ETHICAL DILEMMAS AND DECISIONS IN CRIMINAL JUSTICE

1. ETHICAL DILEMMAS AND DECISIONS IN CRIMINAL JUSTICE CHAPTER 9: INVESTIGATIVE METHODS, NOBLE CAUSE, AND REDUCING POLICE CORRUPTION

2. NOBLE-CAUSE CORRUPTION • Involves officers employing unethical means to catch criminals because “it’s the right thing to do” • Perceived by officers as fulfillment of their profound moral commitment to make the world a safer place to live • Is utilitarianism (the end justifies the means)

3. NOBLE-CAUSE CORRUPTION Ends-Oriented Thinking: Police culture supports “whatever it takes” approach Police work attracts those who hold such values Police training internalizes these valuesmore deeply Police feel great responsibilityto keep the world “safe” Police discretion provides latitude to create and apply ends-oriented solutions

4. NOBLE-CAUSE CORRUPTION Is a practice or an act legal? Is a practice or an act allowed under the departmental policy or standards of behavior? Is a practice or an act ethical? (This may be different from legal!) 4. Is the practice or act good under any ethical system, or is act utilitarianism the only ethical system that supports it?

5. REACTIVE INVESTIGATION Attempts to reconstruct a crime after it occurs Consists of gathering evidence to identify and prosecute the offender Investigator(s) may develop early bias or prejudice about likely perpetrator, which might cause them to: be tempted to engage in noble-cause corruption to obtain a conviction; ignore or conceal evidence that contradicts their beliefs; overstate existing evidence; and/or manufacture or alter evidence.

6. PROACTIVE INVESTIGATION Attempts to document crime as it occurs Requires a more active police role Often involvesdeceptionby police Requires “targeting” based on “reasonablesuspicion” Changes police role from discovering who hascommitted a crime to discovering who mightcommit a crime

7. TYPOLOGY OF LIES Klockars: Placebos, such as lying to a person about how a loved one was killed…in the “best interest” of the subject Blue lies, used to control a person and make the police officer’s job easier Barker and Carter: Accepted lies, such as those used during undercover investigations or sting operations Tolerated lies, “necessary evils” such as lying during interrogations Deviant lies, such as false testimony in court to make a case, or covering up police wrongdoing

8. ENTRAPMENT When police encourage or entice an otherwise law abiding person to commit an illegal act. Approaches: Subjective—Focuses on the defendant’s background, character and predisposition to crime Objective—Focuses on the government and whether it provided “essential element” to the crime…origination of intent, pressure to commit

9. ENTRAPMENT Criticisms of the Subjective Test (Stitt & James): Allows police to tempt former offenders who might otherwise not have been tempted May rely on hearsay and rumor May stigmatize the individual charged Allows police to choose their own targets Degrades the criminal justice system through the use of deceit

10. POLICE AND THE MEDIA Should the police lie to the media if it might help them prevent a crime or catch a criminal? Should the media have complete power to report crime activities, even if this creates fear or panic or interferes with an investigation? Should media cooperate with police by suppressing news or altering the truth to catch a criminal? How do the media affect an individual’s ability to get a fair trial?

11. UNDERCOVER OPERATIONS • Undercover officers deceive suspects and others • Difficult for officer and his or her family Continuum of privacy concerns via Degree of intimacy Short Long term Non-intimate ----------------------------------------------------Intimate relations (Buy/bust) (“Donnie Brasco”)

12. Suggested limitations: Require a probable cause–based warrant for any interaction longer than 24 hours Ban officers’ engagement in intimate relationships Evidence obtained by violating the first two limitations should be excluded at trial Objections to Limits: There is no need for an undercover operation if probable cause exists It is often impossible to get a warrant Most undercover operations exceed 24 hours UNDERCOVER OPERATIONS

13. JUSTIFYING UNDERCOVER OPERATIONS (Marx) 1.How serious is the crime being investigated? 2. How clear is the definition of the crime—that is, would the target know that what he or she is doing is clearly illegal? 3. Are there any alternatives to deceptive practices? 4. Is the undercover operation consistent with the spirit as well as the letter of the law? 5. Is it public knowledge that the police may engage in such practices, and is the decision to do so a result of democratic decision making? 6. Is the goal prosecution, as opposed to general intelligence gathering or harassment? 7. Is there a likelihood that the crime would occur regardless of the government’s involvement? 8.Are there reasonable grounds to suspect the target? 9. Will the practice prevent a serious crime from occurring?

14. INFORMANTS Individuals who are not police officers but assist police by providing information about criminal activity. They are: Motivated by monetary profit, revenge, dementia, kicks, a need for attention, repentance (guilt), and coercion Able to operate under fewer restrictions than police

15. INFORMANTS Ethical Issues (South): Becoming too intimate with informants Overestimating the veracity of information provided Potential for being duped by informant Using informants to entrap people (“creating” crimes) Engaging in unethical or illegal behaviors on behalf of the informant Using coercion and intimidation to force informant’s cooperation Protecting informants who continue to commit crime

16. UNDERCOVER OPERATIONS Criticisms (Marx): May generate markets for illegal goods and services May generate ideas for crimes May generate motive May provide a missing resource May coerce or intimidate a person not otherwise predisposed to commit the offense May generate a covert opportunity for undercover agent to commit crime May lead to retaliatory violence May stimulate various crimes by persons who are not the targets of the undercover operation

17. UNDERCOVER OPERATIONS Ethical system perspectives: Religious Ethics would condemn undercover operations due to inherent deception Ethical Formalism could not justify undercover operations under the categorical imperative Egoismmay or may not condemn undercover operations depending on the officer involved and his/her gain or loss Utilitarian Ethics would justify undercover operations if there were greater societal benefit than harm

18. Ethical Justification for Police Practices (Cohen): End must be justified as a good Means must be plausible… “reasonable suspicion” There is no alternative means to achieve same end Means must not undermine other equal or greater ends…trust in the CJ System

19. INTERROGATION Cannot involve physical force (the “third degree”) Techniques of deception (Skolnick & Leo): Calling an interrogation an “interview” Negating the effectiveness of the Miranda warnings by method of presentation Misrepresenting the seriousness of the offense Manipulative appeals to suspect’s conscience Making leniency promises beyond the interrogator’s power to offer Interrogator misrepresenting identity Using fabricated evidence to make suspect think case against him/her is strong

20. The “Dirty Harry” Problem(Klockars) • Should torture be used to gain confessions? • Is there a difference between information to save a victim and information to prosecute the suspect? • Do innocent people confess to crimes they did not commit because of mental or physical coercion?

21. “Blue Curtain of Silence” Facing the wrongdoing of a fellow officer is a police officer’s most difficult ethical dilemma The code of silence present in police work is also present in other occupations and professions In policing, the code of silence is a form of noble-cause corruption Evidence indicates “blue curtain of silence” or“blue curtain of secrecy” is breaking down, However Two-thirds of police said “whistleblower would receive informal sanctions” 61% said officers do not always report even the most serious violations/crimes of other officers)

22. Expose wrongdoing: Egoism: may end up in trouble if you don’t Utilitarianism: exposure may prevent greater harm of a scandalous cover-up when exposed Ethical Formalism: one has a higher duty to uphold the law than to defend one’s fellow officers Remain Silent: Egoism: will receive informal sanctions if you do Utilitarianism: may sacrifice otherwise good officers Ethical Formalism: one assumes obligations of discretion and loyalty when one joins the force WHISTLEBLOWING AND ETHICS

23. LOYALTY A component of the esprit de corpsof policing An absolutely essential element of a healthy department Explained by officers’ dependence on one another, sometimes in life-or-death situations A personal relationship, not a judgment

24. SANCTIONS ON WHISTLEBLOWERS A distressing aspect of loyalty Are often extreme Have resulted in state and federal legislation to protect whistleblowers Legislation is ineffective against informal ostracism and rejection

25. REDUCING CORRUPTION (Malloy) Increase pay Eliminate unenforceable laws Establish civilian review boards Improve training Improve leadership

26. REDUCING CORRUPTION (Metz) Set realistic goals and objectives Provide ethical leadership Provide a written code of ethics Provide a whistle blowing procedure that ensures fair treatment for all parties Provide training in law enforcement ethics

27. EDUCATION AND TRAINING Higher formal education standards are not, themselves, the key to ethical behavior Academy and in-service ethics training are common and recommended for all departments Many courses use a moral reasoning approach Some advocate an emphasis on character Others recommend case studies

28. INTEGRITY TESTING Very controversial Not well-received by most officers Comparing integrity testing to undercover operations reveals that: Most officers oppose integrity testing Most officers support undercover operations

29. Internal Affairs Model Police investigate themselves Police use an internal discipline system Widely seen as ineffective May discourage civilian complaints Does not evoke public confidence

30. EARLY WARNING or AUDIT SYSTEMS • Seek to identify problem officers by trends of abuse or corruption complaints • Identified officers may be subject to: • Reassignment, retraining, or transfer • Referral to an employee assistance program • A fitness-for-duty evaluation • Dismissal

31. OTHER MANAGEMENT METHODS Decertification of offending officers Community policing programs College education requirements Enhanced discipline policies Better training Greater accountability Economic incentives Assignment rotation Use of surveillance techniques Prosecuting offenders Peer review boards

32. Methods to Reduce Police Corruption • Integrity reviews • Mandatory reporting • Whistleblower protection • Compulsory rotation in corruption-prone sections • Asset and financial reviews • Surveys of police • Surveys of public • Personnel diversification • Comprehensive ethics training • Inquisitorial methods (fact-finding rather than due-process emphasis) • Complaint resolution • Monitoring and regulation of police procedures (of informants) • Decriminalizing vice • Risk analysis • Internal affairs units • Independent civilian oversight agencies • Overt recording devices (video cameras in cars) • Covert high technology surveillance • Targeted integrity testing • Randomized integrity testing • Drug and alcohol testing • Quality assurance test (customer service monitors) • Internal informants • Complaints profiling • Supervisor accountability

33. ETHICAL LEADERSHIP • Mistrust of police administration is pervasive among the rank-and file • Twocultures of policing: street copsand management • Most agree that supervisor behaviorhas greaterinfluence on employee behavior than directives or ethics • Leaders lead most effectively by example