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ETHICSin CRIMINAL JUSTICE

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In memory of Dr. T. Henry Souryal, my mentor, my friend, and mybrother. He was not ours and he was not mine. He was a gift from Godwho succeeded a little bit in making the world a little better and when he

was finished, he silently yet gallantly went Home.

iii

FOREWORD

At the heart of every social institution is at least one paradox. Theparadox of the criminal justice system is the working assumption thatgood will result from punishment. This idea, a perversion of the philo-sophic utilitarianism of Mill and Bentham that shaped Anglo Americancriminal law, substitutes ex post facto retribution for prevention, policyfor reasoning, and organizational culture for human concern. To concealsuch paradoxes, mystifying ideologies are produced and reproduced.Thus, in the American criminal justice system a deep and pervasive com-mon belief obtains that pragmatism and diverse forms of expediency arethe only principles available. This argument appears in many guises:from the cynical view that “nothing works,” to the intellectually flawedpresumption that IQ and/or some pattern of genes create “criminals” or“career criminals.” Perhaps the most irresponsible guise is the argumenturging still more of the same; that is, more prisons, more police, morecourts, and more lawyers. Such arguments strongly suggest that our goalsare obscured and our purposes lost.

Not only is there a paradox at the heart of the system, but the systemalso manifests patterned anarchy. Martha Feldman (1989) aptly callsthis “order without design.” This means simply that a system with nooverall design can work. The idea that a criminal justice system existsby design, and that it is held together by laws, flowcharts, algorithms,dispositions, and outcomes, is a relatively recent conceit. It is yet to beproven what common values and purposes, other than communicatingitself (Luhmann, 1985), bind together this notional system. Perhapsthe subsystems are articulated around negotiations over particular cases,shaped by dramaturgical principles of “looking good” and “maintainingrespect,” and governed by a self-sustaining wish to produce and repro-duce uncertainty in “outposts.” These “rules of thumb” reflect expedi-ency, pragmatism, and sensitivity to a local political order. This stateof affairs, according to Souryal, can and should be altered if one takesethical principles seriously.

The arguments found in this book, presented in an admirably clearprose style, are courageous and refreshing principles. Souryal urges read-ers to consider basic ideas and their applications. A humanist, he seesmost laws as good, yet people as flawed. They are not “flawed” in the

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intrinsic sense of lacking redemption, but rather are ignorant of theirown potential and of the essential entailments of humanity. He arguesthat the humanistic and philosophic bases for decisions be taught explic-itly. Although I am sympathetic with this notion, I despair at times.I once asked a criminology class of nearly 200 how many had readAlbert Camus, The Stranger (3); Crime and Punishment (5); and howmany knew (anything) about the theater of the absurd or surrealism(2). In this vacuous context, how does one critically discuss issues ofpunishment, of rationality, of the kinds of evil best punished by criminallaws? Unfortunately, I do not consider this ignorance anomalous onmodern campuses. If one assumes, as Souryal does, that the humanisticmandate of the social sciences, reflected in the field of criminal justice, isan essential grounding of all serious moral argumentation and enter-prise, then the systematic teaching of ethics and ethical questions shouldhave a primary role in any criminal justice curriculum.

Souryal pleads for a humanity entailing a measure of goodness, tol-erance, and compassion. He is sensitive to the paradox previously noted,and argues that the way in which the state treats the evil and ignoble isessentially revealing. He urges noble treatment of the ignoble. This maybe stated in yet another fashion that builds on the relationship betweenthe self and the other. The criminal, the sick, the ignorant, the mad andsad, and the omnipresent other are essential, for they provide the mirrorof ourselves. The others are, metaphorically speaking, the screen uponwhich dances our selves, dances our often denied and suppressed pas-sions, pain, and failures. The other, at best, represents our choices andour negations. When the United States government wages war to “liber-ate Afghanistan” and causes thousands of Afghan deaths as a result of“collateral damage,” while denying the crying needs of the inner citiesof this country, it is making a choice, displaying a value, and casting avote. Who is the relevant other? What other is denied?

This book advances a thematic perspective with area-specific guid-ance for ethical decisions in criminal justice. The quest is surely an ambi-tious one: shaping a “collective conscience” or “soul” for the disciplineof criminal justice. This concept of a soul—a powerful metaphor thatcombines action, thought, and feelings—if developed, will facilitate bal-ancing: sustaining basic values, while enabling change; encouragingtechnological innovations, while resisting dehumanization; seeking pol-icy changes and rewarding critical self-renewal and reflection. One infer-ence from Souryal’s work is that the core idea essential to “soul-building”is self-reflexivity and critical self-evaluation. Drawn fromSouryal’s reviewof ethics from the early Greeks to John Rawls, this idea is consistent withthe notion that the criminal justice system sustains an “ambivalent real-ity.” Souryal believes that fundamental ethical clarity will reduce thesalience of the “root sins” of lying, prejudice, and abuse of authority.

vi FOREWORD

In this and in other ways, this is a courageous book. In arguing forthe utility of ethics, Souryal also implies the failure of the policy sciencesand public administration approaches that have long shaped criminaljustice. These approaches have failed for a variety of reasons, not theleast of which is the inability of combining a public administrationapproach appropriate for some reformist (largely western American) cit-ies with the political organizing approach needed in other developingcities (in the South and Southwest) and the aging and politicized citiesalong the eastern seaboard. The politics of policing differ in these envir-onments, and therefore policing differs. Nor can vague democraticvalues alone guide the criminal justice system (nor criminal justice prac-tice). History shows that these values have been used to rationalize fight-ing wars in several continents since World War II, sending troopsto South America to enforce U.S. drug laws, sustaining slavery andsegregated education, justifying capital punishment as not cruel andinhumane, and rationalizing governmental terrorism in inner cities inthe name of a “war on drugs.” Although the “sciences of justice” pos-sess scientific methods and techniques, science—and even criminology,the study of the logic of crime—remains a small but important aspectof criminal justice. Finally, very little effort has been given to clarifyingthe meaning of justice itself. There is more interest in the criminal thanin justice in American criminal justice research.

In the last 25 years, criminal justice education has been increasinglyscientific, methods driven, technologically preoccupied, and pragmaticin focus. Think of some of the recent research questions that have sur-faced: “Can we control police shootings?” “Can we create a minimumsentencing grid?” “How can we increase the amount of available medi-cal care in prisons?” “How can we better educate the police?” “Howcan one reduce calls to the police?” “How can we increase the arrestsof drug users?” “Can electronic surveillance reduce the costs of parolesupervision?” These are short-term questions, shaped by federal researchagendas and the local political order. They obscure the questions of thepurpose of such research, the intent in “solving” them, and the intendeddirection of social change. Tactical thinking is characteristic of emergingorganizations just developing their sense of purpose and philosophicrationale.

What options remain? Clearly, most practitioners in the systembelieve that they can do little else than “fight fires” and “keep the shipafloat.” Externally sponsored reform without a clear ethical positionand a principled purpose is often self-serving and self-deceptive. It rarelytakes into account the unanticipated consequences of short-term andexpedient actions. It begs questions of justice, the sought-for quality oflife, and the political and moral foci of such efforts. Perhaps long-termgoals are inconsistent with such short-term tactical efforts, for they

viiFOREWORD

require a paradigm within which to consider the consequences of one’sactions. This does not presently exist. For example, good evidence sug-gests that contact with the criminal justice system in any form tends toamplify “deviance.” How can the arrest of teenagers for school absences,spouses for violence against a spouse, DARE programs in schools, crimi-nalizing drinking and driving, and longer and more severe sentencesreduce crime? Are crime-control blitzes in inner cities mere expediency,or do they predict a rising use of the criminal sanction against lifestylesand minority preferences?

Such observations, my own reflections on the ambivalent realityof the American criminal justice system, lead me to advancing an ideaconsistent with Souryal’s suggestions. If the purpose of crime controlis increased justice and an enhanced sense of justice, then justice-seeking ought be governed by ethical principles. Something like “Dounto others . . .” seems a reasonable idea. It is at least possible that the“others” typically conceived of in public policy statements are not theothers found in us, deeply embedded parts of us, but are a denied andprojected, strange and inhuman other who can be brutalized with impu-nity in the name of law, the state, or authority of some kind. This raisesagain the paradox: how to combine the application of force and strivingtoward doing good.

The book is based upon philosophic humanism, ethical analysis, andthe study of history. Souryal raises many questions, perhaps more thanhe can answer. Unfortunately, I would like to conclude by raising a fur-ther query. Perhaps the idea of deterrence should be reconsidered. Ourcurrent notions of deterrence and incapacitation are based on eighteenth-and nineteenth-century philosophies about motivation and choice, suchas (a) people are guided in the present by anticipation of the future con-sequences of their actions; (b) people have a stake in conformity to the cur-rent social order; (c) people are willing to carefully reflect upon and weightheir choices; (d) a governing philosophic calculus guides these choices;(e) a limited pool of lawbreakers exists. Those caught are deterred, andthose who are not caught will be deterred by awareness of the punishmentof lawbreakers.

There are serious difficulties in this position. In the first instance,Jack Gibbs’s (1975) review of the problems associated with the conceptof deterrence and its conceptual vagaries is devastating. Unfortunately,the concept is still used in research in an ad hoc fashion. Furthermore,ethnographies, biographies, and autobiographies suggest that it is unlikelythat these tenets apply to our financial leaders onWall Street or people onthe streets of Detroit, Boston, or Miami. Do they explain the actions oflawyers and judges weighing decisions? Do these ideas explain the actionsof the executives of Exxon, General Motors, environmental activistgroups, McDonald’s, and those running the savings and loans? Perhaps

viii FOREWORD

John Braithwaite (1989) is correct when he argues that fear of beingshamed and making public restitution are more powerful forces shapingbehavior than imagined punishment.

The paradox remains: Can violence be applied ethically? Can one beeducated in such principles? Today we are educating tomorrow’s leaders.Will these students reflect, develop principles and ethical standards, andevaluate themselves against ideas presented here? Can they analyze anethical argument to spot the flaws and self-deceptions built into it?Will ethics shape the criminal justice professions? A tentative first steptoward considering these questions in the depth Souryal urges is to readthis rather challenging and, at times, passionate book.

P.K. ManningBoston2010

ixFOREWORD

PREFACE

Despite advances in the legal and technological aspects of criminaljustice, practitioners continue to face difficult moral choices. Theseinclude whether to arrest, use deadly force, prosecute, offer plea bar-gaining, impose punishment, and from an organizational standpoint,whether to comply with policy, cooperate with supervisors, or treatthe public equitably. As in other public service sectors where discretionis essential, individual and institutional ethics become major vectors.Surprisingly, while the consequences of such choices continue to causegreat public anguish, the moral grounds for these choices have seldombeen examined.

In a free society, issues of crime and punishment are perhaps themost deserving of the moral imperative of justice—a quality the statemust extend freely to the guilty and the innocent alike. Moral behaviorsneed no validation by the state, because they constitute justice untothemselves. It is in responding to immoral behaviors that civilized gov-ernments cannot rightfully employ immoral means. Succinctly stated,the more civilized the state, the more willing it is to address the “worstin us” by the “noble means” available.

The purpose of this book is not to question the value of the law asthe primary instrument of criminal justice, but to present ethics as an“umbrella of civility” under which the law can be more meaningful,rational, and obeyable. By way of analogy, if the law is compared tothe Old Testament, ethics is comparable to the New Testament. Theycomplement each other, making Christianity blissful and tolerable. Thisview of ethics may not impress hardened practitioners who believe thatwe only “live by the law” but forget that we also “die by the law.” Bythe same token, this view may not enthuse students who are so enam-ored with the trimmings of criminal justice so as to overlook its noblesubstance. To both of these groups, there is one rational reply: “Noone is free until we can see the truth of what we are seeking.” Withoutcapturing the truths of criminal justice, we are left with images that maybe not only irrational, but also disgraceful.

This book rejects the cynical view that ethical knowledge and moralcharacter are peripheral to the administration of justice. Indeed, everyconduct in the administration of justice is directed either by the moral

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of a rule or policy, or by the moral judgment of the practitioner whoimplements it. Furthermore, the obligation to “establishing justice andinsuring domestic tranquility” continues to be the central force behindany act of criminal justice. Therefore, without a fresh look at our weak-nesses, biases, and prejudices, the young discipline of criminal justicewill grow into a degenerative field; more like a temple without a god,a body without a soul, and a theory without a meaning.

In this book students and practitioners will be introduced to the fun-damentals of ethical theory, doctrines, and controversies, and the rulesof moral judgment. They will be exposed to the ways and means ofmaking moral judgment—but not in specific situations. That is beyondthe capacity of any book, and must be left to the minds and hearts ofthe well-informed practitioner. Knowledge will be presented in twoforms: (1) a thematic perspective, which will examine ethical principlescommon to all components of the discipline, such as wisdom, goodness,morality, and justice, as well as the common vices of deception, racialprejudice, and egoism; and (2) an area-specific perspective, which willaddress the state of ethics in policing, corrections, and probation andparole.

Every academic discipline or professional field is born an infant andslowly grows into maturity. In the process, practitioners test its limits,establish its boundaries, and legitimize its claims. During the maturationprocess serious excesses and failures appear that create contradictionbetween the goals of the field and the means by which objectives areto be met. In attempting to reason away contradiction, an introspectionusually emerges urging caution, denouncing falsity, and searching for thetruth. This introspection gradually hardens, constituting the collectiveconscience of the discipline—its soul. Eventually, the soul becomes instru-mental in halting intellectual ostentation, in exposing fallacies, and inreaffirming basic values. This collective conscience keeps a vigilant eyewhenever new technology is introduced or a major policy shift is inaugu-rated. In time, themembership of the discipline or field comes to recognizethat collective conscience and call it by its true name: professional ethics.

The field of criminal justice is certainly young, but not too distantfrom maturity. It lacks a unifying philosophy that can give it autonomyand inner strength. Primary issues of crime and justice still beg for clar-ification. Secondary issues continue to frustrate rationality; for instance,the role of the police in maintaining order, the role of prosecutors incontrolling entry into the system, the role of judges in dominating thesentencing process, the role of victims in reclaiming the central courtof justice, and the role of lawbreakers in sabotaging the system by inge-nious means. All such claims compete in an environment of ambiguity,egoism, and fear. The resulting picture is a mosaic of incoherence andlack of scruples. Consequently, the field has not proven successful

xii PREFACE

beyond mere survival. Its efficacy has been questioned both from within,by its officials, and from without, by its users. Few artificial reformshave been introduced in the area of criminal justice management, thefield’s most logical instrument of reform. Top management is often con-trolled by a syndicate of lobbying bureaucrats who lack integrativethinking and, at times, the tenacity to reason away simple problems.Middle managers are unwitting brokers who “dance on the stairway”;they are as hesitant to face those at the top as they are reluctant to con-front those at the bottom. Frontline workers operate as an army of“apparatchiks,” or functionaries. They suffer from bureaucratic fatigue,a disturbing subculture, and a confused view of reality.

The introspective voice of ethics in criminal justice is yet to be heardlouder and louder as the comforting shriek of a first-born infant heraldsthe coming of age of his parents. Until it is, criminal justice will continueto be perceived with uneasiness and suspicion.

With these well-intended thoughts, this work is dedicated to the bet-ter understanding of ethics—the indestructible soul of criminal justice.

Sam S. SouryalHuntsville, Texas

2010

xiiiPREFACE

ACKNOWLEDGMENTS

Inspiration for this book came from my students. Precisely, it camefrom undergraduates who were dedicated to the ideals of criminal jus-tice, yet were dismayed by its image. They could not comprehend the“schizophrenic ballad” of criminal justice: How could it be that criminaljustice practitioners serve such a “noble cause,” yet many of them areaccused—and, worse still, found guilty—of so much injustice, cruelty,and acts of corruption?

In my early years of teaching, I responded to my students’ skepticismby naively suggesting that the problemwas inadequate control. So I wroteabout discipline, supervision, and other administrative tools. In lateryears, I also naively thought that the problem was lack of guidance. So,I wrote about motivation, leadership, job enrichment, and similar mana-gerial tools. In recent years it became apparent to me that while adminis-tration and management have a major role to play, the “schizophrenicballad” of criminal justice is the product of the ethical indifference of prac-titioners, especially those who claim to be administrators and managers.While many of these may appear to be efficient, effective, eloquent, andpolished, in reality many may still be dishonest and immoral.

Criminal justice is essentially a moral function, and professional crimi-nal justice agencies must operate in an environment of moral values. Whenthese values are internalized in the soul of practitioners, agencies flourish inprofessionalism and decency, and when they are not, they sink in the toxic-ity of corruption and decay. In the latter case, the situation can be reversedonly through a Herculean effort by conscientious practitioners and admin-istrators who possess the moral fortitude to stem the tide and restore insti-tutional morality.

The intellectual guidance offered by the works of John Kleinig, SisselaBok, Peter Manning, Samuel Walker, Herman Goldstein, Charles Friel,and Michael Braswell was instrumental in treating this difficult subject.I quoted them frequently and liberally. I wish I were able to read theirminds, to penetrate their reasoning, and to engage them in the dialecticsof crime, justice, and ethical values. If I erred, however, in responding totheir challenges, only my passion for justice is to blame.

My thanks are due to all those who assisted in this project, especiallyGerald Jones (the constant skeptic), George Eisenberg (the interpreter of

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history), Adam Trahan (the silent enhancer), and Dennis Potts (the out-spoken critic, the kind every doctoral program should have—and keep!).They painstakingly read several drafts of this manuscript and providedme with invaluable insights into the workings of many criminal justiceagencies with which I was barely familiar. Dennis Potts, in particular,was concerned about making this book “more friendly.” I am gladI did not take his advice, because too many friendly books remainon the shelf. Perhaps that is also a reason why Mr. Potts—who had leftacademe when the first edition appeared—has recently returned! I owea very special thanks to Elisabeth Roszmann Ebben, my editor atElsevier/Anderson Publishing. She has been helpful, patient, and alwaysa joy to work with.

xvi ACKNOWLEDGMENTS

CONTENTS

Chapter 1Acquainting Yourself with EthicsA Tour of the Ethics Hall of Fame 1

What You Will Learn from This Chapter . . . . 2Key Terms and Definitions . . . . 2Overview . . . . 3Exhibit 1—Knowledge and Reasoning . . . . 3

A Life Unexamined Is Not Worth Living . . . . 4Exploring Virtue . . . . 5Knowledge and Virtue . . . . 5The Reasoning Process . . . . 6Socratic Reasoning . . . . 7The Death of Socrates . . . . 8

Exhibit 2—Intellect and Truth . . . . 9Sources of Intellect . . . . 9Nature of the Truth . . . . 10Plato’s Divided Line . . . . 11Plato’s Dual Truths: Physical and Metaphysical . . . . 12

Exhibit 3—The Nature of Reality . . . . 13Discovering Reality . . . . 14Aristotle’s Ethical Realism . . . . 14

Exhibit 4—The Nature of Morality . . . . 16Morality and Ethics . . . . 17Morality Defined . . . . 17Moral Principles . . . . 18Relativist Views of Morality . . . . 18Situational Morality . . . . 19The Jimmy Carter Story . . . . 20

Exhibit 5—Nature of Goodness . . . . 21The Good Life . . . . 22The Grammar of Goodness . . . . 22The Principle of Summum Bonum . . . . 25A Guiding Formula for Moral Judgment . . . . 26

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E ¼ PJ2 . . . . 27E ¼ PJ2 in Practice . . . . 28

Summary . . . . 31Exhibit 6—Actions and Consequences . . . . 32

Bad Actions/Good Consequences . . . . 32Good Actions/Bad Consequences . . . . 33The Utilitarian Measure . . . . 34Pioneers of Utilitarianism . . . . 34

Exhibit 7—Determinism and Intentionalism . . . . 36Determinism . . . . 36Scientific Determinism . . . . 37Intentionalism . . . . 38

Exhibit 8—The Ethical Person . . . . 39Profile of the Ethical Person . . . . 40

Review Questions . . . . 42References . . . . 43

Chapter 2Familiarizing Yourself with EthicsNature, Definitions, and Categories 45

What You Will Learn from This Chapter . . . . 46Key Terms and Definitions . . . . 46Overview . . . . 47

Captain Balian’s Story . . . . 47Was the Captain Right? . . . . 48Lieutenant Lotem’s Story . . . . 49Was the Lieutenant Right? . . . . 50Moral Judgment in Criminal Justice . . . . 51

Warning: The Deception of Occupational Subculture . . . . 52Occupational Subculture . . . . 53

The Philosophy of Wisdom . . . . 54Wisdom and Knowledge . . . . 55Fallacious Reasoning . . . . 56

The Nature of Ethics . . . . 58Ethics Defined . . . . 58A Definitional Caveat . . . . 59

The Scope of Ethics . . . . 60Ethical Theory . . . . 61Credibility of Ethics . . . . 62

The Rule of Reasonableness . . . . 62Categories of Ethical Theory: Normative and Metaethics . . . . 64

Normative Ethics . . . . 65Metaethics . . . . 65

Normative Ethics: Deontological and Teleological . . . . 67Deontological Theory . . . . 67Teleological Theory . . . . 68

xviii CONTENTS

Historical Origins of Ethics . . . . 69Metaphysical/Eternal Law View . . . . 70Religious View . . . . 71Social and Legalistic Views . . . . 73

The Medieval View . . . . 74The Social Contract View . . . . 75


Chapter 3Understanding Criminal Justice EthicsSources and Sanctions 81


Ethics of Natural Law . . . . 83Natural Law Defined . . . . 83Natural Law as the Law of Humanity . . . . 84Relevance of Natural Law . . . . 86The Hierarchical Order of Virtues . . . . 87Moral Implications . . . . 88

Ethics of Religious Testaments . . . . 88The Role of Religion in Society . . . . 89Radical Views of Religion . . . . 90Dysfunctions of Religion . . . . 91Religion and Ethics . . . . 91Ethics in Christianity . . . . 92Moral Implications . . . . 94

Ethics of Constitutional Provisions . . . . 95Ethics of the U.S. Constitution . . . . 96

Ethics of Law . . . . 98The Idea of Legitimacy . . . . 99Ethics of Positive Law . . . . 100The Edwin Meese Syndrome . . . . 100The Imperative of Ethical Discretion . . . . 101Ethical Discretion . . . . 102Incorruptibility . . . . 103Conclusions . . . . 104

Professional Codes of Ethics . . . . 105The Function of Codes . . . . 108Ethics of Public Service . . . . 109Ethics of Professionalism . . . . 111Moral Implications . . . . 113

Philosophical Theories of Ethics . . . . 113Review Questions . . . . 114References . . . . 115

xixCONTENTS

Chapter 4Meeting the MastersEthical Theories, Concepts, and Issues 117

What You Will Learn from This Chapter . . . . 118Key Terms and Definitions . . . . 118Overview . . . . 119The Stoicism School: Ethics of Freedom from Passion, Moral Fortitude,

and Tranquility (Epictetus) . . . . 120Introduction . . . . 120Epictetus: Inner Peace and Contentment through Self-Discipline . . . . 123

Epictetus’s Ethical Theory . . . . 124Major Issues in Epictetus’s Ethical Philosophy . . . . 124

The Hedonistic School: Ethics of the Pursuit of Pleasure (Aristippus andEpicurus) . . . . 126Introduction . . . . 126Aristippus: The Cyrenaic (Egotistic) School of Hedonism . . . . 128

Aristippus’s Philosophical Theory . . . . 128Epicurus: The Epicurean School of Prudence, Tranquility, andIntellectual Hedonism . . . . 129

Epicurus’s Ethical Theory . . . . 130Major Issues in Epicurus’s Ethical Philosophy . . . . 130

The Virtue School: Ethics of Knowledge and Moral Character (Plato andAristotle) . . . . 132Introduction . . . . 132Plato: The Virtues of Perfection through Knowledge andJustice . . . . 133

Plato’s Philosophical Theory . . . . 134Major Issues in Plato’s Ethical Philosophy . . . . 135

Aristotle: The Virtues of Moral Character andSelf-Realization . . . . 138

Aristotle’s Philosophical Theory . . . . 139Major Issues in Aristotle’s Ethical Philosophy . . . . 140

The Religious (Scholastic) School: Ethics of the Love of God (Augustineand Aquinas) . . . . 144Introduction . . . . 144Saint Augustine: Spiritual Safety and the Happiness ofSalvation . . . . 145

Saint Augustine’s Ethical Theory . . . . 146Major Issues in Saint Augustine’s Ethical Philosophy . . . . 148

Saint Thomas Aquinas: Morality as the Vision of God . . . . 150Aquinas’s Ethical Theory . . . . 151Major Issues in Aquinas’s Ethical Philosophy . . . . 152

The Naturalistic School: Ethics of Egoism and Power (Hobbes andNietzsche) . . . . 155Introduction . . . . 155Thomas Hobbes: Ethics of “Might Makes Right” . . . . 156

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Hobbes’s Ethical Theory . . . . 157Major Issues in Hobbes’s Ethical Philosophy . . . . 158

Friedrich Nietzsche: Ethics of the Superman . . . . 160Nietzsche’s Ethical Theory . . . . 161Major Issues in Nietzsche’s Ethical Philosophy . . . . 162

Ethics of Utilitarianism (Bentham) . . . . 164Introduction . . . . 164Jeremy Bentham: Ethical Hedonism and Social Happiness . . . . 166

Bentham’s Ethical Theory . . . . 167Major Issues in Bentham’s Ethical Philosophy . . . . 168

Ethics of Duty and Reason (Kant) . . . . 171Introduction . . . . 171

Kant’s Ethical Theory . . . . 172Major Issues in Kant’s Ethical Philosophy . . . . 173

The Existential School: Ethics of Moral Individualism and Freedom ofChoice (Sartre and de Beauvoir) . . . . 176Introduction . . . . 176

Sartre and de Beauvoir . . . . 178Major Issues in Existential Theory . . . . 179

Ethics of Social Justice (Rawls) . . . . 182Introduction . . . . 182John Rawls: Ethics of Social Justice . . . . 184

Rawls’s Ethical Theory . . . . 184Major Issues in Rawls’s Ethical Philosophy . . . . 186


Chapter 5The Ambivalent RealityMajor Unethical Themes in Criminal Justice Management 193

What You Will Learn from This Chapter . . . . 194Key Terms and Definitions . . . . 194Overview . . . . 194The Imperative of Ethics in Criminal Justice . . . . 196A House on the Sand: The Spoils of Management . . . . 198

The Cunning of Unethical Management . . . . 199The Harvest of Shame . . . . 200Principle-Based Management . . . . 201

The Challenge of Principle-Based Management . . . . 202Rethinking Professionalism . . . . 204The Truth of Professionalism: Looking Good versus BeingGood . . . . 205The Lungs of Professionalism: Integrated Thinking and MoralAgility . . . . 206Institutional Integrity . . . . 207

Rushmorean Criminal Justice Agencies . . . . 209

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A Profile of Rushmorean Courage: Coleen Rowley, the FBI Agent WhoDirected Her Boss . . . . 210

The Extent of Corruption in Criminal Justice Agencies . . . . 213The Root Sins in Criminal Justice Management . . . . 214

References . . . . 215

Chapter 6Lying and Deception in Criminal Justice 217

What You Will Learn from This Chapter . . . . 218Key Terms and Definitions . . . . 218Introduction and Confession . . . . 218General Theory of Lying . . . . 219The Origins of Lying . . . . 220The Doctrine of Veracity . . . . 222Can Lying Be Morally Justifiable? . . . . 222Basic Rules on Lying . . . . 224The Extent of Lying . . . . 225Institutional Lying in Criminal Justice . . . . 227

Lying in Policing . . . . 228Lying in Probation . . . . 229Lying in Parole . . . . 230Lying in Corrections . . . . 231

Conclusions . . . . 232Review Questions . . . . 232References . . . . 233

Chapter 7Racial Prejudice and Racial Discrimination 235

What You Will Learn From This Chapter . . . . 236Key Terms and Definitions . . . . 236Overview . . . . 237Glimpses of Racism in Criminal Justice . . . . 237Nature of Racial Injustice . . . . 239

The Wilberforce Story . . . . 240The Ethical View of Racial Injustice . . . . 241Basic Theory of Prejudice . . . . 241Prejudice and Knowledge . . . . 243Targets of Prejudice . . . . 244Types of Prejudice: Cultural and Psychological . . . . 244Basic Theory of Discrimination . . . . 246Roots of Racism . . . . 247

The Mystical Conception of Racism . . . . 247The Biological Conception of Racism . . . . 249Social and Legal Conceptions of Racism . . . . 253

The Social View . . . . 253The Legal View . . . . 255

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Institutional Racism . . . . 257Reverse Discrimination . . . . 258Is the Criminal Justice System Racist? . . . . 260The Debate . . . . 260Accusations against Police . . . . 261Accusations against the Correctional System . . . . 262Accusations against Parole . . . . 262The Wilbanks Rebuttal . . . . 262

Exploratory Issues in Racism . . . . 263Moral Guidelines in Understanding Racism . . . . 264Conclusions . . . . 266Review Questions . . . . 266References . . . . 267

Chapter 8Egoism and the Abuse of Authority 269

What You Will Learn from This Chapter . . . . 270Key Terms and Definitions . . . . 270Overview . . . . 270Glimpses of Egoism in Criminal Justice . . . . 271Perceptions of Egoism in Criminal Justice . . . . 273The Blindness of Egoism . . . . 275Types of Egoism . . . . 276

Egoism—The Natural View Theory . . . . 276Hobbes’s Theory of Natural Egoism . . . . 277

Egoism—The Altruistic View Theory . . . . 277Butler’s Theory of Altruistic Egoism . . . . 278

Official Responsibility: The Antidote for Natural Egoism . . . . 280Official Responsibility . . . . 281Authority Defined . . . . 281Power Defined . . . . 282Egoism as Deadly Force . . . . 282

Capital Punishment as State Egoism . . . . 284The Abolitionist View . . . . 285The Retentionist View . . . . 286Comments and Questions to Ponder . . . . 287

Egoism—Ethics of Means and Ends . . . . 290The Dirty Harry Scenario . . . . 292The D’Angelo versus Kirkham Scenario . . . . 292Discussion . . . . 293

Ethical Guidelines . . . . 295Conclusions . . . . 295Review Questions . . . . 296References . . . . 297

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Chapter 9Misguided LoyaltiesTo Whom, to What, at What Price? 301

What You Will Learn from This Chapter . . . . 302Key Terms and Definitions . . . . 302Overview . . . . 303The Continuing Controversy . . . . 304The Ideal of Loyalty . . . . 305The Grammar of Workplace Loyalties . . . . 306The Physiology of Personal Loyalty to Superiors . . . . 308The Peculiar Nature of Personal Loyalty to Superiors . . . . 309The Paradoxical Nature of Personal Loyalty to Superiors . . . . 310

Cases in Point . . . . 312Case No. 1: A Police Situation . . . . 312Case No. 2: A Corrections Situation . . . . 312

Discussion . . . . 313Two Controlling Realities . . . . 314Five Investigatory Questions . . . . 315Three Self-Evident Truths . . . . 316

First: Contractible and Noncontractible Obligations . . . . 316Second: The Primacy of Justice in the Equation of CriminalJustice . . . . 316Third: Institutional Integrity . . . . 317

Logical Findings . . . . 317Cultural and Ethical Concerns . . . . 318Unionized versus Nonunionized Agencies . . . . 320The Goliath of Disloyalty . . . . 320The Strain of Personal Loyalty to Superiors . . . . 322Arguments in Support of Personal Loyalty to Superiors . . . . 322

Personal Loyalty to Superiors Fosters Supererogation . . . . 323Personal Loyalty to Superiors Bolsters InstitutionalResponsibility . . . . 323Personal Loyalty to Superiors Inhibits OrganizationalDisloyalty . . . . 324Personal Loyalty to Superiors Enhances InstitutionalIntegrity . . . . 324

Arguments against Personal Loyalty to Superiors . . . . 325The Ethical Imperative: The Duty-Based Thesis . . . . 326

First: The Use of the Word Loyalty Should Be Avoided in the Contextof Relationships between Superiors and Subordinates . . . . 326Second: Dutiful Supervision Should Be Strengthened . . . . 327Third: Professional Accountability Should Be Maximized . . . . 327


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Chapter 10Ethics of Criminal Justice TodayWhat Is Being Done and What Can Be Done? 333


The Dual Essence of Criminal Justice: The Social Order and the MoralOrder . . . . 336The Dual Practice of Criminal Justice: The Ideal Model and theServiceable Model . . . . 337

The Serviceable Model: Moral Double Bookkeeping . . . . 339Physiology of the Serviceable Model . . . . 340Critique of the Serviceable Model . . . . 341Where Do We Go from Here? . . . . 341

References . . . . 342

Chapter 11Ethics and Police 345

What You Will Learn from This Chapter . . . . 346Key Terms and Definitions . . . . 346Overview . . . . 346The Problematic Nature of Policing . . . . 347The Peculiar Environment of the Police . . . . 349The Semiprofessional Professionals . . . . 350The Police Prerogative to Abuse Power . . . . 352

Concerns Pertinent to the Nature of Police Power . . . . 352Concerns Pertinent to Lack of Trust . . . . 353

The Police in Search of a Soul . . . . 353The Intellectual Virtue: Ethics of Democracy . . . . 354

Why Not Democracy? . . . . 355Democratic Ethics . . . . 357Basic Democratic Principles . . . . 358The Rodney King Case . . . . 359Haven’t We Learned Anything Yet? . . . . 360The Farther Reaches of Democratic Ethics . . . . 361

The Moral Virtue: Ethics of Shunning Corruption . . . . 363Corruption Defined . . . . 363Scope of Police Corruption . . . . 364The Dust and Ashes of Corruption . . . . 365

Hedonistic and Obligatory Corruption . . . . 366Gratuities, Bribes, and Payoffs . . . . 366Theft and Burglary . . . . 367Sexual Misconduct . . . . 367When Police Are Out of Control . . . . 367Obligatory Corruption . . . . 369

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The Obligatory Ethic Not to Deceive . . . . 370Can Corruption Be Administratively Stopped? . . . . 372Review Questions . . . . 373References . . . . 374

Chapter 12Ethics and Corrections (Prisons) 377

What You Will Learn from This Chapter . . . . 378Key Terms and Definitions . . . . 378Overview . . . . 378The Corrections Debate . . . . 380Ethics of Life for Life: The Influence of Beccaria . . . . 381Ethics of Life for Life: The Morality of Punishment . . . . 383Ethics of Life for Life: The Moral Justifications for Prisons . . . . 384

Retribution . . . . 385Prevention/Incapacitation . . . . 385Deterrence . . . . 386Rehabilitation . . . . 386

Ethics of Life for Life: A Society That Loves Walls . . . . 387Ethics of Life for Life: Putting Pain Back into Prisons . . . . 388From the Ethics of Life for Life to the Ethics of Man and Corrections:

Changing Attitudes about Prisons . . . . 390Ethics of Contemporary Corrections . . . . 392

Ethics of Retribution . . . . 392Lex Talionis . . . . 392Punishment Works . . . . 393Ethics of Treatment . . . . 395Does Rehabilitation Work? . . . . 396Methods of Rehabilitation . . . . 397The State of Rehabilitation Today . . . . 397

Ethics of Man and Corrections: What Good Is Brutality? . . . . 398The Brutality Issue . . . . 400

Ethics of Man and Corrections: The Scapegoating Theory . . . . 401The Influence of Foucault . . . . 402

Ethics of Man and Corrections: The Holier-than-ThouSyndrome . . . . 403Crime as Virus . . . . 404A Camp of Outcasts . . . . 405

Ethics of Man and Corrections: We’re All Doing Time . . . . 406Ethics of Man and Corrections: Postcards from Prison . . . . 407Ethics of Man and Corrections: Rehabilitation through Inner

Corrections . . . . 409Inner Corrections . . . . 409The Future of Inner Corrections . . . . 410

Corruption of Prison Personnel . . . . 411Patterns of Prison Corruption . . . . 412Assessment of Prison Corruption . . . . 415

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Chapter 13Ethics of Probation and Parole 421

What You Will Learn from This Chapter . . . . 422Key Terms and Definitions . . . . 422Overview . . . . 422The Professional Orientation of Probation and Parole . . . . 423

The Probation Mystique . . . . 425The Borderless Community . . . . 426The Yellow Wind . . . . 428Romancing the Stone or Stoning the Romance: Ethics of Community-Based

Corrections . . . . 429The Case for Community-Based Corrections . . . . 430The Case against Community-Based Corrections . . . . 432

The Leniency View of Morris and Tonry . . . . 432Intensive Probation . . . . 433Electronic Monitoring . . . . 435The Severity View of von Hirsh . . . . 437Proportionality and Desert . . . . 437Restrictions against Humiliation and Degradation . . . . 438Implications Concerning the Privacy of Third Parties . . . . 438

Work Strategies of Probation and Parole Practitioners . . . . 439Common Unethical Practices in Probation/Parole . . . . 440Ethical Choices in Probation/Parole . . . . 442

The Punitive/Law Enforcement Practitioner . . . . 442The Welfare/Therapeutic Practitioner . . . . 442The Passive/Time Server Practitioner . . . . 443The Combined Model Practitioner . . . . 443


Chapter 14The Truth Revealed Civility—The Mother of All Virtues 449

What You Will Learn from This Chapter . . . . 450Key Terms and Definitions . . . . 450

In Essence . . . . 450Overview . . . . 451

The Machination of Ethics: Morality and Civility . . . . 452Civility Defined . . . . 455

Creating a Climate Conducive to Civility . . . . 457I: Developing an Enlightened Mind . . . . 457II: Creating a Climate Conducive to Civility . . . . 460III: Preserving Justice Above All . . . . 461IV: Strengthening Civility and Democracy . . . . 463

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V: Promoting the Common Good . . . . 465VI: Reinforcing Integrated Knowledge . . . . 467VII: What the Theorists Say . . . . 468

Civility by George Washington . . . . 468Civility by James Q. Wilson . . . . 468Civility by Tom Morris . . . . 470Civility by James O’Toole . . . . 471

VIII: Five Stories to Remember . . . . 4721. Rudeness at the Houston Airport . . . . 4722. The Finnish Minister . . . . 4733. Is There Crime in New Zealand? . . . . 4744. Civility among Enemies . . . . 4755. The Pope Who Made Civility a Religion . . . . 476

Conclusions . . . . 478Review Questions . . . . 479References . . . . 480

Chapter 15What Can Be Done to Restore Ethics?Concluding Comments 481

Reflections and Ethical Lessons to Teach . . . . 482An Ethical Lesson to Teach Criminal Justice Practitioners . . . . 483

Name Index 485

Subject Index 493

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