ETHICAL DILEMMAS AND DECISIONS
IN CRIMINAL JUSTICE
CHAPTER 9:
INVESTIGATIVE METHODS,
NOBLE CAUSE,
AND REDUCING POLICE
CORRUPTION
1
NOBLE-CAUSE CORRUPTION
• Involves officers employing unethical means to
catch criminals because “it’s the right thing to do”
• Perceived by officers as fulfillment of their
profound moral commitment to make the world a
safer place to live
• Is utilitarianism (the end justifies the means)
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NOBLE-CAUSE CORRUPTION
Ends-Oriented Thinking:
•
Police culture supports “whatever it takes” approach
•
Police work attracts those who hold such values
•
Police training internalizes these values more deeply
•
Police feel great responsibility to keep the world “safe”
•
Police discretion provides latitude to create and apply endsoriented solutions
3
NOBLE-CAUSE CORRUPTION
1. Is a practice or an act legal?
2. Is a practice or an act allowed under the
departmental policy or standards of
behavior?
3. Is a practice or an act ethical? (This may
be different from legal!)
4. Is the practice or act good under any
ethical system, or is act utilitarianism the
only ethical system that supports it?
4
REACTIVE INVESTIGATION
•
Attempts to reconstruct a crime after it occurs
•
Consists of gathering evidence to identify and prosecute
the offender
•
Investigator(s) may develop early bias or prejudice
about likely perpetrator, which might cause them to:
–
–
–
–
be tempted to engage in noble-cause corruption to obtain
a conviction;
ignore or conceal evidence that contradicts their beliefs;
overstate existing evidence; and/or
manufacture or alter evidence.
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PROACTIVE INVESTIGATION
•
Attempts to document crime as it occurs
•
Requires a more active police role
•
Often involves deception by police
•
Requires “targeting” based on “reasonable
suspicion”
•
Changes police role from discovering who has
committed a crime to discovering who might commit
a crime
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TYPOLOGY OF LIES
•
Klockars:
–
–
•
Placebos, such as lying to a person about how a loved
one was killed…in the “best interest” of the subject
Blue lies, used to control a person and make the police
officer’s job easier
Barker and Carter:
–
–
–
Accepted lies, such as those used during undercover
investigations or sting operations
Tolerated lies, “necessary evils” such as lying during
interrogations
Deviant lies, such as false testimony in court to make a
case, or covering up police wrongdoing
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ENTRAPMENT
When police encourage or entice an otherwise law
abiding person to commit an illegal act.
Approaches:
• Subjective—Focuses on the defendant’s
background, character and predisposition to
crime
• Objective—Focuses on the government and
whether it provided “essential element” to
the crime…origination of intent, pressure to
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commit
ENTRAPMENT
Criticisms of the Subjective Test (Stitt & James):
–
Allows police to tempt former offenders who might
otherwise not have been tempted
–
May rely on hearsay and rumor
–
May stigmatize the individual charged
–
Allows police to choose their own targets
–
Degrades the criminal justice system through the use
of deceit
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POLICE AND THE MEDIA
•
Should the police lie to the media if it might
help them prevent a crime or catch a criminal?
•
Should the media have complete power to
report crime activities, even if this creates fear
or panic or interferes with an investigation?
•
Should media cooperate with police by
suppressing news or altering the truth to catch
a criminal?
•
How do the media affect an individual’s ability
to get a fair trial?
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UNDERCOVER OPERATIONS
• Undercover officers deceive suspects and
others
• Difficult for officer and his or her family
Continuum of privacy concerns
via
Degree of intimacy
Short
Long term
Non-intimate ----------------------------------------------------Intimate relations
(Buy/bust)
(“Donnie Brasco”)11
UNDERCOVER OPERATIONS
Suggested limitations:
Objections to Limits:
• Require a probable cause–
based warrant for any
interaction longer than 24
hours
• There is no need for an
undercover operation if
probable cause exists
• Ban officers’ engagement
in intimate relationships
• Evidence obtained by
violating the first two
limitations should be
excluded at trial
• It is often impossible to get
a warrant
• Most undercover
operations exceed 24
hours
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JUSTIFYING UNDERCOVER
OPERATIONS (Marx)
1.
2.
3.
4.
5.
6.
7.
8.
9.
How serious is the crime being investigated?
How clear is the definition of the crime—that is, would the target
know that what he or she is doing is clearly illegal?
Are there any alternatives to deceptive practices?
Is the undercover operation consistent with the spirit as well as the
letter of the law?
Is it public knowledge that the police may engage in such practices,
and is the decision to do so a result of democratic decision making?
Is the goal prosecution, as opposed to general intelligence gathering
or harassment?
Is there a likelihood that the crime would occur regardless of the
government’s involvement?
Are there reasonable grounds to suspect the target?
Will the practice prevent a serious crime from occurring?
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INFORMANTS
Individuals who are not police officers but assist police by
providing information about criminal activity.
They are:
– Motivated by monetary profit, revenge, dementia,
kicks, a need for attention, repentance (guilt), and
coercion
– Able to operate under fewer restrictions than
police
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INFORMANTS
Ethical Issues (South):
1.
Becoming too intimate with informants
2.
Overestimating the veracity of information provided
3.
Potential for being duped by informant
4.
Using informants to entrap people (“creating” crimes)
5.
Engaging in unethical or illegal behaviors on behalf of the informant
6.
Using coercion and intimidation to force informant’s cooperation
7.
Protecting informants who continue to commit crime
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UNDERCOVER OPERATIONS
Criticisms (Marx):
1.
2.
3.
4.
5.
6.
7.
8.
May generate markets for illegal goods and services
May generate ideas for crimes
May generate motive
May provide a missing resource
May coerce or intimidate a person not otherwise
predisposed to commit the offense
May generate a covert opportunity for undercover agent
to commit crime
May lead to retaliatory violence
May stimulate various crimes by persons who are not the
targets of the undercover operation
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UNDERCOVER OPERATIONS
Ethical system perspectives:
• Religious Ethics would condemn undercover operations
due to inherent deception
• Ethical Formalism could not justify undercover
operations under the categorical imperative
• Egoism may or may not condemn undercover operations
depending on the officer involved and his/her gain or loss
• Utilitarian Ethics would justify undercover operations if
there were greater societal benefit than harm
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Ethical Justification for Police Practices (Cohen):
1. End must be justified as a good
2. Means must be plausible… “reasonable
suspicion”
3. There is no alternative means to achieve
same end
4. Means must not undermine other equal or
greater ends…trust in the CJ System
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INTERROGATION
Cannot involve physical force (the “third degree”)
Techniques of deception (Skolnick & Leo):
• Calling an interrogation an “interview”
• Negating the effectiveness of the Miranda warnings by
method of presentation
• Misrepresenting the seriousness of the offense
• Manipulative appeals to suspect’s conscience
• Making leniency promises beyond the interrogator’s
power to offer
• Interrogator misrepresenting identity
• Using fabricated evidence to make suspect think case
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against him/her is strong
The “Dirty Harry” Problem
(Klockars)
• Should torture be used to gain confessions?
• Is there a difference between information to
save a victim and information to prosecute the
suspect?
• Do innocent people confess to crimes they did
not commit because of mental or physical
coercion?
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“Blue Curtain of Silence”
• Facing the wrongdoing of a fellow officer is a police
officer’s most difficult ethical dilemma
• The code of silence present in police work is also present
in other occupations and professions
• In policing, the code of silence is a form of noble-cause
corruption
• Evidence indicates “blue curtain of silence” or “blue
curtain of secrecy” is breaking down, However
• Two-thirds of police said “whistleblower would receive informal
sanctions”
• 61% said officers do not always report even the most serious
violations/crimes of other officers)
21
WHISTLEBLOWING AND ETHICS
Expose wrongdoing:
Egoism: may end up in
Remain Silent:
Egoism: will receive
Utilitarianism: exposure
informal sanctions if you
do
Utilitarianism: may
sacrifice otherwise good
officers
trouble if you don’t
may prevent greater harm
of a scandalous cover-up
when exposed
Ethical Formalism: one
has a higher duty to
uphold the law than to
defend one’s fellow
officers
Ethical Formalism: one
assumes obligations of
discretion and loyalty
when one joins the force
22
LOYALTY
A component of the esprit de corps of policing
An absolutely essential element of a healthy
department
Explained by officers’ dependence on one
another, sometimes in life-or-death situations
A personal relationship, not a judgment
23
SANCTIONS ON WHISTLEBLOWERS
A distressing aspect of loyalty
Are often extreme
Have resulted in state and federal legislation
to protect whistleblowers
Legislation is ineffective against informal
ostracism and rejection
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REDUCING CORRUPTION (Malloy)
• Increase pay
• Eliminate unenforceable
laws
• Establish civilian review
boards
• Improve training
• Improve leadership
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REDUCING CORRUPTION (Metz)
• Set realistic goals and objectives
• Provide ethical leadership
• Provide a written code of ethics
• Provide a whistle blowing procedure that
ensures fair treatment for all parties
• Provide training in law enforcement
ethics
26
EDUCATION AND TRAINING
Higher formal education standards are not,
themselves, the key to ethical behavior
Academy and in-service ethics training are
common and recommended for all departments
Many courses use a moral reasoning approach
Some advocate an emphasis on character
Others recommend case studies
27
INTEGRITY TESTING
Very controversial
Not well-received by most officers
Comparing integrity testing to undercover
operations reveals that:
– Most officers oppose integrity testing
– Most officers support undercover
operations
28
Internal Affairs Model
Police investigate themselves
Police use an internal discipline
system
Widely seen as ineffective
May discourage civilian complaints
Does not evoke public confidence
29
EARLY WARNING or AUDIT SYSTEMS
•
Seek to identify problem officers
by trends of abuse or corruption
complaints
•
Identified officers may be subject
to:
– Reassignment,
retraining, or transfer
– Referral to an employee
assistance program
– A fitness-for-duty
evaluation
– Dismissal
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OTHER MANAGEMENT METHODS
Decertification of offending officers
Community policing programs
College education requirements
Enhanced discipline policies
Better training
Greater accountability
Economic incentives
Assignment rotation
Use of surveillance techniques
Prosecuting offenders
Peer review boards
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Methods to Reduce Police Corruption
• Internal affairs units
• Independent civilian
oversight agencies
• Overt recording devices
(video cameras in cars)
• Covert high technology
surveillance
• Targeted integrity testing
• Randomized integrity
testing
• Drug and alcohol testing
• Quality assurance test
(customer service
monitors)
• Internal informants
• Complaints profiling
• Supervisor accountability
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Integrity reviews
Mandatory reporting
Whistleblower protection
Compulsory rotation in
corruption-prone sections
Asset and financial reviews
Surveys of police
Surveys of public
Personnel diversification
Comprehensive ethics training
Inquisitorial methods (factfinding rather than due-process
emphasis)
Complaint resolution
Monitoring and regulation of
police procedures (of
informants)
Decriminalizing vice
Risk analysis
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ETHICAL LEADERSHIP
• Mistrust of police administration is pervasive
among the rank-and file
• Two cultures of policing: street cops and
management
• Most agree that supervisor behavior has greater
influence on employee behavior than directives or
ethics
• Leaders lead most effectively by example
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