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CHAPTER 14
Making Ethical Choices
Lecture slides prepared by Lisa J. Taylor
Review of Major Themes
• There is presence of authority, power, force, and
discretion in each of the sub-systems of the criminal
justice.
• Informal practices and value systems among criminal
justice actors vary from formal principles of behavior.
• The importance of ethical leadership.
• The tension between deontological ethical systems
and teleological or “means–end” ethical analysis.
The Threat of Terrorism
“Deliberate, negligent, or reckless use of
force against noncombatants, by state or
non-state actors for ideological ends and
in the absence of a substantively just
legal process.”
The “Just War” Debate
Philosophers have debated the idea of “just”
wars since the time of Cicero (c. 106–43 B.C.)
•Natural Law: War is acceptable
o To uphold the good of the community
o When unjust injuries are inflicted on others
o To protect the state
•Positivist Law: (man-made) when international
law is followed; e.g. United Nations.
Justification for War Includes
• A grave, lasting, and certain threat.
• No other means to avert the threat.
• A good probability of success.
• The means must not create a
greater evil than the threat
responded to.
Ethical Justifications for War
and Means Utilized
Utilitarianism: when the benefits outweigh the
negatives; e.g., when there is a grave threat and
civilian deaths are minimized
Ethical formalism: use of aggression can be
justified with
principle of forfeiture
principle of double effect
Response to Terrorism
• Can “just war” arguments be applied?
• Can “Dirty Harry” arguments be
applied?
Response to 9/11
• There has been a fundamental shift in the goals
and mission of law enforcement and public safety.
• New goals include more national law
enforcement and a reduction of civil liberties.
• There is a greater emphasis on surveillance and
crime control.
• There are increasing links between local law
enforcement and immigration services and
federal law enforcement.
After 9/11
• Detainments and greater governmental secrecy
• The Patriot Act and the Department of Homeland
Security
• Wiretapping and threats to privacy
• Renditions and secret prisons
• Guantanamo and the Military Commissions
• The use of torture
• Publicly said the Authorization for the
Use of Military Force (AUMF) gave the
President the power to order targeted
killings of individuals—even American
citizens—believed to have engaged in
terrorist activity in the U.S.
• This was after a targeted drone attack
Attorney
General Eric
Holder
(2012)
killed Anwar al-Awlaki, an American
radical cleric believed to be responsible
for soliciting and initiating several terror
plots in the U.S.
• The ACLU and other organizations are
engaged in a Freedom of Information
Act request to obtain the memo and
what evidence existed to justify the
killing.
Detainments and Government
Secrecy
• Immediately after 9/11, hundreds of non-citizens were
detained on either immigration charges or material
witness warrants.
• The Patriot Act required that all individuals on visas
report to immigration offices. Many were detained on
minor violations of their visa and held for months in
federal facilities and county jails without hearings.
• Names and even the number of detainees were
withheld for months.
• Deportation hearings were closed to the media and
public.
• Japanese-American internment was the
relocation and internment by the United States
government in 1942 of about 110,000
Japanese Americans and Japanese who lived
along the Pacific coast of the U.S., to camps
called "War Relocation Camps," in the wake of
Imperial Japan's attack on Pearl Harbor.
Japanese
Internment
Camps
(WWII)
• In 1988, Congress passed and President
Ronald Reagan signed legislation which
apologized for the internment. The legislation
indicated that government actions were based
on "race prejudice, war hysteria, and a failure
of political leadership.”
• The U.S. government eventually disbursed
more than $1.6B in reparations to Japanese
Americans who had been interned and their
heirs.
The Patriot Act
•
Authorizes federal agents to spy on Americans without
probable cause or reasonable suspicion.
•
Allows authorities to share with state prosecutors information
obtained via FISA search warrants which do not require
probable cause.
•
Authorizes deportation of anyone who financially supports a
terrorist organization.
•
Requires all Arab-born citizens to register under the National
Security Entry-Exit Registration system.
The Act was extended in 2006 (to 2009), with modifications.
Wiretapping and Threats
to Privacy
• Patriot Act—“sneak and peek,” “national
security letters,” pen registers
• “Data mining” programs
• Presidential secret warrantless wiretappings
• DNA data banks
Renditions and Secret Prisons
• Renditions—kidnapping suspects in
Canada, Sweden, Germany, and Italy
sometimes without knowledge or approval of
governments
• Secret prisons—subjects of renditions
taken to countries to be tortured or to secret
prisons (closed in 2006?)
Guantanamo and the
Military Commissions Act
• Hamdi v. Rumsfeld (2004)—U.S. citizens could not be held
indefinitely without charges even if they were labled “enemy
combatants.”
• Rasul v. Bush (2004)—Detainees in Guantanamo could
challenge their detention in U.S. federal courts.
• Clark v. Martinez (2005)—Government may not indefinitely
detain even illegal immigrants without some due process.
• Hamdan v. Rumsfeld (2005)—“Military commissions,” set up
as a type of due process for the detainees, were outside the
President’s power to create and were, therefore, invalid.
Military Commissions Act
• Congress passed the Act after Hamdan v.
Rumsfeld invalidated presidential decree.
• Widespread criticism that the Act ignored ancient
right of habeas corpus.
• Boumediene v. Bush (No. 06-1195, Decided June
12, 2008)—the Supreme Court rejected the military
commissions as a due process substitute for
federal courts and habeas corpus; also, Detainee
Treatment Act was not a substitute for habeas
corpus rights.
Torture
Deliberate infliction of violence and, through violence, severe
mental and/or physical suffering upon individuals:
•
•
•
•
•
•
•
•
•
Subjected to loud noises and extreme heat and cold
Deprived of sleep, light, food, and water
Bound or forced to stand in painful positions for long periods of time
Kept naked and hooded
Thrown into walls
Sexually humiliated
Threatened with attack dogs
Shackled to the ceiling
Waterboarding
Torture
• Justification
o Utilitarianism (doctrine of necessity)
o Does torture result in the truth?
o Does it matter?
• Where?
o Guantanamo
o Secret prisons
o Bagram prison—Afghanistan
o Abu Ghraib—Iraq
Thinking
Point
In May of 2010, Faisal Shahzad made
an attempt to set off a car bomb in Time
Square. Shahzad has since been
charged with an act of terrorism and
mass destruction. Shahzad became a
U.S. citizen in April of 2009. He had
recently reentered the country after
spending five months in Pakistan.
Shahzad claims he acted alone in his
attempt.
Knowing Shazad’s history, would it be
ethical to use certain torture methods to
ensure he is being honest?
Crime Control and
“Means-End” Thinking
The desired end (deterring/preventing terrorist attack) is
seen as justifying such means as restricting:
• privacy rights
• due-process rights
• rights to associate (as when individuals are deported simply
for associating with groups that have been defined as
terrorist)
• right not to be tortured (water boarding and other “coercive
interrogation techniques”)
The Crime Control Approach
A utilitarian approach can be used to justify invasive
or restrictive police actions:
•
The end must itself be good.
•
The means must be a plausible way to achieve the
end.
•
There must be no alternative, better means to achieve
the same end.
•
The means must not undermine some other equal or
greater end.
Crime Control vs. Human Rights
Crime Control
Rights Based Policing
• “Dirty Harry” reasoning
• Emphasis on law
• Ends-means thinking
• Emphasis on due process
• Doctrine of necessity
• Emphasis on inalienable
• Utilitarianism
rights
• Ethical formalism
Rights Based Police Standards
(UK)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
To fulfill the duties imposed on them by the law
To respect human dignity and uphold human rights
To act with integrity, dignity, and impartiality
To use force only when strictly necessary, and then
proportionately
To maintain confidentiality
Not to use torture or use ill-treatment
To protect the health of those in their custody
Not to commit any act of corruption
To respect the law and the code of conduct and oppose violations
of them
To be personally liable for their acts
Is War on Terror Related to
Criminal Justice Ethics?
• The War on Terror has affected police policies and added
new responsibilities.
• Powers created to fight terror have been used against
“garden variety” criminals and governmental
surveillance/spying has been used against American
citizens.
• The Patriot Act renewal had provision for speeding death
penalty appeals.
• There are routine partnerships (and conflicts) between local
law enforcement and DHS.
• Civil liberties take centuries to create, but only a few
generations to destroy (Wilson).
•
•
•
•
NYPD’s
Intelligence/
Surveillance
Activities
•
•
Intelligence division – 1000 employees.
Led by ex-CIA agent.
Unit includes 2 dozen civilian experts,
lawyers, academics, linguists, and other
specialists in addition to law enforcement
officers.
Unit monitors jihad websites and gathers
tips regarding terrorist activity.
Use cameras on mosques and Muslimfrequented businesses, collected license
plate numbers, and engaged “mosque
crawlers” to infiltrate mosques and
neighborhoods.
Privacy concerns raised by the ACLU and
Arab Islamic rights organizations
“Dirty Harry” Problem
• 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?
Nga Truong
Coerced
Confession
(2008)
•
Police received a hysterical call from an
apartment where a Vietnamese-American
teenager lived with her 13-month-old son,
Khyle, her boyfriend, her mother, and her
siblings.
•
Khyle wasn't breathing, and later, a doctor
at a nearby hospital pronounced him dead.
•
Truong later admitted to suffocating her
son. She was arrested and spent almost
three years awaiting trial for murder.
•
Police told her that if she confessed, she
will get help and leniency in the juvenile
court.
•
She made the coerced admission, thinking
she could go on with her life, but not
processing at 16 years old that she just
admitted to homicide.