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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 look in detail at the variety of theoretical models employed in biology and psychology, it may be helpful to briefly examine what we mean by biological and psychological determinism.

BIOLOGICAL DETERMINISM As a general example of biological causation to which most people can relate, consider the feeling of sexual desire. Imagine, for example, a moral prohibition against experiencingsexual desire. As much as we may wish to control such desires, they will inevitably arise periodically. Sexual desire is a universal biological element of human life. We are biologically “programmed” to have sexual desires and, in fact, the experience of such desires is necessary on a broader biological level for the continuation of the human (and other) species.

Sexual desire is not a “choice” at all. Rather, it is an event that is internally determined to happen by virtue of our being alive and by way of the biological makeup of our species.

Yet biological determinism goes beyond looking simply at the biological makeup that is common to a given species. In some ways, we are all biologically similar because we are all human beings. In important other ways, however, each individual has a unique biological constitution that makes her or him distinct as a member of the human species. Because of this, each individual’s thoughts, feelings, choices, and behaviors will be somewhat different from those of other people.

Contemporary biological research, for instance, has tended to place a great deal of emphasis on genetics. 17 One implication of this research is that we all think, feel, and behave as we are genetically predisposed or “programmed” to behave. In extreme form, genetic determinism argues that our genes essentially map out a course for us, and we follow that course accordingly.

The choices that we make have, in a sense, already been made by the genetic “instructions” that define and dictate who we are and what we do. More commonly, however, our genes are under- stood to interact with environmental influences, with the environments to which we are exposed “turning on” certain of our genetic predispositions. If there were a gene for violence (a question not yet conclusively answered), those who were genetically predisposed to violence would likely only become violent if they were exposed to certain kinds of experiences that encouraged the predisposition to materialize. 18 Other hypothesized causal forces or biologically deterministic influences include intellectual deficits, brain disorders or defects, biochemical imbalances, hormonal imbalances, blood chemistry Chapter 3 • Free Will and Moral Responsibility51 disorders, allergens, as well as vitamin and mineral deficiencies and dietary concerns. 19In recent years, researchers in the natural and social sciences have looked at each of these in an effort to under- stand various forms of deviant (and presumably immoral) behavior, including crime, homosexuality, and mental disorder. 20If these behaviors and conditions are a product of biological forces, then they are not or are not exclusively a product of free will (i.e., they are not freely chosen). Consequently, as we will discuss shortly, we are forced to rethink traditional understandings of personal and social responsibility, as well as reward and blame for one’s conduct (see Box 3.2). PSYCHOLOGICAL DETERMINISM The logic of psychological determinism is similar to that of its biological counterpart. The idea is that our choices and subsequent actions are largely determined to occur as a function of our particular psychological makeup and tendencies, and/or mental events and processes that occur beyond the level of conscious awareness and over which we have no (or very little) control. 21Our psychological makeup and tendencies are typically discussed as personality, or the collection of traits, characteristics, and patterned ways of thinking, feeling, and behaving that define us as individuals. Our personalities, in turn, are thought to be deter- mined by a variety of interrelated events and conditions, some of them biological (e.g., the balance of chemicals in our brains), and some of them social and environmental (e.g., parenting practices, the influence of significant people in our lives, our education). For some personality theorists, our characters (or identities) are more or less set very early in the life course. 22 They are shaped or structured by the interaction of biological characteristics and early childhood experiences.

Moreover, they consist of essentially permanenttraits and tendencies that dictate how we think, BOX 3.2 Transmitting Child Abuse Researchers studying rhesus monkeys who were abused and neglected by their mothers during their first month of life found that, as adults, their brains had 10–20 percent less of the neurotransmitter serotonin than those who were not subject to maternal mistreatment. Significantly, they were more likely to be abusive themselves. About half of the monkeys who were exposed to abuse became abusers as adults.

Although not yet studied in human populations, this research could have important implications for how we understand the effects of abuse victimization and the causes of later abusive behavior. While not all people (or monkeys) who are abused as children become abusers as adults, they do so at a much higher rate than those who are not abused. It would seem that abuse can be transmitted from one generation to the next, not by example, but by producing perma- nent changes in the brain. These changes, in turn, also increase the likelihood of aggressive behavior, depression, learning difficulties, and hypersensitivity to perceived threats, to name but a few.• While biology may not be an excuse for criminal and deviant behavior, are the presumed effects of victimization sufficient to warrant special considerations for lawbreakers with confirmed histories of repeated abuse?

• Would we be willing to consider leniency even for child sex offenders with documented histories of sexual abuse?

• Keeping in mind that not all abused children become abusers themselves, if chemical imbal- ances (e.g., serotonin level) can be restored with the use of antidepressant drugs, would it be justifiable to treat child abusers or even abused children involuntarily in an effort to stop the cycle of abuse? Source: Dario Maestripieri, J. Dee Higley, Stephen Lindell, and Timothy Newman, “Low Levels of Neurotransmitter Serotonin May Perpetuate Child Abuse Across Generations,” Science Daily(November 2, 2006). Available at http://www.

sciencedaily.com (retrieved March 14, 2011). 52Part 2 • Metaethics and Moral Psychology feel, choose, and act. We of course choose neither the characteristics nor the experiences. In the extreme, we might argue that we are predetermined to think, feel, and react in certain ways about and to particular things, and we are predetermined to make specific choices in certain situations.

The thoughts and feelings we have and the choices we make are not products of free will or rational decision-making, but are causedby our existing psychological makeup.

Many current ideas concerning psychological influences on choices and behaviors stem, in some fashion, from the seminal work of Sigmund Freud (1856–1939). For Freud, many of the men- tal events and processes that influence our thinking, feeling, and acting happen on an unconscious level. That is to say, at any given moment there is much happening within our minds of which we are unaware and over which we have no control. These events and processes, in turn, have a profound, deterministic influence on what happens consciously. For Freud and many others working within the psychoanalytic tradition of psychology, free will is nothing more than an illusion—our person- alities are formed for usvery early in our lives, and the mental events and processes that influence us happen unconsciously, beyond our control. Even infants display personality characteristics, leading many to believe that traits such as shyness and aggressiveness are largely inherited and thus determined for us—particularly when environmental factors encourage the expression of those characteristics. What makes psychological determinism on the whole similar to biological determin- ism is that ideas such as personality structure and unconscious mental processes are references to influences that affect us in ways that significantly limit our capacity for free will. Much like we cannot choose our genetic makeup or the balance of hormones in our bodies, we also cannot choose our parents, the economic environment in which we were raised, the quality of teachers we had over the course of childhood, the workings of our unconscious minds, and so forth. Arguably, each of these things has a profound impact on our unique way of thinking, feeling, choosing, and acting, yet none of them is a result or function of conscious choices that we deliberately have made.

External Factors In contrast to internal variations of determinism, external determinism looks to influences outsideof us that shape and influence our thoughts, feelings, choices, and behaviors. These external influences are many and varied. They can be socializing influences such as parenting, education, religion, and peer influence; they can stem from cultural dynamics such as stereo- types, discrimination, prejudices, social role expectations, and the various demands made by norms, beliefs, and values of cultures and subcultures. Additionally, we can be influenced by structural or institutional forces and behaviors, including the media, the system of education, or the economy (see Box 3.3). Finally, ecological forces such as the neighborhood in which one lives, population density, and even the weather are external variables that serve to influence our everyday thoughts, feelings, and behaviors. If, as researchers have suggested, there is an important correlation between population density and aggressive/violent behavior (see Box 3.4), does living in overcrowded conditions limit expectations of self-control? If instances of urban violence were shown to be a product of overcrowded living conditions, would we be willing to agree that such offenders were less morally and, thus, criminally responsible for their actions?

Generally speaking, the idea of external determinism encourages us to recognize that there are numerous external factors that work to structure or shape our personal lives, thereby limiting our behavioral alternatives (and, consequently, freedom). Additionally, it is important to keep in mind that these various factors can work simultaneously, in combination with one another, or in conjunction with biological and/or psychological factors. Mental illness, for instance, is a commonly cited psychologically deterministic influence that can significantly limit free will.

We know, however, that poverty, unemployment, and other social factors are strongly correlated Chapter 3 • Free Will and Moral Responsibility53 with the development of mental illness, such that persons living under these conditions are significantly more likely to develop a mental disorder (and more serious mental disorder) than persons whose living circumstances are more conducive to good mental health and well-being. 23 Moreover, consider how state underfunding of education may result in the recruitment, hiring, and retention of teachers with minimal qualifications. This practice, in turn, can lead to poor school performance, the absence of quality mentoring, pessimistic future outlook and, ultimately, students dropping out of school and turning to street crime. This is not to suggest, of course, that street crime is directly causedby the state’s underfunding of education; instead, it simply suggests that crime might be better understood as a complex interplay of forces, variables, pressures, and so forth than a simple expression of free will. Whether this limits free will to the extent that we are willing to concede that behavior is determined and less subject to moralBOX 3.3 “Mirroring” Violence In 2003, seventeen-year-old Devin Thompson was sus- pected of driving a stolen car and subsequently brought to the Fayette police station in Alabama, at which time he grabbed a gun from an officer and pro- ceeded to shoot and kill two police officers and a police dispatcher. In reference to the incident, attorney Jack Thompson noted, “What has happened in Alabama is that four companies participated in the training of Devin ... to kill three men.” As it turned out, Devin Thompson was obsessed with the video game Grand Theft Auto: Vice City, which depicts police killings.

Reportedly, when later apprehended for the shootings, Thompson told the arresting officers, “Life is a video game. You’ve got to die sometime.” Grand Theft Autois a video game which not only features theft and homicide, but also incorporates vari- ous opportunities to kill police officers and a variety of means of doing so, including decapitation, sniping, and burning to death. Is it possible that repeated exposure to a video game such as this can cause or increase the probability that someone will “snap” and act on violent impulses? Two interesting findings from the neuro- sciences are worth considering. First, the prefrontal cortex—the part of the brain associated with judgment, consideration of future consequences, and impulse control—is not fully developed in teenagers such as Devin (in fact, this part of our brain is not fully developed until we are in our mid-20s to early-30s).

A second, though less conclusive, piece of research suggests a potentially important role for what have been termed “mirror neurons.” These neurons are hypothesized to play a key role in imitative behavior.

Areas of the brain respond in similar ways when watching others engage in behavior as when engagingin the behavior oneself. This may help explain why we become so emotionally affected by sports, pornogra- phy, etc. In some ways, our brains may be responding as if it were we who were engaging in those behaviors.

While the system of mirror neurons may be especially important for human development (e.g., infants brains being primed simply by watching others talk and act) and human morality (e.g., capacities for empathy and human relatedness more generally), it may also help to explain why viewing violence is a reinforcing (and perhaps desensitizing) experience. With this in mind, • Was Devin being “trained” by video game play?

• Was he simply mirroring in reality what the game encouraged him to do in fantasy?

• Would the shootings still have occurred if Devin had not been repeatedly exposed to that type of violence on Grand Theft Auto?

• Does repeated exposure to video game violence by minors in any way diminish culpability for violent crimes? What if the offender were ten years old rather than seventeen?

• Even if we believe Devin to be morally and legally culpable for his actions, is there some sense in which the video game maker, retailer, and/or others should be held accountable? Source: “Lawsuit: ‘Grand Theft Auto’ Led Teen to Kill,” FoxNews.com(February 16, 2005); David Walsh, “Violent and Explicit Video Games: Informing Parents and Protecting Children.” Testimony submitted to the U.S. House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection. Available at http://archives.energy- commerce.house.gov/reparchives/108/Hearings/06142006 hearing1921/Walsh.pdf (retrieved July 28, 2011). 54Part 2 • Metaethics and Moral Psychology condemnation remains a matter of debate. Even though the influence of such circumstances and conditions may not suggest that free will is eliminated, it perhaps does suggest that we should pay more than passing attention to the ways in which choices and actions can be shaped and constrained, as well as the implications of such constraints for moral and legal responsibility.

Soft Determinism Is it possible that our choices and behavior are partly determined and, simultaneously, partly a product of free will? Many philosophers and social scientists have come to prefer the ground that lies in between—the gray area between free will and determinism. Very few people are prepared to give up the idea of free will altogether, and very few people would claim that biological, psychological, and social forces do not, to at least some extent, influence the choices we make and the actions in which we engage. BOX 3.4 Territoriality, Critical Mass, and Prison Violence As an example of the ways in which human behavior might be influenced by biological, psychological, and sociological forces, consider the hypothesized impor- tance of interpersonal space. In the mid-twentieth century, research on “territoriality” raised some impor- tant questions about the relationship between space and animal behavior. Some animals characteristically establish a “territory”—an area of personal space which they will instinctively and aggressively defend if violated by unwelcome others. Researchers found that rats, having been enclosed in a cage with other rats, would instinctively seize areas of the cage (i.e., personal territories). As more and more rats were introduced into the cage, the rats already in the cage became less willing to give up portions of their space. Importantly, when a certain level of crowding was reached, the rats reacted aggressively. What was suggested by this area of research is that there exists a critical mass—a sort of maximum occupancy for a given space. Once critical mass is reached, any additional rats (or, theoretically, people) will tend to respond with aggression and violence.

Although the implications of territoriality and critical mass for human behavior are less clearly established, this research is commonly referenced in studies examining the effects of urban overcrowding.

Hypothetically, the absence of sufficient personal space and lost sense of personal control and freedom that accompanies living in overcrowded conditions con- tributes to physical and psychological deterioration, and perhaps to increased levels of aggression and violence(almost universally, for instance, rates of physical violence are highest in geographical areas that are most heavily crowded).

With the hypothesized link between critical mass and aggressive behavior in mind, consider the setting of prisons. When prisons are filled beyond their capacity—both in terms of the numbers in the general population and within individual cells—correctional administrators worry about increases in aggression and violence. In fact, both overcrowding and violence are among the most significant problems facing many correctional institutions today. Connecting the research described above with the noted correctional problems, think about the following:

• If human beings are, like many other animals, biologically inclined to react defensively and aggressively to invasions of personal space, how might territoriality and critical mass help account for the problem of prison violence?

• What implications might this research have for establishing and maintaining controlwithin prisons and jails?

• What implications might this research have for establishing and maintaining humane conditions within correctional settings?

• If violence and other correctional problems are at least partly a function of overcrowded condi- tions, what—if any—moral responsibilities do policy-makers and prison administrators have for reducing overcrowding? Chapter 3 • Free Will and Moral Responsibility55 In between the idea that natural and human worlds are entirely subject to the laws of causation (referred to as hard determinism) and the notion that we have absolute free will (referred to as libertarianism) lies a third possibility. 24Often referred to as soft determinism, this middle ground position argues that while many elements of our world are determined, we are nevertheless free in other respects. Soft determinists do not deny that the laws of causation are operative in the natural world, or even to some degree in the human world, but that the reality of causation does not eliminate the existence of free will. This position recognizes the importance of causal influences, but maintains a perspective on human nature and behavior that allows for the existence of free will and moral responsibility. 25 Many philosophers and social scientists who subscribe to soft determinism assume that we have some freedom of choice and action, but that choices and courses of action can be limitedin some important ways. To illustrate, a person with an I.Q. of 60 cannot become a world-renowned physicist. 26 However,within limits of what is physically, psychologically, and socially possible, human beings enjoy the freedom to choose and act among several alternatives. Thus, in any given instance, we have whatever breadthof choice is granted by our biology, psychology, culture, social background and position, environmental circumstances, and the intricacies of the situation at hand. This breadth can be greater or lesser, depending upon any or all of these factors. However, what becomes important for determining moral responsibility is the degree of influencespecific causal forces had and the extent to which free will was constrained in a given situation as a consequence of these influences. Importantly, though, proponents of soft determinism maintain that the phenomenon ofchoiceis always subject to somefreedom and thus never completely preordained. While our biological and psychological constitutions, as well as our social background and environment, have a significant impact on our patterns of thinking, feeling, choosing, and acting, we maintain at least some capacity to shape our moral character and to make morally responsible and desirable choices. This capacity to shape our moral character, to be good and engage in right action, is central to morality. As well, the presumption of at least some degree of free will is what provides justification for the study of ethics. FREE WILL, DETERMINISM, AND THE CRIMINAL JUSTICE SYSTEM The moral significance of determinism derives from the lack of freedomit implies. Morality clearly involves concepts such as choice, voluntariness, intention, and responsibility. However, if hard determinism is true, our thoughts, feelings, and behaviors are not freely chosen; rather, they are determined by prior conditions and events either within us, outside of us, or some combina- tion of the two. Hard determinism eliminates the possibility that we could have selected an alternative course of action than what we did. The choices we make and the actions we take are the onlyones we couldhave made or followed in light of the influences acting upon us. Even if we feelthat our choices are voluntary and our actions are intentionally chosen, harder versions of determinism hold that the intentions that lead to our choices are themselves determined and, thus, the choice itself is determined. Simply put, under more extreme variations of determinism, our behavior is largely beyond our control.

Being able to choose, however, is an essential component of moral responsibility. If deter- minism were true in its more extreme form, none of us could act or can act other than the way we did or will. In this regard, none of us can be held morally responsible for our choices or actions because we could not have done otherwise—our choices and actions happened to usrather than being a product of intention and choice. How, we would have to ask, can any person be held responsible—morally, legally, or both—for actions the individual undertook based on choices the individual was predetermined to make? What about choices and actions that may not have 56Part 2 • Metaethics and Moral Psychology been necessitated, but were significantly influenced by biological, psychological, and/or social forces acting upon the person who made or engaged in them (see Box 3.5)? These questions are not only central to ethics and morality, but are also a focal point of criminal law.

Criminal Responsibility Since antiquity, responsibility, blame, and punishment have been reserved for voluntary actions. 27 Criminal law determines guilt and innocence on the basis of a person’s intentions, rather than solely on the basis of his or her actions (although the latter are necessary for a crime to have occurred).

Mens rea(“guilty mind”) is a necessary element of criminal responsibility. It requires that a person knowingly and intentionally commit a legal offense. In the U.S. system of jurisprudence, we do not blame or punish people for accidents, for (most) self-defensive actions, for crimes committed under duress, or for crimes committed by persons incapable of making rational choices—of knowingly and willingly choosing and acting (e.g., the legally insane, children).

The assumption underlying the idea of criminal responsibility is that any “guilty” offender could have done otherwise. We assume that persons freely chose to commit the offenses that were performed and that such persons did have alternative courses of action that they could have BOX 3.5 The Case of Aileen Wuornos Aileen Wuornos was raised by her grandparents, Britta and Lori Wuornos. She believed that they were her biological parents until, at the age of twelve, she was told otherwise. During her early childhood, she was often ridiculed by her grandfather. He claimed that “she was no good”; that “she didn’t deserve to live in the Wuornos household”; and that “she was stupid.” Aileen’s grandmother was very cold and dis- tant, displaying little warmth and affection toward her granddaughter. Several reports of sexual abuse at the hands of Aileen’s grandfather and her brother, Keith, were also noted. By all accounts, Aileen experienced no positive attachments, no secure bonding, with either of her parental figures.

At the age of nine, Aileen began prostituting herself to a number of neighborhood boys for loose change and cigarettes. This continued for several years into early adolescence. During this time, Aileen was frequently truant or tardy at school, got into fights with other children, and was generally disruptive. Early alcohol and marijuana use occurred during this period as well. Eventually, Aileen left school for good. She found herself increasingly involved in criminal activity including stealing, auto theft, forging bad checks, and, ultimately, murder. In fact, she was convicted of murdering seven men. Aileen alleged that she was thevictim of sexual abuse in each of these instances. Aileen Wuornos was executed in Florida in 2002.

• Given her life circumstances, would you argue that Aileen’s behaviors were ultimately a product of free will? If so, to what extent could we claim that her freedom was at least limited by factors beyond her control? To what extent might her “choices”—to be promiscuous, to engage in underage drinking, to act crimi- nally—have been determined for her, given the sexual and verbal abuse to which she was subjected as a child?

• If Aileen’s behaviors were, at least in part, a product of her early life experiences and forma- tive development, should she still be regarded as morally blameworthy and legally accountable for her actions? If so, should she be sentenced and punished in the same manner as all other murderers? How would you respond to the ethical question posed by the possibility of executingher? Source:Stacey L. Shipley and Bruce A. Arrigo, The Female Homicide Offender: Serial Murder and the Case of Aileen Wuornos(Upper Saddle River, NJ: Prentice Hall, 2004). Chapter 3 • Free Will and Moral Responsibility57 chosen to follow. Crimes, then, are thought to reflect situations in which offenders “could reasonably have been expected to have conformed [their] behavior to the demands of law.” 28 Criminal law allows for a variety of circumstances under which mens rea is thought not to be present; that is, conditions or circumstances under which persons could not reasonably have been expected to conform to the law. In other words, criminal law recognizes that for some people acting within some circumstances, free will is largely absent or, at least, sufficiently diminished so as to reduce legal responsibility. In a sense, criminal law has always subscribed to a version of soft determinism whereby it presumes and is founded upon the existence of free will and the presumption of freely chosen actions, but nonetheless recognizes the ways in which causal influences can at times constrain free will. The most recognized (and widely accepted) of these influences include circumstances that require a person to choose or to act a certain way in a given situation, and biological/psychological factors that substantially limit or entirely eliminate the possibility of free choice and/or self-control.

Most often, these circumstances or conditions are raised as part of a criminal defensethat seeks to absolve the defendant of moral and legal responsibility for the individual’s actions.

Defenses are sometimes grouped into two distinct types: (1) the criminal law recognizes a number ofjustificationsfor violating legal prohibitions—circumstances that justifyotherwise wrongful and morally blameworthy actions; and (2) a number ofexcuses, or circumstances under which we excusean offender from her or his criminal conduct.

Justifications include self-defense, defense of others and property, and the notion of necessity that we were exposed to in the previous chapter. Embedded within each of these justifications is the assumption that there exist some situations that may require or compel a person to violate the criminal law, often in order to avoid some greater evil that may result from not doing so. For example, can a person engaged in self-defense from imminent harm truly be said to have a “choice” as to how to react to the situation? If free will is not eliminated under these types of circumstances, most of us would agree that it is at least constrained to the degree that the person is considerably less blame- worthy on moral and, thus, legal grounds than if the constraint were not present.

However, excuses are of a different nature. The assumption underlying excuses for criminal conduct is that, although the person violated the law, there is some condition or circumstance in light of which we should not hold the person morally and legally responsible, including circumstances or conditions such as age and soundness of mind. We do not, for instance, hold children morally and legally responsible for criminal acts because they do not have sufficiently developed cognitive capacities for moral decision-making. Other recognized excuses include mistake of fact (e.g., genuinely mistaking someone else’s coat for your own and, consequently, “stealing” it), involuntary intoxication (e.g., acting under the influence of alcohol or drugs that were not voluntarily consumed), and what is perhaps the most notable excuse—insanity.

In other cases, the criminal law allows for biological, psychological, and/or social influences to be considered when making determinations as to the appropriate type or amount of punishment to assign to a given offender. Sometimes referred to as mitigating circumstances, the criminal law recognizes the possibility that certain circumstances surrounding the commission of a crime can reduce moral responsibility and, consequently, can reduce the severity of punishment. In such cases, defendants may have acted under duress, may have been influenced by other persons, may suffer from a disabling mental illness, or may experience other emotional limitations. Significantly, the presence of mitigating circumstances, though important for reducing moral responsibility, does not eliminate guilt. What is presumed is that while these determining influences were present, the criminal act itself was ultimately a freely chosenaction. The notion of mitigating circumstances is also very much consistent with the assumptions ofsoft determinism. 58Part 2 • Metaethics and Moral Psychology In sum, the criminal law requires that to be subject to punishment, an act must have been carried out under the guidance of free will; and in practice, the legal system tends to presume that criminal behavior isthe product of “a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.” 29To the degree that determinism is true, this reasoning becomes problematic and this presumption should be questioned. Although the criminal law currently recognizes a number of limitations on free will, there are perhaps many other biological, psychological, and/or social conditions and circumstances that arguably restrict free will and for which the law permits no diminished responsibility. As former appellate judge David Bazelon suggested, we would have to consider “whether a free choice to do wrong can be found in the acts of a poverty-stricken and otherwise deprived black youth from the central city who kills a marine who taunted him with a racial epithet,” one who steals food to feed his family, or the drug addict who buys drugs only to fulfill the demands of his addiction. 30 Treatment, Punishment, and Implications for Criminal Justice Policy The free will versus determinism debate has implications not only for criminal responsibility, but also for how we respond to persons who violate the criminal law and for the approaches or strate- gies we take to reduce crime. The former entails a consideration of treatment and punishment and their respective effects on offender recidivism. The latter involves an assessment of the type of criminal justice policy that should guide decision-making.

Addressing the questions regarding (1) what measures to take to reduce crime (i.e., criminal justice policy) and (2) how best to respond to criminal offenders (recidivism), in part is a function of whether we generally subscribe to the notion that those who violate the law freely choose to do so, or whether we generally understand human behavior to be determined by personal and/or social characteristics. One noted implication of free will is that reducing or preventing crime might best be achieved by making criminal behavior a less attractive alternativethan its law-abiding counter- part. If we presume that people freely choose their actions from among a number of alternatives, then making crime less attractive would function to encourage law-abiding choices.

Traditionally, questions of how best to make crime less attractive have received considerably more attention than how to make legality more appealing. Early social and legal philosophers such as Cesare Beccaria (1736–1794) and Jeremy Bentham (1748–1832) were among the first to offer recommendations along these lines. For instance, Beccaria suggested that criminal punishments be made more certain, swift, and, to a minimally necessary extent, severe in an effort to ensure that the costs of criminal activity outweigh its benefits. 31 More recent criminologists working from within rational choice and economic models of crime have made similar arguments, presuming that criminal behavior is a product of free, rational choice and, consequently, that it can be deterred by instilling in potential lawbreakers a fear of consequences. 32Deterrencerefers to an attempt to instill in citizens (either individual lawbreakers or the public at large) a fear of the consequences for violating the law. The fear of consequences (i.e., legal punishment), in turn, is thought to reinforce compliance with the legal order. 33What is important is the policy assumption—founded on the notion of free will—that we are more likely to choosethe moral and/or legal alternative if we are sufficiently afraid of what might happen to us if we do not.

Interestingly, some argue that all of this ignores or neglects to consider the possibility that crime is not simply a function of rationally calculated choice. Indeed, many other philosophers and criminologists have contended that there are a variety of both internal and external influences that can significantly limit either our rationality or the choices we have available. 34 Consequently, following this line of analysis, efforts to prevent crime through deterrence will be largely ineffective for a significant portion of the population. Even among those for whom deterrence is generally effective, Chapter 3 • Free Will and Moral Responsibility59 it will likely not be so in all situations. In other words, even those who avoid criminal behavior because, for example, of a fear of going to prison, getting a ticket, or attending drug court may at some point be faced with circumstances or situations in which stronger influences will prevail.

Social scientists who subscribe to a deterministic conception of human behavior acknowl- edge various limitations on free will and generally argue for the futility of attempting to alter behavior through rewards and punishments (i.e., efforts to make certain choices more attractive).

In the context of crime and justice, these arguments translate into suggestions that crime control policies aimed at reducing transgressions through reforming the criminal justice system (e.g., tougher penalties, more police, or growing prisons) are equally futile. Instead, determinism implies policies that seek to resolve the underlying causes of crime. Specific policy implications will of course vary depending on whether those causes are presumed to be biological, psychological, sociological, or some combination of them. Proponents of biological determinism, for instance, have advocated everything from extreme measures such as selective breeding, surgical procedures, and selective incapacitation(i.e., identifying and incapacitating future criminals before they have an opportunity to break the law) to less invasive techniques such as dietary therapy or drug therapy (see Box 3.6). Advocates of psychological determinism, in turn, have been more supportive of treatment and rehabilitative efforts such as educational training, vocational training, therapy, substance abuse counseling, and other methods that address the underlying psychological causes of criminal behavior. Finally, social determinism implies the necessity of larger and more widespread social and institutional reforms that seek to promote equal opportunity, the end to prejudice and discrimination,the revitalization of neighborhoods and communities, and other efforts intended to rectify underlying social and economic causes of crime. 35 BOX 3.6 Vaccinating for Substance Use The abuse of legal and illegal substances is often described as one of the most significant social prob- lems facing the United States. Though legal and policy initiatives to control substance use have taken many forms, none has proven very effective. Some have suggested that many such initiatives fail because they do not account or control for the fact that drug use is demand driven. In other words, people wantto use drugs. To effectively remedy the social problem of illegal drug use, we need to find ways to reduce the appeal of and demand for drug-induced “highs.” Perhaps some help is on the way.

Researchers have recently discovered a “vac- cine” which, at least in mice, has the effect of limiting the action of cocaine on the brain. The vaccine allows some cocaine molecules to be “captured” before they reach the brain. In the study, about 40 percent of administered cocaine was prevented from reaching the brain in animals that had been vaccinated, resulting is cocaine having less of an impact and ultimately being less rewarding. Although the cocaine vaccine has not yet been tested on human beings, it is likely only acouple of years away. This potentially raises several interesting questions with moral implications.

• Researchers have suggested that the vaccine is perhaps best suited for persons dependent upon cocaine who want and are ready to quit.

However, would it be morally permissible to forcibly administer the vaccine to persons with cocaine dependencies?

• In cases in which convicted criminals have cocaine dependencies, could the vaccine be an effective component of rehabilitation? A morally appropri- ate component of a person’s sentence?

• What, if any, moral concerns might be raised if one day in the not-too-distant future we began vaccinating infants for a variety of illegal drugs (assuming it became possible), thereby substan- tially reducing the likelihood that they would one day become addicted to or dependent upon harmful substances? Source: Nathan Seppa, “Cocaine Vaccine Looks Promising,” Science News(February 12, 2011). 60Part 2 • Metaethics and Moral Psychology Key Terms and Concepts culpability 46 demonology 45 determinism 46 deterrence 58 excuses 57feeling of freedom 47 free will 46 hedonism (hedonistic) 48 justifications 57 mens rea 56mitigating circumstances 57 personality 51 selective incapacitation 59 soft determinism 55 Discussion Questions 1.Police officers typically are called upon to exercise discretion when on patrol. Given the chapter’s observations on choice and free will, in what ways or in what situations might the choices of officers be constrained?

2.Please explain the difference between determinism and indeterminism. How is the notion of causality related to these concepts? Do you believe that the choices you make as a student, employee, boyfriend/girlfriend, etc., are determined? Mindful of the determinism versus indeterminism distinction, are the choices of those who break the law different from your own? If so, how?

3.Please list four examples of internal determinism and four examples of external determinism. Do you believe that “biology” or “psychology” determines the choices that people make? If so, to what extent?

Using the example of gang membership, how mightbiological or psychological determinism help account for this choice?

4.Medical professionals and researchers have suggested that, in at least some cases of substance use, people are in effect “self-medicating” through their use of drugs. An argument might be as follows: in some people, brain receptors for the neurotransmitter dopamine are less sensitive than normal. As some drugs act to increase the release of dopamine, users of these drugs might be, in effect, self-medicating to feel “normal” (i.e., restoring a neurochemical balance through the use of drugs). Would an underlying neurochemical imbalance more closely resemble a “cause” of illicit drug use than a freely chosen reason?

Would it lessen culpability for drug use? Explore this argument.

5.How does the concept of “soft determinism” help us understand mens rea and criminal responsibility?

Summary This chapter reviewed the way in which determinism and freedom inform ethical behavior. These matters are central not only to understanding the metaphysical underpinnings of ethics but also to policy, practice, and decision-making in criminal justice. However, more than identifying several important philosophical principles as a basis to understand these doctrines (e.g., choice, causality, free will, incompatibilism), this chapter explained the sort of tensions that are inherentin ethical issues impacting the police, court, and correc- tional systems, including the problem of responsibility within the criminal law. In the next chapter, we turn our attention to the problem of relativism—a critical ethical issue with important consequences for numerous thorny debates and controversies in criminal justice, as well as for the choices and behaviors of individuals and groups operating within police, court, and correctional systems. Chapter 3 • Free Will and Moral Responsibility61 Endnotes 1. Andrea Peyser,Mother Love, Deadly Love: The Susan Smith Murders(New York: HarperCollins, 1995).

2. Jerry Samet, “Foreward.” In Eliezer Sternberg (Ed.), My Brain Made Me Do It: The Rise of Neuroscience and the Threat to Moral Responsibility(New York:

Prometheus, 2010).

3. Christopher R. Williams and Bruce A. Arrigo, “Philosophy, Crime, and Criminology: An Introduction.” In B. A. Arrigo and C. R. Williams (Eds.),Philosophy, Crime, and Criminology (Urbana–Champaign, IL: University of Illinois Press, 2006).

4. Stephen Pfohl,Images of Deviance and Social Control: A Sociological History(New York: McGraw- Hill, 1985).

5. Vincent Ruggiero,Thinking Critically About Ethical Issues, 5th ed. (Boston, MA: McGraw-Hill, 2001), pp. 124–125.

6. Ted Honderich,How Free Are You? The Determinism Problem(New York: Oxford University Press, 2002), p. 2; see also, Gary Watson (Ed.),Free Will,2nd ed.

(New York: Oxford University Press, 2003).

7. Bruce A. Arrigo,Criminal Behavior: A Systems Approach(Upper Saddle River, NJ: Prentice Hall, 2006).

8. Donald Borchert and David Stewart,Exploring Ethics(New York: Macmillan, 1986), p. 30.

9. John Hospers,Human Conduct: An Introduction to the Problems of Ethics(New York: Harcourt, Brace & World, 1961), p. 502; see also, Borchert and Stewart, Exploring Ethics,p.34.

10. Ibid.

11. Borchert and Stewart,Exploring Ethics,p.35; Timothy O’Connor,Agents, Causes, and Events:

Essays on Indeterminism(New York: Oxford University Press, 1995); Karl Raimund Popper,The Open Universe: An Argument for Indeterminism (London, UK: Routledge, 1992).

12. Jean-Paul Sartre,Being and Nothingness,Hazel E.

Barnes (trans.) (New York: Routledge, 2003).

13. Borchert and Stewart,Exploring Ethics, pp. 35–36.

14. Arrigo,Criminal Behavior,pp. 168–189.

15. Stuart Henry,Degrees of Deviance: Student Accounts of Their Deviant Behavior(Salem, WI: Sheffield, 1990), pp. 145–146.

16. Laurence Tancredi,Hardwired Behavior: What Neuroscience Reveals about Morality(New York:

Cambridge University Press, 2005); Bella M. DePaulo,Matthew E. Ansfield, Susan E. Kirkendol, and Joseph M. Boden, “Serious Lies,”Basic and Applied Social Psychology, 26 (2–3), 147–167 (2004).

17. Ted Peters,Playing God?: Genetic Determinism and Human Freedom,2nd ed. (New York: Routledge, 2002).

18. For an overview, see Matt Ridley,The Agile Gene: How Nature Turns on Nurture(New York: Perennial, 2004).

19. Werner Einstadter and Stuart Henry,Criminological Theory: An Analysis of its Underlying Assumptions (Forth Worth, TX: Harcourt Brace, 1995), p. 84.

20. Richard J. Hernstein and James Q. Wilson,Crime and Human Nature: The Definitive Study on the Causes of Crime(New York: The Free Press, 1998).

21. Adrian Raine,The Psychopathology of Crime: Criminal Behavior as a Clinical Disorder(San Diego, CA: Academic Press, 1993).

22. See, e.g., Susan C. Cloninger,Theories of Personality:

Understanding Persons,4th ed. (Upper Saddle River, NJ: Prentice Hall, 2003).

23. Jennifer L. Bullock and Bruce A. Arrigo, “The Myth That Mental Illness Causes Crime.” In Robert M. Bohm and Jeffrey T. Walker (Eds.),Demystifying Crime and Criminal Justice(Los Angeles, CA:

Roxbury Press, 2006), pp. 12–19.

24. Robert Young, “The Implications of Determinism.” In P. Singer (Ed.),A Companion to Ethics(Malden, MA: Blackwell, 1993).

25. Ibid.; Honderich,How Free Are You?

26. Charles A. Baylis,Ethics: The Principles of Wise Choice (New York: Henry Holt & Co., 1958), pp. 28–33.

27. Williams and Arrigo, “Philosophy, Crime, and Criminology,” pp. 3–15.

28. David Bazelon, “The Morality of Criminal Law.” In Paul Leighton and Jeffrey Reiman (Eds.),Criminal Justice Ethics(Upper Saddle River, NJ: Prentice Hall, 2000), p. 31.

29. Ibid.

30. Ibid.

31. Cesare Beccaria,On Crimes and Punishments,Henry Paolucci (trans.) (Indianapolis, IN: Bobbs-Merrill, 1963).

32. See, e.g., Liliana Pezzin, “Earning Prospects, Matching Effects, and the Decision to Terminate a Criminal Career,”Journal of Quantitative Criminology, 11, 29–50 (1995); Robert A. Rosenthal, “Economics and Crime.” In S. Guarino-Ghezzi and A. Javier Trevino (Eds.),Understanding Crime: A Multidisciplinary 62Part 2 • Metaethics and Moral Psychology Perspective(Cincinnati, OH: Anderson Publishing, 2006), pp. 61–90; James Q. Wilson,Thinking About Crime(New York: Vintage Books, 1983), p. 260.

33. Daniel Nagin and Greg Pogarsky, “Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence,”Criminology,39(4), 865–892 (2001).

34. See, e.g., Teresa J. Neyhouse,Positivism in Criminological Thought: A Study in the History and Use of Ideas(New York: LFB Scholarly Publishing, 2002).35. Bruce A. Arrrigo, Social Justice/Criminal Justice: The Maturation of Critical Theory in Crime, Law, and Deviance (Belmont, CA: Wadsworth, 1999); Michael J. Lynch, Raymond J. Michalowski, and Byron Groves, The New Primer in Radical Criminology:

Critical Perspectives on Crime, Power, and Identity, 3rd ed. (New York: Willow Tree Press, 2000); Martin D. Schwartz and Suzanne E. Hatty, Controversies in Critical Criminology (Cincinnati, OH: Anderson Publishing, 2003). 63 4 Is Morality Relative?

The Variability of Norms and Values Thirty-two-year-old Nura Asasah, single and pregnant by five months, watched and waited in fright- ened anticipation as her father welcomed around thirty guests to their home. Once greeted, the guests proceeded to form a circle around Nura, while her father asked her to choose between a rope he was holding in one hand, and an ax which was in the other. Nura selected the rope. Her father then proceeded to pin her to the floor by placing his foot on her head, and tied the rope around her throat.

As the audience reportedly cheered him on, he strangled Nura to death. Nura, all the while, did little to resist or protest the attack. Shortly thereafter, Nura’s mother and sister served coffee to and visited with the guests. Once the guests had left around midnight, Nura’s father and brother sought the village chief and indicated that the “family’s honor had been restored.” 1 Tina Isa, a sixteen-year-old Palestinian immigrant and St. Louis resident, was murdered by her father in 1989 for being employed without the permission of her parents and being involved in a romantic relationship with an African American male.

While other family members watched, Samaira Nazir, a twenty-five-year-old Pakistani woman living in Great Britain was stabbed to death by her brother and cousin as her mother held her down.

Samaira had “brought shame” upon her family by refusing to marry according to her family’s arrange- ment, desiring to marry instead a man with whom she had fallen in love. 2 Stories like Nura, Tina, and Samaira’s number in the many thousands per year. In fact, the United Nations Commission on Human Rights estimates that there are over five thousand such honor killings each year. Most of these are planned, premeditated killings of family members (most often women and girls) whose behavior is judged to have brought shame or dishonor to the family. The killings are often executed by male relatives and, though not always defined as legal, in many cases they are deemed permissibleacts of violence by cultural tradition. Even where condemned by law, the majority of honor killings go unreported or, at least, unpunished. Why?

Honor killings (also called “karo-kari”) occur within cultures characterized by a deep tradition of male dominance, wherein women are considered the property of male relatives—whether husbands, fathers, brothers, cousins, etc. Because the women embody the honor of the family, “deviant” behavior such as having sex outside of marriage, seeking divorce, refusing an arranged marriage, and even being the victim of rape are considered insults to family honor. In many cases, the cultural tradition is so entrenched and widely shared as to be part of the basic cultural worldview and normative order. Consequently, the law may allow for violence or call for reduced sentences (where prosecutions occur), and law enforcement may view such acts of violence as strictly “private matters”—those with which the police should have no involvement.

By the standards of the majority of the civilized world, the honor killings described above would be regarded as immoral and almost certainly criminal. Yet simply because “most people” share certain standards, beliefs, or behavioral norms does not necessarily mean that they should be shared by all people or that they are more “right” than alternative beliefs or practices. Other than the fact that “most people” believe honor killings to be morally wrong, on what grounds (if any) can we judge them to be so? Since values, beliefs, and practices are often created and shared by people of particular social groups at particular points in history, perhaps they have merit and can be evaluated or judged only within the historical and cultural contexts within which they exist.

Whether “permissible” killings, torture, or less inflammatory practices, judging human behavior requires us to make reference to values and principles that “we” believe to be morally desirable. The values and principles that we feel to be morally desirable, however, may differ signifi- cantly from those that other people (e.g., those of other cultures, subcultures, geographical regions, historical eras) believe are acceptable or desirable. For this reason, some moral philosophers have argued that morality is something of a local phenomenon that emerges within particular and unique contexts and that can only be judged from within those contexts. We cannot make a sweeping claim about the immorality of racism for instance. Although harboring racist beliefs and attitudes may result in being ostracized and verbally abused within some cultures or social groups, in others it may be deemed acceptable and even desirable. Further, it might be argued that because there is no basis for determining racist beliefs to be objectively “wrong,” we are prohibited from imposing judgment upon those cultures, subcultures, or social groups wherein they are held.

If you agree that in principle human belief and behavior cannot be judged wrong in any absolute sense, you might share in the perspective known as relativism, including one or more of its several forms. If this logic seems troublesome to you, however, then you are not alone.

Others argue that moral convention does not equal moral truth. Simply because certain values, principles, and standards of behavior are normal within a given culture or time period does not necessarily make these values, principles, and standards “right” or even defensible in the moral sense. Difference—especially differences in values, beliefs, and practices—is a characteristic feature of the human social world. Ethics asks us to critically consider those morally relevant differences and the degree to which they are desirable or undesirable, beneficial or harmful, acceptable and tolerable, or reprehensible and worthy of intervention.

OBJECTIVISM AND UNIVERSALISM IN ETHICS The key ethical question derived from the idea of relativism is whether there are absolute moral values and universal moral principles, or whether moral values and principles are relative to time, place, and, perhaps, person (referred to as subjectivism—each person has her or his own truth, none being more or less right than any other). 3Relativismas an ethical position argues that morality is relative to particular cultures, time periods, and even subcultures within cultures and time periods. To suggest that morality is relative is to acknowledge that morality variesfrom culture to culture, time period to time period, and that the morality of one culture at one time is or should be applicable only to members of that culture at that time. What culture “A” believes to be moral ismoral; and what culture “B” believes to be moral also ismoral—even if the two beliefs contradict one another. Because different social groups have different normative beliefs, “moral” actions are simply those that are in agreement with the norms of a given social group. 4 64Part 2 • Metaethics and Moral Psychology Chapter 4 • Is Morality Relative? The Variability of Norms and Values65 Before looking at the claims of relativism in more detail, it might be helpful to first consider several other concepts against which it is often contrasted. Relativism can be contrasted with ethical objectivism(or ethical absolutism) and ethical universalism. 5The first two terms are often used interchangeably, and the third follows from the others. The claims made by ethical objectivism and universalism may shed some light on why relativism has been so attractive to a good number of people—both in philosophical and social scientific circles, as well as within the general public.

Ethical Objectivism The claim ofobjectivityis a knowledgeclaim. To say that something is “objective” is to say that its quality or character lies within itself and, consequently, can be “uncovered” by any observer who knows where and how to look. Typically, when we say that something is “objectively true,” we are making a claim that “true” knowledge of that thing is possible and, further, that everyone should be able to agree on that truth. Objectivity is contrasted with the idea that different observers may have different perceptions, thoughts, feelings, or experiences with something. For example, if I were to say that it is “objectively true” that the desk I am sitting at is brown, I am making a claim that it actually isbrown and that everyone else who perceives the desk shouldalso agree that it is brown. If a different observer perceives the desk to be red, she or he is simply wrong. This is because the “true” color of the desk lies within the desk itself, rather than in the perception of the people who are looking at it. It is possible, of course, that everyone who looks at the desk perceives it to be red when it is actually brown. In that case, we would all be wrong. All objectivism suggests is that the desk has a “true” or actual color and that it is an unchanging property of the desk itself.

Ethical objectivismtakes the argument just used to describe the color of the desk and applies it to morality. To suggest that certain acts are objectively wrong(i.e., immoral) is to suggest that the quality of evil or the immorality of that act lies within the act itself. That is to say, the act is wrong regardless of who is doing it and when, where, and how it is being done. Another way to say that something is objectively wrong or evil would be to say that it is inherentlywrong or evil.

Much like the color of the desk might be regarded as inherently brown, according to ethical objectivism certain acts are, by nature, right or wrong; that is, they “carry” this quality with them wherever and whenever they go. In this sense, certain behaviors always have been and always will bewrong, evil, or immoral. Regardless of how different people perceivethese behaviors, they are eitherright or wrong—they cannot be both!

Ethical Universalism Universalism makes a claim very much related to, and following from, the argument of objectivism. While objectivism holds that “true” knowledge of something is possible,ethical universalismholds that knowledge can and should be appliedto everyone in every similar situation. To say that something is “universal,” is to say that it is—or at least should be—true of all cultures and all time periods. Something that is not universal, in contrast, would be bound in one or more ways (e.g., applicable only to a given culture, time period, situation, person). The notion of universality follows from the idea that things have true, knowable properties or characters.

Because the character of something is inherent in its nature, it has the same character regardless of the individual instance in which it is applied. Every individual instance of something, though seemingly different in many respects, can still appeal to the same general rule that governs or should govern each of those instances. For example, if incest has the property of being morally wrong, then the prohibition against incest is a general rule that is applicable to every situation.

Incest practiced two thousand years ago is no different from incest practiced today; incest 66Part 2 • Metaethics and Moral Psychology practiced within a very small Asian culture is no different from incest practiced within the much larger and very different U.S. culture. Incest has the inherent property of being morally wrong and, as a general rule, we can applythat property of “wrongness” to all people in all situations.

If morality or certain moral principles are universal, we are obligated to treat alike all cases in which that moral principle is relevant. If something has a universal character, that character supersedes all other situational factors. A potential problem with universal notions of right and wrong is that they depend on the extent to which cases are, indeed, alike. To illustrate, we may make a universal claim that “killing is morally wrong.” In doing so, however, we are making a claim that applies equally to all of the following situations: killing animals for sport, killing animals for food, capital punishment, killing in a time of war, killing in self-defense, abortion, and euthanasia.

It might seem, then, that the view, “killing is wrong,” cannot or should not be a universal moral principle. In this case, we must either allow for situational differences (which defeats universalism) or refine our moral principle so that it is applicable in all situations (e.g., “killing people without a morally good reason is wrong” or “killing people for pleasure is wrong”). 6 Importantly, ethical universalism holds that there are objective moral principles and that such principles can and should be applied equally to everyone. The biggest difficulty, perhaps, lies in identifying those objective moral principles. A second difficulty or, perhaps, criticism involves the source of those principles. In other words, whose principles are they? Where do they come from? What makes a particular source of principles an “authority”? If, for example, 99.9 percent of the population believes that abortion is morally wrong, is the fact that 99.9 percent of the population agrees enough to argue that abortion is objectively wrong? Is that population itself to be regarded as an authority or collective “expert” on matters of morality? Elsewhere in this chapter (see the section on pragmatic relativism), we will demonstrate that the majority opinion can be, and oftentimes is, mistaken or ill-informed, especially on matters of ethics and morality.

If we cannot rely on majority opinion, where do we turn to find the “objective truth” about the morality, for instance, of abortion, capital punishment, flag burning, rape, and incest?

At this point, it may be tempting to turn to theological or religious interpretations of right and wrong to settle the dispute. However, we should keep in mind that we would then have to justify what makes one religion “more right” than another or, even further, what makes any religion “more right” than a belief that is not founded upon religious authority. You should begin to see, then, that both ethical objectivism and ethical universalism run into some formidable difficulties.

It is precisely these difficulties that make relativism such a provocative and attractive alternative when addressing ethical decision-making throughout much of Western civilization (see Box 4.1). BOX 4.1 Crimes Mala in seand Mala Prohibita In discussions of criminal law, wrongful acts are some- times classified as mala in se(“wrong in themselves”) or mala prohibita(“wrong because they are prohibited”).

Crimes that are wrong-in-themselves are objectively and universally wrong—they have always, everywhere been wrong and will continue to be that way. Behaviors such as murder, rape, cannibalism, and incest are common examples of crimes mala in se. In contrast, other behaviorsare considered wrong only because a given society has defined them that way. Crimes mala prohibitaare those that are not objectively or universally recognized as wrong; rather, their wrongfulness varies by time and place. Common examples of behaviors that are wrong only because we have defined them that way include gambling, prostitution, and underage drinking, and other so-called victimless crimes. The idea that there is Chapter 4 • Is Morality Relative? The Variability of Norms and Values67 CONTEMPORARY ETHICAL RELATIVISM Relativism asks us to consider the possibility that there are no“true,” “absolute,” “objective,” or “uni- versal” moral principles, right or wrong actions, good or evil characters, and so fourth. 7No moral sensibilities exist or can exist in unchanging, cross-cultural form. Similarly, we must abandon any search for an ideal ethical system, made up of ideal ethical principles. Rather than appreciating the morality of characters, intentions, actions, and consequences in their own right, it is necessary for us to understand the historical, cultural, subcultural, and, perhaps, personal context within which these all occur. What we find is that while one set of moral values may be “right” in a given time period or within a given culture, these same moral values may not be “right” in a different time period or within a different culture. Yet relativism does not simply acknowledge historical and cultural differences; it suggests that such differences are ordinal. In other words, they are merely different without being “better” or “worse” than one another. It may be the case, then, that all morality is nothing more than convention. Consequently, if we are to say that morality is purely conventional, we are saying that there is no “right” or “wrong,” only what isand what is not. The distinctions made between right and wrong actions, good and evil intentions, are nothing more than an agreed-upon set of values and norms that were created by human beings in a particular cultural and historical context. If this is indeed the case, then we cannot judgeother moral frameworks. Instead, we must merely seek to understand morality as a framework of artificially created conventions that are true to a particular group of people at a given time or moment. 8 If morality can be understood as a set of rules by which human conduct is guided, we must acknowledge that such rules are not the same across time periods, cultures, subcultures, and so on. 9Previous cultures, for example, have engaged in many practices that, by our present stan- dards, would be judged immoral: the ancient Egyptians practiced incest; the ancient Romans practiced infanticide; and Americans practiced slavery. In each case, the people of those cultures were not performing acts that would have been considered immoral by their own standards. Such practices were perfectly in keeping with the beliefs of the practicing people and, in that sense, were perfectly “moral.” In the contemporary United States, racism and sexism were (and, to some degree, still are) common attitudes based on shared beliefs, giving rise to consensual practices. 10 As immoral as such attitudes and practices appear for many of us today, chances are that we, too, would have shared popular sentiments concerning these matters had we been exposed to and nothing inherently or objectively wrong about these types of behaviors implies that they may be acceptable for some people in some places.

• Do you agree that there are some behaviors that are objectively and universally wrong or evil? Other than those suggested above, can you think of other examples of crimes mala in se? Can you think of situations or circum- stances in which murder, rape, or cannibalism would be acceptable? Are there any ways in which culture, time period, or even specific sit- uations might make them less objectively wrong?• Consider the practice of homosexuality. Twenty- five years ago, intercourse between two same-sex and consenting adults was considered criminal. It was also recognized as a diagnosable mental disorder. Today, it is not considered criminal, nor is it a diagnosable mental disorder. How does the notion of moral relativism assist us in under- standing how the wrongfulness of behaviors can be defined differently at different points in the history of a culture? Why might cultural concep- tions of homosexual practices have changed?

Do you believe that homosexuality represents behavior that shouldbe defined as mala in se?

Why or why not? 68Part 2 • Metaethics and Moral Psychology raised within the cultural climate that existed fifty or more years ago. What these examples suggest, then, is the possibility that not only do different “rules” exist, but that we might not be able to impose moral judgments on any of these rules (see Box 4.2).

For purposes of clarity, we need to distinguish several of the claims made above. In partic- ular, we noted: (1) the factual claim that morality differs from culture to culture, time period to time period; (2) that, consequently, there is no objective sense of moral right and wrong; and (3) that because of (1) and (2), we should not judge the beliefs and practices of other cultures and time periods. Ethical relativism generally holds to each of these three beliefs. Importantly, how- ever, these beliefs do not necessarily follow from one another. To distinguish these claims and their implications for ethics, we need to address the key difference between descriptive relativism and its prescriptive or normative counterpart. 11 Descriptive and Prescriptive Relativism Moral values and practices can and do vary—sometimes significantly—between cultures.

Relativism is founded upon the simple notion that there are fundamental differences between the moral values of different people and cultures. 12 This simple claim is not entirely disagreeable.

In fact, there exists ample descriptiveanthropological and sociological evidence that the moral value attached to different forms of behavior can vary considerably from one culture to the next. 13 This recognition that differences exist between cultures, time periods, and even subcul- tures within the same culture is commonly referred to as descriptive relativism. Descriptive relativism can be thought of as that aspect of or argument within the broader philosophy of relativism that merely acknowledges and describes the presence of moral differences between groups of people. In doing so, descriptive relativism points to the cultural variabilityof norms, beliefs, and moral values. 14 This variability is evident not only historically and cross-culturally, but also between social groups within our own contemporary culture. Race, gender, social class, age, subcultural and religious affiliation, as well as the region of the country in which we live can all impact the norms to which we adhere, the customs in which we participate, the values to which we subscribe, as well as our general moral framework and worldview. BOX 4.2 Defensible Violence?

In some cultures—particularly those lacking central- ized law enforcement and formalized criminal law— the family of a murder victim can, by custom, kill a male relative of the offender in retaliation.

In northern Albania, for instance, thousands of families are involved in ongoing blood feuds,with tens of thousands of males living what amounts to lives of hiding—“prisoners of their own homes.” Cultural traditions of vendettacan lead to vicious cycles of killing upon killing, all in the name of vengeance and honor. Traditions such as these not only expose us to the existence of cultural differ- ences but also raise important ethical questions about when, if ever, homicide and violence might be defensible.• Is there any sense in which we can say, objectively and universally, that traditions of vendetta are morally wrong?

• On what grounds, if any, could we argue that retaliatory killings by family members of victims are defensiblekillings?

• If claiming that cultural traditions of vendetta are morally wrong, on what grounds, if any, could we argue that the more “civilized” system to resolve conflicts as practiced in the contem- porary United States is superior?

• In what ways, if at all, do vendetta killings resemble gang wars and organized crime practices in the contemporary United States? Does the moral defensibility of one or the other differ? Why? Chapter 4 • Is Morality Relative? The Variability of Norms and Values69 Simply acknowledging this variability is very different from making evaluative or normative claims that some values or customs are better or worse than others. Sometimes, how- ever, descriptive claims concerning cultural variability are used as reasons in support of the idea that there are no objective or universally applicable moral truths (called metaethical relativism).

Though it may be factually correct to acknowledge that one culture condones infanticide while another condemns it (a description claim), it does not necessarily follow that the differing practices of the two cultures are equally justifiable in the context of morality. Consequently, we can accept the facts of cultural and historical variability without necessarily accepting the idea that there is no “right” answer to conflicts over moral values and practices.Howwe determine which practices are morally “right” or “wrong” is a different species of question (see Box 4.3) BOX 4.3 Relativism Contra Science While some things can be empiricallyshown to have certain objective properties, moralbeliefs, values, and practices are typically regarded differently. The fact–value distinctionasserts that the empirical techniques of science cannot be employed to resolved disputes about human values. How, for example, is one to show scientifically—through observation and measurement— that polygamy is wrong in the same sense that we can show that the earth is round rather than flat? Is it possible to observe or measure the “rightness” or “wrongness” of moral beliefs or cultural practices?

Some philosophers and scientists have argued that we canmake such objective distinctions. Ethical naturalism, a metaethical position, rejects the fact–value distinction arguing that objective knowledge of moral concerns can be obtained in much the same way that we obtain knowledge of natural or social concerns.

Some contemporary naturalists argue for something like a “science” of morality, wherein what is “good,” for instance, can be determined by scientific inquiry. If a “good” life involves good health (something which is, in fact, universally valued), the methods of science can determine the kinds of diets, exercise regimes, and even health care policies that promote or lead to good health and the avoidance of physical suffering. On this basis, we may be able to say that certain diets or health care initiatives are objectively better or worse than others.

On that basis, we might even make a normative claim that people should(or, perhaps, have a moral obligation to) follow certain diets, exercise, or care for themselves in certain ways.

We might also use scientific (“natural”) facts to resolve particular ethical issues. Consider the practice of incest. Is the taboo against incest merely a matter of cul- tural construction? Or, perhaps, is there good scientificreason for the existence of the moral prohibition against it? We know, for instance, that when two closely related human beings procreate, it substantially increases the likelihood of two deleterious (“toxic”) recessive genes coming together and producing any of a large variety of conditions that interfere with health and happiness.

Two unrelated people, because of their differing genetic ancestries, are extremely unlikely to carry the same deleterious genes. Based on scientific knowledge of human genetics, then, we might make a strong case that the practice of incest should be regarded as objec- tively wrong—not merely a matter of one’s relative standpoint.

• With respect to incest, would your opinion change at all if the persons involved (e.g., a brother and sister) used multiple forms of birth control, thus eliminating all chance of a pregnancy and later birth defects? Why? (Be careful of appealing to the notion that the act is offensive for, if they keep it a secret, there is no one to be offended.) • What role, if any, should science play in describing, defining, or evaluating human morality?

• In what ways, if at all, might scientific research help to resolve the controversy surrounding euthanasia? Appropriate punishments for criminal offenders? Gun control? Justifiable conditions for war? Sources: Sam Harris, The Moral Landscape(New York: Free Press, 2010); Christopher Peterson, A Primer in Positive Psychology(Oxford: Oxford University Press, 2006); Daniel Gilbert, Stumbling on Happiness(New York: Vintage, 2007). For more on the incest taboo, see Jonathan Haidt, “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment,” Psychological Review, 108, 814–134(2001). 70Part 2 • Metaethics and Moral Psychology Normativeor prescriptive relativism(i.e.,prescribinga certain morality that shouldbe accepted) moves beyond the descriptive version in arguing that the presence of cultural variability, combined with the absence of any way of determining objectively “right” answers to moral conflicts,prohibits us from judgingthe beliefs and practices of others. Because differences do exist and, further, because we have no means of showing or proving that any one set of beliefs or practices is more “right” than any other, we shouldmodify our own beliefs and practices to account for the recognition that no other belief or practice is necessarily more “right” or “wrong” than our own (see Box 4.4).

What are the consequences of such a position? Perhaps most importantly, relativism is often interpreted as a strategy in support oftolerancewith regard to the beliefs and practices of others. In other words, we should “live and let live.” The problem, however, is that pure relativism implies that intoleranceshould be tolerated as well. That is to say, intolerance is no more “wrong” than tolerance and, therefore, we should simply acknowledge that some people are intolerant of others and place neither moral approval nor condemnation on such attitudes.

Several examples may come to mind. Consider the conflicting beliefs concerning slavery that played an important role in the American Civil War; the conflict over apartheid as practiced for many years in South Africa; and, more recently, the efforts of the United States to “free” the BOX 4.4 Sex Crimes and Normative Relativism In the sociological literature and in popular opinion, “deviant” sexual acts typically include everything from bisexuality, nudism, topless dancing, and fetish behavior to more extreme acts such as pedophilia(sex with children), zoophilia(sex with animals), and necrophilia (sex with dead persons). However unconventional, most sexually deviant acts are not defined as crimes (in all places and circumstances, at least). On the other hand, more extreme forms of sexual deviance such as sex with children, animals, and dead persons are more universally regarded as unlawful. However, a strict interpretation of relativism would suggest that even these actions, no matter how despicable, could not be defined as categorically immoral—or, for that matter, “criminal.” Depending on the persons involved, the culture, time period, circumstances, etc., they may be morally acceptable.

• Using the insights of relativism and objectivism discussed in this chapter, on what basis could you argue that these deviant sexual practices should always, everywhere be “criminal”? On what basis could you argue that they should not be? Can you think of specific situations in which sex with children, animals, or dead persons might be acceptable or excusable practices?• When comparing illegal sexual behaviors with those that are not, what is it about the behaviors in each group that makes them more or less morally reprehensible? In what ways, for instance, do Internet sex, the use of legal pornography, and legal public nudity differ from pedophilia, zoophilia, and necrophilia?

• One of the commonalities shared by the three sex crimes discussed above is that, unlike nude dancing or sadomasochistic behaviors that are consensual acts with no identifiable “victim,” children, animals, and dead persons are unable to offer voluntary and knowing consent. When it comes to sexual practices, is consent a desirable basis on which to judge something legal or illegal?

Can you think of any consensual sexual acts that should be considered immoral and/or illegal? Can you think of any nonconsensual sexual acts that should not be considered immoral and/or illegal?

• How might the observations regarding the distinction between mala in seand mala prohibita(see Box 4.1) assist you in differentiating between different forms of sexual deviance and in identifying sex crimes? What, if any, types of sexual behaviors would you consider wrong- in-themselves? Why? Chapter 4 • Is Morality Relative? The Variability of Norms and Values71 “oppressed” Iraqi people from tyrannical rule. In its extreme version, relativism cannot regard slavery, apartheid, or oppression in any form as objectively “wrong” in the moral sense. Rather, each concerns the beliefs and practices of a different group of people that may be morally disagreeable to many, but not morally “wrong.” Furthermore, our efforts to end slavery, apartheid, and various oppressive practices are themselves immoral. In 2003 when the United States invaded Iraq, several differing justifications were given for instigating the war. One such claim was that the Iraqi people were victims of rampant human rights abuse and that the mission of the United States involved freeing the oppressed peoples of Iraq. In the context of relativism, such actions display a demonstrable lack of tolerance for the beliefs and practices of other cultures. Rather than intervening and attempting to change the beliefs and practices of other cul- tures to bring them into line with what “we” believe to be “right,” the appropriate course of action (following normative or prescriptive relativism) would have been no intrusive action at all.

The normative implications of relativism are, of course, difficult for many people to accept.

For this reason, as well as others, relativism has been a hotly contested subject in moral philosophy.

Nevertheless, the belief that we should, for example, intervene to end practices of slavery requires an appeal to some objective standard of right and wrong. We must be able to offer some accept- able justification for identifying slavery as morally “wrong”—something more, of course, than merely our feelings, unsupported opinions, or conventional practices. The challenge that relativism presents is that of finding an adequate source of moral authority by which to justify our beliefs and subsequent practices. 15Various moral philosophies have responded to this dilemma in manifold ways: by appealing to theological sources; by appealing to science; by appealing to the best interests of the people involved; by appealing to universal rules derived from logical argument. We will explore several of these potential sources in some detail in later chapters.

However, before we conclude our discussion of relativism, it is worth considering one further variation: pragmatic ethical relativism and, relatedly, sociological functionalism. PRAGMATIC MORALITY Protagoras (c. 490–c. 420 B.C.E.) is often recognized as one of the earliest proponents of—and by some accounts the “father” of—what we now refer to as relativism. His famous epigram, “Man is the measure of all things . . . ,” succinctly summarizes his position. For Protagoras, there is no “natural” morality, truth, justice, and so on. 16Rather, the laws and moral rules governing human behavior vary from time to time and from place to place. Further, none of these variations is “more true” or “more right” than any other because none is objectively true or false. When faced with conflicting sets of moral standards, we often want to ask, “Which is right?” Yet to judge a set of practices, laws, and customs as more moral than another requires an objective set of moral standards with which to compare them. The difficulty is that such standards do not seem to exist.

Though we often mistake convention and majority opinion for truth, these things are not truth.

This certainly does not mean that we do not believethat one set of standards (typically those of our own time period, culture, religion, etc.) is more right than another. Yet Protagoras and later relativists suggest that none actually ismore right. 17 Protagoras did, however, say that some beliefs and practices were “better” in light of their consequences. 18 To be clear, the implication is not that what is “better” is “right” or even “more right” than any other belief or practice. What Protagoras was acknowledging was simply that, for example, if everyone else agrees that today is Friday, it would be in my best interest to also agree with (or “go along with”) the popular and conventional belief that today is Friday. 19My life will certainly be easier and not subject to any of the potential negative consequences that might result 72Part 2 • Metaethics and Moral Psychology from my dissension. In the context of an orderly social world, perhaps that dissenting “truth” is not as important as simply finding points of agreement to which we can refer in order to make life more predictable and, in that way, more smooth.

To illustrate, it may not be the case that 65 miles per hour is the “right” speed limit on the interstate near my home. Given individual differences in driving ability, differences in the quality and safety of automobiles, and the relative traction effects with various highway road surfaces, it certainly may not be the “right” speed limit for all cars and all individual persons on all inter- states. However, it does create a point of agreement and a point of reference to which we can all refer in determining how fast to drive on that particular highway. In other words, imposing a speed limit of 65 miles per hour on the interstate, while not necessarily the “correct” velocity by any objective standard, makes driving predictable and orderly. In this regard, setting a speed limit is beneficial or “good” in its consequencesor in the practical valuethat it has for social life.

In referring to “practical value,” we come across a potentially important idea in ethics or any other field of study; namely,pragmatism.Pragmatismcomes in a variety of forms, though the basic idea of each is that the purpose of anything—values, beliefs, laws, research—is not to uncover or represent the truth, but to allow us to more effectively and/or comfortably live our lives. The function of lawmakers, for example, is not to find the “right” law for a particular purpose, but to develop an effectivelaw for that purpose. In other words, a good law becomes a law that works. 20 If, for instance, our goal is to achieve and maintain social order, then law and practices of law enforcement that serve that purpose—those that work—are good laws and practices. We cannot rightfully judge behaviors, customs, beliefs, and laws, except by reference to their context and effectiveness (or functionality) within that context.

So what are the implications of Protagorean philosophy for ethics? In short, it means that our search for objective and universal standards of truth, justice, goodness, beauty, and so forth is futile and pointless. We should discard accounts of absolute truth and, further, abandon any related pursuits we might subsequently undertake. Moral laws do not exist, at least in any objective or “natural” sense. Social reality consists merely of human constructions that are not “right” nor “wrong,” but functionalfor a given culture at a given time. “Justice” is what is believed to be “just” by a certain group of people, and what therefore works for that group of people within that historical period. “Killing” cannot be objectively wrong, yet prohibitions against killing can be functional. A culture which did not have prohibitions against killing—at least many forms of killing—would be a culture that was not primed for survival. A culture in which it was customary for men to have five wives might eventually run into practical problems if there were considerably more men than women living within that culture. By contrast,polygynymight function positively in a culture where there were considerably more women than men.

Thus, while it is quite natural for us to think about killing and polygamy as moral issues, if Protagoras is correct, we should cease judging the morality of practices and beliefs and begin seeking to understand the practicality and functionality of those practices and beliefs. This, in turn, requires abandonment of philosophical thinking about ethics and a turn toward investigating the beliefs and practices of social groups or collectives sociologically. What is functional for a group of people is a purely sociological question, void of any deeper moral philosophical content.

Consider the following two examples—the first pertains to cultural variability and its relation to a pragmatic conception of relativism; the second is a functionalist sociological perspective on an often-debated social and legal issue:

• European explorers discovered that Inuit (Eskimo) tribes regularly engaged in practices very different from their own. In particular, the Eskimos seemed to practice infanticideand Chapter 4 • Is Morality Relative? The Variability of Norms and Values73 a crude form ofeuthanasia. Female babies were sometimes killed off, and elderly members of the tribe were sometimes left out in the cold to die. What may have initially seemed to Europeans to reflect a remarkable lack of moral sensibilities, however, were discovered to be sensible practices. Later explorers would recognize that the Eskimo people were a nomadic tribe, traveling constantly in search of new food sources. As hunters and food gatherers, males were far more likely to die prematurely. If all female babies were to survive, the number of female adults would quickly far outweigh the number of healthy males, thereby jeopardizing the well-being of the tribe. Further, some of the elderly members of the tribe were simply too frail to keep up. Leaving them behind to die was less a moral matter, and more a matter of doing what was necessary to ensure the survival of the group.

As James Rachels suggests, “[t]he Eskimos’ values are not all that different from our values.

It is only that life forces upon them choices that we do not have to make.” 21 • In a much-discussed article, sociologist Kingsley Davis argued that prostitutionis “good” for society in that it serves the overall function of maintaining the social system by performing several smaller functions. 22Prostitution (1) satisfies sexual desires without the associated expenses of dating or marriage and without the often-required emotional investment; (2) maintains the institution of the family by relieving wives of the necessity of satisfying the “perverse” sexual desires of their husbands, thus enabling husbands to continue to respect their wives; (3) allows a small number of women to satisfy the needs of a large number of men, including those who have difficulty finding conventional outlets for those needs; and (4) allows prostitutes themselves to earn considerably more money than they would in most other occupations.

In both of these examples, we are faced with a controversial moral issue: the first concerning life and death; the second concerning human sexuality. In the first instance, many would be quick to point out the assumed immoral nature of infanticide or allowing elderly persons to die. However, what would seem to most of us today as a profound disrespect for life and a cruelty of character might be better regarded as a practice conducted within the context of a certain cultural reality.

Approached in this way, it may seem less morally reprehensible and, perhaps, even acceptable as a practice necessary (functional) for group survival. We could say the same for the second case as well: Prostitution may be morally reprehensible, yet it could also be understood as a practice that meets the needs of a large group of people within a given society. In neither case do we necessarily commit ourselves to accepting the practice as moral. Rather, what seems initially to be a moral question becomes a pragmatic question when viewed in a different light. THE VALUE OF RELATIVISM Relativism has brought mixed blessings to ethics and morality. In one sense, it represents a serious threat to the very idea of morality, as well as ethical inquiries into morality. In another sense, it alerts us to some common faults in our own thinking about moral issues. Some would argue that it is only a short step from relativism to an “anything goes” attitude in which morality can no longer serve as a foundation or point of reference for social health, happiness, and relations more generally. At the same time, others contend that a failure to recognize the diversity of moral values that exists within and between cultures (and the corresponding benefits of that diversity) can lead us to potentially more dangerous ways of thinking and potentially harmful laws, policies, and practices emerging from those ways of thinking. What are the dangers of relativism? What are the dangers ofnottaking relativism into consideration? A significant consequence of accepting a purely relativistic ethics is that it requires us to abandon our common practice of judging other people and cultures and the often accompanying practice of attempting to change those same people and cultures by imposing our own values onto them. For relativists, this consequence is not entirely detrimental to human relations.

Different laws, rules, customs, practices, and beliefs may be entirely at odds with one another and yet work equally well for different groups of people. We should keep in mind that historical development, economic and social conditions, educational standards, and so forth of different groups of people can vary tremendously. Thus, while a given common practice may work quite well for one culture, region, or subculture, it may be devastating for another. Recognizing these differences does not require us to abandon our own sense of morality. Rather, it asks that we not be so quick to judge and impose ourselves in every situation in which there exists a conflict.

It might be possible to differentiate between moral principles that are legitimately universal and moral practices that are legitimately variable.

If we subscribe to some variation of relativism, we would have to concede that practices such as capital punishment cannot be judged moral or immoral. From a pragmatic standpoint, we might better ask whether the death penalty “works” or serves some greater purpose for which it is intended. 23Assuming that capital punishment has practical or pragmatic value as a deterrent, then executing convicted criminals would be morally acceptably and desirable so long as it fulfilled this purpose. On the other hand, if it failed to fulfill its intended function, we would have to judge the practice of capital punishment to be morally undesirable and unacceptable.

Most of us, however, are probably a bit uncomfortable with the idea that practices such as capital punishment are not moral or immoral, but could be either depending on where and when the act is undertaken and who is engaged in undertaking it. Must there not be some standard or principles by which we could say conclusively that certain laws, policies, or practices are either moral orimmoral?

As unsettling as it may be for some, most people do tend to think of morality as relative— at least to situational circumstances. Thus the act of killing is generally regarded as immoral, but could be moral if done in a time of war or as part of a heroic effort to prevent some greater evil.

Some philosophers and social scientists (including criminologists) suggest that even if we cannot say conclusively that certain laws, policies, or practices are right or wrong on a moral level, we canmake judgments concerning the underlying reasonsfor them. For instance, while we may not be able to make a determination one way or the other about the morality of war, we may be able to make moral judgments about the underlying reasons for going to war. Starting or entering a war in an effort to satisfy an underlying desire for vengeance against another country or our hatred for that country may be objectively less moral than if motivated by a desire to improve the well-being of the general public (consider, for example, the recent U.S. war in Iraq).

Additionally, while we may not be able to conclusively say that stealing is immoral, we can say conclusively that stealing for personal material gain is immoral—leaving open the possibility that some reasons for stealing (e.g., feeding a starving family) may be socially undesirable, but not necessarily immoral.

One of the benefits that the notion of relativism provides is that it encourages us to be more open-minded and considerate of perspectives other than our own when faced with moral issues and scenarios. 24Most people, for instance, tend to be ethnocentric.Ethnocentrismrefers to a way of perceiving the world and all aspects of the world from the perspective of one’s own culture or social group.

25From an early age, a respect for our own culture is instilled in us. This respect is not based on any experience or objective knowledge we have acquired concerning the values and practices of our culture or those of any other; rather, we are simply socialized such that 74Part 2 • Metaethics and Moral Psychology Chapter 4 • Is Morality Relative? The Variability of Norms and Values75 we come to have this respect. The danger of ethnocentrism lies in the sequencing of thought and action that is commonly made: perceiving the world from the perspective of one’s own social group (a more or less inevitable phenomenon), to believing that that perspective is the “right” one. In other words, when respect for one’s own culture turns into a belief in the superiorityof one’s own culture, we endanger our capacity for open-minded reasoning.

In relation to morality, ethnocentric persons believe not only that there are objective moral values, but also that their own moral values arethe objectively right ones. Ethnocentric morality, then, entails a belief in the moral superiority of one’s own culture or social group. Ethnocentrism often affects people such that they reject the possibility that their own values are wrong and that those of another culture or social group mightbe right or in some ways “better.” It is only another small step from believing that the moral sensibilities of one’s own group are correct to judging the moral values of other groups and attempting to change those other groups so that they are consistent with one’s own culturally bound views.

What makes ethnocentrism problematic is that it often can lead to dogmatismand intolerance. 26 Dogmarefers to a belief or belief system that is held unquestioningly and with absolute certainty.Dogmatismrefers to the refusal to entertain criticisms of or challenges to those beliefs.

27Often, such beliefs are not justified or backed by sound reasons—they are merely held as unquestionable truths. Dogmatism leads to narrow-mindedness (rather than open- mindedness) and an unwillingness to reconsider one’s own values and beliefs even in light of contrary evidence. As well, a dogmatic stance can lead us to reject beliefs that are inconsistent with our own without ever considering them for what they are or might be worth. The problem, of course, is that our own beliefs may well be false or, at the very least, may be capable of improvement or refinement.

Moreover, dogmatism prevents one from assuming an objective perspective on one’s own moral beliefs and values, as well as those of other people. If we are certain that our own beliefs are true—even without evidence to support them—we can easily become intolerant of the beliefs and practices of others who do not share in our value-based perspective. Because tremendous diversity exists both within and between cultures with regard to moral values, beliefs, and practices, conflict becomes inevitable. Dogmatism prevents agreeable resolution to such conflicts because both parties believe themselves to be absolutely right and the other to be absolutely wrong. Thus, each party or faction will try to force the other to adopt its perspective. Of course, this does not necessarily mean that either party is, in fact, right or wrong; rather, it simply means that neither is willing to consider the perspective of the other.

While much has been said both in support of and opposed to the virtue of tolerance, we should keep in mind that the kind of openness implied by relativism is not necessarily one that advocates tolerance ofallvalues, beliefs, and practices. Instead, we should think of tolerance as a willingness to understandthe perspectives of others and to not make judgments until we have done so. Tolerance or acceptance of this sort suggests that we should make some effort to keep an open mind and reserve judgment until we are able to do so in light of all relevant information.

Thus, the value of tolerance is perhaps best understood as a means ofavoiding intolerance.

On the whole, relativism reminds us that we are fallible—as much as we may cling to certain values and beliefs, our own moral sensibilities are not necessarily absolute truths that should be applied to everyone and in all situations. As well, becoming familiar with difference and diversity can help us recognize and understand the moral perspectives of other persons, groups, and cultures in various situations and utilize this understanding before passing judgment or imposing solutions in those involving conflict. Although recognizing the relativity of moral values and norms does not mean that we should abandon our own values or adopt an “anything 76Part 2 • Metaethics and Moral Psychology goes” attitude, it does encourage us to refrain from thinking in “black-and-white” terms and to maintain a willingness to understand and even learn from other perspectives.

Recognizing the variability of moral values and norms and maintaining a certain degree of open-mindedness not only seems necessary for anyone living in a complex and diverse society such as the United States, but is especially important for current and future criminal justice practitioners. Agents of criminal justice are exposed to difference and diversity of cultural and subcultural values routinely, whether through the policing of different communities, the guarding of a diverse population of prison inmates, or through representing the interests of diverse clients in a courtroom environment. In fact, most formal codes of ethics in law enforcement, correctional, and court-related professions emphasize and promote equal treatment and the avoidance of prejudice and discriminatory treatment— values that would seem to demand a certain level of understanding and respect for group and individual differences.

RELATIVISM AND THE CRIMINAL JUSTICE SYSTEM:

THE MORALITY OF CRIMINAL LAW Over the course of this chapter, we have seen that moral values and norms can and often do vary—even within the same society or culture; from region to region; from religion to religion; along group, class, racial, and ethnic lines; and between subcultures. We have also been exposed to the argument that, because of this variability, there is no “true” morality or, at the very least, that “true” morality is not immediately evident and therefore we should not be so quick to pass judgment on those whose values and practices differ from our own. These ideas have important but often overlooked implications for crime, law, and justice. Within the criminal justice context, the relativity of moral values—as well as the idea that morality should not be imposed on others—perhaps poses the greatest difficulties and dilemmas within the sphere of lawmaking (see Box 4.5). In this final section, we look briefly at some of the dilemmas that relativity of moral values poses for the practice of lawmaking.

When lawmakers create laws, they often cannot escape the influence of moral interests.

Even when moral interests are not specifically stated, laws almost always have a moral dimension.

Yet many advanced industrial societies such as the United States are characterized by moral diversity and conflict over key moral (and legal) issues. Almost universally, citizens cannot murder, rape, or rob other citizens—behaviors that directly harm the person or property of others. There tends to be a strong consensusamong the public concerning the wrongfulness of these behaviors and the desirability of prohibiting them. Other forms of behavior, however, are less a matter of public consensus. Gambling, the sale and distribution of sexually explicit materials and alcoholic beverages, and the possession and use of various substances are, for example, behaviors over which there has always been and continues to be moral disagreement. Where conflict over moral values and appropriate behavior exists, it is law that ultimately must supply “working answers.” Importantly, laws are not written to apply only to those people who happen to agree with them or share in their underlying moral values; rather, laws are created to apply to all people, everywhere within a given jurisdiction. In other words, the nature of lawmaking is such that certain values mustbe imposed upon citizens.

Within criminal law, the existence of moral diversity and conflict is perhaps most evident in discussions about what should be a crime. In the United States, as in other civilized countries, citizens are not free to do whatever they wish. Federal, state, and local governments place various Chapter 4 • Is Morality Relative? The Variability of Norms and Values77 BOX 4.5 The Relativity of Things Lawful and Unlawful Part of the difficulty of relying solely on the law to de- fine what is right and wrong is that laws vary and change. Consequently, the behaviors that are defined as lawful or unlawful vary and change with them.

Laws prohibiting or allowing certain forms of behavior vary from one place to the next (e.g., by country, state, and even by county and city). What is legal at one loca- tion, may be illegal at another. In addition to varying from place to place, laws also change over time. What is legal at one point in history, may be illegal at another (previous or future) historical point. Consider the following:

• Nevada is well known for being the only state in the United States to have legalized prostitution.

More accurately, prostitution is legal in some counties in Nevada and illegal in others. In Clark County, for instance, which houses the city of Las Vegas, prostitution is explicitly prohibited and punishable as a misdemeanor offense. Nevada Revised Statute 244.345 maintains that houses of “ill fame or repute” or other businesses employing persons for purposes of prostitution are not lawful in Nevada counties with a popula- tion greater than 400,000. Counties with a population of under 400,000 can, under state law, prohibit or regulate prostitution as they see fit. While prostitution and the solicitation of prostitution are illegal in the major cities of Las Vegas, Reno, and Carson City, these practices are perfectly legal (though regulated) at other loca- tions. One will find houses of prostitution about 50 miles from Las Vegas, and less than 10 miles from Reno and Carson City.

• Well into the 1960s, the distribution, sale and/or use of contraceptives was illegal in many U.S.

states. In the 1860s and 1870s, Anthony Comstock launched an anti–birth control crusade, claiming that the contraceptives encouraged lustful and immoral sexual behavior. In 1873,U.S. Congress passed a federal law (the Comstock Act) which defined contraceptives as obscene material and placed regulations on their distribu- tion. Shortly thereafter, a number of individual states passed similar laws. In the state of Connecticut, for instance, the useof birth control was outlawed. Even married couples could be arrested and sentenced to as much as a year in jail for the use of contraceptives. In Griswold v. Connecticut(1965), the U.S. Supreme Court ruled that laws prohibiting the use of contra- ceptives violated privacy rights and, thus, were unconstitutional.

Each of these examples illustrates a basic reality of crime: what is a crime at one place may not be at another, and what is a crime at one time may not be at another. Whereas one could be arrested and sentenced on misdemeanor charges for prostitution in the city of Reno, one could lawfully engage in the same behavior only a short drive down the road. Whereas one could, today, purchase and use various forms of contraceptives available at the local drug store, one could legally have been arrested and sentenced on misdemeanor charges for the use of birth control only several decades ago.

Because laws change from time to time, the same people who are lawbreakers today may not be tomorrow; the same people who are law-abiding citizens today, may be tomorrow’s criminals. Because laws change from place to place, the same people who are lawbreakers at one location, may not be at another.

Clearly, this creates problems for our efforts to define crime and criminals, as well as for studying crime and criminals. In our efforts to understand the “crime” of prostitution, should we study the prostitute in Las Vegas who is a criminal and not the prostitute 50 miles down the road who is not? Should we define as “criminal” the prostitute who works the streets in Reno but define as a law-abiding citizen the prostitute who works at a legal prostitution business a few minutes from town?

restrictions on individual liberties by passing laws that prohibit some forms of behavior and require others. Debate arises, however, when we begin to ask whichbehaviors should be subject to restrictions. Further, we might ask, on what grounds can we justify restricting or criminalizing some behaviors but not others? How and why is it that certain behaviors are determined to be 78Part 2 • Metaethics and Moral Psychology “crimes” while others—irrespective of how harmful, immoral, or offensive they may be to some— are not? On what basis can we justify governments defining appropriate behavior and forcing citizens to comply with moral standards that they might find objectionable or disagreeable?

In his widely discussed four-volume work,The Moral Limits of Criminal Law, Joel Feinberg explores four principles that might be used to determine whether the government can legitimately prohibit or criminalize certain forms of behavior: the harm principle, paternalism, legal moralism, and offensive conduct. In the remainder of this section, we briefly explore each of these principles and conclude with an exercise in applying them to contemporary controversies in law and society (see Box 4.6).

The Harm Principle One of the most commonly discussed justifications for the prohibition of certain types of behavior is the harm principle, derived from John Stuart Mill. The harm principle is also commonly used as justification for notcriminalizing certain forms of behavior. In short, the question to which Mill responds is, “When is it morally acceptable for governments to coerce people through law?” To this question, he suggests a simple principle: Governments can BOX 4.6 Justifying Legal Prohibitions Moral values and norms tend to vary across and within cultures and over time. There are many behaviors about which there is a lack of moral consensus.

Conflict and disagreement over which behaviors should be criminalized is reflected in the fact that laws concerning these behaviors often vary over time and from place to place at a given time. In other words, criminal law is, to some extent, relative. How, then, do governments determine which behaviors should be subject to legal coercion?

As we have seen in this section, over the course of his four-volume work, The Moral Limits of Criminal Law, Joel Feinberg suggests that there are four princi- ples that might be used to determine whether the government can legitimately prohibit certain forms of behavior:

1.The Harm Principle.Behavior can be legitimately prohibited if it causes or has a high risk of causing serious harm to other people.

2.Paternalism.Governments can legitimately pro- hibit behavior that might cause serious harm to the acting agent, even if no one else might be harmed.

3.Legal Moralism.Governments are justified in prohibiting behavior that is immoral, even when it does not harm or offend anyone.4.The Offense Principle.Behavior can be legitimately prohibited if it seriously offends others.

As a concluding exercise, consider how the above principles might justifyor fail to justifylegal prohibition of the following behaviors. For those behaviors that are currently illegal, consider whether and how any of Feinberg’s four principles might justify their legalization.

• Physician-assisted suicide • Abortion • Burning the American flag in public • Possession and use of marijuana • Buying and selling sex • Buying and selling sexually explicit material • Owning weapons, including automatic weapons and grenades • Polluting the environment • Gay marriage • Sunbathing nude in public • An employer refusing to hire women or African Americans • A therapist having sexual relations with his or her clients • Treating mentally ill persons by medicating them against their will Chapter 4 • Is Morality Relative? The Variability of Norms and Values79 legitimately prohibit or require certain behavior when it is necessary to prevent people from harming others—and onlywhen it is necessary for this purpose. In Mill’s own terms, . . . the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant....Over himself,over his own body and mind, the individual is sovereign. 28 Clearly, the harm principle would justify the government passing and enforcing laws against murder, rape, robbery, theft, driving under the influence, and other forms of behavior that either cause objective harm to others or have a strong likelihood of doing so. Where laws prohibit non- harmful behaviors, Mill would suggest, the government is crossing boundaries that it has no moral right to cross.

For Mill,libertyis a key feature of human existence and wherever possible should not be limited by government. Harm or the possibility of harm to others is the only morally legitimate reason for placing limitations on liberty through the passing and enforcing of laws. Importantly, the harm principle suggests that people should be free to do anything else they may choose— even if their actions harm themselves, offend others, or are regarded as immoral. Advocates of decriminalizationof so-called victimless crimes often appeal to the harm principle in support of their position. Arguably, behaviors such as personal recreational drug use, paying for sex, and gambling may be regarded as immoral by some but do not create any objective harm for anyone other than those who are voluntarily involved in the behavior. So long as the participants are competent adults,consentnegates any wrongfulness. As such, citizens should enjoy the freedom to legally engage in such behaviors.

Appealing to the harmfulness or harmlessness of certain behaviors as justification for criminalization or legalization begs an important question: namely, “What counts as harm?” Aside from obvious instances of harm that result from violent behavior, there are numerous ways in which citizens harm one another physically, emotionally, and financially. As we saw in Chapter 2, most everything we do has some effect, however small it may be, on others. In many cases, the harms we do to others are not obvious, direct, or immediately experienced. One could argue, however, that they are harms nevertheless. Thus one of the biggest difficulties in applying the harm principle—as well as in the making of laws—is determining what types of “harms” warrant legal coercion.

To this question, Feinberg suggests that the Harm Principle justifies coercive government action where behaviors harm people’s basic welfare interests, including “continued life, health, economic sufficiency, and political liberty.” 29Wearing a T-shirt with a radical political message may cause anger and disgust, but is not likely to jeopardize the basic interests listed above. In addition, driving while intoxicated carries a significant risk of harming others’ interests in continued life and physical health and the government may therefore be justified in prohibiting it.

Paternalism In his description of the harm principle, John Stuart Mill suggested that laws are designed to protect people from one another, not from themselves. Of course, laws sometimes are intended to protect people from themselves, and governments douse coercion for this pur- pose (e.g., seat belt laws, laws prohibiting the possession of dangerous drugs). When governments seek to protect citizens from themselves, this is called paternalism. In its most general sense, 80Part 2 • Metaethics and Moral Psychology paternalism refers to a relationship of giving or aiding others in which an authority (e.g., government, organization) relates to those in need as a father would to his dependent children (paternal= “fatherly”). In the context of social policy, paternalism is evident where governmental power brokers assume responsibility for the (presumed) needs of its citizens, taking action through law or policy (e.g., penal, psychiatric) to meet those needs.

As a principle, paternalism holds that it is justifiable and morally permissible for the government to use law and policy to coercively protect people from themselves. Many would agree that persons who are incompetent(e.g., children, those with developmental disabilities) should be subject to paternalistic treatment. Feinberg, in fact, suggests that the government has a moral duty to intervene in such situations. However, protecting competent, rational adults from themselves is another matter. As Feinberg writes, doing so is “arrogant and demeaning.” When involving competent adults, paternalism implies that “there are sharp limits to my right to govern myself . . .

that others may intervene . . . to ‘correct’ my choices and then (worst of all) justify interference on the ground (how patronizing) that they know my own good better than I know it myself.” 30As most of us value self-determinationor our capacity to find our own way through life and to make our own choices in everyday encounters, paternalistic laws can seem offensive and degrading—especially since these actions suggest that people are incapable of caring for themselves and need to be looked after by those who presumably “know best” or, at least, know better than they do.

A contemporary controversy involving paternalistic government policy is the practice of civil commitmentor involuntary hospitalization for persons deemed mentally ill (though not necessarily legally incompetent) and presumed to be in need of psychiatric treatment. In such cases, the state confines a person to a hospital against that individual’s will because it has judged the person to be: (1) mentally ill and(2) a “clear and present” danger to others, a danger to self, or “grossly disabled” and unable to adequately care for oneself. Where civil commitment is intended to protect the public from presumably dangerous persons, it might be justified by the harm principle. However, where it is used to protect people from themselves and impose psychiatric care on those who are judged unable to care for themselves, it is paternalistic in nature.

Problematically, to some persons with mental health issues, the deprivation of liberty and the infringement on self-determination that accompanies such hospitalization is greatly resented.

With this in mind, we might ask, “Is it morally permissible for governments to deprive persons of basic interests in liberty and self-determination for purposes of treating them when they are not a danger to others and do not want psychiatric treatment?” 31 Legal Moralism Legal moralismis a position which holds that governments can and should pass laws to prohibit behaviors if those behaviors are considered to be immoral—even if they do not cause harm to self or others. When grounded in the perceived immorality of the behavior, laws that prohibit forms of private, consensual sexual behavior are examples of legal moralism. For example, sexual behaviors collectively referred to as “sodomy” were illegal in some states until relatively recently in U.S. history. Sodomy laws were not created to protect individuals from themselves or one another, but in the interest of preserving the moral integrity and tradition of communities.

It is this perceived need to preserve certain ways of life that is often used as a justification for legal moralism. The question, however, is whether the majority—or those with the power to create laws or influence the lawmaking process—have a moral right to force others to conform to their moral standards. In what, if any, cases does a group of people have a moral right to impose Chapter 4 • Is Morality Relative? The Variability of Norms and Values81 laws (and thus moral values) on other people who do not agree with them and have not consented to living by those rules and values? 32 Legal scholar Joel Feinberg argues that every community needs certain core moral values by which all of its members should live. These core values are necessary for the well-being of the community and the survival of its members (e.g., those that prevent people from harming one another). Outside of these few, basic values, however, Feinberg suggests that communities are made strongerby leaving room for diversity. On this note, Emmett Barcalow offers the following observations: 33 • History has demonstrated that forcing people to comply with rules with which they do not agree often produces resistance—sometimes of the violent, revolutionary type.

• Recognizing and accepting a certain degree of moral relativism within communities may be necessary for social cohesion.

• Communities change and, “it is futile and probably dangerous to try to block all changes to a community’s way of life.” • Some ways of life are oppressive and immoral. Consider the keeping of slaves of the American South and the subordination of women and racial/ethnic minorities.

Preserving certain ways of life is not desirable if those ways of life are morally questionable.

• Behavior which might be regarded as immoral or offensive is not usually “contagious.” If homosexuality is tolerated or even accepted, for instance, most people will still be hetero- sexual; if prostitution were legalized, most people are still not going to seek out and solicit the services of prostitutes. Tolerating moral diversity will not likely produce significant changes to a community’s way of life, as most members will remain committed to conventional values and behaviors.

Offensive Conduct All of us are occasionally negatively affected—perhaps “harmed” in some sense—by others’ rude- ness, insensitivity, loud music, offensive body odor, distasteful clothing, and so on. According to Feinberg, however, these behaviors cannot rightfully be classified as “harmful”:

Not everything that we dislike or resent, and wish to avoid, is harmful to us . . .

[E]xperiences can distress, offend, or irritate us without harming any of our [physical, psychological, or financial] interests. They come to us, are suffered for a time, and then go, leaving us as whole and undamaged as we were before. 34 In other words, Feinberg argues that while experiences such as those listed above might cause temporary “unhappy mental states,” they should not count as harms for legal purposes. While your body odor may cause me a brief unpleasant sensation, your insult may for a short time wound my pride, hurt my feelings, or cause me anger, and your T-shirt may momentarily shock my sensibilities, I have not been “harmed” in such a way that your behavior should be crimina- lized or otherwise prohibited or restricted by law. While I may experience temporary physical and psychological discomfort as a result of your behavior, you have not had any substantial negative effect on my basic interests. While many would agree that the effects of these behaviors are not “harmful” enough to justify legal intervention, they are nonetheless offensive. The question becomes, “Is the government morally justified in prohibiting behavior that offendsothers even if it produces no substantial harm?” 82Part 2 • Metaethics and Moral Psychology Summary We have now spent some time exploring two signifi- cant issues in metaethics: determinism (in Chapter 3) and moral relativism (in this chapter). Clearly, both determinism and relativism present ethical challenges that warrant careful attention before doing any meaningful thinking about other moral concerns.

This includes issues within the criminal justice system or those that otherwise involve criminal behavior.

Specifically within this chapter, the notion of moral relativism was contrasted with ethical objec- tivism and ethical universalism, and contemporary ethical relativism was examined mindful of its descriptive and normative variants. Finally, pragmatic relativism was considered. In part, this includedcommentary on the ways in which sociological func- tionalism helps account for ethical decision-making and whether these choices should be guided by the extent to which actions, laws, or policies fulfill (or fail to fulfill) their stated and useful purposes.

Regardless of our personal resolution to the issue of moral relativism, it encourages us to remember that each of us navigates our day-to- day responsibilities within a pluralisticsociety. As of this writing—and likely for the foreseeable future—there is not a single, overarching ethical code or series of principles to which we all sub- scribe. Even the U.S. Supreme Court has insisted that the moral permissibility of certain behaviors While Feinberg describes “harms” as those behaviors that impose upon others basic interests, “offensive” behavior “produces unpleasant or uncomfortable experiences—affronts to sense or sensibility, disgust, shock, shame, embarrassment, annoyance, boredom, anger, fear, or humiliation.” 35 As examples, he suggests behaviors such as playing loud music in public; vomiting in public; using the American flag as a handkerchief; copulating in public; and wearing an ethnically, racially, or religiously derogatory T-shirt. While most people would agree that some offensive conduct should be prohibited, the question remains, which such behaviors are sufficiently offensive to warrant legal prohibition?

In response to the above question, Feinberg suggests that some offensive behavior may be considered a violation of people’s right to privacywhen it invades private space. If people have a moral right to be protected from certain experiences, the offensive behavior could be considered wrongful where it “deprive[s]...unwilling spectators of the power to determine for themselves whether or not to undergo a certain experience.” 36As well, the seriousnessof the offense must be considered. Seriousness depends on the intensity and duration of the unpleasantness or discomfort, the number of people offended, as well as how much inconvenience would be caused in order to avoid or escape the experience.

Feinberg also notes that we should consider the social utility of the offensive behavior. Loud trains rumbling through our neighborhood at 2:00 A.M. or the smell of manure from a nearby farm may be offensive, yet both serve important social purposes. Their social utility may outweigh any unpleasant experience that we may be forced to endure. As well, we need to consider the importance of offensive behavior to those who engage in it. Some behaviors are important parts of people’s lives and prohibiting them may stand to cause significant harm to their interests.

The sight of an interracial or gay couple may offend some people, but the importance of love and friendship to those couples may outweigh the offense it (temporarily) causes others.

Finally, Feinberg tells us that the intentionsof the actor must be considered. There is clearly a difference between conduct that is intended to be offensive and that of which offending others is not the primary purpose. For instance, wearing an offensive T-shirt for the mere purpose of offending others may be less permissible than wearing the same T-shirt because one is making a political statement. As well, it is easy enough for spectators to avoid looking at an offensive T-shirt. 37 Chapter 4 • Is Morality Relative? The Variability of Norms and Values83 (e.g., sodomy, prostitution, pornography) be decided by “community standards” which, of course, vary from one community to another. 38 At the very least, we must seek to understand and be mindful of these differences. Ethnocentrism, dogmatism, and intolerance often produce more problems than they do good.In the next chapter, we move on to a third prob- lem of metaethics; namely, that of whether we canbe moral. This question and the follow-up question of why we shouldbe moral are matters ofmoral psychology. Having explored concerns of determinism and relativism, it is to the metaethical problem of egoismthat we now turn. Key Terms and Concepts blood feuds 68 civil commitment 80 Comstock Act 77 cultural variability 68 descriptive relativism 68 dogma 75 dogmatism 75 ethical objectivism 65ethical universalism 65 ethnocentrism 74 functionality (of moral beliefs and practices) 74 harm principle 78 honor killings 63 legal moralism 80 mala in se 66mala prohibita 66 normative relativism 70 objectivity 65 paternalism 79 pragmatism 72 prescriptive relativism 70 relativism 64 Discussion Questions 1.Relativism argues that morality is linked to culture, historical time periods, and even subgroups. Explain what this means. How do the doctrines of ethical objectivism and ethical universalism contrast with the notion of relativism?

2.Using the example of “victimless” crimes (e.g., gam- bling, prostitution, drug use), explain how descriptive relativism provides an ethical basis for their decrimi- nalization or their legalization. Do you believe that descriptive relativism is a sensible basis to propose the decriminalization or legalization of these offenses?

To what extent does the notion of cultural variability assist you in your analysis? Justify your response.

3.Do you believe there is an objective sense in which “right” and “wrong” can be identified? What does the notion of metaethical relativism say about this? If there is no objective ethical basis by which behavior can be deemed “right” or “wrong,” what are the implications for criminal justice practice (consider law enforcement, court admin- istration, and correctional work, specifically)?

4.Explain the doctrine of pragmatic relativism. In what way is sociological functionalism related to it? Howdoes the doctrine of pragmatic relativism (and socio- logical functionalism) operate in everyday criminal courtroom deliberations? In decisions linked to proba- tion or parole? In decisions to waive (or not) juveniles to the adult system?

5.How might ethnocentrism and dogmatism impact police decisions to stop and arrest suspects? Consider the phenomena of racial and criminal profiling.

Ethically speaking, how would you reconcile the presence of ethnocentrism and dogmatism in criminal justice with decisions to arrest, convict, and sentence the undocumented, foreign nationals, or those who live in the United States but whose values, beliefs, customs, and practices differ from those found within main- stream culture?

6.Identify a recent criminal case in which cultural variability was an important component of determining how the criminal justice system functioned. Do you believe that the criminal justice system is obligated to demonstrate tolerance and open-mindedness when confronted with behavior deemed unlawful? Why or why not? Justify your response. 84Part 2 • Metaethics and Moral Psychology Endnotes 1. Neve Gordon, “Honor Killings,”Iris: A Journal about Women(April 1, 2001). Available at http://www.

israelsoccupation.info (retrieved July 28 2011).

2. “Missouri Couple Sentenced to Die in Murder of their Daughter,” 16,New York Times(December 20, 1991); Steve Bird, “Sister is Stabbed to Death for Loving the Wrong Man,”The Times(June 17, 2006).

3. Gilbert Harman and Judith Jarvis Thomson,Moral Relativism and Moral Objectivity(London:

Blackwell, 1996).

4. Donald Borchert and David Stewart,Exploring Ethics(New York: Macmillan, 1986), pp. 68–69.

5. Ibid.; Harman and Thomson,Moral Relativism and Moral Objectivity.

6. Emmett Barcalow,Moral Philosophy: Theories and Issues(Belmont, CA: Wadsworth, 1998), quotes from page 44.

7. Paul K. Moser and Thomas L. Carson (Eds.),Moral Relativism: A Reader(New York: Oxford University Press, 2000).

8. Harman and Thomson,Moral Relativism and Moral Objectivity.

9. Brett L. Billet,Cultural Relativism in the Face of the West: The Plight of Women and Children(New York:

Palgrave MacMillan, 2005); Samuel Fleischacker, Integrity and Moral Relativism(Boston, MA: Brill Academic Publisher, 1997).

10. See, e.g., Lisa Heldke and Peg O’Connor,Oppression, Privilege and Resistance: Theoretical Readings on Racism, Sexism, and Heterosexism(New York:

McGraw-Hill, 2003).

11. David Wong, “Relativism.” In P. Singer (Ed.),A Companion to Ethics(Malden, MA: Blackwell, 1993).

12. Robert Streiffer,Moral Relativism and Reasons for Action(New York: Routledge, 2003) 13. Jane K. Cowan and Marie-Benedicte Dembour (Eds.),Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001).

14. Wong, “Relativism.” 15. Lawrence E. Hazelrigg,Social Science and the Challenge of Relativism: Claims of Knowledge (Tallahassee, FL: Florida State University, 1989).

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

Prometheus, 1999), p. 56.

17. Mi-Kyoung Lee,Epistemology After Protagoras:

Responses to Relativism in Plato, Aristotle, and Democritus(New York: Oxford University Press, 2005).18. Taylor,Good and Evil,p.59.

19. Ibid.

20. Ibid.

21. James Rachels,The Elements of Moral Philosophy (New York: McGraw-Hill, 1986), pp. 13, 20–21.

22. Kingsley Davis, “The Sociology of Prostitution,” American Sociological Review, 2(5), 746–755 (1937).

23. Hugo Bedau and Paul G. Cassell,Debating the Death Penalty: Should America Have Capital Punishment?

The Experts on Both Sides Make Their Best Case(New York: Oxford University Press, 2006).

24. Rachels,The Elements of Moral Philosophy, pp. 23–24.

25. See, e.g., Kwame Anthony Appiah,Ethics and Identity (Princeton, NJ: Princeton University Press, 2005).

26. James Davidson Hunter,Culture Wars: The Struggle to Define America (New York: Basic Books, 1992).

27. Anthony Weston,A 21st Century Ethical Toolbox (New York: Oxford University Press, 2001), pp. 11–14.

28. John Stuart Mill,On Liberty(Indianapolis, IN:

Hackett, 1978), p. 5.

29. Joel Feinberg,Harm to Others(vol. 1 ofThe Moral Limits of Criminal Law) (New York: Oxford University Press, 1984), p. 45; quoted in Barcalow, Moral Philosophy, p. 236.

30. Joel Feinberg,Harm to Self(vol. 3 ofThe Moral Limits of Criminal Law) (New York: Oxford University Press, 1986), p. 23.

31. See, e.g., Bruce A. Arrigo,Punishing the Mentally Ill: A Critical Analysis of Law and Psychiatry(Albany, NY:

State University of New York Press, 2002); Judith Lynn Failer,Who Qualifies for Rights: Homelessness, Mental Illness and Civil Commitment(Ithaca, NY:

Cornell University Press, 2002); Elyn R. Saks,Refusing Care: Forced Treatment and the Rights of the Mentally Ill(Chicago, IL: University of Chicago Press, 2002).

32. Barcalow,Moral Philosophy.

33. Ibid., pp. 244–245.

34. Joel Feinberg,Harm to Others,p. 188; quoted in Barcalow,Moral Philosophy,p. 239.

35. Joel Feinberg,Offense to Others(vol. 2 ofThe Moral Limits of Criminal Law) (New York: Oxford University Press, 1984), p. 5; quoted in Barcalow, Moral Philosophy, p. 239.

36. Feinberg,Offense to Others,p. 23.

37. Barcalow,Moral Philosophy,p. 241.

38. Robert Solomon,Ethics: A Brief Introduction(New York: McGraw-Hill, 1984), quote from page 4. 85 5 Why Should We Be Good? In 2008, Jonathan Lutman—a two-year veteran of the Slidell (Louisiana) Police Department—was arrested and charged with nine counts of theft and four counts of malfeasance. On each of the nine occasions, Lutman’s thefts occurred while he was on duty, during legal traffic stops of Hispanic males.

Allegedly, he would ask for their wallets, remove the cash, and then return the wallets (often without the victims knowing anything was missing). In all likelihood, Lutman singled out Hispanics as victims assuming that they would not report the thefts to police—assuming that, through careful selection of victims, he could get away with wrongdoing. Slidell Chief of Police Freddie Drennan commented, “He used his position to steal from these people. He used his position for personal gain.” 1 In an incident similar in an important respect, in 2009 two Pennsylvania judges were charged with accepting $2.6 million in kickbacks for putting teenagers in private detention centers run by PA Child Care LLC and Western PA Child Care LLC from 2003 to 2006. Teenagers were brought before the judges without attorneys, given trials lasting only minutes, and routinely sentenced to incarcera- tion in privately run juvenile facilities for minor offenses. Many of the teenagers had no prior records, and some were incarcerated for offenses as petty as writing prank notes and stealing loose change from cars. 2 Each of the cases above features criminal justice professionals who exploited opportunities to reap personal benefit from moral wrongdoing.Opportunistic theftby police officers and judges accepting kickbacksfor sentencing delinquents to incarceration are but two examples of ethically and morally impermissible behaviors that occur with some frequency in criminal justice and other professional contexts. Of course, moral wrongdoing is not limited to criminal justice, nor is it limited to the profes- sional environment. Avoiding acts that are morally forbidden and engaging in acts that are morally obligatory present challenges around every corner of our personal and professional lives—particularly when we stand to benefit from doing the wrong thing, or bring some harm or inconvenience to ourselves by doing the right thing.

Morality demands maintaining integrity in both personal and professional realms. Yet morality is not simply about having the capacity for integrity; it is about exercising that capacity. An important question thus becomes, “What motivates us to exercise (or fail to exercise) that capacity?” What reason do we have to avoid moral wrongdoing? To do the “right” thing? To act with justice, and to be honest, giving, tolerant, or caring? In short, what motivates us to be moral, especially when we stand to benefit from immorality? THE RING OF GYGES The case of Jonathan Lutman described above is in some ways similar to the tale of Gyges, as told by Plato (427 B.C.E.–347 B.C.E.) in his Republic. 3Gyges was a poor shepherd who lived in the service of the King of Lydia. One day, a violent rainstorm and earthquake opened a hole in the ground.

Coming upon this chasm, he proceeded to explore it, finding a corpse wearing nothing but a gold ring. Gyges put on the ring, ascended from the hole in the ground, and continued about his normal business. Shortly thereafter, as he was sitting among several others at a monthly meeting, he began playing with the ring. As he twisted the hoop of the ring toward himself, he became invisible.

The others went on talking as if he had left. As he turned the hoop outward, he became visible again.

The ring, it seemed, had the power to make the wearer disappear. Recognizing the opportunities for personal gain the ring presented, Gyges began to make use of his newfound power. He immediately became one of the king’s messengers and, from within his new position, proceeded to seduce the queen, plot with her to murder the king, and to take over the kingdom. By way of his power of invisibility, Gyges went from poor shepherd to powerful and wealthy ruler of Lydia. 4 The ethical question that arises from Plato’s tale is as follows: “Why should we be moral when we know (or, at least, think) that we can reap tremendous benefit from acting immorally?” Moreover, why should we do the “right” thing if we can (or, again, think we can) do the “wrong” thing and get away with it? None of us will likely have the opportunity to become invisible, but we all certainly have had and will be faced with situations in which we stand to benefit personally and/or professionally from immoral actions that can easily go overlooked or for which there are no negative consequences. What, then, motivates or should motivate us to avoid moral wrong-doing and to undertake that which is morally good? THE FORMS AND EFFECTIVENESS OF REWARD AND PUNISHMENT One possible response to the question, “why be moral?” draws upon reward and punishment as incentives for behavior. In the story of Gyges, Plato implies a human nature that is egoistic,or motivated by self-interest. We do the right thing, Plato assumes, only because we fear that if we do the wrong thing we will be caught and punished. If, like Gyges, we could do whatever we wanted—knowing we would never be caught—we would all act with little or no concern for the welfare of others, quite possibly even causing harm to others along the way. That people will act immorally if not somehow prevented from doing so is a common theme informing many depic- tions of human nature, and is a key assumption informing systems of government, codes of law, religion, and professional conduct, and other sets of rules and regulations. Each of these either explicitly or implicitly relates to the threat of sanctions to encourage compliance with identified standards of right and wrong conduct. In other words, they are efforts to motivate people to do the right thing by, in part, instilling a fear of doing the wrong thing. Various forms and degrees of sanction are presumed necessary to keep our egoistic tendencies “in check” and to motivate us to balance our own interests against the welfare of others. 5But is the motivation derived from fear of sanctions enough to ensure that we do the right thing? Even if so, does doing the “right” thing because we fear being caught and punished make us “moral” people?

External Sanctions: From the Law and God Modern legal systems were constructed as a source of formal social control—to ensure behavioral conformity and social order by threatening citizens with various forms of sanction for violating criminal codes, breaching contracts, disobeying authority, and so forth. Yet how effective is the 86Part 2 • Metaethics and Moral Psychology threat of sanctions posed by law? As a matter of fact, violations of the law usuallygo unpunished.

Most of us have committed at least minor infractions of the law at one time or another (e.g., speeding, underage alcohol consumption, illegally copying or downloading music). It is likely that, when contemplating these behaviors, we concluded that there was little chanceof being caught, and/or that the consequencesof being caught were not significant enough to be of much concern. In other words, we feel fairly certain that, most of the time, we can get away with it or that we can live with whatever consequences may come. The threat of sanction thus proves often to be ineffective in preventing moral wrongdoing.

Even if deterrence by threat of sanction were an effective motivator, however, it is still insuf- ficient for morality. Our reason for not speeding, not stealing, and not lying must be something other than or at least in addition to simply attempting to avoid negative consequences. Even where laws, codes, and regulations are effective in reducing wrongdoing, they do little in the way of influ- encing our underlying desires. In other words, just because we are afraid to commit wrongdoings does not mean that we do not still want to. Increasing fearby, for example, increasing the severity of punishment may increase conformity, but it does not serve to develop our moral sensibilities.

In fact, people do not always engage in moral wrongdoing even in situations where they know they can get away with it. Think of opportunities you may have had to take something that does not belong to you, “cheat” on a spouse or lover, break a promise to a friend, or lie for per- sonal gain but elected to do otherwise. Why? Most likely, you were motivated by something other than the simple fear of being caught. Moreover, most of us would probably agree that we would not wantto live in such a world. Would we feel comfortable with a spouse or lover who was faithful only because she or he was afraid of being caught? Would we want our friends to keep promises only because they feared the consequences of not doing so?

Some will argue that, even where moral wrongdoing goes undetected by human authori- ties, it is nonetheless always detected by divine authority. In these cases, it is argued that God provides a source of motivationor reasonfor avoiding wrongdoing and honoring our moral obli- gations. 6More specifically, the belief that gives rise to that motivation is that God rewards the good and punishes the evil—in this world or some other. The answer to the question, “Why be moral?” becomes the promise of divine reward and the avoidance of divine punishment.

Although religion may have an important role to play in morality, in this case we must confront the same problem raised above; namely, that behaving morally simply because we fear the conse- quences of not doing so is insufficient for genuine morality. Even if religion has a role in our motivation, the promise of divine reward and the fear of divine punishment should not be our sole source of inspiration for moral behavior (more on this below).

Internal Sanctions: Conscience and Guilt Punishment for immoral behavior need not come from only external sources such as the legal system or divine authorities. An equally important type of sanction emerges from our own conscience when our choices and behaviors contradict moral values and principles. 7Conscience typically refers to our awareness that certain actions are morally right or wrong. To “have a conscience” implies that we are aware that the actions we undertake or those that we intend to undertake have a moral quality. 8Such an awareness typically includes a set of internally felt stan- dards by which we judge ourselves, and a corresponding experience of “bad conscience” when our actions contradict those internal standards. 9Importantly, conscience is not something we have to “use”; rather, it is part of who we are. We need not consciously reflect upon whether our actions are congruent with our inner standards for our conscience to have influence. Our self-evaluations operate largely beneath our conscious awareness. Chapter 5 • Why Should We Be Good?87 The experience of “bad conscience” noted above is typically described as guilt—the anxiety or emotional discomfort felt when we deviate from those internalized values and standards of con- duct.

10Unlike legal guilt, the “guilt” derived from our conscience is something personal that results from a psychological process. In this way, guilt differs from religious or legal punishment in that it is a self-imposed punishmentor sanction; moreover, it is emotional self-punishment. 11Because it is self-imposed and emotional in nature, guilt differs from other forms of sanction in its tendency to continue even afterother forms of sanction disappear. In this sense, it may be the strongest of all sanctions. In another sense, however, it may be the weakest and least reliableof sanctions.

On one hand, guilt’s effectiveness as a motivation for moral behavior is limited in that it is contingent upon our beliefthat we have harmed someone or violated some moral standard.

Absent this belief (or if we rationalizeour conduct), guilt fails to function as an effective sanction (see Box 5.1). We must, of course, already have developed moral sensibilities or inner standards for the process of self-judgment to unfold. If we haven’t such sensibilities, we will not experience guilt; if we do not feelor experienceguilt or remorse how is it to serve as a motivating factor in our choices and actions? 88Part 2 • Metaethics and Moral Psychology BOX 5.1 Rationalizing Police Deviance In their theory of delinquent behavior, Sykes and Matza proposed that lawbreakers are able to protect them- selves from feelings of guilt and negative self-image by rationalizing or justifying their conduct. What they referred to as “techniques of neutralization” are of five basic types: denial of responsibility, denial of injury, denial of victim, condemnation of condemners, and appeal to higher loyalties. As Kappeler et al. suggest, these meth- ods of rationalization or justification may also be useful in helping us understand forms of police deviance:

•Denial of responsibility(“they made me do it”).

The injury caused (or that could have been caused) by an officer’s actions was due to forces beyond her or his control. In the context of police work, violencemay be regarded as an appropriate and necessary reaction to defiant citizens/suspects. Where force or excessive force is used, the officer’s belief that she or he was provoked by the citizen may allow the officer to rationalize her or his behavior. Doing so shifts responsibility for the use of force away from the officer and onto the citizen.

•Denial of injury(“no innocent got hurt”).

Wrongfulness depends upon whether anyone— or anyone innocent—was hurt by the action.

Stealing from suspects (e.g., drugs, money) for personal gain, violating constitutional rights of suspects to make an arrest or secure a conviction,and abusing authority to maintain order are each excusable as no real injury was caused.

•Denial of victim(“they deserved it”). The injury or harm caused was not wrong given the circumstances under which they occurred. In many cases, this involves rationalizing the harm as a form of punishment or as justice. The use of force, for instance, can be rationalized as justifiable punishment in certain situations or with respect to certain types of people. Those who run from police, use illegal drugs, or defy authority are “threats”—predetermined as dan- gerous by virtue of who they are and in need of “punishment.” •Condemnation of condemners(“they don’t know anything”). Attention is shifted away from the wrongdoing and the wrongdoer and toward those who disapprove of the action(s): the exclu- sionary rule is simply a “loophole” for criminals which makes police work more difficult; judges are “soft on crime”; citizens who bring lawsuits or complaints against officers are “hostile” or resentful toward the police; those who would pass judgment on the behavior of officers do not understand the realities of the job. In each case, the problem lies not with the officer’s motives or behaviors, but with the rules, motives, perception of those who would control and judge them. Chapter 5 • Why Should We Be Good?89 not lying, giving rise to perjury or false testi- mony. Protecting another officer—even when this involves unethical and/or illegal conduct—is expected and regarded as noble as it demon- strates loyalty and solidarity. Sources: Victor Kappeler, Richard Sluder, and Geoffrey Alpert,Forces of Deviance: Understanding the Dark Side of Policing, 2nd ed. (Prospect Heights, IL: Waveland Press, 1998), pp. 113–125; Gresham Sykes and David Matza, “Techniques of Neutralization: A Theory of Delinquency,” American Sociological Review,22(6), 664–670 (1957). •Appeal to higher loyalties(“protect your own”).

The most powerful of techniques of neutraliza- tion, appeal to higher loyalties involves perceiv- ing certain (informal) norms as more important or as involving a higher loyalty than abidance by formal laws, rules, or norms. Larger societal norms or the formal norms of the organization can and should be sacrificed in the interest of abiding by norms of the smaller group to which the officer belongs (i.e., those of police subcul- ture). The informal norm of secrecy and loyalty to other officers overrides the formal norm of A second problem with conscience and guilt as motivations for moral behavior is that their strength is, for many people, limited. Most of us have at some point in our lives done something or some things for which we harbor no pride. Perhaps we hurt a close friend, either intentionally or through neglect. Perhaps we even “felt bad” or guilty about our actions. Nevertheless, we learned to live with it. The simple fact about guilt is that, even when we experience it, we typically “get over it.” 12 For several reasons, then, guilt and conscience seem to have limited power in our everyday moral lives. Some people seem incapable of guilt, perhaps “having no conscience”; others rationalize individual instances of immoral behavior to avoid feeling guilt in that situation; and still others feel some sense oftemporaryguilt, but soon get over it. Because guilt and conscience are internal, we can confront and deal with them internally as well (see Boxes 5.1 and 5.2). Consequently, while conscience may play a role—and perhaps an important one—in morality, it is not sufficient in itself as a motivation for ethical conduct.

BOX 5.2 Rationalization and Cheating among College Students As we saw in Box 5.1, oftentimes we can avoid the feeling of guilt if we rationalizeor in some way justify our behaviors to ourselves. Another example might be the various justifications that college students some- times use to excuse cheating or plagiarism. Research indicates that as many as two-thirds of college stu- dents have cheated on a major exam/assignment at some point in their college career. While rationalizing our immoral conduct may not allow us to escape pun- ishment from authorities (e.g., professors, university officials), it often protects us from self-punishment.

Consider how the following types of thinking allow students to avoid the feeling of guilt that would other- wise be attached to academic dishonesty:

• “Here at the University of ________, you must cheat to stay alive. There’s so much work and the quality of materials from which to learn, books, professors, is so bad that there’s no other choice.”• “Everyone has test files in fraternities . . . If you don’t [cheat], you’re at a great disadvantage.” • “If our leaders can commit heinous acts and then lie before Senate committees about their total ignorance and innocence, then why can’t I cheat at least a little?” In each of these cases, students are justifying their behavior. In other words, they are identifying what they believe to be reasons that defensibly excuse their immoral conduct. Rationalization prevents the psychological mechanism of guilt from working as it should. If we can convince ourselves that we were jus- tified in behaving immorally, we will not “feel bad” about acting immorally. Source:Donald McCabe, “The Influence of Situational Ethics on Cheating Among College Students,” Sociological Inquiry, 62(3), 365–374 (1992). 90Part 2 • Metaethics and Moral Psychology THE MORAL SUFFICIENCY OF REWARD AND PUNISHMENT What each of the above discussions—guilt, God, and the law—have in common is the idea that we are or at least can be motivated to be moral by either expectation of reward or, more commonly, fear of punishment or other negative consequences. Consequences—both positive and negative—can, in some cases, be useful. Yet the utility of consequences is limited to instances where there is a need to compensatefor a lack of morality. To illustrate, consider the situation of young children. Most parenting practices rely on the imposition of punishment or the granting of rewards for right and wrong actions. However, parents rely on reward and punishment only because children have yet to acquire a sufficient understanding of right and wrong (see Chapter 7 on moral development for more details). However, in adults with presumably more developed moral capacities, being a good person or doing the right thing requires motivation other than or in addition to reward and punishment. Several reasons for this are worth considering.

Reward, Punishment, and Self-Interest For most moral philosophers and the general public alike, morality does not consist solely of doing what is in one’s own best interest. 13Concern for one’s self is inevitable and perhaps desir- able. As well, there are many ways and situations in which morality and self-interest coincide.

Being honest, for example, can be both moral andin one’s personal best interests (more on this in the next chapter). Yet when our response to the question, “Why be moral?” principally focuses on the possibility of suffering negative consequences or securing some reward for ourselves, then we are indirectly citing self-interest as the most salient reason for our actions. As we will see in Chapter 7, developed moral decision-making is typically thought to involve more than a concern for consequences to oneself.

The Need for Reward/Punishment Reflects an Absence of Morality Prussian philosopher Immanuel Kant (1724–1804) argued that neither reward nor punish- ment should be regarded as incentives to action. We should not do good deeds because of the expectation of some reward; and we should not avoid evil deeds because of the expectation of punishment. Kant makes a provocative argument that motivations involving reward and punishment in fact demonstrate a lack of morality. 14 If, for instance, correctional officers refrain from accepting bribes for fear of being disciplined, they have failed to recognize either the wrongfulness inherent in the act of bribery, or the harm potentially caused to others (e.g., family, fellow officers, the image of the department) as a result of those actions. If we are truthful or honor our obligations only because we fear the consequences of not being or doing so, we cannot say that we embody honesty or that we recognize the moral value of honoring obligations in the first place. One who embodies the virtue of honesty, for example, will be so inclined even in the absence of rewards, punishments, and other nonmoral incentives.

As has been emphasized several times throughout the beginning chapters of this text, morality is not merely a matter of doing the right thing, but also of having the right reasons for doing those things. While many of us may believe that we are moral because we refrain from acting immorally, Kant reminds us that the absence of immorality does not equal morality. 15It may be unsettling to consider that simply because we have abided by the law, been faithful to our lovers, and displayed honesty, trustworthiness, responsibility, and so on throughout the majority Chapter 5 • Why Should We Be Good?91 of our lives, we are not necessarily “moral” people by this logic. In short, being good is as much about character, intention, values, virtues, and principles—in short,whywe do the right thing— as it is about whetherwe do the right thing.

Reward and Punishment Are Impediments to Morality Might it be that rewards and punishments are not only insufficient for morality, but also serve to preventthe development and sustenance of morality? As Kant suggests, “a man [sic] who is rewarded for good conduct will repeat that conduct because it is rewarded.” 16Similarly, “one who is punished for evil conduct will hate not the conduct, but the punishment.” 17Rewards and punish- ments do tend to shape our decisions and actions, but their ultimate purpose is simply to encourage us to repeat the good and refrain from the bad. In other words, reward and punishment are not intended to encourage us to reflect on the morality of those decisions and actions. Indeed, we can encourage people to refrain from undesirable behavior by putting rewards and sanctions in place to mold behavior; yet doing so will do nothing to alter the underlying motivations that gave rise to the behavior in the first place. 18 If our goal is simply to encourage certain forms of conduct and to discourage other forms of conduct, sanctions of various sorts can be effective. On the other hand, if our goal is to encour- age the development of thoughts and feelings conducive to morality, reward and punishment will be of little value. Again, we should keep in mind that morality consists not only of “doing” the right thing, but also of understanding whyit is right or, alternatively, why it is wrong. Instilling fear of consequences through the imposition of punishment is, as Kant noted,teaching a person to hate the consequences rather than the act itself. Rather than being or becoming moral people, we simply live in fear of being immoral.

For this reason, Kant argued that “it is wrong for religion to preach that men [sic] should avoid doing evil in order to escape eternal punishment,” because people will fear the punishment rather than recognize and accept the wrongfulness of the deed itself. 19 We could say the same about law, parenting, the system of education, health, professional codes of conduct within crim- inal justice, and so forth. Morality requires us to develop an appreciation for the wrongfulness of our actions and be motivated to avoid them because of that wrongfulness rather than (or at least in addition to) negative consequences (see Box 5.3). BOX 5.3 Desistance from Crime and Offender Rehabilitation In Chapter 9, we will look more closely at the moral problem of criminal punishment and the purported goals of punishing offenders. For now, let’s consider how the logic of reward and punishment might be applied in the context of desistance from crime and offender rehabilitation. It is often claimed that deter- rence is an effective crime-reduction strategy. Yet a person who is successfully deterred from committing criminal offenses is not likely to refrain from such behav- ior because she or he genuinely understands that these actions are wrong. Instead, the individual simply fearsthe consequences attached to the ongoing commission of these criminal acts. These consequences or penalties are likely to include additional if not increasing amounts of prison time, resulting in devastating outcomes for the individual’s personal and professional life.

Offender recovery and reform, on the other hand, depend on meaningful forms of rehabilitation that teach ex-offenders to reconstruct various facets of their lives.

This includes such things as their relationships, their out- look toward work, their commitment to change, their response to authority figures, etc. In short, the key is to 92Part 2 • Metaethics and Moral Psychology RELIGION AS SOURCE AND MOTIVATION FOR MORALITY Ethics and religion have become nearly synonymous for many people, with religion serving as both a source of morality and a as a point of moral reference (see Box 5.4). 20Indeed, nearly all cultures in all time periods evidence religious belief, and in many those beliefs are regarded as a source of and motivation for morality. 21Yet to what extent can and should religion serve as a foundation for morality? Within ethics, answers to questions of morality and moral psy- chology that appeal to religion are typically categorized as variations ofDivine Command Theory, which argues that certain actions are good or bad, moral or immoral, because they are approved or disapproved of by God (i.e., because God, the Bible, Koran, etc., say so).

While religion plays an important role in the lives of many people, reliance on any religion as a source of moral values and a reason for moral belief should proceed with several reserva- tions in mind.

Necessary Belief?

One of the biggest limitations of relying on religion to answer questions of moral significance is the implication that there is no morality unless one believes in God. Having certain kinds of reli- gious belief is thus a necessary conditionfor morality. As such, people who do not believe in a higher power or some otherworldly source that accounts for our very existences cannot hope to be moral unless they first convert to the particular faith in question. Most of us, however, would agree that it is at least possible for a person to be moral without sharing in a particular set of reli- gious or spiritual beliefs. In fact, many moral philosophers would argue that belief in God is not necessary for morality. 22 It is not only possible but common for people to embody integrity, to make morally sound choices, and to act in virtuous ways out of concern for humanity, respect for other people, compassion, and other motives that are not necessarily linked with a belief in a higher power. While religion may help some people to clarify their moral values and principles, it is not necessaryas motivation for morality.

Common Ground A second important limitation of relying on religion as a source of morality is what is termed the problem of common ground. It is notable that religious reasoning often extends only to people who share in that reasoning. It is generally understood within ethics, however, that for something to system of rewards and punishments is that, in some ways, it can function to prevent or inhibit precisely the sort of moral character necessary to desist from crime, and to experience personal insight.

Source:David Garland, Punishment and Modern Society (Chicago, IL: University of Chicago Press, 1990); Elliott Currie, Confronting Crime: An American Challenge(New York:

Pantheon, 1985); for an interesting study of crime desistance, see Shadd Maruna, Making Good: How Ex-Convicts Reform and Rebuild Their Lives(Washington, DC: American Psychological Association, 2002). identify the barriers that stand in the way of recovery (whether self-imposed or imposed by society), to work through them, and then to learn from these impedi- ments. In contrast with deterred offenders, reformed or rehabilitated offenders come to appreciate the wrong- fulness of their past criminal actions when experiencing a change in character and, thus, motivation. In other words, “making good” entails a form of “moral develop- ment,” if you will (more on this in Chapter 7). In this context, rewards and/or punishments are simply inade- quate when it comes to rebuilding one’s life and doing things for the right reason. In fact, the problem with a Chapter 5 • Why Should We Be Good?93 be a sufficient foundation for morality and/or a sufficient motivation for moral behavior, it should be reasonable to all people—regardless of religious beliefs, personal values, degree of education, and so forth. It should at least be possible for people of all faiths (as well as atheists and agnostics) to find common groundon important moral issues. Where this is not possible, principles and arguments drawn from religious sources lack the universalizability(or generality) toward which ethics strives. 23 Ethical discussions should occur on some ground that is common for allinterested par- ties.24Imagine, for example, that you must spend the rest of your life on an island with ten other people, each with a different religious or spiritual background. Obviously, there will be a needBOX 5.4 Civil Religion and Flag Desecration There are many controversies in criminology/criminal justice that have a religious or near-religious dimension to them. One such act that has brought decades of public concern, intense legal battles, and various forms of social control is that of desecrating the American flag. Throughout American history, repeated efforts have been made—sometimes successfully, other times less so—to criminalize what are thought to be improper and offensive uses of the Stars and Stripes.

From politically charged acts such as flag burnings to controversial (and arguably distasteful) creative and artistic representations of Old Glory, destruction and desecration of the American flag has always elicited powerful emotional reactions from many among the American public. Yet why and how is it that a piece of cloth generates so much controversy?

In virtually all cultures, certain symbols are held to be “sacred” and expected to be cherished, hon- ored, and revered. Because, as Michael Welch writes, it is “imbued with patriotic qualities of sacred propor- tion” and is characterized by “deep emotional— virtually religious—attachment,” desecration of the flag often provokes particularly strong sentiments.

The American flag is “emblematic of patriotism,” and represents freedom, opportunity, and all that is good and right about the United States—it is the foremost icon of America’s history, power, and way of life.

Should we be surprised that, in a 1992 Gallop poll, 77 percent of Americans indicated that the burning of the flag should notbe protected by the First Amendment?

Michael Welch argues that the American flag embodies civil religion—a “nonsectarian faith in which secular objects are transformed into sacred icons.” In part because it embodies civil religion, social move- ments intent on protecting the flag have arisen andpersisted throughout much of recent American history.

Welch describes “rallying around the flag” as “a ritual infused with patriotic fervor . . . resemble[ing] nonde- script religion.” Movements seeking to criminalize flag burning are one example of the interweaving of religion and the state. Though in principle they are to remain separate, church and state “frequently operate in concert to promote religion and patriotism, together becoming a potent unifying force in American culture.” The influence of religious forces is evident even within the language of law, where the flag is a “venerated” object, its destruction a form of “desecration.” • What does the American flag symbolize to you and others around you (e.g., family, friends)?

• Do you consider the American flag to be a “sacred” object in the same way that religious symbols might be?

• How important is the American flag compared with other objects and symbols that you or oth- ers may hold to be “sacred”?

• Should desecration of the flag be protected under the First Amendment of the Constitution (freedom of speech)?

• If not, should burning of the flag be illegal?

What about wearing a skirt made from the American flag? Wearing a T-shirt with a political message superimposed upon the flag? Flying the flag upside down? In what, if any, ways are these forms of flag “desecration” different?

• If illegal, what punishment should be proscribed for various forms of flag desecration? Source:Michael Welch, Flag Burning: Moral Panic and the Criminalization of Protest(New York: Aldine de Gruyter, 2001), quotes taken from pages 4, 5, 31, and 32. for some common moral foundation to ensure that you all could lead safe, secure, and satisfying lives together. While threats of divine punishment might be effective for those who share in that fear, you would be better off appealing to other kinds of values and principles that all could agree are necessary for the mutual benefit of everyone. In fact, resorting to religion in such a circum- stance may well generate conflict and interfere with your building a mutually beneficial social climate (see Box 5.5). 94Part 2 • Metaethics and Moral Psychology BOX 5.5 Religion and the Practice of Capital Punishment Notwithstanding the supposed need for separation of Church and state, some have argued that religious considerations shouldplay an important role in the development and implementation of public policy.

Exactly whatreligious teachings say about these issues is often a matter of interpretative conflict. One such issue over which much controversy exists and about which many Americans turn to religion for guidance and/or support for their position is that of the death penalty, or capital punishment for criminal offenders. As Christianity is by far the largest religious group in the United States, it is on Christian teachings that we focus.

Religious Support for Capital Punishment Within the Christian faith groups, passages from the Old Testament (a.k.a. Hebrew Scriptures or Judaic Bible) are common reference points for the justification of capital punishment on retributive grounds (e.g., an “eye for an eye”). Problematically, a literal interpretation of the Old Testament would also have us support slavery and pre- scribe the death penalty for theft, blasphemy, laboring on the Sabbath, cursing one’s parents, adultery, and a good number of other “crimes” that are no longer capi- tal offenses and for which few—if any—people would continue to support death as a punishment. The wide range of offenses (no less than thirty-six) punishable by death in biblical times notwithstanding, in practice the penalty was rarely used. Procedural rules made it diffi- cult, if not impossible, to impose a sentence of death.

Accused offenders enjoyed a variety of safeguards designed to protect against wrongful execution. The lack of such safeguards in today’s criminal justice system (or, at least, the seeming ineffectiveness of those that do exist) is sometimes cited by contemporary religious authorities as grounds for supporting capital punishment in principle, yet opposing it in practice. Religious Opposition to Capital Punishment Most Christian denominations and groups—both Eastern and Western—oppose capital punishment and support its abolition. In fact, since the 1950s and 1960s, the Catholic Church as well as all major denominations of Protestantism—save the Southern Baptists—have officially aligned themselves against the death penalty.

Religious leaders who advocate the abolition of the death penalty have pointed generally to teachings advo- cating love (even for one’s enemies), mercy, and forgive- ness in the New Testament and to capital punishment’s inconsistency with the effort “to promote respect for human life, to stem the tide of violence in our society and to embody the message of God’s redemptive love.” As well, some have argued that by executing a mur- derer, we are taking away her or his opportunity to repent. Finally, capital punishment is believed to “insti- tutionalize retribution and revenge and to exacerbate violence by giving it official sanction.” The ambiguous and sometimes contradictory na- ture of scriptural references has given rise to a storied history of disparate interpretations and a general lack of consensus within the Christian tradition concerning the morality of capital punishment. Interestingly, not all—or even most—members of Christian denomina- tions share in the official position of their group.

Notwithstanding the opposition to capital punishment by virtually all major Christian denominations, as many as 80 percent of Christians continue to support capital punishment—slightly higher than support within the American population at large. As Robert Bohm sug- gests following Protestant scholar and journalist Reverend G. Aiken Taylor, much of the confusion may be a function of unanswered questions concerning the difference between the Christian personal ethic and Christian ethics as they apply to the maintenance of social order. Most Christians “tend to apply what the Independent Good In his Euthyphro, Plato narrates a conversation between Socrates and Euthyphro during which he posed the now-famous question, “Why does God command something?” Certainly, what God directs is good and right, but what Socrates was asking is why are these thingscommanded?

Socrates proceeded to argue that God commands that which is good. There is a subtle but impor- tant logic to this: conduct is not right or good because God commands it; rather, God commands it because it isgood. Murder, for instance, is not wrong because God commands that it is; rather, the wrongness of murder itself is what makes God command that it is so. In other words, murder is wrong because it iswrong. 25 By the logic of Divine Command Theory, if God had commanded that we always lie, then lying would be good. If God had ordered that we murder our neighbors, be unfaithful to our spouses, and steal from our friends, then murder, infidelity, and stealing would be right. We could respond, however, that God would never command such things. If so, the question is why?If God would never direct us to lie, cheat, and steal, then God must understand that these things are not good, right, and just. If this is the case, then what is good, right, and just must exist independentof God’s command. 26 Arguably, God thus has some conception of goodness and justice and, through commanding it, shares and imparts this conception. If this is true, one implication is that determining what is good and right does not depend on a higher power—anyone could reach the same conclusions about what is right and good without relying on God to tell them. Consequently, religion may be beneficial, but is not necessaryfor morality. Even if we reserve an essential role for religion in our own lives, we should always be thinking critically about the underlying reasons for religious imperatives, not simply accepting them as presented. EGOISM AND THE CRIMINAL JUSTICE SYSTEM: CORRUPTION IN POLICING AND CORRECTIONS The motivation to consider our own interests when making choices may be an inevitable aspect of human nature. In fact, in and of itself the rational pursuit of self-interest is not necessarily morally problematic. However, excessive egoism can lead us to pursue personal gain at great Chapter 5 • Why Should We Be Good?95 Bible teaches us about how we—personally—should behave toward our neighbors . . . ” However, it may be that this personal ethic should be understood differ- ently from what the Bible teaches about ethics and the preservation of order within society. Perhaps the Bible encourages individual Christians to love, show mercy, and forgive, yet allows for governing bodies to impose capital punishment where it is in the interests of the common good. Indeed, as Bohm asks, does God have two different sets of rules—one ethic for individual Christians and a different ethic for governments and rulers?

We would seem to be without an authoritative answer to this and similar questions. Given the ambiguous nature of the Christian scriptures on the issue of capital punishment, the controversy over whetherdeath is a morally acceptable sanction within the Christian paradigm will surely continue. In the meantime, as Bohm implies, the fact that such a lack of consensus is evident even within the Christian tradition should encourage us to question the value and desirability of religious influence on lawmaking and conceptions of justice—whether in the context of capital punishment or elsewhere. Sources: Robert Bohm, Deathquest II: An Introduction to the Theory and Practice of Capital Punishment(Cincinnati, OH:

Anderson, 2003), pp. 242–243; Avery Dulles, “Catholicism and Capital Punishment,” First Things, 112, 30–35 (April 2001); Gail B. Szumski, Lynn Hall, and Susan Bursell (Eds.), The Death Penalty: Opposing Viewpoints(St. Paul, MN:

Greenhaven, 1986), pp. 86–91. expense to others—at times, directly and intentionally causing harm to others along the way.

In the same respect, we can say that egoism is evident in criminal justice wherever practitioners place personal gain above morality and legality, acting so as to further self-interest at the expense of ethical considerations and the welfare of others and the greater community. In this way, self- interest and the desire for personal gain pose formidable challenges to everyday personal and professional decision-making. 27For this reason, virtually every professional code of ethics either explicitly or implicitly cautions against allowing personal gain or self-interest to influence the performance of professional duties. For instance, • A lawyer should not accept proffered employment if his personal interests or desires will . . . affect adversely the advice to be given or services to be rendered . . . (American Bar Association Model Code of Professional Responsibility) • Members shall refrain from allowing personal interest to impair objectivity in the perform- ance of duty . . . (American Correctional Association Code of Ethics) • Psychologists refrain from taking on a professional role when personal [or other] interests [could] . . . impair their objectivity, competence, or effectiveness . . . (American Psychological Association Ethical Principles of Psychologists and Code of Conduct) These formal prohibitions notwithstanding, instances of egoistic behavior in all fields of criminal justice are not uncommon. In fact, many forms of unethical conduct in criminal justice ulti- mately stem from egoistic motivations. Although there are other forms of professional deviance that are egoistically motivated, in this section we highlight several examples ofcorruptionin both police and correctional contexts that illustrate the ways in which egoism can and sometimes does interfere with ethical responsibilities of criminal justice practitioners.

Police Corruption Michael Johnston defines police corruptionas actions that “exploit the powers of law enforce- ment in return for considerations of private-regarding benefit and that violate formal standards governing his or her conduct.” 28 Corrupt acts, John Kleinig writes elsewhere, occur wherever officers “act with the primary intention of furthering private or departmental/divisional advan- tage.” 29 What makes corrupt acts egoistic is that their underlying motivation is personal gain.

By virtue of their authority, discretion, and the nature of their everyday work, police officers are routinely placed in situations where personal advantage can easily be furthered through unethi- cal and even illegal means. As one might imagine, examples of acts motivated by personal gain are numerous. In his Police Ethics: Crisis in Law Enforcement, for instance, Tom Barker offers the following typology of police corruption: 30 •Corruption of Authority.Accepting unearned rewards for doing one’s regular duties, includ- ing free meals, liquor, sex, discounts of various sorts from businesses, and payments from businesses to more closely monitor premises.

•Kickbacks.Receiving goods or services for referring business to attorneys or bondmen.

•Opportunistic Theft.Stealing money or property from suspects or victims, goods not taken by a burglar, evidence that has been confiscated (e.g., drugs or money from drug busts).

•Shakedowns.Accepting money or other forms of payment for not making an arrest.

•Protection of Illegal Activities.Accepting money from vice operators or companies operat- ing illegally.

•Fixes.Accepting money or other rewards/favors for overlooking traffic violations, quashing prosecution proceedings by, for instance, tampering with evidence or committing perjury. 96Part 2 • Metaethics and Moral Psychology •Direct Criminal Activities.Engaging directly in various forms of criminal activity, such as selling drugs, robbing stores, or burglarizing homes or businesses.

•Internal Payoffs.Buying or selling employment-related benefits, such as off days, holidays, work assignment, evidence, or promotions.

Each of the above-listed activities is an unethical, and in many cases illegal, means of furthering one’s own advantage. They illustrate some of the ways in which police authority and discretion can be used improperly and egoistically to advance personal gain.

Various attempts have been made to explainthe persistence of police corruption. One popular set of explanations focuses on predispositionsor characteristics of individual officers.

The so-called rotten-apple explanationwas widely accepted prior to the 1960s. It implies that the cause of corruption is to be found in the questionable moral character of a few individuals who, by virtue of their psychological makeup, were predisposed to engage in corrupt practices even before they joined the police force. More recent research on the “police personality” sug- gests that persons with certain personality traits such as authoritarianismthat are linked to unethical conduct are more likely to be drawn to law enforcement. Corruption is thus the result of traits and values that a significant percentage of officers bring with them to the job or, in some cases, develop over the course of socialization and on-the-job experience. 31 In effect, suggesting that corrupt practices are limited to a small number of “bad apples” or are otherwise the result of predispositions of individual officers diverts attention from depart- mental, institutional, and systemic factors. Explanations that involve the latter focus less on indi- vidual (psychological) characteristics of officers, and more on sociological variables. Implicated in departmental, institutional, and systemic explanations are factors such as ineffective anticor- ruption protocols, the wide discretion enjoyed by police officers, the difficulties of supervising officers, the lack of public visibility keeping officers “in check,” and norms of secrecy and loyalty that pervade law enforcement.

Whatever its causes, corruption potentially brings a number of negative consequences for individual officers, departments, and the greater community. For instance, area residents may experience increased crime/victimization, offenders who cannot or do not pay may receive rela- tively harsher treatment, inner-city and other high-vice neighborhoods may experience stronger organized crime presence and increased deterioration, and the general public may lose trust and confidence in the police. 32 In light of these and other troubling effects of police corruption, a number of suggestions have been proposed as to how best to combatpolice corruption. Some have suggested that departments do more to detect corruption and increase accountability. 33 Others have suggested that reducing corruption begins with the recruitment, hiring, and training of ethical officers. Hiring officers with higher levels of moral character and placing greater emphasis on ethics in education and training will, in principle, reduce the likelihood that new officers will become involved in corrupt activities. Police training, as Alpert and Dunham suggest, “must help officers to thinkas well as to react and respond.” 34Officers “must not only be trained, they must be educated. . . . training must teach critical thinking and problem-solving tech- niques.” 35 It is in part because of this need that more and more colleges and universities are requiring students to take ethics courses as one dimension of their criminal justice curriculum.

Prison Corruption Prison corruption has been, in Bernard McCarthy’s words, “a persistent and pervasive feature of corrections.” 36 While patterns of corruption in prisons are in many respects similar to those in policing, there is at least one notable difference. Prisons are secluded, protected Chapter 5 • Why Should We Be Good?97 environments—existing and operating largely outside of the public’s view. Because of this, corruption in prisons is often unpublicized, and small-scale unethical practices are often not even reported. Other than the relatively few instances where prison corruption erupts into a publicized scandal, very little is known about it. Although corruption exists at higher levels of prison operations (e.g., administration), in this subsection we focus on forms of and motiva- tions for staff corruption.

Corruption in prisons exists in a variety of forms, from relatively minor instances of theft, to large-scale, organized drug-trafficking and counterfeit rings. What each has in common, how- ever, is underlying egoistic motivation—whatever its form, corruption is fueled by the desire for personal gain and the willingness and opportunity to neglect moral and legal obligations in its favor. Through his examination of official records of an internal affairs unit, Bernard McCarthy identified several general categories of corrupt conduct in prisons: 37 •Theft.Stealing valuables and other personal items from inmates during frisks and cell searches; stealing items from visitors during processing; and stealing items from other staff members.

•Trafficking.Conspiring with inmates and civilians to smuggle contraband into prisons in exchange for money, drugs, or other services. Common forms of contraband include much demanded and highly marketable items such as drugs, alcohol, and weapons. In some cases, guards act on their own, while others are of a much larger scale, involving street gangs and organized crime officials.

•Embezzlement.Appropriating goods belonging to the state for one’s own use. Unlike petty acts of theft, embezzlement involves “employees, sometimes with the help of inmates, sys- tematically stealing money or materials from state accounts (inmate canteens or employee credit unions) and from warehouses.” •Misuse of authority.Intentionally misusing one’s discretion for personal gain. Misuse of authority involves three basic offenses: (1) “the acceptance of gratuities from inmates for special consideration in obtaining legitimate prison privileges (e.g., payoffs to receive choice cells or job assignments),” (2) “the acceptance of gratuities for special considera- tion in obtaining or protecting illicit prison activities (e.g., allowing illegal drugs sales or gambling),” and (3) “the mistreatment or extortion of inmates by staff for personal mate- rial gain (e.g., threatening to punish or otherwise harm an inmate if a payment is not forthcoming).” 38 Corrupt acts in prisons can be further classified according to the traditional typology of misfeasance, malfeasance, and nonfeasance (a typology that is also sometimes used to categorize forms of police misconduct). Each involves the misuse of discretionary powers:

•Misfeasanceis the “improper performance of some act that an official may lawfully do.” Included herein are practices such as the accepting of gratuities in exchange for special privileges, selectively offering formal rewards and punishments for a fee, and the misuse of state resources for personal gain. The handing out of privileges (e.g., assignment to desir- able cell block), rewards and punishment, and use of state resources are lawful acts falling within the authority of prison employees. Misfeasance occurs where this lawful authority is used in an unethical fashion for furtherance of self-interest.

• Whereas misfeasance involves the “improper use of legitimate power or authority,” malfeasanceis “direct misconduct or wrongful conduct by a public official or employee.” Malfeasance includes such corrupt acts as theft, embezzlement, trafficking 98Part 2 • Metaethics and Moral Psychology in contraband, extortion, assisting escapes, and conspiring with inmates in forgery, drug, or counterfeiting rings.

• In contrast to both misfeasance and malfeasance, nonfeasance does not involve the com- mission of unethical or unlawful acts. Instead,nonfeasanceis the “failure to act according to one’s responsibilities, or the omission of an act that an official ought to perform.” Nonfeasance may include not reporting inmate violations (e.g., allowing inmates to have sex with visitors, looking the other way when drugs are smuggled into the prison), and may also include not reporting violations of other employees.

Efforts to explain correctional corruption have focused on both individual and institutional factors. Similar to individualistic explanations of police corruption, attention is sometimes drawn to characteristics and quality of prison personnel. Because correctional instituti