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Tuesday, January 20, 2015

Week 3 Notes

This week, you will discuss ethical issues involved in the court system. 
The American Judicial System is extremely complex in terms of viewing the various roles that are played and the opportunities for ethical or unethical decisions to be made. One must be aware of the fact that there are some 51 major judicial jurisdictions in the United States. Each state has its own laws, rules of procedure, and rules of evidence, so long as they do not conflict with any higher federal court that has been applied to the states under its jurisdiction, and there is the federal jurisdiction with its own laws, procedures, and rules of evidence.
This week, you will research and analyze how the three ethical models for
punishment—utilitarianism, deontology, and peacemaking—apply to court judgments. In conclusion, you will explain your views of possible judgment errors in the court system and how theories can be altered toward creating a more effective criminal justice system.
Before attempting the assignments, you must read the assigned text and lectures for this week. These cases and the surrounding material related to them will help you to begin to understand the ethical thought processes with which you will be confronted throughout the course.
n theory, there are three primary actors in any criminal proceeding; the judge, the prosecutor, and the defense attorney.

The defendant is of course an actor in the proceeding but rarely takes a major role except through his or her attorney. So, in terms of ethics or moral decisions, those three named actors are, in essence, on the firing line of the decision making process. The following are a few of many considerations that must be taken into account when making those decisions.
In relation to ethical issues in the judicial system, you will analyze:
  • How far can attorney-client privileges go in suppressing evidence? Attorneys need to make a choice between being hired professionals working solely for their client’s interests and being legal advocates working for truth and justice.
  • Defense attorneys take an oath as officers of their Bar Association to vigorously defend their clients to the best of their ability. That is their legal and ethical duty as required by their professional status as officers of the court.
  • Should there be a conflict between fulfilling the role of defense attorney and that of some moral issue as to whether the defense attorney should prejudge his or her client's guilt or innocence? The legal agent role is concerned with strictly following laws and accepting rules without any leniency or violations. The moral agent role, on the other hand, would be concerned with principles of right and wrong and ethics and righteousness.
  • Prosecutors, as agents for the state, take an oath to uphold the Constitution and to seek justice on behalf of the state and its citizens. Given that a defendant is considered innocent until proven guilty under our judicial system is the prosecutor also required to consider the defendant as being among the citizens he or she is protecting?
  • Should prosecutors be allowed to make errors in judicial proceedings and still win convictions? What is more significant—an ethical and appropriate outcome of the case or an ethical and appropriate proceeding?
  • In making decisions from the bench, is the judge bound by ethics to make decisions that are strictly by the law so as not to lean one way or the other in a case regardless of his or her personal views on the case?
  • Should courts punish to deter or to gain retribution? Deterrence is used to convince an offender not to commit crimes in the future; however, retribution means penalizing an offender to redress the wrongdoing or the crime.
You will also research and analyze how the three ethical models for punishment—utilitarianism, deontology, and peacemaking—apply to court judgments. In conclusion, you will explain your views of possible judgment errors in the court system and how theories can be altered toward creating a more effective criminal justice system.
Albanese, J. (2010). Professional Ethics in Criminal Justice: Being Ethical When No One is Looking [VitalSouce bookshelf version]. Retrieved May 23, 2014 from http://digitalbookshelf.southuniversity.edu/books/9781256509936/id/fm02

Taking it one step further, it is illegal to park on many city streets during business hours. The existence of parking laws is made clear by street signs only 20 feet apart along the streets. There is no moral force behind parking laws (i.e., there is nothing inherently wrong—and no intrinsic harm—in illegal parking, for instance, unless one blocks a fire hydrant or building exit), so it is likely that people would park along every street in town if the police would only stop writing tickets. This difference in the declining moral force of the laws against crimes of violence, crimes of theft, and parking prohibitions shows how laws can only reinforce existing moral beliefs of citizens; laws do not develop independent moral forces on their own. 48

“In general terms, the criminal law can be said to arise as a result of consensus or conflict. The consensus view holds that the criminal law reflects society’s consensus that a behavior is harmful enough to merit government prohibition. Émile Durkheim (1858–1917), a founder of sociology, stated in 1893 that an act is criminal “when it offends strong and defined states of the collective conscience.”2 Clearly, crimes of violence and theft possess a strong social consensus regarding 4849their harmfulness. The conflict view holds that a behavior is criminalized only when it serves the interests of those in positions of power. According to this view, the law protects the property and personal interests of those running the government. Using these terms, it can be argued that the laws permitting the torture and internment during the Spanish Inquisition, Nazi Germany, and World War II had no consensus behind them and were only passed because they reflected the views of those in power who also had at their disposal the means to enforce these laws. When laws are routinely violated, or selectively enforced, it is useful to ask the question whether the laws have social consensus behind them regarding their harm to society or whether they exist to serve the interests of only a few. 49

New York City experienced a remarkable drop in the crime rate that began during the late 1990s, a trend that later emerged in other major U.S. cities. The decline in crime was attributed in part to aggressive police tactics against minor offenses that affect the quality of life: drinking in public, playing loud music, urinating in public, jumping subway turnstiles, and loitering. It turned out that many of those arrested for these minor quality of life offenses were also wanted by police for more serious crimes. These aggressive police tactics involved stopping people on the street and requesting identification, conducting drug sweeps of entire neighborhoods, and frisking people. The tactics drew considerable criticism because they necessarily created at least temporary infringements of the privacy of many innocent persons. As one neighborhood organizer said, “In the beginning we all wanted the police to bomb the crack houses, but now it’s backfiring at the cost of the community. I think the cops have been given free rein to intimidate people at large.”4 Police were alleged to be pulling people out of cars at gun point, roughing up those who didn’t speak English, frisking citizens for no clear reason, conducting searches in an abusive manner, selectively harassing minorities, and using force without provocation.50

n the case of minor quality of life offenses, is there a moral boundary between what is criminalized (the offenses such as drinking in public, playing loud music, and loitering) and the rigor with which these laws should be enforced? The utilitarian position argues for balancing the consequences of aggressive enforcement of minor offenses in producing more total pain than pleasure. The pain consists of discriminatory law enforcement against certain kinds of individuals, fully enforcing laws against first-time offenders rather than giving them warnings, citizen complaints about aggressive enforcement, and loss of confidence in police decisions. Pleasure (happiness), however, is produced by reducing serious and minor crimes and by increasing public safety in general through full enforcement of minor offenses. The utilitarian position would determine the morality of the enforcement policy, therefore, by weighing the consequences that result.51

Formalism would assess the morality of such enforcement in a completely different way. Because it is impossible to know what the consequences will be in advance, Kant believed that relying on consequences to make ethical decisions is not a valid or reliable way to make ethical decisions. Instead, formalism would determine the morality of such quality of life enforcement of minor crimes by the categorical imperative: Is such a policy of aggressive enforcement a good universal rule? Furthermore, such a policy must also not violate the practical imperative that individuals not be used as a means to some further end; people must believe that minor offenders deserve the police action against them, including any legal penalty, regardless of any larger social good that may result. Formalism would assess the ethics of such a policy by asking the question: “Do we want police to enforce quality of life offenses aggressively at all times?” If the answer is “yes,” such a policy is morally permissible. In addition, formalism requires that the policy be ethical and serve the ends of justice on its face and not “use” individuals and arrests for some larger social purpose, such as general deterrence of future offenders (practical imperative). 51

Virtue ethics would examine aggressive enforcement of offenses in light of the motives and characteristics of each incident. Virtue ethics would hold that the enforcement policy is not ethical or unethical on its face, but it might be implemented unethically in particular instances that violate the moral virtues. Its objective is clearly a real good—trying to improve the civil peace (if accomplished without undue restraints on the real good of liberty)—but each instance of enforcement would have to be evaluated for the motive of the police officer (unbiased, prejudiced, etc.) and the circumstances of the incident (i.e., treating similar situations in similar fashion). Therefore, it can be seen that a policy of aggressive enforcement of minor quality of life offenses can be viewed differently, depending on the 5051ethical perspective taken. Nevertheless, an ethicist would argue that this discussion of ethics should occur before such a policy is enacted to make clear the assumptions involved so that people are not surprised when unpopular incidents occur and people should understand the assumptions either as anticipated “costs” of such a policy or as a risk that society is unwilling to take. 51

Braswell, M.C., McCarthy, B.R. & McCarthy, B.J. (2012).  Justice, crime and ethics (7th ed.). Burlington, MA: Anderson Publishing.

This concept of the lawyer as a “legal
advocate” (with no individual contribution of morality) versus “moral agent”
(whereby the lawyer imposes a personal view of morality into his or her activ-
ities for the client) has been discussed 132

Scheingold (19
4:155), for
example, argues:
the practice of defense law is all too often a “confidence game” in
which the lawyers are “double agents” who give the appearance of
assiduous defense of their clients but whose real loyalty is to the
criminal courts 134

it should be noted that the most common complaint lodged with state bar
associations is incompetence or negligence


Professional Responsibility in the Criminal Practice

violation of the Brady doctrine“to play hide and go seek with evidence. “ spencer, 2007,

e re-
sults, even if not showing sexual activity
with other Duke lacrosse players,
were still exculpatory in that they suggested sexual contact with multiple
males, and they would help explain the only physical finding that supported
the rape allegation—the vaginal swelli
ng that could have been produced by
sexual contact. Mosteller289
rst, Nifong asserted confidence that a rape had oc-
curred; second, he asserted that the Duke Lacrosse players had unified to
withhold the truth; and third, he emphasized that the crime involved racist
aspects. 303


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