Criminal Justice Ethics

Cultivating the moral imagination

Sharon Hayes

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781317679783
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

It is essential for those employed within the justice system to be able to competently and confidently work at the borders between ethics and the law. Criminal Justice Ethics offers a fresh new approach to considering ethical issues in a criminal justice context. Rather than simply offering a range of ethical dilemmas specific to various justice professionals, it provides extensive discussion of how individuals develop their 'moral imaginations' using ethical perspectives and practices, both as citizens of the world and as practitioners of justice.

Starting from a consideration of the major ethical theories, this book sets the framework for an expansive discussion of ethics by moving from theory to consider the just society and the role of the justice professional within it. Each chapter provides detailed analysis of relevant ethical issues, and activities to engage students with the content, as well as review questions, which can be used for revision or examination. This book will help students to:

• understand the various theoretical approaches to ethics,
• apply these understandings to issues in society and the justice process,
• assist in developing the ability to investigate, discuss, and analyse current ethical issues in criminal justice,
• appreciate the diverse nature of ethical systems across cultures,
• outline strategies for detecting and resolving ethical dilemmas.

Rich with examples and ethical dilemmas from a broad range of contexts, this book's multicultural approach will appeal not only to criminal justice educators, but also to academics, students and practitioners approaching criminal justice from sociological, psychological or philosophical perspectives.

Chapter 1

Introduction

This book is about the ethical and moral issues that impact upon those who work in, and those who access, the criminal justice system. It is more than just a professional code of conduct or even an exploration of how ethics can be applied to professional roles, although those are important parts. This text aims to broaden your thinking about the criminal justice system, how it is structured and how it fits into society at large. It introduces the term ‘social ethics,’ which illustrates the impact of the criminal justice system on specific populations, particularly those who are disadvantaged. It also demonstrates how public and private morality play such a large role in conceptualizations of ethics.

Social ethics is also concerned with the moral rules and values that relate to the internal operations of groups of people. There are any number of social groups comprising the criminal justice system, including for example, lawyers, police officers, correctional officers, and judges, each of which operates within a particular culture. Those officials and professionals entrusted with the administration of justice in our community are expected not only to carry out the tasks of their profession with competence and diligence, but also to base their professional behavior on strong moral and ethical grounds. Despite the fact that all the justice professions may claim to be sound repositories of public trust, this is not always the case. There is a clear and marked power imbalance between those with specialist knowledge, legislative powers and discretions who administer the justice system, and those who are simply subjected to it. This chapter discusses the nature of ‘social ethics’ and the ‘moral imagination,’ and why they are important for the study of criminal justice ethics.

The moral imagination

Imagine a world in which everyone was completely truthful all the time, where lying had never even been conceived as a possibility. Without the ability to lie, there would also be no stealing, cheating, corruption, or indeed, secrets—crime would be minimal because offenders would be obliged to own up. A recent film, The Invention of Lying (Warner Brothers 2009) starts from that very premise: no one lies, even by omission, and people are compelled to state the truth. While this seems like an idyllic state of affairs, in fact it leads to some very interesting (and funny) outcomes. The male protagonist in the film, Mark Bellison, is a relatively mediocre writer of television documentaries—there is no fiction, and therefore no fictional films, because no one understands the concept. His life is fairly lacklustre, which becomes clear when he dates a beautiful woman, Anna, who informs him over dinner that he is really not in her league because he is fat and plain-looking. Apparently his gene pool excludes him from being husband material because she does not want fat, ugly kids. Not long after, he loses his job. When he attempts to draw the last of his cash out of the bank to pay his overdue rent, the bank teller advises that the system is down, and asks him how much he has in his account. On the spur of the moment, Mark tells a huge fib, claiming he has $800, more than double his actual amount. The system comes back on and the teller notices he only has $300 in his account, but since he says he has $800, the system must be corrupt—so she gives him the $800! Having invented lying, Mark tries to explain it to his friends with hilarious results—no matter what he tells them, they believe him. Cynically, Mark uses his new-found ability to lie to his own advantage, ending up rich and famous—and, of course, getting the girl.

What is most interesting about the film, however, is how starkly it highlights just how often we lie to each other, not only for our own benefit, but to spare others’ feelings and to help them through pain and grief. For example, Mark’s neighbor is suicidal, believing himself to be worthless. Once Mark discovers lying, he is able to convince his neighbor he has numerous wonderful traits. Similarly, when his mother expresses fear on her death-bed, he concocts a comforting story about “the man in the sky” and heaven, where everyone lives happily ever after. On the flip side, earlier in the film we laugh at truths that most of us would never tell—that our date is fat and snubby-nosed, or that we are running late because we were masturbating. The first most of us would keep to ourselves out of pity or empathy; the second out of embarrassment (or because it is just a little ‘too much information’). In short, The Invention of Lying cleverly highlights the ambivalent nature of truth and the importance we place on sometimes trading truth off for a more palatable outcome.

Indeed, it is the fact that lying is so ubiquitous in our society that makes the film so humorous, and that points up the common assumption that sometimes lying is a good thing to do. When my partner spends long hours cooking a meal, which turns out to be rather tasteless, rather than pointing out its faults, I eat it with a smile and even compliment the effort. When someone asks, “Does this dress make my arse look fat?” we deny it vehemently, regardless of whether it does or not. And such lies of ‘good intention’ are not always only trivial. Keeping bad news to ourselves (or lying about it), for example, is quite common—when I was away overseas, my mother was ill in bed for six weeks, but didn’t tell me because she didn’t want me to worry. A doctor might not tell a cancer patient that his illness is terminal because the loss of hope would only add more pain. Sometimes when I am marking student assignments, I come across one that is so bad I want to scream, but instead of writing a long list of scathing comments, I try to find some positives and then couch the criticisms in kind language so the student will not become discouraged (it is a shame reviewers of books are not always so kind). Such lies are meant to spare feelings, to encourage, and to comfort.

Acknowledging the ambivalence of ‘truth’ helps us to understand the challenge of ethics: that there are many grey areas, and sometimes a solution might mean trading off one evil for another in order to achieve a better outcome. Acknowledging the complexity of ethical dilemmas and decisions provides a starting point for using our moral imaginations to explore our interactions with others and with society at large. C. Wright Mills (1957) conceptualized the idea of the sociological imagination as the ability to “think yourself away from the familiar routines of everyday life” and look at them from an entirely new perspective. In ethics, this is even more important. Ethics is concerned with how we interact with and treat each other, and therefore requires an ability and propensity to see things from another person’s perspective. The moral imagination, then, describes the ability to step back, to look at situations from an impartial point of view, and to think outside the box, so to speak. We use our moral imaginations when we tell little white lies to protect others from what might otherwise be painful truths. In other words, in such instances we are putting ourselves in others’ shoes, imagining what it might be like to be them.

But even then, it is more than this—our moral imagination asks us to stand outside ourselves, not just for our friends, but generally. Although his is a much more substantive view, David Bromwich (2014) talks about the moral imagination in this way. He suggests that we exercise it when we move out of our own natures to take in the suffering and pain of others who are not like us. Bromwich cites Wordsworth’s poem called “The Idiot Boy,” in which a mother sends her intellectually challenged child, Johnny, out to find a doctor for her friend and then becomes anxious when he does not return. He describes the kind of imagination it takes as a reader to feel the mother’s pain for an aberrant son, something that is quite outside most people’s experience:

To sympathise with someone like myself is commendable, perhaps, but it shows nothing much … But to feel with the mother who has lost her idiot boy, or, as in Frankenstein, with a monstrous creature who must learn humanity from people even as he finds that people turn away in horror and disgust—these are truer tests of a “going out of our nature.”

(Bromwich 2014: 12)

Bromwich argues that whatever dignity I accord to Johnny and his mother ultimately says more about me than it says about them. He cites Shelley: “The great secret of morals … [is] a going out of our nature, and the identification of ourselves with the beautiful which exists in thought, action or person, not our own” (cited in Bromwich 2014: 12). To identify with others like ourselves is a doddle; to identify and embrace that which is almost completely different to us, and then to see the humanity and agency in them, is an achievement of the moral imagination.

We use our moral imagination to imagine ourselves into the perspectives of those with whom we cannot normally identify, in order to actually recognize how like us they really are—that is, as moral agents; autonomous decision-makers who are wired, like us, to seek to make an impact on the world. While some crime is committed by what used to be called psychopaths, but today are referred to as ‘anti-social personalities,’ the percentage of psychopaths in the general population is only about five percent (Ronson 2012). A psychopath cannot put himself in another’s shoes, for he lacks the psychological capacity to do so, and this makes him very different to the rest of us. Not all psychopaths commit crimes, of course—or at least, not all get caught—and this means that most offenders are indeed people just like us, at least in the sense I am speaking of. This in turn means that somewhere, something has gone wrong for offenders, and their efforts to make an impact on their world in legal ways have failed, so they seek illegal means. Using our moral imaginations in thinking about criminal justice, then, means understanding the humanity and moral agency underlying every offender and would-be offender, as well as victims and those caught in the collateral damage of a crime. Criminal justice ethics requires that we be the kind of person who is disposed to using our moral imaginations in this way.

In this book, I will show you how to also use your moral imaginations to imagine yourselves into the perspectives of entire groups of people—this is the ‘social’ of social ethics. This is important for the study of criminal justice ethics because criminal justice professionals—police, lawyers, judges, social workers, youth workers, prison officers, and so on—face on a daily basis situations involving individuals or groups with whom they share little in the way of culture, history, language, age, race, and sexuality. Dealing with such situations requires that they use their moral imaginations to ensure that justice is done, and that people are treated fairly and equally under the law, even those to whom they feel antagonistic. Given the extent of prejudice in our society, this is much easier said than done. For this reason, we will be drawing on a lot of story-telling throughout this book, through the use of case studies and hypotheticals—true and invented stories of ethical dilemmas and situations that provide a rich context for comparing and contrasting ethical theories, personal and societal assumptions, and their practical applications.

How to use this book

This book is written as a process from theory to practice, and for that reason should be studied consecutively chapter by chapter. Part I conceptualizes the ethical project and explores some theoretical frameworks for discussing ethics. It then moves on to applying those theoretical concepts to ethical decision-making. Part II explores ethics in public life and how we move from the ethics of the personal to the ethics of the social. Part III specifically addresses criminal justice professionals, incorporating the discussions in Parts I and II, to assist in conceptualizing how the theoretical can be applied in more practical terms in criminal justice contexts.

Structure of the text

This text is divided into three sections or Parts. Part I defines ethics and morality and explores a range of ethics theories, their historical development and contemporary applications, and how they might be applied to everyday life. It provides insight into the different ways that people think about and resolve ethical dilemmas, and highlights the importance of appreciating other perspectives. Chapter 2 discusses the philosophical foundations of ethics and the nature of ethical dilemmas and provides an introduction to ethical theory. It explores ethical relativism, subjectivism and meta-ethics, and provides a brief overview of consequentialist and non-consequentialist theories. Chapter 3 explores consequentialist theories in more depth, with a particular focus on ethical egoism and utilitarianism. It draws on the work of historically well-known utilitarian philosophers such as Jeremy Bentham, John Stuart Mill, G. E. Moore, and Kenneth Arrow, and egoist theorists such as Friedrich Nietzsche and Ayn Rand. Examples of ethical dilemmas are drawn from seminal works by theorists such as Bernard Williams and J. J. C. Smart, as well as current events around the globe. Chapter 4 explores non-consequentialist theories in depth, focusing on deontology and virtue ethics. It draws on historically well-known deontological philosophers such as Immanuel Kant and John Rawls, and theorists of Virtue Ethics such as Aristotle, Alastair MacIntyre, and Philippa Foot. It also explores seminal ethical dilemmas posed by these philosophers, such as whether it is ever ethical to lie, steal, or kill. The theories outlined in Chapters 3 and 4 provide frameworks for ethical decision-making processes. It is essential that we are able to fully justify an ethical decision and defend a particular course of action against critique, not only by using these theories, but also by supporting our position with facts and logical arguments. Chapter 5 explores what constitutes critical thinking, how to assess the theories, and ethical discussion-making. It describes and explains deductive logic and three ethical decision-making methods: the Utilitarian Calculus, Noel Preston’s Ethic of Response, and Stanley Benn’s Rationalist Model.

Part II discusses the importance of maintaining a distinction between our private morality and the morality we express in public or as professionals. It also explores how society ought to be organized to produce the maximum benefit to its members. This is truly a question of social ethics, and is essential for justice professionals to consider, given that their professional activities encompass the realm of the social. Chapter 6 considers what characterizes the good society, and asks how our ability to choose between right and wrong might be affected by the kind of society in which we live. It examines how issues of individual moral responsibility are related to social responsibilities, as well as various understandings of how society should be organized. Chapter 7 describes the difference between procedural and distributive justice, then proceeds to focus on distributive justice and how it impacts our thinking about how to produce a just society. It compares various theoretical frameworks for considering justice, including libertarian, utilitarian, contractarian, and socialist perspectives. Chapter 8 discusses the various forms of justice that are sought in the application of the law, and applies the ethical theories in the context of achieving justice in the legal system. It also provides examples of how ethical issues, theories, and decisions play out in this context. It considers the relationship between justice and law, and the ways in which justice is sought through the law. This chapter also explores the concepts of natural rights and legal rights, due process and how it might be violated, and whether justice may be tempered by mercy. Finally, Chapter 9 compares and contrasts the adversarial and inquisitorial systems as a starting point for examining the relationship between law and morality. Moving from the procedures of the law and the way in which ethical perspectives are enshrined within them, this chapter considers the purposes of the law, and the ways in which the law expresses particular forms of morality. It also examines the historical influence of morality on the law and on society in general.

Part III examines ethical issues specific to a range of justice professions and institutions, including lawyers, policing, and punishment. Chapter 10 explores issues in public sector ethics, corruption and official misconduct. It examines ethical issues such as conflicts of interest, fraud and bribery, and the cultural characteristics of organizations that foster corruption. This chapter explores the notions of public trust and public good, how corruption occurs and strategies for prevention. It also examines Whistleblower legislation and application and the development of official codes of conduct. Chapter 11 explores issues in legal ethics and the legal profession. Traditionally, legal professionals have been subject to higher standards of conduct than most other professionals, for example, by being subject to stringent admission requirements such as requiring full disclosure of any criminal history including even minor traffic offences (Thomas 2006). Nevertheless, the legal profession is fraught with ethical dilemmas. Issues such as client confidentiality, duties owed to the court, duties owed to clients, conflicts of duty and negligence will be covered in this chapter. Comparisons will be made between professional practice in Australia, the UK, Canada, and the USA. Chapter 12 focuses on the role of police in the criminal justice system and discusses the ethical issues related to policing. Police bear an important ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• List of tables
• Acknowledgments
• 1 Introduction
• PART I Ethical theory
• PART II Ethics in public life
• PART III Ethics in the criminal justice system
• Index