utilitarian concern, having nothing to do with what the offender deserves, which is a fundamental consideration of both formalism and virtue ethics. Nevertheless, the public’s fear of crime and willingness to support longer prison sentences has resulted in high prison expenses and new construction when, at the same time, there is pressure to reduce government spending (utilitarian concerns). Sentencing guidelines may help to limit the use of incarceration so that available prison capacity is restricted to serious offenders and habitual offenders, rather than being used for nonserious offenses (concerns central to formalism and virtue ethics).6

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Consider the case of Bernard Madoff who at age 71 was sentenced to 150 years in prison for fraud—a Ponzi scheme where he had individuals and institutions allow him to invest their money for a high interest return, while Madoff simply kept the money for himself, keeping the scheme alive only by continually adding more new investors. His scam went on for many years, resulting in losses estimated at $13 billion. The judge defended the very long prison sentence on grounds of the scheme’s many victims, its size, and also deterrence, arguing “the symbolism is important here because the strongest possible message must be sent to those who would engage in similar conduct . . . that they will be punished to the fullest extent of the law.” On the other hand, Madoff’s defense attorney called the long prison sentence “absurd” because “there’s noth- ing in the sentencing guidelines that talks about making symbols of people.”8 This disagreement over both the nature and purpose of the sentence reflects differences in ethical reasoning (sum- marized in Table 8.1). Whereas formalism looks at past conduct and punishes solely on the seriousness of the crime committed, utilitarianism looks to the future in punishing for purposes of deterrence. Virtue ethics justifies punishment only when specific real goods (such as civil peace) are achieve in a way consistent with the moral virtues.

CORRECTIONAL ETHICS

Once convicted and sentenced, there are a range of ethical issues that arise regarding the state’s obligation to supervise the offender until his or her release from custody or supervision. These issues center on the proper treatment of the offender and the ethical obligations of those entrusted with their supervision.

TABLE 8.1 Ethical Issues in Corrections

Ethical Issues in Corrections Types of Unethical Conduct

Preferential or selective treatment

• Undeserved favors (smuggling, transfers) • Selective punishment or harsh treatment (unwarranted use of force, verbal abuse)

Misuse of authority • Exploitation of offenders under supervision (sex, extortion) • Concealment of rule violations (failure to act upon known violations among

offenders or between offenders, visitors, or supervisors)

ETHICS CHECKUP Punishment by Electric Shock

It has been argued that an alternative punishment is needed that is “properly painful,” proportional to the offense, humane, and less expensive than incarceration. Such a punishment would be used to sentence those offenders who fall between minor criminals and those who are violent. “Corporal punishment which applies a nonlasting intense pain, such as electric shock, can do the job. It can be over

in seconds, not years” [like prison], and it would not have “the severe long term effects of prison.” It punishes the offender, and only the offender, for the offense. “Prison in contrast punishes innocent people, such as the offender’s family by depriving it of support.”7

Applying ethical principles, what is the moral permissibility of punishment by electric shock?

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Preferential or selective treatment of offenders and misuse of one’s official position are the two largest categories of ethical difficulty. Preferential or selective treatment of offenders includes provision of undeserved favors or selective punishment or harsh treatment. Undeserved favors most often include smuggling of contraband, such as cigarettes, cash, or drugs in exchange for money or favors the offender can provide. Selective punishments and harsh treatments involve the unwarranted use of physical force or verbal abuse to control an offender, assert one’s authority, or obtain an advantage to be used against the offender.

Misuse of authority include exploitation of offenders under supervision or concealment of rules violations. Exploitation of offenders most often involves sex or extortion. The sex can be for purposes of control or gratification, and the extortion involves threat of physical or reputational harm in the future in exchange for money. Another kind of misuse of authority is concealment of known rule violations between offenders or between offenders and visitors or other supervisors. Known sexual relationships, extortion, or abuses that are not reported are examples. These types of unethical conduct in corrections are summarized in Table 8.1.

It is clear that each type of ethical misconduct in corrections can occur in prisons or jails or to probationers or paroles. Those in prison or jail have their liberty revoked, so they are more subject to abuse given their captivity, but those on probation or parole have more access to others in the community, making them greater targets for extortion. The correctional misconduct described here cannot be justified under any ethical perspective, and laws and court decisions have been developed over the years to circumscribe the legal rights of offend- ers. Nevertheless, interactions between corrections personnel and offenders are of low visibil- ity, less visible than police–public interactions. As a result, there must be an even greater reliance on ethical conduct, because there are fewer empowered witnesses to these interac- tions, making discovery less likely.

The American Correctional Association has a code of ethics (see Appendix D). It consists of seventeen principles, which, if followed by all correctional personnel, would result in univer- sal ethical conduct on the job. In fact, every legal or ethical violation that occurs in corrections violates one or more of these principles, because they address the ethical issues described in Table 8.1. Whether the issue is unwarranted use of force, prison rape, extortion of inmates, or concealment of rule violations, the conduct is unethical under all three ethical perspectives. Virtue ethics requires the pursuit of real goods via the moral virtues, formalism requires pursuit of conduct consistent with the categorical and practice imperatives, and utilitarianism requires conduct that results in the greatest total happiness objectively considered. It is difficult to imagine a circumstance in which correctional misconduct can be justified in ethical terms. Nevertheless, there are unusual pressures in corrections that can contribute to a climate that fosters unethical conduct. These influences can include unqualified supervisory personnel, persistent deviant subcultures of staff or offenders, and failure of authorities to act on past reports or complaints.9 A system of accountability that is not working properly directly pro- motes unethical conduct through its failure to hold individuals responsible for their actions as either offenders or staff.

With regard to offender treatment, there is some evidence that programs that endeavor to change the moral thinking of offenders has some impact on their subsequent conduct and reduces recidivism (compared to other offenders).10 These cognitive-behavioral programs employ techniques such as Moral Reconation Therapy or attempt to move clients from selfish, hedonistic conduct to higher levels of thinking involving concern for others and longer-term outcomes. There is some evidence, therefore, that improvements in ethical

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thinking by offenders can lead to lower recidivism. This is likely due to increased apprecia- tion for the wrongfulness of illegal conduct and the impact of that conduct on others, which ethical thinking promotes.

CORPORAL PUNISHMENT

An Ohio teenager, Michael Fay, committed acts of vandalism while visiting Singapore. Along with some friends, he spray painted and threw eggs and bricks at eighteen cars over a 10-day period. Singapore police also found stolen flags and signs in Fay’s Singapore apartment. Fay was sentenced to 4 months in prison, a $2,320 fine, and six lashes with a wet rattan cane. This kind of caning, administered by an expert in martial arts, breaks the skin and leaves permanent scars on the buttocks.11 The sentence caused an uproar in the United States, with some people defending it and others vehemently opposing it.

Corporal punishment is physical punishment short of the death penalty. It has often been associated with torture and mutilation, and most forms of corporal punishment are illegal in the United States under the Eighth Amendment’s prohibition against cruel and unusual punishment. During the 1990s, however, legislation was introduced in Texas that would result in a finger being amputated for each conviction of a drug dealer.12 This bill was an effort to imitate the penalty for theft in some Islamic countries, which is amputation of the offender’s right hand.13

Although such a penalty would seem to constitute a violation of the Eighth Amendment, it is up to the courts to decide whether it is within the “limits of civilized standards” or “totally without penological justification.”14 Do statements such as these make implied assumptions about ethical standards?

The U.S. State Department protested Michael Fay’s punishment in Singapore, claiming that it was too severe. President Clinton called the punishment extreme and asked that it be reconsidered. This reaction is interesting in view of the long history of whipping as a form of punishment in the United States and elsewhere. Whipping was used as a form of punishment as far back as ancient Egypt, where Hebrew slaves were whipped by their Egyptian masters if they failed to produce enough bricks.15 The Romans, and later the English, used whipping to punish slaves and vagrants. During the early 1800s, England prohibited the whipping of women, but it was not until 1948 that whipping was abolished altogether as a form of punishment.16 Whipping was employed more often in the American colonies than it was in England. Lying, swearing, failure to attend church services, stealing, selling rum to Indians, adultery (for women), and drunkenness were among the offenses for which people could be whipped. After the American Revolution, incarceration came into use as an alternative to whipping. By 1900, all states except Maryland and Delaware had abolished whipping. The last known “floggings” occurred around 1950 in those two states, and the Delaware law was not repealed until 1972.17

Despite the U.S. protests of the caning in Singapore, the penalty is still used in many countries. A bill to permit whipping of drug dealers was introduced in the Delaware legisla- ture in 1990 but was not passed. Similar legislation was introduced in California and St. Louis to punish vandals.18 Amnesty International has reported that whipping is legal in at least thirteen countries, including countries in the Middle East, Africa, the Caribbean, and the Far East.19

Singapore responded to criticism of its use of corporal punishment by stating that “it is because of our tough laws against anti-social crime . . . that we do not have a situation like, say New York, where even police cars are not spared by vandals.”20 This leads to the question of

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whether whipping is effective as a deterrent to crime. An evaluation of the impact of whipping on subsequent criminal behavior of offenders in the United States found that 62 percent of offenders who were whipped were later convicted of another offense. Further, 65 percent of those who were whipped twice were convicted a third time.21 Despite its failure as a deterrent, whipping and other forms of corporal punishment, such as paddling of schoolchildren, continue to attract attention from the public and some policy makers.22 There are two reasons for this: Corporal punishment more directly imitates the pain suffered by the victim, and it is of short duration and, therefore, much less expensive to administer than traditional incarceration. The line must be carefully drawn between sanctions that attempt to be more authentic in relation to the crime committed and those that are simply cruel or vindictive.

Try to evaluate whipping or caning of offenders on ethical grounds. Singapore’s claim of low crime suggests that caning might be an effective deterrent. Which ethical perspective would see this as an important consideration? Why did Emmanuel Kant believe deterrence of others in the future was a violation of the practical imperative? Is it a good universal rule that those who commit certain crimes be caned? Finally, are there any grounds on which virtue ethics might find caning of an offender ethical?

INNOVATIVE PENALTIES

Darlene Johnson, a mother of four children and pregnant with a fifth, was convicted of three counts of child abuse. The judge sentenced her to a year in jail, to be followed by implantation of a birth con- trol device that would prevent her from conceiving any more children. According to the judge, “It is not safe for her to have children.”23 Is such a sentence cruel and unusual, or is it appropriate and just?

The contraceptive Norplant was approved by the U.S. Food and Drug Administration in 1990 for public use. Norplant prevents conception when six small rods containing hormones are placed under the skin in a woman’s arm. The rods can be implanted for up to 5 years.24 The question for criminal justice is whether such a device can or should be used for sentencing in cases involving mistreatment of children. Norplant may prevent abuse of new victims, but it does not address the current or future harm done to present victims. Those who advocate use of Norplant believe it forces the offender to suffer the consequences of misconduct in the parental role and prevents the offender from continuing in that role in the future. Once again, however, existing victims are not protected, only future victims.

Norplant was made available in school clinics in Baltimore in response to the city’s high teenage pregnancy rate. A similar program was initiated in Washington, D.C., where teenage mothers accounted for 18 percent of all births.25 This use of Norplant outside the criminal justice system points to growing acceptance of this form of contraception, although the coercion inherent in criminal sen- tencing poses important legal and social issues. Is forced birth control a weak technological attempt to solve a problem that is educational, social, and cultural in nature? Does the use of Norplant discrimi- nate against women inasmuch as it holds them entirely responsible for parenting and abuse, even though males also play significant roles in this process? Is it used in discriminatory fashion against minorities and the poor? Can the use of Norplant be extended beyond the length of a normal jail or probation sentence? These questions have yet to be addressed by the criminal justice system as it looks for sentences that more directly mirror the nature of the harm inflicted by offenders.

What is the moral permissibility of using Norplant applying the three major ethical perspectives? Does it contribute more to the greater total happiness than other penalties? Is it a good universal rule for use in cases of maltreatment of children? Does it do justice without being excessive? These are the questions that ethics would ask, and thoughtful answers to them show

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TABLE 8.2 Major Ethical Perspectives and Punishment

Ethical Perspective Founder

How Should a Person Act? Limitations

Why Punish Wrongdoers?

Virtue Aristotle Moral virtue is the habit of right desire—wanting what is really good for you and nothing else. We are obliged to seek real goods common to all humans guided by the moral virtues.

Focuses on being a good person versus good acts. Moral behavior depends more on one’s motivation than on the act committed.

Purpose of society is to provide civil peace and protect liberty from those who would infringe on it by rendering justice. This must be carried out in accord with the moral virtues.

Formalism Immanuel Kant

Moral worth comes from doing one’s duty. Act in a way so that your conduct can become a universal rule. People are never to be treated as a means to another end.

If something is wrong, it is wrong all the time—there are no exceptions. Morality is limited to duty—the baseline, not the highest aspiration of morality.

Because wrongdoers deserve punishment (are blameworthy), punishment should be proportionate based solely on the seriousness of the conduct.

Utilitarianism John Stuart Mill

Act in a way that results in the greatest good for the greatest number.

Morality is determined by the consequences of an action, leading to problems of measurement and speculation regarding its future impact.

Punishment should deter others, thereby obtaining a greater good. Punishment is aimed at its future impact.

how ethical thinking can inform and enlighten criminal justice decisions, especially as innovative penalties are increasingly sought for offenders.

Table 8.2 illustrates the differences among the three major ethical perspectives and their implications for criminal punishment. Note that formalism looks backward, basing punishment solely on the seriousness of the crime committed, whereas utilitarianism looks forward, with punishment aimed at its deterrent impact in the future. According to virtue ethics, punishment is justifiable only when it promotes the real good of civil peace and the protection of liberty of others in a manner consistent with the moral virtues.

CAPITAL PUNISHMENT

The Eighth Amendment to the U.S. Constitution deals largely with the final stages of the criminal justice process. It is also one of the shortest amendments. It reads as follows: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

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The portion of the Eighth Amendment that has been most rigorously scrutinized is the prohibition of cruel and unusual punishment. A punishment is considered cruel and unusual if it violates “evolving standards of decency that mark the progress of a maturing society.”26 Thus, torture is cruel and unusual punishment under the Eighth Amendment. In extreme cases of solitary confinement, corporal punishment, mechanical restraints, and poor medical and sanitary conditions for prisoners, these practices sometimes have been held to be cruel and unusual.27

No penalty has received more attention than capital punishment—that is, the death penalty. The penalty of death for the commission of a crime is controversial, yet it is permitted in

most states. Proponents argue that death serves as just retribution for murder, prevents future murders, and costs less than life imprisonment. Opponents argue the opposite: It does not serve as just retribution, does not deter murders, and costs more than life in prison. These are empirical arguments that can be resolved with the use of objective evidence. To what extent has the death penalty been used as retribution in the past? What impact does it have on homicide rates? How expensive is an execution compared to life imprisonment?28 The important moral question is whether capital punishment is morally permissible as a form of punishment.