Help with Criminal Justice

Contributors: Robert M. Worley & Vidisha Barua

Edited by: J. Mitchell Miller

Book Title: 21st Century Criminology: A Reference Handbook

Chapter Title: "Criminal Justice Ethics"

Pub. Date: 2009

Access Date: May 28, 2017

Publishing Company: SAGE Publications, Inc.

City: Thousand Oaks

Print ISBN: 9781412960199

Online ISBN: 9781412971997

DOI: http://dx.doi.org/10.4135/9781412971997.n98

Print pages: 861-870

This PDF has been generated from SAGE Knowledge. Please note that the pagination of

the online version will vary from the pagination of the print book. Page 2 of 14 Ethics is the study of morality, which prescribes what comprises good and bad conduct.

Ethics and morality evolve out of the human experience, beginning in childhood at home and

in places of worship and religious gatherings, and advancing to more pronounced rules,

regulations, and laws that one needs to abide by as he or she grows into an adult. The study

of ethics comprises three branches: (1yf , which involves the interpretation of ethical

terms; (2yf , which determines what people ought to do; and (3yf ,

which is concerned with the practical application of ethical principles, especially in professions

such as medicine and law (Pollock, 2007yf .

Criminal justice and ethics are closely related. According to , the

denizens of a country give up certain liberties to be protected by the government, and criminal

justice professionals are agents of the government. Justice practitioners are expected to have

a higher moral character, so that the common man can feel confident about the agents of the

government that are affording them protections. Virtually all criminal justice professionals, be

they police officers, judges, prosecutors, defense lawyers, correctional officers, probation

officers, or parole officers, need to exercise the use of their discretion at some point or another

during the course of their careers. Usually this occurs when practitioners are faced with

specific ethical dilemmas, as opposed to taking a stand in matters involving broad ethical

issues (Pollock, 2007yf : K H Q G L V F U H W L R Q D U \ G H F L V L R Q V D U H J X L G H G E \ H W K L F V G H F L V L R Q V F D Q E e

said to be fair and just, because there are always shades of moral obligations that are higher

than others (Souryal, 2006yf .

The awareness and importance of ethics in the field of criminal justice are increasing at a fast

pace. This is because, as in virtually every other occupation, criminal justice officials also

engage in unethical behaviors during the course of their 8-hour shifts. Every year there are

practitioners who end their careers in disgrace by engaging in unscrupulous activities. This

includes behaviors that are outright illegal, as well as those that have not been labeled as

being criminal in nature. It is noteworthy that not every type of unethical behavior is

necessarily illegal. In fact, criminal justice practitioners engage in many types of unethical

behaviors that are not governed by the legislature and the court system.

Plato argued that the idea of “goodness,” or the of values, is a virtue even

higher than justice (Souryal, 2006yf 7 K L V J R R G Q H V V O L J K W V X S W K H P L Q G V R I K X P D Q E H L Q J V D Q d

helps them make moral judgments. The idea of , or self-preservation, appealed to

both Plato and his student Aristotle, who sought universal qualities in human nature (Souryal,

2006yf 2 U L J L Q D W L Q J I U R P W K H 6 W R L F V Q D W X U D O O D Z V L J Q L I L H V D V H D U F K I R U P R U D O D E V R O X W H V W K D W L s

identified as natural (Pollock, 2007yf .

Aristotle, in the , “provided the first systematic study of ethics in the

history of the Western world” (Albanese, 2008, p. 15yf , Q W K L V E R R N $ U L V W R W O H S U R S R V H G W K e

ethics of virtue that is concerned with cultivating virtuous habits. Aristotle suggested the

intermediate path, or the , which strikes a balance between extreme behaviors.

He prescribed 10 moral virtues or excellences that are to be cultivated: (1yf F R X U D J H \f

temperance, (3yf S U X G H Q F H \f justice, (5yf S U L G H \f ambition, (7yf K D Y L Q J D J R R G W H P S H U \f

being a good friend, (9yf W U X W K I X O Q H V V D Q G \f wittiness (Albanese, 2008yf % H F D X V H $ U L V W R W O H

ethics of virtue was based on the cultivation of habits over time, it did not address the specific Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 3 of 14 issue of ethical dilemmas and moral judgments (Pollock, 2007yf 7 K H U H D U H V H Y H U D O H W K L F D l

systems that explain the ethicality of a moral judgment. Broadly put, the ethical systems can

be (nonconsequentialismyf R U (consequentialismyf $ G H R Q W R O R J L F D l

ethical system is concerned with the inherent nature of an act, whereas a teleological ethical

system is concerned with the consequences of an act (Pollock, 2007yf .

The most prominent deontologist is Immanuel Kant (1724–1804yf Z K R S U R S R X Q G H G

. Kant proposed the rational basis of moral decisions and identified that an act

based on duty was truly moral. He called this the or the

, something that one must do, a duty (Close & Meier, 2003; Pollock, 2007yf .

The next is the . This system, found in diverse cultures, proposes the common

principle “Do unto others as you would have them do unto you.” Although the reason for this

behavior might be based on the consequences of the action, this system is often treated as

deontological because it sets forth a fundamental moral principle (Close & Meier, 2003yf .

Religious ethics or the believe that God's word is perfect and that

morality is derived from the words of God, whatever the religion of an individual might be

(Close & Meier, 2003; Pollock, 2007yf 7 K H H P S K D V L V L V R Q I R O O R Z L Q J * R G

V F R P P D Q G V U D W K H r

than focusing on the consequences of the actions.

The most common teleological ethical system is , founded by Jeremy Bentham

(1748–1832yf 7 K L V F R Q F H S W Z D V D O V R I R X Q G L Q W K H Z R U N V R I & H V D U H % H F F D U L D \f and

John Stuart Mill (1806–1873; Albanese, 2008yf 8 W L O L W D U L D Q L V P I R F X V H V R Q W K H J R R G R r

happiness of the majority. Happiness is measured by Bentham's or

the , whereby pleasure is sought and pain avoided (Albanese, 2008;

Pollock, 2007yf $ Q D F W L R Q Z L O O E H M X G J H G E \ W K H W R W D O D P R X Q W R I S O H D V X U H R U K D S S L Q H V V W K D W Z L O l

be created as opposed to the total amount of pain or unhappiness that will be created (Close

& Meier, 2003yf % H F D X V H W K H H P S K D V L V L V R Q W K H F R Q V H T X H Q F H V R I D Q D F W X W L O L W D U L D Q L V m

justifies bad actions as long as the result is good; in other words, the end justifies the means.

Determining whether a specific act is morally right or wrong constitutes

(Pollock, 2007yf proposes that an act is morally right if it can be universally

applied as a rule that is morally right.

Another teleological system is , which proposes that an action be judged by the

greatest good that is produced for the person taking the action. The sole consideration is for

the benefit to the egoist. , a feminine ethical system discussed in the works of

Carol Gilligan, has found application in restorative justice and rehabilitation of offenders

(Pollock, 2007yf 7 K H I R F X V L V R Q U H O D W L R Q V K L S V W K H Q H H G V R I W K H Y L F W L P V D Q G R Q U H L Q W H J U D W L Q g

offenders into society after they have accepted responsibility for their actions. This can be said

to be a teleological system, because it is concerned about the consequences of the actions,

whether it would serve the needs of those affected by the decision.

There are two paradigms of policing: (1yf W K H W U D G L W L R Q D O F U L P H I L J K W H U U R O H D Q G \f the more

recent public service or community policing role (Pollock, 2007yf , Q W K H 8 Q L W H G 6 W D W H V ,

although crime control is the major role of policing, both paradigms can be seen. The public Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 4 of 14 service paradigm is predominant in Europe. The public service paradigm can be identified

with community policing, where the police are people's friends, mingling with them in the

community and aiming at social peace. The spirit of service is primary. The goal is to abide by

the code of police ethics and be ideal protectors of the people, as expected by social contract

theory. Under this paradigm, a criminal is viewed not as a member of a distinct group but as

somebody from the neighborhood who has gone astray (Pollock, 2007yf .

Whereas the public service paradigm is more rights based and duty oriented, as prescribed

by ethical formalism, the crime control paradigm is less formal and subscribes to

utilitarianism. Under the crime control paradigm the police are seen as an army to fight crime

and catch criminals by whatever means necessary (Kleinig, 2008; Pollock, 2007yf : L W K W K e

September 11, 2001, attacks on the World Trade Center and the Pentagon, the crime control

paradigm has gained prominence. Criminals are viewed as enemies, and the police consider

themselves as distinct from the people they serve. This gives rise to the police subculture in

which loyalty is the code of honor and the “blue wall of secrecy” is maintained. “Noble cause”

corruption is tolerated within the departments, thus allowing police use of excessive force, as

in the film (Pollock, 2007yf 7 K H S R O L F H V X E F X O W X U H D O V R D O O R Z V officers to carry out

unethical behavior at the individual level. Increasing diversity in the police force, police unions,

and civil litigation are causing police subcultures to weaken (Pollock, 2007yf .

It should be mentioned that subcultures are prevalent in some form in almost every police

agency in the world, ranging from the United States to the United Kingdom. It is important to

note that police subcultures may directly contribute to unethical employee behaviors. Unlike

probation and parole officers, who may work alone, police officers are heavily influenced by

their peers. Walker and Katz (2008yf F R Q W H Q G H G W K D W W K H S R O L F H V X E F X O W X U H S U R Y L G H V R I I L F H U s

with rationalizations and motivations that allow them to engage in unprofessional behaviors.

Some scholars have argued that there is a profound need to eliminate the negative effects

associated with the police subculture (Souryal, 2006yf .

It is also possible that the police subculture allows law enforcement officials to commit

unethical acts in the presence of other officers. Ward and McCormack (1987yf V W D W H G I R r

example, that there are some citizens who strongly feel that “the great esprit de corps in the

police force inhibits officers from investigating suspected corruption of fellow officers” (p. 21yf .

Other scholars have noticed the lack of cooperation between officers of different ranks (Toch,

2002yf 6 R X U \ D O \f argued that this builds a sense of unity among low-ranking patrolmen

who may be tempted to isolate themselves from senior officers or cover up each other's

mistakes. Pollock (2007yf D O V R F R Q W H Q G H G W K D W W K H U H L V D Q H Q R U P R X V D P R X Q W R I G L V F R U d

between police administrators and their underlings. Some scholars also argue that the police

subculture inadvertently excludes certain types of police officers (Holdaway, 1996; Miller,

Forest, & Jurick et al., 2003yf , Q W K H 8 Q L W H G . L Q J G R P G L V F U L P L Q D W L R Q K D V E H H Q V D L G W R H [ L V t

toward other officers as an indirect result of police activities that occur outside of work, such

as shift parties and get-togethers (Holdaway, 1996yf $ F F R U G L Q J W R + R O G D Z D \ \f, certain

officers, usually women and members of minority groups, are excluded from these events.

This is consistent with Miller et al.'s (2003yf F R Q W H Q W L R Q W K D W K R P R V H [ X D O S R O L F H R I I L F H U V D O V o

have limited access to the police subculture. Even though some officers are more entrenched

in the police subculture than others, much of the current literature contends that it promotes

attitudes that lead to cynicism and unethical behaviors among police. Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 5 of 14 In 1972, the Knapp Commission exposed unethical behavior and police corruption at virtually

every level within the New York City Police Department (NYPDyf ' X U L Q J W K H V H R I I L F L D l

proceedings, corrupt officers were considered to be either “grass eaters” or “meat eaters”

(Pollock, 2007yf * U D V V H D W H U V Z H U H R I I L F H U V Z K R D F F H S W H G J U D W X L W L H V \ H W G L G Q R W G H P D Q G D Q \ R f

the services they received (Souryal, 2006yf 0 H D W H D W H U V R Q W K H R W K H U K D Q G D J J U H V V L Y H O y

demanded bribes in exchange for specific types of favors. The Knapp Commission discovered

that both of these types of police officers permeated the entire police department.

In the Knapp Commission inquiry, two police officers, Frank Serpico and David Durk, of the

NYPD, went public with allegations of corruption and graft (Maas, 1973yf ' X U L Q J W K L V I R U P D l

investigation Serpico testified against many of his fellow police officers and helped to expose

the ineffectiveness of the NYPD's internal investigation department (Maas, 1973yf 1 R W O R Q g

after his testimony, Serpico was shot in the face during a routine drug bust; although his

coworkers did not come to his immediate aid, Serpico survived the attack (Maas, 1973yf $ I W H r

the Knapp Commission, the NYPD pledged to eliminate officer misconduct and corruption

(Pollock, 2007yf .

In addition to accepting bribes or engaging in organized corruption, police officers may

engage in other types of unethical behaviors during the course of their 8-hour shift. Some

research, for example, has shown that police officers engage in unscrupulous sexual acts

while on duty (Barker & Carter, 1994yf 6 R X U \ D O \f contended that this is because police

officers have a high degree of power and are relatively isolated from their supervisors. It has

been well documented that some police officers have had sex while on duty (Barker & Carter,

1994; Souryal, 2006yf 7 K H U H K D Y H H Y H Q E H H Q L Q V W D Q F H V L Q Z K L F K V K H U L I I V D Q G F K L H I V R I S R O L F e

have partaken in unethical acts. In one recent case, for example, a high-ranking police

executive of Wallkill County, New York, was allegedly caught having an intimate encounter in

a patrol vehicle (Souryal, 2006yf , Q R W K H U L Q V W D Q F H V K R Z H Y H U W K H D F W V P D \ E H P X F K P R U e

serious and are often motivated by greed and self-interest (Pollock, 2007yf .

There are many types of unethical behaviors in which police officers engage besides sexual

deviance. These acts can range from abusing sick time to brutality (Barker & Carter, 1994yf .

Some law enforcement employees may also sleep on duty, even in instances when they are

expected to be vigilant and alert (Souryal, 2006yf 7 K H U H D U H D O V R R I I L F H U V Z K R P D \ H [ S H F t

businesses to provide them with special perks, such as free meals and coffee (Souryal, 2006yf .

Police officers may also be tempted to falsify reports and even commit perjury (Barker &

Carter, 1994; Pollock, 2007yf .

It is important to note that many countries besides the United States have police officers who

have acted unethically. In fact, virtually every country has had at least one type of instance in

which police officers have acted unprofessionally (Reichel, 2002yf 0 H [ L F D Q O D Z H Q I R U F H P H Q t

officials, for example, are perceived by many scholars to be notoriously corrupt. In Peru, it has

been said that corruption is so rampant that police officers may overlook traffic violations for

bribes as small as candy bars (Reichel, 2002yf , Q R W K H U F R X Q W U L H V X Q H W K L F D O S R O L F H E H K D Y L R U s

are equally as serious, if not more so, and may range from torturing pretrial detainees in

Egypt to trafficking child pornography in Australia (Reichel, 2002yf 7 K H V H H [ D P S O H V L O O X V W U D W e

that unethical employee behaviors exist in virtually every type of police organization on a

worldwide scale. Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 6 of 14 Although police officers certainly engage in unethical behaviors, practitioners who work in the

court also have the potential to act in an inappropriate or unscrupulous manner. This is

because, to varying degrees, court personnel such as prosecutors, defense attorneys, and

judges have discretionary powers. When faced with ethical dilemmas, they can take decisions

one way or the other, because moral obligations have finer shades (Souryal, 2006yf .

Some prosecutors, for example, may behave unethically. Prosecutors exercise a great deal of

discretion as they decide which cases should go to trial and which should be dismissed. In

theory, they must try to seek justice and not merely a conviction. However, on occasion they

are driven by personal ambitions rather than justice. Some prosecutors treat their current jobs

as stepping-stones to other lucrative jobs (Kleinig, 2008; Pollock, 2007yf 7 K L V P L J K t

compromise their undivided service to the public. They also are greatly involved in the process

of plea bargaining, where the presumption of innocence is compromised and the defendant

pleads guilty in exchange for a promise of lesser charges or less sentencing. At times,

another ethical issue arises when the defendant refuses to accept a plea bargain and the

prosecutor acts in a retaliatory manner during the trial.

In addition to the ethical issues inherent in the plea bargaining process, prosecutors may also

intentionally attempt to compromise the trial process (Kleinig, 2008yf 7 K L V F D Q E H G R Q H E \ a

practice known as (Kleinig, 2008, p. 126yf .

According to Kleinig (2008yf M X U \ V N H Z L Q J R F F X U V Z K H Q S U R V H F X W R U V V H H N R X W M X U R U V Z K R D U e

partial or biased in their favor. It should be noted that although some scholars consider this

practice to be unethical, it is nevertheless perfectly legal, unless a prosecutor discriminates on

the basis of race, ethnicity, or gender as per (1986yf .

In addition to engaging in jury skewing, prosecutors may also behave unethically by

withholding exculpatory information that may affect the outcome of a criminal case in favor of

the defendant (Kleinig, 2008yf , Q (1863yf W K H 8 6 6 X S U H P H & R X U W K H O G W K D t

the suppression of exculpatory information is a violation of the due process rights of criminal

defendants. Prosecutors are also likely to use questionable expertise because of the

relationship the government has with forensic laboratories. Kleinig (2008yf L G H Q W L I L H G R W K H r

examples of prosecutorial misconduct, such as coaching witnesses, overstatement about the

evidence in the opening and closing statements, and zealous resistance to appeals that may

reflect poorly on their work. Prosecutorial misconduct can be explained by utilitarianism and

egoism, focusing on the consequences of their wrong actions, but such actions are definitely

not justified by any deontological ethical system that recognizes that the inherent nature of

the act must be good.

Like prosecutors, defense attorneys also have the potential to behave unethically. The job of a

defense attorney is to ensure that defendants are not deprived of their due process rights.

Their loyalty lies solely to their clients and not to the public. At times, however, defense

attorneys pursue this goal too zealously to prove their defendants' innocence. At such a time,

they should be careful not to encourage or allow perjury by their clients (Kleinig, 2008yf 7 K e Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 7 of 14 attorney–client privilege is a very important aspect of the representation of a client. This

confidential and loyal relationship is important to ensure proper representation of a defendant,

which is possible only after a complete knowledge of the facts of the case. A defense

attorney's job is not to judge whether the client is guilty or innocent but to ensure that the

client gets a fair representation and that all due process rights are protected (Pollock, 2007yf .

This confidentiality can be broken only under four circumstances: (1yf 7 K H G H I H Q G D Q W F D n

waive it, (2yf E \ F R X U W R U G H U \f if the defendant expresses his intent to commit a future crime

or fraud, and (4yf L I W K H G H I H Q G D Q W W U L H V W R L P S O L F D W H W K H D W W R U Q H \ L Q V R P H F U L P L Q D O H Q W H U S U L V e

(Pollock, 2007yf .

There are times when the defense attorney fails to represent his or her client effectively.

Several cases alleging ineffective assistance of counsel have been filed, but this has been a

ground hard to prove. In (1984yf W K H 8 6 6 X S U H P H & R X U W K H O G W K D W a

claim of ineffective assistance of counsel can be made only by pointing out specific errors

made by the trial counsel. It cannot be based on an inference drawn from the defense

counsel's inexperience or lack of time to prepare, the gravity of the charges, the complexity of

the defense, or the accessibility of witness to counsel. In (1984yf W K e

court ruled that an accused who claims ineffective counsel must show deficient performance

by counsel and a reasonable probability that but for such deficiency the result of the

proceeding would have been different.

There have been cases in which the defense attorney was found silent and even sleeping

during the proceedings in court. In (2001yf D G H I H Q V H O D Z \ H U I R U D F D S L W D l

offense defendant kept falling asleep during the trial. Convicted and sentenced to death, the

defendant appealed, claiming he was denied the constitutional right to effective counsel. The

Fifth Circuit concluded that Burdine did not have the benefit of effective counsel and therefore

ordered a new trial. The U.S. Supreme Court refused to hear the case on appeal; thus, the

decision to give Burdine a new trial was upheld. In (2005yf W K H F R X U W R f

criminal appeals held that although the lead defense attorney had slept through portions of

the trial, the defendant was not deprived of assistance of counsel because his second

attorney was present and an active advocate at all times.

In (2002yf W K H F R X U W D O O R Z H G D G H D W K V H Q W H Q F H W R V W D Q G H Y H Q W K R X J K W K e

defendant's lawyer failed to make an argument to the jury to save his life. In this case, Cone

was tried and found guilty of capital murder. During the sentencing stage, the sequence was

for the prosecution to argue first, then the defense lawyer, and then the prosecutor again. A

junior prosecutor argued first for the prosecution. The defense lawyer then decided to waive

his argument, because under court rules the prosecutor could not argue a second time if the

defense lawyer waived the argument. This was done by the defense lawyer as a strategy so

that the senior prosecutor, who was a highly effective lawyer and who was going to give the

second prosecution argument, could not say a word. The jury gave the defendant the death

penalty anyway. Cone appealed, claiming ineffective counsel. The court upheld the sentence,

saying that Cone's constitutional right had not been violated because what the defense lawyer

used as a strategy was reasonable.

In (2002yf 0 L F N H Q V Z D V F R Q Y L F W H G R I P X U G H U D Q G V H Q W H Q F H G W R G H D W K + e

claimed ineffective assistance of counsel because he discovered, after the trial, that his

attorney had represented the victim on unrelated charges. This was never revealed to

Mickens. The U.S. Supreme Court rejected his claim, saying that a defendant who claims that

the right to counsel was violated because of a conflict of interest must show that the conflict

had a negative effect on the attorney's representation and that there was a reasonable Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 8 of 14 probability that the result would have been different. The court concluded that “dual

representation” in and of itself merely represents a “theoretical division of loyalties” and did

not require a reversal of the results.

Just as both prosecutors and defense attorneys have the potential to behave unethically,

judges are also not immune to engaging in inappropriate behaviors. The most important

ethical responsibility of a judge is to be impartial. For this, judicial independence and integrity

are vital. Judicial independence could mean both the independence of the judiciary from the

other branches of the government and the personal independence and integrity of the judges

so that they are not influenced by other considerations in their function as judges (Kleinig,

2008yf 7 K H & R G H R I - X G L F L D O & R Q G X F W & D Q R Q \f says that a judge shall avoid impropriety

and the appearance of impropriety in all of the judge's activities. Also, as per the Code of

Judicial Conduct Canon 2 (Cyf \f, a judge should not hold membership in any

organization that discriminates on the basis or race, religion, gender, or national origin.

Judicial accountability is yet another aspect that holds judges responsible for their actions.

Judges are to disqualify themselves from cases in which their impartiality might be

questioned, as in cases in which they might have a financial or other interest (Barua, in

pressyf 7 K L V Z D V U H L Q I R U F H G E \ W K H D S S U R Y D O R I W K H - X G L F L D O & R Q I H U H Q F H 3 R O L F \ I R U 0 D Q G D W R U y

Conflict Screening on September 19, 2006. This policy mandated an automated conflict

screening to identify any financial conflict that federal judges might have in cases that come

before them. Besides this, judges are often invited to attend educational trips sponsored by

certain organizations. This sometimes gives rise to an ethical issue that judges would be

biased toward the sponsors of these programs or toward corporations in which they might

have a financial interest.

It is more the appearance of impropriety than an actual unethical action of a judge that

creates concerns (Barua, in pressyf 2 Q 6 H S W H P E H U W K H - X G L F L D O & R Q I H U H Q F H 3 R O L F y

on Judges' Attendance at Privately Funded Educational Programs was released. It mandated

that a federal judge should not accept travel, food, lodging, reimbursement, or anything that

would be considered a gift under the Judicial Conference Ethics Reform Act Gift Regulations

for attending a private educational seminar, unless its sponsor has filed a public disclosure

statement on the content of the program and all sources of funding for the judges' expenses.

These two policies were aimed to allay the fears of unethical behaviors that the public might

have about federal judges (Barua, in pressyf .

The two areas where judges exercise their discretion are (1yf L Q W H U S U H W D W L R Q R I W K H O D Z D Q G \f

sentencing (Pollock, 2007yf : K L O H L Q W H U S U H W L Q J O D Z V M X G J H V F D Q J H W F D X J K W X S L n

hypertechnical application of laws at the cost of equity and fairness (Pollock, 2007yf % H I R U e

the federal sentencing guidelines, sentencing disparities existed because of different

sentencing patterns of individual judges (Hofer, Blackwell, & Ruback, 1999yf : K D W H Y H U P D y

be the situation and the case, judges are expected to be fair, just, and impartial and to mete

out equal treatment to all and sundry, upholding the neutral position of the judge and

behaving in a manner that behooves a judge and the pristine judicial office. As this section of

the chapter has shown, however, some judges may behave unethically. Like other

practitioners who work in the court, judges also have the potential to behave irresponsibly or

in an unprofessional manner. Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 9 of 14 Although very little literature has systematically addressed the types of unethical behaviors in

which correctional officers engage, at least a few studies have addressed these issues. One

of the most common areas of ethical concern pertains to excessive uses of force that occur in

penal facilities. Morris (1988yf S R U W U D \ H G D F O D V V L F G H S L F W L R Q R I D E X V H D V K H G H V F U L E H G W K e

events that led up to the infamous 1980 New Mexico prison uprising. Morris gave a detailed

account of the “goon squads” that were led by guards and designed to systematically abuse

offenders as a means of achieving control. Ultimately, it was this informal control mechanism

that was one of the major factors that led to one of the most devastating riots in American

prison history.

It has been almost 30 years since the New Mexico prison uprising, yet there is still reason to

believe that correctional officers use excessive force against inmates. In August 2005, for

example, two female jail employees were arrested for conspiring with an offender to assault

another inmate (Hales, 2005yf , Q W K L V L Q F L G H Q W W K H J X D U G V Z H U H D S S U H K H Q G H G I R U X W L O L ] L Q g

offenders to punish a female inmate who was incarcerated for committing sex crimes against

her son. The mistreatment of offenders by prison employees may occur in institutional

settings besides state and local correctional facilities. For example, similar acts of brutality

have been committed against Iraqi detainees by U.S. military prison personnel. In recent

memoranda to the Armed Service Committee, one military employee stated, “We would give

them [prisoners] blows to the head, chest, legs and stomach, pull them down, kick dirt on

them. This happened every day” (Serrano, 2005, p. A-1yf .

In addition to physical brutality that is directed toward inmates, there have been cases in

which male and female guards have acted unethically by sexually assaulting the inmates they

are paid to protect. Welch (2004yf G H V F U L E H G D Z H O O G R F X P H Q W H G L Q F L G H Q W L Q Z K L F K W K U H e

female prisoners were sold as “sex slaves” to male inmates at a federal penitentiary in

Pleasanton, California. Ultimately, this led to a federal lawsuit, and the Federal Bureau of

Prisons settled the suit for $500,000 ( , 1999yf 7 K H S U L V R Q D J H Q F \ D O V R D J U H H G W o

drastic changes in order to curtail the sexual abuse of female inmates.

While the preceding case represents one of the most horrific examples of sexual abuse

directed at female inmates, there have been other examples in which it may seem less

obvious as to whether a sexual assault even occurred. In (1997yf D P D O e

prison guard developed a rapport with a female inmate for whom he was performing favors.

This led to a friendship, followed by a physical relationship. Sexual contact occurred, but only

on one occasion, and was limited to oral sex. To complicate matters even further, court

documents indicate that there were strong feelings of attraction on the part of the inmate

( , 1997yf 6 K H O D W H U D G P L W W H G L Q D Q R I I L F L D O S U R F H H G L Q J W K D W K H U D F W L R Q V Z H U e

voluntary. The inmate gave the following testimony: “I wanted to do it being incarcerated for

about a month then, and prior to being incarcerated, I wasn't having sex … I did want it”

( , 1997, p. 429yf ' H V S L W H W K L V W H V W L P R Q \ W K H , Q W H U P H G L D W H & R X U W R I $ S S H D O s

ruled that the “consent” of an incarcerated person was “ineffective consent,” and it affirmed

the defendant's conviction of second-degree sexual assault. In the case, the

correctional officer was behaving in both a criminal and an unethical manner.

Some of the more recent literature on unethical behaviors that occur in prison settings relate

to the inappropriate relationships that can develop between inmates and staff members. Few Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 10 of 14 studies have been conducted in this area, and this is still largely uncharted territory. An

incident that one scholar might call an “inappropriate relationship” may be labeled by others

as a form of economic exploitation, or even sexual abuse. One thing is certain, however:

These behaviors are certainly unethical and should not be tolerated in a correctional

environment. Worley, Marquart, and Mullings (2003yf S U R Y L G H G D G H I L Q L W L R Q R I L Q D S S U R S U L D W e

relationships:

Personal relationships between employees and inmates/clients or with family

members of inmates/clients. This behavior is usually sexual or economic in nature

and has the potential to jeopardize the security of a prison institution or compromise

the integrity of a correctional employee. (p. 179yf

Although some research on the forbidden relationships between correctional staff and

inmates focuses disproportionately on sexual situations involving male officers and female

offenders, the majority of inappropriate relationships occur between male inmates and female

correctional officers (Worley et al., 2003; Worley & Cheeseman, 2006yf 7 K L V P D N H V V H Q V e

when one considers that female inmates make up only 7.3yb R I W K H V W D W H S U L V R Q S R S X O D W L R n

and 7.5yb R I W K H I H G H U D O S U L V R Q S R S X O D W L R Q & O H D U & R O H 5 H L V L J \f.

There may be a perception that only low-ranking correctional employees are likely to have

inappropriate relationships, but even prison administrators are not immune from behaving

unscrupulously with inmates. Recently, for example, Christine Achenbach, an executive

assistant and fourth in command at a federal prison in Colorado, was convicted of having

sexual relations with a prison inmate (Hughes, 2002yf ' X U L Q J W K H F R X U V H R I K H U V H [ X D l

relationship with two offenders, Achenbach was even believed to have warned her inmate

“boyfriends” when their cells would be searched (Hughes, 2002yf % R W K R I W K H V H R I I H Q G H U s

were members of the infamous Crips gang (Hughes, 2002yf 2 Q H R I $ F K H Q E D F K

V L Q P D W e

lovers, during the trial, described how he wooed her into having a relationship and said: “I felt

that [Achenbach] was vulnerable and that she could be compromised if a person were to be

sensitive and take time with her” (Hughes, 2002yf , Q D M X G J H V H Q W H Q F H G $ F K H Q E D F K W R 4

years of probation; she was also required to register as a sex offender for life (Abbott, 2002yf , t

is clear from this example that even upper echelon correctional administrators have the

potential to engage in unethical behavior.

It is important to note that in addition to having sex with inmates, correctional officers can also

act unethically by providing offenders with contraband. According to some scholars, the

recent anti-tobacco policies of many prison agencies have contributed to correctional officer

misconduct (Silverman, 2001yf 6 R P H H P S O R \ H H V P D \ V H H Q R W K L Q J Z U R Q J Z L W K V P X J J O L Q J L n

tobacco, because it is not a mindaltering substance and has only recently become restricted,

but Silverman (2001yf D U J X H G W K L V S R L Q W :

Since the ban in Texas, tobacco has become the number one contraband item.

Moreover, many [correctional officers] and other staff members are smokers, and

some do not feel that bringing tobacco in is “really a violation,” because they

disagree with the ban. For some, throwing a carton of cigarettes over the wall to

make an extra $100 is more of a game than a law violation. It presents staff with an

easy way to supplement their income without really feeling guilty that they are

violating the law. (p. 240yf Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 11 of 14 As this quote illustrates, some correctional officers may see an enormous opportunity to

conspire with inmates in order to provide a much-needed commodity to the prison population.

Vermont, the first state to outlaw smoking, had to lift its ban after offenders began soliciting

staff members and even having sex with other inmates for cigarettes (Blood, 1996; Silverman,

2001yf 7 K H U H L V Q R T X H V W L R Q W K D W D I H Z R I I L F H U V K D Y H E H H Q W H P S W H G E \ L Q P D W H V W R V P X J J O e

contraband into penal facilities.

Although there is very little literature pertaining to the types of unethical behaviors in which

correctional employees engage, much more research has examined and been published on

prison guard subcultures. This literature may give invaluable insights into the unethical

behaviors of correctional officers. The prison guard subculture, like the police subculture,

manufactures negative images of the “client” (Kauffman, 1988yf , U Z L Q \f contended that

the most crucial aspect of the guard subculture is the hatred and moral superiority that most

keepers have toward the kept. Even though the guard workforce has become much more

diverse, most correctional employees view inmates as “worthless, untrustworthy, manipulative,

and disreputable deviants” (Irwin, 2005, p. 64yf .

Like the police subculture, the prison guard subculture may also provide officers with

rationalizations for behaving unethically. Pollock (2007yf F R Q W H Q G H G W K D W Y H W H U D Q J X D U G V L Q L W L D W e

newer officers into the subculture. Kauffman (1988yf D U J X H G W K D W Q H Z R I I L F H U V T X L F N O \ O H D U n

from other guards not to be a “rat” (a prison employee who informs on his or her coworkersyf .

Prison custodians are taught by other staff members to never cooperate with superiors by

participating in any activities that would be detrimental to another officer (Kauffman, 1988yf .

Pollock (2007yf D O V R E H O L H Y H V W K H U H D U H V D Q F W L R Q V L I D Q R I I L F H U L V Y L H Z H G D V D U D W E \ K L V I H O O R w

employees. Some scholars have argued that because of this guard subculture a tremendous

amount of employee misconduct, such as theft and brutality, tends to go unreported in prison

agencies (Irwin, 2005; Souryal, 2006yf 2 W K H U U H V H D U F K L Q G L F D W H V W K D W W K H W H Q G H Q F \ I R U R I I L F H U s

not to “rat” also contributes to an enormous amount of sexual abuse that is prevalent in

female institutions and committed by male guards (Human Rights Watch Women's Rights

Project, 1996yf .

There is clearly an abundance of literature devoted to the correctional officer subculture. By

examining this, scholars may be able to better appreciate why some correctional officers

behave unethically.

As previously mentioned, unethical acts are committed by employees in virtually every type of

law enforcement endeavor. This is true even in the field of probation and parole, where

employees are presumed to have one of the highest levels of education and job training

(Souryal, 2006yf 3 U R E D W L R Q D Q G S D U R O H R I I L F H U V K D Y H W K H S R W H Q W L D O W R H Q J D J H L Q P D Q \ G L I I H U H Q t

types of unscrupulous behaviors. Some probation and parole officers, for example, may

conduct personal business on state time. This can include anything from grocery shopping to

getting a haircut while on duty. There are also employees in community corrections who claim

that they make field visits when in fact they do not (Souryal, 2006yf .

In addition to these types of unprofessional behaviors, probation and parole officers may also

act in an unethical manner by discriminating against clients solely on the basis of race,

gender, or age (Souryal, 2006yf $ O V R S U R E D W L R Q D Q G S D U R O H H P S O R \ H H V P D \ H Q J D J H L Q V H [ X D l Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 12 of 14 deviance. One type of sexual deviance, for example, may include sexual harassment that

occurs in the workplace. Recently, an Alaskan probation officer filed a lawsuit against his

female superior alleging that she permitted a sexually charged, hostile work environment

(Carroll, 2005yf + H P D L Q W D L Q H G W K D W R Q H R I K L V I H P D O H F R Z R U N H U V K D G S L Q F K H G K L V Q L S S O H s

repeatedly, even after being told to stop. In addition to engaging in sexual harassment,

probation and parole employees may also behave unethically by having sexual relationships

with either their clients or their clients' family members (Souryal, 2006yf / L N H S R O L F H R I I L F H U V ,

prison guards, and court employees, these practitioners also have the potential to behave

unethically during the course of their careers.

Based on social contract theory, criminal justice professionals have been given a certain

authority and power by the government, as its agents, to protect the inhabitants within a

particular jurisdiction in exchange for a few liberties given up by these residents. This sets

them apart from the general populace. Armed with the responsibility to guard the populace,

criminal justice professionals are expected to have higher moral standards so that the people

can trust them with the power they have to protect. Occasionally, instead of honoring the

position and trust given to them, these professionals get distracted and use their discretion as

they deem fit. This leads to a collapse of the social contract theory, often leading to disastrous

consequences.

When the consequences of a decision are bad, the teleological or consequentialist ethical

system does not support it. Oftentimes such decisions are motivated by personal gain

following the ethical system best characterized as egoism. Because the essence of criminal

justice is the service and protection of society, this is definitely at odds with the concept of

egoism. The police officer, or the probation officer, or the judge who accepts bribes and

gratuities, or engages in sexual relations with clients, begins his or her moral career that leads

to higher forms of corruption and unethical behaviors (Pollock, 2007yf 6 X F K F R U U X S W L R Q L s

engaged in solely for the purpose of personal gain and is condemned by most ethical

systems, such as ethical formalism (deviating from dutyyf X W L O L W D U L D Q L V P Q R W J R R G I R U W K e

majorityyf W H O H R O R J L F D O E D G F R Q V H T X H Q F H V \f, deontological (the act itself is badyf Q D W X U D O O D w

(aimed at personal happiness rather than self-preservationyf U H O L J L R X V H W K L F V Q R W V X S S R U W H G E y

Godyf 3 O D W R

V (against the principle of the ultimate goodyf $ U L V W R W O H

V H W K L F V R f

virtue (not a virtue or excellenceyf W K H * R O G H Q 5 X O H W K H F R U U X S W Z R X O G Q R W Z D Q W W R E H D Y L F W L m

of corruptionyf D Q G W K H H W K L F V R I F D U H F R U U X S W L R Q G R H V Q R W V K R Z F D U H \f. The only ethical system

that justifies the unethical behavior of criminal justice professionals is egoism, which is

focused on the self and happiness for oneself. Just as no act can be absolutely selfless (e.g.,

even charity gives selfsatisfactionyf Q R V H O I L V K D F W F D Q E U L Q J X O W L P D W H K D S S L Q H V V W R W K H G R H U $ s

such, unethical behavior is going to cause more pain than pleasure in the long run, according

to Bentham's hedonistic calculus (Pollock, 2007yf .

On one final note, it is important to mention that there is at least one additional type of

unethical behavior in which criminal justice professionals engage that can be explained as

corruption for the good of the organization and not for personal gain. An instance of this might

be an excessive use of force, as when a police officer tries to catch a crook by whatever

means necessary or a when a correctional officer who uses it to teach a criminal a lesson.

Another example could include a prosecutor who uses dubious evidence when he or she is

convinced that someone has committed a crime and should not be allowed to be free. Even

though these are guided by a noble cause—to rid society of the “bad guys”—such behavior

might be problematic (Kleinig, 2008yf 1 H Y H U W K H O H V V V X F K F R U U X S W L R Q L V R I W H Q W R O H U D W H G E y Copyright © 2009 by SAGE Publications, Inc. 21st Century Criminology: A Reference Handbook Page 13 of 14 individual departments. Other than civil litigation, the only way to check such unethical

behavior within the agencies is to have ethical leaders who will not tolerate such actions by

their subordinates. In sum, it is a matter of concern that unethical behavior is prevalent in all

areas of criminal justice, be it among police officers, court personnel, or corrections officers. A

strict adherence to the ethical codes, an ethical leadership, and a pride in their professions

and the spirit it upholds are important steps toward addressing this issue.

Robert M. Worley and Vidisha Barua

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correctional officers

prisoners

prosecutors

police

subcultures

police officers

defendants