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Wednesday, January 28, 2015

The Criminal Justice System; A Gut Check of My Personal Ethics

The Criminal Justice System; A Gut Check of My Personal Ethics
I have several core beliefs about the criminal justice system. The first would be that criminals are the enemy, and need to be treated on that basis; the second is that the limits of what we consider crime to be need to be limited to mala se offenses that are strictly defined; crimes against persons, property and State (such as treason or corruption). A belief that becomes absolutely necessary considering the first two is that the prosecution of criminals needs to be based on due process. The reason that the law, especially in defining criminal offenses, needs to be limited and strictly defined is to mitigate political influence, corruption, and the waste of resources. This is also a strong reason to support due process models. George Washington supposedly said that "Government is not reason; it is not eloquence. It is force. And force, like fire, is a dangerous servant and a fearful master." And whether Washington said this or not,1 it remains a powerful simile. The use of this fire to “resolve” culture conflict issues such as drinking, drug use, or prostitution is not only counter to the ideals of the Constitution, but fails every test a utilitarian view would put to it. Of course, not all culture conflict issues are mala prohibita issues, the “honor killings” accepted amongst some Islamic cultures demonstrate this. I suggest that utilitarian theory accounts for most of my beliefs, especially in the context of severity of the offense, but I can see that there is an undercurrent in my justifications that is based on retributive theory, or perhaps more to the point, retributive impulses that can be described through retributive theory. The practical methods I would choose are primarily incapacitative. I don't have a lot of faith in the rehabilitative or deterrent methods, although I see a moral imperative though deontological theory to make an attempt at rehabilitative efforts for non-violent juveniles. I see no
universalizability between myself and violent mala in se criminals; I can't see myself under any circumstances committing that kind of crime. I think that the criminal justice system is wrong in the idea that lack of mens rea should excuse a criminal from liability, but I have come to see that that this lack of agency should have a part in deciding the severity of punishment.
To be honest, I don't think my career will be in the criminal justice field itself, but rather as a advocate for policy. As a policy advocate, I would support the legalization of drugs, the decriminalization of regulation violations, and other proposals to take the “fire” out of punishment for mala prohibita offenses. I would support harsher measures aimed at incapacitating violent criminals, especially in identifying recidivist criminals. I will address specific proposals to deal with this type of criminal without violating their rights (for example,instead of surveillance on the released convict, a geographical study of the types of target that released convicts in the area are more likely to strike against would provide a rationale for additional patrols or surveillance of the potential victim, as long as the target is a business or area, not an individual). I will fight the creeping surveillance state in which every citizen but the Boston Bombers is scrutinized. I will support prison reform, especially towards protecting prisoners from violent prisoners. I will research and seek methods to incapacitate street gangs and organized criminals. I will seek to research effective rehabilitative strategies for non-violent offenders. The common ground that these policies share is the idea that we limit the scope of what we consider criminal behavior. In addition, the growth complex theory describes what happens to organizations as they seek more power, and the last thirty years of reality show how accurate this theory is by the example of “The War on Drugs” alone. This is a ridiculous situation going by my philosophy. This means that I would encourage education for criminal justice professionals stressing that a primary duty is to be prepared to arrest any public official for corruption, misfeasance, nonfeasance, criminal neglect of duty, obstruction of justice, perjury, or treason; especially considering how blatantly politicians are playing politics with special interests to the detriment of the public. Indeed, we can see politicians using law to criminalize criticism of the politicians. The underlying influence of my philosophy will have on my career will be the idea that the “fire” of law and punishment that the State holds is too hot for most types of behavior correction, and should be limited to offenders that actually damage the people around them by theft, assault, rape, treason, or murder (etcetera).
The utilitarian view of criminal justice is based upon the notion of the hedonistic calculus; a comparison of the consequences of an action. A human's actions are balanced between the seeking of pleasure versus the avoidance of pain. The hedonistic calculus takes into account differences between individuals by seeking to pursue the maximum quantity of pleasure for the maximum number of people. Criminals are to be punished in order to keep them from committing crimes which cause pain to multiple people. This view supports the incapacitative, rehabilitative, and deterrent methods of addressing crime. The deontological view is based on the concept that intent of the act; the judgment is based upon categorical imperatives such as universalizability and the intrinsic value of human life. Deontology is defined as the study of duty. Although the concept of retributive theory has been around since the first two humans bashed each other's heads open, the deontological view of proportionality puts a theoretical basis to the theory. Deontology also supports the incapacitative, rehabilitative, and deterrent modes of punishment. The peacemaking view of the system is based on the Positivist school, as it seeks to understand the criminal and his actions, even to the point where the system expresses empathy to criminals. The idea is that perpetrators are victimizers because they have been victims themselves at some point. I consider this approach to be academic hogwash. The utilitarian and deontological viewpoints can both be described as applied ethics and as normative ethics. Normative ethics seeks to study ethical actions, and to define what is moral, and what is not moral. Applied ethics is the study of how to make decisions based on these definitions to take moral actions. Meta-ethics seeks to define the language in which ethical propositions are formed; before one can judge “good versus evil”, the terms of “good” and “evil” must be defined.
Perhaps the best modifications to ethics theory as it applies to the criminal justice system would be the inclusion of the State's moral duty. In Confucianism, morality is based on a hierarchical set of personal relationships in which obligations are owed in both directions. In this system, the State is represented as “the ruler” with obligations to “the ruled” and to Heaven; by taking the Chinese social order out and extrapolating the State as having obligation both to Heaven ( or morality)and to “the ruled” (or in our case, the public), we could redefine the primary duty of the State as having moral duty to the public. I don't think that the moral duty of the State has been examined enough in this context. A second item of interest would be in resolving some areas of ethical dilemma by redefining categorical imperatives using the standards of utilitarian judgment; saying that human life has intrinsic value is one thing, but proving that proposition, or the situations in which that value is valid, is another. Thinkers like Hart have tried to reconcile differences between utilitarian and deontological theory with some success, but this approach should tighten the boundaries a little further. However, there is no conceivable way of resolving all ethical dilemmas. Heinlein, in Starship Troopers, refers to a morality based upon mathematics. This is a pipe dream. Because humans each have a different hierarchy of values, there is no 0 value. Let us look at the Unabomber's brother for example; he turned his brother in on what we could call a utilitarian judgment, but he could just as easily held to an ethical view that family loyalty was more important then public safety. I do not believe that a common education of morals would resolve this, as “some people just want to watch the world burn”. Other examples of “good versus good” dilemmas involve justice versus mercy. Even under utilitarian judgment, the weight of harm to society that a person holds who believes that “mercy to the guilty is treason to the innocent” will be much a different then that weight as valued by a person who believes that a murderous psycho is a victim in the first place. So I think that we should focus additional study on the moral duty of the State, that we could reconcile some ethical dilemma by reweighing categorical imperatives using utilitarian standards, but that there will never be a unified morality in which there are no ethical dilemmas due to the nature of humanity to hold individual moral values.

1 Attributed to George Washington.—Frank J. Wilstach, A Dictionary of Similes, 2d ed., p. 526 (1924). Can also be found with variations such as the exchange of “fearful” for “troublesome,” in George Seldes, The Great Quotations, p. 727 (1966). Unverified. (Popik, 2009, para. 23)

Popik, B. (2009, November 12).Dubious origins of a “George Washington” quote on government. RedState. Retrieved June 20, 2014 from http://www.redstate.com/diary/barrypopik/2009/11/12/dubious-origins-of-a-george-washington-quote-on-government/

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