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
8
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
135
http://www.americanbar.org/content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf
Orenstein
Professional
Responsibility in the Criminal Practice
http://www.law.nyu.edu/sites/default/files/upload_documents/PR_in_Criminal_Practice_Orenstein.pdf
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
309
