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Library of Congress Cataloging-in-Publication Data Williams, Christopher R., Ethics, crime, and criminal justice / Christopher R. Williams, Bruce A. Arrigo. — 2nd ed.

p. cm.

Includes bibliographical references and index.

ISBN-13: 978-0-13-507154-0 ISBN-10: 0-13-507154-2 1. Criminal law—Philosophy. 2. Criminal law—Moral and ethical aspects. I. Arrigo, Bruce A. II. Title.

K5018.W548 2012 345—dc23 2011029621 10 9 8 7 6 5 4 3 2 1 ISBN 10: 0-13-507154-2 ISBN 13: 978-0-13-507154-0 For Justus and Blaise, Rebecca and Anthony This page intentionally left blank CONTENTS Preface xvii About the Authors xxv Part 1 An Invitation to Ethics 1 Chapter 1 CRIMINAL JUSTICE AND THE STUDY OF MORALITY 2 Ethics and Morality 3 Box 1.1:The Moral Problem of Punishment 5 Never Kill an Innocent Human Being 5 The Role of Morality and the Value of Ethical Inquiry 7 The Examined Life: What Does It Mean to Be Moral? 8 Why Ethics When We Have Laws? 9 Laws Are Not Infallible 9 Laws Can Be Immoral 10 Box 1.2:Jury Nullification 10 Box 1.3:Morality in Law: The Case of Sodomy 11 Right Does Not Always Make Good11 Law Is Not Inclusive of All Moral Concerns 12 It Is Not Enough to Do the Right Thing 12 Morality, Ethical Inquiry, and Criminal Justice 12 Criminal Justice Practice 13 Laws and Lawmaking 14 Social Justice 14 The Special Moral Requirements of Criminal Justice 15 Authority, Power, and Discretion 16 Criminal Justice Agents as Public Servants 16 Individual Behavior Reflects Institutional Morality 16 Box 1.4:Police Use of Force 17 What about Professional Codes of Conduct? 18 The Problem of Enforcement 18 Minimalism 19 Codes Are External, Ethics Are Internal 19 Generality and Moral Dilemmas 20 Summary 21 • Key Terms and Concepts 21 Discussion Questions 22 • Endnotes 22 vii Chapter 2 CHOICES, VALUES, AND ETHICS 24 Box 2.1:The Tavern Rape and the Duty to Report Crimes or Render Assistance: The Morality of Doing Nothing 25 Box 2.2:Voluntariness and Criminal Defenses 26 Choices and Others 27 Box 2.3:Personal Freedom and Consequences to Others 27 Box 2.4:Media, Violence, and Morality 28 The Involuntary Nature of Evil? 29 The Universal Element of Choice 30 Making Choices 32 Types of Moral Values 33 Box 2.5:Intrinsic and Instrumental Values 34 Normative Ethics and Moral Decision-Making 35 Box 2.6:Values in Practice 36 Ethics, Values, and Criminal Justice 37 Box 2.7:Police Subculture 38 Summary 40 • Key Terms and Concepts 40 Discussion Questions 40 • Endnotes 41 Part 2 Metaethics and Moral Psychology 43 Chapter 3 FREE WILL AND MORAL RESPONSIBILITY 44 Free Will 45 Determinism and Choice 46 Causality 47 Free Will as a Basis of Behavior 48 Box 3.1:Probing Dishonesty 49 Biological, Psychological, and Sociological Bases of Behavior 50 Internal Factors 50 Box 3.2:Transmitting Child Abuse? 51 External Factors 52 Box 3.3:“Mirroring” Violence 53 Box 3.4:Territoriality, Critical Mass, and Prison Violence 54 Free Will, Determinism, and the Criminal Justice System 55 Criminal Responsibility 56 Box 3.5:The Case of Aileen Wuornos 56 Treatment, Punishment, and Implications for Criminal Justice Policy 58 viiiContents Box 3.6:Vaccinating for Substance Use 59 Summary 60 • Key Terms and Concepts 60 Discussion Questions 60 • Endnotes 61 Chapter 4 IS MORALITY RELATIVE? THE VARIABILITY OF NORMS AND VALUES 63 Objectivism and Universalism in Ethics 64 Ethical Objectivism 65 Ethical Universalism 65 Box 4.1:Crimes Mala in se and Mala Prohibita 66 Contemporary Ethical Relativism 67 Box 4.2:Defensible Violence? 68 Descriptive and Prescriptive Relativism 68 Box 4.3:Relativism Contra Science 69 Box 4.4:Sex Crimes and Normative Relativism 70 Pragmatic Morality 71 The Value of Relativism 73 Relativism and the Criminal Justice System:

The Morality of Criminal Law 76 Box 4.5:The Relativity of Things Lawful and Unlawful 77 The Harm Principle 78 Box 4.6:Justifying Legal Prohibitions 78 Paternalism 79 Legal Moralism 80 Offensive Conduct 81 Summary 82 • Key Terms and Concepts 83 Discussion Questions 83 • Endnotes 84 Chapter 5 WHY SHOULD WE BE GOOD? 85 The Ring of Gyges 86 The Forms and Effectiveness of Reward and Punishment 86 External Sanctions: From the Law and God 86 Internal Sanctions: Conscience and Guilt 87 Box 5.1:Rationalizing Police Deviance 88 Box 5.2:Rationalization and Cheating among College Students 89 The Moral Sufficiency of Reward and Punishment 90 Reward, Punishment, and Self-Interest 90 The Need for Reward/Punishment Reflects an Absence of Morality 90 Contentsix Reward and Punishment Are Impediments to Morality 91 Box 5.3:Desistance from Crime and Offender Rehabilitation 91 Religion as Source and Motivation for Morality 92 Necessary Belief? 92 Common Ground 92 Box 5.4:Civil Religion and Flag Desecration 93 Box 5.5:Religion and the Practice of Capital Punishment 94 Independent Good 95 Egoism and the Criminal Justice System: Corruption in Policing and Corrections 95 Police Corruption 96 Prison Corruption 97 Summary 99 • Key Terms and Concepts 100 Discussion Questions 100 • Endnotes 100 Chapter 6 MORALITY, HUMAN NATURE, AND SOCIAL COOPERATION 102 Self-Interest 102 Box 6.1:Can We Be Moral? 103 The Prisoner’s Dilemma 104 Box 6.2:Criminal Informants and the Prisoner’s Dilemma 105 Reciprocity 106 Kin Selection or Inclusive Fitness 106 Reciprocal Altruism 106 Indirect Reciprocity: The Importance of Reputation107 Box 6.3:Crime Prevention and Community Safety:

An Ethic of Police–Citizen Trust 108 Strong Reciprocity and Altruistic Punishment 109 Non-Zero-Sum: Common Interest and Mutual Advantage 109 Moral Intuition and Mutual Aid 111 Human Universals 111 Box 6.4:Empathy and Scientific Jury Selection 112 Moral Intuition 112 Integrity and Inner Balance 113 Justice and the Social Contract 114 The Importance of Justice 115 Reconsidering Justice 116 Box 6.5:What Is Justice? 117 Summary 118 • Key Terms and Concepts 119 Discussion Questions 119 • Endnotes 120 xContents Chapter 7 BECOMING ETHICAL: THE DEVELOPMENT OF MORALITY 121 Moral Development 122 Kohlberg’s Moral Stages 122 Level 1: Preconventional Morality 123 Level 2: Conventional Morality 124 Box 7.1:Moral Reasoning and the Ethics of Abortion 126 Level 3: Postconventional Morality 127 Implications of Kohlberg’s Moral Psychology 129 How Does Morality Develop? 131 Box 7.2:Moral Development, Education, and the Criminal Justice Practitioner 133 Gender Differences? Gilligan’s Ethics of Care 133 Box 7.3:The “Heinz Dilemma” 135 Moral Development and the Criminal Justice System:

Making and Breaking Laws 135 Justice, Natural Law, and Postconventional Morality 136 Lawbreaking and Moral Development 137 Summary 139 • Key Terms and Concepts 140 Discussion Questions 140 • Endnotes 141 Part 3 Normative Ethics: Theory and Application 143 Chapter 8 MEANS AND ENDS: THE IMPORTANCE OF CONSEQUENCES 144 Consequentialism 145 Good and Desirable Consequences 146 The Principle of Utility: Seeking the Greatest Happiness 147 Agent Neutrality: Consequences for Whom? 147 Box 8.1:The Rationale for Ethical Egoism 148 Box 8.2:Plea Bargaining and the Greatest Happiness Principle 149 Measuring Happiness: Quantitative Hedonism 150 Box 8.3:Hedonism, the “War on Drugs,” and “Noble-Cause” Corruption 152 Quality of Pleasure: Quantitative versus Qualitative Hedonism 153 The Problems with Utilitarianism 155 Box 8.4:Are We Utilitarians?: The Trolley Problem 157 Box 8.5:Ethics, Crime, and the Internet 158 Consequentialism and the Criminal Justice System:

Means and Ends in Policing 159 The Dirty Harry Problem 159 Contentsxi Deceptive Interrogation 160 Summary 162 • Key Terms and Concepts 162 Discussion Questions 162 • Endnotes 163 Chapter 9 RESPECTING PERSONS, RESPECTING RIGHTS:

THE ETHICS OF DUTY 164 Kantian Ethics 165 Hypothetical and Categorical Imperatives 165 Maxims and Universal Laws 166 Moral Duties and Absolute Rules 167 Exceptions and Consequences 168 Respect for Persons 169 Box 9.1:Policing and the Duty to Tell the Truth 170 Box 9.2:Means, Ends, and Intimate Relationships: The Case of Mary Jo Laterneau 172 Prima Facie Duties 172 The Role of Prima Facie Duties 173 Box 9.3:A Brief List of Prima Facie Duties 174 Rights: The “Other Side of Duty” 175 Rights and Duties 175 Box 9.4:The Right to Refuse Treatment and Competency to Be Executed 176 Natural Rights Ethics 176 Legal and Moral Rights 178 Box 9.5:The Scope of Moral Rights and International Criminal Justice 179 Deontology and the Criminal Justice System:

The Morality of Legal Punishment 180 Utilitarianism and Criminal Punishment 180 Box 9.6:Chemical Castration as Disablement 181 Deontology and Criminal Punishment 183 Box 9.7:Mandatory Sentencing Laws: The Case of California 185 Summary 185 • Key Terms and Concepts 186 Discussion Questions 186 • Endnotes 186 Chapter 10 THE VIRTUOUS AND THE VICIOUS:

CONSIDERING CHARACTER 188 Virtue and Vice 189 Virtue and Character 189 Box 10.1:Virtue and Leadership 190 Virtue, Character, and Behavior 190 Virtue and Negative Emotions 191 xiiContents Box 10.2:Actions and Intentions 192 Box 10.3:Crime, Anger, and Forgiveness 193 Virtue and the Good Life 193 The Purpose of Human Life 194 The Fulfilled Life 195 Virtue and Human Flourishing 197 Human Flourishing 198 The Value of Virtue 199 Virtue, Wisdom, and the “Golden Mean” 200 The Golden Mean and Practical Wisdom 200 Aristotle’s Virtues 201 The Unity of Virtue 202 The Ethic of Care 202 Box 10.4:Caring, Suffering, and the Perception of Desert 203 Virtue, Care, and Criminal Justice 204 Justice and the Ethic of Care 205 Box 10.5:Restorative Justice 206 Box 10.6:Domestic Violence and Mandatory Arrest Policies 207 Summary 208 • Key Terms and Concepts 208 Discussion Questions 209 • Endnotes 209 Chapter 11 THE EXAMINED LIFE: A GUIDE TO CRITICAL ETHICAL THINKING 211 Justifying Beliefs and Decisions 212 Moral Reasons Are Different from Personal Reasons 212 Personal Reasons Are NotSufficient Reasons for Moral Decisions 212 Good Reasons Are the Result of Careful, Rational, and Unbiased Consideration 212 Ethical Frameworks Can Serve as Bases for Thinking about Reasons 213 Utilizing Our Capacity to Reason 213 Defining Reasoning 213 Broadly Speaking, There Are Two Basic Types of Reasoning 213 Theoretical Reasoning Assists Us in Developing Good Moral Beliefs 213 Practical Reasoning Assists Us in ApplyingValues, Beliefs, and Principles to “Practical” Issues or Situations 214 The Ethical Life Thus Requires That We Make Good Use of Both Theoretical and Practical Reasoning Abilities 214 Contentsxiii Effective Reasoning Requires That We Have Skills and Toolswith Which to Work 214 Thinking Critically 214 Critical Thinking Is the “Activity of Reason” or “Reason in Action” 215 The Goals of Critical Thinking Include 215 Accomplishing These Goals Requires a Good Mind-Set Coupled with an Understanding of How Reasoning Works and Where It Can Go Wrong 215 Recognizing Uncritical Thinking 215 It Is Easy to Become Imprisoned by Favored Ways of Seeing the World216 We Think “Uncritically” When We Accept Ideas, Opinions, and Beliefs without Carefully Assessing Their Merit 216 Socialization and Experience Tend to Provide Us with a Limited and IncompletePortrait of Ourselves, Others, and the World in Which We Exist 216 The Ethical Life Requires That We Develop Our Own Reasonsfor Beliefs, Opinions, Decisions, and Actions 216 Ways of Seeing Can Become Ways of Not Seeing217 Critical Ethical Thinking Requires That We Approach Issues in Unbiased, Unprejudiced, and Open-Minded Ways 217 Sometimes, Traps of Not-Seeing Can Have Their Basis in the Beliefs and Norms of Entire Cultures, Communities, or Organizations 217 Exploring Ways Unseen 218 Living the “Examined Life” Requires That We Regularly Take a Step Backin Order to See What Is in Front of Us 218 The Examined Life Requires That We Maintain a Healthy Degree of Skepticism218 The Examined Life Requires That We Keep an Open Mind 219 The Examined Life Requires That We See Beyond Categories, Labels, Stereotypes, and Other Preformed Ways of Sorting and Separating 219 Avoiding Errors in Reasoning and Judgment 220 Conclusionsand ReasonsAre the Basic Units of the Reasoning Process 220 Good Beliefs and Ethical Decisions Require That Two Conditions Be Met 220 InferenceIs the Process of Connecting Reasons to Conclusions 220 Not All Inferences Are Good Ones 221 xivContents Not All Reasons Are Good Ones 221 Evaluating Beliefs and Decisions 221 Avoiding Assumptions 222 Avoiding Errors of Relevance 222 The Use and Abuse of Authority 222 The Use and Abuse of Tradition 223 The Use and Abuse of Majority Belief 223 The Use and Abuse of Emotion 224 Avoiding Errors of Evidence 224 Hasty Induction 224 Forgetful Induction 225 Slothful Induction 225 Exclusion 226 Avoiding Other Common Errors 226 Two Wrongs Don’t Make a Right 226 Stay Focused on the Issue and Relevant Circumstances 226 Lack of Proof Does Not Disprove and Lack of Disproof Does Not Prove 227 Avoid Black-and-White Thinking 227 Strive for Consistency in Moral Beliefs and Decisions 227 Putting It All Together: A Summary of Guidelines for the Ethical Life 228 Endnotes 229 Chapter 12 APPLYING ETHICS: UTILIZING NORMATIVE FRAMEWORKS FOR DECISION-MAKING 230 A Basic Approach 231 Moral Criteria 231 When Goods Collide 232 When Duties and Obligations Collide 232 When Moral Criteria Collide 233 Evaluating Consequences 233 Applying Utilitarianism 233 Evaluating Duties, Rights, and Obligations 234 Applying Kantianism 234 Applying Prima Facie Duties 235 Evaluating Virtues 235 Applying Aristotelian Virtue Ethics 235 Contentsxv Applying an Ethic of Care 236 Making Decisions 237 Deciding with Duties 237 Deciding with Consequences 238 Deciding with Virtue 238 Deciding with Care 238 Scenarios for Further Thought 239 Index 243 xviContents PREFACE On its most basic level, this book was written as an introduction to the subject and scope of ethics, particularly as its many problems and diverse perspectives intersect with those ongoing controversies found in the everyday world of crime, law, and justice. Ethics involves the study of many different themes and issues, including concepts such as good, right, duty, obligation, virtue, freedom, rationality, and choice, as well as the ways in which each of these notions informs the dilemmas we face, the choices we make, and the actions we undertake. The themes that ethics explores underlie many circumstances we routinely confront as individuals, groups, organiza- tions, communities, and cultures. The immediate aim of ethics is simply to encourage critical reflection on these concepts and concerns, recognizing their significance to and contemplating their value for people in various social contexts. Ultimately, if this aim is realized, ethics enables all citizens to adopt more informed beliefs, to make better decisions, to undertake healthier actions, to be better people and, consequently, to live more rewarding and fulfilling lives.

Ethics, Crime, and Criminal Justiceexplores, in an accessible, stimulating, and practical way, a range of value-based concepts and perspectives designed to familiarize students with their importance both within the complex world of crime and justice and outside of it. Indeed, as Chapter 1 suggests, the fundamental purpose of morality (in thought and action) is to facilitate living a good life in a just society. Accordingly, this book was conceived, written, and organized with this in mind. It is our hope that this volume’s content helps students, practitioners, and other readers achieve the essential objectives of ethical reflection, decision-making, and conduct.

THE SUBJECT OF ETHICS Contemporary ethics is typically divided into three general categories or subject areas:

(1) metaethics, (2) normative ethics, and (3) applied ethics. When most people think of “ethics,” they are thinking of its normativeand appliedelements—those dedicated to setting, establishing, or recommending norms or guidelines for human behavior, and those that address specific moral issues such as those of police corruption, criminal punishment, judicial integrity, and the like.

The normative dimension of ethics proffers moral standards, principles, and guidelines of “right” and “wrong,” answering questions such as, “What should I do?” and “How should I live my life?” Applied ethics utilizes normative ethical principles and frameworks to determine what we should do about particular dilemmas or issues of personal or social significance. In this respect, norma- tive and applied ethics are very much intertwined, with applied ethics sometimes recognized as part of normative ethics rather than a separate subfield.

The purpose of studying ethics—and criminal justice ethics—is to help us become “good” people and to make “good” decisions. Ultimately, then, ethics is a practical discipline. Yet the various controversies that constitute applied ethical matters cannot be critically discussed or meaningfully resolved without making use of the concepts or “tools” provided to us by normative ethics. As is the case in nearly every field, we must have a sufficient theoretical foundation and point of reference for our more practical endeavors. Imagine, if you will, a cardiologist treating patients—an applied undertaking—without a firm footing in the “hows” and “whys” of heart structure and function. Becoming good people and making good decisions work in much the same way and are subject to the same sorts of concerns. xvii Most texts on criminal justice ethics focus primarily, if not exclusively, on applied ethical problems and issues (with, perhaps, some limited attention to normative theory). Yet matters of normative and applied concerns represent only part of the interplay between ethics and crime, law, and justice. Consider the following: Are the moral values and principles we employ to justify our choices socially constructed and relative? Grounded in biology and universal? Are there influences on our choice-making sufficiently powerful to question whether we have free will and moral accountability for those choices? From where does morality come and what is its grounding and purpose? Does a genuine concern for others really exist, or are we necessarily self-interested and motivated to moral action only if there is some good in it for ourselves? What, specifically, do we mean by terms such as “good” or “just” as they appear in our ethical vocabulary?

Entertaining these kinds of questions brings us into the often-interrelated realms of metaethics and moral psychology. In a way,metaethicsis interested in the very foundations of ethics—the meaning of its language, the validity of its claims to knowledge. More importantly for our purposes, it also subsumes a number of critical concerns that are properly regarded as matters ofmoral psychology, which investigates the psychological foundations of moral decision- making and behavior. Of especial relevance to crime, law, and justice are questions of human nature and social cooperation, the role of emotion and intuition in moral decision-making, our motivation to be moral, the role of self-interest in human behavior, and the development of morality. ORGANIZING THEMES The organization ofEthics, Crime, and Criminal Justicediffers appreciably from those other texts found in the market today. For example, rather than focusing primarily on ethical issues in criminal justice, readers are introduced to a number of concepts that function as critical thinking “tools.” These tools enable the student or professional to recognize and assess a host of moral and ethical concerns that arise within the study and practice of crime, law, and justice. Rather than reviewing the facts and figures pertaining to criminal punishment, for example, the problems of human freedom, choice-making, and determinism are examined (see Chapter 3). This commen- tary leads to a more fully informed discussion and treatment of the moral context in which crim- inal punishment takes place. Moreover, rather than showcasing the topic of racism in policing or in court processing, thinking and reasoning skills are featured (see Chapter 11). This includes practical advice for the criminal justice professional on how to avoid labels, categories, and stereotypes, as well as other fundamental problems that occur when constructing arguments or taking positions that can lead to misguided perspectives, biased decision-making, and questionable actions.

Not surprisingly, then, the guiding organizational premise for Ethics, Crime, and Criminal Justiceis the emphasis it places on unpacking the assorted philosophical ideas that inform various crime and justice controversies. Moreover, this emphasis includes a targeted reliance on those conceptual tools essential for evaluating thought, choice, and conduct, especially as they relate to criminal justice dilemmas. “Ethics,” as it is presented throughout this volume, is not intended to tell us what to do when faced with a conflict between, for example, loyalty toward a fellow police or correctional officer and honesty in one’s work setting. Instead, the purpose of ethics is to explore more generally the relevance of duties, obligations, and principles; to encourage sound reflection on those particular explorations; and, ideally, to be better equipped to resolve any (criminal justice) situation in which conflict might arise. xviiiPreface To effectively identify, assess, and reach conclusions on issues of moral significance (e.g., how to balance loyalty and honestly), one must first have an adequate appreciation for the conceptual grounding that represents ethical thought. To accomplish this,Ethics, Crime, and Criminal Justicedraws attention to those relevant and prominent ethical theories, principles, and perspectives that have emerged throughout the history of Western civilization. In doing so, it exposes students and practitioners to the foundational thought necessary for any critical reflec- tion about ethical choice-making and moral behavior in criminal justice settings as well as any other sphere of personal or professional life. APPROACH, KEY FEATURES, AND PEDAGOGY The organizing themes outlined above give rise to a basic approach, several key features, and a number of unique pedagogical aids that separate Ethics, Crime, and Criminal Justicefrom existing texts of its kind. Nearly all ethics texts in the criminal justice discipline present generous amounts of information on issues that are properly ethical or moral in nature (e.g., police corruption, prosecutorial misconduct, juvenile delinquency); however, few texts present these issues in a way that meaningfully links them to the broader study of ethics and morality. The goal in writing Ethics, Crime, and Criminal Justicewas to offer a provocative yet accessible overview of the subject and scope of ethics, with specific attention to its relevance and value in the context of crime, law, and justice. The aim was to respond to the need for a comprehensive and illustrative text: one that provides a meaningful examination of both ethics andethical concerns in criminal justice.Ethics, Crime, and Criminal Justicenot only introduces students to the field of ethics, but also demon- strates how this field can inform our understanding of moral issues in criminal justice, thereby aiding the practitioner in reasoning through situational dilemmas that require thoughtful reflection and reasoned decisions.

There are several key (and unique) features to Ethics, Crime, and Criminal Justice.The most noteworthy of these include the following:

Comprehensive overview of ethical concepts, principles, and theories and their relevance to crime, law, and criminal justice.Many existing books on ethics and criminal justice provide limited treatment of the concepts and theories that constitute the foundations of ethical thinking, choosing instead to focus primarily or, in some cases, exclusively on criminal justice issues and dilemmas. While not excluding concerns of crime, law, and justice,Ethics, Crime, and Criminal Justiceoffers an informed and relevant exploration of the theoretical and conceptual foundations of ethics—foundations that, in turn, allow for the problems and concerns of criminal justice to be more thoughtfully and critically deliberated.

Emphasis on reasoning and critical thinking skills.Throughout the text, the importance of reasoning and critical thinking in ethics and criminal justice is emphasized. Particularly in the final two chapters, this book challenges students to overcome common obstacles to good ethical thinking and to approach ethical issues and moral dilemmas critically and intelligently. In addition to these chapters, which are dedicated entirely to exploring the importance of reasoning and critical thinking in ethics and criminal justice, many of the in-text illustrations and boxed inserts throughout each of the chapters are designed to encourage students to thoughtfully entertain issues and dilemmas of significance to ethics and criminal justice. Prefacexix Unique treatment of metaethical and moral psychological concerns of significance to crime, law, and justice.The concerns of metaethics and moral psychology—free will and determinism, relativism, self-interest, moral motivation, and development—are topics that are not only crucial to ethics, but also to understanding many of the issues and controver- sies in criminal justice (e.g., lawmaking, criminal punishment, unethical professional behavior). Notwithstanding their significance to the study of crime, law, and justice, many existing texts on ethics and criminal justice offer very little—and oftentimes no—attention to these key issues.Ethics, Crime, and Criminal Justicetreats them as central concerns that must necessarily be addressed and contemplated for meaningful discussion about moral issues and dilemmas to occur. In Part II of the text (“Metaethics and Moral Psychology”), we dedicate ample space to exploring many of these central issues and to examining their impact on, and importance for, crime, law, and justice.

Integrative approach.A key organizational feature ofEthics, Crime, and Criminal Justiceis its integrative approach. Most books on criminal justice ethics dedicate one or more chapters near the beginning of the text to exploring ethical and moral concepts, and utilize the remaining chapters to examine ethical issues and dilemmas in criminal justice. As the issues and dilemmas explored later in the text often require utilization of the concepts presented at the beginning of the text, this approach typically has the effect of forcing instructors and students to refer backto the conceptual chapters throughout the course. In contrast, we have attempted to integrate criminal justice issues, conflicts, and dilemmas into the substantive conceptual chapters. Rather than including separate chapters that address issues or categories of issues in criminal justice (e.g., ethics and law enforcement, ethics and corrections), presentation and discussion of these issues occur throughout the text. This approach allows for the issues and dilemmas to be better illuminated and more thoughtfully examined in relevant conceptual contexts.

Examination of practical issues and/or controversies relevant to careers in criminal justice, the “helping” professions, and justice studies.Most books on ethics and criminal justice are directed toward current and future criminal justice professionals. As such, they tend to dedicate the majority of their content to exploring issues or dilemmas that might arise within the context of a criminal justice career. Although dedicating ample space to these sorts of concerns,Ethics, Crime, and Criminal Justiceis written to be of value to anyone concerned with law, crime, and justice. Consequently, the book’s content is relevant to those pursuing careers ancillary to criminal justice. Examples of these related professions include social work, counseling, public policy, public administration, and forensic science.

Additionally,Ethics, Crime, and Criminal Justiceoffers numerous pedagogical features.

These instructional devices enable students to think critically about the twin subjects of ethics and criminal justice and the many contentious points on which they intersect. These features include:

• Lists of key terms and concepts • Questions for review and discussion • Ample illustrations, examples, and counterexamples throughout the text to clarify concepts, ideas, and applications of concepts and ideas • Boxed inserts that encourage reflection on the applicationof ethical concepts and principles to “real-life” issues and scenarios in criminal justice xxPreface • Boxed inserts designed to encourage students to critically reflectupon controversial ethical themes, topics, arguments, and scenarios in criminal justice • Boxed inserts that offer case studiesof people and/or events from the world of crime, law, and justice NEW TO THE SECOND EDITION The second edition ofEthics, Crime, and Criminal Justicefeatures numerous updates, revisions, and additions designed to more firmly ground and better illustrate the relationship between morality and crime, law, and justice. In several places, deeply theoretical discussions contained within the first edition have been moderated, and cumbersome terminology restricted to create a free-flowing and more widely accessible text. In addition to substantially reshaping discussions in numerous places throughout the second edition for purposes of clarity and cohesiveness, we have supplemented the text with updated studies, fresh case studies and examples, and new boxed inserts. Highlights of the second edition include:

• Chapter 12, “Applying Ethics: Utilizing Normative Frameworks for Decision-Making” is a new chapterwith a practical emphasis on the application of normative frameworks to ethical issues and dilemmas.

• Chapter 6, “Morality, Human Nature, and Social Cooperation” is a largely new chapter, introducing game theory,evolutionary psychology, and concepts such as reciprocal altruism, indirect reciprocity, altruistic punishment, non-zero-sum games, and moral intuition.

• Chapter 6 also contains an expanded discussion of the social contract(formerly in Chapter 8), linking it to human nature, social cooperation, and the question ofjustice.

• Illustrations and references to new developments in cognitive neurosciencehave been added to Chapter 3, “Free Will and Moral Responsibility.” • The treatment of Carol Gilligan’s ethic of carein Chapter 10, “The Virtuous and the Vicious:

Considering Character,” has been broadened and amplified.

• Substantive chapters begin with an engaging case study or example, designed to generate critical thinking and discussion concerning issues to be emphasized in that chapter’s text.

Highlights of case studies, examples, and inserts new to the second edition:

• No-knock warrants • Statutory rape • Consent to murder and cannibalism • The “Tavern Rape” and acts of omission • Violence and the media • Sodomy laws • The cases of Susan Smith and Andrea Yates • Lie detection • Child abuse • Violence and video games • Substance abuse treatment • Honor killings • Blood feuds Prefacexxi • The role of science in ethics • Incest • The relativity of prostitution laws • John Rawls’ theory of justice • Criminal informants • The “Heinz Dilemma” • Robert Anthony Williams and the “Christian Burial Speech” • The “Trolley Problem” • Ethics, crime, and the Internet ORGANIZATION OF THE TEXT Ethics, Crime, and Criminal Justiceconsists of twelve substantive chapters organized into three primary parts or sections. In each of the three sections, a fundamental domain of inquiry within ethics is explored, and in each chapter a substantive issue within that domain is reviewed.

Consistent with the underlying focus on ethics in criminal justice, the text addresses key issues mindful of their importance for the general study of crime, law, and justice. Wherever relevant, practical illustrations and useful examples drawn from the fields of law, criminology, criminal justice, and justice studies are strategically located throughout each chapter.

Part I of the text is entitled “An Invitation to Ethics.” It contains two chapters. The commen- tary here introduces students to the field of ethics by emphasizing its value, subject, and scope, par- ticularly in light of criminal justice concerns. Chapter 1 explains the role and importance of morality and the value of ethical inquiry, both within and outside of the criminal justice context.

Additionally, routine questions about why ethics is needed—especially given the existence of laws and professional codes of conduct that outline moral ideals and standards—are both raised and addressed. Highlighting several key problems with laws and codes of conduct, the need for moral- ity and ethical inquiry for criminal justice practitioners and nonpractitioners alike is discussed.

Moreover, specific concerns impacting the three main “spheres” of criminal justice (laws and lawmaking, social justice, and criminal justice practice) are described and the special moral requirements placed on professionals within the system of criminal justice are reviewed.

In Chapter 2, a more thorough introduction to the field of ethics is provided. Focusing on the importance of choice-making, readers are encouraged to reflect upon their responsibility for making ethically responsible decisions. With this in mind, the role that values play in the choices that we make is considered. This includes outlining types of moral values and problems that can arise when values are in conflict. Chapter 2 concludes with a brief introduction to the three primary domains of normative ethical inquiry (consequentialism, deontology, and virtue ethics).

Given that Parts II and III of this volume explore these domains in significantly more depth, this latter segment of the chapter helps situate and organize the balance of the text.

Part II of the book is entitled “Metaethics and Moral Psychology.” Several crucial concerns of metaethics and moral psychology are examined, with specific attention directed toward their relevance for criminal justice. When most people think of ethics, they consider its normative domain. This domain considers what we shoulddo or how we shouldlive, whether in the context of individual decision-making and behavior occurring in personal or professional settings, or in the context of organizational and institutional policy and practice. Interestingly, however, there are a number of important assumptions and concerns about human nature and social conduct that must be addressed before doing any meaningful thinking about what we should do and how xxiiPreface we should live. Included among these concerns are questions about (1) human freedom and the determination of human behavior; (2) the relativity of moral values and the possibility of moral objectivity and universality; (3) the degree to which self-interest necessarily informs our decisions; (4) the age-old question of why we should be moral; and (5) the psychological question of how morality develops.

In some respects, concerns of freedom, relativity, and self-interest can be thought of as potential obstacles or, at least, challenges to moral decision-making and behavior. They are given particular focus in Chapters 3, 4, and 5. Chapters 6 and 7 build upon questions raised in Chapter 5, transitioning into a consideration of the moral psychological concerns of moral motivation (“Why be moral?”) and moral development.

Part III is entitled “Normative Ethics: Theory and Application.” This section investigates the normative domain of ethical decision-making. As the chapters in this portion of the book make clear, normative ethics attempts to formulate guidelines, standards, and/or principles of right and wrong, good and evil, and to provide answers to questions such as, “What should I do?” and “How should I be?” Of course, these questions do not lend themselves to easy or patented answers. In fact, moral philosophy has collected over two thousand years worth of responses to these and similarly complex concerns. And while a review of all such perspectives is unnecessary in the context of a text such as this, an examination of several of the most influential and widely discussed responses is worthwhile. These responses or, more accurately, “theories” or frame- works, function as “tools” with which to assess various types of policy- and practice-based concerns in criminal justice, ideally yielding both reasoned judgments and informed solutions.

Typically, normative ethics is broken down into three basic frameworks. These frameworks consist of consequentialism, deontology, and virtue-based ethics. Part III ofEthics, Crime, and Criminal Justicededicates a full chapter to each of these perspectives. The objective over the course of these three chapters is to explore the merits of weighing consequences, duties, and character when faced with moral issues and ethical dilemmas. Chapter 8 examines the importance of considering the effects—the likely benefits and costs—of our decisions and actions. Chapter 9 explores those perspectives that place less emphasis on the consequences of our actions and, instead, focuses on whether our actions themselves conform to relevant duties, principles, and obligations. Chapter 10 addresses the importance of developing good moral character and a healthy sense of integrity. Once again, relevant illustrations from law, crime, and justice are utilized to help demonstrate how these philosophical ideas and topics routinely operate within the discipline of criminal justice.

Each of these three general frameworks (consequentialism, deontology, and virtue ethics) has many variations. Several of these variations are discussed in the respective chapters through- out Part III. However, what is perhaps most important is the degree to which the theoretical frameworks offered by normative ethics represent useful templates for critical reflection and decision-making on matters of morality. To this extent, the chapters that comprise Part III offer students and professionals a number of essential “tools” to interpret their everyday experiences and to direct their work-related practices in ways that are consistent with ethically sensible decision-making and conduct.

The final two chapters ofEthics, Crime, and Criminal Justiceserve as “guides” to thinking about and applying ethics and for living a virtuous life. Chapter 11 showcases a range of funda- mental ideas about reasoning, thinking, and judgment that foster careful reflection on moral beliefs and values. Not necessarily intended to be “taught,” this guide exposes readers to a number of sensible, though informative, points and directives about howto engage in sound reasoning and critical thinking. To this extent, then, Chapter 11 provides direction not only in how to Prefacexxiii pursue and maintain thought, choice, and conduct that are ethical, but also outlines a workable series of strategies for how to live virtuously and bring about justice in one’s own life, those of others, and in society. Chapter 12, new to this edition, is designed to encourage practical applica- tion of the ethical ideas outlined in Chapters 8, 9, and 10. It provides a basic framework for moral decision-making and addresses the ways in which theories of normative ethics can be used within that basic framework. The chapter concludes by posing a number of scenarios and dilemmas with which to “practice” the application of ethical frameworks to “real life” issues.

ACKNOWLEDGMENTS The authors wish to thank the following reviewers for their suggestions and comments on this and the previous edition: Dan Ashment, Ball State University; Dr. Susan Brinkley, University of Tampa; J. Virgil Costley Jr., DeKalb Technical College; Dr. Lois Presser, University of Tennessee, Knoxville; Beverly Quist, Mohawk Valley Community College; Michael Stevenson, University of Toledo; and Beverly Strickland, Fayetteville Technical Community College. xxivPreface ABOUT THE AUTHORS Christopher R. Williams, Ph.D.,is Professor and Chair of the Department of Criminal Justice Studies at Bradley University. His books include,Law, Psychology, and Justice: Chaos Theory and the New (Dis)Order; Theory, Justice, and Social Change: Theoretical Integrations and Critical Applications;and the edited volume,Philosophy, Crime, and Criminology.Dr. Williams has also published numerous scholarly articles and book chapters, most confronting issues and contro- versies in social and criminological theory, the sociology of deviance, the philosophical founda- tions of crime, law, and justice, and the sociological and legal dimensions of mental health and illness. He did both undergraduate and graduate work in psychology before pursuing doctoral studies in psychology, law, and public policy. Dr. Williams currently resides in Peoria, Illinois, with his wife and two children.

Bruce A. Arrigo, Ph.D.,is Professor of Criminology, Law, and Society within the Department of Criminal Justice and Criminology at the University of North Carolina—Charlotte. In the College of Liberal Arts and Sciences, he holds additional faculty appointments in the Psychology Department and the Public Policy Program. In the College of Health and Human Services, he holds an appointment in the Department of Public Health Sciences. Professor Arrigo is also a Faculty Associate in the Center for Professional and Applied Ethics—a teaching, research, and service unit of the Philosophy Department, a senior member of the University Honors College Council, and a Faculty Affiliate of Wake Forest University’s Bioethics, Health, and Society Program. His recent books include Revolution in penology: Rethinking the society of captives (2009),Postmodernist and Post-structuralist theories of crime(2010), and The ethics of total confinement: A critique of madness, citizenship, and social justice(2011). Dr. Arrigo also is the author of more than 150 peer-reviewed journal articles, law reviews, chapters in books, and scholarly essays on the normative, theoretical, empirical, clinical, and policy dimensions of various human justice and social change issues. Professor Arrigo is a past recipient of the Criminologist of the Year Award (2000), sponsored by the Division on Critical Criminology of the American Society of Criminology, an elected Fellow of the American Psychological Association (2002), and an elected Fellow of the Academy of Criminal Justice Sciences (2005). In 2007 he received the Bruce Smith Sr. Award (for distinguished research), sponsored by the Academy of Criminal Justice Sciences. In 2008 he was the recipient of the First Citizens Bank Scholars Medal, the most prestigious research honor bestowed upon a single UNC-Charlotte faculty member annually. He currently lives in Concord, North Carolina, with his wife, two children, and their dog, Mowgli. xxv This page intentionally left blank Ethics, Crime, and Criminal Justice This page intentionally left blank PART ONE An Invitation to Ethics 2 1 Criminal Justice and the Study of Morality The realities of crime, law, and justice hold—and likely will always hold—appeal in the popular imagination. The daily news is littered with headlines of intrigue: “Murderer and Accused Cannibal to Be Freed in August”; “Calif. Woman Charged with Scamming $285,000 from Nuns”; “Mom Admits Fatally Stabbing Her 3 Kids”; “Cops: Woman Disguised as Dead Mom Arrested in Bank Fraud”; “$5 Million Bond for Mother of Boy Found Dead in Oven.” 1Indeed, the problems and issues as well as people and personalities associated with crime, law, and justice arouse our feelings, inflame our passions, and provoke our thoughts. Consider the following:

• In 2005, Genarlow Wilson was convicted in Atlanta, Georgia, of engaging in oral sex with a fifteen- year-old girl when he was seventeen. Wilson had been an honors student, homecoming king, and football star, soon to be enrolled at Vanderbilt University on an athletic scholarship. At the time, Georgia state law defined Wilson’s behavior as felony aggravated child molestation, and he was sentenced to a mandatory ten years in prison and made to register as a sex offender. In 2007, the Georgia Supreme Court ruled Wilson’s sentence cruel and unusual. He was released later that day, though his conviction was not overturned.

• In December of 2002, Armin Meiwes was arrested in Germany and later sentenced to 8 1⁄2; years in prison after being convicted on manslaughter charges. The previous year, Meiwes had placed a personal advertisement on the Internet looking for a “well-built 18 to 30-year-old to be slaugh- tered and then consumed.” 2Bernd Jürgen Brandes responded to the advertisement. Sometime thereafter, Brandes went to Meiwes’ home for purposes of completing the act (though others had responded to the ad, none had followed through). Meiwes proceeded to castrate Brandes, and the two attempted to consume the flesh together. A bit later, Meiwes—having provided Brandes plenty of painkillers and alcohol—proceeded to stab him to death, cut his body into pieces, and freeze it. Meiwes would, for some ten months, consume the remains of Brandes.

• On November 21, 2006, ninety two-year-old Atlanta resident Kathryn Johnston was shot and killed in her home by undercover police officers. The officers broke down her door, entering her home on a no-knock warrant—a type of warrant which allows officers to enter homes without first notifying the resident/s of their intent to enter. Presumably not recognizing the plainclothes intruders as police officers, she fired a shot from a gun she kept for self-defense. The officers responded by firing several dozen shots upon Mrs. Johnston, a handful of which struck and Chapter 1 • Criminal Justice and the Study of Morality3 ultimately killed her. It was later determined that officers had falsified paperwork to get the warrant, claiming to have purchased cocaine from that residence earlier in the day (in fact, they had not). To cover their tracks following the shooting, one of the officers planted marijuana at the scene. Criminal charges were brought against three officers, each of whom received a prison term.

Chances are, several elements of these stories grabbed your attention. A mandatory ten-year prison sentence for a consensual sexual act between two teenagers? People agreeing to be killed and eaten by other people? An innocent elderly woman gunned down in her own home by police?

Part of what makes these stories immediately appealing is that, whether we realize it or not, they are steeped in morality. Homicide, suicide, sex, cannibalism, lying, and cheating have been subjects of moral evaluation for thousands of years. So too have more nuanced concepts such as rights, liberties, justice, free will, consent, and intentionality that we regularly use to do the evaluating. Out of concern for these kinds of behaviors and regard for these kinds of concepts, criminal justice—in both theory and practice—is an inherently moral subject.

Not surprisingly, then, the topics and questions of interest to criminal justice are often personally meaningful and extremely provocative. Discussions on the death penalty, abortion, flag burning, war, racial profiling, or terrorism present disparate opinions and clashes of values that arise from conflicting views about right and wrong. Some may oppose abortion, arguing that it is wrong to take a life; similarly, some may oppose the death penalty because, again, it is wrong to take a life.

Others may support abortion, reasoning that people should be free to do as they see fit with their own bodies—that is, to enjoy some sense of privacy, control, and self-determination when it comes to that which is most private and most uniquely “ours.” Yet which values and whose principles are, in fact, valid and desirable in these and other contexts? Should the value of life take precedence over the right to privacy and self-determination? If so, under what specific conditions should this occur?

Should the value of life supersede the value of what some define as “just” punishment? Knowingly or not, when we contemplate issues such as capital punishment, sentencing disparity, or drug legalization in criminal justice courses; reference the desirability of “liberty” in friendly discussions with parents or roommates; or take action to respect or protect the “rights” of ourselves or others, we are immersed in the realm of morality and participants in the realm ofethics. ETHICS AND MORALITY At its most elemental level,ethicscan be defined as the philosophical study of morality.More specifically, ethics can be described, in part, as:

• The study of what is morally “right,” “wrong,” “good,” “bad,” “obligatory,” and “permissible.” • An effort to understand and justify moral concepts, principles, and theories.

• An effort to establish (justified) principles of moral behavior that can serve as guides for individuals and groups. 3 • An investigation into the values and virtues that are important—even necessary—to leading and living a (or the) “good” life, as individuals and as societies.

Moralityis typically understood to refer to people’s values, their beliefs about right and wrong, good and bad, and the choices they make and the actions that they take as a result of those values and beliefs. Resorting to violence in retaliation for verbal insult might be described as “wrong” or “immoral”; ethics is the critical contemplation of whether it is, in fact, immoral and on what basis we can make such a judgment. A law enforcement officer telling the truth in a court of law, even though 4Part 1 • An Invitation to Ethics it results in the dismissal of the case, might be described as “moral” and illustrative of integrity; ethics defines, describes, and evaluates honesty, including when and under what circumstances it is a morally desirable course of action. Ethics is thus an investigation into or critical consideration of morality—of values, beliefs, choices, and actions. In this respect, ethics encourages conscientious reflection on how we should live, the decisions we should make, and the actions we should take as we confront a variety of personal and professional scenarios over the course of our lives.

Yet, ethics is not simply the study of morality. Anthropology, sociology, and other social sciences routinely study morality; ethics is better understood as a certain wayof studying morality. To illustrate, let us revisit the case of Armin Meiwes, one of the three with which we opened the chapter:

A key consideration in the case of Armin Meiwes is that his “victim” consented to being killed and eaten. In other words, he was a willing participant in his own death. With respect to many kinds of encounters,consentchanges the moral quality of what transpires. As might also be relevant to the case of Genarlow Wilson, consent marks the difference between sex and rape.

It also differentiates masochism from criminal torture, and even assault from a routine trip to the dentist’s office. 4The fact that Miewes’ victim consented thus begs several questions of interest to ethics: Should the “victim” in this case be considered a homicide victim? Should Meiwes be held criminally responsible? If so, how should he be punished? Should the reason for the victim’s consent matter (e.g., he was terminally ill, he was participating in a spiritual or religious ritual)?

Is consenting to one’s own death better regarded as suicide? Is cannibalism “wrong,” even when those being consumed have previously consented to being consumed? Should it matter if the cannibalistic activities were necessary to prevent the deaths of a larger number of people, as when stranded with no access to an alternative food supply?

Each of these questions has something in common with the others that distinguishes them from the kinds of inquiries common to the natural and social sciences. When scientists and social scientists study morality they are typically interested in offering descriptiveaccounts; that is to say, they offer descriptions, explanations, and sometimes predictions of the moral beliefs and practices within a given society or culture. With respect to the Meiwes case, descriptive approaches might offer interpretations of the existing laws pertaining to consent, homicide, and suicide; they might offer explanations for why someone would want to kill, eat human flesh, or have one’s own flesh eaten by others; they might offer statistics on the prevalence of suicide or descriptions of canni- balism in other cultures. Ethics, on the other hand, is largely prescriptive. It attempts to evaluate moral beliefs, principles, practices, and so forth, and makes normative statements about what shouldbe or should notbe done in light of its evaluations. Thus, unlike anthropology or other social science disciplines, ethics is not the study of what is, but of what shouldor oughtto be. 5 To further illustrate the distinction between descriptive and prescriptive forms of inquiry, let us consider the example of laws prohibiting murder. If we approached the issue of homicide through the study of criminal law, we would endeavor to understand what is. We would be interested in ascertaining the existing state of the criminal law with respect to murder—how, precisely, this crime is defined; what exceptions, if any, apply to the general rule; what punishments are ascribed to the act of murder; and other considerations that allow us to better grasp what murder is and how it is understood from a legal perspective. As soon as we begin to entertain questions such as what punishments shouldor oughtto apply to murder, whether murder shouldbe legally prohibited, whether there shouldbe exceptions to the general rule, and whether existing exceptions are morally justifiable, we step into the realm of ethics (see Box 1.1). In a way, ethics is interested in “taking a step back” from common beliefs and practices, subjecting them to critical examination, and reaching normative conclusions about what should bethe case rather than what isthe case. Chapter 1 • Criminal Justice and the Study of Morality5 Part of the significance of ethics, especially within criminology and criminal justice curricula, is that it encourages students (and teachers) to reflect critically on matters that are all too frequently taken for granted. Definitions of crimes and corresponding punishments; the rights of citizens, suspects, and incarcerated criminals; and law enforcement techniques and tactics for apprehending persons who have (or are thought to have) violated the law are examples of topics that people encounter over the course of their criminal justice and/or criminology education. Most often, however, students are simply asked to learn these things in their existing everyday forms (e.g., facts, techniques), rather than more deeply contemplate what shouldbe.

Thus, ethics challenges us to experience a deeper understanding of what crime and justice are or could be, directs our attention to the “rights” and “wrongs” of the criminal justice system, and invites students to consider what their (potential) roles should be as current or future practitioners within the field.

Never Kill an Innocent Human Being In the examples used near the beginning of this chapter, several values and principles were mentioned as common justifications for opposing or supporting practices such as abortion and capital punishment. In everyday discourse, we usually make judgments as to the “rightness” or “goodness” of behavior by referencing values or principles that we hold to be important.

The values and principles that ethics investigates are not that different from those that factor into our own moral decision-making and judgment (e.g., honesty and fairness, duty and obligation).

However, ethics removes these notions from everyday discussions and subjects them to careful scrutiny. The goal is to identify values and construct principles that are sound, worthwhile, andBOX 1.1 The Moral Problem of Punishment While we often entertain practicalquestions of criminal punishment, we less often consider the moral under- pinnings of those practices. Why do we punish? When do we punish? What is the appropriate amount of punishment for a given infraction? While each of these questions can be answered in a practical sense, they also have moral foundations that require our critical consideration.

Utilitarian philosopher Jeremy Bentham once argued that “all punishment is evil”—“evil” being anything people do not want inflicted upon them.

He was not, of course, suggesting that we not ever practice the punishment of criminal offenders. Rather, he was simply stating an often-overlooked moral reality that punishment involves the infliction of pain, the causing of suffering, and/or the infliction of deprivation—all actions that, morally, we ought to avoid wherever possible. Beyond simply being an evil in this sense, punishment is an evil that we intentionally inflict upon other human beings.If we accept the notion that all punishment is evil and, further, agree that evil generally should not be caused and evil actions not done, we recognize the ethical problem of punishment. “If the infliction of evil ought not be done under most circumstances, how can we justify the infliction of evil on criminal offenders?” Outside the context of criminal justice operations, depriving persons of things that they value and/or inflict- ing pain and suffering upon persons is often grounds for punishment. Yet within the system of justice, these pains and deprivations represent the operative mode by which “justice” is often carried out. The moral problem of punishment, then, is this: How can we justifyintention- ally inflicting evil upon other human beings? What justifications can you think of for punishing criminals?

What justifications might exist for dealing with criminal offenders in ways other thanpunishment? Source:Igor Primoratz, Justifying Legal Punishment(New Jersey:

Humanities Press, 1989), pp. 1–9. 6Part 1 • An Invitation to Ethics applicable in a number of situations or contexts (including those that occur within criminal justice contexts). Consider the following questions that could be raised in response to the idea (i.e., principle) that we should never kill an innocent human being:

• Is the idea that we should never kill an innocent human being a worthwhile principle?

• Does it apply to all situations or are there exceptions? If there are exceptions, what are they and why? What makes these exceptions legitimate?

• What if the principle of never killing an innocent human being conflicts with other principles also considered important? Can we rank-order principles such that some “trump” others when there is a conflict? If so, who decides this and by what process?

• What if, for example, killing an innocent human being can save the lives of ten other innocent human beings? Is this killing ethically justified?

• What is a “human being”?

• What constitutes innocence?

• What constitutes life and therefore “killing”?

You probably had an easier time with the first question than those that followed. Despite the fact that most people would probably agree that not killing innocent human beings is a valid moral principle worth following, they would likely run into some difficulties with one or more of the subsequent queries. Exceptions to this principle could be many and varied. For instance, in times of war military forces routinely kill innocent human beings (both citizens of other countries and, on occasion, their own civilians). Could we argue that citizens of other countries, by virtue of supporting their governments, are somehow less “innocent” and therefore exempt from the principle? When terrorists attacked the United States on September 11, 2001, flying hijacked aircraft toward buildings occupied by thousands of people, would it have been morally justifiable for the U.S. military to shoot down the hijacked aircraft—thereby killing dozens of innocent citizens on board—in order to prevent these planes from reaching their targets?

In other words, to what extent are innocent lives expendable? Which ones? By what moral principles might we make such determinations? (Russian parliament has since passed a law allowing for “flying bombs” to be shot down, while Germany’s Federal Constitution Court did just the opposite, citing concern for human dignity as reason that sacrificing innocent citizens in such cases is unlawful). 6 Defining the contours of moral values and principles can be more difficult than often imagined. The same is true when describing the specific situations in which these values and principles do or do not apply. Even something as seemingly straightforward as defining “human being” can be a matter of significant moral contention. Is an unborn fetus a “human being” by moral standards? If so, at what point does it becomea human being? Historically, entire groups of people have been exempt from human status. For instance, Nazi Germany subscribed to something similar to the above principle that we should never kill an innocent human being.

However, Jews and certain other citizen groups (e.g., gays, various ethnic constituencies) were not legally regarded as fully human. Therefore, killing persons within these collectives was not a violation of the accepted principle within Nazi Germany. 7 Ethics examines and encourages us to consider these sorts of questions. It seeks to develop valid principles that can be used by individuals, groups, organizations, communities, and even entire societies as guides along the path of life. Some issues (e.g., What constitutes innocence?) may seem academic and of little relevance to our everyday realities. However, investigating such questions forces us to reflect profoundly upon our own values and beliefs, as well as why we have them and how we can or should apply them in our personal and professional lives. Chapter 1 • Criminal Justice and the Study of Morality7 THE ROLE OF MORALITY AND THE VALUE OF ETHICAL INQUIRY Given this very provisional understanding of morality and ethics, we can begin to consider not only what both are, but also what they do; that is, why we need morality and why the study of morality (i.e., ethics) can be of value to individuals, professionals, institutions, cultures, and societies. What role does morality play in cultural settings and in social contexts? What value does morality bring to us as individuals—both in our personal and professional lives? Why do social institutions such as law or the criminal justice apparatus (as well as their component parts) need to function in a moral fashion?

Overall, we might say that the purpose of morality is to enable us to live a good life in a just society. Though morality has many more specific purposes, almost all of them tend either to enable us to live good, fulfilling lives as individuals, or promote the kind of society, social conditions, and human relationships that allow all citizens to experience the same. Among other things, morality plays a significant role in preventing and reducing harm and suffering, enhances human and nonhuman well-being, provides the necessary tools to resolve conflict fairly and orderly, and encourages people to recognize and attend to the needs of others. 8All of these things, in turn, contribute in some way to the development and sustenance of a just society—to conditions and relationships that allow us to be well and to flourish as individuals, that allow others to be well and to flourish as citizens, and that promote the greater health of the community and of society.

All of this may seem rather vague. This is because ethics—the study of morality—is not as simple as concluding that we need morality to enable us to live good lives in just societies.

Ethics forces us to reflect more deeply upon what, exactly, we mean by “goodness,” “justice,” and how and why they are important in a social context. Even if we begin with the basic idea that morality enables us to live a good life in a just society, ethics then forces us to further address related questions and concerns:

• What is “justice” and a “just” society?

• What is a (or the) “good” life?

• How, exactly, does morality function to promote justice (or fail to do so)?

• How does morality further our interest in living a good life? A happy life? A fulfilled life?

Unfortunately, these questions do not lend themselves to easy or straightforward responses.

You may be distraught to learn that despite more than two thousand years of moral philosophy— of critical reflection, argumentation, and analysis—ethical inquiry has not produced definitive, irrefutable answers to these sorts of questions. To be clear, this is not a consequence of limited efforts or misguided attempts. Moreover, a variety of provisional answers to these very questions are discernible and they are worth considering (indeed, several of them will be entertained over the course of this book). However, the point is that ethics is not something to be undertaken with the intent of finding all possible solutions. Unlike scientific and social scientific inquiries that provide factual (descriptive and explanatory) information, ethics primarily encourages us to question, to develop our own answers, and then to question some more.

Fortunately or otherwise, ethics is not an exact science. It is not an exercise in learning and applying rules and principles (such as the law). Additionally, ethics does not tell us exactly how we should lead our lives or what we should do in every situation. While ethics certainly encourages us to think about principles and to think about how they might apply in specific, concrete instances, it is perhaps best thought of as an ongoing process of critical reflection. Part of what ethical inquiry is—and part of what it means to be moral—concerns this processof 8Part 1 • An Invitation to Ethics thinking and rethinking, developing provisional answers only to recognize their limitations and reflect a bit more. How will studying ethics help you in your personal and professional life? Not, as you might think by providing solutions but instead, by encouraging you to continually reflect upon the questions themselves.

The Examined Life: What Does It Mean to Be Moral?

The Greek philosopher Socrates (469–399 B.C.E.) is reputed to have once said that “the unexamined life is not worth living.” 9What he meant is that it is important to critically reflect upon our own lives, the principles by which we live them, the values we cherish, and the cognitive and affective (i.e., emotional) forces and processes that inform our decisions and actions—in short, the people we are, have been, and want to be. Socrates also instructed his students to be true to themselves; that is, to “know thyself ” (a then-familiar philosophical slogan reputed to have been inscribed on the temple of Apollo in ancient Greece). Thus, ethics not only asks that we reflect upon the issues and/or controversies that we encounter in our personal and professional lives, it also asks us to examine ourselves. Another way of saying this is that ethics asks that we live mindfully—to take some care in how we act, what and how we feel, what we think and believe. 10 Morality is not possible without self-knowledge; and “knowing thyself ” requires the kind of critical, self-searching introspection that ethics encourages us to undertake.

In a way, then, we can understand morality as “the self-conscious living of life.” 11 To b e moral is to have knowledge about one’s self; that is, what you are about and, thus, what you are doing and why you are doing it. Searching ourselves—coming to “know ourselves”— brings us to one of the most important functions of morality in the context of our personal existence as individuals:Morality gives meaning to and provides purpose in our lives. Knowing one’s self in the way that Socrates advocated is ultimately what enables us to experience a sense of identity, meaning, purpose, direction, and motivation. To illustrate, if we selfishly strive for money and power, lying and exploiting others for our own benefit, we not only live a less-than-moral life from the perspective of others, but also lack something important: a personal sense of virtue and goodness. Meaning and purpose come from being in touch with our values and principles and from being aware of and motivated by things beyond ourselves.

In short, having a sense of goodness and justice serves as a way of measuring ourselves— where we have been, where we are, and where we are going—and as a guide for our decisions and actions.

If our lives are directed by a deeper sense of goodness and justice, arguably we live more complete, satisfying, and fulfilling existences. Part of what Socrates meant when he proclaimed that the unexamined life was not worth living was that a relationship could be discerned between ethics, morality, and happiness—between being moral and living a fulfilled life. Socrates, Plato, Aristotle, and other early Greek philosophers each, in their own way, suggested that being moral wasbeing happy and well. In other words, when people lead good lives, notwithstanding difficulties or inconveniences they may bring to themselves because of it, they embrace happier, more fulfilling existences. This reasoning may be somewhat difficult for us to accept, especially when being moral seems often to result in unhappiness or, at least, inconvenience. However, the temporary frustrations and nuisances that can follow from setting aside our own pleasures, wants, and interests are not contrary to being well and to leading a good life. Indeed, on a deeper level, the inconveniences directly contribute to our own well-being and to that of others, as well as to the general health of the community and society of which we are a part. In other words, they directly contribute to living a good life in a just society. Chapter 1 • Criminal Justice and the Study of Morality9 WHY ETHICS WHEN WE HAVE LAWS?

Like many students of criminology and criminal justice who come upon ethics for the first time, you may be asking yourself, “don’t we already have laws that serve to create and sustain a just society in which we can lead good lives?” Isn’t this precisely their purpose? And, if so, why do we need to bother with ethics at all? 12 Let us consider the example of drugs and society as a basis to examine this matter. Whether as students or teachers, both authors of this volume have discussed the phenomenon of illicit substance use/abuse and crime on a number of occasions. Invariably, when the class discussion focuses on drug decriminalization or legalization, some very strong sentiments in favor of or opposed to this policy are voiced. Eventually, after some considerable classroom debate, a student typically weighs in and says emphatically that “It’s against the law, period!” When pursuing this position with students who express such deeply held convictions, often (although not always) they are persuaded that the law is, in and of itself, sufficient justification for their views concerning illicit drug use. In other words, for them the mere fact that something is against the law is itself an indicator that further discussion on the matter is unwarranted. The question becomes whether such a position or argument is sound.

Does the fact that something is against the law mean that subjecting it to critical scrutiny is pointless?

That is, does the legality or illegality of a certain behavior “end the argument,” so to speak?

In our joint experiences within the field of criminology and criminal justice, there are literally thousands of students who question the need for critical discourse around issues such as illicit drugs (other than, perhaps, how to control them and the people who sell and use them).

In relation to ethics, the question might be asked, “why do we need to study ethics, particularly in the context of a profession that relies heavily on laws, codes of professional conduct, and the like?” Why, one might ask, do we need ethics when we already have laws and guidelines in place to tellus how we can and cannot act and what we should and should not do? Why study the moral dimensions of drugs, abortion, euthanasia, prostitution, gambling, rape, arson, robbery, and even murder when other people have already done so and codified (written into law) their conclusions? Why waste time on these matters when it is quicker and easier to rely on the answers that legislators and judges have already provided and that, ultimately, we must abide by anyway?

Laws Are Not Infallible There are several important considerations that arise in response to these and similar questions.

First, we might ask ourselves how and by whom laws are made. It is always important to remember that laws are made by people, generally through a process of ethical reasoning that involves moral considerations. More specifically, statutory laws are created by local, state, and federal legislators; regulatory law is created by administrative agencies; and case law is created by judges and justices. In all instances, it is important to remember that laws, policies, rules, guidelines, codes, and so on are made by falliblepeople who are subject to the same sorts of biases, pressures, conflicts, and errors in reasoning as the rest of us (though to a lesser degree, we would hope). To illustrate, simply because state legislators conclude that gambling is harmless and remove it from the list of prohibited acts, does not mean that gambling isharmless or that it shouldbe removed from the list of prohibited acts. Further, even if state legislators legalize gambling, they do so for what they believe are valid reasons. Of particular interest to us should be what reasonsand whether they represented good reasons.

13 For instance, if economic considerations played a role in the state’s legalization of gambling, then increased revenues, jobs, commerce, and so forth were likely identified as more important than those factors weighing against the decision. These types of considerations make the legalization of gambling a decidedly moral judgment. 10Part 1 • An Invitation to Ethics Laws Can Be Immoral Concerns of law and lawmaking will reappear throughout subsequent chapters. For now, what is important is that we understand the value of and need for ethics even when we have law. In short, we need ethics—even if we have laws—because law is not possible without ethics. 14 In making laws, legislators, judges, and others with lawmaking power are invariably making decisions that are moral in nature or have moral implications; they are arriving at conclusions about what is right and wrong based on what they believe, at the time, amount to good reasons or sound justifications. These reasons and justifications, in turn, may or may not be suspect. Laws may or may not be moral; they may or may not promote moral behavior.

Consider, for example, the Nuremberg lawsenacted by the Nazi German government which deprived persons classified as “Jews” of German citizenship and basic rights belonging to citizens, or the keeping of slaves in the pre–Civil War United States—a practice that was legal both under state law and under the U.S. Constitution at the time. Persecuting Jews and the keeping of slaves are today acts that most of us would agree are less than moral by nearly all standards. Yet they were also acts that were legal at one time. What can we learn from these examples? Simply put,legality does not necessarily equal morality;and, likewise,morality does not necessarily equal legality. Ethics may determine that some laws (e.g., those permitting slavery or those promoting or maintaining discrimination on the basis of class, race, gender, etc.) are immoral. There are many acts that are legal, yet immoral by many standards; and, at the same time, there are many practices that were, are, or might be illegal, while being moral by at least some ethical standards (see Boxes 1.2 and 1.3).

For instance, some environmentalists drive spikes into trees to prevent them from being harvested by the lumber industry (if the trees are then harvested, the spikes break the expensive saws in the lumber mills). 15Are such practices ethical? Despite questions of legality, the principles that drive environmentalists are unquestionably moral in nature.

BOX 1.2 Jury Nullification Jury nullificationoccurs when jurors return a verdict that is consistent with their own sense of justice, but inconsistent with the law. Often, this occurs when a verdict of “not guilty” is returned despite evidence that the defendant is legally guilty of the crime for which she or he is charged. In effect, the jurors determine that the existing law is immoral or has been wrongfully applied in a particular instance and decide the case on the basis of their own moralstandards rather than applicable legalstandards. Jurors may, for instance, refuse to find a defendant guilty of a “mercy killing,” despite over- whelming evidence that the killing was in violation of criminal law (e.g., see the cases of Jack Kevorkian who, via physician-assisted suicide, claims to have “helped” over a hundred people end their lives).

• Given the problems with law outlined in this chap- ter (e.g., that laws can be misguided, outdated, immoral, unjust), do you feel that jury nullificationcould be morally acceptable in some situations? If so, under what circumstances and for which types of crimes/criminals? Keep in mind that the role of jurors is not to make or change laws, but to judge cases on the basis of legal facts with which they are presented.

• Is jury nullification a desirable part of criminal justice? Does it promote or interfere with justice?

Keep in mind that it was not long ago that juries in the South regularly returned “not guilty” ver- dicts for white offenders who were charged with crimes against blacks, notwithstanding strong evidence of guilt. Similarly, black defendants were regularly found “guilty” on the basis of very little evidence. Source:Murray Levine and Leah Wallach, Psychological Problems, Social Issues, and the Law(Boston, MA: Allyn & Bacon, 2002). Chapter 1 • Criminal Justice and the Study of Morality11 Right Does Not Always Make Good These discrepancies are an important reason for studying ethics and morality even when we have laws to guide us. It is always important to keep in mind that even if we “do the right thing” by legal standards, we are not necessarily acting morally. Similarly, even if we do the wrong thing by legal standards, we are not necessarily acting immorally. Throughout your studies of crime and justice, politics, society, and life more generally, always keep in mind that rightdoes not equal righteous. That is to say, just because something is a legalright does not make it a moralright.

These are two very different uses of the term “right.” While my friend Sara may have the “right” to have an abortion, this certainly does not mean that it is morally “right” for her to do so. Similarly, simply because it may be morally wrong for her to do so, this does not necessarily mean that it is or should be legally wrong. The relationship between morality and law is one that is as complex BOX 1.3 Morality in Law: The Case of Sodomy In 1982, Michael Hardwick was arrested in his own bedroom on charges of sodomy—at that time a crime in Georgia carrying a penalty of up to twenty years in prison. Hardwick had missed a court appearance on an unrelated matter, resulting in a warrant being issued for his arrest. Police went to Hardwick’s home at 3 A.M. to serve the warrant and, having been let inside by his roommate, found Hardwick engaged in oral sex with a male partner. He and his partner were subsequently arrested under a Georgia law which prohibited certain forms of sexual relations. At the time, Georgia was one of a number of states to havesodomy laws—laws that criminalize a variety of “deviant” sexual acts, including oral and anal inter- course (even when done in private and between consenting adults).

Although the sodomy charges were later dropped, Hardwick proceeded to sue Michael Bowers, then attorney general of the state of Georgia, hoping to have the Georgia law declared unconstitutional. The case eventually reached the Supreme Court of the United State of America, and the Bowers v. Hardwickdecision would become one of the most infamous and widely discussed cases involving morality and law in recent decades. By a 5–4 decision, the Supreme Court held that the Constitution does not “extend a fundamental right to homosexuals to engage in acts of consensual sodomy” and that “to hold that the act of homo- sexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”The publicity and debate generated by the Bowerscase ultimately set the stage for the eradication of sodomy laws. The Georgia Supreme Court would, in the 1998 case of Powell v. State, declare the 182-year- old Georgia sodomy law unconstitutional. Seventeen years after Bowers, the U.S. Supreme Court reconsidered the issue in Lawrence & Garner v. State of Texas (2003), this time declaring unconstitutional all state laws that made private sexual acts between consenting adults (except for prostitution) crimes. Before the 2003 decision, Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia still had some variation of sodomy laws (and corre- sponding criminal punishments) on the books.

The Bowerscase not only raises interesting questions about the relationship between morality and the law: What is the appropriate relationship between morality and law? Does the state have an interest in maintaining the moral integrity of the community and, thus, legislating morality? Bowersalso raises some interesting questions about the enforcement of laws.

Though a person need not have been homosexual to have violated sodomy laws, the Court repeatedly refer- enced “homosexual sodomy,” and the “crime” of sodomy was historically enforced selectively (with arrests and prosecutions for sodomy typically involving homosexual rather than heterosexual offenders).

What, if any, moral concerns are raised by selective enforcementof the law? For what reasons, if any, might it be acceptable to overlook some violations of law while arresting others for the same offense? 12Part 1 • An Invitation to Ethics as it is important. While we will have occasion to return to it, for now we simply should recognize that law and morality—though arguably interrelated—are not one and the same. We cannot and should not abandon our study of ethics simply because we have laws. Laws are not definitions of morality; rather, laws are subjectsof ethical scrutiny in the same way as everything else.

Law Is Not Inclusive of All Moral Concerns While morality is closely linked with law, they are not one and the same. Law and morality are similar in that they are both intended to promote well-being, resolve conflicts, and generally enhance social harmony. 16As the previous section attempted to clarify, however, there are some important differences between law and morality. In addition to laws not always being moral, and morality not always being legal, there is at least one other difference that is worth noting—that some aspects of morality are not covered by law. 17Most all of us would agree that lying is, in most instances, morally wrong. Yet other than those laws prohibiting perjury, various forms of fraud, and a few other situations, there are no specified laws against lying. It would be perfectly legal to live our lives lying whenever we could reap some personal gain from doing so. Yet in so doing, we would certainly not be leading moral (or, at least, morally virtuous) lives. Being a good person and doing the right thing are not equivalent to being a law-abiding citizen and avoiding illegal acts. In short, there is much more to morality than law.

It Is Not Enough to Do the Right Thing Another important reason to study ethics is that, just as lawmakers have good (and sometimes not-so-good) reasons for passing laws, people need to have good reasons for acting one way or another, thinking one way or another, and believing in one thing or another. It is not enough to simply do the right thing; rather, we must know why it is right. This applies not only to laws, policies, and codes of conduct, but also to all standards of conduct—whether they be profes- sional, legal, religious, or merely social. All legal and all religious systems have some form of prohibition against the taking of life. Can we say that we are moral simply because we follow God’s commandment not to kill? The short answer is, “no.” To be moral people, we must not only follow moral rules, but also understand whythe conduct in question is moral or immoral.

We must reflect upon whyit is wrong to take life. We must, in a sense, reach the same conclu- sions that lawmakers, religious authorities, professional organizations, and the like have reached by reasoning through principles, scenarios, arguments, and so forth for ourselves.

Some would argue, for instance, that the Christian God prohibits killing becauseit is wrong.

In other words, even God has good reasons for asking us not to kill. What is important is not simply that we know thatwe should not kill and lead our lives accordingly; rather, what is important is that we know whywe should refrain from killing. MORALITY, ETHICAL INQUIRY, AND CRIMINAL JUSTICE Morality, then, assumes an important role in our own lives, as well as the lives of the communities and societies of which we are a part. As valuable as morality and ethical inquiry are for human social and personal existence, most of you are probably reading this book (and/or taking this course) not because of a deep interest in ethics, but because of an interest in criminology, criminal justice, or justice studies. Thus, in the remainder of this chapter, it will be helpful to look more closely at the role of morality in this context, as well as the value of ethical inquiry for students and practitioners of criminal justice. Chapter 1 • Criminal Justice and the Study of Morality13 We might begin by laying out the role of ethics and morality in relation to what could be termed the spheres of criminal justice. Ethics is applicable to a number of different (but interrelated) levels, or spheres, that collectively make up crime and the behavior of the criminal justice system: criminal justice practice, laws and lawmaking, and social justice. 18 Each of these spheres always exists in relation to the others. Consequently, we should not regard them as mutually exclusive, but as interrelated and interdependent. Changes in law, for example, impact the practice of criminal justice as well as broader concerns of societal well-being, and changes in the practices of the criminal justice system impact the form and content of laws as well as have a more far-reaching effect on larger social concerns such as race, class, and gender relations. In light of these interactions, it is important to approach ethical inquiry in criminology and criminal justice from the perspective of each of these spheres, attending equally to concerns that emerge from within and between all of them. Throughout this volume, many ethical concerns of criminal justice practice, law and lawmaking, and social justice are featured. Here, we offer some preliminary observations on each of these spheres of criminal justice.

Criminal Justice Practice Ethics is not limited to considerations of prominent moral and political issues such as abortion, capital punishment, and euthanasia. Ethics is equally relevant to other significant realms for criminologists and criminal justicians. Specifically, many students of criminal justice ethics are likely to be current or future practitioners. Criminal justice ethics encourages practitioners to confront not only contentious moral and legal issues, but also to assess their personal behavior as members of a profession. These are matters ofprofessional ethics.Professional ethicsis interested in utilizing ethical values, principles, obligations, and so on, in applying them to particular issues and practical scenarios that emerge within the context of a given field or occupation. Thus, medical ethics, business ethics, legal ethics, and police ethics are each efforts to understand the moral dimensions that characterize these professions and to formulate principles that might serve as guides for individual behavior within the context of these professions. For example, what principles do we want police officers to practice with regard to honesty or integrity? Is it ever morally acceptable for officers of the law to be dishonest? Does the context matter? What if being less than virtuous helps to achieve the aims of policing as a profession?

Each of these is a question of fundamental importance to criminal justice. Collectively, they are questions of police practice; that is,howpolice officers should go about achieving the aims of the profession. At the same time, though, they are inescapably moral concerns.Howwe behave, be it in our personal or professional lives, always has a moral dimension. Indeed, whether we realize it, nearly everything we do has some ethical relevance. Moreover, as discussed in the previous section, part of the value of studying ethics is to recognize the various ways in which our lives unmistakably possess ethical dimensions and moral significance. Once we come to this realization, we are in a position to consider how to make good ethical choices, both as everyday citizens and as stalwart professionals.

The practical sphere of criminal justice is composed of the choices and behaviors of each individual working within the system—from police dispatchers to jury members to death row executioners. We can further subdivide the ethics of criminal justice practice into three primary components. These include police, courts, and corrections. Each of these components includes unique moral dimensions that fundamentally characterize it. Similarly, each one of these subsystems encompasses concerns shared with the other two. Again, it is important to recognize that these three components of the criminal justice system are interrelated, and, as such, so 14Part 1 • An Invitation to Ethics are the moral concerns that emerge from within them. To illustrate, whether a police officer fully respects the legal rights of a suspect has ramifications for courts and, potentially, corrections as well.

We cannot, however, engage in any meaningful discussion about moral concerns linked to criminal justice practice without first having had some introduction to and having engaged in some critical reflection on ethical values, principles, and beliefs, more generally. We will examine the vari- ous facets of ethics, as well as practical concerns with which they intersect, throughout the remainder of this text. For now, consider the following list of questions as a way to acquaint yourself with the kinds of issues and controversies that characterize the practical aspects of criminal justice:

• Does a defense attorney have a moral obligation to defend her or his client’s interests, even if in so doing a guilty person will likely be acquitted?

• Should illegally obtained evidence be excluded from trial—even if it clearly suggests that, without a doubt, the defendant is responsible for the crime(s) in question?

• Under what, if any, circumstances should law enforcement officers be permitted to use deceptive methods or techniques to gain consent for searches, to obtain evidence, to apprehend suspects?

Laws and Lawmaking The sphere of law and lawmaking encompasses both substantive and procedural criminal law, as well as family, civil, and other types of legal decision-making that have a direct or indirect influence on crime and justice. In the context of substantive criminal law, ethics not only encourages us to confront the moral dimensions of specific statutes and cases, but also invites us to reflect upon some of the foundational questions of criminal law: What should constitute a crime? How should we treat persons who offend existing criminal laws? What are appropriate punishments for culpable offenders? What defines culpability or criminal responsibility? What moral principles should be codified into law, both as crimes and as rules that practitioners of criminal justice must follow? What relationship does morality have in general to criminal law in particular? What relationship shouldmorality maintain with criminal law?

Much of what the three main branches of the criminal justice system do revolves around criminal law. In large part, the practice of policing entails upholding or enforcing substan- tive criminal laws in ways that are consistent with existing procedural guidelines or laws. Courts try persons accused of violating criminal laws according to the principles of criminal procedure.

The correctional sphere is responsible for dealing with persons convicted of violating such laws, again doing so in a manner that conforms to the standards and regulations set forth through procedural laws and relevant court decisions. Yet, what moral values and principles are embedded in these laws?

What moral values and principles are relied upon in the process of arriving at legal decisions, be they at trial or appellate levels? Perhaps more importantly, what moral values and principles shouldbe relied upon and thereby embedded in the various dimensions and types of law?

In the context of criminal justice, the importance of law cannot be overstated.

Consequently, it becomes that much more significant to reflect upon the moral foundations of law and lawmaking, as well as the ways in which the law impacts the moral dimensions of criminal justice practice.

Social Justice “Social justice” is a term that routinely surfaces in sociological, criminological, political, and social philosophical discourse. However, it is a concept that is rarely defined to any satisfactory degree. Chapter 1 • Criminal Justice and the Study of Morality15 In part, this is for good reason. Social justice is not easily definable, and its contours tend to change depending on the perspective from which it is approached. This being said, there are several con- siderations that may help us better understand what is meant by social justice and how and why it is relevant to morality, crime, law, and justice.

In his book,Social Justice/Criminal Justice, Bruce Arrigo defines social justiceas a, “perspective of justice that evaluates how a society provides for the needs of its members and the extent to which it treats its subgroups equally.” 19Social justice concerns the laws, policies, programs, and practices of various societies as they pertain to the distribution of and access to housing, health care, education, employment, and other social goods. It may, however, be easier to define or at least provide instances of social injustice than to describe social justice itself. To illustrate, most of us regard racism, sexism, and poverty as social problems. As such, social justice might entail promoting minorities, women, and the disenfranchised, thereby eliminating discrimination or significantly reducing it in an effort to improve the life circumstances of everyone. What each of these problems has in common, however, is that they are socialrather than individual concerns. If criminal justice seeks to achieve justice through its decisions and practices as they pertain to criminal offenders, then social justice is more concerned with the conditions within which both criminal offenders and criminal justice practitioners live and operate. Thus, an ethical focus on social justice does not ask whether a given court decision (i.e., outcome) is just or fair; rather, it examines the various conditions (e.g., legal, political, economic, religious) that exist that shape and give rise to the court outcome, fostering (or failing to foster) a climate of fairness, opportunity, and access to comparable social resources that are necessary for pursuing the “good life” for all.

The concerns of social justice, then, are best understood as macro-level or large-scale interests that impact both lawmaking and the practice of criminal justice. As an example of how and why these issues are of relevance to lawmaking and criminal justice, consider the phenomenon of theft. In the context of law and lawmaking, significant moral concerns arise with regard to what we consider to be theft and how we should go about dealing with persons accused and/or convicted of thievery. 20However, what if society on the whole was organized such that the ways in which property was distributed was itself unjust? If so, then we might query whether the very laws against theft were similarly unjust. In fact, laws that protect or maintain the existing distribution of property may reproduce, aggravate, or intensify injustices that already exist. Consequently, we need to consider that criminal justice policy and practice can only be as “just” as the social organization and the institutional dynamics that they seek to maintain. 21 While social justice and the issues that contribute to its daily functioning are not a focal concern of this book, they will arise on occasion—and in some instances only implicitly.

However, we should keep in mind that almost everything about crime, law, and criminology is in some sense linked to matters involving social justice. THE SPECIAL MORAL REQUIREMENTS OF CRIMINAL JUSTICE By now you should have some indication of the role and importance of morality in personal, professional, and social contexts. In addition to what has already been said, there are several reasons why morality takes on even greater significance within the criminal justice field than in most other professions. Those occupations that compose the profession are in many ways unique when compared with most other fields of endeavor. To illustrate, many of the things that make the occupation of police and prosecution work unique is that those individuals employed in these areas are expected—even required—to exhibit an increased level of moral character and to exercise a heightened degree of moral judgment than we might expect of persons employed in many other 16Part 1 • An Invitation to Ethics professional contexts. While it is unrealistic to expect criminal justice practitioners to be perfect moral agents, it is not unreasonable to expect that they display a commitment to and strong respect for the moral dimensions inherent in their professional work. For a number of reasons, agents of criminal justice should be and commonly are held to higher moral standardsthan the general public.

Though there are certainly many examples of and reasons for this, several such considerations include the following.

Authority, Power, and Discretion Practitioners within the criminal justice profession carry with them authorityand power, as well as considerable freedom of choiceand discretionto impose authority and employ force in various situations. 22 Along with power comes an increased responsibilityto use it in appropriate ways.

This includes methods that are consistent with the aims of the profession, that benefit a given community and society more generally, and that promote the larger concern of justice. Earlier in the chapter, we briefly examined the ethical principle of “never kill an innocent human being.” However, principles such as this assume an entirely different form when the persons to whom the notion applies have the authority and (to some extent) the discretion to take lives under specified conditions (see Box 1.4). Additionally, it is one thing to say that we should not steal; however, a different level of moral character is required to refrain from stealing when, given the routine circumstances of a profession, practitioners find themselves surrounded by things that are “there for the taking” and find that their possible apprehension is essentially eliminated. In short, with the presence of increased power, discretion, and thus opportunity, the need for morality increases considerably. Because of the power that prosecutors, defense attorneys, judges, juries, police officers, and members of parole boards have, it is especially important that such persons exhibit a heightened sense of morality, making ethically sound choices and engaging in morally responsible behavior.

Criminal Justice Agents as Public Servants Criminal justice agents are servants of the public. The authority and discretion they enjoy is entrusted to them by those whom they serve and exercised in the name of that public; that is, in the interest of protecting and serving others. 23Socrates would have suggested that agents of criminal justice are in many ways like teachers or educators. Thus, legislators, judges, attorneys, police officers, correctional personnel, and nearly all other persons employed in a criminal justice context have a responsibility not only to fulfill the functions of their respective jobs, but must do so in ways consistent with serving as “role models” for others. When considering laws, policies, and practices operating within criminal justice, it is always helpful to ask the following: “What messages are we sending and to whom?” If police officers, politicians, and other public officials routinely engage in dishonesty, what point are we making on behalf of the general public about the importance of honesty? 24 On a more controversial note, some criminologists have argued that the practice of capital punishment sends an irresponsible message to the American public; namely, that violence is acceptable—at least in some circumstances—as a means of dealing with our social and economic problems.

25When considering laws and policies, as well as individual choices and behaviors, it is always helpful to ask: “Are we setting an example that we would want others to adopt?” Individual Behavior Reflects Institutional Morality The behavior of individuals within criminal justice not only reflects the personal character of the acting agent, but also the character of the institution of which the individual is a part. When Chapter 1 • Criminal Justice and the Study of Morality17 police officers are accused of brutality or corruption, most citizens do not recall the particular officers involved; rather, they identify the instance of violence or dishonesty as indicative of a larger set of unethical behaviors attributable to the institution of law enforcement. Thus, the individual officers involved are often faceless and nameless (without any personal characteristics that distinguish them), symbolizing the system itself and calling it into question or disrepute when ethical concerns arise. Similarly, many people speak of “the law” rather than the individual justices, judges, or politicians who make or contribute to the interpretation/formation of the laws. In short, although criminal justice is practiced by people, the institutions to which those individuals are connected are significantly implicated in their actions. In 1995, for instance, President William Jefferson Clinton became involved in an extramarital sexual relationship with twenty two-year-old White House intern Monica Lewinsky. When details of the affair became public, President Clinton was widely criticized for his private, though morally questionable, sexual behavior and his publicly dishonest comments (he had lied about having the affair).

Although President Clinton—like the rest of us—is “only human,” his mistakes became far more consequential than they would have for most others similarly embroiled in an inappropriate sexual relationship. Because his choices and behaviors were much like a mirror reflecting on the institution of the presidency, most Americans expected that he exhibit higher moral standards—choices and behaviors that positively reflected on government, politics, civility, and so forth.BOX 1.4 Police Use of Force Policing is one of the few professions in which the use of force can be a necessary part of the performance of one’s professional duties. As well, it is one of the few professions in which practitioners are granted the legal right and discretion to employ force for those pur- poses. For these reasons, the use of force in policing is one of the more controversial topics in literature on police behavior. Whereas most would agree that the use of force by police officers is in some circumstances justifiable and not morally problematic, there is far less agreement about what those circumstances are. What constitutes necessary and unnecessary force? What constitutes excessive force?

Police scholar John Kleinig has identified several factors that he feels are important in determining the appropriateness of the use of force. He argues, for instance, that the use of legitimate force is not morally problematic if the officer believes it is necessary for pur- poses of restraining a suspect and if an appropriate amount of force is employed solely for that purpose. In contrast, the use of force becomes a moral concern where officers employ it as a means of punishment, or where its use is excessive in relation to the purposes for which it is needed. The intentionof the officer is crucialto distinguishing ethical from unethical use of force.

As well, force used should be proportionateto the seri- ousness of the offense and/or to the threat present in the situation. The type and amount of force legitimately used against a jaywalking suspect will be different from that of a fleeing robbery suspect who is believed to be armed and dangerous. A final implication is that force used should be the minimal amount necessaryto achieve the aim for which it is employed.

• In what circumstances do you feel law enforce- ment officers can justifiably use force? In what circumstances do you feel law enforcement officers can justifiably use deadlyforce?

• At what point or in what circumstances does the use of force become morally problematic? Why?

• How might emotions such as anger, hatred, intolerance, frustration, and fear impact an officer’s decision to use force or the amount of force used in a given scenario? What might be done to minimize this impact? Source:John Kleinig, The Ethics of Policing(New York:

Cambridge University Press, 1996). 18Part 1 • An Invitation to Ethics WHAT ABOUT PROFESSIONAL CODES OF CONDUCT?

Thus far we have considered the crucial role morality plays in our personal, professional, and social well-being; that law itself is not sufficient for ensuring that individuals make good moral choices, acting on them accordingly; and that the professions within the criminal justice system demand an even higher level of morality than most other professions. Yet you may still be wondering whether the agencies and organizations that compose the system have their own ethical standards that obligate employees, specifying how they must conduct themselves professionally. Moreover, if they do, why is it necessary to study ethics in the classroom?

Over the years, the criminal justice professions have developed increasingly sophisticated codes of conduct. In fact, most corporations and organizations in nearly every field of endeavor have some code of ethics. These codes are intended to articulate the values and commitments identified as important for members or employees to embody.Ethical codesare sets of standards designed to regulate the ways in which participants or workers pursue their activities as profes- sionals. They also educate and guide individuals along their professional path. For example, the American Correctional Association’s (ACA) code of ethics includes the following:

• Members shall respect and protect the civil and legal rights of all individuals.

• Members shall treat every professional situation with concern for the welfare of the individuals involved and with no intent to personal gain.

• Members shall refrain from allowing personal interest to impair objectivity in the performance of duty while acting in an official capacity. 26 Each of these elements of the ACA’s code of ethics is offered as a guideline by which members of that organization (many of whom are correctional practitioners) shouldpursue their pro- fession. Similar to questioning the need for ethics in a society that has an intricate system of law, the same can be asked about the necessity of ethics in criminal justice when the system’s various agencies already have their own professional codes of conduct or moral guidelines.

For now, we note that while codes have their workplace value, they also possess their situa- tional limitations. It is thus important to understand the need for ethics despite the existence of professional value systems and codes of conduct. Moreover, while there are significant dif- ferences in ethical codes across agencies, several noteworthy concerns are generally applicable to all of them.

The Problem of Enforcement Think for a moment about the number of times over the course of your college career that you had knowledge of cheating by a friend or classmate. In how many of those cases did you report the violation(s) to the professor or to someone else in a position to impose appropriate sanctions? If you elected to report it, why did you? The requirement that college students do honest work is not entirely unlike the provisions of many professional codes of conduct. Codes express organizational values and ideals; they reflect what the organization has determined to be the desirable character traits of and/or appropriate behaviors for its members. Yet violations of these values and ideals are almost certain to occur. The question, then, is whether those violations are reported and enforced.

The problem of enforcementis that, similar to college guidelines regarding academic honesty, the provisions found in professional codes are not easily enforced.This is true for several reasons. Assuming that, for at least some people, no deep motivation exists for being moral; that Chapter 1 • Criminal Justice and the Study of Morality19 is, for following specified laws and codes, these individuals will likely adhere to them only if penalties are imposed when failing to follow them. 27 However, two concerns are worth noting here. First, violations of both laws and professional codes routinely go unnoticed. Second, even when violations of professional codes are detected, they are unlikely to be reported and even less likely to be met with (serious) disciplinary sanction. This is because within most professional communities, there exists a general unwillingness to report peer and colleague infractions, and there is an even greater unwillingness to testify against those who have breached workplace standards. This is especially true in occupations such as policing and corrections where informal rules (e.g., the “blue wall of silence”) often override formalized codes. 28 Thus, much like the criminal law, we cannot expect that because rules or guidelines exist, people will abide by them.

In other words, without a deeper appreciation for ethics, the impact and thus value of codes will be of negligible utility.

Minimalism When we think of persons of exceptional moral character—perhaps Jesus the Nazarene, Gandhi, or Mother Teresa—we tend to think of people who have gone above and beyond what is asked of them by law, custom, or convention. Consequently, we do not regard the person who pays her taxes as embodying exemplary moral character because of this activity. She may have other admirable moral qualities; however, contributing in tax dollars what is required of her by law is certainly not one of them. On the other hand, persons who pay their taxes anddevote additional portions of their time and/or income to charitable organizations or the needs and interests of other people are often regarded as demonstrating commendable moral character. Why is this?

We tend not to equate morality or moral character with simply meeting duties, obligations, ideals, and responsibilities that are expected of us. Rather, embodying exemplary moral character demands, at least in some instances, that we go beyond mere expectations or requirements.

The danger here, however, is that when laws, duties, and ideals are set forth, they may be read not as minimal expectations or requirements, but as portraits of moral character and conduct.

The idea ofethical minimalismis that when rules or standards are in place to guide our behavior, people may be inclined to adopt a “minimalistic” or nominal attitude toward morality, doing only what is dictated by the rules and standards in place and nothing more. 29 In other words, we may believe that as long as we follow the laws, rules, or standards set forth, we are doing all that is expected of us and, thus, all that is necessary. However, persons of good moral character often do not simply meet minimum moral standards or requirements. They routinely go above and beyond what is necessary and expected. Laws and codes are intended to be minimum guidelines for conduct; however, the provision of nominal standards is not the same as saying that we should adopt a minimalistic attitude toward them. Thus, we should be careful to understand professional codes not as replacementsfor ethical inquiry, but as supplements and, perhaps, points of departure for engaging in integrity-based reasoning, decision-making, and behavior.

Codes Are External, Ethics Are Internal One of the most important statements that can be made about morality—and one that will resurface on several occasions throughout this book—is that our reasons for being a certain way or doing a certain thing must be our own. In our previous discussion of law, we saw that doing the right thing was not sufficient for expressing genuine morality. This is because our reasons for being moral must come from within us—they must be representations of our moral 20Part 1 • An Invitation to Ethics character rather than efforts to abide by laws, codes, guidelines, and so forth. In other words, morality should be an authenticexpression of the self—of our own beliefs, values, virtues, and moral sensibilities.

John Kleinig observes that moral worth “attaches to conduct not just by virtue of the good that it does or the evil that it prevents, but because it was done for certain kinds of reasons or was expressive of a certain kind of character.” 30 Morality is not simply about whatwe do, but more importantly it is about whywe do what we do. Unfortunately, laws and codes tend to externalize morality. In this way, morality appears to be imposed upon us from above and, consequently, conformity functions as a requirement rather than as a reflection of our virtuous character.

While in some sense we are required to conform to laws, codes, and other codified versions of morality, our moral decisions and actions should ultimately come from within us. As we will see in Chapters 6 and 7, our motivation to make good choices and to engage in right action should come from within rather than from without. Our empathy toward others should reflect our compassionate character rather than a law or standard that requires us to be compassionate. Our honesty should reflect an honest character and an underlying integrity—one that stems from recognition of the value, worth, and importance of honesty and integrity. Codes are generally well intended; however, it is important that we internalize moral values and principles, making them part of who we are as people rather than endorsing them as mere followers of rules.

Generality and Moral Dilemmas Similar to the law, professional codes of conduct do not provide answers to all moral dilemmas or situations we will encounter in our professional lives. In fact, most professional codes tend to suffer from the problem of generality. They consist of broad guidelines rather than specific solutions to ethically charged scenarios. Sometimes applying these general principles to concrete instances can be complicated, especially if the guidelines do not appear to perfectly fit the situation at hand or if there are other circumstances that need to be considered but are not specifically addressed by the professional code in use. Consider the following guidelines on discretionary decision-making, drawn from the Law Enforcement Code of Conduct of the International Association of Chiefs of Police (IACP), and adopted by numerous law enforcement agencies throughout the nation:

Discretion—A police officer will use responsibly the discretion vested in his [or her] position and exercise it within the law. The principle of reasonableness will guide the officer’s determinations, and the officer will consider all surrounding circumstances in determining whether any legal action shall be taken. Consistent and wise use of discretion, based on professional policing competence, will do much to preserve good relationships and retain the confidence of the public. There can be difficulty in choosing between conflicting courses of action. It is important to remember that a timely word of advice rather than arrest—which may be correct in appropriate circumstances—can be a more effective means of achieving a desired end. 31 The value and intention of this statement notwithstanding, the limits of its practical utility— particularly in a number of “real-life” situations—are quite apparent. To illustrate, the “principle of reasonableness” and “consider[ation] of all surrounding circumstances” will minimally help officers resolve the manifold and diverse dilemmas they encounter while on patrol. Indeed, while it is certainly important to abide by these (and similar) guidelines, what is being recommended Chapter 1 • Criminal Justice and the Study of Morality21 on the issue of discretion is, in effect, that police officers should use professional judgmentwhen dealing with practical situations. Honing one’s skills regarding judgment—that is, considering all circumstances, values, and principles, and making sound and prudent choices in the face of them—is a good part of what the study of ethics attempts to accomplish.

Consequently, professional codes of conduct often have limited practical utility. In fact, they tend to be of minimal value in those situations where they are most needed. 32 When discretionary judgments are called for, or where conflicts arise between equally important moral values, duties, or responsibilities, reliance on professional codes for precise guidance typically yields limited direction. Most often, codes fail to prioritize values and principles.

Thus, workers/employees do not know what is most important when encountering various types of conflict. Moreover, codes frequently fail to identify exceptions to general principles, and they do not account for all situational factors that might deserve consideration in diverse instances. Summary Morality and ethical inquiry are relevant to all personal, social, and professional spheres of human existence. More specifically, the concerns of morality— and those of crime, law, and justice—are not only intriguing but also essential for our individual well- being and for our collective, indeed global, sense of social cohesion. Consequently, ethics asks not simply that we entertain questions and dilemmas of a moral nature; rather, it asks that we do so responsibly, attending to and examining the many points, princi- ples, values, and questions that underlie any moral issue or situational ethical dilemma. This requires living mindfully, examining and continually reexam- ining one’s self in the interest of living a good life— and assisting others in doing the same—within a just and civil society. However, as we have tentatively explained, laws, codes, rules, and other guidelines forprofessional conduct can be problematic and, conse- quently, insufficient for this purpose. As such, morality should be thought of as something other than or, at least, in addition to these things. While each law, code, and rule has value and assumes an important function in the workplace or elsewhere, there is considerably more to being moral than learning about and abiding by formal norms and conforming to social expectations. As well, there is substantially more to ethics and ethical inquiry than simply learning moral standards and principles. Over the next several chapters, a more specific treatment of what ethics is, of what morality entails, and of the notable problems and pitfalls that arise in these contexts will be enter- tained. Chapter 2 initiates the examination of these matters, providing a more thorough assessment of the subject and scope of ethics.

Key Terms and Concepts codes of conduct (ethical codes) 18 descriptive versus prescriptive inquiry4 ethics3 jury nullification10 minimalism (ethical minimalism) 19moral problem of punishment5 morality 3 no-knock warrant2 Nuremberg laws10 problem of enforcement (and ethical codes)18problem of generality (and ethical codes)20 professional ethics13 selective enforcement11 social justice15 sodomy laws 11 spheres of criminal justice 13 22Part 1 • An Invitation to Ethics Discussion Questions 1.What is the relationship between ethics and morality?

How are they related, and how are they distinct? Give an example from your own experience that illustrates the relationship between ethics and morality.

2.What is the purpose of morality? How does ethics increase the likelihood that the purpose of morality is fulfilled?

3.According to Socrates, “an unexamined life is not worth living.” What did Socrates mean by this?

When ethics asks that we live mindfully, how does this notion advance Socrates’ observation about living life?

4.Some people question why we need ethics when we have laws. What is your position on this? Please list and explain the five limitations of law.5.Generally speaking, how are ethics and moral inquiry rel- evant to criminal justice? Give an example from the field of criminology/criminal justice to support your position.

6.How are criminal justice practice, law and lawmaking, and social justice linked to ethics? Be specific!

7.According to the chapter, agents of the criminal justice system (police, court, corrections personnel) are held to higher moral standards. In view of the power invested in agents of criminal justice and the discretionary nature of much criminal justice work, explain why such higher standards are necessary.

8.What are professional codes of conduct/ethics and how are they problematic in the criminal justice system?

In what ways might they be beneficial to criminal justice practitioners?

Endnotes 1.AOL News(March 4, 2011). Available at http://www.

aolnews.com/category/crime/ (retrieved March 8, 2011).

2. “German Cannibal Tells of Fantasy,”BBC News (December 3, 2003). Available at http://news.bbc.co.

uk/2/hi/europe/3286721.stm (retrieved March 8, 2011).

3. Louis Pojman,Life and Death: Grappling with the Moral Dilemmas of Our Time,2nd ed. (Belmont, CA:

Wadsworth, 2000), p. 2.

4. J. Jeremy Wisnewski, “Murder, Cannibalism, and Indirect Suicide: A Philosophical Study of a Recent Case,”Philosophy in the Contemporary World, 14(1), 11–21 (Spring, 2007).

5. John Hospers,Human Conduct: An Introduction to the Problems of Ethics(New York: Harcourt, Brace & World, 1961), p. 4.

6. Gerd Gigerenzer,Gut Feelings: The Intelligence of the Unconscious(New York: Penguin Press, 2007).

7. Gunter Grau and Claudia Shoppman,The Hidden Holocaust: Gay and Lesbian Persecution in Germany 1933–1945(Chicago, IL: Fitzroy Dearborn Publishers, 1995); Clarence Lusane,Hitler’s Black Victims: The Historical Experience of Afro-Germans, European Blacks, Africans and African Americans in the Nazi Era(New York: Routledge, 2002).

8. Pojman,Life and Death,p. 2.9. Plato,Apology, 38A. In Euthyphro, Apology, Crito, F. J. Church (trans.) (Indianapolis, IN: Bobbs- Merrill, 1956), p. 45.

10. Anthony Weston,A Practical Companion to Ethics, 2nd ed. (New York: Oxford University Press, 2002), p. 2.

11. Warner Fite,Moral Philosophy: The Critical View of Life(Port Washington, NY: Kennikat Press, 1925), p. 2.

12. Vincent Ruggiero,Thinking Critically About Ethical Issues, 5th ed. (Boston, MA: McGraw-Hill, 2001).

13. Ibid., p. 5.

14. Ibid.

15. Ibid.

16. Pojman,Life and Death,p. 2.

17. Ibid.

18. Cf. Jeffrey Reiman, “Criminal Justice Ethics.” In Paul Leighton and Jeffrey Reiman (Eds.),Criminal Justice Ethics(Upper Saddle River, NJ: Prentice Hall, 2001), pp. 16–18.

19. Bruce Arrigo,Social Justice/Criminal Justice: The Maturation of Critical Theory in Law, Crime, and Deviance(Belmont, CA: Wadsworth, 1999), p. 282.

20. Alfonso Gomez-Lobo,Morality and the Human Goods:

An Introduction to Natural Law Ethics(Washington, DC: Georgetown University Press, 2002), p. 78.

21. John Monique,The Origins of Justice: The Evolution of Morality, Human Rights, and Law(Philadelphia, PA: The University of Pennsylvania Press, 2002). Chapter 1 • Criminal Justice and the Study of Morality23 22. Reiman, “Criminal Justice Ethics.” 23. Ibid.

24. See, e.g., Erich Fromm, “The State as Educator: On the Psychology of Criminal Justice.” In Kevin Anderson and Richard Quinney (Eds.),Erich Fromm and Critical Criminology: Beyond the Punitive Society (Urbana, IL: University of Illinois Press, 2000).

25. Robert Bohm,Death Quest II: An Introduction to the Theory and Practice of Capital Punishment in the United States(Cincinnati, OH: Anderson Publishing, 2003); Christopher Williams, “Toward a Transvaluation of Criminal Justice: On Vengeance, Peacemaking, and Punishment,”Humanity and Society,26(2), 100–116 (2002).

26. American Correctional Association,Code of Ethics (adopted August 1975 at the 105th Congress ofCorrection). Available at http://www.intech.mnsu.

edu/davisj/aca_ethics.htm (retrieved November 2, 2005).

27. John Kleinig,The Ethics of Policing(Cambridge:

Cambridge University Press, 1996).

28. Ibid.

29. Ibid.

30. John Kleinig, “Ethics and Codes of Ethics.” In P. Leighton and J. Reiman (Eds.),Criminal Justice Ethics (Upper Saddle River, NJ: Prentice Hall, 2001), p. 247 31. See, e.g., Windcrest, TX (http://www.ci.windcrest.

tx.us/index.aspx?NID=123); Clive, IA (http://www.

cityofclive.com/departments/police/about-us/); Canton, OH (http://www.cantonohio.gov/police/?

pg=316).

32. Kleinig,The Ethics of Policing. 24 2 Choices, Values, and Ethics Imagine that you are awakened one morning by the sound of a ringing telephone. Choosing not to answer the call, you roll out of bed, put on some sweatpants and a T-shirt, make your morning coffee, and begin to go about your daily business. To most people, your morning thus far could be considered uneventful and hardly worth discussing—certainly not in the context of ethics, anyway.

Yet ethics asks us to consider the ways in which our everyday, seemingly inconsequential choices become more than just mundane details. In fact, nearly everything you did during your hypothetical morning routine can be seen as having ethical and moral significance. To begin with, each of your actions (and nonactions) involved a choice. Many of our everyday choices are as simple as deciding what time to awaken, where to buy that new red T-shirt we need to demonstrate our support for our favorite sports franchise, or what brand and roast of coffee to buy from the grocer this afternoon.

Other choices, however, are much more complex and would seem to be far more consequential. We may have to choose whether to lie to our best friend to protect that person’s feelings. We may have to choose whether to spend the remains of our next paycheck on a night out or, instead, to use the money to invest in our children’s college fund, send aid to a friend or relative experiencing financial hardship, or even to make a charitable contribution to a cause of social or political significance.

As criminal justice professionals, we may have to choose whether to arrest the chief of police from your neighboring county for driving while intoxicated, report the deviant sexual behavior of a prominent local politician, grant an inmate an unauthorized phone call to his dying mother, or “rat on” a fellow police officer whom we have discovered is involved in illegal drug activities or simply remain silent (see Box 2.1).

Indeed, ethics reserves a central role for choice—what choices we do and should make, why we make them, and what consequences follow from those choices. Part of the reason that choice is of such importance to ethics and morality is that even the seemingly simple, “everyday” choices we make are consequential—not only for ourselves, but often for others. Sometimes the consequences or effects of our choices are good, direct, or intended; other times, they are bad, indirect, or unintended. Some of our decisions affect—or appearto affect—only ourselves. Other times, however, the choices we make directly or indirectly affect others in significant ways. Most of the time, our choices affect countless Chapter 2 • Choices, Values, and Ethics25 others in innumerable ways. This fact alone potentially imbues what seem to be simple choices of personal preference with ethical and moral relevance.

Choices are of relevance to ethics and morality when they are freely made and impact the well-being of others(see Box 2.2). 1Child abuse, drug smuggling, and driving while intoxicated are choices of moral significance because they each impinge on others (in these cases, by harming others). Morality does not require nor suggest that we always place the interests of others over and above our own; rather, living an ethical life requires that, at a minimum, we be aware of the interests of others and the ways in which the choices we make impact those interests.BOX 2.1 The Tavern Rape and the Duty to Report Crimes or Render Assistance: The Morality of Doing Nothing Just as we can choose to act one way or another, we can also choose notto act (sometimes called acts of omission, as opposed to acts of commission). For moral purposes, not doing anything can be just as problematic as engaging in the wrong sorts of actions. Remaining silent, overlooking infractions, or failing to get involved in situations that are “not my business” can be immoral choices in the same way as those leading to acts that we commit. Consider the following:

March 6, 1983. After putting her two daughters to bed, twenty-one-year-old Cheryl Ann Araujo stepped out to purchase cigarettes. Finding more customary loca- tions closed, she happened upon “Big Dan’s” bar—a reportedly sordid watering hole in the North End of New Bedford to which she had not before been. While inside, Cheryl entered into conversation with another woman and decided to stay for a drink. Sometimes shortly there- after, the other woman left the bar. Intending to do the same, Cheryl began to exit Big Dan’s, but was grabbed from behind by a male patron, stripped of her clothes, and raped on the floor of the bar. The public location, presence of several bystanders, and her kicking, scream- ing, and pleading notwithstanding, Cheryl would be repeatedly sexually assaulted for over an hour by multi- ple male patrons. Not only did none of the onlookers intervene, she reported hearing cheers and applause from those witnessing the incident as men took turns forcing themselves upon her. Cheryl would eventually escape and survive, and four men would be charged and ultimately convicted as direct participants in the sexual assault. In addition, how- ever, two of the witnesses were charged as accessories to rape, but acquitted because, though they had watched,they had not actually been participants in the assault.

The “Tavern Rape” (aka “Big Dan’s Rape”) became a widely publicized and much discussed incident, years later becoming the basis for the film, The Accused, for which actress Jodie Foster would win an Academy Award. Why is the Tavern Rape case of interest in the context of ethics, crime, and justice? Of particular note might be the acquittal of the two men charged as accessories to the sexual assault of Cheryl Ann Araujo.

At that time, at least, the state of Massachusetts had no law mandating witnesses of criminal activity to intervene in any fashion. In other words, despite being morally problematic, persons witnessing burglaries, rapes, and even homicides were under no specified legal obligation to protect or assist victims, or even to pick up a phone to report the incident. One question of ethical interest, then, is whether there shouldbe legal obligations and to what extent there shouldbe moral duties affixed to precisely these sorts of scenarios. Do we, as everyday citizens, have a moral duty to assist those whose lives are in immediate danger and/or to report criminal activities that we have witnessed? What about criminal activities that have not yet occurred, but the future likelihood of which we have knowledge? Source: “The Tavern Rape: Cheers and No Help,” Newsweek (March 21, 1983); Press, Taylor and Clause, “The Duties of a Bystander,” Newsweek(March 28, 1983); Susan J. Hoffman, “Statutes Establishing a Duty to Report Crimes or Render Assistance to Strangers: Making Apathy Criminal,” Kentucky Law Journal, 72, 827 (1984); Miriam Gur-Arye, “A Failure to Prevent Crime—Should it be Criminal?” Criminal Justice Ethics, Summer/Fall, 3–30 (2001). 26Part 1 • An Invitation to Ethics Returning to your hypothetical morning for a moment, consider the potential consequences and moral implications of the following scenarios: 3 • The phone call that you chose not to answer was from a distressed friend in need of advice.

That same friend shortly thereafter made a very poor decision that you may have been able to prevent with a few timely words of guidance.

• The sweatpants and T-shirt that you put on were made in a sweatshop in a developing nation by persons—some of them children—working long hours in poor conditions for very little pay.

• The brand of coffee that you chose to consume is owned largely by an investment bank with known ties to terrorist groups that are hostile to the United States and other countries. BOX 2.2 Voluntariness and Criminal Defenses For our choices to be subjected to moral evaluation or judgment, we must be said to have hada choice. When we choose between two or more alternatives and engage in an action which reflects that choice, our conduct is said to be voluntary. 2Given the importance of choice-making in ethics described above, we might imagine that actions (or inactions) that are not a product of choice cannot rightfully said to be moral or immoral.

Behavior that can be shown to be involuntary or that stemmed from impaired or limited choice-making capacity (e.g., that which is a direct consequence of severe mental disability or structural damage to the brain) typically is not subjected to the same sort of legal response as behavior presumed to be entirely voluntary.

This requirement of voluntariness as a prerequisite for judging conduct is evident in our system of law and justice. Criminal law recognizes a number of justifica- tions and excuses for criminal activity on the basis of involuntariness. Involuntary acts are not subject to criminal punishment. Duress(or coercion), for example, is a legally recognized criminal defense in which the defendant is excused from criminal conduct because she or he was acting under the threat of immediate, serious bodily harm from another person and had no other possibility of escape. Necessityor the “choice of evils” is a criminal defense whereby a defendant argues that she or he engaged in criminal conduct to prevent some greater evil. In such cases, the conduct may be considered voluntary in some sense, yet in another sense the only alternative courses of action would have brought about greater harm.• You take part in a bank robbery because someone has kidnapped and threatened to kill your child (or mother, sister, etc.) if you fail to do so. Have you made a fully voluntary choice? Remember that choice requires the presence of alternative courses of action. In this instance, could we rightfully say that you hadsuch options? If so, what were they? How might the consequences of those alternatives been different from the consequences of the actions you took? Should you be exempt from criminal responsibility and your actions exempt from criminal punishment?

• You have recently received your amateur pilot’s license and are making the three-hour flight to your sister’s to attend her birthday party.

Halfway through the flight, you experience engine failure and are forced to make an emergency landing in the mountains. Eight hours later, there is still no sign of rescue and you are very cold, very hungry, and fear that you will not be able to survive much longer.

As you begin to search the area around you, you come across a small cabin. The cabin is locked and the owners have clearly not been there in some time. Would you be justified in breaking into the cabin, sleeping in the bed, and eating the stored food? If you did, would your actions be entirely voluntary? Are there any alternative courses of action you could have taken that wouldn’t have involved violating the law? Chapter 2 • Choices, Values, and Ethics27 In each instance, your choice has affected or potentially affected far more people in far more serious ways than you might ever have imagined. Though the consequences of our choices are not the only—or necessarily most important—ethical consideration, it is the fact that our choices have consequences that make them relevant for ethical analysis. Part of what makes awareness of the unseen consequences of our actions critical for morality is that people are more likely to engage in immoral activities if there is no apparent victim. Simply recognizing the often unobserved ways in which our choices affect others thus increases the likelihood that we more fully consider the moral implications of how we choose and what we do. Through increasing our understanding of the consequential nature of our choices, ethics encourages us to think more carefully, indeed critically, about what we do, when we do it, and, most importantly, why we do it. CHOICES AND OTHERS Morality, then, concerns the choices that we make that affect other people. 4This includes the kinds of values we choose to hold and principles by which we live; our chosen beliefs; for whom and what we vote; where we shop; and choices we make about whether to lie, cheat, or steal. In this regard, morality is much broader and covers far more ground than is often thought. We some- times assume, for instance, that many choices and subsequent behaviors are simply matters of personal preference and affect only ourselves. Such thinking is often used as a basis for arguments of personal liberty—that is, “I should be able to do this or do that because it only affects me” (see Box 2.3). However, closer examination might encourage us to reassess our assumption.

Consider the case of pornography. We may believe that purchasing and watching pornog- raphy are choices that affect only ourselves. We may therefore claim that it is not a “moral” decision at all, but merely a matter of how we elect to spend our time and money. We might BOX 2.3 Personal Freedom and Consequences to Others Ethics challenges us to confront common situations in which our personal liberties seem to conflict with the interests or well-being of others. It is commonly argued by supporters of personal freedom that such behaviors “only affect me.” Yet ethics encourages us to realize that nearly noneof our choices and actions affects only ourselves. Consider the following:

• Most states require drivers and passengers in automobiles to wear seat belts. Yet many people still refuse to wear seat belts, claiming that seat belts are uncomfortable and they should have the freedom to do what they wish with their bodies when the consequences only affect themselves. Yet every one of us feels the burden when others are injured or killed in automobile accidents. Wrightsman, Nietzel, and Fortune point to such consequences as lost wages and taxes, higher medical insurance premiums, andwelfare payments to the dependent family members of the deceased. They cite current esti- mates that suggest that motor vehicle accidents cost society as much as $90 billionper year. How does considering these consequences affect your position on seat belt laws?

• What are the potential consequences and costs of other choices involving the personal freedom to: have an abortion, consume illegal substances, own a handgun, and commit suicide?

• Can you think of other “personal freedoms” that have significant consequences for other people and society as a whole? Should these freedoms be limited by law? Source:Lawrence S. Wrightsman, Michael T. Nietzel, and William H. Fortune, Psychology and the Legal System,3rd ed.

(Belmont, CA: Wadsworth, 1994). 28Part 1 • An Invitation to Ethics recognize that pornography itself is a moral and political issue, yet even in recognizing this we may feel that our personalchoice to purchase and watch sexually explicit material (so long as it continues to be legal) is not so much of a moral concern. However, with some critical reflection, we would soon find that our personal choice may have significant social and, therefore, moral implications. Some feminist critics of the adult film industry, for instance, have pointed out that pornography is an expression of patriarchy and male dominance over women, causing social harm by contributing to the continued exploitation of women and perpetuating gender inequality. 5As well, watching pornography may have an impact on men’s personal relationships in that exposure to the exploitation of women in adult films may “carry over” into the viewer’s relationships with women in his personal life. 6To be fair, however, we might also find feminist scholars who have pointed out the positive consequences of pornography, noting that it is (or can be) liberating and empowering for women, licensing women to exercise a kind of expressive freedom and control over their own sexuality that, historically, they have not enjoyed. 7We might also find evidence that significant numbers of couples view pornography together and, thus, pornography may have the effect of enhancing intimacy for some people. 8 Whatever positions we adopt and choices we make on the matter of pornography and other such things, we should recognize that ethics inspires us to think of those positions and decisions as more than matters of personal preference or unreflective choice. This is notto say that ethics cannot confirm individual liberties or support them in given situations. Perhaps we value freedom of expression as something which is good and just, even where such expressions potentially have deleterious effects on others; contrarily, perhaps the value we place on the well-being of others and society more broadly is sufficient to warrant curtailing freedom of expression in certain situations (see Box 2.4). Decisions such as these are difficult, and ethics will BOX 2.4 Media, Violence, and Morality Numerous studies over the past several decades have reported findings that violence on television and in motion pictures can have significant effects on viewers— especially younger viewers. Television programs and movies portraying crime can directly “teach” viewers how to be criminals or commit crimes, lower sensitivity to violence, and shape values in ways favorable to criminal and deviant behavior. Critics, however, point out that not everyone is affected in these ways and that, even if they were, the public has an interest in viewing the kinds of media programming that it enjoys—not what others think is best for them.

• If it were to be conclusively that violent television programs and motion pictures correlate with increased levels of violence in viewers, how might this influence your perspective on the morality of violence on television and in movies?

• What is and should be more important: the value we place on freedom of speech/expressionor the best interests of the public? In this case, what are the best interests of the public?

• If we were to take action, how far should we go in restricted public access to violent media? Who should make the call as to what constitutes vio- lence and at what levels it should be subjected to restrictions?

• Many of these same arguments have been made about music—especially that of the rock and rap varieties. If we can demonstrate conclusively that music inspires listeners to rape, homicide, or suicide, could we morally justify placing restrictions on the content of music that is created by artistes? Can we hold those artistes morally responsible for the behavior of listeners? Source: Steven J. Kirsh, Children, Adolescents, and Media Violence: A Critical Look at the Research(Thousand Oaks, CA:

Sage, 2006). Chapter 2 • Choices, Values, and Ethics29 not provide a single, conclusive answer. What is important is that we recognize the moral nature of issues and decisions, think through alternatives, and that we have good reasons for valuing the things we do and making the choices we make. Too often, we fail to appreciate the moral implications and available alternatives inherent in our choices, and too often we make those choices without sufficient attention to the reasons underlying them.

The Involuntary Nature of Evil?

As we have seen, being “ethical” requires a certain kind of ethical awareness; namely, it requires that our choices be informed by an awareness of and active consideration for relevant moral concerns (e.g., the positive and negative consequences for ourselves and others, relevant moral and legal rights, liberties, and concerns for justice). When we are ignorant of the moral elements and implications of our choices, we can potentially cause harm, contribute to injustice, or create problems for ourselves and/or others without even recognizing that we are doing so. 9 In some ways, the potentially harmful consequences of assuming an uncritical and unreflective posture toward the choices we make are what Socrates had in mind when he said that no one ever voluntarily chooses evil. 10 According to Socrates, we can never chooseevil—if, that is, we know good. 11 This last part is obviously significant, as the first seems to fly in the face of everything we believe we know about people. Surely, we think, there are many instances of people choosing evil over good? Socrates would not argue that people make choices, and that those choices sometimes lead to evil actions and/or evil consequences. His point, however, is that those choices are made in ignorance. 12 Anytime we act from choice, we are pursuing some chosen end. All of our actions are intended to bring about certain consequences. If we are acting in order to bring about those consequences, Socrates would say, we must at least believe the consequences to be good or desirable. How could we ever want anything if it appeared to be bad or painful? Even in those situations where we intentionally bring ourselves pain (e.g., going to the dentist), we do so in pursuit of some end that we perceive as desirable (e.g., taking care of our teeth). In other words, our actions are always aimed at something that we perceive to be “good.” For Socrates, leading a “good” life required knowledge of goodness. If we have knowledge of what is good, our actions will automatically follow from that knowledge. If we knowwhat is good, our choices and subsequent actions will also be good. We might think of this argument as follows: All of our actions are aimed at something we perceive to be good.

If we know what is truly good, our actions will be aimed at what is truly good.

Similarly, if we are ignorant of what is truly good, our actions may well be aimed at what we believe to be good, but is truly evil.

This, then, is what Socrates had in mind when he said that no one can ever voluntarily choose evil. While people sometimes pursue evil ends, it is because they see some good in it—yet they are wrong in believing that whatever good they see is actuallygood. Had their knowledge been more complete, they would have chosen otherwise. No one who fullyknows the negative consequences of his or her actions can possibly choose those actions. 13 A conspiring bank robber who knows he will be caught and sentenced to twenty years in prison, for example, 30Part 1 • An Invitation to Ethics cannot possibly choose to rob that bank (unless, of course, he had no choice to begin with). If he did, Socrates would say, he would be intentionally choosing something bad. Such a choice would not, of course, make any sense. He robs the bank only because he perceives there to be some good in it (probably for himself ).

What Socrates suggested more than two thousand years ago has dramatic implications for how we understand morality in relation to both ourselves and others. It is quite common for us to believe that evil is the result of “evil people” who have voluntarily chosen a life of wickedness.

The evil of the world, we may feel, results from the conscious choices of a seemingly increasing number of “bad people.” Certainly you and I are excluded from this category. Yet what the study of ethics encourages us to realize (or at least reflect upon) is that we—you, I, and the “bad people”—sometimes make evil choices and contribute to the evil of the world without even being aware that we are doing so. In the words of Socrates, most of us are ignorant of the evil we regularly do. Ethically, then, we cannot regard evil as an outcome of the conscious choices of “evil people.”The majority of evil in the world results from the ill-considered choices of everyday people going about their everyday lives.The consequences of our actions are often so far-reaching that we cannot even begin to attain a full appreciation for them. We can, however, begin to reflect more thoughtfully on the likely implications of much of what we choose—both personally and professionally.

Recognizing that our decisions and actions have consequences or effects does not neces- sarily imply that they directly and by themselves causedthose consequences. The emergence of any given effect or consequence requires the “coming together” of a number of factors— each of which contributes to the eventual manifestation of that consequence. Any given action which I undertake cannot directly—and by itself—cause something else to occur.

Instead, a given consequence requires my action plusany number of additional actions, events, or circumstances.

Nevertheless, it is important to consider for moral purposes that my actions are contributing factors(even if I am unaware or “ignorant” of these effects or of the link between them and my own decisions and actions). A certain effect might not have occurred (at least in the way that it did) had it not been for the contribution of my decision or action. Others, in turn, may well have happened anyway. How morally responsible am I for contributing to events or states of affairs that would persist even if I cease to contribute? While, for example, my failure to recycle aluminum may not cause environmental destruction, I certainly do contribute to it in some minor way. If I do begin to recycle, I will probably not make a significant remedial contri- bution to environmental improvement. What, then, is my responsibility to the environment and to future generations of people who will live within it?

The Universal Element of Choice Because every choice we make and every action we take has an impact on the well-being of ourselves and others, our entire lives (both personal and professional) are endowed with moral significance. Not only does every action have consequences, but every consequence has further effects as well, and these effects have their own consequences, and so forth. While the immediate consequences of a given action (e.g., a teenager using a nonprescribed sleeping pill on school grounds, passing out during class, and being suspended from school) may most directly affect the individual, the fallout of those consequences often extends far beyond the person (e.g., the child’s parents have to rearrange their work schedule to provide transportation to an alternative school, causing them lost income). For this reason, it might be helpful to think of every choice we make Chapter 2 • Choices, Values, and Ethics31 as having a universal aspect. In other words, every choice we make and every action we undertake has consequences—however small—that are felt by many other people. These other people may be family members, friends, colleagues, individuals in our community, or even the people of cultures thousands of miles away from us. Think of actions as a “link” in an endless chain. In many ways, our choices and actions are influenced by what immediately preceded them.

In other ways, our choices and actions influence what comes immediately after them. What comes immediately after them, in turn, influences what comes after that, and so on. The “link” we have secured in the chain by choosing a certain action becomes a small, but meaningful, part of a continuing chain of events. Changing our actions—and thus the consequences of our actions—can potentially change the ways in which that entire chain of events unfolds.

Consider the following somewhat unlikely (though not necessarily improbable) scenario.

Suppose you are driving to school or work this morning and, as you are peacefully making your way through traffic, a seemingly inconsiderate motorist cuts you off. You have done nothing, of course, to bring this on. Nevertheless, you dohave an impact on what has yet to occur. Consider the choices you have available to you at this point: You may, for example, simply curse the disrespectful motorist in your head while continuing about your drive; you may lay on your horn while verbally cursing at the motorist out your window; you may speed up, pass the motorist, and then cut him off in retaliation; or, perhaps, you might wave at him in a friendly, understanding manner. Let us suppose that you allow your emotions to get the better of you and, consequently, you choose to lay on your horn and curse the man. Now, let us further suppose that the man (inconsiderate, perhaps, but initially merely in a hurry) becomes angry at you for your retaliatory actions. Though nothing seems to come of it immediately (you both drive off on your separate paths), the now-angry man is so disturbed that upon arriving at work, he curses his boss.

In return, he is fired. Now, let us suppose even further that, having been fired, the man becomes even more emotionally unstable (imagine how you might feel!). He peels out of the parking lot at his place of employment and, not being very attentive, hits an unsuspecting pedestrian.

The pedestrian is killed immediately.

Most of us—including lawmakers—would be in agreement that the man is responsible for the death of the pedestrian and will most likely face charges of vehicular manslaughter, reckless manslaughter, or in whatever way the offense is applicable in that particular state. Perhaps you see the story on the local news that night, thinking to yourself, “that’s the jerk who cut me off today— someone like that deserves whatever he’s got coming.” Indeed, most of us would feel sympathy for the victim and the victim’s family and a corresponding anger toward the inconsiderate (and “dangerous”) motorist. Yet most of us would probably notstop to reflect upon our own contribution to the unfortunate events.

None of us would argue that, in the above scenario, we should be legally or even morally responsible for the actions of the motorist or the death of the pedestrian. But the issue here is about ethics, choices, and the ways in which we (sometimes unknowingly) contribute to the unfolding of future events through those choices. We might imagine that, had you not responded to the man as you did when he cut you off, he would not have become so angry, cursed his boss, been fired, peeled out of the parking lot, and killed the pedestrian. Of course, we can imagine other scenarios in which your same response might have led to very different consequences.

In any case, by choosing one course of action over another, you set in motion or at least made a contribution to a chain of events; where that and other chains of events lead is often beyond our awareness. This is precisely why we typically fail to fully consider the implications of our choices.

If we do not seethe immediateconsequences, we go on about our lives assuming that nothing bad or troubling has come from our choice. Again, it is important to point out that our choices do not 32Part 1 • An Invitation to Ethics necessarily directly causelater events. It is also worth noting that, in any given situation, the choices we make may be morally justifiable or defensible, despite whatever consequences they may bring. What is crucial for ethical purposes is, again, simply that we be aware of the ways in which our choices areconsequential and, perhaps more importantly, that we strive to always make choices informed by this awarenessand that reflect good moral reasons (e.g., moral virtue, consequences for ourselves and others, relevant moral principles, duties, and values).

MAKING CHOICES We have thus far discussed the centrality of the role played by our choices in ethical inquiry.

Yet, ethics and morality are not only, and not most importantly, about choices and actions themselves; rather, we could say that they are primarily concerned with how we come to select the courses of action that we pursue—in other words,how (and why) we make choices. More than our choices and conduct alone, it is the reasons underlying our choices and conduct that are of particular moral relevance. Studying ethics and, ultimately, living a moral life requires that we have good reasons for our decisions, beliefs, and judgments, and that we be able to articulate those reasons. So what are “good” reasons?

One way of beginning to think about good or right reasons for choices, actions, and beliefs is to explore the values that are important for a “good life in a just society.” Consider the following and what they have in common: happiness, pleasure, justice, equality, fairness, courage, loyalty, human dignity Recognizing the similarities between the terms above allows us to begin to comprehend the importance ofvaluesfor our choices and actions. Our valuesreflect those things, qualities, or ideals to which we assign importance. When we “value” something, we regard it as desirable, having worth or importance. Similarly, when we evaluatesomething, we judge it to be right or wrong, good or bad, according to our values or some system of values to which we are referring. 14To “value” something, then, is to advance it as a consideration with regard to our choices and actions. 15One of the most important commonalities between the values listed above is that each of them, for at least some people some of the time, is used as a basis for making a certain choice, pursuing a certain course of -action, or judging the choices or actions of others. Valuing courage, for example, might lead us to courageous action or, at least, to hold in high regard others who act courageously. Valuing equality might lead us to vote a certain way or participate in social activism, while valuing justice might lead us to support a certain social policy or even pursue certain kinds of career paths.

Values, then, “point out” the things we should pursue in life. They give our lives a sense of meaning and purpose. Part of what the study of ethics is intended to accomplish is the illumination of our values and their role in our choice-making (i.e., “getting in touch” with our own values and understanding from where they came, why we hold them, and how they influence our decisions and actions). More importantly, however, ethics encourages us to critically assess those values and to adopt a set of consistent values that are morally justifiable. Schools of ethical thought (i.e., normative theories of ethics, such as utilitarianism, deontological ethics, and virtue ethics) offer us frameworks for prioritizing values and guidelines for utilizing them in our decision-making. Honesty is almost universally valued, yet what if honesty causes harm? What if being honest involves violating someone’s rights? What if, though a violation of rights, being honest brings about better long-term consequences than dishonesty? Are we then justified in violating rights? Honesty, respect for rights, Chapter 2 • Choices, Values, and Ethics33 and bringing about good consequences are all examples of values used to make sense of moral dilemmas. How we prioritize these values is a topic to which we will return in later chapters.

It is crucial to note that not all values are moralvalues. While we may value physical strength, for example, it cannot be regarded as a moral value. We may appreciate or admire physical strength and seek to embody it in our lives, though it is wholly unnecessary for moral behavior. Other nonmoral values might include such things as popularity, status, wealth, and even health. While nonmoral values are of consequence in that they commonly influence the decisions we make and the actions we undertake, they are distinct from moral values.Moral valuesare those characteristics or states of affairs that we regard as necessary to morality—when pursued or used as a basis for choice-making, they can contribute to leading a good life and creating a just society in which others can do the same. Ethically,moral values should always take priority over nonmoral values when they come into conflict. Thus, moral values such as respect, responsibility, humility, and the reduction of pain and suffering should always factor more heavily in our decisions than, for instance, status or popularity.

Of importance to criminal justice are not only values that describe the kinds of people we should be and the ways in which we should approach our professions (e.g., honesty, integrity), but also social valuessuch as equality and justice. Evaluating laws, policies, and even court decisions is a matter of determining the degree to which they promote or fail to promote social values that we consider to be important. To say that we value equality, for instance, is to say that we have determined it to be important, worthwhile, desirable, and “good” for society. As such, the decisions that are made at the level of law and public policy should further the goal of equality.

Examples of other social values include such concepts as “freedom or liberty,” “democracy,” “rights,” “justice,” and “public good.” Each of these values, as we will see, is crucial to many ethical concerns within criminal justice. 16Issues such as gun control and the death penalty lay squarely at the crossroads of ethics, public policy, and law. In fact, many issues that affect the everyday practice of criminal justice are issues of law and public policy with ethical foundations.

Types of Moral Values Have you ever found yourself wondering what happiness is for? Not what it isor how to achieve it, but what happiness is used for or what its purpose is? Chances are you haven’t. The reason you probably haven’t thought about happiness in this way is that happiness is not foranything. Rather than being a means to some other desired end, happiness is what philosophers refer to as an end- in-itself. 17 Some values, like happiness, are ends-in-themselves. Others, in turn, are “good” because they serve as a means to an end. Moral values are commonly characterized in one of these two ways; those that are ends-in-themselves are categorized as intrinsicvalues, while those that are means to an endare referred to as instrumentalvalues (see below). Depending on how we characterize a value, we will place a different degree of importance on it. Further, the more importance we place upon a value, the more that value factors into our choices and actions.

Consequently, understanding the difference between these two types of values is essential to good ethical reasoning and decision-making. 18 Intrinsic values(also described as intrinsic “goods”) are pursued for their own sake.

The “goodness” of intrinsic values comes from the value itself—not from any desirable consequences that the value might bring about. In this respect, intrinsic values are described as ends- in-themselves rather than as means to an end. Intrinsic values are desirable as is, without any con- sideration for what they help us accomplish, achieve, or for their use. Ancient Greek philosophers, for example, regarded happiness as intrinsically valuable. In fact, not only did the ancient Greeks 34Part 1 • An Invitation to Ethics regard happiness as intrinsically valuable, but they also believed that happiness was the onlyintrin- sic value. 19All other values were good or valuable only so far as they helped bring about happiness.

So, for example, while the ancient Greeks valued health, humility, and courage, these values were good only because they served as a means for bringing about happiness.

In contrast to intrinsic values,instrumental valuesare valuable or good for what they can get us. Instrumental values allow us to achieve other things that we regard as valuable or good.

Things like wealth, status, and respect are valuable, but only because they help us attain things that are intrinsically valuable. Failure to appreciate this distinction can have profound implications for how we live our lives—for what we pursue, the kinds of people we try to be, the choices that we make, and the ways in which we spend our time.

To illustrate, in the contemporary United States many people mistakenly regard wealth (a nonmoral value) as intrinsically valuable. Many of us know people for whom wealth seems to be the most important thing in life. What many of these people fail to consider, however, is that wealth is only valuable to the degree that it allows us to get other things such as health, knowledge, and, ultimately, happiness. This is not to suggest that wealth is not or cannot be valuable to some degree. However, if the value or good of wealth is to allow us to achieve or attain other things, then these other things must be more valuable than wealth. Imagine, for example, being the wealthiest person on earth, yet having to live alone on a deserted island.

For most of us, wealth would suddenly lose all of its value. Wealth and money more generally are thus valuable only in an instrumental sense; that is, they are valuable only to the extent that they allow us to pursue or attain those things like health and knowledge that are intrinsi- cally valuable. This example illustrates the importance of distinguishing different types of values and the role they play and should play in our decision-making (see Box 2.5). As a general rule, •Moral values always take precedence over nonmoral values, and intrinsic values always take precedence over instrumental ones.

BOX 2.5 Intrinsic and Instrumental Values Generate a short list of values that you consider to be:

(a) intrinsic and (b) instrumental. Briefly discuss why they are intrinsic or instrumental.

• Do you agree with the ancient Greeks that hap- piness is the only intrinsic value? Do you agree that all other values and goods in life are merely means of bringing about happiness? If so, why?

If not, why not?

• Take a moment to reflect upon the things that you value in life. Do these things have intrinsic or instrumental value? If, for example, you value family and friends, is it because family and friends bring about happiness or pleasure?

• Using the list you generated for the preceding exercise, attempt to generate a rank-orderedlist of things that you value in life, from most valuable to least valuable. Briefly describe why certain things are more valuable to you than others.

• Remember that our sense of morality and the choices we make are often a reflection of the things we value most. Try to think of at least three examples of choices that you have made in the recent past. How have these choices been influenced by values? Based on your rank- ordering of values, were your decisions ultimately informed by your most important values? In reflecting upon your list and those decisions, do you still feel that you made the right choice? Chapter 2 • Choices, Values, and Ethics35 Moral Values and Principles Practical Conclusion (Morally Sound Choices and Actions) Facts of the Issue or Situation FIGURE 2.1A Basic Framework for Moral Decision-Making Normative Ethics and Moral Decision-Making As we have seen, ethics requires that our choices be grounded in good reasons. Making decisions about matters that carry moral weight without first having the necessary tools with which to make those choices can be challenging, if not ultimately damaging. It is thus important that we have some theoretical grounding which identifies and prioritizes reasonable moral values and principles, and provides guidelines for how we might use them to generate good choices and actions. Conclusions concerning choices and actions of moral significance are derived from the application of relevant moral values and principles to the facts of the issue or situation (see Figure 2.1).

The area of ethics which attempts to identify and prioritize relevant moral values and prin- ciples and provide frameworks from within which to embark on moral decision-making is called normative ethics. Whether we realize it or not, whenever we make decisions and judgments concerning matters of moral significance we are at least implicitly referencing one or more types of ethical theory. While theories do not tell us exactly what to do in every situation, they guide our reasoning by highlighting values and criteria for decision-making that are of relevance and that are worthy of our consideration (see Box 2.6). While we will explore several normative theories in greater detail in Chapters 8, 9, and 10, we can briefly note their main varieties here (see Table 2.1):

•Deontological theoriesfocus on the “rightness” of our actions themselves and whether those actions conform to relevant moral duties and obligations. The conse- quences of our actions are largely irrelevant. If one has a moral duty to keep a promise, one must keep that promise even if doing so brings undesirable consequences for oneself and/or others.

•Consequentialist theoriesfocus on the “goodness” of the actual or expected consequences of our actions. The effects that our choices produce are more important than whether they conform to duties, respect relevant moral rights, or adequately consider issues of justice. If one can potentially do tremendous good by committing some minor bad, it may be that the “ends justify the means.” 36Part 1 • An Invitation to Ethics •Virtue ethicsfocuses on the development and embodiment of moral character.

Specifically, it entails identifying the virtues that are important for leading a good life in a just society and striving to exemplify them in our actions. At the same time, we should endeavor to avoid allowing vices such as greed, envy, and jealousy to influence the decisions we make and the actions we undertake. BOX 2.6 Values in Practice Officer Patrick, a married father of three, is having an affair with the daughter of a local real estate agent.

As she is also married, their illicit sexual encounters occur during the only times and in the only places they can be together without eliciting suspicion from their spouses or coworkers. The two have recently begun meeting during the afternoons at a vacant home, the key to which she would “borrow” from her mother—the listing agent on the property.

Though Officer Patrick is officially on duty during their encounters at the home outside of his depart- ment’s jurisdiction, his sense of professional ethics easily succumbs to his romantic inclinations. One afternoon, their rendezvous is interrupted by what appears through the window to be a home invasion robbery. Neither sees the suspects clearly, but the car in which the suspects arrived is clearly visible on the side of the road. Officer Patrick’s weapon is within reach, as is his radio. Though neither says a thing, they both realize that if he takes action, they will both be exposed. Despite his eight-year tenure on the force, Officer Patrick will almost certainly lose his job.

They will both have to face their families, including the very real possibilities of losing their spouses and perhaps their children. If Officer Patrick fails to take action, however, it could result in serious harm to the occupants of the house, and the suspects’ remaining at large would certainly represent a continued threat to the community. Should Officer Patrick intervene?

Call for assistance? Take a description of the car and/or suspects on their way out and report it later?

Find a phone and call in an anonymous report? Do nothing?

In the above scenario, there are a number of values, both moral and nonmoral, that might factor into Officer Patrick’s decision (and to our evaluation of his behavior). How might the following be important considerations: honesty, prevention of harm to selfand others, professional duty, justice, courage, self- interest, reputation, integrity? Of course, any or all of these values (as well as some not mentioned) might be relevant to this particular scenario. Yet some of these values contradict others. How might we and Officer Patrick prioritize these values? Is his duty to his profession more important than his reputation? Is pre- venting harm to others more important than his own safety? Is honesty the “best policy,” even given the consequences that would likely follow?

Normative ethical frameworks do some of this work for us. Different frameworks ask different questions, prioritize different values, and may lead us to different decisions and judgments:

•Consequences: What are the probable conse- quences of each alternative course of action for Officer Patrick? For his friends and family?

For his department? For the victims? For the community? Which course of action would bring about the best consequences for every- one involved?

•Duties and obligations: What moral duties and obligations does Officer Patrick have? To whom? Duties and obligations typically must be fulfilled, regardless of the consequences for self and others. Which course of action in this case best respects Officer Patrick’s duties to others? His department? His profession? The community?

•Moral character: What kind of character traits do we expect law enforcement officers to have? Honesty? Courage? Integrity? What kinds of character traits do we expect law enforcement officers to avoid? Selfishness?

Greed? What would a morally admirable person do if faced with the same situation as Officer Patrick? Chapter 2 • Choices, Values, and Ethics37 TABLE 2.1 Types of Normative Theories Type of Theory Focus What Is Right?

Deontology (duty-based)Actions (right/wrong)Determining one’s relevant moral duties and fulfilling those duties irrespective of what consequences might follow Consequentialism Consequences of Actions (good/bad)Determining what course of action will produce the best consequences for all affected by the decision Virtue Ethics Character (virtuous/vicious)Striving to embody virtue and develop one’s own moral character; right actions and good consequences will often follow ETHICS, VALUES, AND CRIMINAL JUSTICE Like those of academia, the corporate world, or any other professional environment, the institu- tions and organizations of the criminal justice system are characterized by select values that are deemed crucial to their functioning and that are intended to serve as official guidelines for professionals. As we saw in Chapter 1, codes of ethics typically outline these official or formal values, identify desirable traits of character, and promote moral decision-making on the basis of these core values. Law enforcement organizations, for instance, typically promote values such as justice, fairness, equal treatment and avoidance of discrimination, commitment to serving the community, respect for law, avoidance of decisions based on self-interest, and character traits such as courage, honesty, and self-discipline. The United Nations Code of Conduct for Law Enforcement Officials, for example, specifically describes key values such as commitment to duty, respecting human rights and protecting the dignity of all people, intolerance of torture, cruelty, and degrading treatment of others, and respect for ethical principles. 20 Ideally, individual practitioners will commit themselves to these values and look to them as a basis for making morally sound decisions.

Of course, practitioners in policing and other criminal justice organizations do not always make choices on the basis of values that have been formally identified as desirable. On one hand, individual practitioners bring their own personal system of values with them into their professional careers. As we have seen, personal values can and do influence the decisions we make and the actions we take in both our personal and professional lives. We wouldn’t need to look far in any profession to find someone whose decisions were motivated by greed or a desire for popularity rather than by relevant moral values and intrinsic goods. At times, then, personal values and desires may contrast with organizational values and ethical principles, creating a scenario in which an individual practitioner may be inclined to make choices and take actions that are consistent with her or his personal system of values but inconsistent with those promoted by the profession. In some circumstances, we might be able to argue that this is morally defensi- ble (e.g., where laws or policies are themselves immoral); in the vast majority of cases, however, placing one’s personal values and interests above those of the law, policy, or organizational directives can produce unethical, harmful—even illegal—results (see Box 2.7).

In addition to personal value systems, one of the most widely discussed ethical challenges facing law enforcement and other criminal justice professions is the existence of organizational or institutional subcultures. Virtually all occupations have subcultural elements—informal val- uesand norms that, at times, conflict with the formal values to which employees are expected 38Part 1 • An Invitation to Ethics BOX 2.7 Police Subculture For new recruits within law enforcement, learning how to “be a cop” sometimes entails exposure to a variety of existing informal norms operating within those organi- zations—norms that can directly contradict formal values, legal and ethical principles, and the officer’s own sense of justice. Numerous researchers in the area of law enforcement have noted the existence of a distinct police value systemwhich, troublingly, has been linked with a variety of forms of police deviance, including the abuse of discretion and authority, use of dishonesty as a tool, accepting bribes and payoffs, brutality and the use of excessive (or unnecessary) force, and perjury.

Though these norms and themes are not evident in or consistent across all police departments through- out the country, they serve as useful illustrations of the ethical challenges that potentially await future law enforcement officers. Lawrence Sherman, for instance, suggests that through training, interactions with other officers, and on-the-job experience police officers come to understand the “impossibility of doing things ‘by the book’ and the frequent necessity of ‘bending the rules.’ ” The realities of police work can conflict with the ideals of police work, jeopardizing the “kinds of moral principles [police officers] can afford to have and still ‘survive’ . . . ” New recruits, Sherman suggests, go through a “metamorphosis” whereby, with time, they come to accept a new set of (informal) values and norms:

1.Decisions about whether to enforce the law “should be guided by both what the law says and who the suspect is.” Demographic variables such as the race, class, and age of the suspect, as well as the suspect’s demeanor, attitude, and level of cooperativeness, should all be taken into consideration.

2.Disrespect for the police should always be met with arrest or the use of force. Even when no law violation has occurred, the officer should find a way to impose punishment—even if this means making an arrest on fake charges.

3.Officers should not hesitate to use force— including deadly force—against those who “deserve it” or where it might otherwise be an effective means of solving a crime. Whenshe or he can get away with it, the officer should employ “as much force as society should use on people like that—force and punishment which bleeding-heart judges are too soft to impose.” 4.Due process exists only for the sake of protecting criminals and should be ignored wherever the officer can get away with it. Ignoring Miranda rights, illegal searches and interrogations, and the use of physical force to coerce confessions are all acceptable ways to achieve the goal of fighting crime.

5.Dishonesty—lying and deceptive methods—is “an essential part of the police job.” Even perjury should be used if necessary to protect oneself or to get a conviction. Lying in court, to drug deal- ers, to prostitutes, to muggers, and to burglars are legitimate means of investigating crimes and catching criminals.

6.“You cannot go fast enough to chase a car thief or traffic violator nor slow enough to get to a ‘garbage’ call; and when there are no calls for service, your time is your own.” Hot pursuits are necessary to catch those who challenge police authority; social-work problems such as domestic disputes are not important, and when there are no calls, one can sleep, visit friends, or do any- thing else one can get away with.

7.It is acceptable to take any extra rewards the pub- lic wants to offer an officer. Policing is dangerous work done for low pay, so free meals, gifts, regular payments for special treatment, taking money for not giving a traffic ticket, etc., are legitimate forms of additional compensation.

8.Protecting fellow officers is the “paramount duty”—even if it means risking your own job or life. An officer should do everything she or he can to protect fellow officers, including never cooper- ating in an investigation against another officer and never “blowing the whistle” by informing on an officer who has taken a bribe, used excessive force, etc.

• In what ways might exposure to the norms described by Sherman lead to unethical and undesirable police behavior? Chapter 2 • Choices, Values, and Ethics39 • Can you think of specific cases from the media where police deviance might be linked to organizational culture?

• What circumstances, conditions, or experiences might make a police officer more or less likely to be influenced by informal norms and values?

Again, it is important to note that the informal norms and values that Sherman describes are not characteristic of every police department. It is moreimportant to recognize that simply because they are operative they are not ideals toward which aspiring law enforcement officers should strive. If anything, they point to the need for courage and commitment to independent moral reasoning about matters of professional significance. Source: Lawrence Sherman, “Learning Police Ethics.” In Michael Braswell, Belinda McCarthy, and Bernard McCarty (Eds.), Justice, Crime and Ethics(Cincinnati, OH: Anderson 1998), quotes taken from pages 52 and 55–58. to embrace and uphold. New employees are exposed to these informal values as they are social- ized into the profession, learning how to “be” a member of that profession, as well as how to navigate the day-to-day tasks and responsibilities of the profession in the face of demands that its particular reality presents. This process of socialization and informal learning applies not only to members of criminal justice professions, but equally to professors in colleges and universities, medical doctors, lawyers, newly elected political figures, and even professional athletes. Sociologist Steven Ortiz, for example, describes a “culture of adultery” that permeates professional sports. Over the course of a long season with much time away from home and family, many professional athletes find not only that opportunities for adulterous behavior are common, but also find themselves within a culture of acceptability—even pressure—for that form of behavior. 21 While not all, or even most, professional athletes engage in adulterous behavior, the degree to which institutional, organizational, or professional subcultures promote certain kinds of values and tolerate, accept, or encourage certain forms of unethical behavior is a key consideration when exploring the ethical challenges facing employees within a variety of professional settings.

It is important to point out that the content of informal values and norms will vary from profession to profession and even from organization to organization within those professions, and that not all generate deviance or unethical conduct; some, however, encour- age attitudes, beliefs, and commitment to values that make it difficult to maintain a posture of ethical integrity. This is particularly the case in professions such as policing where “fitting in” and maintaining loyalty to one’s peers may be essential to one’s professional (not to mention, biological) survival. The prevalence and strength of informal organizational values reinforces the suggestion in Chapter 1 that the existence of formal values in criminal justice and other professional organizations is often not enough to ensure good moral decision-making.

Equally—if not more—important is the development of our own internalmoral sensibilities.

It is crucial that we come to “know thyself,” as Socrates urged, understanding the ways in which our own values shape our choices, contemplating the kinds of values that we consider important, and developing a sense of courage which allows us to adhere to those values in the face of pressures to do otherwise. Just as values point out things we should pursue in life and provide our lives with a sense of meaning and purpose, they also point out the things we should pursue and provide meaning and purpose to our professional lives. The study of ethics helps us understand the importance of making good decisions, and as decisions are often made on the basis of things we value, ethics emphasizes the importance of critical reflection on moral values and how they do and should impact the choices we make. 40Part 1 • An Invitation to Ethics Key Terms and Concepts acts of omission25 duress (or coercion)26 instrumental values34 intrinsic values33involuntary nature of evil 29 moral values33 necessity defense 26 normative ethics35police deviance38 police value system38 values32 voluntariness (voluntary conduct)26 Discussion Questions 1.How do the choices we make affect other people? Are the consequences emerging from our actions always good? Always intended? Always obvious? Please explain your response.

2.What does it mean to say that our conduct is or can be voluntary? How does the field of ethics help us under- stand the moral implications of voluntary and involuntary conduct? Use an example from policing, law, or corrections to substantiate your answer.

3.According to the text, no one voluntarily chooses evil.

Where choices seem motivated by evil, they are better regarded as stemming from ignorance. Please explain this. How would you reconcile this position with persons who engage in extreme forms of repeated criminal conduct (e.g., a serial rapist, child molester, or murderer)?4.Because our choices have a universal element, it could be argued that morality requires universal responsibility—a responsibility not only to our immediate circle of influence but also to the entire global community (even future generations). Can you think of ways in which the idea of universal responsibility might be applicable to criminal justice? What, if any, responsibilities do we have to rectify injustice or promote justice on a global scale?

5.What is the relationship between values and ethics?

What does it mean to say that a value can be instru- mental or intrinsic? Police officers and prosecutors value discretion. Is this value a means to an end or an end-in-itself within the criminal justice system?

Explain your response.

Summary The reach of ethics is perhaps much broader than we might initially imagine. Nearly everything we do has moral significance. More specifically, it is the choices that we make, the reasons underlying those choices, and the actions we take (or not) as a function of those choices that is the “stuff ” of ethics. Part of the value of ethical inquiry is that it encourages us to recognize the ways in which just about every choice that we make affects or can potentially affect others. On what basis do we make choices? How can we determine what a “good” choice is? These are questions that implicate moral values and principles—the “tools” that we use,knowingly or otherwise, to make decisions in our personal and professional lives. The subcategory of ethics that studies these tools and provides frame- works for their use is referred to as normative ethics.

We will look more closely at several normative frame- works in later chapters. Over the next several chapters, however, we turn our attention to several matters of ethical importance that are commonly described as issues ofmetaethicsand moral psychology.We begin with an examination of an issue that plays a crucial role in both ethics and in crime, law, and justice: that ofdeterminism, or the problem of freedom. Chapter 2 • Choices, Values, and Ethics41 Endnotes 1. Charles Baylis,Ethics: The Principles of Wise Choice (New York: Henry Holt and Company, 1958); See also, Joseph Heath,Communicative Action and Rational Choice(Cambridge, MA: MIT Press, 2001).

2. Stephen Pepper,Ethics(New York: Appleton- Century-Crofts, 1960), pp. 3, 12–35.

3. Adapted from David Ingram and Jennifer Parks, Understanding Ethics(Indianapolis, IN: Alpha Books, 2002), p. 4.

4. Bernard Williams,Morality: An Introduction to Ethics(Cambridge, MA: Cambridge University Press, 1993); Bernard Williams,Ethics and the Limits of Philosophy(Boston, MA: Harvard University Press, 2004).

5. Diana Russell,Dangerous Relationships: Pornography, Misogyny, and Rape(Thousand Oaks, CA: Sage, 1998).

6. Ibid.

7. See generally, Drucilla Cornell,Feminism and Pornography(Oxford: Oxford University Press, 2000).

8. See generally, Ferrel M. Christensen,Pornography:

The Other Side(New York: Praeger, 2008).

9. Paul Ginsborg,The Politics of Everyday Life: Making Choices, Changing Lives(New Haven, CT: Yale University Press, 2005), p. 181.

10. Plato raises this issue in his dialogues Gorgiasand Protagoras. See John Cooper (Ed.),Plato: Complete Wo r k s(Indianapolis, IN: Hackett, 1997).

11. Richard Taylor,Good and Evil(Amherst, NY:

Prometheus), p. 62. See also, Russ Shaffer-Landau,Whatever Happened to Good and Evil?(New York:

Oxford University Press, 2003).

12. C. C. W. Taylor, R. M. Hare, and Johnathan Barnes, Greek Philosophers: Socrates, Plato, and Aristotle (New York: Oxford University Press, 2001).

13. Taylor,Good and Evil.

14. Ingram and Parks,Understanding Ethics,p.19.

15. Ingram and Parks,Understanding Ethics; Daniel Kahneman and Amos Tversky (Eds.),Choice, Values, and Frames(Cambridge, MA: Cambridge University Press, 2000).

16. Bruce A. Arrigo and Christopher R. Williams (Eds.), Philosophy, Crime, and Criminology(Urbana- Champaign, IL: University of Illinois Press, 2006).

17. Robert Spitzer,Healing the Culture: A Commonsense Philosophy of Happiness, Freedom and the Life Issues (Fort Collins, CO: Ignatius Press, 2000); Anton Vetroff, Practical Philosophy of Happiness: The Ultimate Philos- ophy(North Hatfield, MA: Troubador Press, 2005).

18. Ingram and Parks,Understanding Ethics, pp. 21–22.

19. Holowchak M. Andrew,Happiness and Greek Ethical Thought(London: Continuum International Press, 2004).

20. Available at http://www2.ohchr.org/english/law/ codeofconduct.htm (retrieved July 28, 2001) 21. Steven Ortiz, “When Sport Heroes Stumble: Stress and Coping Responses to Extramarital Relationships among Wives of Professional Athletes.” Paper presented at the annual meeting of the American Sociological Association, Anaheim, CA, 2001. This page intentionally left blank PART TWO Metaethics and Moral Psychology 44 3 Free Will and Moral Responsibility On October 25, 1994, Susan Smith contacted law enforcement authorities in South Carolina to report that an African American man had hijacked her car and drove away with her two sons—one three years of age, the other fourteen months—still in the car. Nine days after, after initial investigative efforts turned up no supporting evidence or leads, Smith confessed to having strapped her two children in their car seats and rolling her car into a lake. The children both drowned. How could someone do such a thing? The later trial revealed that Smith (who was divorced) had fallen in love with a man who did not want a “ready-made family” and that he had intentions of ending the relationship for that reason. Was Susan Smith simply a callous and depraved human being who valued her own selfish desires more than the lives of her children? At trial, Smith’s defense team attempted to portray her in a different light. She was described as deeply depressed, with a history of significant mental health issues—including at least two previous suicide attempts. Her father had committed suicide when Susan was six years old, and she had been repeatedly sexually molested by her later stepfather (who admitted as much). Though jurors were quick to find her guilty on two counts of murder, the information about her troubled (and troubling) past likely had much to do with her being sentenced to life in prison rather than death. 1 In a similar and also widely publicized case in 2001, Andrea Yates drowned her five children in a bathtub in her home. Again, the question on the collective mind of the public was, “why?” As would become known, Andrea had a history of serious psychiatric impairment, including major depression with psychotic features (e.g., hearing voices, thinking people were out to get her). Experts would argue that her thinking was characterized by an inability to differentiate what was real from what was not.

She had had severe postpartum depression after the birth of her fourth child, and again after the birth of her fifth. Psychiatric examinations revealed that Andrea was under the delusion that Satan was inside of her and that drowning her children would destroy Satan; otherwise, her children faced eternity in hell.

In Andrea’s mind, protecting her children’s souls was more important than their lives. Her pronounced history of major mental health concerns was not enough to convince the jury that she was legally insane.

Andrea was convicted of murder but, like Susan Smith, the jury elected to spare her the death penalty and sentenced her to life in prison. After a successful appeal, however, a 2006 retrial resulted in a verdict of “not guilty by reason of insanity,” and Andrea was indefinitely committed to a maximum-security psychiatric hospital in Texas. Chapter 3 • Free Will and Moral Responsibility45 Both of these cases—and many unfortunate others like them—require difficult moral and legal judgments about criminal conduct and human behavior more generally. In particular, they raise crucial questions about free willand moral responsibility. Though different in important respects (e.g., motive), each illustrates the way in which morality and our evaluations of moral responsibility rest upon our ideas about the extent to which people are freeto make the choices they make. Were the actions of Susan Smith and/or Andrea Yates freely chosen? Were they influenced or even caused by forces beyond their control? If so, to what extent should the influence of those forces factor into our consideration of their moral responsibility? Even if responsible, are there circumstances surrounding their actions that might warrant leniency in legal sentencing?

Psychiatric treatment as opposed to incarceration in prison or capital punishment?

Though historically relegated to the depths of philosophical inquiry, the questions raised about free will and moral responsibility are increasingly not just philosophical; they are practicalas well. As Jerry Samet writes, “We can’t just leave it to philosophers to ponder these problems.

We—as citizens, as physicians and therapists, as law enforcers, as parents and children, as jurors, as jurists . . . need somehow to draw the line about matters of personal and moral responsibility.” 2 FREE WILL Though the cases of Susan Smith and Andrea Yates are relatively recent, questions about human freedom as it relates to intentionality, voluntariness, responsibility, and culpability for human conduct date back hundreds—if not thousands—of years. Throughout much of the Middle Ages, for example, dominant explanations of criminal behavior centered upon the notion of supernatural intervention in human affairs. 3Notably, criminals were often regarded either as having made a “pact” with the devil or having been involuntarily “possessed” by demons that subsequently assumed control of their thoughts, feelings, and behaviors. In cases involving the former, witches and other heretics were subjected to various modes of torture and often punished by death. In cases thought to involve involuntary possession by demons, however, persons were often “treated” through exorcism and other religiously inspired methods of intervention. In such cases, “possessed” persons were not presumed to be responsiblefor their deviant conduct; rather, their actions were causedby the demonic forces that inhabited their bodies. Those who had made a “pact” with the devil, in turn, were presumed to have made a voluntary choiceto join forces with evil. Consequently, they were held to be fully responsible for their conduct and were punished accordingly. 4While explanations of human behavior derived from demonologyno longer hold much appeal within philosophy and the social sciences, the notions of choice and freedom continue to factor critically into discussions of morality, human behavior, and moral responsibility.

Importantly, whenever we speak of “shoulds” and “oughts” (e.g., “the officer should not have fired upon the unarmed suspect”) in ethics, criminal justice, or other facets of social life, it is important to remember that should implies can. In ethics, we assume that we canchoose between alternative courses of action and proceed to ask what courses of action are desirable. In criminal justice, we assume that (most) persons who have violated the criminal law chose criminality over alternative lifestyles or courses of action and we proceed to ask what form and degree of punishment is called for with reference to the crime. We assume, in other words, that such persons hada choice with which to begin. When we judge and place responsibility upon alcoholics for their addiction to alcohol, upon law enforcement officers for using excessive force, or upon mothers for their filicidalactions, we are presupposing that each had alternatives but freely chose not to pursue them. 46Part 2 • Metaethics and Moral Psychology In ethics as in law, the term culpabilityis sometimes used to describe the moral responsibility or moral blameworthiness that accrues when one knows that an action is wrong, but makes a free choice to engage in that action anyway. In contrast, if we are unaware that an action is wrong, lack the mental capacity to understand that something is wrong, or are forced by circumstances beyond our control to engage in wrongful conduct, we would typically be judged not culpable for our actions (though, depending upon the situation, we might still be held legallyaccountable). A four-year-old child who shoots and kills another child would not be regarded as culpable; likewise, the presence of severe developmental disability or mental illness can lessen (or eliminate) culpability, as can instances of duress or necessity such as those described in the previous chapter. 5In short, morality and moral judgment require that we have the necessary freedomto be moral.

The freedom in question is often referred to as free will, or the power to make choices and engage in actions that originate with ourselves. 6As ongoing research in the natural and social sciences continues to catalogue the various biological, psychological, and sociological influences on our choices and actions, we are left to critically examine the degree to which our thoughts, feelings, and actions are, in fact, free or voluntary.

7At every moment of our lives we are subject to a variety of influences acting upon us—from our genetic makeup, to the balance of chemicals in our brains, to our intelligence, personality structure, and social environment. By way of these influences, it is sometimes argued, our capacity for free will is limited.

The threat inherent in this idea is that the kind of freedom necessary for each of us to make moral choices and to engage in moral behavior is either nonexistent or significantly weaker than what we often believe.Ifour choices and actions are not completely voluntary and ifwe lack the free- dom to choose and act, both ethical inquiry and our efforts to make moral decisions in our everyday lives (and to act in a moral fashion accordingly) will be largely futile. What we shoulddo is more a matter of what we willdo. 8While most of us certainly feeland believethat we are free to choose and act as we desire, the problem ofdeterminismis not as simple as what we feel or what we believe. DETERMINISM AND CHOICE The idea of free will is opposed by that ofdeterminismwhich, in simplest form, holds that every event has a cause. 9When applied to the natural world, we typically take determinism for granted:

clouds form because water vapor condenses in air that is cooled below its saturation point; the law of gravity determines that objects with weight and mass fall to the ground when we drop them. Yet do the same principles of cause-and-effect apply to the world of human behavior? Are we willing to accept that our thoughts, feelings, and behaviors have causes in the same way that events in the natural world do? If determinism is correct, then nothing happens that is not caused to happen by some other event, condition, or set of events and/or conditions—and this includes every thought and feeling we have, every choice we make, and every action we take. 10 The logic of this idea is, for many people, less of a problem than its moral and legal implications.

Not only does free will become limited (if not eliminated) under determinism, so too does moral responsibility or culpability. Supporting the existence of free will amounts to arguing that there are at least some(or, at least one) events that occur for which no previous event is necessary. 11The most important of such events for our purposes is the event of human choice. This does not deny that events in the naturalworld are caused or determined, only that cause-and-effect do not operate the same way on human thought, feeling, and behavior. There is a difference, as existentialist philosopher Jean-Paul Sartre (1905–1980) argued, between human beings and other “things” in the universe. 12 While nonconscious objects may be subject to the laws of causation, conscious human subjects are knowing, willing, choosing subjects or beings. We create ourselves through the choices that we make Chapter 3 • Free Will and Moral Responsibility47 and, while those choices may be influencedby factors beyond our control, our choices and actions themselves ultimately are always of our own volition. Consequently, any human action could have been otherwiseif the acting agent chose to do otherwise.

What evidence do we have to support the idea that we choose and act of our own volition?

Deterministic accounts of human choice and action have an increasingly robust library of scientific research to back their claims. Yet there exists no solid empirical evidence in support of free will.

In fact, free will is only perceivable by way of its effects, leaving us little alternative than to retrospec- tively attach it to our behavior. We can believethat we have free will and continue to live our lives as if we do, but we will find very little in the way of grounds to support our claim. A commonly cited reason in support of free will is simply the feeling of freedom, which suggests something as follows:

When we make choices, we feelthat we have freely chosen—we feelthat we could have chosen or done otherwise if we had wanted to—and, consequently, if we feel that we have made a choice, then we must have freely made that choice. 13The problem with the “feeling of freedom” is that we may be mistaken or simply ignorant with regard to the forces acting upon us. CAUSALITY It is important to recognize that part of the reason that we do not have a causal explanation for everything in the universe is that the process of causation can be prohibitively complex. When we argue that something is caused, we are not necessarily arguing that it has acause. Rather, causation is best understood in other, more complex terms. For example, we cannot accurately say that smoking cigarettes causes lung cancer. If this were true, then everyone who smoked cigarettes would develop lung cancer. Because, in turn, we know that not everyone who smokes cigarettes develops lung cancer (at least not after the same length of time or number of cigarettes), we can conclude that there must be other factors that need to be considered. Perhaps smoking cigarettes in conjunction witha genetic predisposition to develop cancer leads to lung cancer? Perhaps continual inhalation of cigarette smoke interactswith the continual inhalation of polluted air that, through this interac- tion, encourages cancerous cells to develop? Or, perhaps, there are additional factors that should be considered, such as the effects of stress and anxiety, vitamin and mineral consumption/deficiency, exercise, diet, and others. In any case, the link between smoking and lung cancer—though very much supported by medical research—is not as simple as we might assume.

As an example from within criminology, consider the phenomenon of gang involvement.

What, we might ask,causesyouths to become involved in gangs? Chances are, if you were to research this question you would be led to entertain a number of important factors, including low self-esteem, family conflict, weak attachment to parents, underachievement in school, the need for identity, the need for security, socializing influences of the neighborhood within which one is raised, and early socializing influence of relatives and peers. 14None of these factors can accurately be said to cause, by itself, gang involvement. Instead, it is likely that involvement in youth gangs depends on the influence of various factors working in conjunction with one another and/or influencing one another that collectively contribute to a protracted process that leads youths toward gang behavior.

For our purposes, the point of both of the above examples is that the process of causation is not always as simple as “A causes B.” We should recognize that most often causality is a complex process that includes multiple factors and forces that interact with one another, mutually affect one another, and should be understood only as small pieces of an ongoing dynamic by which the effect or phenomenon in question is produced. This, of course, is not necessarily to be regarded as evidence that all things—including choice—are caused. It is, however, to suggest that while some things seem not to have identifiable causes, it may simply be that the contributing Chapter 3 • Free Will and Moral Responsibility49 To further illustrate, consider that adults and children lie on a daily basis. We lie to avoid harm, to make ourselves look better, or sometimes for altruistic reasons such as protecting others from harm (see Box 3.1). 16Each of these is a reason or motivation which might lead someone to freely choose to deceive others, but not a “cause” of the behavior. To suggest that a person lies from free will to obtain financial rewards is to suggest that that person could have done otherwise, but chose dishonesty as a means of achieving what was desired. To apply a reason to his or her behavior is not the same as saying that it was “caused” in the sense that causation is being used here. Consider, however, if we were to learn that this same person endured frontal lobe damage during a workplace accident and has, ever since, lied compulsively. Or, perhaps, that his or her ill child is in desperate need of unreasonably expensive medication without which the child would soon die. Given either of these circumstances, would we be just as willing to describe the individual’s behavior as a product of choice? Or, on the other hand, would we be inclined to argue that freedom of choice and action might, at least on occasion, be substantially limited if not altogether eliminated? BOX 3.1 Probing Dishonesty Dishonesty has been situated amongst the vices and moral shortcomings of the human species for millennia.

The benefits of timely lies for individuals are a matter of common sense. Dishonesty allows us to gain distinct advantages in business, love, sports, academic, and professional pursuits. As well, dishonesty has historically been one of the key methods of avoiding arrest and prosecution for those with something to hide. Over the past century, however, research on the biology of dishonesty (how our brains and bodies react when we lie), has made possible increasingly sophisticated lie-detection devices. The polygraph—an early and unre- liable attempt at a lie-detection device—measured changes in heart rate, blood pressure, respiration, and other physiological accompaniments of deception.

Though still used to some extent in law enforcement, the polygraph is inadmissible in courts of law. Even more recently, however, new knowledge and new tech- nology have made possible the creation of new lie detectors that are more reliable and more effective at determining when people are being dishonest. Thermal Imaging, infrared brain scans,and, the even more advanced, brain fingerprintingeach “read” the brain, looking for changes that, in theory, occur even in people who are able to “get around” the old polygraph exami- nations. Brain fingerprinting consists of electrodes that are attached to a subject and, at the other end, to an EEG (electroencephalograph) machine which records brain waves. When a subject is being dishonest, s/he produces a particular pattern of brain wave (known as P300). While not universally admissible, brainfingerprinting may in the near future be the standard for detecting lies in police departments and courtrooms around the country. Morally, however, perhaps this is an instance where products of science and technology are potentially undesirable. Consider the following:

• Suppose brain fingerprinting, fMRItechnology, or similar technologies result in accuracy rates of 99 percent or better (the standard of proof in criminal cases). Would you favor the use of lie detectors to determine the guilt of suspected criminals? How much evidence would we need of a person’s guilt to subject her or him to such a test? What about probing victims, witnesses, friends, and family members of suspects?

• Even if we support the use of lie-detecting tech- nology in the context of criminal justice, would you also support the same technology being used to interrogate college students about cheating on papers or exams? Grade school stu- dents about stealing lunch money? Employment candidates?

• What ethical values and/or principles can you think of that might justify utilizing new lie- detecting technologies? What ethical values and/or principles may present a case against using them? Source: Lawrence Tancredi, Hardwired Behavior: What Neuroscience Reveals about Morality(New York: Cambridge University Press, 2005) 50Part 2 • Metaethics and Moral Psychology BIOLOGICAL, PSYCHOLOGICAL, AND SOCIOLOGICAL BASES OF BEHAVIOR We have seen that determinism argues that nothing happens that is not caused to happen. In the context of human choice and behavior, what exactly are these causal forces supposed to be? Influences on human behavior can be roughly placed into three categories: (1) biological, (2) psychological, and (3) sociocultural or environmental. Though there is substantial overlap between the three—not to mention that different kinds of influences work in concert—it is often helpful to discuss them separately.

Internal Factors Biological and psychological influences on choice-making and behavior each claim that our choices and behaviors are largely a product of events and conditions that occur or exist withinus.

Each, however, differs in terms of how it understands the nature and dynamics of those events and conditions. While biological and psychological models are not mutually exclusive, they differ with respect to what it is within us that shapes our ways of thinking, feeling, and behaving. It should also be noted that not all biological and psychological models are purely deterministic, and those that are come in a variety of forms. While it is not necessary for our purposes to lo