х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180309/mi/569125362?cfi=%2F4%2F4 A c a 52 기 K + - كما o 000 p. 52 Justice and Law 3 Hon. Nel M. Gorsuch THE Learning Objectives 1. Describe the three themes included in the definition of justice. Justice Neil Gorsuch, in his confirmation hearing in March 2017, 2. Define Aristotle's distributive and corrective swore that he would administer justice in a fair and unbiased justice manner if he were confirmed as a Supreme Court Justice. 3. Distinguish between substantive justice t may seem strange that an ethics book has a chapter on justice, and procedural justice, including how but the concept of justice is integrally related to ethics and, obvi- procedural justice impacts wrongful convictions and perceptions of racial Lously, especially relevant in a discussion of ethical issues related discrimination. to criminal justice professionals . Professionals in the criminal jus- 4. Explain the concept of restorative justice tice system serve and promote the interests of law and justice, so and the programs associated with it. before we e we explore the ethical issues and dilemmas that confront 5. Describe civil disobedience and when it them, this chapter begins with a discussion of justice itself may be appropriate. of the major philosophers and ethicists fram their discussion of ethics around the concept of justice. For instance, Michael Sandel (2009), a popular vard professor, has an ethics course, book, and website titled Justice: What's the Right Thing to Do? His approach places ethical questions within the context of justice. This juxtaposition of justice and ethics is consistent with ethical formalism to the extent that moral duties derive from rights. For instance, a child has a right to be cared for, which creates a moral duty for parents. Other potential rights are more controversial; for instance, does one have a right to healthcare? Does one have a right to be told the truth in all situations? Injustice occurs when rights are denied, thus, discussions of justice and ethics overlap. 1 Many of 52 O Type here to search o j 83% IT 46°F Mostly cloudy 5:09 PM 1/2/2022 = 6 My Shelf | Brytewave eReader х 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180310/mi/569125570?cfi=%2F4%2F4 A c o 53 p. 53 기 K + - كما o 000 Chapter 3 Justice and Law 53 d'obiety , all people would have healthcare sure examples of this distinction. In an hearted, or fair. On Lucas (1980: 3) argued that justice "differs from benevolence, generosity, grati- tude, friendship, and compassion." Justice is not something for which we should feel grateful, but rather , something upon which we have a right to insist. Justice should not be confused with "good" Some actions may be considered good, but not demanded by justice. For instance, the recipients of charity, benevolence, and forgiveness do not have a right to these things; therefore, it is not an injustice to withhold them. Although the idea a of need is important in some discussions of justice, it is not the only Sordustice, it is not the only component or even the primary one that is why ethical formalism (which focuses on duty) is more consistent with justice than the ethics of care (which focuses on need). It is is important what is It is just and what is good are not always the same. The current controversies over healthcare and homelessness are ideal and a a place to live whether they could afford these things or not. To meet that need would be good, but do they have a right to healthcare and a home? While some believe that every single person has a human right to basic healthcare and shelter, others believe that there is no such right and, while it is a good thing to meet these needs, there is no duty to do so, therefore it is not unjust when society does not provide them. People can be described as displaying unique combinations of generosity and selfishness, altruism and self-interest. Some writers insist that the need for justice arises from the nature of human beings and that we are not naturally generous, open- 1, or fair . On the one hand, if we were to behave all the time in accordance with those virtues, we would have no need for justice. On the other hand, if humans were to always act in selfish, grasping, and unfair ways, we would be unable to follow the rules and principles of justice. Therefore , we uphold and cherish the concept of justice in our society because erosity. In other words, justice is the result of a logical and rational acceptance of the e mediator between people's essential selfishness and gen- concept of fairness in human relations. Any discussion of justice includes at least three continuing themes: fairness, equality, and impartiality. Fairness is related to equal treatment. Parents ordinarily faimess The give each child the same allowance unless differences between the children, such as condition of being age or duties, warrant different amounts. Children are sensitive to issues of fairness impartial, the long before they they grasp more more abstract ideas of justice. No doubt every parent has heard allocation of equal the plaintive cry, "It's not fair—Jo -Johnny got more than I did" or "It's not fairs -she always opportunities. treatment. The concept of fairness is inextricably tied to equality and impa it in the front seat!" What children are sensing is unequal and, therefore, unfair Equality refers to equal shares or equal treatment as well. There is a predisposi- equality The and impartiality. equity or concept of equality is equal shares for all, or equal shares for similar people. The same value, rights, or also present esent in retributive justice in the belief that similar crimes treatment between all should be punished equally (“equal justice for all”). In contrast to the concept of equal shares is the idea of needs or deserts; in other words, we should get what we need or, alternatively, what we deserve by status, merit, or other reasons. Impartiality is also related to the concept of equal treatment. At the core of our impartiality Not system of criminal justice is the theme of impartiality . Our symbol of justice rep- favoring one party or resents, with her blindfold, impartiality toward special groups and with her scales, interest more than proportionally just punishments. Impartiality implies fair and equal treatment of all without discrimination and bias. It is hard to reconcile the ideal of "blind justice" with taking individual circumstances into consideration when determining culpability or punishment. Most would argue, individual differences and circumstances should be it is the shares or equal tion to to demand in a specific group. another. O Type here to search o IT 83% ir 46°F Mostly cloudy 5:09 PM 1/2/2022 = х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 个 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180311/mi/569125692?cfi=%2F4%2F4 A I p. 54 a 54 54 PARTI Ethics and the Criminal Justice System 기 K + - كما A ܘܘܘ IN THE NEWS Too Big to Jail? Law professor Brandon L. Garrett, author of a recent book Too Big to Jail, analyzed 303 nonprosecution and de- ferred prosecution agreements with corporations from 2001 to 2014. Individuals were charged in only 34 per- cent of the cases that involved all types of white-collar and corporate crimes. Only 42 percent of those charged received any jail time. This is even though companies paid huge fines and admitted criminal culpability; for exam- ple, Siemens paid over $1.6 billion for bribery, Pfizer paid $2.3 billion for bribing doctors, and Tyson Foods paid a $4 million fine for bribery. Prosecutors explain that they would like to prosecute executives, but it is harder to prove cases of individual culpability. Critics argue that top execu- tives are unlikely to be prosecuted because of other reasons. Source: Garrett, 2014; Stewart, 2015 taken into consideration—if not during a finding of guilt or innocence, then at least a when sentencing occurs. If the blindfold of Lady Justice signifies no special treatment for the rich or the powerful, then it must also signify no special consideration for the young or desperate, or for any extraordinary circumstances in a criminal case. The In the News box illustrates that those who believe the justice system treats white-collar criminals differently than other criminals may be right. justice The quality of being impartial fair, and just; derived from the Latin justitia, concerning rules or law. Origins of the Concept of Justice Justice originated in the Greek word dike, which is associated with the concept of everything staying in its assigned place or natural role (Feinberg and Gross, 1977:i). This idea is closely associated with the definitions of justice given by Plato and Aristotle. Plato associated justice with maintaining the societal status quo. Justice is one of four civic virtues, the others being wisdom, temperance, and courage (Feibleman, 1985: 173). In an ordered state, everyone performs his or her role and does not inter- fere with others. Each person's role is the one for which the individual is best fitted by nature; thus, natural law is upheld. Moreover, it is in everyone's self-interest to have this ordered existence continue because it provides the means to a good life and appro- priate human happiness. In Aristotle's s conception of justice, the lack of freedom and opportunity for some people-slaves and women, for instance-did not conflict with justice, if the indi- vidual was in the role for which, by nature, he or she was best suited. In other words, those with the highest intellect should be given schooling, those who were musical should vitude should be slaves. Aristotle lived in a time where slavery was an accepted prac- the musicians in society, and those with qualities that were suited to ser- tice and people believed that slaves were different in aptitude and character from free men. Even Aristotle recognized that injustice may occur when someone placed into slavery, for instance, a vanquished enemy, might not be “naturally" suited to slavery. Aristotle associated justice with the law; if a violated the law, he would be considered unjust. However, he didn't view justice solely as a function of law. A per- son's dealings with others in all areas of life determined whether he could be consid- ered just or unjust. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated in whole or in pat. Due to doctronic rigo, some third party content may be supposed from the Book ander Chapter 1. A Di Daeran Hal in winter vart N.. O Type here to search o IT 83% ir 46°F Mostly cloudy 5:09 PM 1/2/2022 = 6 My Shelf | Brytewave eReader X 5 Ethical Dilemmas and Decision X + - х 个 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180312/mi/569125297?cfi=%2F4%2F4 A ( p.55 a 55 기 K + - كما 55 o Chapter 3 Justice and Law ܘܘܘ that concerns when Distributive Justice Aristotle distinguished between two types of justice: distributive justice and correc- tive justice. Distributive justice concerns what measurement should be used to allo- distributive cate society's resources; for instance, this type of justice would include issues such as justice Justice affirmative action, welfare, free schooling, and other goods and opportunities, and that concerns what how society y distributes measurement should them among its members. Corrective justice concerns unfair be used to allocate advantage or undeserved harm between people. Justice demands remedies or compen- society's resources. sations to the injured party. The concept of the appropriate and just allocation of society's goods and interests corrective is one of the central themes in all discussions of justice. The goods that one might pos- justice Justice sess include the following: • Economic goods (income or property) unfair advantage or unjust enrichment Opportunities for development (education or citizenship) occurs (either through Recognition (honor or status) contract disputes or criminal action) and If there was enough of everything (goods, opportunity, and status) for everyone, what the appropriate issues of distributive justice are less likely to arise. Two valid claims to possession are remedy might be to right the wrong need and desert (Raphael, 1980). Different writers have presented various proposals for deciding issues of entitlement. Lucas (1980: 164-165) identified distributions based on need, merit, performance, ability, rank, station, worth, work, agreements, requirements of the common good, valuation of services, vices, and legal entitlement. The various theories can be categorized as egalitarian, Marxist, libertarian, or utilitarian, depending on the factors that are emphasized (Beauchamp, 1982): • Egalitarian theories start with the basic premise of equality or equal shares for all. • Marxist theories place need above desert or entitlement. Libertarian theories promote freedom from interference by government in social and economic spheres; therefore, merit, entitlement, and productive contributions are given weight over need or equal shares. • Utilitarian theories attempt to maximize benefits for individuals and society with a mixed emphasis on entitlements and needs. CEO compensation, as shown in Box 3.1, is, on average, 200 times that of average worker's compensation. Is that fair, or is that just compensation for reaching the pin- nacle of one's career? Interestingly, one study found that companies with the highest paid executives have lower average profits for shareholders than the companies with lower average executive pay (Adams, 2014). Thus, evidence doesn't seem to support a merit-based i argument t for such compensation differences. The Economic Policy Institute found that CEO pay rose from 20 times that of average worker pay in 1965 to almost 296 times average worker pay in 2013. Com- pensation for executives includes base pay, bonuses, perquisites, and grant-date value of stock options. Equilar, a compensation computing company, reported that aver- age CEO salary in 2014 was around $14.3 million, an increase of about 5 percent from 2013. Companies dispute the calculation of executive compensation and salary ratios, arguing that stock options are not really compensation until they are realized Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated in whole or in pat. Due to doctronic rigo, some third party content may be supposed from the Book ander Chapter Bitorial review has de mod that any supposed content does not makmally affect the working experience Compage Leaming reserves the right to move additional.com any merchaque righe trets require ranurin 2016 anal samin All Die Dacana hennar er annar Anital in while rinnart wrn n.96.90 O Type here to search o J'. DI IT 83% 46°F Mostly cloudy 5:09 PM 1/2/2022 = 6 My Shelf | Brytewave eReader х 5 Ethical Dilemmas and Decision X + - х 1 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180313/mi/569125554?cfi=%2F4%2F4 A a 56 [p. 기 K p. 56 + - كما o 000 56 PARTI Ethics and the Criminal Justice System BOX 3.1 Annual CEO Salaries-2016 Expedia $94.6 million CBS $56.4 million Viacom $54.1 million Dara Khosrowshahi Leslie Moonves Philippe P. Dauman Mark V. Hurd Safra A. Catz Frank J. Bisignano Leonard S. Schleifer Oracle $53.2 million Oracle $53.2 million First Data $51.6 million $47.5 million Regeneron Pharmaceuticals Walt Disney Robert A. Iger $43.5 million General Growth Properties $39.2 million Sandeep Mathrani Howard M. Lorber Vector Group $37.0 million Note: Different sources have different lists of highest paid executives due to differences in computing stock options and other compensation sources Source: Equilar.com, 2017. (Morgenson, 2015). In 2010, Congress included in the Dodd-Frank law a requirement that companies disclose the CEO-worker pay ratio each year. Evidently, this require- ment was largely ignored by American businesses. More recently, plans are underway in Congress to repeal the law. Egalitarian distribution systems would pay people equally, or at least equal peo- ple doing equal work would get paid equally. There is very little debate that men and women, for instance, should be paid equal salaries if they do the same work. In Ledbetter v. Goodyear, 550 U.S. 618, 2007, Lilly Ledbetter lost her equal pay case because the Supreme Court agreed with her company that she should have brought the suit earlier even though she was not aware of the pay discrepancy. Congress, in response, passed the Lilly Ledbetter Equal Pay Act (Pub. L.222-3. S. 181); this redefined the statute of limitations for filing an equal protection claim to start tolling when a Even though gender disparate pay in equal jobs is clearly wrong, when jobs are not the same, it is more difficult to determine fairness. Obviously, few would agree that workers in all jobs and all professions should be paid the same amount of money. Some jobs require more quire more schooling, and some demand more responsibility and involve greater stress. Questions of worth are difficult. Should a kindergarten teacher be paid more than a truck driver? Should a police officer be paid less than a social worker? How should you weigh the value of different professions? Marxist distribution propose that we pay people based on need. In that case, a person with two children would earn more than a person with no children. Libertarian advocates would be appalled at that system and argue that vast disparities in economic remuneration are acceptable and should be left to the free market. High salaries promote competition and competition promotes quality, therefore if a CEO or athlete earns a salary that is extremely disproportionate to anyone else, it must be because they have a skill or talent that the rest of us are willing to pay for. a ution systems O Type here to search o # IT 83% ינ 46°F Mostly cloudy 5:09 PM 1/2/2022 = х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 1 O 8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180314/mi/569125441?cfi=%2F4%2F4 A c a p. 57 57 기 K + - كما A ܘܘܘ Chapter 3 Justice and Law 57 F IN THE NEWS Sharing the Wealth Dan Price, the founder of Gravity Payments, ignited a media firestorm in April 2015 when he made an announ- cement that he would raise all 120 employees' salaries to $70,000-even clerks, customer service representatives, and salespeople. The company processes credit card payments, and to increase his employee's minimum pay, Price, who started the company at the age of 19, cut his own $1 million salary to $70,000. He said he was doing so because of an article he read describing a social science study that discovered people's emotional well-being was affected by salaries less than $75,000, but that salaries over that amount did not contribute proportionally to happiness. A year after he increased salaries, the average salary was $72,000 compared to $48,000 before the move. The publicity evidently was good for business-the company boasted a doubling of profit as well as increased happiness and retention of employees. Effects on workers are reported as including a shorter commute time (workers evidently could afford to move closer to downtown Seattle), and having more babies (the birthrate among employees increased 10- fold after the pay increase). Source: P. Cohen, 2015; Murray, 2016. Even if one subscribed to a libertarian approach, how should salary be calculated? Should workers be paid based on their production or as a salary? If so, how would one pay secretaries, teachers, or customer service workers, whose production is more dif- ficult to measure? How would Id one pay police officers—by the number of arrests? Thus far, we have discussed are also distrib- uted, such as used only salaries, but in the workplace other good , merit increases, job parking places . How should these “perks"be awarded upportings; desirable offices, and parl if isn't easily measured? ilitarian systems of distribution would allow economic disparities if they con- tributed to the greater good. For instance, doctors should make more money than many other workers because it is difficult to become a doctor and not many people would go through with it unless there were some rewards to look forward to. Also, doctors contribute to the greater good by curing the sick and injured and help the strihatin economic prosperity of of the society by keeping people healthy, thus it benefits all of us that the compensation is sufficient to keep adequate numbers of people interested in medicine Minimum pay laws can be justified under a utilitarian system, but not a libertarian one. Federal minimum 2 Federal minimum wage is $7.25 per hour but states can set their own laws and many have set minimum wages higher than the federal law. About 28 states have higher minimum wage laws than the federal rate. The highest wage laws are $11.50 for 1 the District of Columbia and $11 for w r Washington and Massachusetts (United States Department of Labor, 2017). The argument for increasing minimum pay is not just . need. The utilitarian argument is that more money in workers' pockets improves the economy since low-income workers spend a greater percentage of their income on consumable goods than do those at the pay goes straight back to the economop of the socioeconomic ladder. The raise i 1 the boost is good for everyone. However, opponents argue that it is not good for everyone because when business owners have to pay workers more, they hire fewer workers so the number of jobs goes down, or they give workers fewer hours, making it just as difficult to make ends meet. Recent research supports this finding, at least in Seattle, when it raised the minimum wage to $13 per hour although other studies find the opposite effect (Scheiber, 2017). Copyright 2019 Cengage Learning. All Rights Reserved. May mot be copied, canned, ce duplicated, in whole or in pat. Due to clectronic righ, some third party content may be supposed from the Book ander Chapter O Type here to search o IT 83% j 46°F Mostly cloudy 5:09 PM 1/2/2022 = My Shelf | Brytewave eReader X 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180315/mi/569125214?cfi=%2F4%2F4 ☆ A a 58 p. 58 기 K + - كما 000 58 PARTI Ethics and the Criminal Justice System of governmental "hand-outh . : purchase iner insurance). From the loner Just distribution of other goods in society is also problematic. There are peren- nial arguments over how much people should receive in entitlement programs, such as food stamps and TANF (Temporary Assistance for Needy Families). The principle of need is the rationale we use to take from the financially solvent, through taxes, and give to those who have little or nothing. There is always resentment over this redistri- bution because of the belief that some people choose not to work and take advantage ." The issue of universal healthcare has become a divisive controversy in this coun- try. In July 2012, the Supreme Court upheld the legality of the Patient Protection and Affordable Care Act, colloquially referred to as “Obamacare” (National Federation of Independent Business v. Sebelius, 567 U.S. 519, 2012). In King v. Burwell , 576 U.S. 2014, opponents challenged the use of subsidies, but the Supreme Court ruled in favor of the healthcare law again. In the winter of 2017, an attempt to repeal and replace ful, and the Senate's version did not fare much better, but efforts continue to repeal the law by the Republican majority in the House of Representatives was unsuccess drastically dismantle the Affordable Care Act. Criticism comes from both sides of is not be involved in ed in providing health insurance (it duty of government to provide it nor a right of the government to demand individuals e it may be a good, but it is neither a the left, there is the belief that the government should be providing g universal healthcare, not health insurance subsidies The national debate over this issue echoes the opposition over Franklin Delano Roosevelt's “New Deal" to to get the country out of the Great Depression. The creation of f the Civilian Conservation Cor Corps, Social Security, Medicaid, and Medicare was lenged. Opponents argued that the programs were an extreme government overreach, sopposition from conservatives and libertarians, and legally chal- while proponents argued that there was a sa need for a governmental safety net for the most vulnerable as the aged. Today, these programs have com to be integral parts of American's financial well-being. Regarding the current . over healthcare, whether the federal government has the legal authority to mandate everyone buy insurance is a legal question; whether a government-run health system is more efficient or effective than the private market is an empirical question; how- ever, whether everyone deserves to have basic healthcare is a pl e is a philosophical and moral question. Another good to be distributed in society is opportunity. There is a compelling argument that although the ideal of education is that everyone in this country has equal access to educational opportunities; the reality is that, because of unequal tax bases, school districts are not equal and distribute the opportunity of education unequally. State States struggle with how to fund take from rich districts to subsidie school districts, and "Robin Hood" laws, which e poor districts, are bitterly opposed by parents, who move to a district specifically for the resources it provides students. Washington, Kansas, and Texas are or have been recently in litigation over school funding. Gener- ally, the right to adequate education is found in state constitutions. Legal and political arguments exist over the parameters of the state's obligation to provide funding, the definitions of adequacy, and the source for school funding. There are also perennial arguments about charter schools and voucher systems with some arguing for choice and parental control, and others arguing that the basis of a democracy is a well-funded public school system. The nomination and confirmation met with among us, such as come to current controversy ان O Type here to search o O IT # 83% J' 46°F Mostly cloudy 5:10 PM 1/2/2022 = 6 My Shelf | Brytewave eReader х 5 Ethical Dilemmas and Decision X + - х 个 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180316/mi/569125745?cfi=%2F4%2F4 A a 59 p p. 59 기 K + - كما ܘܘܘ Chapter 3 Justice and Law 59 dren in Proponents of Betsy DeVos as President Trump's Secretary of Education was controversial, partly because she did not have a background as an educator, but, also, because of her ardent support t for private school vouchers. This option to school funding would allow par- ents to receive vouchers (or tax credits) to apply toward tuition at private schools. Opponents argue that the financial assistance given to parents who place their chil- in private schools takes away from public school budgets, which are stretched woefully thin as it is, and distributed to families who don't need the financial help. whics that parents should not be forced to place their children in poorly performing schools and there are e are private school choices that would be better for children, perhaps especially high-risk children, because of smaller class sizes and individualized assistance John Rawls' theory of justice is perhaps the best-known modern conception of justice. He elegantly combines utilitarian and rights-based concepts in his theory of distributive justice. Basically, he proposes an equal distribution unless a different dis- tribution would benefit the disadvantaged. Rawis believes that any inequalities of soci- ety should be to the benefit of those who are least advantaged (Rawls, 1971: 15): • Each person is to have an equal right to the most extensive total system of basic lib- erties compatible with a similar system of liberty for all. Social and economic inequalities are to be arranged so that they are both reasonably expected to be to everyone's advantage and attached to positions and offices open to all (except when inequality is to the advantage of those least well-off). So, for instance, Rawls may argue for a purely objective hiring scoring system except when one gives extra points for those who are least well-off, and tax rebates that are equally distributed, except if they are a bit more favorable for those in the lower income brackets. Rawls uses a heuristic device that he calls the veil of ignorance veil of ignorance the idea that people will I develop fair principles of distribution only if they Rawls' idea that people will develop are ignorant of their position in society, for they just as easily may be "have-nots” as fair principles of "haves” (Rawls, 1971: 12). Thus, justice and fairness are in everyone's rational self-in- terest because, under the veil of best and most rationen die veil of ignorance, one's own situation is unknown, and the distribution only if they distribution is the one that t is most equal to all. to position in society. Rawls' theory of justice has been criticized. First, some argue that the veil of igno- so to get objective rance is not sufficient to counteract humanity's basic selfishness: given the chance, judgments, the decision maker must people would still seek to maximize their own gain, even if doing so involves a risk not know how the (Kaplan, 1976: 199). Second, Rawls toward those who are least well-off way be contrary to the good of societu Rasuls states that "all social values-liberty and decision would affect opportunity, income and wealth, and the bases of self-respect—are to be distributed equally unless an unequal distribution of any, or all of these values is to the advantage of the least favored? This may be ultimately dysfunctional for society, for if those who are least well-off have the advantages of society preferentially, there will be no incen- tive for others to excel. Also, some argue that Rawls is wrong to ignore desert in his distribution of goods (Galston, 1980: 3). Is distributive justice relevant to criminal justice? One application of distribu- tive justice is the appropriateness of affirmative action in the hiring and promotion of police officers and other criminal justice professionals. Should your race give you an edge in hiring decisions? What if the profession is one, such as policing, that his- torically has been closed to minorities? Another issue that is related to distributive justice is how much to pay police officers or correctional officers compared to other to explain are ignorant of their him or her. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned or duplicated, is whole or in pat. Due to destron righ, some third party content may be suppressed from the book and for Chapter o O Type here to search IT 83% DI 46°F Mostly cloudy 5:10 PM 1/2/2022 = х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180317/mi/569125735?cfi=%2F4%2F4 A c Q 60 [9.60 p. 60 기 K + - كما o 000 60 PARTI Ethics and the Criminal Justice System professions. Most people believe that police are underpaid. If so, how much is a fair salary, and how does that salary compare to others, such as elementary school teach- ers? The criteria you use to determine these answers should have some basis in the distribution systems discussed earlier. Finally, there is a connection between distributive justice and corrective justice, which will be discussed next. If it is true that socioeconomic status predicts criminal disposition, should we care? Is it fair that poor people tend to end up in prison and those with more resources usually receive less punishment? Further, should we consider issues of distributive justice (i.e., what someone has by accident of birth) in any discussion of corrective justice (i.e, what people deserve when they commit a crime)? For example , is a rich person who embezzles from their employer equally ) culpable as a desperately poor individual who commits a theft? Reiman (2007) argues that economic power affects lawmaking, lawbreaking, enforcement, and punishment practices, literally, he argues that the rich get richer and the poor get prison under our system of justice. Clearly, distributive justice is an important concept in any discussion of the criminal justice system. Corrective Justice Recall that, in addition to distributive justice, Aristotle also described corrective justice, which is concerned with balancing unfair advantage. We will not discuss the types of issues relevant to civil law, such as contract disputes and other forms of business or con- sumer conflicts. We will concentrate, instead, on the concept of justice as it applies to determining guilt and dispensing punishment for criminal violations. As with distrib- utive justice, the concepts of equality and desert, fairness and impartiality are import- ant. Two components of corrective justice should be differentiated. Substantive justice involves the concept of just deserts, or how one determines fair punishment, and procedural justice concerns the steps we must take before administering punishment. substantive justice Concerns just deserts-in other words, the appropriate amount of punishment for a crime. procedural justice The component of justice that concerns the steps taken to reach a determination of guilt, punishment, or other conclusion of law. Substantive Justice Substantive justice refers to issues of inherent fairness in what we do to people in the name of justice. For instance, whether capital punishment is a fair punishment for the crime of murder is a substantive justice question. Many believe that the only just punishment is death because that is the only punishment equal to the harm caused by the offender. Others might say that life imprisonment is equitable and fair. Since the beginning of codified law, just punishment has been perceived as proportional to the degree of harm incurred. This was a natural outcome of the early, remedial forms of justice, which provided remedies for wrongs. For instance, for the early Greeks or Romans, the response to a theft of a slave or the killing of a horse involved compensa- tion. The only just solution was the return or replacement of the slave horse. This remedial or compensatory system of justice contrasts with a punishment system: the first system compensation to the victim or the victim's family , and the second apportions punishment based on the degree of harm suffered by the victim. They both involve a measurement of the harm, but in the first case, measurement is taken to adequately compensate the victim, and in the second it is to punish the offender. In a punishment-based system, the victim is a peripheral figure. forces the the offender to to provide ง o O Type here to search # IT 83% ינ 46°F Mostly cloudy 5:10 PM 1/2/2022 = 6 My Shelf | Brytewave eReader x 5 Ethical Dilemmas and Decision X + - х 1 c O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180318/mi/569125487?cfi=%2F4%2F4 A O 61 기 K + - كما 000 p. 61 Chapter 3 Justice and Law 61 The state, rather than the victim, becomes the central figure-serving both as victim and as punisher. Two philosophies of substantive justice (or how to calculate appropri- ate punishment) can be identified: retributive justice and utilitarian justice. retributive Retributive Justice justice The The concept of retributive justice is one of balance. Justice demands that the criminal component of must suffer pain or loss proportional to what the victim was forced to suffer. A life for justice that concerns a life might be easy to measure, but most cases involve other forms of harm. How does the determination Deasy measures and methods of one determine the amount of physical or mental pain suffered by the victim, or finan- punishment cial loss such as lost income or future loss, in most crimes? And if the offender cannot pay back financial losses, how does one equate imprisonment with fines or restitution? Historically, corporal and capital punishment were used for both property crime and violent crime. With the development of the penitentiary system in the early 1800s, punishment was more likely to be measured by the number of years of imprisonment rather than amounts of physical pain. However, a year in prison is hard to equate any crime. How many prison years are equal to a burglary? How many prison years are equal to a drug offense? Research on prison adjustment indicates that a year in prison might be no more than mildly inconvenient for some, but for others, it might lead to suicide or mental illness (Toch, 1977). systems stems of justice, the status of the victim was important in determining of harm and, thus, the punishment. Nobles were more important than free men, who were more important than slaves. Men were more important than women. Punishment for offenders was weighted by these designations of the worth of the vic- tim. Although we have no formal system for weighing punishment in this way and have rejected the worth of the victim as a rationale for punishment (except in a few cases, such as assaulting a police officer or president), many believe that our justice system still fol- lows this practice informally. People argue that harsher sentences are given when the vic- tim is white than when the victim is black and when the victim is rich as opposed to poor. In earlier the level of FIN THE NEWS | What Is a Just Punishment for Juvenile Murder? In Roper v. Simmons, 543 U.S. 551, 2005, the Supreme Court determined that execution for anyone who committed murder before the age of 18 was cruel and unusual and, thus, a violation of the Eighth Amendment. In 2010, the Supreme Court decided Graham v. Florida, 560 U.S. 48. The majority held that life without parole for a person who was under 18 when he committed a nonhomicide crime was also a violation of the Eighth Amendment. It was cruel and unusual punish a juvenile in this way because of differences in the brain's maturity between juveniles and adults, and because capital punishment should be reserved for the "worst of the worst" and juveniles, because of their youth and probable capacity to change, would not meet that definition. In 2012, the Supreme Court consolidated two cases: juveniles Evan Miller and Kuntrell Jackson partici- pated in murders when they were 14 and were sentenced to mandatory life without parole terms. In June 2012, the Supreme Court ruled that a mandatory life without parole sentence was a violation of the Eighth Amend- ment because the mandatory nature of the sentence did not allow for a consideration of the juvenile's youth and culpability (Miller v. Alabama, 567 U.S. 460, 2012). The next case that will appear before the Supreme Court . will no doubt ask the question whether any life with- out parole sentence is legally acceptable for a juvenile killer. The justices decide these cases on legal grounds, but there is also the moral question-are juveniles less culpable, even for murder, than adults and should they receive less punishment? o O Type here to search IT ir c 83% ינ 46°F Mostly cloudy 5:10 PM 1/2/2022 = х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 1 O 8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180319/mi/569125595?cfi=%2F4%2F4 回 o p. 62 62 기 K + - كما o 000 62 PARTI Ethics and the Criminal Justice System ment of that no pun. or chief. sanctuary within the were respite from a person respite from i she was within the Our system of justice has also rejected discriminations between offenders based on status, at least formally, but other distinctions in offenders' culpabilities are accepted. For instance, we don't hold juveniles fully responsible for their actions because they are considered less than rational. See the In the News box for the Supreme Court's treat- f juvenile culpability In Rawls (1971) theory of justice, retributive punishment is limited in such a as to benefit the least advantaged, similarly to the distributive justice scheme discussed rlier. In this philosophy of justice, the offender is punished until the advantage . changes and the offender becomes the least advantaged. What is a just punishment for any offense should be considered using the veil of ignorance so one does not know whether one is the offender, the victim, or a disinterested bystander. Critics argue that Rawls' system would create a situation wherein an offender may victimize a large cor- poration or a well-off victim and still be more disadvantaged, dictating t ishment is due him or her. Most of us would not countenance this definition of justice. One other issue that must be addressed in any discussion of retributive justice is manca the concept of mercy. From the very beginnings of law, there has been the element of forgiveness or mercy, even though the offender deserves to be punished. Even tribal societies had special allowances and clemencies for offenders, usually granted by the king or For instance, the concept of sanctuary allowed offenders Ancient right based on punishment if they the confines of church church power, allowed ndeshati nastounds. Benefit of clergy, dis- pensation, and even are examples of mercy by the court. However, it must be made clear that mercy is different from just deserts. If, on the one hand, because punishment if he or of circumstances of the crime of the criminal, or of the victim, the offender deserves confines of church little or no punishment , then that is what he or she deserves, and it is not mercy to give of the victim, the offer grounds. suspechment, and is instead forgiven, sentence or probation. On the other hand, if an if an offender truly deserves the given, then the individual has been granted mereves . Murphy (1985/1995) proposes that retributive emotions derive from self-respect, , that it is a healthy response to an injury to feel angry, resentful, and, yes, even venge- ful. However, it is also acceptable to forgive and extend mercy to ones assailant if the forgiveness extends not from a lack of self-respect but rather from a moral system. For a instance, he points out that many religions include the concept of "turning the other cheek” and extending mercy to enemies. Mercy is appropriate when the offender is repentant. Who has the right to extend mercy? utilitarian Utilitarian Justice justice The type of As discussed above, retributive justice justifies punishment simply because the justice that looks to offender deserves it. However, utilitarian justice only supports punishment if it bene- fits society. Cesare Beccaria (1738-1794) and Jeremy Bentham (1748-1832) provided all as the end. a utilitarian rationale for proportionality in punishment. Punishment should be based hedonistic on the seriousness of the crime: the more serious the crime (or the greater the reward calculus Jeremy the crime offered the criminal), the mor more serious and severe the punishment should be to deter the individual from committing the crime. A utilitarian framework of justice for calculating the would justify punishment based on deterrence. Bentham's hedonistic calculus, for instance, is concerned with measuring the amount of threatened potential rewards of the crime so the amount of threatened pain could be set to deter pain could be set to people from committing that crime. The use of proportionality in this scheme is for deter people from deterrence, not balance. In a retributive system, we measure to determine the propor- committing that crime. tional amount of punishment to equalize the wrong in a utilitarian system, we measure the greatest good for Bentham's rationale potential rewards of a crime so that the Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated, in whole or in pat. Due to doctronic righ, some third party content may be supprewed from the Book ander Chapter Bitorial review has domed that any supposed content does not matally fat the well experience Compage Laming removes the right to move additional.com anymi bugune rights require nurinhe 2018 Calearing All Dich Decanathecara rannar ritar in whole or in nart Wrinn.no O Type here to search o IT 83% DI 46°F Mostly cloudy 5:10 PM 1/2/2022 = х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 1 O 8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180320/mi/569125720?cfi=%2F4%2F4 A c o [p p. 63 63 기 K + - کها ܘܘܘ Chapter 3 Justice and Law 63 justice notions S of justice may to determine the amount of punishment needed to deter. We see that under the utili- tarian framework, there is no necessity for perfect balance. In fact, one must threaten a slightly higher degree of pain or punishment than the gain or pleasure that comes from the criminal act; otherwise, there would be no deterrent value in the punishment. In some cases, retributive notions sof stice and utilitarian noti conflict. If a criminal is sure to commit more crime, the utilitarian could justify hold- ing him in prison as a means of incapacitation, but the retributive approach to just punishment would not hold anyone past the time "equal" to the crime. Deterrence is the primary reason to punish under a utilitarian system, but desert is the only determi- a retributive system of justice. We subscribe to both utilitarian and retributive rationales for punishment. Amid any discussion of the costs and benefits of prison programs, diversion programs, or the correct punishment for different groups, the concept of desert is ever present. nant of a extraordinary Procedural Justice We turn now to the procedure of administering punishment-our legal system. Law includes the procedures and rules used to determine guilt, decide punishment, or resolve disputes. It is important to keep in mind that justice and law are not the same thing. You might think of f justice as the c econcept of fairness, while law is a system of rules. The law is an n imperfect system. Fuller (1969) explored the weaknesses of law and described scribed ways that that the procedure of law may fail to achieve justice. Generally, there is a tension between Como tween having no no rules which would mean ad hoc decisions for each dividual case, and a system of rules that is too stringent with no exceptions made for circumstances. The tension between rules and a conception of justice that is basically fundamen- tal fairness is found in several Supreme Court cases. In 1993, the Supreme Court heard Herrera v. Collins, 503 U.S. 902, 1993. Herrera was convicted of nere con of killing two police offi. cers. In an appeal, he argued that new evidence warranted a new trial because inno- cence should always be legitimate grounds for appeal, despite having exhausted all standard d appeals. The Supreme Court majority issued a narrow holding that Herrera did not prove a constitutional violation by his actual innocence evidence. Some jus- tices who concurred argued that there could be actual innocence e procedural right to rehear the case, but actual innocence evidence that would herethear the case, but Justice Rehnquist wrote the opinion, and, in dictum argued there was no independent constitutional right for relief based on true innocence and the only recourse in a situation where evidence was discovered after appeals were exhausted was pardon or clemency. Justice Scalia, in his concur- ring opinion, wrote: "There is no basis, tradition, or even in contemporary practice for finding that in the Constitution the richitation, or even to demand judicial consideration of newly discovered evidence of innocence forward after a conviction" (at 427). In another case dealing with whether new evidence of innocence should trump legal rules, Justice Scalia wrote in a dissent that the Court had “never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is actually innocent," In re Troy Anthony Davis, 130 S. Ct. 1, 2, 2009. Especially considering the increasing number of wrongful convictions, the position that innocence is not protected by the Constitution or procedural due process is quite amazing, yet the Supreme Court has never estab- lished clearly that innocence trumps legal rules (Bazelon, 2015). create a e right Copyright 2019 Cengage Leaming. All Rights Reserved. May not be copied, canned or duplicated, is whole or in pat. Due to destron righ, some third party content may be suppressed from the book and for Chapter Bitial review has demed that any supposed content does noe many fact the overallarning experience Compage Leaming reserves the right to move additional cost at any time when rights require Canviat 2018 Pananalamin All Dichte Dacam Manatharana sannarlarnir start in whala arin mart wren.n.2 o O Type here to search IT 83% DI 46°F Mostly cloudy 5:10 PM 1/2/2022 = 6 My Shelf | Brytewave eReader X E Ethical Dilemmas and Decision X + - х 1 c O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180321/mi/569125979?cfi=%2F4%2F4 ☆ A p. 64 0 64 기 K + - كما A 000 64 PARTI Ethics and the Criminal Justice System the court's In Holland v. Florida, 530 U.S. 631, 2010, the Supreme Court did uphold fairness over rules in holding that the time for filing a federal habeas corpus petition could be extended by "equitable tolling" when the conduct of an attorney was sufficiently egre- gious s to warrant the extension. Holland had lost two direct appeals and had one year to file a federal habeas deral habeas corpus appeal. Despite his many pleas to his attorney to get an appeal in before the deadline, the missed, Holland was barred from fitorney failed to do so. Because the deadline was He filed his own or correo is own proses legal assislabeas petition appealing his death sentence. waived because of the attorney's negligence. The Eleventh Circuit denied relief, but the l assistance) petition arguing that the deadline be Supreme Court held that courts must look at the totality of circumstances on a case- due process by-case basis to determine whether the deadline should be extended. Consistent with Constitutionally case passare mandated procedural his opinion in prior cases, Justice Scalia dissented. steps designed to These cases show the tension between the fundamental fairness of considering eliminate error in "actual innocence" claims and and following strict rules of law. Although a system of law any governmental is necessary for the ordered existence of society, it sometimes does not result in jus- deprivation of tice. “Moral rights” may differ from “legal rights," and "legal interests” may not be protected liberty, life, or property addresses many of the issues discussed. Here, e plea for mercy emphasizes the rela- tionship between justice and mercy. Shylock's demand for and enforcement of his legal right this pound of flesh) QUOTE & QUERY and the unwillingness of the court to deny it, despite the The quality of mercy is not strained; that it would be a tragedy, illustrate how law has little to do with justice. Then Portia's surprise It droppeth as the gentle rain from heaven sometimes argument—that because Shylock's Upon the place beneath. It is twice blest: flesh and not blood, so no blood could be spilled, and thus It blesseth him that gives and him that takes. Shylock is denied his com of the law's slavish devotion to technical rules over Sa superb ustration It is an attribute to God himself, In exemplifies And earthly power doth then show likest God's due process exemplifies proce- dural justice. Our constitutional rights of dexen When mercy seasons justice. Therefore, Jew, I rights of due process (found in the Fifth, Sixth, and Fourteenth Amendments) Though justice be thy plea, consider this, feiturenquiry and investigation before punishment or for- That t, int the course of justice, none of us of any protected right can be carried out by the state. Should see salvation. We do pray for mercy: 1. An individual has the right to due process whenever the gov- And that same prayer doth teach us all to ernment seeks to deprive that person of the protected rights render of life, liberty, or property. Due process is the sequence of The deeds of mercy. I have spoke thus much steps taken by the state that is designed to eliminate or at To mitigate the justice of thy plea; least minimize error. Procedural protections may include the Which if thou follow, this strict court of Venice Must needs give sentence'gainst the merchant there. Notice of charges Source: William Shakespeare, The Merchant of • Neutral hearing body Venice, Act 4, Scene 1. • Right of cross-examination What is the magistrate in this passage • Right to present evidence ? asking Shylock to do? How do you believe • Representation by counsel mercy should season" justice? What would be procedural justice in this case? Statement of findings What would be substantive justice? Appeal contract t mentioned only compensation is a In our system of justice, due require careful ingh following: Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated in whole or in pat. Due to doctronic rigo, some third party content may be supposed from the Book ander Chapter Editorial review hus demed that any pwed content de les techninistar in what is hart writing.nn.200 Cowgage Leaming rekrves the right to move additional costa meihgunt rights require All Dichte Dacana o O Type here to search j 83% IT = 46°F Mostly cloudy C 5:10 PM 1/2/2022 6 My Shelf | Brytewave eReader X 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180322/mi/569126034?cfi=%2F4%2F4 >] A p. 65 a 65 기 K + - كما o 000 Chapter 3 Justice and Law 65 These protections do not eliminate deprivation or punishment, but they do result in more accurate and just decisions. Thus, if due process has been violated by use of coerced confessions, tainted evidence, or improper police or court procedures, an injustice has occurred. The injustice does not arise because the offender does not deserve to be punished, but rather, because the state does not deserve to do the pun- ishing, having relied on unfair procedures. entire other Procedural Justice Research One of the most interesting and policy-relevant avenues of social science research in recent years is “procedural justice” research. This research is extremely relevant to our discussion here in that it illustrates the importance of procedural justice as it affects the legitimacy of the justice system. Thibaut and Walker (1975) conducted obser- vations of courtroom settings and discovered some participants may not have been happy with the outcome, but they perceived the process as fair; in words, the perception of the process (or procedures) of justice was distinct from perceptions of the outcome. From this research, two criteria were identified that must be present for the perception the process is fair (which has come to be known as “procedural justice"): voice (which refers to an individual's ability to have a say during the proceedings) and control (which is the ability or to have 990) and his colleagues for home influence over the outcome). the measurement and his colleagues association between perceptions of proces de sunshine and Tyler, 2003; Tyler, 1990/2006, 2003; Tyler even perceptions prepelicans of procedural justice establishing the ascla tienda or and Fagan, 2008). Procedural justice has become more distinctly defined as includ- ing four elements: voice (allowing the citizen the chance to speak), neutrality (fairness in decisions), respect (using respectful language and not demeaning the citizen), and trustworthiness (the idea that the actions of the officer are for the public good; Tyler, 1990/2006;Tyler and Huo, 2002). f research has established the relationship between proce- dural justice and citizens' satisfaction with police, their view that police power is legit- imate, and even their willingness to comply with the law (Mazerolle, Bennett, Davis, Sargeant, and Manning, 2013). Research continues in this area to isolate, analyze, and annis validate the constructs of procedural justice and legitimacy (see, Gau, 2014; Rottman, 2007). For instance, elements of procedural justice appear to mitigate individuals' reac- tions to police searches (Jonathan-Zamir, Hasisi , and Margalioth, 2016). The impact of h has provided law enforcement authorities with strategies for creating and maintaining public trust (Tyler, Goff, and MacCoun, 2015). on of procedural justice is not limited to compliance in police-citi- zen encounters on the street. Researchers have found that perceptions of procedural crime (White, Mulvey, and Dario, 2016). Research has found that the same process justice strongly predict booked arrestees' willingness to cooperate irrespective of their applies in prison; specifically, those who feel there is procedural justice are more likely to also perceive correctional officials as having legitimacy (Jackson, Tyler, Brad- ford, Taylor, and Shiner, 2010; Tyler, 2010). Research has also shown that ex-prisoners who perceived a higher level of procedural justice during their incarceration were less likely to recidivate (Beijersbergen, Dirkzwager , and Nieuwbeerta, 2016). This growing body of a this research has provi zen ethe application of Copyright 2019 Cengage Leaming. All Rights Reserved. May not be copied, canned or duplicated, is whole or in pat. Due to destron righ, some third party content may be suppressed from the book and for Chapter Bitorial review has de med at any uppered content does not all at the oralarning experience. Cowgage Leaming rekrves the right to move additional costa meihgunt rights require o O Type here to search IT DI I 83% = 46°F Mostly cloudy C 5:10 PM 1/2/2022 6 My Shelf | Brytewave eReader X E Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180323/mi/569125801?cfi=%2F4%2F4 A p o p. 66 66 기 K + - كما A 000 66 PARTI Ethics and the Criminal Justice System : 2007; Farmer, and Love Concepts of procedural justice apply internally to organizations as well, although some researchers change the name of the concept to organizational jus- tice. A growing body of research, using police officers and correctional officers for the most part, supports the idea that individuals in justice organizations who feel they are not treated fairly are less satisfied, more likely to quit, and more likely, per- haps, to treat others badly or engage in corrupt behaviors (De Angelis and Kupchik, Beehr, 2003; Harris and Worden, 2014; Lambert, 2003; Lambert, Hogan, and Allen, 2006; Lambert, Hogan, and Griffen, 2007; Reynolds, 2015; Shane, 2012; Wolfe and Piquero, 2011). Recent research, for instance, finds that perceived internal procedural justice (organizational justice) of police officers is directly related to support for external I procedural justice (interactions with cit- , respect, sect, and trustworthiness). There was also an indirect relationship between internal procedural justice and trust in citizens (Van Craen and Skogan, 2017). The importance of treating people fairly and providing due process protections is a theme that runs not only through law but also through ethics. In the following two sections, we take a closer look at procedural justice by examining the evidence related to wrongful convictions and the presence of racism in the criminal justice system. Universine Newkirk Wrongful Convictions There is no greater example of injustice than an innocent person being convicted of a crime and spending years in prison, or, worse, being executed. One of the reasons that many people distrust our justice system is that there seems to be a small-but steady- stream of exonerations. Radelet, Bedau, and Putnam (1992) and Christianson (2004) provided early descriptions of innocent defendants who were wrongfully convicted. Now there is the National Registry of Exonerations, created by the University of Mich- and Michigan State law schools and the University of California-Irvine Newkirk to bude igana Center for Science and Society. The registry gathers together all the known cases of false convictions or cases where convictions have been overturned because of egre- gious errors or misconduct in procedural justice. Currently 2,009 cases are in the reg. und percent istry. Almost half (47 percent) of all cases involve black defendants. About 40 percent were homicide cases. About half of the cases involved official misconduct (National om Cases se Registry of Exonerations, 2017). "The Innocence Project was created by Barry Scheck and Peter Neufeld in 1992 at Cardozo Law School. Now Innocence Project sites exist across the country. The project is an affiliation of groups of lawyers, journalists, and, often, students in many states that identify cases where people may have been falsely convicted and there is yas DNA evidence still on file that could be used to prove or disprove their protestations of innocence. This organization has been pivotal in getting the wrongly accused off death row and freed from prison. On the website for this organization, there are brief summaries of the 349 individuals that have had their convictions overturned, includ- ing a description of what they were convicted of, the mistakes made, and sometimes the true perpetrator. Studies of wrongful convictions should distinguish between true innocence and those cases where official misconduct or error requires a new trial, but the individual Innocence Project An organization (www. innocenceproject org) staffed by lawyers and students who reexamine cases and provide legal assistance to convicts when there is a probability that serious errors occurred in their prosecution Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied. canned, ce duplicated in whole or in part. Due to destrone righ, somethi ditorial review bas deemed tut any supposed content does not materially affect the overall learning experience. Congase Leaming reserves the right to remove additional constatay dime if bequent right neerktens required third party be supposed o O Type here to search IT 83% DI 46°F Mostly cloudy 5:10 PM 1/2/2022 = х 6 My Shelf | Brytewave eReader E Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180324/mi/569126033?cfi=%2F4%2F4 A 12.67 o 67 Chapter 3 Justice and Law 67 기 K + - كما A ܘܘܘ in might still be guilty. Both types of cases may be counted in exoneration totals . Studies of these cases find that DNA is typically the method by which exoneration occurs. Elements that lead to the mentally ill, the mentally! I to wrongful convictions include false confessions (especially by ally handicapped, and juveniles), defense lawyers' incompe- tence, and the suppression of exculpatory evidence. Other elements include false/mis- , taken eyewitness identification, invalid forensic science ("junk science"), informant/ ( informant perjured testimony, government miscond misconduct, and bad lawyering (Acker and Redlich, 2011; Columbia Law School, 2002; Liptak, 2004). Schehr and Sears (2005) discuss confirmatory bias, which is when investigators focus on a suspect and confirmatory ignore contradictory evidence. Examples of the types of official misconduct that lead bias Fixating on a preconceived notion to wrongful conviction will be further discussed in Chapter 10. One important thing to consider is that in cases of true innocence, the actual and ignoring other perpetrator may go on to commit more crimes. Acker and Redlich (2011: 18) found possibilities, such as focusing on a specific that 49 rapes and 19 murders occurred because police and prosecutors focused on the suspect during a wrong suspect. police investigation. Brandon Garrett's (2011) study of 250 exonerees found that 70 percent were minorities. Racial bias in wrongful convictions has been attributed to individual fac- tors and structural factors. Structural factors include systemic bias against minorities in all institutions of society (political, economic, and social) that leads to different opportunities and treatment. Individual factors include racism, a higher rate of error cross-racial identification, stereotyping, and lack of resources among minority defendants Several studies have used different sources to estimate wrongful convictions. Esti- mates range from 0.5 percent to 15 percent, depending on which sources were used. Inmate reports account for the higher figures, prosecutors' estimates offer the lowest. The average estimate is around 1-3 percent of all felony cases (Acker and Redlich, 2011; Krajicek, 2015;Poveda, 2001; Ramsey, 2007; Zalman, Smith, and Kiger, 2008). The Quote and Query box above presents two perceptions of the costs involved in wrongful convictions The state of Texas has the highest number of exonerations, including Clarence Brandley, Delma Banks, James Curtis Giles, Joyce Ann Brown, Michael Morton, and Cameron Todd Willingham. Randall Dale Adams, another freed inmate, was the subject of the doc- The QUOTE & QUERY umentary Blue Line. He was convicted in 1976 of killing a Dallas police officer who was Is it better for 100,000 guilty men to walk free was actually killed by David Harris rather than have one innocent man convicted? Adams spent years in prison and on death row before The cost-benefit policy answer is no. finally being released (Hall , 2002; Kirchmeier et al., 2009). The case of Michael Morton, who spent almost 25 years in prison Source: (prosecutor) Quoted in Liptak, 2004: 3. after being wrongfully convicted of killing his wife, has led to No rate of preventable errors that destroy new legislation in Texas requiring prosecutors to open their people's lives and destroy the lives of those close to them is acceptable. The growing body of information on wrongful convic- Source: (law professor) Quoted in Liptak, 2004: 3. tions illustrates the fact that procedural safeguards to mini- Do either of these statements represent mize error and promote procedural justice can be put in place, ethical formalism? Which statement but these rules and procedures can be subverted consciously represents utilitarian thinking? Why does it or unconsciously by police and prosecutors who are pursuing have to be a choice between letting guilty people go free and punishing innocents? Thirt files to to defense attorneys. a conviction. Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated in whole or in pat. Due to doctronic rigo, some third party content may be supposed from the Book ander Chapter Editorial review y . har dermed that any supposed content does not affect the overall experience Compage Leaming removes the right to move additional.com y me whaque rights require о O Type here to search # 83% IT 46°F Mostly cloudy 5:10 PM 1/2/2022 = My Shelf | Brytewave eReader X 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180325/mi/569125215?cfi=%2F4%2F4 A c o p p. 68 68 기 K + - كما A 000 68 PARTI Ethics and the Criminal Justice System . to 58 per- Race, Ethnicity, and Justice The major constructs of procedural justice research include neutrality (fairness in deci- sions) and respect (using respectful language and not demeaning the citizen). There is strong evidence that these t these two aspects of procedural justice are differentially experi- enced depending on what race or ethnic group you belong to. There is a large difference in the perceptions of blacks and whites regarding the Grittoinal justice system Ina combined Gallup Poll of 2011–2014, 59 percent of whites , of but only 36 percent a of comment the aggregated polls of 2014-2016, the percent of of whites decreased slightly to 58 cent, and only 29 percent of 1 t of blacks had a great deal of confidence in the police. In the 2011-2014 poll, about 59 percent of whites stated that the honesty and ethics of police officers was very high or high, compared with 45 percent of blacks. In the more recent results, 60 percent of whites, but only 28 percent of blacks believed that the honesty and ethics of police was very high or high. In the latest poll, 76 percent of blacks say that the justice system biased against blacks, compared with 45 percent of whites (Newport, 2014, 2016). The issue of race permeates the criminal justice system. A recent study by the National Registry of Exonerations found that blacks are about seven times more likely to be wrongfully fully convicted of murder than whites, accounting for a disproportionate share of exonerations. They also spent four years longer on death row than wrongfully convicted whites. Part of the reason for this disproportionality is that there is a much higher homicide rate in rate in the black community; thus, it follows that the wrongfully accused would also be black. However, in the cases where the wrongfully convicted there is a greater likelihood of official misconduct by police or prosecutors as compared with other factors identified in wrongful convictions (Gross, Possley, and Studies show that there seems to be differences in the sentencing of blacks and inal history) piled by other sentencing factors (e.g., seriousness of charge and crim- Blacks are less likely to receive bail, and receive harsher plea offers (Kutateladze and Andiloro, 2014). Interestingly, one study showed that black judges gave black juvenile defendants 14 percent longer sentences than white juveniles (and to -victims, it could be cause of more familiarity with same-race offenders , or it might be because judges about seeming prejudiced (Guo, The shooting of Michael Brown in Fergu3016) in Ferguson, Missouri, in the summer of 2014 sparked the “Black Lives Matter” movement. Freddie Gray's death in Baltimore resulted in violent protests. Since that time, new scrutiny has been directed at police deadly force, and how blacks are disproportionally killed by police. In a study of 990 civilians killed by police officers in 2015, results indicated those from minority groups were significantly less likely than whites to have been attacking the officer(s) or other civilians, and that black civilians were more than twice as likely as white civilians to have been unarmed. The authors concluded that “implicit bias” was a factor, specifically an unconscious bias of police that blacks are more dangerous (Nix, Campbell, Byers, and Alpert, 2017). Anecdotes show this dis- parity, for example, a black man reaches into his car for his license and is shot (Levar Jones), but a white man carries an automatic rifle and revolver into a pizza restaurant, is black, there whites white تل en lige elemente lite offendersul pe partenery Researches spremated that s could e unconsciously sympathetically eworried .2016) were . use of force, echt! In se, especially Copyright 2019Cengage Leaming. All Rights Reserved. May not be copied, canned, ce duplicand, in whole or in pat. Due to decronic siglo.come thed panty content may be supposed from the clock andox Chapel Editorial review har dermed that any supposed content does nos materially affect the overall kuning experience. Cengage learning reserves the right to remove additional content at any time i haguent righe e trets require o O Type here to search DI 83% IT = 46°F Mostly cloudy C 5:11 PM 1/2/2022 х My Shelf | Brytewave eReader 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180326/mi/569125293?cfi=%2F4%2F4 A c o I p. 69 69 Chapter 3 Justice and Law 69 기 K + - كما A ܘܘܘ warnings, and transportation (as min shoots several times, and is still taken into custody by police without injury (Edgar Welch). There is also the perception that when police do use lethal force against a black < suspect, they are unlikely to be punished. In 2016, a jury deadlocked and a mis- trial was declared in Michael Slager's trial despite a video showing Walter Scott run- ning away when Slager shot him. We will discuss the very complicated issue of police use of force in Chapter 6. for Racial profiling studies continue to show that black drivers are more often stopped minor traffic orienses more likely to experience auto searches (but there is less likely any contraband found in searches of black drivers than white drivers). Studies show that blacks are more are arty likely to be arrested in traffic stops for resisting, and force is more likely to be used. Critics of these studies argue that the reason police officers stop blacks more often is because they are more likely to live in high-crime areas, and traffic stops are used scene as crime deterrence. There is little research to indicate that this policy does much to Sca reduce crime, but it has a clear and negative effective on police-community relations (Baumgartner, Christiani, Epp, Roach, and Shoub, 2017; Gordon, 2015; Hart, 2017; Kauffman, 2015; La Franiere and Lehren, 2015). The disproportionate number of arrests that lead to lost jobs and tickets and cita- tions resulting in fines and late charges when they can't be paid are creating a wide- spread “poverty-tax” on minorities wherein the criminal justice system differentially draws dollars from those least able to able to pay y (Williams, 2015b). In one study of arrests in New York City in 2014, 43,000 people were people were arrested for minor infractions on public (as minor as putting one's foot on the s foot on the subway seat), but only white, who of 20,000 arup 37 percent of public transit riders. In the first six months of 2015 O arrests, fewer than one in 10 arrestees were white. More recently, authorities have stated they will pursue civil remedies and citations rather than use arrests for minor infractions (Sunne, 2016). In a study a for small amounts of marijuana than whites. more likely to be arrested for small amounts of In a study of Charlotte, , North Carolina, than whites. Surveys about the sam show t the same percentage of blacks and whites use by accounted for 74 percent with those arrested or cited with possessing marijuana. Police rs had a choice to arrest or issue a citation and, in this period, there were 762 blacks arrested for for possessing less than a half-ounce of marijuana and only 64 arrests of whites. Like all studies that show there may be factors other than racial discrimination that account for the difference. to arrest dealers as opposed to users, which assumes, of course, that blacks are more ce, in response to this study, argued that police officers are more likely Date policelation they filed 61 percent of all complaints since 2011, on in Chicago show that although blacks make up 32 percent of Chicago's but their complaints about police misconduct resulted in disciplinary action less fre- quently than those filed by white residents. In complaints of unlawful searches, fully three-quarters of of all complaints are made by black residents of Chicago; 72 percent of complaints regarding use of force are by black residents (Ehrenfreund, 2017). It is difficult to extricate the effects of race from other factors such as living in a high-crime area and poverty. Arguably, the differential arrests, enforcement, and interaction patterns of police and minority citizens are because they are more likely to live in high-crime areas of the city where police feel more threatened and there is, indeed, more crime to enforce. Peterson (2012) reviewed neighborhood crime makes blacks were .. however, in Charlotte of officers disparity, there may be Police, in to be dealers (Harrison, 2016) likely to Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated in whole or in pat. Due to doctronic rigo, some third party content may be supposed from the Book ander Chapter Editorial review has de mod that any supperwed content does not materially affect the worlarning experience Compage Leaming reserves the right to move additional costat any me i buquent righe westetikos regurek Panvinh 2016 Pananal samin All Dishte Dacen hernia crannalariniratar in who arinnart wrini n.onnon о O Type here to search # 83% IT 46°F Mostly cloudy 5:11 PM 1/2/2022 = 6 My Shelf | Brytewave eReader х 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180327/mi/569125847?cfi=%2F4%2F4 A a 70 p. 70 p 기 K + - كما o 000 70 PARTI Ethics and the Criminal Justice System fminori- studies to show that blacks and other minorities are much more likely than whites to live in structurally disadvantaged neighborhoods, and it is these neighborhoods that contribute disproportionally to crime statistics. What they found was that crime rates in the few white neighborhoods that had similar levels of structural disadvan- tage to minority neighborhoods ties, especially blacks, that polie ad similar crime levels. The perception of are unfair and untrustworthy is ominous, especially when we see that these perceptions are getting worse not better. It is probably not a coincidence that the cities where police-citizen relations are arguably the worst in crime is increasing because of the criticism y are also the pockets where violent crime is increasing. Some argue that of the criticism directed at police, federal I consent orders, and resulting low morale resulting in less proactive policing. The other side would argue that low perceptions of police legitimacy increase retaliatory violence and lack of trust in police reduces the ability to solve crime. It is obvious that police can never solve crime on their own; employing empirically based procedural justice research and community policing models to improve police citizen interactions in minority communities may effective tools to address crime in those communities (Serpas and Brown, 2017). the country are at the Restorative Justice What would a system of justice be like if the emphasis were on the victim's rights, needs, and compensation? In a system with a primary emphasis on the victim rather than the offender, money would be spent on victim services rather than prisons. It would be victims who would receive job skills training, not offenders. Some of the money that now goes to law enforcement and corrections would be channeled to com- pensation programs for victims of personal and property crimes. Victims would be helped even if their offenders were not caught. The major goal would not be punish- ment but service . Offenders would be peripheral figures , they would be required to pay restitution to victims, and punishment would occur only if they did not fulfill their obligation to their victims. Could such a system work? Would such a system provide better justice? Although the restorative justice movement does not propose quite this level of radical I restructuring, it does dramatically redesign the justice system and offers a new a alternative to retributive justice. Restorative justice is a term used to describe programs that seek to move compensation back to center stage in the justice system, instead of retribution. A similar, but not identical, philosophy has been called “peace- making justice” by Braswell and Gold (2002). Programs that require the offender to confront the victim and provide compensation, and programs that place the victim in the middle of the process of deciding what to do about the offender, can be categorized under the restorative justice rubric. The propositions of the movement are as follows (Van Ness and Strong, 1997): 1. Justice requires restoring victims, offenders, and communities who have been injured by crime. 2. Victims, offenders, and communities should have the opportunity to be a fully active part of the justice process. Government should restore order, but the community should establish peace. restorative justice An approach to corrective justice that focuses on meeting the needs of all concerned. 3. O Type here to search o O IT # 83% ינ 46°F Mostly cloudy 5:11 PM 1/2/2022 = My Shelf | Brytewave eReader x 5 Ethical Dilemmas and Decision X + - х 1 O 8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180328/mi/569125309?cfi=%2F4%2F4 A o p. 71 71 기 K + - كما A 000 Chapter 3 Justice and Law 71 of the authority the ople in Canada such as 2016). Roman and Grecian law was compensatory; only when the offender refused to provide compensation was physical punishment employed. Gradually, however, this compensation-to-the-victim approach was relegated to civil law, and criminal law became almost solely concerned with punishment. In the 1970s, a trend toward “com munity justice” was part of the larger movement of community empowerment and development. Community justice boards or local justice committees were created as part of the justice system (Schweigert, 2002). Hallmarks of community justice models Pa cessen ...... include the idea that justice should be informal, employ local leade mal, employ local leadership, and encour: age e community participation. The goal is to repair the harm and promote the health e community, not simply punish the offender. Customs and traditions create the employed to resolve ative justice models, crime is viewed as a natural human error that should be dealt to resolve disputes (Schweigert, 2002). In 2002). In community or restor- 0 maar aan en with by the community. Offenders remain a part of the community. In retributive ative justice, question is "Who did it?" while in restorative justice, the question is "What is the harm?" In retributive justice, the question is "Which laws were broken?" while in restorative justice, the question is “What needs to be done to repair the harm?" In retributive justice, the question is "What should the punishment be?” while in restorative justice, the question is “Who is responsible for this repair?" One recent author noted that today's field of restorative justice can be broadly differ- entiated into four key areas: (1) victim-offender mediation schemes; (2) conferencing based on the ancient ancient concepts held by the Aboriginals in Australia and the Maoris in New Zealand; (3) peace circles, which were used by the First Nation and some native U.S. Indian tribes; and (4) the realm of international crimes, Nation people crimes against humanity and war crimes (Weitekampa and Parmentier, Victim-offender mediation (or victim-offender reconciliation programs) involves victims and offenders meeting and agre Reparative boards have I agreeing upon restitution. unity members (rather than justice officials) decide what should happen after a crime has been committed and an offender identified. It has been found that victims are more satisfied in in restorative justice programs than with traditional sentencing (79 percent compared to 57 percent). Offenders were also more likely to successfully sat- isfy their orders in such programs (Braithwaite, 2002: 71). Community reparative boards more commonly used with youthful offend ers. They are also called youth panels, neighborhood boards, or community diver- sion boards , and they have been in use in some locales since the 1920s. These boards i reemerged across the country in the mid-1990s. The goals are to involve the com- munity, provide the opportunity for the offender to take respons to take responsibility for his or her of recent study found that 31 states and resto prevention (Braithwaite, 2002: 73). One juvenile justice legislation, with 20 of those states combie principles incorporated in combining the ative justice with rehabilitation and accountability. Twenty states had legislation iden- tifying and enabling specific restorative justice programs (Pavelka, 2016:6-8). Family group conferencing comes from the Maori tribal model and was made a part of national legislation in New Zealand in 1989. It includes conferences of offend- ers, victims, families, and interested or involved others to resolve the problem. Cir- cle sentencing, a similar model, comes from the Navajos in North America. Everyone involved directly in a criminal offense sits in a circle and gets a turn to speak. The entire circle decides what should be done. The goal is not to respond only to the cur- rent offense but also to heal the community (Braithwaite, 2002:76). community are more and Copyright 2019 Cangage Leaning All Rights Reserved y not be copied, canned or duplicated, is whole or in pat. Due to dectronic righ, some third party content may be supposed from the Book and for Chapter the durmort de mare de weile he was a literate to translati huu raha rebumen o O Type here to search IT 82% DI 46°F Mostly cloudy 5:11 PM 1/2/2022 = My Shelf | Brytewave eReader x 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180329/mi/569125576?cfi=%2F4%2F4 ☆ A . p. 72 o a 72 기 K + - كما A ܘܘܘ 72 PARTI Ethics and the Criminal Justice System feel pres- There are potential problems with, and some criticisms of, these types of programs (Braithwaite, 2002; Dzur and Wertheimer, 2002). For instance, victims may sured to forgive before they are ready. Less due process may be given to offenders because the goal is not to punish; thus, issues of guilt or innocence may be unresolved. However, restorative justice seems to offer an alternative to our traditional retribu- tive justice system that can be supported by ethics of care, utilitarianism, religion, and possibly other ethical systems. It is more akin to older systems of law that focused on compensation rather than punishment. While legal sanctions usually do not make the victim "whole" or change the offender, restorative justice attempts to do both. Immoral Laws and the Moral Person We have distinguished procedural justice from substantive justice and noted that jus- tice is not the same as law. In other words, just because the legal rules have been fol- lowed does not necessarily mean that justice occurs. Nelson Mandela, for instance, was tried by a court of law before he was imprisoned, but that legal system was part of a brutal regime of oppression. In his trial, he argued that the process was illegitimate because it did not conform to principles of natural laws of justice. The Walking the Walk box describes his life. What is the moral duty of individuals when laws and governmental edicts are the fifteenth century that resulted in large numbers of people being tortured and killed for having dissenting religious beliefs , and the Nuremberg laws of Nazi Germany stripping Jewish citizens of their citizenship as well as later laws requiring Jews to give themselves up to be transported to concentration camps and often to their death. Examples in the United States might include the internment laws during World War II that forced U.S. citizens of Japanese descent to give up land and property and be con- fined in camps until the end of the war, and the Jim Crow laws that once forced blacks to use different doors and water fountains than whites. WALKING THE WALK Nelson Mandela was imprisoned in South Africa for 27 years. He began fighting apartheid in the 1940s. In 1964, he was convicted of sabotage and treason and sentenced to a life term of imprisonment for his activities in the African National Congress Party, which had been outlawed by the government. Throughout his decades in prison, he refused to compromise his position to gain his release, arguing that "only free men can negotiate." However, he did begin secret talks in the late 1980s when he was approached by the ruling white party leaders, who gradually came to the realization that apartheid could not continue as South Africa was in danger of being torn apart by race- based violence. Eventually, Mandela's reputation grew to worldwide proportions, and he was released in 1990. In 1991, he was elected president of the African National Congress when the ban against the political party was lifted. In 1994, black South Africans voted for the first time and Mandela was elected as president of a democratic South Africa, formally ending the era of apartheid. He was awarded the Nobel Peace Prize in 1993 along with Frederik de Klerk, the South African president who released him from captivity (continued) Copyright 2019 Cengage Learning. All Rights Reined. May not be copied, canned or duplicated, in whole or in pat. Due to destron righ, some third party content may be suppressed from the Book ander Chapter Bitorial review has de mod that any supposed comte des maladiect the overall experience Coupage Laming removes the right to move additional cost any huqun rights require Anh 2018 radna lamin All Dichte Dacana therania rannallar unirstart in who ar in mart writing.nn.no o O Type here to search j IT 82% J' 46°F Mostly cloudy 5:11 PM 1/2/2022 = My Shelf | Brytewave eReader x 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180330/mi/569125166?cfi=%2F4%2F4 A o 73 기 K + - كما 000 p. 73 Chapter 3 Justice and Law 73 After apartheid ended, Mandela was instrumental in averting a civil war between blacks and whites. There was a strong possibility that it might happen; small numbers of blacks began a pattern of violence toward those who had cooperated with the separatist government. "Necklaces" made of burning rubber were used to burn victims alive in pattem of retaliation. This violence was condemned by Mandela and others, and, instead, Truth and Reconciliation panels were created. These panels brought out into the open the horrors of apartheid and the brutal system that developed to protect it, but promised amnesty for those who admitted their wrongdoing. The Truth and Reconcili- ation panels as well as earlier conciliatory gestures, such as Mandela congratulating the white rugby team during his only term (1994-1998) as president (memorialized in the movie Invictus), and his refusal to use his power to attack and punish the vanquished white ruling party, led to South Africa coming out of a brutal, repressive regime to a de- mocracy with minimal civil strife. Throughout his life, Mandela's principles served as the guiding light for his actions and, because of those actions, a whole country was changed. Sources: Nelson Mandela Foundation website, www.nelsonmandela.org (accessed June 14, 2012); Bryson, 2010. if using ethical These laws are now thought of as immoral, but they were not considered so by many people at the time. Boss (2001) has described unjust laws as having the following characteristics: • They are degrading to humans. • They are discriminatory against certain groups. • They are enacted by unrepresentative authorities. • They are unjustly applied. Martin Luther King Jr., Mahatma Gandhi, and Henry David Thoreau agreed with St. Augustine that "an unjust law is no law at all" Martin Luther King Jr. said "A just law is one that is consistent with morality. An unjust law is any that degrades human personality or compels a minority to obey something the majority does not adhere to or is a law that the minority had no part in making” (quoted in Barry, 1985: 3). One example : that meets the definition, perhaps, of an immoral law was the wat systems. The religious teniment during WWII. We can also analyze it. for Japanese internment because it runs contrary to some basic Christian principles, ystems. The religious ethical framework would probably not provide mor support such as, "Do unto others s as you would have them do unto could not be used to support this law because it runs counter to the categorical do unto you." Ethical formalism imperative that each person must be treated as an end rather than as a means, and violates the universalism principle. The principle of forfeiture could not justify the action because these were innocent individuals, many of whom were fiercely loyal to the United States. The only ethical framework that might be used to support the morality of this law is utilitarianism. Even under utilitarianism, however, we must be able to show that the total utility derived from the action outweighed the negative effect on those impacted. Did it save the country from a Japanese invasion? Did the benefits outweigh the harm to Japanese Americans? Are there any laws today that might be considered immoral? Many argue that holding the detainees in Guantanamo for years without any due process is in violation of the Geneva Convention as well as U.S. law and has no ethical or moral justification. Defenders argue that our actions have been necessary and morally justified as self- defense. More recently, the Trump administration's ban on individuals from selected majority-Muslim countries has been criticized as immoral and illegal. The legality of o O Type here to search IT 82% ir 46°F Mostly cloudy 5:11 PM 1/2/2022 = 6 My Shelf | Brytewave eReader х 5 Ethical Dilemmas and Decision X + - х 1 O8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180331/mi/5691255067cfi=%2F4%2F4 A 10.14 I p. 74 o 74 74 PARTI Ethics and the Criminal Justice System 기 K + - كما ܘܘܘ BOX 3.2 Civil Disobedience 1. It must be nonviolent in form and actuality. 2. No other means of remedying the evil should be available. 3. Those who resort to civil disobedience must accept the legal sanctions and punishments imposed by law. 4. A major moral issue must be at stake. 5. When intelligent men (sic) of good will differ on complex moral issues, discussion is more appropriate than action. 6. There must be some reason for the time, place, and target selected. 7. One should adhere to "historical time." Source: Hook, quoted in Fink (1977: 126-127). spect, may not be civil disobedience Voluntarily breaking established laws based on one's moral beliefs. scientious, yet about a ity. The Milers the action will be determined by the Supreme Court. The morality of the action can be analyzed using ethical systems clearly the support offered is from the utilitarian ethical perspective; however, whether the harm is outweighed by the utility derived from the ban is arguable. Arguments have also been made from a rights perspective (e.g. "those outside the United States have no right to enter" or those who already have a legally issued visa or have passed background checks have a right to be allowed in”). Unfortunately, actions that may seem reasonable when in the grip of fear, in retro- e legally or yor morally justifiable. Civil disobedience is the voluntary disobedience of established laws based on one's moral beliefs (See Box 3.2). Rawls (1971) defined it as a public, nonviolent, con- yet political act contrary to law and usually done with the aim of bringing t a change in the law or policies of the government. Many great social thinkers and leaders have advocated breaking certain laws thought to be wrong. Philosophers believe that the moral person follows a higher law of behavior that usually, but not necessarily, conforms to human law. Civil disobedience is unusual because most people tend not to challenge author- Milgram experiments are s are often used to show how easily one can command blind obedience to authority. In these experiments, subjects were told to adminis- ter shocks to to individuals hooked | up to electrical equipment as part of a learning 1963). Unbeknownst to the t to the subjects, the "victims" were r associates of the experimenter and faked painful reactions only when the subjects thought they were administering shocks. In one instance, the subject and the vic- tim” were separated, and the subject heard only cries of pain and exclamations of then silence, indicating that the “victim was unconscious. Even when the subjects thought were harming the "victims" they continued to administer shocks because the experimenter directed them to do so and reminded them of their duty (Milgram Although it is always with caution that one applies laboratory results to the real world, history shows that individual submission to authority, even immoral authority, is not uncommon. Those who turned in Jewish neighbors to Nazis and those who par- ticipated in massacres of Native Americans in this country were only following the law or instructions from a superior authority. The point is that it is a rare individual who stands up to legal authority, even when he or she believes the law to be wrong, experiment (Milgram, really distress, 2 1963). Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, canned, or duplicated in whole or in pat. Due to doctronic rigo, some third party content may be supposed from the Book ander Chapter 1. Al Diar Dan Hal in winter var.. hardened and content des . que o O Type here to search IT 82% ir 46°F Mostly cloudy 5:11 PM 1/2/2022 6 My Shelf | Brytewave eReader X 5 Ethical Dilemmas and Decision X + - х 1 O 8 https://platform.virdocs.com/r/s/0/doc/592275/sp/178180332/mi/569125455?cfi=%2F4%2F4 A c o p. 75 75 기 K + - كما A 000 Chapter 3 Justice and Law 75 Remember that civil disobedience occurs when the individual truly believes the law to be wrong and therefore believes that the enforcement of it or obedience to it would also be wrong. We are not referring to chronic lawbreaking because of immedi- ate rewards. Indeed, most criminals have a conventional sense of morality. They agree with the laws, even though they break them. Even those gray-area laws that involve disagreement over the "wrongness" of the behavior are not proper grounds for disobe- dience unless one believes that the government is immorally oppressing certain people. There is a widespread belief that law is synonymous with morality and that if one remains inside the law, one can be considered a moral person. Callahan (1982: 64) points out the following: We live in a society where the borderline between law and ethics often becomes blurred. For many, morality is simply doing that which the law requires; a fear of punishment is the only motivation for behavior in some minimally acceptable way. We should always remember that law is considered the basement of morality; even if you never break a law that does not automatically make you a moral person. There are immoral acts that are not illegal, and once in a great while some laws are immoral. Before we conclude the chapter, a dilemma will be presented along with a discussion of how consideration of law, policy, and ethics would help us in determining the right thing to do ETHICAL DILEMMA You are a prosecutor involved in a case concerning a bru- tal murder. No DNA evidence was uncovered at the scene and there were no witnesses. The state lab examiners are unable to match a boot print left at the scene to the sus- pect's boot, but you find an expert who is willing to testify to a match. You also discover your expert has been sanc- tioned in another state for overstating her qualifications and her testimony has been excluded in other states be- cause it does not meet legal tests for admission of expert testimony. Would you share such information with the de- fense? Would you use this expert's testimony at all? Law In Brady v. Maryland, 373 U.S. 83,1963, the Supreme Court held that due process required that prosecutors divulge any exculpatory information to the defense. Not doing so could result in a reversal of a conviction. For sci- entific evidence to be admitted, it must meet the "Daubert standard" in most states. This guidance came from the Su- preme Court in Daubert v. Merrell Do...
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