DUE NOT WORK-ALREADY GOT ANSWER!!!
For DXJ Writer: Week Two CJA/324 – Ethics in Criminal Justice Discussion Question No. 2 Discretion or Discrimination Due Day 4, Thursday, February 23, 2012, Arizona Time, midnight 175 word minimum · Define discretion, provide examples of discretion, and discuss unethical and ethical criteria for the use of discretion. · Evaluate the charge that police departments enforce the law in a discriminatory manner. · Discuss the evidence that supports a charge of enforcing the law in a discriminatory manner. · Describe the evidence that contradicts the charge.
HI! I posted these at 5:30 p, CST. Did you not get these?
I don't see any of the previous messages in this window.
I'll report technical difficulties. Many apologies!!!!!!!!!!
Did you still need the ethics dilemma? DXJ
yes I do very much
no, I don't I already worked this.....but know I didnt get it before- I just checked, i had to use other means last night!
Sorry for any confusion. I didn't see the second set of questions.
I'm so glad someone helped you with these!
There are more criminal justice experts on Just Answer now:-)
Ethics Awareness Inventory Scoring Summary
your Ethical Profile is MOST closely aligned with:
Your Ethical Profile is LEAST closely aligned with:
I was trying to paste the EAI Scoring Summary, but it didn't come out the way it should of! So, I will try to explain it: I came out to be a Combined Scorer my numbers went like this: across the top of the page read:
C---- O---- R---- E === (Row Totals)
Side of the page going down Read: Most then Least then Combined Score
Now the numbers under the C column: 6 - 3 - 3 the O column: 6 - 5 - 1 the R column: 10 - 9 - 1 the E column: 2 - 7 - (-5) the (Row Totals) column: =24 - =24 - =0 then under the chart Read: an arrow down from Combine Score box: connected these two statements:
your Ethical Profile is MOST closely aligned with: (c) Character
Your Ethical Profile is LEAST closely aligned with: (E) Equity
Then it stated: AWARENESS - Your Ethics Awareness Profile
Four categories of ethical thought are used in the Inventory to analyze some of the characteristics of different perspectives on ethics. The category with which your Ethical Profile is most closely aligned, as identified by the Inventory, should generally reflect your benefits. Of course, individual perspectives vary and this description may not fit you exactly. However, it can provide insight into your general views and approaches with regard to ethical issues.
The category with which your Ethical Profile is least closely aligned should reflect values that generally do not resonate with your views on ethics.
If your second highest score on the Inventory Scoring Summary is within one or two points of your highest score, you will want to review the second Ethical Profile to further analyze your approach to ethical decision making, and also the section entitled Blended Categories.
SO THAT IS EVERYTHING ON MY EAI SCORING SUMMARY!
I hope it make sense to you now!
OK, let me copy and paste it and really look at it. Thanks so much! DXJ
I was wondering if you could write the introduction for the whole assignment. Remember this is a team project, so I am responsible for Introduction for the team intro. it's seperate from the opening for my individual part of explaining my summary! I'd need it tonight though.....
Could you explain a little more about the entire project so I could write an intro? Without that, it would really be difficult.
Is there a particular source for this assignment?
no, other source than the original text readings!
Write a 1,050- to 1,400-word paper describing each team member’s ethical learning style from the EAI, which was due in Week One.
Include the following in your paper:
Format your paper consistent with APA guidelines
The two bullet point questions are to be answered within my individual part of the team paper! However, we are as a team are required to explain/breakdown our individual scoring summaries, then put them together to complete the entire paper. I hope this helps!!!
Does each classmate have to answer the two bullet points?
Did the EAI score give you summary? (It usually does:-)
I can come up with something for the intro:-)
Let me roll it around in the midn a bit:-)
Also for the ethics worksheet- is there a source requirement?
Yes, we all do
OK, that makes it easier to establish the premise:-)
I can help:-)
I wrote out everything that came out on my EAI scoring summary
OK, I'll try and fill in the"holes".....I'm used to reading a summary from the EAI. I can make it work (Putting my "thinking cap" on:-)
Ethics Awareness Inventory- Gain New Insight into Your Ethical Perspective
Ethical Beliefs in Multiple Categories
It is possible to have ethical beliefs that are represented in more than one category. Most individuals agree with at least some characteristics in all four categories, and the relationship between these categories frorm your uniqque ethical style. Therefore, these categories should be viewed as broad description of typical patterns. The purpose of the ethical awareness Inventory is to strenghten your understanding of your own belief system. The idea of blended catergories takes your Awareness a step further.
If your second largest positive score is within one or two points of your largest, you will want to consider the compatibility of the two scores. You may want to consider whether (a) you are experiencing an internal conflict in attempting to function in two distinguishable moral environments, or (b) your ethical style is simply a unque blend of two categories. For example, a blended C and O (within one or two points of each other) is likely to support the idea that ethical principles without goodness are powerless and goodness without some standards or principles of right and wrong is ineffective. The two categories can be supportive of one another. However, a blended O and R may reflect some internal conflicts between a feeling of moral obligation to individuals, on the one haand, while attempting to produce specfic results for some group or organization on the other. A careful examination of these blended categories to identify possible internal conflicts is recommended.
External Conflicts May Influence Your Beliefs
If your ethics Awareness Profile reflects blended categories, you may also want to consider whether you are being challenged by situations in which people are asking you to do things that conflict with your personal ethical beliefs. You may feel pressured in some situations to reject your own standards of right and wrong, causing a feeling of internal conflict. Until you re able to explain your sincere beliefs and consistenly act in accordance with those beliefs without compromise, you will continue to experience internal moral conflict. This will create discomfort for you, and it will be difficult to make ethical decisions that you can stand behind.
Keep in mind thaat these descriptive categories represent only four recognized categories of ethical philosophy and theory. Other schools of thought may be more closely related to your ethical belief system. However, these common descriptions should provide insight into some of the significaant differences of opinion that may arise when you are trying to reach an ethical decision, especially when working with others. A better understanding of the conflicts that arise between you and others regarding what is the right thing to do will be helpful. Hopefully, you will be encouraged to explore other resources and try to understand different ethical styles. Awareness of your ethical perspective is the first step toward making ethics a central part of your daily life and developing a better working relationship with others.
OK, Thanks So much!
Do you think you're up to answering another question tonight
I'm working through your intro and the worksheet now.......
what if you could put the intro off until tomorrow
Just a DQ?
I could take a look:-)
It would still depend on the question:-)
Well, here and you tell me:
According to Pollock (2007), fear and loyalty are two reasons law enforcement officers do not violate the “code of silence”. Some are aware of the “wrong” activity and do nothing, but do not inform supervisors, thus, becoming part of the conspiracy of silence.
Moreover, no one reports any wrongdoing because each of the other officers who may have witnessed the wrongdoing has engaged in similar behavior that could be also sanctioned.
Accordingly, the code of silence continues.
Do you agree? Explain.
That I can help with:-) Minimum word count?
Ok..........will get that ot you shortly!
ok, thank you!
DQ answer here
Hope it helps! DXJ
Quick question........could you put in the statute on the ethics worksheet?
Your Worksheet is here.
It should open in a new window. Hope this helps!
In section five, one of the boxes says: Are there any rules, laws, or principles that support the alternative? (The professor's example had a statute.) I'm not sure if one is applicable.
Does that help? DXJ
Table of Contents
A Note on the Seventh Edition.............................................................................. xi
SECTION I INTRODUCTION
CHAPTER 1 Ethics, crime, and justice: An introductory
note to students ................................................................... 3
Michael C. Braswell
CHAPTER 2 Utilitarian and deontological approaches to criminal
justice ethics..................................................................... 11
Case study 2-1: Room at the end of the hall ........................... 23
CHAPTER 3 Peacemaking, justice, and ethics ....................................... 25
Michael C. Braswell and Jeffrey Gold
Case study 3-1: To help or not to help?................................... 40
Exercise I-1: Your personal philosophy .................................... 41
Exercise I-2: The ethics of drug control policy ........................ 41
SECTION II ETHICAL ISSUES IN POLICING
CHAPTER 4 How police officers learn ethics ......................................... 45
Steven J. Ellwanger
Case study 4-1: Liberty and justice for all ............................... 68
CHAPTER 5 Deception in police interrogation ........................................ 71
CHAPTER 6 Using ethical dilemmas in training police ........................... 91
Joycelyn M. Pollock and Howard E. Williams
CHAPTER 7 Police ethics, legal proselytism, and the social
order: Paving the path to misconduct................................ 111
Victor E. Kappeler, Gary W. Potter, and XXXXX XXXXX
Case study 7-1: Homegrown terrorism................................... 126
Exercise II-1: Different choices, equal protection? ................ 127
SECTION III ETHICS AND THE COURTS
CHAPTER 8 Whatever happened to atticus finch? Lawyers
as legal advocates and moral agents ................................ 131
Joycelyn M. Pollock
Case study 8-1: Child rapist.................................................... 145
CHAPTER 9 Prosecutor misconduct ..................................................... 147
Richard R.E. Kania and Ardie Dial
Case study 9-1: It's a rat race, and the best rat wins ............ 162
CHAPTER 10 Criminal sentencing: Goals, practices, and ethics.............. 165
Lawrence F. Travis III
CHAPTER 11 Crime and punishment: Punishment philosophies
and ethical dilemmas ....................................................... 181
Laurie A. Gould and Alicia H. Sitren
CHAPTER 12 To die or not to die: Morality, ethics,
and the death penalty....................................................... 195
John T. Whitehead and Michael C. Braswell
Case study 12-1: Politics or ethics?
A governor's prerogative ......................................................... 214
SECTION IV ETHICAL ISSUES IN CORRECTIONS
CHAPTER 13 Ethical issues in probation, parole, and community
corrections ...................................................................... 217
John T. Whitehead
Case study 13-1: Sexual harassment....................................... 234
CHAPTER 14 Restorative justice and the peacemaking ethic.................. 237
Lana McDowell, Michael C. Braswell,
and John T. Whitehead
Case study 14-1: The limits of responsibility ........................ 262
Exercise IV-1: Restorative justice: Ethical scenarios ............. 263
CHAPTER 15 Keeping an eye on the keeper: Prison corruption
and its control ................................................................. 265
Bernard J. McCarthy
Case study 15-1: Legacy of corruption .................................. 283
CHAPTER 16 Ethics and prison: Selected issues ................................... 285
John T. Whitehead and XXXXX XXXXX
Case study 16-1: Who's running the prison?.......................... 302
SECTION V ETHICAL ISSUES IN CRIME CONTROL
POLICY AND RESEARCH
CHAPTER 17 Crime and justice myths ................................................... 309
CHAPTER 18 The ford pinto case and beyond: Assessing blame............. 331
Francis T. Cullen, William J. Maakestad, Gray Cavender,
and Michael L. Benson
CHAPTER 19 Ethics and criminal justice research ................................. 351
Belinda R. McCarthy, Robin K. Davis, and Michael Bush
Case study 19-1: Research issues ............................................ 376
CHAPTER 20 Terrorism and justice ....................................................... 377
SECTION VI ETHICS AND THE FUTURE
CHAPTER 21 Criminal justice: An ethic for the future ............................ 399
Michael C. Braswell and Robert C. England
A Note on the Seventh
In the seventh edition, we have attempted to continue making changes that maintain
the flow and integrity of past editions while revising some chapters and adding
several new ones. In addition, we have updated and added several new exercises
and case studies that reflect emerging issues in criminal justice ethics. In most
chapters, we have also included links to websites that offer students access to additional
information on topics covered in the text.
In Section II, an essentially new chapter is added on ethics in police training as
well as a new chapter on deception in police interrogation. In Section III, the chapter
on ethical issues in criminal sentencing (Chapter 10) is revised and updated.
Chapters on probation, parole, and community corrections (Chapter 13) and on ethics
and prison issues (Chapters 15 and 16) are updated in Section IV. In Section V,
the chapter on ethics and criminal justice research has been significantly revised
and updated as well. In addition, a new chapter is included on terrorism and justice.
We continue to include a variety of case studies, exercises, links to interesting
websites, and other features to stimulate critical and creative thinking and discussion
of ethics, crime, and justice. Of course, all persons and names in case studies
and exercises are fictional.
We continue to be grateful to our colleagues, students, and others who teach
ethics for their e-mails, phone calls, and comments at conferences concerning
how to make our book better. Since we teach ethics, we understand the importance
of such conversations. Many of the improvements in each edition are the result of
these people's input and suggestions.
We want to thank XXXXX XXXXX and Mical Carter for their work on the
ancillary materials. We also want to thank Susan Braswell for her assistance with
the revision. We also offer a special thank-you to Ellen Boyne, our editor, who
continues to make each edition better. Her help and support are much appreciated.
to Atticus Finch?
Lawyers as legal advocates
and moral agents
ethics of care
ethics of rights
Atticus Finch, the role created by Harper Lee for the book and movie To Kill a
Mockingbird, was the epitome of the "gentleman" lawyer: courteous, honest,
brave, and intelligent. He was a consummate professional, but more than that, he
was an admirable man. In the plot of the story, he was a comfortable, respected
attorney in a small Southern town who agreed to defend a black man accused of
raping a white woman. In a time of lynchings, this decision exposed him and his
family to ostracism and danger, yet at all times he maintained a professional courtesy,
even toward those whose actions were condemning an innocent man to die. In
contrast to this ideal of an attorney, there is the stereotype of the "ambulance
chaser" lawyer who, like a parasite, exploits and profits from other's misfortune.
The criminal defense attorney is often perceived as unscrupulous and uncaring,
stopping at nothing to "get his client off." So, where is Atticus? Of course, it
helped that he defended an innocent client; real-world attorneys are not always
One of the reasons for the public's disdain for lawyers is found in the role they
play vis a` vis their clients: Are attorneys amoral "hired guns" or are they professionals
who balance their clients' interests against respect for the law and some
Justice, Crime, and Ethics.
© 2012 Elsevier Inc.. All rights reserved.
132 CHAPTER 8 Whatever happened to Atticus Finch?
objective standard of justice? 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 activities for the client)
has been discussed and debated vigorously in the literature.
THE LAWYER/CLIENT RELATIONSHIP
Cohen (1991) presented the argument that only an attorney acting as a moral agent
had the capacity to be moral. A legal advocate, one who pursued his or her clients'
wishes even if they were immoral, could not possibly be considered good because
he or she might be doing bad acts. He suggested some principles (see Box 8.1) that
attorneys had to follow in order to be considered moral.
Cohen's position that attorneys should be moral agents and decide independently
what is right and wrong has been attacked vociferously. For instance, Memory
and Rose (2002) argue that a lawyer can be effective and morally good by
subscribing to the American Bar Association (ABA) Model Rules of Professional
Conduct. They argue, basically, that a lawyer who follows the Model Rules can
be a zealous advocate for his or her client but still never do wrong because the
Model Rules prohibit illegal and unethical behaviors, such as lying. They especially
do not agree with Cohen's idea that lawyers should apply their own definitions
of morality in any case where they are being paid to pursue the client's
interest. Morality is "subjective," they argue, and therefore it would only result
in a loss of trust in attorneys and damage to the client relationship if attorneys were
to pursue their own definitions of justice rather than the clients' definitions.
Cohen (2002), in a rebuttal, continues to argue his case, proposing that the legal
advocate becomes used to imposing injury on others and that they do so without
feelings of guilt. He argues that the Model Rules do not prohibit all acts that could
be defined as unethical and immoral. For instance, they do not prohibit a situation
whereby an attorney would maintain silence in an instance that results in third
BOX 8.1 PRINCIPLES FOR ATTORNEYS AS MORAL AGENTS
1. Treat others as ends in themselves and not as mere means to winning cases.
2. Treat clients and other professional relations who are relatively similar in a similar fashion.
3. Do not deliberately engage in behavior that is apt to deceive the court as to the truth.
4. Be willing, if necessary, to make reasonable personal sacrifices-of time, money,
popularity, and so on-for what you justifiably believe to be a morally good cause.
5. Do not give money to, or accept money from, clients for wrongful purposes or in wrongful
6. Avoid harming others in the process of representing your client.
7. Be loyal to your client and do not betray his confidence.
8. Make your own moral decisions to the best of your ability and act consistently on them.
Source: Cohen (1991:135-136).
The lawyer/client relationship 133
parties being financially harmed. Although Cohen wrote his article before the
Enron, WorldCom, and Adelphia corporate debacles, these examples certainly
seem to be cases in point because attorneys were involved when corporate officers
misled shareholders about the financial holdings of the companies (Rhode & Paton,
2002). As Powell (2003:316) pointed out:
. . . how could it be . . . that with over a thousand lawyers at Arthur Andersen,
over 300 lawyers at Enron, and, minimally, another dozen or so lawyers at
Vinson and Elkins, the only person willing to blow the whistle was a senior vice
president with a business degree?
Actually, the two sides seem to agree that the most egregious acts of attorneys
who pursue their clients' interests, regardless of truth, justice, or who gets hurt,
would be unacceptable for either the moral agent (because these actions offend
some larger definition of morality) or the legal advocate (because they violate
the Model Rules). However, there are still a number of issues and situations that
fall between the two sides. For instance, if a defense attorney had a weak case
and the only available tactic was to challenge the credibility of the prosecution's
witness, should the attorney expose the witness (who is telling the truth and the
defense attorney knows it) with evidence of past misdeeds, current failings of character,
and, in general, attack his or her character? What if such treatment ruined the
witness's reputation, health, or relationship with a loved one? The legal advocate
would have no problem with such behavior; he or she must pursue the client's
interest in creating reasonable doubt for the jury. What about the moral agent? If
the moral agent refused to attack an honest prosecution witness, what good would
he or she be to the guilty defendant who has no other means of obtaining an acquittal?
What does a defense attorney owe to his or her client?
Wishman (1981) describes a case in which he challenged a rape victim's
account of an alleged brutal rape and sodomy. He was able to convince the jury
that she was lying and, months later, was confronted with her anger.
. . . as all criminal lawyers know, to be effective in court I had to act forcefully,
even brutally, at times. I had been trained in law school to regard the "cross"
as an art form. In the course of my career I had frequently discredited witnesses.
My defense of myself had always been that there was nothing personal in what I
was doing. This woman was obviously unwilling to dismiss my behavior as
merely an aspect of my professional responsibility; instead of an effective counsel,
she saw me simply as a "motherf**ker" (Wishman, 1981:6-7).
The literature in jurisprudence is filled with articles seeking to clarify or
instruct in the attorney/client relationship. Condlin (2003:220-221, notes omitted)
explains the ethical dilemma of attorneys who find themselves forced to decide
how to act when pursuing the client's interests:
Lawyers can find themselves in situations, therefore, in which they have social
and moral obligations to behave in one way, and legal and professional
134 CHAPTER 8 Whatever happened to Atticus Finch?
obligations to behave in another. When norms collide in this fashion, when what
a client asks is legal but also unfair or destructive of societal interests generally,
lawyers face a difficult question. Should they be moral or legal, social or selfinterested,
communitarian or individualistic, or as some put it, persons or
Granfield and Koenig (2003:513) observe that law school ethics classes do not
help lawyers answer such questions: ". . . the codes do not tell lawyers how to reconcile
conflict between their personal sense of ethics and the rules. . .. " In their
survey of 40 Harvard graduates, they found that many experienced deep personal
conflict in representing clients whose tactics or positions with which they disagreed.
However, they tended to resolve such conflict by adapting a "role-based
morality." In effect, their definition of good became a judgment of their technical
competence-they exchanged being good persons with being good lawyers. Those
who could not make that adaptation left the field.
Condlin (2003) describes the role of lawyers as falling into one of the following
categories: the hired gun role (most similar to our preceding legal-advocate
description), the guru/godfather role (in which the lawyer tells the client what
should be done), and what some call the client-centered/friend role (in which, it
is assumed, the client can be persuaded not to engage in unethical or immoral practices).
Condlin (2003) is critical of those who propose the last category, arguing
that, in the end, if the client insists on immoral actions, the attorney either tells
the client "no" (guru/godfather) or does the client's bidding (legal advocate).
Although some writers (e.g., Simon, 1993, 1998) argue that the attorney-even
the criminal defense attorney-should balance client interest against social justice,
others argue that zealous advocacy is not only desirable but also honorable
(Freedman, 2002). Many advocates for the "client first and foremost" position
use a famous quote from Lord Brougham that describes the client/attorney role:
". . . by the sacred duty which he owes his client, knows, in the discharge of
that office but one person in the world-that client and no other . . ." (cited in
Smith (2003) points out that the whole argument against zealous advocacy presumes
that allowing perjury, browbeating victims, and other "aggressive tactics"
are rampant. The more typical situation, Smith argues, is that criminal defendants
get barely more than a "warm body sitting next to them" and, in fact: "Actually a
warm body might be benign compared to some of the dangerous, dim-witted
defenders that roam the criminal courts" (2003:91). He presents the case that the
more typical attorney barely meets the definition of competent and comes nowhere
near zealous in his or her defense of clients' interests.
It should also be noted that not all subscribe to the idea that the lawyer is always
seeking the client's best interest. Scheingold (1984:155), 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.
Guidance for lawyers: model rules of professional conduct 135
In this view, lawyers on the two sides of the bar have more in common with each
other than with the client (or victim), so they really are advocates in name only.
Defense attorneys and prosecutors share some vision of what is fair, and the system
operates to enforce this vision, regardless of impositions from the outside or drama
displayed for the client's benefit. (For a discussion of this model and others, see
GUIDANCE FOR LAWYERS: MODEL RULES
OF PROFESSIONAL CONDUCT
All attorneys are guided by the ABA and the bar association of their own state. The
ABA has created and continues to update the Model Rules of Professional Conduct.
The most recent revisions were proposed in 2000 and passed in 2002. The
Rules cover the client/lawyer relationship, maintaining the integrity of the profession,
courtroom behavior, conflicts of interest, use of the media, and relationships
with opposing attorneys, among other areas. A standing committee on ethical
responsibility, which provides formal and informal written opinions, enforces the
Rules. Each state bar association enforces its own rules by sanctions that range
from a private censure to disbarment.
Although we have been discussing zealous defense and the extent to which lawyers
should ignore their personal ethics to do their client's bidding, it should be
noted that the most common complaint lodged with state bar associations is incompetence
or negligence. Most clients who are unhappy with their attorneys are
unhappy because of real or perceived neglect, that is, the attorney doesn't return
their calls, the attorney missed a legal deadline, or so on. Very few complaints
result in serious sanctions taken against attorneys (Pollock, 2004).
So, what do the Rules dictate regarding the relationship between an attorney
and client? First, the Rules demand that the lawyer "shall abide by a client's decisions
concerning the objectives of representation. . .. [and] shall consult with the
client as to the means by which they are to be pursued" (ABA, 2002:Rule 1.2).
Barker and Cosentino (2003) point out that the revisions to this rule attempted
to clarify the authority of the client and attorney in the relationship. The old rule
distinguished between the objectives of the case (with greater authority given to
the client) and the means or strategies used (with greater authority given to the
attorney). The new rule encourages the client's participation in all decision
making, but the use of the term consult may be interpreted to mean that the client
does not have absolute authority over decisions regarding means or strategies.
Mather (2003) argues that the Model Rules are still "vague, contradictory, and
ambiguous" in regard to the appropriate power differential in the attorney/client
This issue becomes extremely relevant in criminal defense cases when clients
insist on courses of action that attorneys feel are self-destructive or not helpful
to the defense. Barker and Cosentino (2003) discuss, for instance, cases in which
136 CHAPTER 8 Whatever happened to Atticus Finch?
the defendant does not want attorneys to pursue insanity pleas or does want to present
defenses that clearly have no basis in fact. They also note that the revision
takes away any disciplinary sanctions for attorneys who decide to go against client's
wishes unless the action also violates other laws. This may, they argue,
encourage attorneys to act their conscience when a client desires to do something
morally repugnant. They conclude, however, that the revised rule continues to
leave much ambiguity in who has control over decision making-the client or
Mather (2003) finds that an attorney's inclination to let the client take the lead
in making decisions about objectives and tactics depends on the type of client.
Studies indicated that public defenders were much more likely to believe in an
attorney-led relationship, partially because of a belief that the client was too "unsophisticated"
or ignorant to make good decisions. Corporate attorneys, however,
were more "client-centered" and more likely to do the client's bidding, regardless
of what they personally thought. This was because corporate executives could
simply take their business elsewhere and the attorney would lose money. According
to Mather (2003:1081):
The client-sensitive or agent role in representation could become the role of the
lackey in situations of unequal power between client and lawyer. As a result, the
broader public interest, including the requirements of law, may suffer.
Rule 1.2 also cautions that the lawyer "shall not counsel a client to engage, or
assist a client, in conduct that the lawyer knows is criminal or fraudulent . . ." Thus,
a lawyer cannot knowingly participate in ongoing criminal or fraudulent activity.
One assumes that when a corporate attorney is involved in activities that later
are exposed as fraudulent, it is because there is more "wiggle room" in interpreting
corporate acts-and more incentive for attorneys to decide that the actions aren't
"strictly illegal," even though they may later be defined to be.
The attorney/client privilege refers to the client's right to not have the attorney
be called to offer testimony about information obtained during the course of representing
the client. The Model Rules have enlarged this privilege to prohibit any
form of divulging information that is injurious to the client's interests, except for
a few exceptions. Rule 1.6 states that lawyers "may not reveal information relating
to the representation of a client unless the client gives informed consent" (ABA,
The exceptions to this rule include an exception to prevent "reasonably certain
death or substantial bodily harm" or to "prevent . . . a crime or fraud that
is reasonably certain to result in substantial injury to the financial interests or
property of another and in furtherance of which the client has used or is using
the lawyer's services." Seemingly, the last exception is simply a restatement of
Rule 1.2, which prohibits the lawyer from participating in an ongoing crime or
fraud but does not allow an attorney to come forward if the attorney simply
knows of the fraud but his or her services are not being used in furtherance of
Guidance for lawyers: model rules of professional conduct 137
This rule has been substantially revised from earlier versions. For instance, in
the 1983 version of the Rules, the exception was only the prevention of a crime
that involved death or substantial bodily harm. In this earlier rule, financial injury,
less than substantial physical injury, or the wrongful conviction of another could
not justify disclosure (Vogelstein, 2003).
Martyn (2003) discusses both utilitarian and deontological rationales for the
attorney/client privilege. Arguably, for instance, the rule is necessary in order for
clients to be open with attorneys and share information that they must have to
conduct an effective defense in criminal law and to further the client's interests
in civil law. The deontological rationale is that it is the duty of the attorney to pursue
the client's interests above all others. Martyn (2003) gives an example of an
attorney who was consulted by a man seeking to sue an apartment manager for
wrongful termination. During the course of that conversation, the man told the
attorney that he was going to burn down the apartment building. The attorney
informed the police, and they caught the man in the act after he had already spread
an accelerant. The moral agent attorney could have done nothing else, but some
questioned this attorney's actions because he could not have been "reasonably
certain" that the man was going to commit arson and he wasn't involved in furthering
One much discussed case involved two lawyers who knew the location of the
bodies of two teenagers who had been killed and buried by their client. Instead
of divulging this information, they kept their client's confidence and used the location
to bargain for a reduced sentence (for a discussion, see Pollock, 2004).
Certainly a legal advocate would have kept quiet, but what would a moral agent
have done? A very similar case occurred more recently in Texas when an attorney
was compelled by the Texas courts to produce a map drawn by a client that showed
the location of a child she had murdered. The court decided that the abandonment
of the privilege was necessary because although the client had said that the child
was dead, in another interview she had said that the child was still alive, so the
location was necessary to prevent a future crime (if the child had still been alive).
Because the attorney had to be compelled to produce the map through legal means,
can we assume that she knew the child was already dead? A moral agent would
have never kept such information to herself, but what about a legal advocate?
Blakleyn (2003) discusses a different sort of confidentiality issue. He asks
whether attorneys, as officers of the court, owe a general duty to the public in cases
that are sealed but in which, arguably, the public interest dictates divulging information
from the case to a wider audience. His examples included sealed settlements
with clergy members who were sued for sexually molesting children. The
sealed settlements prohibited any of the parties from breaking the confidentiality
clause of the contracts, but in some cases, especially when the same clergymen
engaged in similar behavior over time, it is clear that the public's interest would
have been served by knowing.
The XXXXX XXXXX case involving a young child is also a good example of how
sealed settlements may not be in the public interest. Several years before the charges
138 CHAPTER 8 Whatever happened to Atticus Finch?
imposed in this case, a family leveled similar allegations against Jackson but settled
the case out of court for an undisclosed sum of money. The family and child refused
to cooperate with prosecutors in that case. Then, allegedly, another child was sexually
molested. Did the attorneys in the prior case have some responsibility for this
latter incident, given the fact that they did not divulge information to prosecutors that
might have helped prevent future crimes? Would a moral agent attorney have found
some way not only to protect the public but also to get a settlement for his or her
client? What responsibility does a judge have in this situation? After all, a judge
must agree to the confidentiality clause in any settlement agreement.
Vogelstein (2003) presents a description of psychologist Carol Gilligan's "ethics
of care" in juxtaposition to the "ethics of rights" approach of the legal system and the
ethical principles for lawyers. The "ethics of care" centers on morality as tied to relationship
and the understanding of connectedness; the "ethics of rights" is rule based
and emphasizes legality. Vogelstein applies this reasoning to the specific issue of
when attorneys should divulge confidential information to third parties. She argues
that the rule contributes to the negative stereotype of attorneys:
By orchestrating a legal system where "zealous advocacy" for one individual
trumps virtually any concern for and responsibility to the collective body, the
confidentiality rule contributes significantly to the marred perception of the
legal profession currently shared by the American populous. (Vogelstein,
Vogelstein (2003) points out that the current rule has protected more third parties
than the earlier versions of the rule but that it still ignores other types of harm-
specifically, commission of a crime or fraud that results in substantial harm but
is not furthered by the lawyer's services, wrongful incarceration or execution of
another, and substantial emotional injury.
She further points out that to ensure that lawyers do protect the interests of third
parties, the rule to disclose should not be a permission to do so but rather should be
mandatory. She argues that lawyers have an inclination to protect their clients-for
pecuniary reasons if for no other. Therefore, the ABA should use forceful persuasion
via the rules to make sure attorneys act as moral agents following an "ethics of
care" toward third parties and the public at large.
Rule 2.1 seems to offer support for the proposition that the lawyer is a moral
agent by proposing that the lawyer "shall exercise independent professional judgment
and render candid advice." Furthermore, the rule goes on to state that "a lawyer
may refer not only to law but to other considerations such as moral, economic,
social, and political factors . . ." (ABA, 2002:Rule 2.1). Dinnerstein and colleagues
(2004) explain that attorneys rarely engage in "moral dialogues" with their clients,
but they explain how one might go about such a discussion. They also observe that
attorneys may approach giving moral advice in an oblique way or couch their argument
in practical rather than moral terms. The authors discuss elements of whether
to engage in moral arguments, including such things as the seriousness of the issue
(see Box 8.2).
Guidance for lawyers: model rules of professional conduct 139
BOX 8.2 MORAL DIALOGUES WITH CLIENTS: SUGGESTIONS
1. The moral stakes of the issue. The more serious the issue, the more reason there is to
engage in a discussion about a course of action.
2. The debatability of an issue. If it is in a gray area, there may be more reason to allow client
latitude in decision making.
3. The client's capacity to make a moral decision. Some clients may not have the intellectual
capacity to reasonably make decisions.
4. The presence of shared values. When the attorney is very different from the client there
may be more room for disagreement.
5. The nature of a legal relationship. A simple exercise in contract writing may not create the
same need for moral discussions as a criminal defense or custody battle.
6. The lawyer's objectivity or self-interest. The attorney needs to be sure that his or her moral
advice isn't influenced by self-interest.
Source: Dinnerstein Ellman, Gunning, & Shalleck (2004).
Rule 3.1 mandates that lawyers "shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a basis in law and fact . . ."
(ABA, 2002:Rule 3.1). However, in this rule there is a special exception or
allowance for criminal defense attorneys, who are allowed to defend their clients
in a way to "require that every element of the case be established." Therefore, even
if the attorney knows the client is guilty, the attorney's ethical responsibility is to
defend the case in a way that challenges every assertion by the prosecution.
This rule defines why defense attorneys must ethically question prosecution
witnesses, even if they know they are telling the truth. They must challenge technicalities
and question physical evidence. Their role is to test the evidentiary
weight of the prosecution's case and to offer up any evidence that might create reasonable
doubt. If they do not, then, arguably, they have failed to live up to their
role. This rule, along with much commentary in the literature, sets the criminal
defense attorney apart from the corporate attorney. The distinction, however, does
not solve the moral quandaries of some defense attorneys when they "do what they
are supposed to do," such as imply that a rape victim is lying.
The most obvious dilemma for attorneys representing guilty defendants is the
situation in which the defendant wants to commit perjury or have someone commit
perjury to help the case. The Rules state that a lawyer shall not knowingly "make a
false statement of fact or law to a tribunal" or "offer evidence that the lawyer
knows to be false" (ABA, 2002:Rule 3.3). Although this seems to resolve the matter,
criminal cases merit special rules. Rule 3.3 goes on to say that "[a] lawyer may
refuse to offer evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false."
In the comments section to this rule, it becomes clear that an attorney must
"know" the testimony is false before he or she can ethically refuse to offer it in
trial. If the attorney merely "reasonably believes" the testimony is false, then it
140 CHAPTER 8 Whatever happened to Atticus Finch?
must be offered. Thus, if a defendant tells an attorney that he was home alone
when the crime was committed, but then when the case isn't going well and the
client offers a girlfriend who wants to testify that the client was with her the day
of the crime, what should the attorney do? The attorney believed that the client
was telling the truth the first time, but does the attorney know the truth? Do the
rules require the attorney to use the testimony of the girlfriend? What if the defendant
originally confessed to the crime but then wanted to take the stand and testify
that he didn't do it? The attorney tells him that he can't assist in perjury, so the client
claims he was lying in his confession. Does the attorney know which is the
truth? How would an attorney truly know what is the truth or not versus a reasonable
Pellicotti (1990) describes what an attorney does after his or her client commits
perjury. The passive role is to ignore the perjured testimony during summation or
any arguments. The active role is to disclose the perjury to the court. However, as
stated before, the rules state that the attorney must know, not simply reasonably
believe, that the client has committed perjury. The culture of the defense bar
includes the idea that all defendants lie: "I was surprised, at first, that a client
would lie to his own lawyer, but after a while I got used to it" (Wishman,
1981:37). Thus the rationale of many defense attorneys is that they don't know
anything. They ask not whether the person did the crime but rather what they need
to know to defend the case.
The proscriptions regarding the attorney's direct use of deception are stringent.
In a much publicized case in Colorado in 2002, an assistant district attorney was
helping police negotiate with a murderer to surrender. While talking to a police
negotiator over the telephone, the murderer had already confessed to brutally killing
three women and raping and terrorizing a fourth. He insisted that he would not
surrender until he spoke with a public defender. The assistant district attorney pretended
to be a public defender and assured him that he would not be harmed if he
turned himself in. The attorney did not solicit additional inculpatory information
nor offer legal advice. However, he was brought up on disciplinary charges for violating
the Colorado Bar Association's Rule 8.4, which prohibited attorneys from
engaging in conduct that involved "dishonesty, fraud, deceit or misrepresentation."
On appeal, the Colorado Supreme Court affirmed the suspension (Cross, 2003; see
In re Paulter, 47 P.3d 1175 [Col. 2002]). Was this attorney acting as a moral agent?
Should he have been disciplined?
Those who defended the action of this lawyer argued that he was trying to save
lives because the murderer might not have surrendered and would have murdered
again. It was important to his supporters that he did not acquire any inculpatory
evidence; the sole motivation for his deception seemed to be public safety. Those
who agreed with the finding that he deserved discipline pointed out that he had
other options open to him; that is, he could have gotten get a real public defender
to talk him into surrendering. According to this argument, whenever there are alternative
options to violating a rule, attorneys should take them.
The prosecutor 141
Finally, Rule 3.4 covers actions taken by the attorney in pursuing his or her client's
interests. An attorney cannot "unlawfully obstruct . . . access to evidence or
unlawfully alter, destroy or conceal a document or other material having potential
evidentiary value," nor can an attorney "falsify evidence" or counsel another to
do so. Furthermore, an attorney cannot assert "personal knowledge of facts in
issue" or "state a personal opinion as to the justness of a cause, the credibility of
a witness . . . or the guilt or innocence of an accused." Does this mean that the
attorney cannot, in closing arguments, profess to the jury that the defendant is
innocent if the attorney knows him to be guilty? But then again, how would
the lawyer know for sure? This rule illustrates that, although an attorney must
ethically conduct a zealous advocacy, there is a line to be drawn as to what is
the difference between ethical zeal and over-the-line aggressive lawyering. The
line is difficult to see, to be sure, and there is vigorous debate as to where it is.
Some argue that zealous defense is the only ethical approach; others, as stated
previously, argue that the lawyer should moderate the client's interests with larger
issues of social justice.
Etienne (2003) points out that the federal courts impose a sanction against
clients whose lawyers take the aggressive lawyering approach. In this study, it
was found that the federal sentencing guidelines allow judges to impose longer
sentences on defendants who show no remorse. Increasingly, judges appear to
use longer sentences to punish clients whose lawyers employ "zealous defense"
Zealous advocacy is recast as a question of strategy to be balanced against
other strategic considerations rather than as a requirement of ethical and professional
representation (Etienne, 2003).
It seems, therefore, that what one attorney would see as ethical advocacy, another
sees as inappropriate "strategy" that deserves sanctions. Ironically, though, when
that other person is also a judge, it is the client who is often punished, not the
Most of the discussion thus far has involved defense attorneys or corporate attorneys,
but the same issues apply to prosecutors. Defense attorneys are supposed
to be advocates for the defendant; prosecutors are supposed to be advocates for justice.
Even so, many prosecutors have committed actions that violate the ethical
rules in their zeal to win. They become, in effect, legal advocates, but instead of
pursuing justice, they are merely pursuing convictions. Wishman (1981:52-53)
writes: "Some prosecutors lied out of personal ambition, some out of a zeal to protect
society, but most lied because they had gotten caught up in the competition
142 CHAPTER 8 Whatever happened to Atticus Finch?
Gershman (1991) describes cases in which prosecutors engaged in false promises,
fraud, and threats during plea bargaining. Other studies have found that
prosecutors ignore, suppress, and even conceal exculpatory evidence as well as
misrepresent evidence to the jury (Hessick, 2002). For instance, cases are cited
in which prosecutors misrepresented animal blood as human blood in arguments
to the jury, hid the fact that the victim had a gun to undercut the defendant's
self-defense plea, and concealed evidence that showed that the chief witness (not
the defendant) was the killer (Armstrong & Possley, 2002; Columbia Law School,
Gershman (2003) also writes of prosecutors who willfully misuse forensic evidence
in a number of ways, including suppressing test results that do not match the
theory of the case, using the testimony of forensic experts who are incompetent or
biased, rejecting expert reports that are exculpatory, and overstating the findings of
forensic experts in summary argument. Obviously, prosecutors who engage in such
behavior are not moral agents, nor are they legal advocates-they are violating the
law. Unfortunately, sanctions for such behavior are rare (Armstrong & Possley,
There is a growing perception that prosecutorial misconduct has gotten out
of hand, and there has even been a legislative proposal to create an agency that
would investigate allegations of such misconduct (Hessick, 2002). Because that
task is already supposed to be done by the Department of Justice, the creation
of a special agency is unlikely to happen, but it does indicate that some believe
that legal advocate prosecutors have forgotten that their client is the public at
large-and the public's interests are not served by securing convictions at all
Learn More on the Internet
Go to www.abanow.org and search on the term legal ethics for more information.
CONCLUSION: RECONCILING THE LEGAL ADVOCATE
AND MORAL AGENT VIEWS
There are literally volumes of the literature on the ethics of attorneys and, especially,
whether they should be pure legal advocates for their clients or whether they
should abide by and enforce some external moral principles. The dilemma has no
easy answer. This may be why the ABA Model Rules have not provided one.
Should murderers have attorneys who use "aggressive lawyering" to obtain a dismissal?
Should corporations have attorneys that help them thwart judgments that
are just and moral? Should attorneys engage in practices that they would not do
for themselves but are insisted on by their clients? In the end, attorneys and their
clients must decide for themselves what they feel is the right thing to do. A strong
personal ethical or moral code can help everyone make those decisions for
American Bar Association, (2002). Model rules of professional conduct. Retrieved from
Armstrong, K., & Possley, M. (1999). "Break Rules, be Promoted" series: Trial and Error,
how prosecutors sacrifice just to win. Five in a five-part series. Chicago Tribune, 1.
Barker, J., & Cosentino, M. (2003). Who's in charge here? The ethics 2000 approach to
resolving lawyer-client conflicts. Georgetown Journal of Legal Ethics, 16, 505-520.
Blakleyn, A. (2003). To squeal or not to squeal: Ethical obligations of officers of the court in
possession of information of public interest. Cumberland Law Review, 34, 65-93.
Braswell, M., Fletcher, T., & Miller, L. S. (2006). Human Relations and Corrections (5th
ed). Long Grove, IL: Waveland Press, Inc., All rights reserved.
Cohen, E. (1991). Pure legal advocates and moral agents: Two concepts of a lawyer in an
adversary system. In M. Braswell, B. McCarthy, & B. McCarthy (Eds.), Justice, Crime
and Ethics (4th ed., pp. 125-157). Cincinnati: Anderson.
Cohen, E. (2002). Pure legal advocates and moral agents revisited: A reply to memory and
rose. Criminal Justice Ethics, 21(1), 39-55.
Condlin, R. (2003). What's love got to do with it? It's not like they're your friends for
christ's sake: The complicated relationship between lawyer and client. University of
Nebraska Law Review, 82, 211-311.
Cross, R. (2003). Ethical deception by prosecutors. Fordham University Law Journal, 31,
Dinnerstein, R., Ellman, S., Gunning, I., & Shalleck, A. (2004). Connection, capacity and
morality in lawyer-client relationships. Clinical Law Review, 10, 755-805.
Etienne, M. (2003). Remorse, responsibility, and regulating advocacy: Making defendants
pay for the sins of their lawyers. New York University Law Review, 78, 2103-2174.
Freedman, M. (2002). How lawyers act in the interests of justice. Fordham Law Review,
Gershman, B. (1991). Why prosecutors misbehave. Criminal Law Bulletin, 22(2),
Gershman, B. (2003). The use and misuse of forensic evidence. Oklahoma City University
Law Review, 28, 17-41.
Granfield, R., & Koenig, T. (2003). It's hard to be a human being and a lawyer: Young
attorneys and the confrontation with ethical ambiguity in legal practice. West Virginia
Law Review, 105, 495-524.
Hessick, C. (2002). Prosecutorial subornation of perjury: is the fair justice agency the solution
we have been looking for? South Dakota Law Review, 47, 255-280.
Markovits, D. (2003). Legal ethics from the lawyer's point of view. Yale Journal of Law and
the Humanities, 15, 209-245.
Martyn, S. (2003). In defense of client-lawyer confidentiality. University of Nebraska Law
Review, 81, 1320-1350.
144 CHAPTER 8 Whatever happened to Atticus Finch?
Mather, L. (2003). Ethics symposium: What do clients want? What do lawyers do? Emory
Law Journal, 52, 1065-1088.
Medwed, D. (2004). The zeal deal: Prosecutorial resistance to post-conviction claims of
innocence. Boston University Law Review, 84, 125-183.
Memory, J., & Rose, C. (2002). The attorney as moral agent: A critique of cohen. Criminal
Justice Ethics, 21(1), 28-39.
Pellicotti, J. (1990). Ethics and the criminal defense: A client's desire to testify untruthfully.
In F. Schmalleger (Ed.), Ethics and criminal justice (pp. 67-78). Bristol, IN: Wyndam
Pollock, J. (2004). Ethics in crime and justice: Dilemmas and decisions. Belmont, CA:
Powell, B. (2003). Integrity in the practice of law: the limits of integrity or why cabinets
have locks. Fordham Law Review, 72, 311-332.
Rhode, D., & Paton, P. (2002). Lawyers, ethics and enron. Stanford Journal of Law, Business
and Finance, 9.
Scheingold, S. (1984). The politics of law and order. New York: Longman.
Simon, W. (1993). The ethics of criminal defense. Michigan Law Review, 91, 1703-1743.
Simon, W. (1998). The practice of justice: A theory of lawyer's ethics. Cambridge, MA:
Harvard University Press.
Smith, A. (2003). Promoting justice through inter-disciplinary teaching, practice and scholarship:
The difference in criminal defense and the difference it makes. Washington University
Journal of Law and Policy, 11, 83-140.
Vogelstein, R. (2003). Confidentiality vs. care: Re-evaluating the duty to self, client, and
others. Georgetown Law Journal, 92, 153-171.
Wishman, S. (1981). Confessions of a criminal lawyer. New York: Penguin Books.
1. Describe the moral agent and legal advocate roles of attorneys. Give
examples of how these two groups might make different decisions in
criminal or civil cases.
2. What is the source for the definition of right or wrong behavior for
3. Explain the difference between the ethical obligations of a defense attorney
and the ethical obligations of a prosecutor. Explain how these different roles
may affect their responsibilities in a criminal trial.
4. What is attorney/client privilege? What justifications are used for its
5. What are the criteria used to decide whether to engage in a "moral dialogue"
with a client?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Case Study 8-1 Child Rapist
You are an assistant district attorney in a small circuit court region. The region consists of
three counties, with an average population of 80,000 people per county. The community
you serve is primarily composed of middle-class people with middle-class values. Having
come from a large city, you were particularly impressed with the small-town atmosphere
and easy way of life.
The district attorney general hired you straight out of law school 2 years ago. You felt
that a job with the DA's office would be an excellent opportunity to gain needed experience
and develop a reputation as a good lawyer. Your ambition is to enter the political arena and
perhaps run for state representative in a couple of years. You have stressed a "law and
order" image to accomplish your career ambitions.
As you prepare to look over the court docket for tomorrow's cases, your secretary advises
you that Sheriff's Investigator John Wainwright is waiting to see you. "John, come in," you
greet him. "I was going to call you about our burglary case tomorrow. You didn't have to
come over here in person today."
"Thanks, XXXXX XXXXX I need to talk with you about another matter. You know, we arrested a
young man by the name of Fred Granger a couple of days ago for rape, and I wanted to fill
you in on some details," the investigator begins.
"Yes, I was at the arraignment, remember?" you jokingly respond. Fred Granger is a
22-year-old white male who works in a nearby factory. He has a high school education
and no prior felony arrests or convictions, but he does have a previous conviction for driving
under the influence (DUI) 2 years ago and one for possession of marijuana 3 years ago. He
has been charged with the rape of a 13-year-old girl under state code 37-1-2702:
Any adult who carnally knows a child under the age of fourteen by sexual intercourse
shall be guilty of the capital offense of rape. The punishment for same shall be not
less than ten years nor more than thirty years in the state penitentiary without parole.
It shall be no defense that the child consented to the act or that the defendant was
ignorant of the age of the child.
The punishment for this offense is no different than for the crime of forcible rape in your
state. Fred Granger was arrested on a complaint from the parents of a 13-year-old girl
named Debbie. It seems Fred picked Debbie up for a date, took her out to the lake, and
had sexual intercourse with her. It was a clear violation of the law and an apparently easy
conviction since Fred admitted to arresting officers that he had sex with Debbie.
"So, what information do you have for me, John?" you ask.
"We've obtained statements from everyone involved. This is basically what went down:
Fred knew Debbie's sister, Nina, who is 20 years old. Fred and Nina had gone out on a couple
of dates in the past and have had intercourse. It seems Nina and her younger sister, Debbie,
have the reputation of being "easy." Anyway, Fred called Nina for a date and Nina wasn't at
home. Debbie answered the phone and started flirting with Fred. Fred asked Debbie if she
wanted to go with him to the lake and Debbie agreed. Debbie apparently wore a very revealing
bathing suit and ‘came on' to Fred. They had intercourse and Fred dropped Debbie back
home. Debbie's parents inquired about her activities for the day and Debbie told them everything,
even about the sex. That's when we got the call. Fred states that he thought Debbie was
over 18 and that Debbie consented to having sex with him. Debbie supports this story. Both of
them were drinking beer at the lake," the investigator continued.
"Yes, well, I see. But it's no defense for Fred to be ignorant of her actual age and no
defense for him that Debbie consented. He probably got her drunk anyway. The law is clear
on this matter," you advise.
146 CHAPTER 8 Whatever happened to Atticus Finch?
Case Study 8-1 Child Rapist-Cont'd
"Yes, I know. But this Debbie has a reputation of being very promiscuous. She is very
open about the fact that she consented. She now says she's in love with Fred. Needless
to say, her parents aren't very happy about her attitude, but they seem to have very little
control over her or her sister. In addition, anyone can look at Debbie and make a mistake
about her age." The investigator pulls out and shows you a recent photograph of Debbie.
The photograph surprises you. You had not previously seen the victim but from the photography
Debbie looks well over 20 years old.
"Hey, she does look 20," you respond. "She certainly would have fooled me."
"Yeah. Anyone could have made that mistake," the investigator replies.
Looking over the statements that the investigator brought, you begin to feel uneasy
about the case. In the legal sense, Fred is a criminal. He violated the state law. He has
no legal defense. The girl is under 14, which means she cannot testify that she consented.
The fact that she has had intercourse before cannot be used as a defense for Fred. It seems
to be an open-and-shut case. Fred is looking at 10-30 years with no chance of parole. Even
if he got the minimum 10 years, it is still a stiff punishment for ignorance. You decide to
call on the district attorney general for advice.
"Yes, Bill," the DA says after you explain the situation. I see why you are concerned. It
seems to me you have three options here. One, you could nolle prosequi the case (a formal
entry on the record by the prosecuting attorney that he will not prosecute the case further).
Two, you could reduce charges through a plea bargain agreement. Or, three, you could
prosecute to the fullest extent of the law. It's basically a choice between legal ethics and
personal ethics. Legal ethics would dictate that you prosecute to the fullest. A crime by
statutes has been committed and you are sworn to uphold the law. In that sense, it would
not be legally ethical for you to nolle prosequi or plea bargain when you have such a
strong case. And, if you did, it might affect your political career. The news media and
the public would not take your letting a ‘child rapist' off without comment. However, your
personal ethics dictate that this Fred fellow is not a typical criminal. He's guilty of stupidity,
maybe. But apparently when you look at Debbie, you can see why. If you prosecuted the
case, the jury might see Debbie the way Fred saw her and acquit him. But that is a big
chance to take. Juries are unpredictable and you can't bring up the fact that she ‘looks'
of age. I don't know, Bill. It's your decision. I'll back you on whatever you decide."
1. Examine this case in terms of the moral agent and the legal agent. Compare and contrast
the two in terms of the decision that the prosecuting attorney must make.
2. Develop a position in regard to what you would do if you were the prosecuting attorney.
Explain your reasoning. What do you think would be the most likely outcome of this
Reprinted by permission of Waveland Press, Inc., from Braswell, Fletcher, and Miller (2006). All rights reserved
THIS IS THE END OF CHAPTER 8
Prosecutor misconduct 9
abuse of power
denial of due process
neglect of duties
By and large the United States can be proud of the ethics of its prosecutors. The
complaints against them are relatively rare. Yet when a prosecutor does behave
unethically, it often becomes a major scandal, drawing media attention and discrediting
the entire U.S. criminal justice system. A few select cases from the past help
illustrate where and how ethical problems do intrude on the generally honorable
reputation of U.S. prosecutors.
Recent events in the United States have brought some prosecutorial failings to
light, notably the 2006 Duke Lacrosse Case and the Firing of Federal Prosecutors
Case, that is, the 2007 firing of federal prosecutors by the Bush administration.
Earlier cases also are noteworthy: The Thin Blue Line Case and the Labor Secretary
Donovan Case, which involved the repeated prosecutions of former Labor
Secretary Raymond J. Donovan. There are also many thousands of exemplary
cases of prosecutors behaving ethically, even at some risk to their own careers.
One famous example of ethical behavior is described in the Boomerang! Case,
named after a 1947 film by that name. From these tangible examples, we can
identify and discuss in some depth both the ethical obligations of our prosecutors
and their occasional ethical failings and the likely causes of these failings.
148 CHAPTER 9 Prosecutor misconduct
THE 2006 DUKE LACROSSE CASE
In 2006 an elected prosecutor in North Carolina, Michael B. Nifong, brought a case
before a county grand jury and charged three Duke University students from the
lacrosse team with felonies, based on a rape allegation brought by a young
African-American woman, Crystal Magnum, who was hired as an exotic dancer
for a party. Responding to media attention to the case and aware that he was facing
reelection later in the year, the prosecutor made multiple media presentations condemning
the suspects and alleging he had evidence that was subsequently shown
never to have existed. In the months that followed, the original rape allegations
were dropped. Then the case was transferred from county to state jurisdiction
and, eventually, in April 2007, the attorney general of North Carolina, XXXXX XXXXX,
dropped all the charges. The original prosecutor was criticized extensively in the
media, and an ethics investigation was initiated against him. The controversy did
not end with the dismissal of the case (Wilson & Barstow, 2007).
In the Duke Lacrosse Case, the prosecutor Nifong found himself under a North
Carolina State Bar ethics investigation. The Bar complaint referred to participating
in "prejudicial" actions and "conduct involving dishonesty, fraud, deceit, or misrepresentation"
(Associated Press, 2007). Charges against him appearing in the
press included assertions that he pursued the case for personal gain, using his office
to promote his personal aim of reelection, and thus harboring and advancing excessive
ambition (Setrakian & Francescani, 2007). Others were critical of him for
showing a class bias against the Duke University students, whom some described
as being children of privilege, an expression of class discrimination. Issues of race
also were involved, since the suspects were Euro-American and the complainant
was African-American. Several highly vocal leaders in the minority community
and some Duke University faculty were publicly sympathetic to the alleged victim,
and the prosecutor needed their support in the upcoming election. The abuse of
power also was alleged; defenders of the students were critical of what they saw
as unjustified arrests and prosecutions. The prosecutor also was accused of hiding
key facts about DNA evidence that would have helped exonerate the students,
an expression of deceitfulness. This was clearly counter to the ABA Standard
3-3.11 on full disclosure of "information which tends to negate the guilt of the
accused" (Cassidy, 2005:164) and established case law about suppression of
BOX 9.1 EXTRACT FROM AMERICAN BAR ASSOCIATION
A prosecutor should not intentionally fail to make timely disclosure to the defense
. . . the existence of all evidence or information which tends to negate the guilt of
the accused . . .
A prosecutor should not intentionally avoid pursuit of evidence because . . . it will
damage the prosecution's case . . .
The 2007 firing of federal prosecutors 149
evidence (Brady v. Maryland, 1963). In June 2007, Nifong resigned from office
and was disbarred by the state (Wilson, 2007).
The denial of due process also was asserted in the Duke Lacrosse Case. In failing
to disclose the information he had that would have helped clear the lacrosse
players, Nifong behaved counter to the standards for pretrial due process established
long before, in Mooney v. Holohan (1935), which ruled that nondisclosure
of key facts to the defense is a violation of due process. Speaking before the media,
Nifong used inflammatory statements about the accused students and thus was in
violation of ABA Rule 3.6, which states that a lawyer will not disseminate information
to the public on a case that could have "substantial likelihood of materially
prejudicing a proceeding" (Cassidy, 2005:117). His next major due-process failure
was in continuing the prosecution when the evidence to support it evaporated. This
prosecutor also was criticized for neglect of duties when it was revealed that he
had not reviewed key evidence in person and never had interviewed the complaining
witness, opening him to a potential complaint of nonfeasance in office.
THE 2007 FIRING OF FEDERAL PROSECUTORS
In 2007 Attorney General of the United States Alberto Gonzales came under considerable
criticism for dismissing seven federal prosecutors. Gonzales initially
explained their dismissal as based on unspecified "performance" matters, implying
that their work was subpar. Later, though, revelations showed that the firings were
political; the Bush administration sought to appoint in their place prosecutors perceived
as being more loyal. Federal prosecutors are political appointees of the
President, and dismissing them for political purposes is a normal practice. However,
Bush critics raised the suspicion that the dismissed attorneys were singled
out to punish them for investigating Republican office holders and not investigating
Democrat office holders. Counter-charges that the dismissed prosecutors were
lax in pursuing immigration cases or other Bush administration priorities were
argued. Whatever the truth of the charges and counter-charges, the case raised several
important points bearing on ethical issues.
Federal prosecutors are political appointees and do serve at the pleasure of the
President. However, once appointed and confirmed, they swear an oath that makes
it clear that their first obligation is to the Constitution and to its requirements of
due process of law. Their loyalty to the administration appointing them comes second.
Attorney General Alberto Gonzales's prepared remarks before the Senate
Judiciary Oversight Committee, when under suspicion of violating that principle,
were in total agreement on the ethical principal involved (Gonzales, 2007):
U.S. Attorneys serve at the pleasure of the President. There is nothing improper
in making a change for poor management, policy differences, or questionable
judgment, or simply to have another qualified individual serve. I think we agree
150 CHAPTER 9 Prosecutor misconduct
I think we also agree on what would be improper. It would be improper to
remove a U. S. Attorney to interfere with or influence a particular prosecution
for partisan political gain.
I did not do that. I would never do that.
Nor do I believe that anyone else in the Department advocated the removal of a
U. S. Attorney for such a purpose.
THE 1987 TRIAL OF LABOR SECRETARY DONOVAN
Raymond J. Donovan was the U.S. Secretary of Labor in the administration of
President Ronald Reagan from 1981 to 1985. A Bronx County, New York, prosecutor
indicted Donovan on several complaints having to do with construction contracts
Donovan had negotiated prior to his appointment as labor secretary. In May
1987, Donovan, a Republican, and all other defendants were acquitted of all
charges. Donovan addressed the press, asking rhetorically, "Which office do I go
to to get my reputation back?" Both during the trial and soon after the jury made
its decision, the prosecutor, Mario Marola, a Democrat, was criticized. Allegations
were made that he pursued the case for purely political reasons. His defenders
argued that he was politically independent and disputed the complaints of bias that
originated with Donovan's defense attorneys as part of their defense strategy
(Raab, 1987). The same charges also had been investigated by the FBI and a special
federal prosecutor appointed in December 1981, but the charges were not substantiated
in their initial investigations (Time, 1982). Soon after the acquittals,
another Bronx prosecutor initiated an investigation into jury tampering in the case.
Once again, the federal investigation did not substantiate the complaint, and the
federal prosecutor in New York, Rudolph "Rudy" Giuliani, did not pursue the case.
He was, however, criticized for not doing so (The New York Times, 1988). The
back-and-forth claims of political motivation in the decisions to prosecute or not
prosecute make the tragedy of Raymond Donovan a strong example of the problems
of bringing charges against political figures. Donovan has the dubious claim
to fame that he was the only federal cabinet secretary indicted while in office. His
ultimate acquittal cannot erase that fact or undo the damage done to his reputation
and political career. Were the indictments against him "purely political," or did
they have legal merit? It is a question still much debated among scholars of that
case and that time period.
THE THIN BLUE LINE CASE
The award-winning documentary film, The Thin Blue Line, told the story of the
killing of a police officer and the subsequent arrest, trial, and conviction of Randall
Dale Adams for the murder. The case was based largely on the testimony of David
Ethical problems revealed in prosecutorial misconduct 151
Ray Harris, a likely accessory to the crime and possibly the actual shooter. At least
that is the implicit message of the Errol Morris film. The prosecutor in the case
agreed to a deal with David Ray Harris, a juvenile at the time of the 1976 crime,
in which Harris agreed to testify against Adams (Lankford, 2001). Certainly turning
one suspect against another is a time-tested method of securing a conviction,
but the possibility that the actual murderer might be set free by one suspect's perjured
testimony against another is a frightening prospect. The film retells the crime
from several perspectives and is a useful vehicle for illustrating the concept of
"reasonable doubt." A truly open-minded viewer would be severely challenged
to decide which of the two unsavory men really was the killer of police officer
XXXXX XXXXX. That is precisely the point that makes the case especially important
as an example of questionable prosecutorial ethics. Shouldn't the prosecutor in the
case have been equally open-minded and willing to consider both options-that
Harris did the shooting and then pinned the crime on Adams, and that Adams committed
the crime alone, as Harris claimed? Washington Post film critic Desson
Howe took from the film a vision of "shady backroom deals, unreliable testimony
and courtroom players" (Howe, 1988).
ETHICAL PROBLEMS REVEALED IN PROSECUTORIAL
There are seven recurring ethical problems facing all those who take on responsibilities
in the name of justice. These seven issues are easily recognized ethical
failures on the part of a wide variety of public servants, not just prosecutors (see
There are prohibitions, both in law and in ethical guidelines of criminal justice professions,
against using one's public service position or office for personal enrichment,
profit, pleasure, or benefits not specifically authorized by law, the work
contract, or the rules. Included in this category are the rules against:
BOX 9.2 SEVEN RECURRING ETHICAL PROBLEMS
IN CRIMINAL JUSTICE
1. Wrongful pursuit of personal gain
2. Favoritism and bias
3. Abuse of power
4. Flawed personal life
6. Denial of due process
7. Neglect of duties
152 CHAPTER 9 Prosecutor misconduct
Favoritism and bias
It is unethical to use one's office to aid people we like and (in the negation) to
interfere with those we dislike. These biases often arise from divided and mixed
loyalties, holding one's obligation to the public interest below that of oneself (egoism),
family (paternalism, nepotism), friends, personal associates, coworkers and
peers (peer bias), one's political party and programs (patronage, ideological bias),
or church and spiritual faith (theological bias). Included in this category are rules
The abuse of power
When public officials use their offices to place their values, desires, needs, or preferences
above those of the public they serve and over the rules and laws they must
uphold, they abuse their power. These actions need not involve personal material
gain. These violations include such activities as:
The flawed personal life
These are the prohibitions against personal activities outside the workplace that
serve to bring discredit to the public servant and the servant's agency or profession.
These include private violations of the criminal law and moral violations that are
not necessarily illegal but are generally frowned on by the public; they include:
Ethical problems revealed in prosecutorial misconduct 153
These are violations that run counter to the expectation that our public officials
will be honest and forthright with the public on matters involving their work. These
include the rules against:
The denial of due process
These are the rules for procedural correctness in dealing with all administrative
matters, both within the justice system and in all public service bureaucratic activities.
Public servants are required to follow the policies set out for them, not invent
personal solutions to the situations they encounter. Citizens have the right to expect
that their cases will be dealt with fairly and in accordance with the rules for such
cases. Failures include:
Neglect of duties
All public service occupations and positions have associated duties and obligations
that must be fulfilled. A public figure who does not fulfill these duties is violating a
specific social contract, counter to the deontological mandate that one do one's
duty, and sometimes is violating laws against:
BOX 9.3 NEGLECT OF ONE'S DUTIES
Both the law and ethical standards obligate public office holders to be faithful to their lawful
duties. Three common failures are:
inadvertent (willful nonfeasance is typically considered malfeasance).
mistakes, not following procedures correctly, or other unintential blunders.
to achieve an end that is circumstantially illegal, harmful, and/or unjustified.
It is common that actual ethical failures have in practice overlapped two or more of
these categories. In the Duke Lacrosse Case, Nifong has been criticized for six of the
seven common failings, omitting only the standard against leading a flawed personal life.
Moreover, the cases also reveal ethical failings that are unique to the role of the prosecutor
154 CHAPTER 9 Prosecutor misconduct
UNIQUE PROSECUTORIAL FAILINGS
A number of recurring ethical failings are distinctly associated with the mission
and duties of the office of public prosecutor. Some of these ethical violations are
associated with the code of ethics prosecutors share with all other attorneys. If
defense attorneys and prosecutors do have the same ethical obligations, what
explains the differences in their ethical obligations?
Prosecutors are attorneys first, and as such they are obligated to conform to
the ethical codes of the legal profession. Both prosecutors and defense attorneys
are "moral agents" in the theory of the law, according to Elliot Cohen
(1991:123-161): they supposedly are just, truthful, morally courageous, morally
respectable, benevolent, trustworthy, and morally autonomous. Because of their
special status, however, prosecutors have additional and somewhat different
A defense attorney has ethical obligations that include:
A public prosecutor may be said to have responsibility to a client also, but that
client is the public at large, which includes even the person under suspicion or
indictment. There is no duty to maintain client confidentiality. Indeed, the prosecutor
has a legal obligation to aid in the discovery process. The counterpart to zealousness
of defense could be zealousness in prosecution, but that is not necessarily a
virtue for the prosecutor. Instead, the prosecutor is charged with the duty to be
zealous in "pursuit of the truth," even if that defeats the prosecution.
Prosecutors must comply with specific rules for their offices, the Rules of Professional
Conduct of their state bar associations, the laws of their states, their state
constitutions, and the Constitution of the United States. The American Bar Association
has prepared model standards for the prosecution function (Cassidy,
2005:150-169), covering many details of their prosecutorial roles.
Both prosecutors and defense attorneys engage in "judge shopping," which some
criticize as unethical conduct. Both often will engage in some degree of coaching
and rehearsing witnesses, another practice criticized by some (and objected to by
most at its extremes). Both also can be faulted for the misuse of expert witnesses
(so-called "hired guns").
Plea bargaining 155
Certain legal processes also are under the control of a prosecutor, including:
Plea bargaining is an essential tool in criminal justice. In a plea bargain, the
accused accepts a reduced punishment or a reduction in the charge in exchange
for agreeing to plead guilty at the arraignment or trial. It speeds up the criminal
prosecution of cases. It is an efficient means to see that the guilty willingly
acknowledge their wrongdoing and accept their punishment. A prosecutor can
make an offer to the defense attorney or the accused directly or can entertain an
offer made by the defense attorney or the accused. In those circumstances in which
there is little or no likelihood of doubt about the commission of a crime and near
certainty about who was responsible, the offer or acceptance of a plea bargain is
legitimate and ethical. But when the prosecutor knows he or she has a weak case
or when there is open doubt about the guilt of the accused, ethical red flags should
be raised. Trading efficiency for a wrongful conviction is not ethical. Often people
held in pretrial detention for lengthy periods of time will accept plea bargains for
"time served" rather than risk an even longer term of incarceration following a
conviction. Again, this practice is efficient and ethical if the person in custody
freely admits guilt, but permitting long delays in bringing a case to trial is either
nonfeasance or malfeasance by a prosecutor and should never be used to coerce
an accused into accepting a plea deal.
Prosecutors have great latitude in exercising discretion. This is too an essential tool
of the criminal justice system. Discretion is necessary for a number of reasons,
among the most important of these being that (1) there are not enough prosecutors
and trial courts to hear every known violation of law, (2) not all violations of the
law are of true significance to warrant prosecution, and (3) often those victimized
by a criminal act are unwilling to support the prosecution of the offender. A prosecutor
has to make a judgment on the quality of the evidence in a case as well as with
regard to the believability and veracity of the witnesses available to testify.
The prosecutor also has a duty to select cases that are worthy of prosecution.
This selective prosecution can be ethical and efficient. Not every violation of the
law or even every law justifies the same degree of attention before the courts.
Some laws can and should be ignored because they have become obsolete as social
156 CHAPTER 9 Prosecutor misconduct
customs have changed. Some cases can be referred to pretrial programs or dealt
with by other means of alternative dispute resolution.
When a case is very weak, a prosecutor has a duty to terminate the prosecution
or nolle prosequi the case. This decision can lead to an actual dismissal of the
charges or to a postponement until better evidence of guilt can be acquired. Both
actions are ethical when based on evidentiary grounds. However, the appellate
courts have questioned the use of nolle prosequi "with leave," in which the prosecutor
uses the action to extend jurisdiction over a case indefinitely, extending the
statute of limitations (Klopfer v. North Carolina, 1967). In Klopfer, the Supreme
Court held that an indefinite prolonging of court jurisdiction over such a case
deprived the accused of his right to the speedy trial to which he was entitled under
the Sixth Amendment.
Discretion is also employed when a prosecutor consolidates or merges charges or
reduces charges from those initially filed. Often the police and magistrates "overcharge"
or "pile on" counts at the time of arrest. The prosecutor has an ethical obligation
to select and present to the grand jury, the preliminary hearing, and the
arraignment only those charges most relevant to the case. Discretion, like plea bargaining,
can be abused. Favoritism can intrude wherein guilty parties with strong
cases against them can avoid trial or serious charges can be replaced with trivial
complaints. Similarly, the denial of plea bargains and the refusal to exercise leniency
in the implementation of discretion can be an expression of bias and prejudice.
USING UNRELIABLE "SNITCHES"
Another area of great concern is the use of "snitches" who have been offered special
consideration by prosecutors (Broder, 2004). This was the essential problem in
the Thin Blue Line Case. In securing the testimony of David Ray Harris, the prosecutor
overlooked his involvement in the crime and his prior criminal offenses
(including motor vehicle theft). In the trial of Labor Secretary Donovan as well,
some of the testimony supposedly linking him to bribes and organized crime figures
came from "snitches" who were under investigation for their own organized
crime connections and activities. To make a case against a suspect, the police
and the prosecutor may have to rely on unsavory potential witnesses, but they have
a moral obligation to avoid suborning perjury and should seek independent confirmation
of evidence derived from suspicious sources. Moreover, when favors or
deals are offered to witnesses, these must be made known to the defense so that
they can question the motivation of the witness before the judge and jury.
POLITICS, THE PUBLIC, AND THE MEDIA
Political, community, and media influences contribute to potential misconduct.
Prosecutors are political figures. In many states, they run for elective office. In
the federal service and other states they are appointed, but even appointees must
Why misconduct persists 157
be politically aware, as the Firing of Federal Prosecutors Case shows. Highly vocal
and influential voices in the community cannot be ignored, and catering to their
wishes, as in the Duke Lacrosse Case, can result in unethical and unjust prosecutorial
actions. The attention of the news media to a case will tempt a prosecutor to
"grandstand" and play to media attention, again as appeared to happen in the Duke
Lacrosse Case. Clearly, politics were involved in the Labor Secretary Donovan
Case, but one can take sides as to which side was more politically motivated.
Donovan's defense team clearly played to the media and were reasonably successful
in creating an image of DA Mario Marola as being politically motivated and
vindictive. Similar opinions have arisen around the efforts of special prosecutor
Kenneth Starr to bring indictments against then President William Jefferson Clinton
(Christian Century, 1998) and more recently about the motivation of prosecutor
Patrick Fitzgerald to pursue his case against I. Lewis "Scooter" Libby in the
2003-2007 CIA Leak Case (York, 2006), leading to Libby's perjury conviction
(XXXXX, XXXXX, and Cook, 2007).
WHY MISCONDUCT PERSISTS
A certain amount of prosecutorial misconduct can be attributed to error, poor investigative
support, unreliable sources and witnesses, and similar weaknesses in the
criminal justice system. Prosecutors are human and they make mistakes. Some of
the ethical lapses attributed to Mike Nifong in the Duke Lacrosse Case may be nothing
more than mistakes. It seems that he wanted to believe in the account of the complaining
witness and was blind to the many flaws in that account.
The main motivation, however, for prosecutors to take a blind eye to such flaws
in the cases brought before them may well be the desire to win. In the U.S. criminal
justice system, the trial is an adversarial process-a contest between a defense attorney
and a prosecutor. The DA has taken a side and with good moral purposes wants
that side to be victorious. "DAs want the perfect case, one that's utterly impossible
to mess up. They want the hundred-percent certifiable DBW, the Dead Bang
Winner," writes Gary Delsohn (2003:137), but they rarely get handed a perfect
investigation or perfect witnesses. So they must work with what is available, and that
is often quite flawed. They must take corrective action to strengthen and win their
cases. But the desire to win can go too far, and prosecutors can lose sight of their real
objective-justice-in the process. Even a truly guilty person brought to trial retains
fundamental rights and should be afforded all the protections of the criminal justice
system, including those under the control of the prosecutor. Both exculpatory and
damning evidence need to be made available to the defense in the process of discovery.
Nifong was justly criticized for holding back the evidence from DNA testing
that lent support to the statements of the Duke lacrosse players.
Bennett Gershman sought answers to "why prosecutors misbehave" and "why
misconduct occurs" and found answers in legal procedures and practices (1991,
2002). He observed that prosecutors perceive themselves as "the good guys of
158 CHAPTER 9 Prosecutor misconduct
BOX 9.4 GERSHMAN'S VIEW OF "WHY PROSECUTORS MISBEHAVE"
1. Prosecutors will inject inadmissible evidence to influence juries and therefore win their
cases, especially if they are presenting weak cases.
2. They know that strong opening statement, even if very inaccurate, will leave a lasting
impression on the jury in their favor.
3. They know that strong closing argument, even if inaccurately representing the case just
presented, will influence the jury.
4. Their "prestige" and "glamour" as official spokespersons for the government and the
people and as "the good guys" in the trial will be employed to influence the jury in their
5. Their unethical conduct works because it helps them win cases.
6. Even when their improprieties in the courtroom are exposed and appealed, the appellate
process often finds their misconduct is protected under the "harmless error rule" of the
7. Typically, prosecutors are not held personally liable for their acts and generally are
immune from civil suits, even when malice can be shown.
the legal system" (1991:167), but they face pressures to achieve objectives beyond
their capacities, producing stress and setting up temptation to take short cuts
around proper due process. Sidestepping proper due process can provide a major
advantage in the trial process, handing the prosecutor an "easy win" in an
otherwise tough environment. Misconduct "works," according to Gershman's terse
commentary (1991:164). Ideally, the prosecutor should not endeavor just to "win
the case" but has a moral obligation to reveal the truth and to achieve justice
(Gershman, 1991:163). The use of tainted, misleading, prejudicial, and totally
inadmissible information as evidence is legally impermissible and clearly unethical,
yet it does occur with unacceptable frequency. For some prosecutors, like
some football coaches, "Winning isn't everything; it's the only thing!"
THE 1947 FILM BOOMERANG! AND TRUE
The exemplary conduct of the prosecutor in the Boomerang! Case, featured in the
1947 film of that name, exemplifies a local prosecutor whose duty to truth leads
him to undermine the very case he brought to the court. Under major political pressure
to identify, arrest, and bring an indictment against the suspect in the murder of
a popular priest, the police, and the prosecutor identified the likely murderer. The
circumstantial evidence and eyewitness testimony draw the metaphorical noose
around the suspect's neck well ahead of the real one that he will face if convicted.
This film tells the real story of a murder case prosecuted in the years immediately
after World War I, although the film is set in the post-World War II era. The actual
events on which the film was based occurred in the 1920s, and the suspected killer
was a World War I veteran rather than a World War II South Pacific hero. Names
and locations were changed, and identifying real people and places in the story
cannot be done easily. Therefore, the story is not a "docudrama" but a piece of
film fiction loosely based on a factual case. More important, though, is that the dramatic
moment-when the DA methodically destroys his own case by challenging
his own witnesses and identifying the flaws in the forensic evidence-is very
closely based on what happened in the actual preliminary hearing. The film
shows that the charges against the accused are dismissed and he goes free. Some
of the film dialog is exactly what was transcribed from that original preliminary
hearing. The DA in the film is drawn from the real-life figure Homer S. Cummings.
Taking his ethical duties seriously, even at the cost of losing a highvisibility
case, Cummings risked his future as a district attorney and as a reform
politician. His heroic reversal of role did not harm his reputation in the long term.
Cummings was to become a highly respected national political figure and went on
to serve as the U.S. Attorney General from 1933 to 1939 under President Franklin
Delano Roosevelt. He was both morally courageous and benevolent, those elements
Elliot Cohen speaks to as requirements for being a moral agent of the law
Learn more on the Internet
For more on ethical issues involving prosecutors, go to www.abanow.org and search on
the term prosecutorial ethics.
The prosecutor shares with other actors in the criminal justice system an obligation
to serve justice first and secure convictions second. The temptation to win at all
costs, play to the media, and advance one's career in the process will often tempt
a prosecutor to succumb to ethical lapses. In common with other actors in the criminal
justice system, prosecutors occasionally violate the seven ethical problem
areas facing all those who take on responsibilities in the name of justice: (1) the
wrongful pursuit of personal gain, (2) favoritism and bias, (3) the abuse of power,
(4) a flawed personal life, (5) deceitfulness, (6) the denial of due process, and (7)
the neglect of duties. These seven areas represent easily recognized ethical failures
on the part of a wide variety of public servants, not just prosecutors.
Additionally, prosecutors have special and unique obligations in fulfillment of
their duties. Their powers of discretion allow them great latitude in deciding what
cases to present to grand juries and submit to trial and which to nolle prosequi or to
dismiss outright. They have the final say as to who will testify for the state and can
enter into deals with witnesses in exchange for their testimony. They can recommend
plea bargains to people under indictment and can accept plea offers from
160 CHAPTER 9 Prosecutor misconduct
their attorneys. In each of these activities, there are opportunities for abuse and ethical
Fortunately, there are relatively few known cases of serious ethical lapses on
the part of our prosecutors. Every day thousands of cases are sent to grand juries,
heard in preliminary hearings, dismissed, nolle prosequi, plea bargained, and sent
to trial without ethical problems. But the exceptions do exist, and these must be
avoided in the pursuit of justice.
Associated Press, (2007). N.C. Bar Files Ethics Charges Against Duke Lacrosse Prosecutor.
Associated Press, December 28, 2007.
Brady v. Maryland, 373 U.S. 83 (1963).
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Grove, IL: Waveland.
Broder, J. M. (2004). Citing thin evidence, judge voids a 1980 murder verdict. The New York
Times, February 3, 2004. Retrieved from www.nytimes.com/2004/02/03/national/
Cassidy, R. M. (2005). Prosecutorial ethics. St. Paul, MN: Thompson-West.
ChristianCentury, (1998).Appalling behavior-Criticismof bothBillClinton andKenneth Starr
for immoral behavior and confusing sexual behavior with political responsibility-Editorial.
Christian Century, October 7, 1998. Retrieved from http://findarticles.com/p/ articles/
Cohen, E. D. (1991). Pure legal advocates and moral agents: Two concepts of a lawyer in an
adversary system. In M. Braswell, B. McCarthy & B. McCarthy (Eds.), Justice, crime
and ethics (4th ed., pp. 125-157). Cincinnati, Ohio: Anderson.
The Columbia Encyclopedia, (2001). Cummings, Homer Stille´. In The Columbia encyclopedia
(6th ed.). Retrieved from http://www.bartleby.com/65/e-/E-Cummings.html.
Delsohn, G. (2003). The prosecutors: A year in the life of a district attorney's office. Boston,
Delsohn, G. (2004). The prosecutors. New York: Penguin.
Fionda, J. (1995). Public prosecutors and discretion: A comparative study. New York:
Oxford University Press.
Gershman, B. L. (1991). Why prosecutors misbehave. Criminal Law Bulletin, 22(2), 131-143.
Gershman, B. L. (2002). Prosecutorial misconduct (2nd ed.). St. Paul, MN: West.
Gonzales, A. R. (2007). Prepared remarks of attorney general Alberto R. Gonzales at the
Senate Judiciary Oversight Hearing. April 19, 2007, Washington, DC. Retrieved from
Heumann, M. (1978). Plea bargaining: The experiences of prosecutors, judges, and defense
attorneys. Chicago: University of Chicago Press.
Howe, D. (1988). The thin blue line, film review. The Washington Post, September 2,
1988. Retrieved from www.washingtonpost.com/wp-srv/style/longterm/movies/videos/
Kestenbaum, L. (2005). Cummings, Homer Stille´ (1870-1956). The Political Graveyard, The
Internet's Most Comprehensive Source of U.S. Political Biography, or The Web Site That
Tells Where the Dead Politicians are Buried. Retrieved from at http://politicalgraveyard.
Klopfer v. North Carolina, 386 U.S. 213 (1967).
Lankford, R. D., Jr., (2001). The thin blue line. Film review for Documentary Films.Net.
Retrieved from www.documentaryfilms.net/Reviews/ThinBlueLine/.
Lawless, J. F. (1999). Prosecutorial misconduct: Law, procedure, forms, 2nd edition with
2002 cumulative supplement. Charlottesville, VA: LexisNexis Matthew Bender.
Lawless, J. F. (2003). Prosecutorial misconduct (3rd ed.). Newark, NJ: LexisNexis Matthew
Liptak, A. (2004). Study suspects thousands of false convictions. The New York Times,
April 19, 2004. Retrieved from www.nytimes.com/2004/04/19/national/19DNA.html?
Mooney v. Holohan, 294 U.S. 103 (1935).
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Raab, S. (1987). Merola defends handling of 2 big cases. The New York Times, May 28, 1987.
Retrieved from http://query.nytimes.com/gst/fullpage.html?res¼9B0DE3D6133DF93-
Setrakian, L., & Francescani, C. (2007). Former Duke Prosecutor Nifong Disbarred. ABC
News, June 16, 2007. Retrieved from http://abcnews.go.com/Video/playerIndex?
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June 17, 2007.
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1. Name the seven common failures of ethics encountered in criminal justice, and
give an example of each type potentially involving misconduct by a prosecutor.
2. Distinguish among nonfeasance, misfeasance, and malfeasance in office,
identifying which requires an intention to do wrong.
3. Explain the term nolle prosequi, and give an example when a prosecutor
should, in an ethical sense, nolle prosequi a criminal case.
162 CHAPTER 9 Prosecutor misconduct
. . .
4. Explain how "the desire to win" can lead a prosecutor to pursue a case that
should be dropped.
5. Plea bargaining is a crucial tool in the efficient conduct of criminal
prosecutions, but it is a tool of the prosecutor that easily can be abused.
Under what ethical circumstances would a plea bargain be in the best
interests of justice?
6. Discuss Bennett Gershman's seven reasons for prosecutors misbehaving and
the circumstances in which such misconduct often will occur.
Case Study 9-1 It's a Rat Race, and the Best Rat Wins
You have been a prosecutor for less than a year. Most of the other prosecutors in the office
are generous with their advice, and you have learned a lot in the year since you graduated
from law school. One of the senior prosecutors-Joey Ralston-is a jokester around the
office but is considered one of its best litigators. He is funny, fearless, and the source of
some outrageous office pranks. For instance, one night he nailed the door shut to another
DA's office so when the poor guy came in the next morning, he unlocked the door and pulled
and pulled on it, without success, much to the amusement of everyone watching. He had to
call maintenance to get the nails removed, which made him late for court, and the judge
threatened him with contempt because his excuse sounded so implausible. Although Joey
denied it, it was fairly common knowledge that he was the culprit.
Joey is equally unpredictable in his trial tactics. Others have told you that Joey will
"push the envelope" to get evidence in or to get a jury to buy into his theory of a case.
One time he reenacted the crime by having the medical examiner witness show how the victim
was decapitated, using the courtroom dummy. The head flew across the room and rolled
right in front of the jury. Needless to say the defense attorney was extremely perturbed by
the demonstration. Another time, Joey offered a confused defendant a "double or nothing"
deal. He asked the defendant if he wanted to gamble: If the verdict came back guilty he'd
get twice the time as what was being offered now. The defendant was seriously contemplating
the wager until his attorney told him that the prosecutor couldn't bet on sentencing.
Today you watched him in trial. He was by turns condescending, intimidating, and sympathetic,
depending on the witness. In the closing he argued passionately that "if the victim's
blood is on his clothing, it is because the defendant put it there," waving a dirty,
torn T-shirt stained with blood, for emphasis. The victim was a homeless man who was
found stabbed to death. The defendant was another homeless man who was found with
the victim's possessions. It looked like a slam-dunk case, especially with the jury gazing
in rapt attention as the bloody T-shirt was waved in front of them. You could see their eyes
going back and forth, following the gruesome display.
Later you talk with Joey back in his office about the case and look through the file. It
appears there is not much direct evidence to link the defendant to the killing. There were
no witnesses and the victim's blood was not found on him. You wonder how that could be.
"If the victim bled so much, you'd think some of it would have ended up on the defendant,"
you muse to yourself as you scan the documents in the file.
"The victim didn't bleed much at all, the doc says. It was a deep puncture in the back
and he bled out into the ground," Joey answers, even though you hadn't directly asked the
"Well, how'd the blood get on the front-" At this point you stop talking because you are
reading a blood analysis report from the crime lab that appeared to say that the blood found
Case Study 9-1 It's a Rat Race, and the Best Rat Wins-Cont'd
on the T-shirt was not the victim's. In fact, it wasn't even human blood. You look up at Joey,
who has an expression of smugness mixed with a little guilt and with a look that says, "So
He explains that the T-shirt was found in the victim's possession but that he wasn't
wearing it when he was found. It appeared likely that the blood was from his dog that had
been hit by a car earlier in the day.
"But you told the jury the blood was the victim's!" You are shocked that Joey would lie
to the jury like that.
"No, I didn't," he explained. "I said that if there was the victim's blood on the T-shirt, it
was because the defendant did it. I didn't say there was the victim's blood there, did I? Hey,
it's a rat race, you know-you gotta do what you need to do to hit the finish line. Don't you
think that the other side does the same sort of stuff?"
You know that Joey has misled the jury and violated the spirit, if not the letter, of the
law. On the other hand, it was not a crucial piece of evidence. The presence or absence
of blood on the T-shirt was not exculpatory or inculpatory evidence. At most, it created an
emotional response in the jury that might have affected their decision making. Still, you
wonder if the judge knew that the T-shirt did not have the defendant's blood on it, since
the evidence brought out in trial simply established that the T-shirt was the defendant's.
You know that the defense attorney is a young kid, fresh out of law school, who is even more
naı¨ve than you. You wonder what, if anything, you should do about Joey's little stunt.
1. Where is the line between "zealous prosecution" and a subversion of the due process
2. Do you think there is an ethical duty to inform the judge of what you know? What about
informing the defense attorney?
3. Do you think that the state bar would sanction Joey for such behavior?
Reprinted by permission of Waveland Press, Inc., from Braswell, Miller, and Pollock (2006). All rights reserved
THIS IS THE END OF CHAPTER 9
Goals, practices, and ethics 10
deterrence paradox of retribution
false positive restoration
truth in sentencing
Sentencing is the decision of what to do with the person convicted of a criminal
offense. Traditionally, our society has responded to criminality by imposing a punishment
on the criminal. Von Hirsch defined criminal punishment as "the infliction
by the state of consequences normally considered unpleasant, on a person in
response to his having been convicted of a crime" (1976:34). For our purposes,
then, criminal punishment is the purposeful infliction of pain on a person as a
result of a criminal conviction.
There is an element of reflex in punishment. When we are harmed by someone
or something, we tend to strike back in reaction. Mackie (1982) traced the origins
of criminal punishments to such reflex responses. Criminal punishment is, at least
partly, a return of harm for harm, or wrong for wrong. Yet there is an old saying
that two wrongs don't make a right. Others, like Garland (1990), argue that punishment,
whatever its origins, is also a product of social structure and cultural values.
Whom we punish, when we punish, and how we punish are determined by the role
of punishment in society. Furthermore, punishment itself affects social values in a
number of important ways. These include defining what is improper behavior,
building a sense of togetherness among the law abiding, and supporting our beliefs
about the nature of humankind and society.
If ethics is the study of morality and what is right or wrong, it is likely that no
aspect of the criminal justice process is more amenable to ethical examination than
sentencing. By committing a crime, the offender has wronged society. By punishing
that offender, society arguably "wrongs" the offender. The purpose of this
chapter is to examine the question: How can punishment be justified? Following
166 CHAPTER 10 Criminal sentencing
that, we will briefly explore three ethical issues that remain, even if punishment
itself is accepted.
Though we do not normally apply the saying about "two wrongs not making a
right" to the question of criminal punishment, it seems apropos. How can we justify
the purposeful infliction of pain, even on those convicted of crimes? What factors
make punishment right and whether we should punish are interrelated
questions. The answers to these questions depend on how we define the word
THE PURPOSE OF CRIMINAL PUNISHMENT
Should we punish? This question is so basic that it is often unasked and unanswered.
Yet when, whom, and how we punish are contingent on why we punish.
We tend to believe that criminals should be punished. The wrong they do by committing
crimes demands a punitive response. We often disagree, however, on why
crime requires punishment. Traditionally, four reasons for punishment have been
advanced: deterrence, incapacitation, treatment, and desert. More recently a fifth
justification has emerged: restoration.
Deterrence supports punishment as an example of what awaits lawbreakers. This
example is expected to convince would-be offenders to avoid criminal behavior.
Deterrence is based on a conception of human beings as rational and guided by a
pleasure principle. That is, humans do things that please them and avoid things that
hurt them. They weigh the likely consequences of their behavior and choose activities
accordingly (Paternoster, 1987).
For a punishment to deter, it must meet two conditions. First, the penalty
must be severe enough that the pain of the punishment exceeds the benefit of the
crime. For example, a $50 fine for theft of $100 would not deter because the
crime results in a "net gain" of $50. Second, the penalty must be imposed. If
the criminal is unlikely to be caught and/or punished, the threat of the penalty is
not likely to be "real." The lower the chance of punishment, the greater the chance
Deterrence works on two levels. General deterrence applies when the offender
is punished so that others will be afraid to commit crimes. The purpose of the punishment
is to deter the general public from crime. Specific deterrence occurs when
the penalty is designed to convince the particular offender not to commit another
crime in the future.
As a justification for punishment, deterrence emphasizes the needs of the collective
over those of the individual. The purpose of punishment is to control future
crime. A deterrence rationale would allow the imposition of a severe penalty for a
minor offense if that penalty would prevent a large enough number of future
The purpose of criminal punishment 167
offenses. For example, a $10,000 fine for a $10 theft could be justified under deterrence
if it would prevent at least 1000 such thefts. Research to date does not indicate
that we are very effective at deterrence (Lippke, 2002; Paternoster, 1987;
Sherman et al., 1997).
Like deterrence, incapacitation is a justification for criminal punishment based on
the promise of reducing future crime. In contrast to deterrence, however, incapacitation
supports penalties that prevent offenders from having the chance to commit
new crimes. Deterrence seeks to convince offenders that crime will not pay; incapacitation
seeks to limit the offender's ability to commit a new crime.
One reason to incarcerate a convicted offender is that, at least while in prison,
that person is not able to harm society by committing more crimes. The primary
problem with incapacitation as a justification for punishment is our inability to predict
accurately who is likely to commit future crimes (Visher, 1987). Research to
date seems to indicate that incapacitative penalties entail a significant increase in
prison population (Greenwood, 1982; Van Dine, Conrad, & Dinitz, 1979). To be
sure that dangerous offenders are "locked up," we must also incarcerate relatively
large numbers of nondangerous offenders (Sherman et al., 1997).
A third justification for punishment is to allow for the treatment or rehabilitation of
criminal offenders. This philosophy assumes that crime is caused by a variety of
factors, such as poverty, discrimination, or individual pathology. Punishments are
designed to change the offender's need or desire to commit crime. Like deterrence
and incapacitation, the ultimate goal of treatment is a reduction in future crime.
Unlike the other two rationales, however, treatment emphasizes the individual
offender (Cullen & Gilbert, 1982).
Studies of the effects of treatment suggest that most currently available programs
are not very effective (Bailey, 1966; Martinson, 1974; Sherman et al.,
1997). Efforts to treat criminal offenders continue, and many programs show
promise of effectiveness with some types of offenders (Gendreau, Little, &
Coggin, 1995; Gendreau & Ross 1987; Van Voorhis, 1987). As with the prediction
problems of incapacitation, treatment attempts are limited by our ability to design
and implement effective programs matched to suitable types of offenders (Latessa,
Another rationale for criminal punishment is desert, also sometimes called retribution.
This justification for punishment is the only one of the four that is backward
looking. Unlike deterrence, incapacitation, or treatment, a desert rationale does not
168 CHAPTER 10 Criminal sentencing
seek to reduce future crime. Rather, desert is based on the idea that the offender
deserves to be punished as a result of committing a crime.
As a justification for punishment, desert places limits on both who may be punished
and the degree to which someone may be punished. Desert requires that
penalties be imposed only on those who have committed a crime. Furthermore, a
desert rationale requires that the punishment be commensurate with (proportional
to) the severity of the crime. In these ways, desert may be considered to emphasize
the interests of the individual offender over those of the collective (i.e., society).
Beginning around the 1970s in the United States some observers came to question
the effects of formal criminal justice processing on both offenders and victims. By
the 1990s, victim's rights had emerged as an important force in criminal justice,
and the idea of restoring victims from the harms of crime was established. John
Braithwaite (1989) published an influential book in which he argued that informal
sanctioning by people close to the offender was more powerful force for offender
reform and victim satisfaction than the formal punishments of the justice process.
In short order, restorative justice emerged.
Michael O'Hear (2005) described the basic model of restorative justice.
It includes face-to-face meetings between the victim and the offender, who develop
a consensus about how to resolve the problem or repair the harm caused by the
criminal offense. This solution typically involves a public acknowledgment of
wrongdoing, some kind of reparations (restitution, community service, etc.), and
perhaps some traditional penal sanctions. Most often, restorative justice replaces
sanctions such as imprisonment. The State of Vermont has operated a reparative
probation program for several years that seeks to accomplish restorative justice
aims, in part through using community representatives in determining punishments
(Karp & Drakulich, 2004).
Restorative justice punishments reflect an attempt to balance the needs and
interests of victims, communities, and offenders. The imposition of pain on the
offender for having broken the law is not a priority. Some evaluations of these
programs show promise for reduced recidivism and increased victim satisfaction,
even with violent offenses (Sherman & Strang, 2007). Still, restorative justice
has not been widely used with serious offenses and offenders and may not be suitable
for the most serious crimes (Karp & Drakulich, 2004).
Restorative justice sentencing raises many issues. Non-law-trained people, who
are not justice system officials, make sentencing decisions. The offender typically
must plead guilty before the reparative sentencing discussions can begin. The
entire process "privatizes" the offense, removing the punitive role and goals of
government. Sentences are based on the unique circumstances of each offense
and offender so that consistency in sentencing, defined as similar sentences for
similar crimes, is lost (O'Hear, 2005). Restorative sentencing represents a revolutionary
shift in the purposes and practices of criminal sentencing.
Utilitarianism versus equity 169
UTILITARIANISM VERSUS EQUITY
These five rationales and their varying emphases on the individual or collective
interests in punishment highlight the ethical dilemma identified by Packer
(1966). The core issue involves the role of social utility in punishment. Utility
means the benefit, or the "good," expected to result from punishment. Those
who support punishment for the good it emphasize a utilitarian rationale. In contrast,
those who support punishment regardless of effects, based on a notion that
crime deserves punishment, emphasize equity or fairness.
In brief, we can say that deterrence, incapacitation, restoration, and treatment
are utilitarian purposes of punishment. Desert is nonutilitarian. Only the desert
principle supports the imposition of punishment regardless of effects. The other
rationales depend on some good resulting from that penalty.
If someone is convicted of a crime, should they be punished? If no one else will
know that the crime went unpunished and the offender will not commit another
crime in the future, there is no reason to punish under a deterrence rationale. No
one will be deterred by the penalty. Similarly, given that the offender will not commit
a new crime, there is no need to incapacitate or treat the offender. Thus, most
utilitarian purposes cannot support the imposition of a penalty in this case. Restoration
supports "punishment" as a means to restore the victim and the community
to their former state-whatever the conditions were before the crime. This restoration
is also expected to be beneficial for the offender and contribute to a positive
change in the offender.
Yet most of us will be uncomfortable with allowing a criminal to escape
punishment-the imposition of an unpleasant or painful consequence for the
law-breaking behavior. At base, most of us support a desert rationale for punishment.
Someone breaking the law has "earned" a punishment. Because those who
do not commit a crime are not rewarded for law-abiding behavior, those who
violate the law should be punished. This seems only fair, or equitable.
Mackie (1982) referred to this as the "paradox of retribution." By this he meant
that it is not possible to explain or develop a desert rationale within a reasonable
system of moral thought, yet it is also not possible to eliminate desert from our
moral thinking. Retribution does not make sense. Desert suggests that wrongful
acts should be punished but offers no reason for punishment. Mackie resolves
the paradox by saying that punishment is essentially a reflex based on emotions.
We react to things and people who hurt us by hurting them in return.
Given this emotional need to harm those who harm us, we will punish criminals
without regard for possible beneficial effects of punishment. As punishment
became institutionalized in society, jurists and philosophers developed more rational
justifications for punishment based on utilitarian notions (Garland, 1990).
These notions may explain particular punishments and the selection of specific
offenders for punishment, but they do not explain why we punish. It is likely that
we punish because punishment seems "right." Just as good deeds should be
rewarded, bad ones should be punished. People should receive rewards and
170 CHAPTER 10 Criminal sentencing
punishments for their good and bad behavior. This conception of reward and punishment
as earned is the core of the concept of equity.
If Mackie's assessment is correct, it means that we will punish criminals routinely,
without regard to the effects of punishment. Nonetheless, we would like
the two wrongs of crime and punishment to make some sort of right-to produce
some good. We are not satisfied with a system of penalties that merely reacts to
behavior. We want to influence the future. Thus, most criminal sentences involve
a mix of equity and utilitarian justifications.
It is these utilitarian purposes of punishment that raise the ethical dilemma of
sentencing as a balance between the needs of the collective and those of the individual.
During the 1970s, retribution or desert experienced a renaissance (Cullen &
Gilbert, 1982). This renaissance defined retribution as a limiting factor in punishment
(Fogel, 1975; Frankel, 1972; Twentieth Century Fund, 1976; von Hirsch,
The resurgence of desert was directed at fairness in criminal punishments
(Kramer, 2009). Proponents of desert-based sentencing were concerned with what
they perceived as unfair disparities in criminal punishments. Under the laws of
most states, it was possible for offenders convicted of the same offense to received
widely different penalties. One person convicted of burglary might be placed in
prison, while another might receive probation. Reliance on a desert rationale would
narrow this range of penalties, ensuring that similar offenders convicted of similar
crimes would experience similar penalties.
Desert would lead to more equitable punishment. Supporters of desert believed
that it was unjust to punish similar people differently, since each had "earned" the
same penalty. It was also wrong to impose a very harsh penalty on someone in
order to deter others or to prevent a possible future offense by the person. Desert
required that the offender be guilty of the offense for which punishment was
imposed and that the offense, not the offender, was the subject of punishment.
Restorative sentences raise problems of equity because the outcome of sentencing
is the product of a negotiation between the offender and the victim. Furthermore,
the outcome is often a group product involving the input of several
community representatives. The point of restorative justice is to individualize
and "personalize" punishments to achieve both reparation for harm and offender
empathy for the victim.
At the level of fairness to the individual offender, general deterrence and collective
incapacitation (Visher, 1987)-by which everyone convicted of the same
offense receives the same sentence in hopes of reducing general levels of future
crime-are less troublesome than individual predictions. If everyone convicted
of an offense receives a similar punishment, whether for incapacitative or general
deterrent purposes, individual fairness in terms of equivalent penalties is achieved.
If these penalties are excessive in comparison to the seriousness of crime (all burglars
receive a term of life imprisonment, for example) although the sentences are
equal, they are not equitable. The harm of the punishment exceeds the harm of the
The practice of punishment 171
Equity in terms of retribution is both an explanation of punishment and a limit
on punishment. We will punish criminals because they have earned a penalty.
We can punish only guilty criminals and only in proportion to the seriousness
of their crime. Von Hirsch and Hanrahan (1979) proposed a "modified just
deserts" sentencing rationale that includes theses two dimensions of equity. They
argued that desert justifies the imposition of a penalty and sets the outer limits of
the punishment. Within these limits, however, utilitarian considerations could be
used to allow different penalties to be imposed on offenders convicted of the
same offense. Thus, burglary may deserve imprisonment of between 1 and 3
years. The sentencing judge would be able to impose a 3-year term for
incapacitation or treatment or deterrence but would not be allowed to impose
more than the upper limit. So, too, the judge could impose a 1-year term for
the burglary but not a term less than 1 year, because burglary deserves at least
that level of punishment.
THE PRACTICE OF PUNISHMENT
Punishment is established firmly in our culture and our history. It seems safe to say
that we will continue to punish criminals in the future, just as we have punished
them in the past. The core dilemma in punishment is trying to achieve a balance
between considerations of equity, which are at the base of punishment, and desires
for utility that can be realized through punishment. Over time and across different
types of offenders and offenses, this balance shifts. At any time, the practice of
punishment reflects the current balance between concern for the interests of the
individual, as expressed in terms of equity, and concerns for the needs of society,
expressed in terms of utility. The ethical question remains constant, however. That
question is: Under what circumstances is the state justified in applying how much
punishment to individuals?
Is there ever a time when it would be all right to impose the death penalty on
someone convicted of theft? Should prison crowding (and the expense of prisons)
justify reducing the prison term of a violent offender? As these questions illustrate,
sentencing involves the fundamental issue of individual interests versus societal
needs. The ethical problem exists in our attempts to determine the "right" balance
of the two.
The power to punish primarily rests with the legislature. The legislature defines
crimes and punishments. Most often criminal laws grant some authority over punishment
to both judges and the executive branch. The "sentencing structure" of a
jurisdiction defines the distribution of punishment authority. There are two basic
structures: indeterminate sentencing and determinate sentencing. In each the legislature
defines the absolute limits of punishment (maximum and minimum penalties).
In indeterminate systems, some power is left to a paroling authority so that
when a prison term is imposed, the exact length of the sentence is unknown. The
judge might order a prison term of 5-10 years. The actual length of term remains
172 CHAPTER 10 Criminal sentencing
unknown until the parole authority orders release. In determinate systems, the sentencing
judge imposes an exact penalty-say, imprisonment for 6 years.
Although sentencing is much more complex in practice, determinate sentences
are best for retribution, general deterrence, and collective incapacitation. Indeterminate
sentences are best for rehabilitation, specific deterrence, and individual
incapacitation. That is, determinate sentences tend to support punishments aimed
at social utility, whereas indeterminate punishments are better suited to individual
In the past three to four decades in the United States, sentencing structures have
moved toward more determinate punishments (Koons-Witt, 2009). This reform
sought to reduce variation in punishment applied to similar crimes and offenders.
It also supported what has been called the penal harm movement (Clear, 1994).
The sentencing reform embraces the increased use of incarceration and more
restrictive and punitive community supervision practices. Specific sentencing laws
proliferated, including mandatory minimum sentences and enhanced penalties for
repeat offenders (e.g., "three strikes" laws). The balance between social needs
and individual interests shifts over time and results in sentencing changes.
The restorative justice model emerged partly as a reaction to increased punishment
severity. Widespread reliance on incarceration as the primary punishment for
crime clearly hurts offenders. Incarceration also hurts communities by increasing
costs for the handling of criminal offenders and by removing community members.
To make matters worse, incarceration of offenders rarely completely satisfies victims
and often prevents offenders from being able to pay restitution or otherwise
CONTEMPORARY ETHICAL CONCERNS IN SENTENCING
Beyond the questions of whether and how we should punish (purposes), there are
several important ethical considerations in contemporary sentencing. Even if our
current system of criminal punishment achieves an acceptable balance between
concern for individual interests and social needs, it still contains some ethical
dilemmas. Among the most important considerations are those dealing with honesty
in the sentencing of criminals, the role of prediction in the allocation of
criminal penalties, and the problem of discriminatory punishment.
Honesty in punishment
People released from state prisons in 2006 served less than 50 percent of the prison
terms imposed by the judge (Bureau of Justice Statistics, 2010). Of those receiving
their first release from state prison on a violent offense conviction in 2006, the
average offender had served less than two-thirds of the original prison term. Ten
years earlier, violent offenders were serving less than half of their terms in prison.
The sentences announced in court are often quite different from the penalties
Contemporary ethical concerns in sentencing 173
served by convicted offenders. There is growing pressure for criminal justice officials
to be more honest about sentencing practices. Federal legislation includes
incentives to promote "truth in sentencing." A goal of the "truth in sentencing"
movement is to ensure that violent offenders serve at least 85 percent of the prison
terms they receive from the court.
Several current practices lead to the mistruths in sentencing. Most states award
or allow inmates to earn "good time." Good time is a reduction in the length of
sentence given for good behavior in the institution. It is common for such reductions
to be in the one-third to one-half range so that a sentence of nine years, if
all good time is applied, becomes a term of four and one-half to six years. Discretionary
release on parole also affects time served. An inmate sentenced to 10 years
might be paroled after serving only three. Even most offenders who receive life
sentences are expected to be released at some point (Beck & Greenfeld, 1995:2).
Critics of this "dishonesty" in sentencing contend that current practices are
wrong. Early release of offenders undermines the deterrent effect of the law and
fails to provide adequate protection to the public (incapacitation). In addition to
these negative effects on potential utilitarian benefits of punishment, critics also
make the point that it is wrong to mislead the public. When citizens learn that
offenders are not being punished as they had expected, critics contend, they lose
respect for the law and question the integrity of the criminal justice system.
The question of honesty in sentencing is complicated. Assuming that truth in
sentencing is desirable, how can we achieve such honesty? One solution is to simply
keep offenders incarcerated longer. The problem, of course, is that in doing so
we must increase the harm of the punishment relative to past practice, and we must
somehow find ways to pay for the increased prison population. Another solution is
to lower court-imposed sentences to terms that are closer to what prisoners typically
serve. This solution faces the political problem of appearing to lessen the
seriousness with which we view crime and the perception that criminal justice
agents have become "soft on crime." A third, and perhaps most common solution,
is to combine the two by increasing the time served by violent offenders while
reducing sentences for nonviolent offenders. As with any compromise, this third
solution has the strengths and weaknesses of the first two. It is not clear that the
compromise solves the dilemma of dishonesty in sentencing.
Perhaps as important, the compromise position, which we seem to have
adopted, aggravates the differences between responses to types of crimes. Though
the proportion of prison sentences served by violent offenders before release
increased, those convicted of other crimes may have served even less of their
prison sentences. Drug offenders served about one-third of their sentence in prison,
and property offenders served only 40.8 percent of their maximum term. Adding to
these differences in proportion of prison sentences actually served is the fact that
offenders charged with nonviolent crimes are eligible for diversion programs and
restorative justice sentencing, whereas violent offenders are often excluded. Here
again we try to balance social utility-protection from the most dangerous offenses
and offenders-with individual interests in similar treatment for criminal behavior
174 CHAPTER 10 Criminal sentencing
One of the pressing issues in sentencing today is finding a way to achieve truth
in sentencing. Whatever strategy is selected, we must be aware of the implications
of changes in punishment for the balance between individual interests and social
needs. If we opt to compromise, we must reexamine the distribution of punishments.
What crimes ought to receive more punishment than they currently do,
and which crimes should receive less? If we change the distribution of punishment,
what other effect might this have on fairness in punishment?
Prediction in punishment
A second contemporary (and continuing) ethical issue in sentencing concerns the
role of prediction in the assignment of criminal penalties. Clear and O'Leary
(1983:35-38) recognized the central role of prediction in all aspects of criminal justice.
Society expects its criminal justice apparatus to protect it from crime, and part
of this protection involves the identification of risk and taking steps to minimize
the chance of future crimes. The assignment of criminal penalties involves the prediction
of future criminality and an assessment of the likely harm of that future
crime. Indeed, one reason to increase terms for violent offenders and decrease the
punishment of nonviolent offenders is because violent crimes are more damaging
and, thus, justice system agents have a greater interest in preventing violent crimes.
In any attempt to predict "dangerousness" among a population of offenders, two
types of error are possible. An offender who does not pose a risk of future crime may
be erroneously predicted to be dangerous. This type of error is called a false positive
because the offender was falsely (erroneously) predicted to be positive for danger.
Conversely, an offender who actually poses a danger of future crime may be erroneously
predicted to be "safe." This type of error is called a false negative because the
offender was falsely (erroneously) predicted to be negative for danger.
False positives are subjected to greater levels of punishment than they need or
deserve based on their actual dangerousness (Burrell, 2006). Because these offenders
are predicted to be dangerous, we will incapacitate them or subject them to
more severe sanctions to ensure specific deterrence or treatment. It may be that
because we expect them to dangerous, we watch them more carefully and, thus,
we doom them to failure (Auerhahn, 2006). False negatives are punished less than
they need or deserve based on their actual dangerousness. Because they are predicted
to be safe, we return them to society quickly and allow them to commit
If we accept prediction as an appropriate consideration in sentencing, the use of
differential sanctions is ethically justifiable based on the need to protect society.
Yet it remains wrong to subject a nondangerous offender to more severe punishment.
Similarly, it is wrong not to punish more severely an offender who is actually
dangerous. Both false positives and false negatives are treated unfairly, and
both errors place increased burdens on society.
We currently do not have total accuracy in our predictions, so we make both
kinds of errors. In practice, false positives occur about seven times for every true
Contemporary ethical concerns in sentencing 175
positive. Furthermore, we correctly predict only about half of the truly dangerous
offenders, so our false negative rate is roughly equal to our true negative rate
(Wenk, Robison, & Smith, 1972). That is, we make many mistakes.
Beyond the limits to predictive accuracy for an entire population of offenders,
there is increasing debate about the appropriateness of our predictive devices for
specific subgroups (Morash, 2009; Taylor & Blanchette, 2009). Do the same factors
that predict the behavior of men also predict what women will do? Are risk
assessment instruments suitable for use with both whites and racial/ethnic minorities?
Do our predictions work to unfairly punish or otherwise disadvantage specific
groups of offenders? Given our inaccuracy, do we create injustice?
An alternative solution to this dilemma is to impose harsher penalties on all
offenders, as though they were all dangerous. This would lead to "fair" punishment
in that everyone would receive a similar penalty, but it is a very expensive policy.
In addition, critics argue that such a policy is unethical because it subjects all
offenders to more severe punishment when most do not deserve it.
Even if we could achieve complete accuracy in our predictions of future crime,
the ethical question remains: Should we punish people for crimes they have not yet
committed? If I knew you were going to break the speed limit next week, should I
collect a fine from you today? If I do, what should I do next week when I catch you
speeding? That is, by sentencing based on a prediction, have we allowed the
offender to "prepay" for crime, so that when the crime actually occurs, there is
no punishment after the crime? Must we wait for someone to actually commit an
offense before we punish? Suppose we predict that someone will commit a murder.
If we incarcerate that person now, he or she does not have the chance to commit
the murder, and so the crime never occurs. Since the crime never occurred, do
we have a right to imprison the predicted offender?
Concern about repeat offenders and career criminals raises the issue of prediction.
Recent attention to "three strikes and you're out" laws illustrates the point.
These laws impose long prison sentences on people convicted of their third felony
offense. The logic behind such laws is that three-time losers are dangerous and
need to be incapacitated. Many states have passed or are considering such laws.
The ethical issues around prediction in sentencing are complicated and do not disappear,
even if we manage to achieve completely accurate predictions. We must
still determine the balance between individual interests and community needs.
Does the community's need for safety outweigh the individual's interest in liberty
if we predict that the individual will eventually commit a crime? Under what circumstances
might the community's needs be more important? Under what circumstances
is the individual's interest in liberty most important?
Discrimination in sentencing
The purpose of prediction is to discriminate between those offenders who require
more punishment and those who can be safely given less punishment. A related
ethical concern is how the predictive system achieves this discrimination. It is
176 CHAPTER 10 Criminal sentencing
possible that errors in prediction are not random but that they result in differential
punishment for some people as opposed to others. The data concerning the characteristics
of people who receive severe sanctions indicate that sentencing decisions
are disproportionate. Males, minority group members, young adults, and the poor
are more likely to receive harsh sentences than are females, older adults, whites,
and the more affluent (Petersilia, 1983; Visher, 1983). The third ethical issue in
contemporary sentencing concerns discrimination in the assignment of criminal
Klein, Turner, and Petersilia (1988) reported that criminal sentences in California
were based more on the seriousness of the offense, prior criminal record of the
offender, and justice process variables than on race. The fact remains, however,
that the ethically acceptable factors that predict future crime and explain sentence
severity-prior record, criminal justice history, and offense seriousness-appear to
be related to sex, race, age, and social class. The conclusion that these factors are
more determinative of punishment than race or sex does not necessarily mean that
sentencing decisions do not discriminate.
The problem of the relationships between race, sex, socioeconomic status, age,
and the factors that explain sentences are complex. Race, for example, may be
related to unemployment because of societal discrimination. In turn, unemployment
may be related to involvement in crime and criminal justice processing
decisions (bail, probation and parole supervision, and the like), which in turn
are related to future criminality. Punishments based on the likelihood of future
criminality as predicted from prior record or criminal justice history will
reflect the effects of race, sex, and social class. However, because the sentencing
decision relies only on prior criminal record and criminal justice history, the
effect of race, sex, and class may be hidden from those making the punishment
A related issue concerns definitions of offense seriousness. The "war on drugs"
provides an excellent example. Under federal sentencing rules, offenses involving
crack cocaine were treated more severely than those involving powder cocaine.
Racial differences in the use of these drugs (blacks were more likely to use crack,
whites more likely to use powder cocaine) resulted in disproportionate sentencing
of cocaine offenders as black offenders more often received prison terms and
received longer terms than white offenders. So, too, an emphasis on certain types
of drug offense, such as street sales versus possession, produces racial differences
in punishment (Barnes & Kingsnorth, 1996).
There is growing evidence that discrimination in sentencing can be controlled
through guidelines or other decision-making aids (Wooldredge, 2009). There is
also evidence that the problem of discrimination in sentencing was not as serious
as many believed (Engen, 2009). The problem of discrimination in sentencing
may be less serious in practice than in perception, but the perception of widespread
discrimination persists, especially among members of minority groups. Beyond
perceptions, the real potential for discrimination continues.
The ethical problem here is akin to that faced by automobile insurance underwriters.
Punishments based on predictions of future crime treat some individual
offenders unfairly, just as does blanket assignment of certain groups of drivers to
"high-risk" classes for insurance. Treatment of different kinds of criminal behavior
as more serious is like assigning different insurance rates based on the type of automobile
driven, not the skill of the driver. At what point, if ever, does this unfair
treatment of individual offenders (or drivers) render the assignment process unethical?
Is crack cocaine use more serious than powder cocaine use? If it is, how
concerned should we be over racial differences in preference for types of drugs?
When, if ever, is discrimination ethically acceptable?
For more on sentencing and court issues, go to http://bjs.ojp.udoj.gov.
An example of the ethics of criminal sentencing raises many questions but provides
few answers. The answers are judgment calls that depend on the individual doing
the judging. A central determinant of how one may resolve these ethical issues is
the resolution of the conflict between utility and equity. If the interests of the individual
predominate, one is likely to support a desert (or possibly treatment) justification
for punishment and oppose most predictive efforts. Similarly, one is likely
to opt for truth in sentencing by reducing sentences imposed to more closely match
time currently served and to oppose prediction in sentencing and be very cautious
about potential discrimination resulting from law and practices. However, if one
emphasizes utility, it is likely that he or she will support prediction, solve the
truth-in-sentencing problem by increasing penalties (at least for more serious
offenses), and be less concerned about potential discriminatory effects of laws
This difference in perspective is reflected in how one views errors of prediction.
If false positive errors are more troubling than false negative errors, there is
a greater concern for equity than utility. If false negative errors are more troublesome,
it evidences a greater concern for public safety. Those who emphasize community
protection are usually willing to accept false positive errors, arguing that it
is not unjust to punish them more severely than their actual risk would warrant.
Each of us may very well answer the questions about sentencing differently. In
essence, these are all ethical questions that require us to think about what is right or
wrong with sentencing and criminal punishment. The ethics of sentencing can be
stated as a question of justice. We need to determine what are just punishments
178 CHAPTER 10 Criminal sentencing
and how sentences can be imposed justly. As von Hirsch states, "While people will
disagree about what justice requires, our assumption of the primacy of justice is
vital because it alters the terms of the debate. One cannot, on this assumption,
defend any scheme for dealing with convicted criminals solely by pointing to its
usefulness in controlling crime: one is compelled to inquire whether that scheme
is a just one and why" (1976:5).
Auerhahn, K. (2006). Conceptual and methodological issues in the prediction of dangerous
behavior. Criminology & Public Policy, 5(4), 771-778.
Bailey, W. (1966). Correctional outcome: An evaluation of 100 reports. Journal of Criminal
Law, Criminology & Police Science, 57, 153-160.
Barnes, C., & Kingsnorth, R. (1996). Race, drug, and criminal sentencing: Hidden effects of
the criminal law. Journal of Criminal Justice, 24(1), 39-55.
Beck, A., & Greenfeld, L. (1995). Violent offenders in state prison: Sentences and time
served. Washington, DC: Bureau of Justice Statistics.
Braithwaite, J. (1989). Crime, shame, and reintegration. New York: Cambridge University
Bureau of Justice Statistics, (2010). First Release From Prison: Sentence Length, Time
Served, and Percent of Sentence Served in Prison, by Offense-2006. National Corrections
Reporting Program, http://bjs.ojp.usdoj.gov. Accessed 01.06.10.
Burrell, W. (2006). Violence risk screening: Editorial introduction. Criminology and Public
Policy, 5(4), 737-742.
Clear, T. (1994). Harm in American penology: Offenders, victims, and their communities.
Albany: State University of New York Press.
Clear, T., & O'Leary, V. (1983). Controlling the offender in the community. Lexington, MA:
Cullen, F. T., & Gilbert, K. E. (1982). Reaffirming rehabilitation. Cincinnati: Anderson.
Engen, R. (2009). Policy essay: Assessing determinate and presumptive sentencing-
making research relevant. Criminology & Public Policy, 8(2), 323-336.
Fogel, D. (1975). "We are the living proof. . ." The justice model for corrections (2nd ed.).
Frankel, M. (1972). Criminal sentences: Law without order. New York: Hill & Wang.
Garland, D. (1990). Punishment and modern society. Chicago: University of Chicago Press.
Gendreau, P., & Ross, R. (1987). Revivification of rehabilitation: Evidence from the 1980s.
Justice Quarterly, 4(3), 349-407.
Gendreau, P., Little, T., & Coggin, C. (1995). A meta-analysis of the predictors of adult
offender recidivism: What works!. St. John, Canada: University of New Brunswick.
Greenwood, P. (1982). Selective incapacitation. Santa Monica, CA: RAND.
Karp, D., & Drakulich, K. (2004). Minor crime in a quaint setting: Practices, outcomes, and
limits of Vermont reparative probation boards. Criminology & Public Policy, 3(4),
Klein, S., Turner, S., & Petersilia, J. (1988). Racial equity in sentencing. Santa Monica, CA:
Koons-Witt, B. (2009). Equal justice versus individual justice: Discretion and the current
state of sentencing guidelines. Criminology & Public Policy, 8(2), 279-284.
Kramer, J. H. (2009). Policy essay: Mandatory sentencing guidelines: The framing of
justice. Criminology and Public Policy, 8(2), 313-322.
Langan, P., & Brown, J. (1997). Felony sentences in state courts, 1994. Washington, DC:
Bureau of Justice Statistics.
Latessa, E. J. (2004). The challenge of change: Correctional programs and evidence-based
practices. Criminology & Public Policy, 3(4), 547-560.
Lippke, R. L. (2002). Crime reduction and the length of prison sentences. Law and Policy,
Listwan, S., Johnson, C., Cullen, F., & Latessa, E. (2008). Cracks in the penal harm
movement: Evidence from the field. Criminology and Public Policy, 7(3), 423-466.
Mackie, J. (1982). Morality and the retributive emotions. Criminal Justice Ethics, 1(1), 3-10.
Martinson, R. (1974). What works? The Public Interest, (Spring), 22.
Morash, M. (2009). Gender and risk assessment: Editorial introduction. Criminology and
Public Policy, 8(1), 173-182.
Newman, G. (1983). Just and painful. New York: Macmillan.
O'Hear, M. (2005). Is restorative justice compatible with sentencing uniformity?
Marquette Law Review, 89, 305-325.
Packer, H. (1966). The limits of the criminal sanction. Stanford, CA: Stanford University Press.
Paternoster, R. (1987). The deterrent effect of the perceived certainty and severity of
punishment: A review of the evidence and issues. Justice Quarterly, 4(2), 173-217.
Petersilia, J. (1983). Racial disparities in the criminal justice system. Santa Monica: RAND.
Sherman, L., Gottfredson, D., MacKenzie, D., Eck, J., Reuter, P., & Bushway, S. (1997).
Preventing crime: What works, what doesn't, what's promising. Washington, DC:
National Institute of Justice.
Sherman, L., & Strang, H. (2007). Restorative justice: The evidence (pp. 1-94). London,
UK: The Smith Institute.
Taylor, K., & Blanchette, K. (2009). Policy essay: The women are not wrong: It is the
approach that is debatable. Criminology and Public Policy, 8(1), 221-229.
Twentieth Century Fund Task Force on Criminal Sentencing, (1976). Fair and certain
punishment. New York: McGraw-Hill.
Van Dine, S., Conrad, J., & Dinitz, S. (1979). The incapacitation of the chronic thus.
Journal of Criminal Law & Criminology, 65, 535.
Van Voorhis, P. (1987). Correctional effectiveness: The high cost of ignoring success. Federal
Probation, 51(1), 56-62.
Visher, C. (1987). Incapacitation and crime control: Does a ‘Lock 'em Up' strategy reduce
crime? Justice Quarterly, 4(4), 513-543.
Visher, C. (1983). Gender, police arrest decisions and notions of chivalry. Criminology, 21
von Hirsch, A. (1976). Doing justice. New York: Hill & Wang.
von Hirsch, A., & Hanrahan, K. (1979). The question of parole. Cambridge, MA: Ballinger.
Wenk, E., Robison, J., & Smith, (1972). Can violence be predicted? Crime and Delinquency,
Wooldredge, J. (2009). Short- versus long-term effects of Ohio's switch to more structured
sentencing on extralegal disparities in prison sentences in an Urban Court. Criminology
and Public Policy, 8(2), 285-312.
180 CHAPTER 10 Criminal sentencing
1. Should criminal punishments be based on predictions of crime? If so, what
types of errors would we expect to make with such predictors?
2. Why do sentencing decisions discriminate against certain groups, and what
should be done to minimize discrimination?
3. Compare and contrast the four traditional purposes of criminal punishment
and explain some advantages and disadvantages that may be found in each
4. What is "restorative justice," and how does it compare to traditional
justifications for criminal sentencing?
5. What, if anything, prevents us from being honest about our criminal
THIS IS THE END OF CHAPTER 10
Crime and punishment:
Punishment philosophies and
ethical dilemmas 11
WHAT IS PUNISHMENT?
The punishment of offenders is a central feature of our criminal justice system and
highlights the coercive nature of criminal justice. This topic is of great concern to
researchers, government officials, correctional employees, and the general public.
These stakeholders have varying opinions pertaining to the proper use and justification
of punishment. However, before a critical examination can take place, it is
necessary to define punishment.
There are many possible definitions for the term punishment. For example,
Hudson (2002) notes that we often speak of a punishing work schedule or the punishment
of children by their parents, but these examples fail to provide a useful
working definition for the punishment of law violators. von Hirsch (1976) provides
one possible definition of punishment: "Punishment means the infliction by
the state of consequences normally considered unpleasant, on a person in response
to his having been convicted of a crime" (p. 35). In addition, proportionality
between the sanction and the offense is an essential ingredient of the punishment
process in the United States. Proportionality requires that the severity of the sentence
be dependent on the seriousness of the crime (von Hirsch, 1976). For example,
a person who commits a petty theft should receive a sanction commensurate
182 CHAPTER 11 Crime and punishment
with the offense (i.e., a short jail term or probation) rather than the death penalty or
a very long prison term.
PUNISHMENT AND ETHICS
There are three major frameworks that address the purpose and ethics of punishment:
utilitarianism, deontology, and peacemaking. Utilitarianism views the purpose
of punishment in terms of the end result. For Bentham, punishment should
be utilized to maximize the total pleasure or minimize the total pain of all parties
affected by the crime (Gold, 2002). Deontology, which is associated with the work
of Immanuel Kant, differs from utilitarianism in that the focus of actions is on the
intent and not the consequences (Gold, 2002). For Kant, punishment by a court can
never be inflicted simply as a means to promote good for the criminal or society.
Instead, punishment must always be inflicted because the offender has committed
a crime (Kant, 1996).
Peacemaking as a justice perspective seeks to incorporate three elements into
the criminal justice system-connectedness to each other, caring as the primary
element in corrections, and mindfulness of the needs of others (Braswell & Gold,
2002; Lanier & Henry, 1998). The peacemaking perspective argues that our correctional
system should change its response to crime away from one of violence
through the use of death and prison. Instead it should move, whenever possible,
to deescalate violence through the use of meditation, mediation, spiritual growth
(Braswell Fuller, & Lozoff, 2001), dispute resolution, and forms of conciliation
(Lanier & Henry, 1998).
WHAT ARE THE PURPOSES OF PUNISHMENT?
The philosophical punishment literature addresses the rationale behind punishment
by posing questions of justification. Typical questions raised by philosophical
debates include: Why do we punish? How much do we punish? What kinds of punishment
should we utilize? Possible answers to these questions include: because
offenders deserve to be punished, to protect society from dangerous people, to stop
offenders from committing future crimes, and to discourage other people from
committing the same criminal act (Hudson, 2002). Specifically, the philosophies
of retribution, incapacitation, rehabilitation, and deterrence outline these answers
(Clear, 1994; Duff, 1986; Montague, 1995; Murphy, 1995; von Hirsch, 1976).
Typically, one or more of these penal philosophies has dominated throughout
the past two centuries. In the past few decades, the application of punishment
has been marked by a move away from rehabilitative efforts and toward more
punitive, incapacitative efforts (Feeley & Simon, 1992; Pratt, 2000). Currently, it
seems that punishment "in its very conception is now acknowledged to be an inherently
retributive practice" (Bedau, 2003:1). The following discussion provides an
What are the purposes of punishment? 183
overview of the major justifications for punishment and highlights some important
ethical dilemmas and questions currently affecting punishment.
One possible reason to punish wrongdoers is for the simple reason that they
deserve it; this perspective is known as retribution. Retribution was often dismissed
by criminologists as little more than revenge, and it was not afforded the
status of penal theory until the 1980s (Hudson, 2002). When we think of retribution,
we often think of lex talionis-an eye for an eye, a tooth for a tooth, a life
for a life (Wesley, 2003). However, contemporary retribution is far different from
this view. Although revenge is still fundamental in contemporary retribution, the
focus now is on proportionality between the criminal act and the punishment. Retribution
is manifested in contemporary punishment through the use of determinate
Until the 1970s, the primary sentencing rationale, to a large extent, went
unchallenged-the punishment should fit the criminal, not the crime (Juarez,
1976). A typical indeterminate sentence would include a minimum and a maximum
term of punishment, with the actual time served being determined by the progress of
the offender. Offenders who could demonstrate successful progress toward rehabilitation
could be released from supervision by parole authorities (MacKenzie, 2001).
Parole was a privilege to be earned only by those offenders who displayed that they
were rehabilitated and had ties to the community (Petersilia, 2001).
Great disparity resulted from indeterminate sentences, such that a property
offender could end up serving a longer prison sentence than a violent offender.
These concerns, coupled with prison riots, prompted the introduction of sentencing
reforms by way of determinant sentences (Hudson, 2002). Liberal critics of indeterminate
sentences pointed to the gross abuses suffered by inmates, whereas more
conservative opponents of rehabilitation argued that offenders were being treated
far too softy. Determinate sentencing schemes were lauded by both liberals and
conservatives but for very different reasons. For the left, determinate sentences
offered a way to curb judicial discretion and the disparities that occurred as a
result; for the right; it offered a way to "get tough" with offenders (Hudson, 2002).
The resulting sentencing guidelines offered harsh penalties for severe offenders
and penalties that were more lenient for lesser offenders. Many states replaced
indeterminate sentences with determinate sentences, which clearly identify fixed
penalties for crimes. Under this type of sentence, offenders receive a fixed term
of punishment, which is determined by guidelines (MacKenzie, 2001; Petersilia,
2001). Once offenders complete their term of punishment, they are automatically
released from prison, thus eliminating parole boards (MacKenzie, 2001; Petersilia,
2001). Determinate sentencing does allow the consideration of certain circumstances
of the crime to act as either aggravating or mitigating factors, so there is
some individualization of justice. In general, the guidelines offer a range of possible
sanctions for each type of offense-for example, a crime might carry a penalty
184 CHAPTER 11 Crime and punishment
of 3-5 years, with less serious offenders receiving sanctions at the low end of the
With regard to actual administration of punishment, retributivists argue that
punishment serves as a means of restoring balance between the offender and society.
It is argued that the commission of the criminal act has allowed the offender to
seize an unfair advantage over law-abiding people-theft of property, excitement,
or the release of tension (Hudson, 2002). Punishment, it is argued, is necessary to
remove this unfair advantage.
Despite the focus on fairness and proportionality, retribution still has some problems.
Because retribution stresses impartiality and fairness above all else, the system
becomes depersonalized (Wesley, 2003). Retribution forces the justice system
to ignore potentially relevant facts (such as whether the offender was raised in abusive
foster homes) in the pursuit of justice. In short, retributive justice leaves little
room for the consideration of human needs and focuses on just deserts (Wesley,
A discussion of retribution would not be complete without introducing the ultimate
sanction-death. Capital punishment is often justified primarily in terms of
retribution and demands that murderers should suffer in approximately the same
way that the victim suffered (Finkelstein, 2002). The retributive argument for the
death penalty typically centers on what Byron (2000) calls the "Their Shoes
Gambit," that is, if you had a loved one who was murdered, what type of justice
would you demand? According to Byron, the gambit goes something like this:
People who are opposed to capital punishment imagine themselves in circumstances
in which they would be strongly motivated to demand justice. This demand
focuses on retribution, or punishing the guilty as much as they deserve . . . [This
gambit] heightens the aggrieved person's demand for retribution, in particular on
the person's sense that nothing short of the death of the perpetrator could approach
a just retribution for the crime" (p. 308).
Although this argument may be important, Byron (2000) argues that vengeance
has no place in public policy and should not serve as a justification for the death
penalty in the absence of other salient functions of punishment such as deterrence
and rehabilitation (see also Chapter 12).
If we hold that neither deterrence nor rehabilitation are effective, another option is
simply to incapacitate offenders in jails and prisons. Supporters might point to the
value of maintaining custody and control over offenders; critics may suggest that
incapacitation is little more than warehousing offenders, making it more likely that
they will be unable to succeed in any world outside prison. Many recent attempts
have been made by the state to get "hard-core" repeat offenders off the streets.
Incapacitation through incarceration or the death penalty is one way to ensure that
chronic offenders curtail their criminal activity, but it is certainly not without
problems-most notably prediction.
What are the purposes of punishment? 185
How do we predict chronic offenders? Several studies have attempted to isolate
the characteristics of chronic offenders in an effort to predict the likelihood of
chronic offending (see, e.g., West & Farrington, 1973). Such studies have been
unable to predict with high levels of accuracy whether someone would reoffend.
Several ethical dilemmas present themselves when we consider false positives-
those individuals who were predicted to offend but ultimately would not. Because
there is really no way to demonstrate these false positives, it remains a theoretical
In an attempt to incapacitate repeat violent offenders, some form of "three
strikes and you're out" laws were implemented by 23 states in 1993 (Dickey &
Hollenhorst, 1999). For the most part, three-strikes laws had minimal impact in
most states. However, California's wide scope of three-strikes law provisions
affected many of the state's systems (i.e., political, educational, criminal justice,
human services, and budgetary systems; Meehan, 2000). Cost implementations
alone were substantial (Dickey & Hollenhorst, 1999), with increases being seen
in almost every area of offender processing. Preconviction jail time, case processing,
trials, and prison-building costs have all increased dramatically since the passage
of the three-strikes legislation. Because three-strikes laws entail longer prison
sentences in addition to reducing good time credits, such laws contribute to prison
crowding as well as the long-term costs of incarceration for geriatric inmates.
Additional problems stem from the application of three-strikes laws. In California,
for example, prosecutors are able to exercise their wide discretion in the charging
decisions of offenders. In some cases, offenders who commit third-strike-eligible
offenses are charged with a misdemeanor instead of a felony. In other cases, relatively
minor infractions are charged as felonies, leading to a disproportionately
severe punishment (see Box 11.1). Wide sentencing disparity has resulted so that
an offender could receive an 8-month sentence in one county and a 25-to-life sentence
in another county for the same crime (Dickey & Hollenhorst, 1999).
BOX 11.1 SEVERE PUNISHMENTS
Gary Ewing received a prison term of 25 years to life for stealing golf clubs from a country
club in Los Angeles. The prosecutor in the case had the option of charging Ewing with a
misdemeanor but decided to charge him with a felony. Had Ewing been charged with a
misdemeanor, he likely would have received a short term in jail and possibly a fine.
In a similar case, Leandro Andrade was sentenced to 25 years to life for stealing nine
children's videotapes, including Snow White, Cinderella, and Free Willy 2. The estimated
value of these tapes was $153.54.
The crime reduction capabilities of three-strikes laws are tenuous at best. Thus far,
research findings have not been able to illustrate a link between three-strikes laws and the
reduction and/or prevention of crime (Meehan, 2000). Some have noted that increased
preventive efforts, such as education and social programs, may be more effective than
incapacitative strategies at reducing crime rates in the long run (Dickey & Hollenhorst,
186 CHAPTER 11 Crime and punishment
Since the development of the prison, punishment in the modern era has been
characterized by a belief that the problem of crime can be solved through the
identification and treatment of the root causes of crime (i.e., rehabilitation). Rehabilitation,
which has dominated penal strategies for nearly a century and a half
(MacKenzie, 2001; von Hirsch, 1976), characterizes the offenders as being sick
and in need of treatment. According to this alternative philosophy, the criminal
is in need of treatment, reeducation, or reformation (von Hirsch, 1976). In an effort
to "treat" the criminal, rehabilitative strategies have relied on a multitude of different
medical and education models (von Hirsch, 1976). In the 1970s, U.S. Attorney
General Ramsey Clark issued a call for rehabilitation programs to address both the
addiction problems suffered by inmates and the need for vocational training (Clark,
For some, rehabilitation is often seen as the opposite of punishment. Such a
view would be in error in that rehabilitation is in a very real sense a form of crime
control-one that attempts to change the offender so that he or she is less likely to
reoffend. Thus, a primary goal of rehabilitation is to reduce recidivism (von
Hirsch, 1976). Cullen and Gilbert (1982), in their classic work, reaffirmed the rehabilitative
ideal in the face of the conservative "nothing works" (Martinson, 1974)
onslaught, which fueled the get-tough punishment revival. Cullen and Wright
(1996) offer a convincing argument for the measured and responsible use of evolving
rehabilitative strategies. They suggest that, with regard to the state's response
to offenders, neither liberal "doing for" treatment programs nor conservative
"doing to" punishment strategies will offer significant opportunities for offenders
to learn and take responsibility for the crimes they committed and, just as important,
for assisting in shaping the law-abiding citizens they need to become.
A variety of treatment programs have been implemented, such as intensive
supervision on the streets, rehabilitative boot camps, well-equipped vocational
training programs, the use of probation, behavioral control techniques, and
"community-based" programs such as intensive counseling and group therapy.
The efficacy of these treatment programs has been monitored by testing the effects
of recidivism. Findings from empirical research on these programs have been
inconclusive, with some studies indicating a significant reduction in the recidivism
of program participants versus nonparticipants and others not finding a significant
difference (Alschuler, 2003; Kempinen & Kurlychek, 2003; Petersilia, 1998;
Petersilia & Turner, 1990).
Some rehabilitation programs appear to be effective for some types of offenders.
Contemporary movements that complement more traditional rehabilitation
and social support models include family therapy, restorative justice, and peacemaking
initiatives. For example, McCord, Tremblay, Vitaro, and Desmarais-
Gervais (1994) found that a 2-year treatment program that focused on family management
and social skills resulted in higher school achievement and less antisocial
behavior among delinquent boys. Similarly, Gordon, Graves, and Arbuthnot (1995
What are the purposes of punishment? 187
found that delinquents who received family therapy had a lower rate of adult
offenses compared to delinquents who received only probation service.
Deterrence is a forward-looking punishment philosophy. Because it is recognized
that we cannot change the past, forward-looking philosophies such as deterrence
hold that the best society can do is prevent wrongs from being committed in the
future (Wesley, 2003). Deterrence as a penal strategy generally refers to discouraging
reoffending or offending by law-abiding citizens, through the threat and fear
of the potential punishment (Hudson, 2002:19).
Deterrence is generally divided into two major categories: general and specific.
General deterrence seeks to use the offender as an example to the rest of society.
Through the use of general deterrence strategies (increasing the fear and certainty
of punishment), it is hoped that the general public will be prevented from engaging
in criminal acts. Some examples of general deterrence strategies include increasing
police activity in certain areas, the use of special police task forces to target specific
crimes such as narcotics, and the death penalty (Siegel, 2003). Specific deterrence
seeks to influence the future behavior of a particular offender. Specifically,
strategies are implemented to prevent the offender from engaging in future criminal
acts. For example, the drunk driver who pays a substantial fine and serves some
time in jail should, at least in theory, find the punishment unpleasant enough to
refrain from driving drunk in the future (Siegel, 2003).
The philosophy of deterrence was introduced by Cesare Beccaria and later
articulated by Jeremy Bentham. For both classical contemporary deterrence theorists,
the criminal is viewed as a rational actor who has free will. Theoretically, an
individual's choice can be deterred by the anticipation of punishment if he or she
does engage in the criminal act (Hudson, 2002). Essentially, the criminal actor is
viewed as a rational actor who weighs the costs and benefits of the criminal act
prior to its commission. Bentham termed this calculation the hedonistic calculus,
and it is based on the idea that people seek pleasure over pain. Thus, if the pain
derived from the punishment of the criminal act outweighs the pleasure derived
from that act, the rational actor will choose not to engage in crime.
Contemporary deterrence theorists hold that three elements are essential in the
deterrence of criminal activity: the likelihood of arrest, the likelihood of conviction,
and the severity of punishment (Mendes, 2001). In theory, a government
can reduce the crime rate if the likelihood of arrest and conviction is increased
and the severity of punishment is increased (Mendes, 2001).
Although deterrence theory has several merits, it is not without its problems.
For example, there is considerable difficulty in determining what (if anything) will
deter individuals from committing crimes. Deterrence assumes that an individual
makes a rational decision to commit a crime, and that simply is not the case in
all circumstances. In some cases, an individual is unable to weigh the costs and
188 CHAPTER 11 Crime and punishment
benefits associated with a criminal event. This is particularly true in the case of
crimes that occur in the heat of the moment.
There is great debate in the literature regarding the importance of severity and
certainty in the ability to deter crime. Some theorists posit that the severity of punishment
has little deterrent effect (Decker & Kohfeld, 1990; Eide, 1994; Witte,
1983). Others suggest that the certainty of punishment is more important than
the severity of punishment (Becker, 1968; Ehrlich, 1973). Still others believe that
certainty and severity are equally important in the deterrence of crime (Antunes &
Hunt, 1973; Chambliss, 1966; Gibbs, 1968; Grasmick & Bryjak, 1980; Gray &
Martin, 1969; Logan, 1972; Mendes & McDonald, 2001; Tittle, 1969).
Other difficulties arise when we examine the use of various sanctions as a
deterrent. For example, it is believed by some that the use of the death penalty
serves as a deterrent for would-be murderers (Reitan, 1993). Critics of the deterrence
argument point to a brutalization effect of the death penalty, whereby murder
rates actually increase following an execution (Cochran & Chamlin, 2000). An
examination of brutalization and deterrence by Cochran and Chamlin (2000)
revealed only a slight deterrent effect of the death penalty and an increase in the
level of nonstranger, argument-based murders. Recent crime statistics reveal that
the South has the highest rate of murder compared to all regions in the United
States, with a rate of 6.8 per 100,000 (FBI, 2002). The South also has the highest
execution rate in the United States, with 80 percent of all executions taking place
in southern states (DPIC, 2004). Overall, the majority of research studies have
failed to find support for the link between capital punishment and murder, especially
when other penalties, such as life without parole, are available (Bailey &
Peterson, 1997; Radelet & Borg, 2000).
UNINTENDED CONSEQUENCES OF PUNISHMENT
Determinate sentencing strategies and retributive punishments have contributed to
the unprecedented increases in the inmate population in the past few decades.
Recent statistics indicate that there are approximately 1.3 million adults confined
in U.S. state and federal prisons (Bonczar, 2004). Furthermore, approximately
5.6 million U.S. adult residents, or one in every 37 U.S. adults, have previously
served time in prison (Bonczar, 2004). This boom in incarceration has prompted
the concern of system officials about overcrowding and has led many state departments
of correction to search for cost-saving alternatives. Full-scale privatization is
one solution employed by many states and the federal government as a way to save
resources. Unfortunately, privatization leaves many questions unanswered and has
some serious ethical implications.
Overcrowding in prisons and jails has severe impacts on the correctional system,
most notably in the conditions of confinement. Overcrowding in the correctional
system has arguably contributed to the decline of physical, social, and
operational conditions inside prison facilities (Tartaro, 2002). Often offenders are
Ethical dilemmas in punishment 189
BOX 11.2 HEALTH RISKS IN PRISON
AIDS (Maruschak and Beavers, 2009).
percent of them are infected with chronic hepatitis (Health & Medicine, 2008).
doubled up in cells meant for one, jam-packed into dormitories, basements, corridors,
converted hospital facilities, tents, trailers, and warehouses (Allen, Simonsen, &
Even though the Supreme Court has ruled that "double bunking" does not violate
the Eighth Amendment (see, e.g., Bell v. Wolfish, 441 U.S. 520, 1979; Rhodes v.
Chapman, 452 U.S. 337, 1981), overcrowding in correctional facilities does cause
some problems. For example, overcrowding impedes correctional officers' abilities
to classify and separate inmates according to treatment, safety, and security needs
(Tartaro, 2002). Additional problems stem from the frequency of medical problems
in overcrowded facilities (Allen et al., 2004). State prison inmates suffer from a variety
of diseases, including tuberculosis, sexually transmitted diseases, hepatitis, and
HIV/AIDS (see Box 11.2). Because mass screening programs are currently not in place
in most correctional facilities, the data regarding inmates with STDs are incomplete.
However, anecdotal evidence and results frombehavioral studies indicate that inmates
likely suffer from STDs at disproportionately high rates (Hammett, Harmon, &
Maruschak, 1999). Sexually transmitted diseases and other infectious diseases can be
exacerbated in overcrowded conditions (Allen et al., 2004).
ETHICAL DILEMMAS IN PUNISHMENT
There are a variety of current ethical dilemmas in punishment, including the use of
full-scale privatization, the punishment of special populations (such as the mentally
ill and juveniles), and the death penalty. Each of these issues raises important questions
about the institution of punishment (see Box 11.3).
Privatization of correctional facilities requires that we ask: Who should punish?
There are a variety of important issues relating to the privatization of prisons; the
ethical questions provoke interesting and meaningful debate. Should corrections be
a money-making enterprise? Should governments delegate coercive authority to
private entities? These represent just some of the ethical questions and concerns
about private correctional facilities.
Although privatization can take any number of forms, full-scale privatization of
corrections typically refers to those institutions that are privately owned and operated
by a corporation (Pratt & Maahs, 1999). Essentially, a private company is contracted
by the state to administer correctional services. People who are vehemently
opposed to full-scale privatization believe that "the state is the sole source
190 CHAPTER 11 Crime and punishment
of legitimate force and that allowing private organizations to wield the coercive
power of the state (particularly in the incarceration and punishment of prisoners)
undermines the legitimacy of government" (Vardalis & Becker, 2000:136).
The use of the death penalty also poses some ethical problems and requires that
we ask: What types of punishments should we utilize? For some, death, as the ultimate
punishment reserved for those persons who are found guilty of committing
the most heinous crimes, is just. For others, the death penalty represents an inhumane
punishment that violates the Eighth Amendment provision barring the use
of cruel and unusual punishments. This thinking, coupled with other pressing concerns
such as the execution of innocent people, arbitrary application of the punishment,
and the execution of juveniles, has led death penalty opponents to argue that
capital punishment presents too many ethical problems and should be stricken from
the range of available punishments.
The punishment of special populations, such as the mentally ill and juvenile
offenders, presents another range of ethical dilemmas. Mentally ill offenders make
up approximately 16 percent of prison and jail inmates (Lunney & Brown, 2002)
and pose a variety of unique demands on correctional systems. An ethical issue
arises when one is faced with the quality of life for severely mentally ill inmates
(Faust, 2003). Such inmates are more likely to be victimized or beaten and more
likely to commit suicide compared to those who are not sick (Faust, 2003). Scholars
argue that jails are no place for the mentally ill because they lack adequate
resources for treatment services (Faust, 2003; Hodulik, 2001; Pawel; 2001).
Treating juvenile offenders as adults is a key ethical concern (Gaarder &
Belknap, 2002; Redding, 1999; Roberts, 2004). According to Gaarder and Belknap
(2002), over the past 10 years there has been a nationwide effort to treat juvenile
delinquents as adults, mainly with the get-tough movement. However, many
scholars tend to agree that sentencing should be different for juvenile offenders
(Gaarder & Belknap, 2002; Roberts, 2004) because the offenders lack the mental
development necessary to form intent. Redding (1999) examined the consequences
of treating juveniles as adults and found that "criminal prosecution and/or imprisonment
retards rather than enhances community protection and diminishes rather
than enhances juvenile offenders' accountability and their development of competencies"
BOX 11.3 ETHICAL QUESTIONS
Issue Ethical Question
Privatization Who should punish: the state or private correctional firms?
Death penalty What types of punishments should we utilize, and how
severe should they be?
Special populations Should we punish all offenders the same way?
In sum, penal strategies have increasingly moved away from rehabilitation in
recent years. Though rehabilitation is still espoused by system officials, it is no
longer the primary goal of correctional authorities. In place of rehabilitation, correctional
policies are increasingly employing retributive and incapacitative strategies.
The overall crime rate has witnessed moderate decreases in the past few
years (Federal Bureau of Investigation, 2002), possibly due to the implementation
of such strategies as well as a variety of other factors. However, incapacitative strategies
have had the unintended consequence of overcrowding our nation's prison
facilities and thus increasing the number of violent and health-related consequences.
Only time will tell if we can implement a penal policy that balances
the need for rehabilitation with the need for public safety.
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1. Compare and contrast punishing for retribution with punishing for
deterrence. Discuss the unintended consequences of each.
2. Describe the ideologies for both prevention and treatment. What are their key
assumptions about criminality? How does each claim to reduce criminal
3. What are some of the challenges that special populations face in prison?
Examine the ethical implications of incarcerating the mentally ill and
4. Compare and contrast contemporary retribution with retribution as revenge.
Do you think that revenge has a place in contemporary punishment? Explain
5. What are the policy implications of retribution, incapacitation, and
6. Describe the three ethical frameworks for punishment: utilitarianism,
deontology, and peacemaking. Which one do you think should serve as the
ethical framework for punishment today? Why?
THIS IS THE END OF CHAPTER 11
To die or not to die:
Morality, ethics, and the death
The death penalty fascinates us: Its merits are debated, producers make movies
about the death penalty (Dead Man Walking, The Life of David Gale, The Green
Mile), and politicians use it as a sign that they are serious about the crime issue.
The fascination with the ultimate sanction persists even though most murderers
do not receive the death penalty, and of those who are sentenced to be executed,
many get off death row in other ways, such as through court appeals.
In this chapter, we focus on the ethics of the death penalty. First, to put the
death penalty in perspective we present some basic information. Then we outline
how the three ethical theories-deontology, utilitarianism, and peacemaking-
approach the issue of the ethics of the death penalty. Finally, we consider the specific
issues concerning the debate on the ethics of the death penalty.
THE DEATH PENALTY IN PERSPECTIVE: FACTS ABOUT
THE DEATH PENALTY
The latest available information indicates that states executed 53 individuals in
2006 and that 3,254 persons were on death row at year-end 2004 (Bureau of Justice
Statistics, 2007). California led the nation with 660 offenders on death row, followed
by Florida (397), Texas (393), and Pennsylvania (226) (Death Penalty Information,
2007). Of the people sentenced to death in 2005, 55 percent were white, 42
percent were black, and 2 percent were represented by all other races. Death row
prisoners were overwhelmingly (98.5 percent) male (Bureau of Justice Statistics,
196 CHAPTER 12 To die or not to die
RATIONALE FOR THE DEATH PENALTY
There are two basic questions regarding the death penalty. The first addresses
whether we should even have a death penalty. This question is essentially philosophical
in nature. Such a question is often argued in terms of religious values
and beliefs. For example, one can find both support and opposition for the death
penalty among various Christian denominations, often based on scriptural passages
from the Old and New Testaments. This aspect is discussed in more detail later in
this chapter. The second question is judicial in nature. Does the criminal justice
system process and prosecute capital cases justly and equitably? Are the laws, procedures,
and decisions about such cases administered fairly and consistently, or
does discrimination occur against any group? Issues such as race, gender, and economic
bias are often debated and discussed in attempting to answer this question.
Concerning the philosophical question, some argue that if an individual takes
the life of another person, that individual should have to forfeit his or her own life,
whereas others might contend that two wrongs don't make a right-that the state
also commits murder when it executes a convicted murderer. People who support
this line of thinking maintain that advanced or evolved societies do not include
the death penalty as a punishment option. Individuals who do support the death
penalty counter by suggesting that the ultimate crime requires the ultimate penalty.
Proponents of the death penalty might place their argument in a deontological
frame of reference: It is society's duty to punish the most serious crime with the
most severe penalty.
The late Ernest van den Haag perhaps put it most eloquently: "Can any crime
be horrible enough to forfeit the life of the criminal? Can death ever be a deserved
punishment. . . . I am confident that the following excerpt may help answer this
question." Van den Haag went on to describe a gruesome murder in which two
males tortured and sexually abused a female victim, including pouring salt into
her wounds before strangling her. Afterward, they broke her neck and arms so that
they could fit her body into a trunk, and then dumped her body in a dumpster (for
more details, see van den Haag, 2003:235-237).
van den Haag thinks the answer is simple: A murder as horrendous as this
deserves the death penalty-even cries out for the penalty of death. In fact, van
den Haag is in favor of the death penalty for all murders that so qualify according
to the laws and jury decisions in the death penalty states.
Capital punishment opponents counter that a severe penalty is appropriate for
the crime of murder, but this penalty does not have to include the taking of a
human life. Opponents argue that severe punishments such as life without parole
(LWOP), life with the possibility of parole, or a lengthy prison sentence short of
life are serious enough penalties to serve as commensurate punishment for the
crime of murder. Additionally, opponents argue that sentences short of capital punishment
have the advantage that if any error is made in determining either guilt or
sentence, the error can be corrected, to some extent, if the offender is serving a life
sentence or a lengthy prison term. If the offender has been executed, however, any
Rationale for the death penalty 197
mistake that is discovered years after the conviction and sentencing cannot be corrected.
So, in a deontological framework, opponents could argue that LWOP, life,
or a lengthy prison term can both satisfy the societal duty to demand a severe penalty
for a severe offense and satisfy any societal duty to rectify mistakes to the fullest
extent possible. (Mistakes are a separate topic that follows.)
Utilitarians go further than simply offering a philosophical justification that capital
punishment offers a severe penalty for a severe offense. Utilitarians argue that the
death penalty has additional positive consequences that justify or demand its use, such
as deterrence and incapacitation. Here, we discuss each of these issues in turn.
One such additional consequence, according to utilitarians, is deterrence. Utilitarians
who favor capital punishment argue that capital punishment is a general deterrent:
It is so severe a penalty that it deters or frightens individuals who might be
contemplating committing a murder out of committing one. Capital punishment
proponents usually argue from personal experience or common sense. They argue
that most of us can recall experiences in which we were tempted to do something
wrong, such as shoplift or speed down the highway, but saw a police officer or
thought of being caught and decided not to steal or speed. Proponents also offer
some empirical evidence: Studies by Ehrlich and by Cochran and Chamlin claim
that capital punishment has a deterrent effect (e.g., Cochran & Chamlin, 2000).
Capital punishment opponents argue that there are several problems with the
deterrence argument. First, relying on our own experiences or common sense about
deterrence is misleading. Most of us are law abiding; we are good citizens who
have been appropriately socialized. Many of the people who murder may not be
so law abiding and thus may not think about possible penalties. Second, many murders
are committed on the spur of the moment or when the offender is in an unstable
emotional state that does not readily allow for a calm assessment of the
possible penalty. Many homicides occur in argument situations in which the
offender is agitated. Others occur in robbery situations in which both the offender
and the victim are under considerable stress. In both situations and others, the perpetrators
are not thinking rationally about the penalty for murder or other tragic
consequences that are likely to result from their actions. Instead, a robber is often
quite nervous and might well interpret a normal fear response by a store clerk (e.g.,
a twitch) as a sign that the clerk is going to reach for a gun or alarm button and
could end up fatally shooting him or her.
Social scientists have conducted some research on the death penalty and on
other penalties that shed some light on how much deterrent impact the death penalty
has or might have. One of the first studies on the deterrent impact of the death
penalty was conducted by Thorsten Sellin. What he did was to compare homicide
rates in contiguous states that did have or did not have the death penalty. He chose
Ohio, Indiana, and Michigan. These three states are midwestern states that share
similar climates and economies. All three have both manufacturing (auto, steel
198 CHAPTER 12 To die or not to die
and related industries) and agriculture (such as soybeans). All three are a mix of
urban, suburban, and rural areas. There are also cultural, political, and social similarities
among the three. Comparing homicide rates across these three states over
decades, Sellin concluded that there is no discernible impact of the death penalty.
States that have the death penalty do not have lower homicide rates than states
without the death penalty (Sellin, 1980).
Peterson and Bailey conducted a review of studies on the deterrent impact of
capital punishment. After looking at many different types of research studies, they
concluded: "In short, the empirical evidence does not support the belief that capital
punishment was an effective deterrent for murder in years past. Nor is there any
indication that returning to our past execution practices would have any deterrent
impact on the current homicide problem" (Peterson & Bailey, 2003:277).
Other studies of deterrence also show negligible impact. For example, in the
late 1970s, Scared Straight programs surfaced as a popular way to supposedly prevent
delinquency. Scared Straight was the name of a program in New Jersey in
which prison inmates gave prison tours to predelinquents or delinquents and then
literally tried to scare the youths out of committing any further crime. The inmates
yelled at the kids and informed them of all the horrible events that could befall
them if they wound up in prison, such as physical and sexual assaults and even
being killed in prison and carried out in a body bag. Although the documentary that
promoted the program claimed tremendous success, systematic scientific research
studies on the effectiveness of Scared Straight-type programs indicate that there
is no significant difference between youths who experience such a program and
youths who do not (Lundman, 1993).
To be fair, some studies do show some deterrent effects for some punishments.
Granted, many of us fear penalties enough to avoid crime. A point to be considered,
however, is that opponents to the death penalty are not arguing for no
penalties for murder. Rather, they are advocates for either LWOP, life with the
possibility of parole, or lengthy prison sentences for murderers. What is at issue
is this: What is the true effect of the death penalty? This means that proponents
for the death penalty need to demonstrate that the ultimate penalty has more impact
than a penalty such as LWOP, which to date has not occurred.
Some proponents of the death penalty argue that a serious problem in looking at
the deterrent impact of the death penalty is that it is not imposed in such a way that
it can be a deterrent. Deterrence theory maintains that for any punishment or sanction
to be an effective deterrent, the penalty in question must be severe, certain,
and quick. The death penalty is clearly severe, but it is not always certain or quick.
Concerning certainty, though most murderers are caught, not all are convicted and
not all receive the death penalty. In fact, even those who receive the sentence of
death do not necessarily get executed. Between 1977 and 2002, about 7000 people
were sentenced to death, but more than one-third (36.7 percent or 2535 offenders)
received other dispositions instead. They had their sentences or convictions overturned,
received commutations, or died a natural death before they could be
executed (Bonczar & Snell, 2003). Quickness is also problematic. The average
Rationale for the death penalty 199
stay on death row is about 10 years. Death penalty proponents argue that such lack
of certainty and lack of speed in imposing the death penalty detract from its effectiveness.
They argue that improvements in certainty and quickness could result in
findings that deterrence works. A more recent discussion of the research on deterrence,
however, disagrees that improvements will result in new findings of effectiveness
(Peterson & Bailey, 2003).
One problem with increasing the speed at which death row offenders proceed to
execution is that a major reason for the lengthy time on death row is to allow time for
appeals. States usually have a mandatory appeal of the case. Then offenders often
pursue discretionary appeals in an effort to save their lives. Liebman and his colleagues
have shown that many of the appeals show reversible error. They studied more
than 4500 appeals from 1973 and 1995 and found the overall rate of prejudicial error
to be 68 percent. "In other words, courts found serious, reversible error in nearly 7 of
every 10 of the thousands of capital sentences that were fully reviewed during the
period" (Liebman, Fagan, & West, 2000). Death penalty opponents argue that if
states were to shorten the time between sentencing and execution, that would cut
short the time for appeals. This would reduce the number of errors that are found.
So it would become more likely for states to execute individuals who either did
not commit the murder deserved a conviction and sentence for a noncapital offense
such as manslaughter that does not involve the death penalty. The issue ends up
being one of efficiency versus effectiveness, shortening the appeal process versus
guarding against error when execution is the penalty to be rendered.
Death penalty proponents are right about one thing: The death penalty is perfect incapacitation.
Executing an offender prevents him or her from ever killing again. Therefore,
in a way, the death penalty does satisfy the utilitarian goal of incapacitation.
Opponents cannot deny the incapacitative impact of the death penalty, but they
can argue that other penalties can also achieve very high degrees of incapacitation.
LWOP, for example, will ensure that a murderer cannot commit another homicide
on the street. He or she may kill a fellow prisoner or a prison guard, but they will
not kill another person on the outside. Moreover, the number of killings in prison is
quite small. For example, the latest figures show that approximately one prisoner
per state is murdered in prison every year, and about 20 prison staff members
are killed every 5 years (Bedau, 1997:177). Any loss of life is tragic, but unfortunately,
these statistics are incomplete and dated. These statistics also do not tell us
if convicted murderers were in fact the perpetrators of these in-prison crimes.
There is also substantial evidence that if society punished murderers with 10-
20 years of imprisonment and then released them on parole, the released murderers
would have very low recidivism (new crime) rates. Parole statistics consistently
show that murderers make good parolees. Paroled murderers have the lowest crime
rates of all parolees. One of the best pieces of evidence about the safety of parole
for murderers comes from the Furman cases. Furman was a Supreme Court case
200 CHAPTER 12 To die or not to die
that ruled the death penalty, as then practiced, unconstitutional. As a result, death
row inmates in affected states were switched to parole-eligible status and were in
fact later (after serving years of their sentences) paroled. The so-called Furman
parolees performed quite well in the community. In one study of 188 murderers
who were released on parole and served an average time of 5.3 years on parole,
only one committed a new murder. Twenty (10.6 percent of those released) committed
a new felony (Marquart & Sorensen, 1997).
Why do paroled murderers do so well on parole? There are several reasons for the
success. One is that parole boards are more careful in deciding whether a murderer
gets parole than in deciding, for example, whether a car thief gets parole. If the
parole board makes a mistake about a car thief, the damage is just one more stolen
car. If they make a mistake about a murderer, there is the possibility that another
murder will take place. Parole board members are concerned about avoiding such
serious mistakes. A second reason is that even if the parole board releases a murderer,
they usually make him or her serve quite a few years (10 or more) in prison
before release. Those years allow maturation to occur; the parolee is often not the
impulsive and immature person who entered prison. Simple aging also occurs; the
released murderer is not as young, energetic, and angry as he or she once was.
As stated previously, the death penalty achieves perfect incapacitation: No executed
killer can kill again in society. However, LWOP also prevents killers from killing
again on the street. Parole statistics, especially the Furman cases, indicate that
even parole for murder is not necessarily a costly choice in terms of outcomes. Very
few paroled murderers kill again, but a minority (about 10 percent) do indeed commit
a new felony. So, if society wants perfect incapacitation, the death penalty delivers
perfection in one specific dimension. If society is willing to tolerate some error
(e.g., some new crimes but very few murders), then parole is available as an option.
As noted in Chapter 3, the peacemaking perspective focuses on caring, connectedness,
and mindfulness. Peacemakers oppose the death penalty because they think
that it does not promote caring, connectedness, and mindfulness, whereas other
A living example of peacemaking and the death penalty is Jarvis Masters.
Masters is a death row inmate in California. His time on death row has been an
opportunity for him to examine his life and turn from crime and violence to
Buddhism and promoting peace. By becoming a Buddhist, he has come to realize
that we are all connected so that what each one of us does indeed affects others and
oneself as well. In his book Finding Freedom (1997), Masters gives two dramatic
examples of connectedness and caring.
One Fourth of July two guards who normally worked another cellblock were
assigned to death row. They were anticipating a holiday barbecue that evening,
so they were in a hurry to get through the day. Consequently, they practically threw
Peacemaking perspective 201
the food at the inmates that day and ignored simple requests for silverware or toilet
paper. Their disdain for inmates was causing rage to rise in the prisoners. Masters
saw what was happening and felt he should do something to calm the prisoners. He
decided that if the inmates stuffed their toilets with towels and flooded the cellblock,
the flood would be a way for the inmates to respond to the guards in a controlled
way. It would be an expression of prisoner anger, and it would make the
guards late for their barbecue that evening because they would have to clean up
the cellblock before they could leave work. More important, this minor expression
of prisoner anger would prevent the inmates' anger from building up to a point at
which inmates might attack a guard.
Another incident involved the guards putting a new prisoner into the yard in
such a way that they were basically setting him up for an attack. Apparently, the
new prisoner was homosexual and was dressed in some fashion to draw attention
to his sexual orientation. At the time, says Masters, there was considerable hatred
for homosexuals in San Quentin Prison. Masters saw the guards let this new prisoner
onto the yard and, shortly thereafter, saw an inmate coming toward the new
prisoner with a shiv (prison weapon). Masters intervened; he simply went up to
the new prisoner and asked him for a cigarette. Seeing Masters stopped the inmate
from attacking the new prisoner. Afterward, Masters wondered why he had risked
his own life for someone he really didn't know. He asked himself if he was the
only Buddhist there.
The example of Jarvis Masters shows that offenders can change in prison and
have a positive effect on other prisoners. Although Masters did receive a death sentence,
his time on death row allowed him to question his former lifestyle and
change to a lifestyle of genuine spirituality. If he had been executed sooner, he
would not have had the chance to change. Nor would he have had the chance to
do some of the positive things he has done in prison, such as the two examples just
noted. Parenthetically, a death penalty proponent might argue that the inmate on
death row didn't give his or her victim a chance to mature or experience such personal
Peacemaking criminologists might also be concerned about the effects of death
row on the family members of the death row inmates. One mother of a death row
inmate notes that a detective magazine came out with an article depicting her son's
"killing spree." She was so distraught that she tried to buy every copy so that her
friends and neighbors would not see the story (Lezin, 1999). A few years later, a
brother noted his painful experiences when friends would talk about criminals
and say that "they ought to hang the bastard" (Lezin, 1999:18).
Sending offenders to death row seems to foster seeing these criminals as outside
the human family and permitting the rest of us to depict them as less than
human. Unfortunately, parents, spouses, or siblings of the offender have to listen
to and live with such depictions. The relative knows the offender as a flawed
human, with good and bad traits, but the media and careless citizens may describe
a relative on death row as a cold-blooded killer, a monster, an animal, and so on. It
is painful to see and hear someone you love depicted in such extreme terms
202 CHAPTER 12 To die or not to die
Determining who is eligible for the death penalty is far from an error-free process.
Juries and judges make mistakes in determining guilt and determining sentences.
Mistakes about guilt result in an innocent person being placed on death row and
experiencing the stress of anticipating an execution that he or she does not deserve.
Mistakes about the penalty-the sentencing phase-mean that a person who perhaps
deserves a lengthy prison sentence is instead anticipating death/execution
and spends his or her time trying to appeal an incorrect sentence.
A major source of the mistakes in the death penalty decision-making process is
the quality of defense representation that many offenders get. Many offenders are
poor and cannot attract the best defense attorney available. Moreover, many states
are willing or able to spend only a limited amount of money on indigent offender
defense representation. Liebman and his associates found that defense lawyers
"who didn't even look for-and demonstrably missed-important evidence that
the defendant was innocent or did not deserve to die" was one of the most common
errors causing a majority of the reversals at the state post-conviction stage
(Liebman et al., 2000:ii).
In one case in Georgia, the state paid for an assigned defense attorney who was
actually a talented lawyer. The problem was that he was a skilled divorce attorney
who had never worked a death penalty case. To make things worse, the attorney
thought that just because he had done the judge a favor before the case, the judge
would return the favor in the totally unrelated death penalty case (Lezin, 1999).
Some states, such as New York, do provide competitive pay to attorneys assigned
to death penalty cases so that they can put forth an adequate defense. However,
many other states provide very modest compensation, so it is often difficult, if
not impossible, to attract qualified individuals to work death penalty cases.
Recent studies have shown that in the "death belt" (nine southern states that use
the death penalty frequently), more than 10 percent of the attorneys who have
represented indigent capital defendants have been disbarred, suspended, or disciplined
at rates significantly higher than average, even in those states. In fact, most
of the attorneys in the death belt had not handled a capital case before, and the
death belt states did not have training programs for these attorneys (Mello &
The result is that many death penalty defendants do not get adequate (much
less superior) representation. Less than adequate representation means that some
unknown number of death row defendants receive the death penalty improperly.
Adequate defense counsel would mean at least a lesser sentence, if not
Apart from what O. J. Simpson, Kobe Bryant, or XXXXX XXXXX actually did
or did not do concerning their alleged criminal actions, it is clear that these celebrities
were able to hire the best defense attorneys. Many of the people who wind up
on death row quite simply could not afford that level of defense representation
If they could afford such high-quality attorneys, they would probably not end up on
death row. The question, then, is whether it is ethical for wealth or the lack of it to
have such impact on who is sentenced to capital punishment. One could argue that
the prosecution may be at a disadvantage if the person who is tried for first-degree
murder is very wealthy, but the prosecuting attorney and state have a substantial
advantage if the defendant is poor.
Opponents of the death penalty argue that mistakes stemming from factors
such as inaccurate eyewitness testimony and inadequate defense representation
occur too frequently and are reason enough to abolish the death penalty. As
noted, the Liebman (2000) study of appeals found the rate of prejudicial error to
be 68 percent. Abolitionists maintain that an error rate this high is simply
The proponent response to the issue of mistakes in the administration of capital
punishment is that mistakes happen in all walks of life. Ernest van den Haag still
supports the death penalty, arguing that all human institutions are flawed. For
example, he has argued that driving to school or work is a very accident-prone
activity. Every time we get in our cars and drive somewhere, we are taking our
lives in our hands. We trade off the danger of driving for the convenience of
driving to work or classes. Even ambulances, notes van den Haag, kill some innocent
pedestrians, but they save more innocent people than they kill (van den Haag,
2003:241). In sum, he thinks that the death penalty is justified, despite mistakes, as
long as it deters and the mistakes are few.
As noted, the deterrent impact of the death penalty is not as certain as van den
Haag contends. Most social scientists conclude that the deterrent impact is either
unknown or nonexistent. Moreover, the frequency of mistakes appears to be much
more prevalent than few. Former Governor George Ryan of Illinois was so
concerned about mistakes that he put in place a temporary moratorium on executions.
(For a look at the personal impact of mistakes, see Box 12.1.)
BOX 12.1 THE PERSONAL IMPACT OF MISTAKES
One of the authors of this chapter likes to have his classes consider that because human
beings aren't perfect, neither is our system of justice absolutely perfect. Given that reality,
is it acceptable to you that there are some mistakes about who gets the death penalty (for
instance, one innocent is executed for every 10,000 who are deserving of death)? After the
students raise their hands in support of this statement, he says, "Okay, now keep your hands
raised if you can live with such a mistake about the death penalty if it is your brother, your
son, your spouse, or yourself who is the innocent victim of the mistake." Without exception,
hands drop one by one.
What about you? Are mistakes in determining who goes to death row all right with you? Are
they still acceptable if you or a loved one is the one experiencing the mistake? Are you so
much in favor of the death penalty that you can still support it, even if it means you or a loved
one will be wrongfully executed?
204 CHAPTER 12 To die or not to die
DISCRIMINATION AND RACIAL BIAS
As noted at the beginning of this chapter, death row is disproportionately populated
by blacks. Although African Americans make up only about 12 percent of the U.S.
population, they constitute about 42 percent of the prisoners on death row (Bureau
of Justice Statistics, 2007).
The first ethical concern is whether discrimination in fact occurs. The high percentage
of African Americans on death row does not in itself prove discrimination.
If blacks make up about 44 percent of the murderers in the United States, then they
should make up about 44 percent of the people on death row. More specifically, if
blacks commit about 44 percent of the capital murders (the homicides that deserve
capital punishment), then they should make up about 44 percent of the prisoners on
A recent review of research on discrimination in the administration of the death
penalty led to several conclusions. First, the race of the defendant is not a significant
factor in the prosecutor's charging decision. Second, the data "document
race-of-victim disparities reflecting more punitive treatment of white-victim cases
among similarly aggravated cases, regardless of the race of the defendant" (Baldus
& Woodworth, 2003:241). These disparities seem to stem more from the prosecutor's
charging decision than from judge or jury decisions. Third, "in several jurisdictions
for which data are available, cases involving black defendants and white
victims are treated more punitively than cases with all other defendant/victim
racial combinations" (Baldus & Woodworth, 2003:241). Fourth, a few studies do
show negative impact on black defendants or on defendants who killed white victims;
these disparate impacts "arise from disproportionately punitive charging
practices in counties with either particularly large numbers of black-defendant
cases or particularly large numbers of white-victim cases on their capital case
dockets" (Baldus & Woodworth, 2003:242).
The Capital Jury Project has discovered some interesting findings about how
jurors make their decisions. Project researchers have found that the number of
white males or even the presence of one black juror on a jury can make a significant
difference in the decisions made by juries. Specifically, the Capital Jury Project
found a "white male dominance" effect in black defendant/white victim cases.
That is, the jury voted for the death sentence in only 30 percent of the cases when
the jury had fewer than five white male jurors, but the jury voted for death in 71
percent of the cases when there were at least five white male jurors on the jury.
The researchers also found a "black male presence" effect: "Having a black male
on the jury reduced the probability of a death sentence from 71.9 percent to 37.5
percent in the B/W [black defendant/white victim] cases, and from 66.7 percent
to 42.9 percent in the B/B [black defendant/black victim] cases" (Bowers & Foglia,
Discussions regarding the actual extent of discrimination in the death penalty
are important and need to continue. It is imperative to eliminate discrimination.
It is also important to end any appearance of discrimination. The high percentage
of African Americans who receive the death penalty implies to many observers
that there is discrimination. Even if careful investigation shows that discrimination
is not occurring and that prosecutors and juries are perfectly unbiased in their decisions,
many individuals interpret the high percentage of blacks on death row as
apparent evidence of discrimination. Discrimination or the appearance of discrimination
can influence minority members to have negative attitudes toward police,
judges, and others in the criminal justice system. Such negative attitudes can affect
the administration of justice.
Closely related to the issue of discrimination is the issue of arbitrary selection of
individuals for the death penalty. Although approximately 20,000 murders are
committed each year in the United States, fewer than 500 cases result in the death
Ideally, those 500 cases should be the most deserving of the death penalty.
Practically, however, that is simply not the case. As noted, race appears to play
some factor in the selection of cases for the death penalty. For one thing, black
defendant/white victim cases are more likely to result in the death penalty than
black defendant/black victim cases.
Even apart from any instances of racial impact, other factors such as location,
judge, prosecutor, and case notoriety can play a role in determining whether one
murderer gets capital punishment, while another gets a life sentence or even less.
The deontologist would be quick to argue that arbitrariness should play no role
in such a critical decision. The principle of the categorical imperative calls for not
making exceptions but treating similar situated individuals in similar fashion.
Given the demonstrated arbitrariness in the death penalty, a deontologist could
oppose the death penalty for this reason alone.
Arbitrariness is hard to eliminate. The federal courts now use a guidelines system
that is meant to reduce arbitrariness in all criminal sentencing. Problems persist. For
one thing, the Federal Sentencing Guidelines allow for reductions based on offenders
providing information on other criminals. Therefore, offenders who either have
no information to give or refuse to give information receive no reductions. One first
offender, for example, refused to implicate her own mother and was given a 10-year
sentence, while an offender caught with 20,000 kilos of cocaine served only four
years in prison because he "cooperated," that is, gave information on other dealers
(Schlosser, 2003:61). Another effort to reduce arbitrariness is proportionality
review. This means that courts review death penalty cases in the jurisdiction (usually
one state) to attempt to ensure that only the most horrible murders get the death penalty
and that all homicides less serious than the least serious death penalty case get a
sentence less severe than the death penalty. The basic problem is that such a proportionality
review is difficult to do (Mandery, 2003). Measuring severity is not as simple
as measuring blood pressure, especially in light of the fact that "the fundamental
206 CHAPTER 12 To die or not to die
equality of each survivor's loss creates an inevitable emotional momentum to
expand the categories for death penalty eligibility" (Turow, 2003:47).
Abolishing the death penalty will not eliminate arbitrariness. Some murderers
will get LWOP, some life with the possibility of parole, some shorter prison sentences,
and some even probation. However, abolishing the death penalty could
end the arbitrariness of some murderers being executed and others receiving much
less severe penalties.
CONDITIONS ON DEATH ROW
Because more than 3500 prisoners are currently on death row, it is important to
consider death row conditions. What are death row prisoners experiencing as they
wait for execution?
There are two main types of death row: unreformed and reformed (Johnson,
1998). Unreformed death row involves a great deal of isolation. Prisoners are kept
in solitary cells and are released from their cells only for short periods of exercise
or showers. Such prisoners spend a considerable amount of time reading or watching
Reformed death row, however, allows prisoners to spend much more time out
of their cells for work and recreation. Prisoners might work at jobs such as making
clothes or entering computer data. Both work and recreation allow for more socializing
with other prisoners. One death row resident in Texas spent much of his time
painting pictures, including pictures of Jesus and of how he imagined the execution
room to look (Frontline: The Execution).
JURORS IN CAPITAL CASES
Something relatively new in the debate on capital punishment is the examination of
juror behavior in capital cases. The Capital Jury Project in particular has brought
forth considerable information on how jurors go about making the decision to vote
for or against capital punishment. Unfortunately, much of this information is quite
First, many jurors make the decision in favor of the death penalty too soon.
Specifically, 30 percent of jurors in capital cases make the decision at the guilt
stage, prior to the penalty stage. This means that three out of 10 capital jurors
decide on the sentence before they have a chance to hear the evidence about sentencing
(Bowers, Fleury-Steiner, & Antonio, 2003).
Second, many jurors hold inaccurate beliefs about how many years a prisoner
would have to serve in prison if he received a prison sentence instead of the death
penalty. For example, in both Alabama and California, the mandatory minimum
sentence that a prisoner would have to serve would be life without parole. However,
jurors thought the mandatory minimum sentences in those two states were
Jurors in capital cases 207
BOX 12.2 DONALD CABANA: A FORMER EXECUTIONER SPEAKS
OUT ON DEATH ROW
Former warden Donald Cabana came to have doubts about working in corrections after executing
some prisoners that he became quite close to, but he had no doubts about not wanting to
supervise any more executions. "Of one thing I was certain, whatever the futuremight hold, I had
privately concluded that I would not supervise another execution" (Cabana, 1996:191).
Several factors had caused Cabana to change. One factor was executing a man that Cabana
knew had changed dramatically during his years on Mississippi's death row. "I was absolutely
convinced that Connie Ray Evans would never kill again, and that he would present no threat to
other inmates if his sentence were commuted to life. . . . Evans had arrived on death row a
streetwise drug abuser, bitter and scornfully contemptuous of authority. He had changed, and I
personally had watched the change, especially over the past three years." Cabana pleaded for a
commutation from the governor, imploring the governor that "Isn't that [change] what prisons
are supposed to be about?" (Cabana, 1996:179). The governor, however, refused to commute
the sentence to life, and Cabana had to carry out Evans's execution.
If you are preparing for a career in criminal justice and you go to work in a capital
punishment state, you too might secure a position like Don Cabana's. He wound up having to
supervise executions. You could end up arresting and investigating capital case defendants,
prosecuting capital cases, defending capital defendants, guarding death row inmates or, like
Cabana, actually supervising executions. What do you think about actually being involved in
executions or death row or capital cases? Would it bother you to be involved in any stage of
the process? Now that about 80 percent of the states have capital punishment, a considerable
percentage of criminal justice workers may become involved in the process to some extent.
Many people think that a reformed death row represents considerable improvement over
an unreformed death row because the inmate on a reformed death row is out of his or her cell
more often and has more opportunities to work and engage in recreation or socializing with
XXXXX XXXXX, a strong opponent of capital punishment, is not so positive about
reformed death row environments. Johnson argues that even a reformed death row does not
help a prisoner get ready for his or her own death. In fact, Johnson thinks that there will never
be a death row environment that truly prepares an inmate for death. Such a death row would
be too painful, says Johnson, for both inmates and guards:
Officials would be unable to ignore the hurt and loss they, as persons, would inflict on
their prisoners, whom they would know to be frill human beings. The prisoners, too, no
longer dulled to their own feelings, might well suffer greatly. Executions would be
traumatic events, the virtual antithesis of their current bureaucratic reality. (Johnson,
Aside from Johnson, most inmates and guards as well as most critics would probably
endorse the reformed death row over the unreformed one. With more opportunities for work
and recreation, the reformed death row seems to be the best that prisons can offer for those
condemned to death by the courts.
15 and 17 years, respectively. Therefore, jurors thought prisoners would be out in
a decade and a half, whereas the statutes stipulated life without parole. Such erroneous
beliefs about alternative prison terms can easily influence jurors to vote for
the death penalty to prevent perceived heinous murderers from being released
208 CHAPTER 12 To die or not to die
Third, capital jurors are often confused about mitigating factors, which are a
critical part of the decision to impose the death penalty. Many jurors
mistakenly think that mitigating factors must be proven beyond a reasonable
doubt or that all jurors must agree that a factor is a mitigator (Bowers et al.,
Finally, as we noted previously, the Capital Jury Project has thrown new light
on the issue of the impact of race on the capital punishment decision. If there is
no black juror on the jury, compared to the presence of at least one black male
juror, a death sentence is twice as likely. In trials with no black juror, death sentences
resulted 71.9 percent of the time versus 37.5 percent of the cases that
had at least one black male juror (Bowers et al., 2003). It appears that the presence
of at least one black male juror can convince the other jurors to consider
the evidence more deliberately.
RELIGION AND CAPITAL PUNISHMENT
Many people use religion to justify their views on the death penalty. This is not
the place for a thorough theological debate on the death penalty, but because the
death penalty debate often includes religious arguments, we think it important to
note some of the Judaeo-Christian-based religious arguments surrounding capital
Sister Helen Prejean is a powerful example of someone who sees the message
of Christ and Christianity as condemning the death penalty. While she was a nun
working with the poor in New Orleans, a friend asked her to become a spiritual
advisor for a death row inmate. That led to being a spiritual advisor for additional
inmates and a book and movie entitled Dead Man Walking (Prejean, 1994). In the
book she outlines her opposition to the death penalty. For example, she once asked
a warden the following question:
Do you really believe that Jesus, who taught us not to return hate for hate and
evil for evil and whose dying words were, ‘Father, forgive them,' would participate
in these executions? Would Jesus pull the switch? (Prejean, 1994:122)
Yet many Christians apparently do not see a contradiction between Sister
Prejean's merciful Jesus and a perceived duty to execute. Many Christians point
to Paul's Letter to the Romans (13.4) as proof that God endorses the death penalty
when used appropriately (see, e.g., the June 2000 Southern Baptist Convention
Resolution on Capital Punishment [www. sbc.net/resolutions/]) (supporting "the
fair and equitable use of capital punishment by civil magistrates as a legitimate
form of punishment for those guilty of murder or treasonous acts that result in
Some see the story of Jesus and the woman caught in adultery as another
indicator of Jesus's stance against the death penalty. In this incident, the religious
leaders brought to Jesus a woman allegedly caught in the act of adultery
Religion and capital punishment 209
The typical penalty was capital punishment, but Jesus told the questioners that
"he who is without sin should cast the first stone." Ashamed, they all walked
away (John 8:1-11). Many see this as evidence of Jesus's rejection of the death
One scholar disagrees. H. Wayne House argues that in this incident Jesus is
really concerned about the other party, the man who also committed adultery.
House argues that under Mosaic Law both parties to adultery should be charged.
Furthermore, the witnesses are guilty of a capital crime by charging only the
woman. House argues that here Jesus is taking the procedural issues very seriously
and thus is not condemning capital punishment but calling for correct process
In their official statement on the death penalty, U.S. Catholic bishops urged fellow
Christians "to remember the teaching of Jesus who called us to be reconciled
with those have injured us" (Matthew 5:43-45) and to pray for forgiveness for
our sins "as we forgive those who have sinned against us" (Matthew 6:12) (U.S.
Catholic Bishops' Statement on Capital Punishment, 1980:7).
While Biblical scholars and theologians can argue about these and other passages,
Sister Prejean's comment that it seems incongruous that the Jesus who
preaches love and forgiveness (e.g., "Love your neighbor as yourself"; "Forgive
seven times seventy") would favor capital punishment seems logical. Furthermore,
societal conditions have changed considerably since the time of Jesus. Lengthy
prison terms were not the norm (nor a viable alternative to capital punishment)
2000 years ago, when Jesus walked the earth, but they are quite possible today.
Several Christian churches have issued formal statements against capital punishment
based on their interpretation of the teachings of Jesus. For example, both
the Roman Catholic Church and the Presbyterian Church have issued formal statements
opposing the death penalty (U.S. Catholic Bishops' Statement on Capital
Punishment, 1980; Presbyterian Moratorium on Capital Punishment). However,
as noted, the Southern Baptist Convention has issued a statement in favor of the
Theologian George Boyd has an interesting opinion about the death penalty. He
opposes the death penalty because he thinks that a convicted murderer might think
that his or her debt to society can be paid by accepting the death penalty. Boyd
does not want any murderer to be able to feel that way: "Murderers should never
be allowed the comfort of the illusion that they can ‘pay' for their crime" (Boyd,
In conclusion, churches and theologians are not in agreement over the death
penalty. Some religious people, such as Sister Helen Prejean, are very active in
trying to abolish the death penalty. Others, however, such as the Southern Baptist
Convention, endorse capital punishment. It is somewhat perplexing that followers
of the same religious leader, Jesus Christ, sincerely XXXXX XXXXX different
positions on such a fundamental issue as the death penalty. Perhaps this controversy
indicates that believers must struggle with such basic issues and try to come
up with a workable solution.
210 CHAPTER 12 To die or not to die
ALTERNATIVES TO THE DEATH PENALTY
If states were to abolish the death penalty, the most likely current alternative would be
a sentence of life without any possibility of parole (LWOP). In the last 5-10 years, this
option has been mentioned most frequently as an alternative punishment.
For example, in a 2004 nationwide poll, 50 percent of the respondents favored
the death penalty and 46 percent favored LWOP, compared to 52 percent favoring
the death penalty and 37 percent favoring LWOP in 2000 (Gallup Poll, adapted by
Sourcebook of Criminal Justice Statistics Online, www.albany.edu/sourcebook).
Some utilitarians question LWOP in terms of costs. Assuming that it costs approximately
$20,000 to keep an offender in prison for 1 year and assuming about 50 years
of incarceration for a typical murderer, LWOP could easily cost the state about $1million
per inmate. That is a considerable expense. It is not uncommon to hear citizens
question the expenditure of so much money on someone who has taken a human life.
("Why should I as a taxpayer have to pay to keep a murderer alive?")
Opponents of the death penalty contend that it is in fact more expensive to execute
a murderer sentenced to capital punishment. This statement at first seems difficult
to believe, but capital cases take extra time and money, states mandate at
least one court appeal, defendants usually pursue additional discretionary appeals,
and death rows can be expensive if the inmates are not working. When all the costs
of capital punishment are added up, it can cost the state from $2.5 to $5 million to
execute one individual (Bohm, 2003).
To be fair, if capital punishment were abolished and LWOP were the most serious
penalty, it is likely that murderers would pursue many appeals of that sentence as
well. It also seems reasonable, though, that trials and other costs of LWOP sentences
would never come to equal the time and expense of capital punishment verdicts.
Many murderers would probably accept LWOP sentences instead of capital
punishment. Most seem to want to stay alive even if it means endless years in
prison. However, it is important to note that not every murderer would agree.
One murderer on death row, for example, was very clear in insisting that he was
not desirous of spending the rest of his natural life on death row. In his words,
he did not want to be "locked in Hell for all of eternity" (Arriens, 1997:82).
The other alternative to the death penalty is a life sentence with the possibility
of parole. This option is not very popular at present. Most of the research focuses
on either the death penalty or LWOP. A major reason seems to be public sentiment;
the public wants murderers either executed or locked up permanently.
An argument in favor of the possibility of parole for murderers is the fact that
some murderers succeed quite favorably on parole. ABC did a fascinating documentary
about 20 years ago that followed the lives of 40 death row inmates in
California. A state appeals court overturned the death penalty in California, and
the death row prisoners (108 of them at the time) became eligible for parole. Over
the years, the parole board paroled 40.
Thirty-four of the individuals "succeeded"-got jobs, married, raised kids, and
even did such things as speaking to high school students to try to encourage them
BOX 12.3 SCOTT TUROW'S COMMENTS ON THE DEATH PENALTY
Scott Turow, the author of such best-selling novels as Presumed Innocent and Reversible
Errors, was a prosecutor and recently served on a governor's commission in Illinois looking
into the death penalty in that state.
On one hand, he notes that he himself would be willing to inject the fatal poison if the
murderer were a killer such as John Wayne Gacy, who tortured and killed 33 young men.
Along these lines, he and the other members of the commission voted to limit capital
punishment to five criteria: multiple murders, murder of a police officer or firefighter, a killing
in prison, a murder impeding the criminal justice system, or a murder with torture.
On the other hand, Turow is painfully aware that "[n]ow and then, we will execute
someone who is innocent . . ." (Turow, 3003:47). Thus when the commission came to a final
vote on whether Illinois should have the death penalty or not, Turow reports, "I voted no"
to live positive lives and stay out of crime. Some failed, however; one committed a
new murder and one committed a horrible rape.
Although the current climate is not favorable for the option of life with the possibility
of parole, evidence that some parole murderers do so well in terms of jobs,
relationships, and parenting raises the issue that perhaps this should be an option
for some. (See Box 12.3 for Scott Turow's comments on the death penalty.)
In this chapter, we tried to present some of the ethical questions about the death
penalty. This chapter is not meant to provide complete coverage of the topic. For
further coverage, see Bohm (2003) or Costanzo (1997).
Utilitarians would consider the consequences of the death penalty such as deterrence,
incapacitation, mistakes, and discrimination. Deontologists would consider
the duty to punish and whether the death penalty is the deserved penalty for murder
or whether other penalties such as life without parole can be a sufficient punishment
for the crime of murder. The peacemaking perspective focuses on the core principles
of caring, connectedness, and mindfulness as they pertain to the death penalty. As
we have noted, many people also bring religious arguments into the debate.
What each person must do is examine the reasons for his or her current position
on the death penalty and ask if those reasons seem sufficient. If they do not, the
individual should investigate further and come to a new position that is in line
with the information that is currently available about the death penalty and its
For more information on the death penalty, go to http://www.deathpenaltyinfo.org/
212 CHAPTER 12 To die or not to die
Arriens, J. (Ed.), (1997). Welcome to hell: Letters and writings from death row. Boston:
Northeastern University Press.
Baldus, D. C., & Woodworth, G. (2003). Race discrimination in the administration of the
death penalty: An overview of the empirical evidence with special emphasis on the
post-1990 research. Criminal Law Bulletin, 39, 194-226.
Bedau, H. A. (1997). Prison homicides, recidivist murder, and life imprisonment. In H. A.
Bedau (Ed.), The death penalty in America (pp. 176-182). New York: Oxford University
Bohm, R. M. (2003). Deathquest II: An introduction to the theory and practice of capital
punishment in the United States. Cincinnati: Anderson.
Bohm, R. M. (2007). Deathquest III: An introduction to the theory and practice of capital
punishment in the United States. Newark, NJ: LexisNexis Matthew Bender.
Bonczar, T. P., & Snell, T. L. (2003). Capital punishment, 2002. Washington, DC: U.S.
Bowers, W. J., Fleury-Steiner, B. D., & Antonio, M. E. (2003). The capital sentencing decision:
Guided discretion, reasoned moral judgment, or legal fiction. In J. R. Acker, R. M.
Bohm & C. S. Lanier (Eds.), America's experiment with capital punishment: Reflections
on the past, present, and future of the ultimate penal sanction (pp. 413-467). Durham,
NC: Carolina Academic Press.
Bowers, W. J., & Foglia, W. D. (2003). Still singularly agonizing: Law's failure to purge
arbitrariness from capital sentencing. Criminal Law Bulletin, 39, 51-86.
Boyd, G. N. (1988). Capital punishment: Deserved and wrong. Christian Century, (February
17, 1988), 162-165.
Bureau of Justice Statistics, (2007). Capital punishment statistics. Found at www.ojp.usdog
Cabana, D. A. (1996). Death at midnight: The confession of an executioner. Boston: Northeastern
Chamlin, M. B., & Cochran, J. K. (2000). Deterrence and brutalization: The dual effects of
executions. Justice Quarterly, 17, 685-706.
Costanzo, M. (1997). Just revenge: Costs and consequences of the death penalty. New York:
St. Martin's Press.
Death Penalty Information Center, (2007). Death row inmates by state and size of death row
by year. Found at www.deathpenaltyinfo.org/article.php?did¼188.
Feld, B. C. (2003). The politics of race and juvenile justice: The ‘Due Process Revolution'
and the conservative reaction. Justice Quarterly, 20, 765-900.
Gillespie, L. K. (2003). Inside the death chamber: Exploring executions. Boston: Allyn &
House, H. W. (1997). The new testament and moral arguments for capital punishment. In
H. A. Bedau (Ed.), The death penalty in America: Current controversies (pp. 415-
428). New York: Oxford University Press.
Johnson, R. (1998). Death work: A study of the modern execution process. Belmont, CA:
Lezin, K. (1999). Finding life on death row: Profiles of six inmates. Boston: Northeastern
Liebman, J. S., Fagan, J., & West, V. (2000). A broken system: Error rates in capital cases.
Found at www.law.Columbia.edu/instructionalservices/liebman.
Lundman, R. J. (1993). Prevention and control of juvenile delinquency (2nd ed.). New York:
Mandery, E. J. (2003). The principles of proportionality review. Criminal Law Bulletin, 39,
Marquart, J. W., & Sorensen, J. R. (1997). Correctional contexts: Contemporary and classic
readings. Los Angeles, CA: Roxbury Publishing Co.
Masters, J. J. (1997). Finding freedom: Writings from death row. Junction City, CA:
Mello, M., & Perkins, P. J. (2003). Closing the circle: The illusion of lawyers for people litigating
for their lives at the Fin de Sie`cle. In J. R. Acker, R. M. Bohm & C. S. Lanier
(Eds.), America's experiment with capital punishment: Reflections on the past, present,
and future of the ultimate penal sanction (pp. 347-384). Durham, NC: Carolina Academic
Peterson, R. D., & Bailey, W. C. (2003). Is capital punishment an effective deterrent for
murder? An examination of social science research. In J. R. Acker, R. M. Bohm &
C. S. Lanier (Eds.), America's experiment with capital punishment: Reflections on the
past, present, and future of the ultimate penal sanction (pp. 251-282). Durham, NC:
Carolina Academic Press.
Prejean, H. (1994). Dead man walking: An eyewitness account of the death penalty in the
United States. New York: Vintage Books.
Schlosser, E. (2003). Reefer madness: Sex, drugs, and cheap labor in the American Black
Market. Boston: Houghton Mifflin.
Sellin, T. (1980). The penalty of death. Beverly Hills, CA: Sage.
Turow, S. (2003, January 6). To kill or not to kill: Coming to terms with capital punishment.
The New Yorker, 40-47.
United States Conference of Catholic Bishops (1980). Statement on capital punishment.
Available at http://www.usccb.org/sdwp/national/criminal/death/uscc80.shtml.
van den Haag, E. (2003). Justice, deterrence and the death penalty. In J. R. Acker, R. M.
on the past, present, and future of the ultimate penal sanction (pp. 223-249). Durham,
1. How serious an ethical issue is the problem of mistakes relating to the death
penalty? Is the death penalty ethical if there is only one mistake a year? One
every five years? Is perfection necessary? Why or why not?
2. Discuss the relative merits and problems of a sentence of life without parole
versus the death penalty. Which seems more ethical? What are the problems
3. Would death penalty opponents really be satisfied if life without parole
became the most serious penalty? If the death penalty were abolished, would
death penalty opponents then try to abolish life without parole, claiming it to
be too harsh?
214 CHAPTER 12 To die or not to die
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Discuss religious arguments for and against the death penalty. What do you
think religion suggests we should do about the death penalty?
Case Study 12-1 Politics or Ethics? A Governor's Prerogative
"Joe, get in here. It looks like trouble with that DA down in Blackshear County."
The governor's middle-aged chief of staff sat down the leather chair facing the
governor's desk, a fax in his hand.
"It looks pretty bad, Governor. Boscoe's the DA down there. It looks like a major political
screw-up, not to mention a legal nightmare."
Roy Maden, the governor of his great state, drummed his fingers impatiently on his
desktop. "And of course, Boscoe just happens to be one of the most vocal and high-profile
Republicans in our fine state. That will be just dandy with me running for election next year.
The Democrats will have a field day."
Joe shifted in his chair as he looked solemnly at his friend of many years.
"No question about Boscoe's political ambition. He has a perfect batting average with
capital cases. He's sent 'em all to death row. Fact is, he's sent a little over four times as
many to the row as any other DA in the state. Most of the folks around here feel like he's
setting himself up for a run at governor after you finish your next term."
"Well, ‘the best laid plans of mice and men' . . . Boscoe the Bozo wasn't counting that
group of law students and their professor taking a closer look at his cases."
Governor Maden rubbed his forehead as he stared out his office window.
"Joe, what's the botXXXXX XXXXXne?"
"According to the legal and forensics experts I've talked to, there's pretty solid buzz that
at least a quarter of his cases are bogus and there are questions about a number of others.
Missing DNA that's supposed to be on file, withholding evidence from defense attorneys,
and even worse, the names of two detectives keep popping up in the most suspicious
The governor's eyes widened. "You don't mean . . . ?"
"Yes, sir, it looks like a criminal conspiracy could be involved."
Roy Maden could feel a headache coming on.
"Give it to me straight, Joe. What are my options?"
Joe stroked his chin and considered the choices at hand before speaking.
" You could stall the investigation until after you are reelected, then go after Boscoe.
The downside is that two of the inmates on death row are out of appeals and are scheduled
to be executed before the election. I've checked their rap sheets, and they both have a long
list of assaults. Some of our folks say that the world would be better off without them."
The governor looked intently at his trusted friend.
"What do you say, Joe?"
1. Discuss the various choices the governor could make from utilitarian, deontological, and
2. What would be the most moral and ethical course of action the governor could take?
What would be the probable consequences for the governor, the district attorney, and
death row inmates?
What lies behind us and what lies before us are tiny matters compared to
what lies within us.
-Ralph Waldo Emerson
Can offenders be corrected by encouraging them to behave more ethically? By
teaching them how to recognize and analyze moral dilemmas? Few would
argue that this practice alone will dissuade many people from crime, but it is
equally clear that an ability to assess the harmfulness of one's acts and to
anticipate consequences may be prerequisites to moral and law-abiding
conduct. Given that ability, one can then specify the skills and contexts likely
to encourage ethical conduct.
Correctional staffs inside and outside institutional boundaries also need to
know how to assess moral dilemmas and how to behave in an ethical fashion
216 SECTION IV Ethical issues in corrections
Too often, situational factors work against this objective. Many correctional
institutions are plagued by high staff turnover, which means that a high
percentage of guards are rookies. These individuals must confront a
population of offenders housed in crowded circumstances, inmates whose
chief objective is to do their time with as little discomfort as possible. Prison
inmates are generally quite interested in paying off guards to improve their
living circumstances, to turn a blind eye to various institutional infractions,
and/or to bring illicit substances or weapons into the institution. Because
these inmates may know as much about running the institution as some of the
guards, it is often very easy for correctional officers to become dependent on
inmates for assistance in doing their jobs, only to find that inmates expect
something in return.
Probation and parole officers face different but related problems. The
"burned out" probation or parole officer may be as reluctant to supervise his
or her clients as the "burned out" police officer is to answer calls. Or misuse
of authority might mean that a probationer or a parolee is harassed by his or
her supervisor. Discrimination results when the conditions of release are
enforced differently against certain offenders.
The ultimate power of the probation or parole officer is the ability to
initiate revocation proceedings that can send the offender to prison. The
challenge is to use this authority in the same manner as the ethical police
officer employs his or her coercive power-with an understanding of humanity
but with a willingness to intervene for the greater good.
Probation and parole officers have worked hard to establish themselves as
professionals; correctional officers have had greater difficulty in this regard,
largely because the positions often require little education and offer very low
pay. For many people, working as a correctional officer is only an interim job.
The Federal Bureau of Prisons offers a notable exception to this pattern.
There, the correctional officer's position is viewed as the entry point on a
career ladder. This practice, employed in conjunction with the conscientious
screening of new employees and the use of a management scheme that serves
to discourage corruption, works to make the federal prison system an
environment more likely to promote high ethical standards.
THIS IS THE END OF CHAPTER 12
Ethical issues in probation,
parole, and community
acceptable penal content
mission of probation and parole
Probation and parole are critical parts of corrections. In 2008 (the latest figures
available), more than 4.2 million adults were on probation and more than
800,000 adults were on parole. High percentages of both probationers and parolees
were on supervision for drug offenses (30 percent of probationers and 37 percent
of parolees; Glaze & Bonczar, 2009).
It is no accident that more movies and television shows are made about police
officers than about probation and parole officers. Because probation and parole are
not as dramatic as policing, the ethical issues in probation, parole, and other types
of community correctional programs are somewhat more ordinary. Probation and
parole officers simply do not have the opportunities to become involved in dramatic
matters such as the drug busts and corruption involving some police officers
in large cities.
This does not mean that there are no ethical issues in probation and parole. It
just means that the issues are usually less dramatic and more subtle. This chapter
discusses some of the problems that can arise in probation and parole work, including
ethical issues concerning intensive supervision, electronic monitoring, and
Before delving into the ethical issues in community corrections, it may be helpful
to state some assumptions. In this chapter, it is assumed that there are certain
218 CHAPTER 13 Ethical issues in probation, parole
values to guide ethical choices, such as truth, honesty, fairness, hard work, and
consideration for others. For this discussion, it does not matter whether these
values are considered moral absolutes or simply mutually agreed-on conventions.
Whatever their sources, the following discussion assumes such values exist and
that most individuals subscribe to them. For example, it is assumed that it is ethical
for probation and parole employees to put in a full day's work for a full day's pay.
Employees who do less are considered to be acting unethically.
THE MISSION OF PROBATION AND PAROLE
The major ethical issue in probation and parole is the definition of the mission of
community supervision. This term refers to deciding on the purpose or objective of
supervision. Traditionally, the mission of probation and parole supervision has
been described as some combination of assistance and control, treatment and security,
or service and surveillance (Skeem & Manchak, 2008; Studt, 1973). In other
words, officers are supposed to provide services to offenders while also monitoring
them so that the community is protected from new crimes.
In the past few years, a number of voices have been calling for corrections to
revert to a very punishment-oriented philosophy. It is not unusual to hear calls
for spartan prisons with few or no amenities for prisoners. Critics have voiced their
opposition to television (both cable and regular broadcast programming), weightlifting
equipment, and athletics as needless frills that prisoners, by virtue of their
crimes, simply do not deserve. Extremists call for the reinstatement of chain gangs;
slightly less strident souls simply suggest hard labor for all prisoners to keep them
busy and to punish them for their transgressions.
The community corrections corollary to these punitive measures would be stringent
supervision: frequent reporting, curfews, work or community service requirements,
fines, supervision fees, and drug testing. These measures would make
probation and parole as punitive as possible. The mission would be punishment, pure
and simple. The role of the officer would be to make sure that the punishment is
Just as prison extremists urge the return of chain gangs, probation-parole extremists
urge several harsh changes for community supervision offenders. One is the
wearing of insignia to mark one's status as an offender. Offenders would wear
shirts or vests or license plates proclaiming to the world their status as an offender
(e.g., "drunk driver," "shoplifter," etc.) as they shop at the mall or drive down the
street. Society would mark offenders with a "scarlet letter": D for drunk driver or S
for shoplifter, just as puritan New England branded the Hester Prynnes of its day
for adultery. (This issue is considered further in a later section concerning acceptable
The new penology (Feeley & Simon, 1992) takes a less strident stance and
argues that probation and parole should be efficient monitors of the conditions of
supervision. If an offender fails to follow the conditions of supervision, the officer
The mission of probation and parole 219
should be swift to report the failure to the court or the parole board. Sufficiently
serious or frequent violations would land the offender in prison. Ironically, failure
becomes success in this model. Whereas old-fashioned officers who aimed for the
rehabilitation of offenders would consider recidivism (new crimes) a failure of
supervision, new penology officers would consider a new crime a success as long
as it is noted and used to get the offender back into prison. Here, the officer claims
that he is doing his job because signs of continuing criminal tendencies are used to
get the offender off the street. The objective is to classify offenders into various
categories of risk and to place them into the proper risk-management response.
There is no pretense of trying to rehabilitate or cure the offender.
One of the most hopeful philosophies of probation and parole is the restorative
justice model. This model of criminal justice is concerned with reparation
to the victim and involvement of the victim in the criminal justice process,
remorse and accountability for offenders, and peace and justice for the community
(McDowell & Whitehead, 2009). This model argues that neither punishment
nor treatment alone is effective in changing offenders or restoring the victim or
the community to its pre-crime state. Instead, the model focuses on reparation,
restitution, dialog, and negotiation to restore the victim and the community to
their pre-crime state. The model involves both a micro-dimension (offender reparation
and restitution to the victim[s]) and a macro-dimension (a community
responsibility for crime control and the need for order and safety in the
One ethical issue underlying these reconceptualizations of the mission of probation
and parole is the question of what society owes the offender. The easy
answer is that society owes the offender nothing. The criminal has broken the
law, and he or she must pay a debt to society. This view is congruent with classical
or neoclassical theories of criminal behavior that emphasize free will and
accountability. (For more discussion, see, for example, Miller, Schreck, &
Tewksbury, 2008.) Offenders are seen as choosing crime and as responsible for
their actions. The only questions are the determination of the debt the offender
must pay to society and the control of the offender so that new crimes are prevented.
Thus, the focus is on retribution, deterrence, and incapacitation. There
is little or no emphasis on assistance to the offender.
Positivist theories of crime, however, contend that crime is not so simple.
Biological, psychological, and sociological factors explain criminal behavior
(Miller et al., 2008). Human behavior reflects all sorts of influences, ranging
from genetic makeup to parental upbringing to the availability of educational
and job opportunities. Positivist perspectives imply that society has a responsibility
to assist the offender because societal factors have contributed to the
criminal behavior. Thus, there is a direct link between positivist perspectives
and programs to assist offenders in prison and in the community.
The peacemaking perspective outlined in an earlier chapter in this book suggests
that all of us have a responsibility to the offender. The principles of caring
and connectedness imply that we cannot simply ignore offenders-that our
220 CHAPTER 13 Ethical issues in probation, parole
common humanity is the basis for remembering that offenders are like us and want
and deserve humane treatment and assistance.
The ethical question is this: Can society embrace a neoclassical perspective-
assume offenders are totally free and responsible-and simply ignore any consideration
of assistance to offenders? Or does society have some obligation to help
offenders to some degree?
Recent research suggests an answer to this question. The ideal probation program
appears to be a balance of punishment and treatment. The punishment side
includes monitoring of probation conditions, taking action if the probationer violates
the conditions, and enforcing such punitive conditions as paying court costs,
fines, and restitution. The treatment side involves recognizing that the probation
officer has a critical role in helping to motivate the offender to change and in monitoring
the offender's progress. One approach is to set up a behavioral contract with
the probationer so that the offender earns points for treatment attendance and other
positive activities. A leading proponent of this model, Faye Taxman, argues that
the objectives should be realistic, such as lowering overall recidivism from a current
average of 45 percent to a significantly lower average of 35 percent (Taxman,
An evaluation of a probation program in Maryland that used the new model of
probation showed promising results. Probationers were given risk assessments,
probation officers used motivational interviewing techniques, and offenders were
given three goals a month, including participation in treatment services. Only 30
percent of the new probationers were rearrested during 2 years versus 42 percent
of the control group (Taxman, 2008).
Hence, the best current answer seems to be a reasonable blend of punishment
and treatment, not a strident call for overly harsh models of probation and parole.
This solution seems to make the most sense ethically and in light of the research
evidence. (For a related discussion of allowing probationers to vote, see Box 13.1.)
BOX 13.1 VOTING RIGHTS FOR PROBATIONERS/PAROLEES
In 2001 Connecticut passed a law restoring the voting rights of convicted felons on probation.
As a result, about 36,000 felons on probation were given back the right to vote.
The original intent of laws limiting voting rights was to punish criminals. Efforts such as
the Connecticut law arose out of several concerns. One was the disproportionate racial impact
of laws denying voting rights to felons. For example, in Connecticut it was estimated that
about 20 percent of the state's adult black male population could not vote because they were
on prison or on probation or parole. Another concern was that such laws are unfair. One reason
is that these citizens had other responsibilities of citizens, such as paying taxes, so denying
them the right to vote was taxation without representation. What do you think? Are states such
as Connecticut correct to now allow felons on probation to vote? Or, for at least some period of
time, is it fair to deny voting privileges to felons as a collateral punishment for their crimes?
For details on the law change in Connecticut, see McMiller (2008).
The effectiveness of community corrections 221
THE EFFECTIVENESS OF COMMUNITY CORRECTIONS
Both probation and parole have had questions raised about their effectiveness.
Although probation is often effective, a disturbing study of felons on probation
found that 65 percent were rearrested within 40 months of being placed on
probation (Petersilia, Turner, Kahan, & Peterson, 1985). Subsequent research has
shown that this particular study indicated an unusually high rate. Studies of felony
probation in both Missouri and Kentucky showed new arrest rates at just slightly
over 20 percent, and a study in New Jersey showed an arrest rate of 36 percent
for approximately 3 years under supervision (Whitehead, 1991). Another positive
note about probation is that 63 percent of probationers who exited probation in
2008 were either discharged early or completed their term (Glaze & Bonczar,
The Urban Institute did a major study of parole effectiveness in 2005. Their primary
conclusion was that parole does not really work. Approximately 60 percent
of offenders either released directly from prison or released to parole supervision
were rearrested within two years of release. Concerning parole exits, about half
(49%) of parolees who exited parole in 2008 were either discharged early or completed
their sentences (Glaze & Bonczar, 2009).
A smaller study in New Jersey found a slight advantage for parolees in recidivism.
Specifically, 60 percent of parolees were rearrested up to 4 years after
release, compared to 70 percent of prisoners released directly from prison
(Schlager & Robbins, 2008).
A documentary on parole suggests several critical issues affecting parole success
rates. The documentary A Hard Straight looks at four California parolees as
they leave prison and enter parole. One parolee has no place to live. He asks his
parole officer to help him find a place to live but the officer offers no help at
all. In a short period of time, this parolee absconds and then winds up back in
prison. A second parolee is seen drinking a glass of wine on the train from prison
back to her hometown even though we later learn that drinking was a significant
problem for her before her prison sentence. Apparently, prison did little or nothing
to help her with her substance abuse problems.
The ethical issue is the responsibility of society to help offenders both in prison
and during the reentry process. If we as a society are releasing people from prison
and they have no place to live or if they still have a drinking problem, recidivismrates
of 60 or 70 percent are not surprising. If a person goes into prison without a high
school diploma, with no job skills, with a drinking or other drug problem, and comes
out of prison with no job or no place to live, is there any reason to expect success?
A deontological approach to this issue is this question: What duty does society
have to help offenders? A corresponding question for the offender is this: What is
the duty of the offender to try to take advantage of programs in prison or on
parole? The utilitarian perspective is the consequences of maintaining probation,
prison, and parole systems that seem set up for failure rather than success. If high
percentages of probationers and released offenders are committing new crimes on
222 CHAPTER 13 Ethical issues in probation, parole
probation or after release, society is experiencing the costs of those new crimes and
the costs of sending people back to prison instead of seeing probationers and parolees
occupying responsible positions in the economy, among their families, and in
their neighborhoods. Such costs do not appear to represent the greatest good for the
There are two dimensions to the ethics of probation and parole supervision.
One dimension is the agency or institutional dimension. Both probation and parole
agencies need to have effective programs in place. They both need to have educational,
job training and job placement, substance abuse, and other programs available
The second dimension is the individual dimension. Each officer has a duty to
work effectively with his or her probationers and parolees to help them take advantage
of the programs that are available. In the documentary we previously noted,
one parole officer was very concerned about her parolee and was trying to get
her to see that her drinking was a significant problem, a problem directly related
to criminal activity in her case. However, the parole officer who was explaining
the conditions of parole supervision to the new parolee, who had no place to live,
seemed uncaring. Granted, he noted that the parole agency no longer had a program
for linking parolees to places to reside. However, he seemed burned out
and appeared to offer no assistance at all. One would hope that a parole officer
would be aware of shelters or halfway houses and could at least tell such a parolee
that Shelter X or Place Y could take the offender in for a few nights while the
offender and the officer together tried to figure out a plan.
Both the agency and the officer need to be working to help probationers and
parolees with problems such as education, substance abuse, job training, and overall
adjustment. If either the agency or the officer neglects his or her responsibilities,
recidivism is more likely to result.
ACCEPTABLE PENAL CONTENT
In the discussion of the mission of probation and parole, it was noted that extremists
argue that some offenders should wear shirts or bumper stickers marking
them as drunk drivers, shoplifters, or whatever crime the person has been convicted
of. In a thought-provoking piece, von Hirsch (1990) notes the ethical
concern that any such innovations not insult or demean offenders but satisfy
the standard of acceptable penal content1:
Acceptable penal content, then, is the idea that a sanction should be devised so
that its intended penal deprivations are those that can be administered in a manner
that is clearly consistent with the offender's dignity. If the penal deprivation
includes a given imposition, X, then one must ask whether that can be undergone
by offenders in a reasonably self-possessed fashion. Unless one is confident
that it can, it should not be a part of the sanction. (von Hirsch, 1990:167)
Intensive supervision issues 223
Thus, von Hirsch is opposed to shirts or bumper stickers that make drunk drivers
advertise their offense because there "is no way a person can, with dignity, go
about in public with a sign admitting himself or herself to be a moral pariah"
(1990:168). Similarly, he would be opposed to chain gangs because it is not possible
to undergo such a measure with any sense of dignity.
Proponents of identifying labels for offenders would argue that they enhance
the punishment value of community corrections. Such marks make probation or
parole tougher rather than a lenient "slap on the wrist." Supporters would also
argue that there may be deterrent value in the measures. It is embarrassing to wear
such markings, and this could serve to deter others from drunk driving or whatever
offense results in the added penalty.
Von Hirsch also relates the concept of acceptable penal content to home visits.
Traditionally, probation and parole officers have made unannounced home visits to
check on offenders and to offer assistance and counseling. Von Hirsch approves of
. . . only as a mechanism to help enforce another sanction that does meet our
suggested standard of acceptable penal content. . . . It is not plausible to assert
that, without any other need for it, the punishment for a given type of crime
should be that state agents will periodically snoop into one's home. (von Hirsch,
INTENSIVE SUPERVISION ISSUES
For the past decade or more, reformers have advocated intensive supervision as a
way to improve regular probation and parole supervision. Giving officers smaller
caseloads so that they can provide closer supervision-more frequent contacts-
has been supported for both crime control and rehabilitation goals. Intensive supervision
raises some ethical concerns.
The major concern about intensive supervision can be labeled a "truth in advertising"
issue. Intensive supervision has been promoted as the cure for the failure of
traditional probation to decrease the recidivism of felony offenders. The major
problem with this claim is that it is simply not true. A major evaluation of several
intensive supervision programs concluded that there were no differences between
intensive and routine supervision programs (Petersilia, Peterson, & Turner,
1992). Many offenders do benefit from the programs, but intensive supervision is
not a panacea or cure-all for the ills of ordinary probation. In addition, as noted,
it appears that treatment components rather than control components may be
related to offender success (Petersilia, 1997). Second, the programs divert some
offenders from prison but not as many as had been anticipated. Many of the offenders
placed into intensive supervision programs would have gone into regular probation
if the intensive programs were not available. One study estimated that only
one-half of the offenders placed into the program would have gone to prison if the
224 CHAPTER 13 Ethical issues in probation, parole
program had not been available to judges (Whitehead, Miller, & Myers, 1995).
Third, ironically, intensive supervision programs can and do operate to increase
prison populations. The more intensive monitoring involved in these programs
(e.g., urinalysis testing) can lead to the detection of illegal drug use or other
offenses, which can result in violations. Therefore, offenders on intensive supervision
face a higher risk of being detected for behaviors that will send them to prison
than do offenders on regular supervision (see Clear & Braga, 1995). Fourth,
although intensive supervision can be less expensive than prison, it is more expensive
than ordinary supervision.
The ethical issue is whether to continue to promote intensive supervision as a
means to reduce recidivism and to reduce prison populations when in fact intensive
supervision fails to achieve the dramatic results many had promised. Probably, the
most honest summary statement about intensive supervision is that it can serve as a
probation enhancement. It can make probation tougher than it used to be. This,
however, is a much less dramatic claim than was originally made. One wonders
if such a reduced claim will be enough to keep intensive supervision popular.
Another concern is that both punitive and risk-control conditions of intensive
supervision "are applied across-the-board without much attention to the individual
circumstances of the case" (Clear & Hardyman, 1990:54). For example, every
intensive supervision offender may be subject to urinalysis checks for drug use,
even though many have never shown any indication of drug use. This can create
a problem of discovering that an offender is adjusting positively on supervision
except for recreational marijuana use. The dilemma, then, is how to react to the
drug violation. A violation and incarceration would be an ironic twist to the stated
intent of many programs to divert offenders from prison. A likely scenario is that
"the probation officer is forced to play a type of game-warning the offender and
noting the violation but trying to avoid action unless something else happens in the
case" (Clear & Hardyman, 1990:54). Such game playing is hardly new (see
McCleary, 1978, for example), but it cannot be avoided in face of the fiscal fact
that the "resources simply do not exist to carry out all the threats made in the ISPs
[intensive supervision programs] . . ." (Clear and Hardyman, 1990:54).
Another ethical concern is the contention that electronic monitoring is an insidious
invasion of the privacy of the home-a principle enshrined in the Fourth
Amendment. Corbett and Marx argue that electronic monitoring destroys the privacy
of the home:
Figuratively, prisons have been dismantled, and each individual cell has been
reassembled in private homes. Once homes start to serve as modular prisons
and bedrooms as cells, what will become of our cherished notion of "home"?
If privacy is obliterated legally in prison and if EM [electronic monitoring] provides
the functional equivalent of prison at home, privacy rights for home confinees
and family members are potentially jeopardized. (1991:409)
Such concern for any alleged violation of privacy is certainly less a problem
when it comes to sex offenders, a group of offenders who are quite likely to get
Intensive supervision issues 225
house arrest with electronic monitoring. Most citizens would argue that sex offenders
merit such monitoring in light of the seriousness of their crimes.
In short, there are some serious problems surrounding intensive supervision,
house arrest, and electronic monitoring. To expect that recent interventions are correctional
cure-alls is to invite unnecessary disillusionment.
Officer concerns in intensive supervision programs
A frequently ignored consideration in the development of intensive programs is the
impact such programs will have on the line personnel. Several scenarios are foreseeable.
One is popular acceptance by workers. Given the greater role clarity inherent
in the recent intensive supervision programs compared to the role ambiguity
and role conflict frequently found in traditional probation, positive worker attitudes
are a distinct possibility. Another possible scenario, however, is initial euphoria
followed by more negative attitudes. Given the expectations of line officers to
monitor offenders 24 h a day, 7 days a week, officers may temporarily experience
the special aura of an exciting innovation only to sink into a depression occasioned
by unrealistic expectations. Who wants to be on call all hours of the night every
day of the week?
Due to the fiscal constraints on state and local government, it is very possible
that officers in intensive supervision programs will be called on to perform such
Herculean tasks without the resources for backups and relief. Physicians can join
group practice arrangements to find some relief from never-ending demands, but
the officers in these new programs will not have that luxury. Too many state and
local governments are experiencing financial exigency to warrant optimism about
the resources that will be allocated to correctional programs.
Another possible reaction of line officers is that officers assigned regular probation
caseloads may resent the special status and pay of intensive supervision officers.
Regular officers may become envious of the reduced caseloads of intensive
officers, especially if officers with regular caseloads suspect that the intensive
supervision officers' caseloads show little or no difference in risk levels compared
to the regular probationers (Clear & Hardyman, 1990).
Evaluations of intensive supervision in Georgia, Illinois, and New Jersey have
reported positive reactions of line personnel (Tonry, 1990). One partial inquiry into
the effects of home confinement on a nonrepresentative sample of federal probation
officers showed that the officers did not report widespread negative impacts, even
though overtime was routine (Beck, Klein-Saffran, & Wooten, 1990). These findings
suggest that negative effects on workers are not a necessary byproduct of recent
innovations. More research needs to be conducted, however, before firm conclusions
are drawn, especially in light of the fact that corrections employment has
proven to be conducive to stress and burnout (Whitehead, 1989; Williamson, 1990).
A more specific problem that intermediate punishments may pose for correctional
workers is role conflict: "a tension between his control function and his casework
function, having to be both a policeman and a social worker" (Morris & Tonry
226 CHAPTER 13 Ethical issues in probation, parole
1990:183). The enforcement of the conditions of intermediate punishments, such as
urinalysis checks for drug use, necessarily places the officer in the role of an enforcer
because there "is no way in which effective, regular, but unpredictable urine testing
. . . can be made other than as a police-type function" (Morris & Tonry, 1990:185).
One way to resolve this dilemma is through team supervision of offenders
placed on intermediate punishments. With this approach, one team member
emphasizes the enforcement of the conditions of the sanction and the other provides
assistance. Another possible resolution is closer cooperation with local police
(Morris & Tonry, 1990). In the State of Washington, however, it was found that
many probation officers in police-probation partnerships tended to over-identify
with the law enforcement role, contrary to the hopes of those who began the program
(Murphy & Lutze, 2009). Whatever approach is attempted, however, the
basic conflict needs to be addressed.
Another concern is offenders' reaction to community supervision programs.
Although many observers assume that offenders would automatically prefer intensive
supervision, house arrest, or electronic monitoring to prison, research in Oregon
found that one-quarter of the offenders there chose prison over intensive
supervision (Petersilia, 1990). Byrne interprets this finding to mean that "some
offenders would rather interrupt their lifestyle (via incarceration) than deal with
attempts to change it (via compliance with probation conditions)" (1990:23).
Another study found some offenders opting for prison over community supervision,
to avoid financial conditions such as restitution orders (Jones, 1996). Cynics
or conservatives may wonder who really cares what offenders think, but probation
officers know from experience that the attitude of the offender affects, at the very
least, the quality of the supervision experience for officers.
From another perspective, there is concern that class bias may affect decisions
regarding which offenders are selected for these programs. Some offenders might
not have a private residence and thus would be ineligible for house arrest. Some
offenders might not be able to afford the supervision fees associated with either
intensive supervision or house arrest, especially if those fees are high enough to
offset the costs of expensive electronic monitoring equipment. Consequently,
"there may well be a tendency to apply house arrest and electronic monitoring
to the more privileged and to deny it to the indigent" (Morris & Tonry,
1990:217-218). In effect, this could lead to a dual system of sanctions: incarceration
for the poor and alternatives for the wealthy.
Another ethical issue is whether states should privatize probation and parole services
or continue to keep them public. (This topic is also considered in the chapter on
ethical issues and prison.) Privatization of probation appears to be growing. About
10 states now use private probation agencies to supervise misdemeanant probationers.
Private agencies are also providing specific classes or group counseling on
issues such as anger management, alcohol and other drug assessments, domestic violence
programs, job training, and others to probationers under traditional public
agency supervision (Alarid & Schloss, 2009).
Proponents of privatization argue that there are several benefits of turning over
various governmental services to private corporations. One alleged benefit is the
reduction of operating costs. Proponents claim that private enterprise can do things
more efficiently and less expensively than the government. Government operation
is equated with waste and inefficiency. Some of this waste is attributed to the civil
service system, which guarantees job tenure except in extreme circumstances when
jobs are abolished. Civil service workers are not under the same pressures as workers
in private industry, who must consistently show a profit.
Opponents of privatization argue that government agencies can be efficient and
effective. According to this perspective, government offices can adopt efficiencyand
effectiveness-enhancing strategies just as do privately run agencies.
Perhaps, the main argument against privatization is whether it is appropriate for
the government to turn over to private businesses functions as basic as the correctional
supervision of offenders. Many question whether the symbolic task of punishing
offenders should be handed over to workers who wear uniforms that say
"Brand X Corrections" rather than the "State of ____" (American Bar Association,
1986). The most dramatic example of this issue is for "Brand X Corrections" to
carry out capital punishment. Should the state surrender the symbolism of the state
in executing an offender? Less dramatically, is it right for the state to contract out
prison operations that involve the deprivation of liberty and serious disciplinary
measures such as solitary confinement? Set against this context, is it ethical to
allow a private company to operate a probation or parole operation that involves
the very important decision of whether to allow an offender to remain in the community
or be revoked for a violation and sent to prison? Or does the deprivation of
liberty involve a basic right that ought not to be relinquished by the government?
Another concern with regard to privatization is whether the profit motive can
debase corrections. For example, would private probation or parole agencies be
under pressure to keep clients under supervision beyond an appropriate release
time so as to keep caseloads and reimbursements high? Would private agencies
try to pay their employees fair salaries, or would profit pressures work to minimize
salaries and benefits for officers? Would private agencies try to cut services for
offenders (e.g., counseling, drug treatment) to a minimum?
In the nineteenth century, the profit motive did operate to cause significant problems
in many state prison systems. In one juvenile system, for example, boys
were leased out to private contractors for their labor. Hardworking boys would
be kept under supervision longer than necessary because the contractors did not
want to lose their productivity (Pisciotta, 1982).
A recent survey of prosecutors and defense attorneys showed that high percentages
of both groups (79 percent of prosecutors and 69 percent of defense attorneys)
228 CHAPTER 13 Ethical issues in probation, parole
endorsed the use of private agency service providers. Both prosecutors and defense
attorneys, however, did have concerns about private agencies. More than 50 percent
of prosecutors and more than 40 percent of defense attorneys expressed concern over
the staff qualifications of private agencies, and about half of prosecutors and twothirds
of attorneys expressed concerns over the costs charged to probationers going
to private service providers (Alarid & Schloss, 2009).
This last issue of costs merits emphasis. A documentary on plea bargaining in
Texas (Frontline: The Plea) showed a probation system (apparently public) that
emphasized probation officers collecting court costs and supervision fees from probationers
who were working minimum-wage jobs or jobs paying just slightly above
the minimum wage. Granted, taxpayers have a right to argue that criminals should
pay at least some portion of court and supervision costs. However, a number of probation
systems, public and private, are setting probationers up to fail. If the court
orders a probationer to pay $1,000 or more in court costs and even a modest supervision
fee of $20 a week, paying off those costs can be impossible if the offender is
also trying to support himself or herself and children. So the probationer gets behind,
the probation officer files a violation of probation charge, and the judge revokes probation
for failure to pay. It is a contemporary version of debtors' prisons; society
winds up reincarcerating probationers who cannot afford costs and fees.
It could be argued that private agencies might be under even greater pressure
than public agencies to emphasize fee collection. Given the need for private agencies
to show cost advantages over public agencies, it is easy to imagine a private
agency that would consider it a priority to collect fees and court costs to show a
positive botXXXXX XXXXXne.
One response to such problems is spelling out a private agency's responsibilities
to offenders in a carefully devised contract and then monitoring the implementation
of the contract. If state inspectors enforce the contract conditions,
problems can be prevented or quickly resolved. If a private agency does not resolve
any problems, they are in violation of the contract and the agency can be dropped.
Opponents of privatization argue that there is a problem with this argument. If the
state wants to end a contract, there might not be another service provider willing
and able to step in and take over the contracted service. At the very least, it would
take some time for another company to be ready to provide the needed service.
Still another problem with privatization is that private agencies can be overly
selective of the clients (offenders) they want to manage. Private agencies in corrections
and in areas such as welfare (e.g., training public assistance clients to become
job-ready) have been criticized for picking the most capable clients (Rosin, 1997).
The criticism is that these individuals may have been able to succeed on probation
or in getting off public assistance with little or no help. Statistics showing them to
be success stories are thereby misleading. Private agencies have selected the individuals
most likely to succeed and ignored the individuals most in need of intervention,
leaving the state to deal with the more difficult cases.
In summary, proponents of privatization argue that private agencies can provide
needed services such as probation and parole supervision more effectively and
Use of volunteers 229
efficiently than the government has done in the past. Opponents argue that government
agencies can themselves become more effective and efficient, and that there
can be serious problems with privatization. They question whether it is right to
allow the state to give away the highly symbolic function of depriving citizens
of their freedom and supervising the deprivation of liberty.
SUPERVISION OF SEX OFFENDERS
Some community supervision programs for sex offenders have done quite well in
preventing recidivism. For example, a lifetime probation program in Arizona
showed sexual recidivism of only 1.5 percent per year, and a Canadian intensive
supervision parole program had a recidivism rate of less than 4 percent for a
three-year period. A Vermont program found overall new crime recidivism of 19
percent and new sex crime recidivism of 7 percent over a 5-year period (Stalans,
2004). Additional research has shown that what is needed is a containment
approach that includes careful probation or parole supervision, the use of polygraph
tests and field searches of offenders' homes, cognitive-behavioral treatment,
and sharing of communication between probation officers and treatment providers.
Research has also indicated that some offenders are more amenable to treatment
and supervision than others (Stalans, 2004).
Sex offenders face additional problems on probation and parole. Many parolees
have been returned to prison because they were unable to find suitable housing. In
addition, parole rules such as house arrest and electronic monitoring can make it
difficult for parolees to find jobs or to work at jobs that are not 9-to-5 (Burchfield
& Mingus, 2008).
The number of sex offenders on parole may be decreasing in the next few
years. The Supreme Court recently ruled that sex offenders who complete their
prison sentence can be given a civil commitment if they are considered too dangerous
to be released (U.S. v. Comstock, 2010). This decision raises important ethical
issues. Is it ethical to keep someone locked up who has served the prison sentence
that was handed down in court? How far can society go in trying to prevent crime,
even if the crime is as abhorrent as a sex crime?
Given the fears ofmany citizens concerning sex crimes and sex offenders, it is very
possible that this recent Supreme Court decision will open the door for the continuing
confinement of many sex offenders who would otherwise have received parole.
USE OF VOLUNTEERS
Several ethical issues arise in the use of volunteers in probation and parole. The
basic issue is whether it is responsible to use volunteers in the first place. If volunteers
are sought merely to save a government agency from hiring needed probation
or parole officers, some people (e.g., officers and their unions) would argue that
this represents an unethical use of volunteers and that offenders, officers, and
230 CHAPTER 13 Ethical issues in probation, parole
society are being shortchanged. According to this argument, when volunteers are
employed, offenders do not receive the professional supervision and assistance
they need; officers (actually wouldbe officers) are denied jobs because volunteers
are being used instead of hiring additional officers; and, finally, society does not
get the effective supervision it desires.
However, if volunteers are being used for tasks that officers cannot and should
not be doing, there is a valid use for volunteers. An example of this type of volunteer
activity is the establishment of a one-to-one relationship with the offender.
Here, the volunteer acts as a "big brother/big sister" or friend in relation to the
offender. Officers do not have the time to establish such personal relationships
with offenders, nor would it be proper for officers to do so, given their authority
over offenders. Because such one-to-one relationships are the most frequent volunteer
assignments (Shields, Chapman, & Wingard, 1983), it appears that many
volunteers are being used properly.
The critical issue is whether volunteers are doing what additional officers
would be doing or whether they are making unique contributions to the department.
A complicating issue is the fiscal fact that many probation and parole departments
must proceed with reduced funding. Los Angeles County Probation, for
example, lost approximately one-third of its staff due to voter-approved cost cutting.
As a result, caseloads doubled. One part of the department's response to this
crisis was to use more than 1000 volunteers to provide a number of services
(Nidorf, 1996). Ideally, a sufficient number of paid officers should be budgeted
for every department in the country. Realistically, many government bodies are
facing financial limitations and are not funding the number of officer positions that
are needed. In such circumstances, volunteers may allow a department to provide
services it otherwise could not provide.
Like police officers and prison guards, probation and parole officers can become
involved in corruption. They can take money from clients improperly or they can
sexually harass clients. It appears that such problems have not been as widespread
in community corrections as in policing, but these problems do sometimes occur.
In some cases the problem is easy to resolve. In one such case, an officer in
one agency was pocketing the fine and restitution money he was collecting from
offenders. The agency discovered the problem and changed its collection system
from having individual officers collect such monies to having a cashier's office
do so. Under the new system, offenders would go to the cashier's office to make
payments and get a written receipt, and officers and supervisors would receive a
printout each week detailing payments and outstanding balances. The new system
removed any possibility of individual officers pilfering payments. Similarly,
one way to prevent probation and parole officers from sexually exploiting clients,
which has been a significant problem for male guards in women's prisons
(Rathbone, 2006), is to have sex-segregated caseloads, that is, women supervise
women probationers/parolees and male officers supervise only male probationers/
parolees. Finding a solution to corruption, however, is not always so direct.
Managers must be vigilant to detect corruption, yet they must also foster a sense
of trust among their employees.
Although the problems of community corrections might not be as dramatic as those
involved in policing, this chapter has shown that ethical problems do arise. One of
the principal ethical issues is the question of the purpose or mission of probation,
parole, and other types of community corrections. Many people are calling for
punitive approaches to the supervision of offenders. Others, such as those in the
peacemaking school, remind us that religious strands in the American tradition
teach us to respect the humanity of offenders, even when it appears that such offenders
have done horrible deeds and seem to no longer merit humane treatment. This
very basic conflict of ideas is prominent in probation and parole-and it affects
other issues such as privatization and corruption. As the new century unfolds, it
will be important to watch how states and counties decide to answer such questions
about the supervision of offenders in the community.
For more on probation issues, go to www.uscourts.gov and search on Federal Probation
1. Much of the material in this section on acceptable penal content and the following section
on intensive supervision issues is a revision of an earlier analysis of community corrections
written for a chapter in a different book (Whitehead, 1992).
A Hard Straight. (2004), by Goro Toshimo. New Day Films.
Alarid, L. F., & Schloss, C. S. (2009). Attorney views on the use of private agencies for probation
supervision and treatment. International Journal of Offender Therapy and Comparative
Criminology, 53, 278-291.
American Bar Association. (1986). Section of criminal justice, report to the house of delegates.
Chicago: American Bar Association.
232 CHAPTER 13 Ethical issues in probation, parole
Bazemore, G., & Maloney, D. (1994). Rehabilitating community service: Toward restorative
service sanctions in a balanced justice system. Federal Probation, 58(1), 24-35.
Bazemore, G., & Umbreit, M. (1995). Rethinking the sanctioning function in juvenile
court: Retributive or restorative responses to youth crime. Crime & Delinquency, 41,
Beck, J. L., Klein-Saffran, J., & Wooten, H. B. (1990). Home confinement and the use of
electronic monitoring with federal parolees. Federal Probation, 54(4), 22-31.
Burchfield, K. B., & Mingus, W. (2008). Not in my neighborhood: Assessing registered sex
offenders' experiences with local social capital and social control. Criminal Justice and
Behavior, 35, 356-374.
Byrne, J. M. (1990). The future of intensive probation supervision and the new intermediate
sanction. Crime & Delinquency, 36, 6-41.
Clear, T. R., & Braga, A. A. (1995). Community corrections. In J. Q. Wilson & J. Petersilia
(Eds.), Crime (pp. 421-444). San Francisco: Institute for Contemporary Studies.
Clear, T. R., & Hardyman, P. L. (1990). The new intensive supervision movement. Crime &
Delinquency, 36, 42-60.
Corbett, R., & Marx, G. T. (1991). No soul in the new machine: Technofallacies in the electronic
monitoring movement. Justice Quarterly, 8, 399-414.
Dietrich, S. G. (1979). The probation officer as therapist. Federal Probation, 43(2), 14-19.
Feeley, M., & Simon, J. (1992). The new penology: Notes on the emerging strategy of corrections
and its implications. Criminology, 30, 449-474.
Frontline: The Plea. (2004). Director: Ofra Bikel.
Glaze, L. E., & Bonczar, T. P. (2009). Probation and parole in the United States, 2008.
Bureau of Justice Statistics Bulletin. Washington, DC: U.S. Department of Justice.
Jones, M. (1996). Voluntary revocations and the "Elect-to-Serve" option in North Carolina
Probation. Crime & Delinquency, 42, 36-49.
Lilly, J. R., Cullen, F. T., & Ball, R. A. (1989). Criminological theory: Context and consequences.
Newbury Park, CA: Sage.
McCleary, R. (1978). Dangerous men: The sociology of parole. Beverly Hills, CA: Sage.
McDowell, L. A., & Whitehead, J. T. (2009). Varieties of restorative justice: Therapeutic
interventions in context. In D. Polizzi & M. Braswell (Eds.), Transforming corrections:
Humanistic approaches to corrections and offender treatment. Durham, NC: Carolina
McMiller, D. L. (2008). The campaign to restore the voting rights of people convicted of a
felony and sentenced to probation in Connecticut. American Behavioral Scientist, 51,
Miller, J. M., Schreck, C. J., & Tewksbury, R. (2008). Criminological theory: A brief introduction
(2nd ed.). Boston: Pearson/Allyn & Bacon.
Morris, N., & Tonry, M. (1990). Between prison and probation: Intermediate punishments
in a rational sentencing system. New York: Oxford University.
Murphy, D., & Lutze, F. (2009). Police-probation partnerships: Professional identity and the
sharing of coercive power. Journal of Criminal Justice, 37, 65-76.
Nidorf, B. J. (1996). Surviving in a ‘Lock Them Up' Era. Federal Probation, 60(1), 4-10.
Petersilia, J. (1990). Conditions that permit intensive supervision programs to survive. Crime
& Delinquency, 36, 126-145.
Petersilia, J. (1997). Probation in the United States. In M. Tonry (Ed.), Crime and justice:
A review of research (Vol. 22, pp. 149-200). Chicago: University of Chicago Press
Petersilia, J., Peterson, J., & Turner, S. (1992). Intensive probation and parole: Research
findings and policy implications. Santa Monica, CA: RAND.
Petersilia, J., Turner, S., Kahan, J., & Peterson, J. (1985). Granting felons probation: Public
risks and alternatives. Santa Monica, CA: RAND.
Pisciotta, A. W. (1982). Saving the children: The promise and practice of Parens Patriae,
1838-98. Crime & Delinquency, 28, 410-425.
Rathbone, C. (2006). A world apart: Women, prison, and life behind bars. New York: Random
House Trade Paperbacks.
Rosin, H. (1997). About face: The appearance of welfare success. New Republic, 217
(August, 4), 16-19.
Schlager, M. D., & Robbins, K. (2008). Does parole work?-Reframing the discussion of the
impact of postprison supervision on offender outcome. The Prison Journal, 88, 234-251.
Shields, P. M., Chapman, C. W., & Wingard, D. R. (1983). Using volunteers in adult probation.
Federal Probation, 46(2), 57-64.
Skeem, J. L., & Manchak, S. (2008). Back to the future: From Klockars' model of effective
supervision to evidence-based practice in probation. Journal of Offender Rehabilitation,
Stalans, L. J. (2004). Adult sex offenders on community supervision: A review of recent
assessment strategies and treatment. Criminal Justice and Behavior, 31, 564-608.
Studt, E. (1973). Surveillance and service in parole: A report of the parole action study.
Washington, DC: National Institute of Corrections.
Taxman, F. S. (2008). No illusions: Offender and organizational change in Maryland's proactive
community supervision efforts. Criminology & Public Policy, 7, 275-302.
Tonry, M. (1990). Stated and latent functions of ISP. Crime & Delinquency, 36, 174-191.
U.S. v. Comstock, et al. (2010). Slip Opinion No. 08-1224.
von Hirsch, A. (1990). The ethics of community-based sanctions. Crime & Delinquency, 36,
Whitehead, J. T. (1989). Burnout in probation and corrections. New York: Praeger.
Whitehead, J. T. (1992). Control and the use of technology in community supervision. In
P. J. Benekos & A. V. Merlo (Eds.), Corrections: Dilemmas and directions (pp. 155-
172). Cincinnati: Anderson.
Whitehead, J. T., Miller, L. S., & Myers, L. B. (1995). The diversionary effectiveness of
intensive supervision and community corrections programs. In J. O. Smykla & W. L.
Selke (Eds.), Intermediate sanctions: Sentencing in the 1990s (pp. 135-151). Cincinna
234 CHAPTER 13 Ethical issues in probation, parole
3. In considering the job of the probation/parole officer, one ethical issue is
the question of what, if anything, society owes the offender. Can society
embrace a classical or neoclassical perspective, assume offenders are totally
free and responsible, and simply ignore any consideration of assistance to
offenders? Or does society have some obligation to help offenders to some
degree? How does the author feel about this issue? What is your opinion?
4. What do you think of the recent Supreme Court decision allowing for civil
commitment of sex offenders, even past the expiration of their prison
sentence? Does the protection of society justify such an extreme measure?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Case Study 13-1 Sexual Harassment
What a mess! You let out a deep sigh as you hang up the telephone. Sitting at your desk,
staring out the window, you listen to the rain and try to slowly collect your thoughts.
XXXXX XXXXX has just called you in tears. Three years ago she was part of your caseload.
This time around she is assigned to Ned, your office supervisor. When Maria was originally
assigned to you for case supervision, she had been convicted of drug possession and prostitution.
You remember her well: an attractive 16-year-old Latina with a 1-year-old daughter,
a drug addiction, a police record, and very little education.
You worked with Maria for two years and watched her gradually dig her way out of the
hole in which she had found herself and build a life with some hope. She earned a GED,
and with the help and support of a caring grandmother, she learned how to become a mother
herself. When she finished her term of probation, she found a job in an upscale department
store selling cosmetics and women's fashions. You felt her chances to make it were excellent.
She seemed to have improved her sense of self-esteem and had dreams of 1 day owning
and operating her own fashion boutique.
Apparently something has happened in the year following her release from probation
that could jeopardize Maria's success. Relapses happen. You have been in the business
for 15 years and it still disappoints you when someone doesn't make it. What makes Maria's
current situation even more frustrating is that involves Ned, your supervisor.
Ned is white, 46 years old, and divorced. Maria has just tearfully informed you that Ned
has grown increasingly aggressive over the last 3 months, trying to force her into a sexual
relationship with him. Apparently he is offering her unsupervised probation in exchange
for sexual favors and threatening her with revocation if she refuses his advances. You recall
Maria's words, "He told me that since I once was a prostitute, it shouldn't be a big deal. He
even offered me money if I was good enough." You get a sick feeling in your stomach when
you recall what she said.
You have heard rumors about Ned. This probably isn't the first time he has done something
like this. You have never seen any proof of the rumors, so you never accepted them as
true. Besides, Ned has always been good to you. Now you find yourself feeling angry and
foolish. This time you are going to have to act. You gave Maria all the reassurance you could
and promised to get back to her.
You have to respond to this problem, but how? You consider calling XXXXX XXXXX, the
regional supervisor, but are uncertain about this course of action since he and Ned are good
friends. In fact, they play golf together every week. You also realize that getting caught in
the middle of this problem can harm your own career. After all, you do have a wife and children.
Besides, Maria hasn't exactly been a model of virtue in the past. She has brought a lot
of this trouble on herself. Still, it isn't right for Ned to abuse his power over a client. He's
Case Study 13-1 Sexual Harassment-Cont'd
white, she's Hispanic and a woman, and you are caught in the middle of a very uncomfortable
1. Though sexual harassment is both illegal and unethical, how is Ned using his position to
intimidate the probationer in question?
2. What can you do about this situation?
3. What are some safeguards that might diminish the potential for such problems?
Reprinted by permission of Waveland Press, Inc., from Michael Braswell, XXXXX XXXXX, and Joycelyn Pollock, Case
Studies in Criminal Justice Ethics (Long Grove, IL: Waveland Press, 2006). All rights reserved
THIS IS THE END OF CHAPTER 13
Restorative justice and
the peacemaking ethic 14
Lana McDowell, Michael C. Braswell, and John T. Whitehead
family group conferencing
victim/offender reconciliation programs
The wisdom traditions, peacemaking criminology, and religious and social justice
activists contributed to the creation of practices involving restorative justice techniques.
From criminal justice theory courses, students often learn that peacemaking
criminology is a theoretical perspective that evolved during the 1990s. However,
Hackler (2004) explains that: "rather than being a true innovation, restorative justice
may actually have been the predominant form of justice as societies evolved"
(p. 345). In other words, restorative justice practices might not be an innovative
idea but rather a journey back to past techniques relating to justice.
An important aspect of restorative justice is that "in any social situation," it is
required that "the present needs of all involved must be taken into account" (Sullivan
& Tifft, 2001:34). In viewing justice in this manner, one understands that
punishing the offender is not the only action that may be taken. Focusing on the
needs of the victim(s) and the community in the process of justice is important
as well. With restorative justice practices, the goal "includes restoring both the victim
and, whenever possible, the offender to the community" (Braswell, Fuller, &
Lozoff, 2001:5). The goal of restorative justice is quite different from the current
traditional method of retribution. Instead of viewing punishment as the answer,
the desired solution in restorative justice practices involves a restoration of the
harm done to all affected, to whatever extent that is possible.
In criminal justice and corrections, practitioners consider what actions or programs
should be utilized to prevent criminal behavior. Restorative justice takes a
different approach and contends that offenders have the necessary tools within
238 CHAPTER 14 Restorative justice and the peacemaking ethic
BOX 14.1 PEACEMAKING VIRTUES
1. Self-honesty. Allows individuals and the community to better understand their personal
and social transgressions.
2. Courage. Allows individuals and the community to accept responsibility for personal and
3. Kindness. Allows individuals and the community to express goodwill toward others.
4. Sense of humor. Allows individuals and the community to understand that a world made
up of flawed human beings will lead to imperfections within social dynamics and
themselves to acquire justice. Peacemaking criminologists and restorative justice
practitioners believe that the individual is capable of change. Lozoff and Braswell
(1989:1) suggest that an individual must possess the virtues of "self-honesty, courage,
kindness, and a sense of humor" to practice peacemaking approaches and
restorative justice, as noted in Box 14.1.
Virtues are defined as "conformity of one's life and conduct to moral and ethical
principles" (Costello, 1992:1489). Harris (2004) explains "a person who wishes
to pursue a more peaceful and just world should be ethically engaged" (p. 117).
Lozoff and Braswell (1989) further go on to say:
The primary goal is to help build a happier, peaceful person right there in the
prison, a person whose newfound self-honesty and courage can steer him or
her to the most appropriate programs and training, a person whose kindness
and sense of humor will help him or her to adjust to the biases and shortcomings
of a society which does not feel comfortable with ex-offenders. (p. 2)
Such inner development requires individuals to possess the personal will to attempt
to be honest with themselves, feel kindness toward themselves and others, have the
courage to admit their mistakes both publicly and introspectively, and be able to
not take themselves too seriously.
QUALITIES OF RESTORATIVE JUSTICE
The first quality of restorative justice is the ability to reconcile differences of all
parties involved (see Box 14.2). This quality is noted by Roberts and Stalans
(2004), who contend that "in contrast to retributive justice, restorative justice stresses
reconciliation between the offender, the victim, and the community" (p. 316).
Reconciling suggests that one engage in a process "to cause to become friendly
or peaceable again" (Costello, 1992:1126). Of the four virtues noted by Lozoff
Qualities of restorative justice 239
and Braswell (1989), the virtue of kindness comes to mind. The traditional judicial
system focuses on retribution rather than rebuilding relationships. It is often difficult
for victims to move themselves beyond the thought of regaining what they
have lost. Possessing the virtue of kindness helps victims more effectively meet
the challenges of reconciliation and rebuilding the relationships that have been
The second quality found in practices of restorative justice relates to the ability
of offenders to hold themselves accountable for their actions. Basile (2002) suggests
that restorative justice programs "motivate the returning offender to accept
the consequences of his actions and responsibility for the harm and damage that
he has caused" (p. 56). For this reason, participation must be voluntary. This is a
different philosophy than is required of an offender today in the traditional mechanism
of justice. When offenders plead guilty to crimes in the traditional court system,
they are confessing their guilt to the members of the community and the court.
When an individual takes personal responsibility in restorative justice practices, the
offender is choosing to be accountable for his or her crimes. The virtues of selfhonesty
and courage, as noted by Lozoff and Braswell (1989), are helpful regarding
the quality of accountability. For offenders to hold themselves accountable for
their actions, an internal dialog must take place. The offender needs to come to
terms with his or her ability and willingness to harm others. In addition, the
offender must have the courage to admit the suffering he or she has brought into
The third quality of restorative justice processes is the ability of victims to feel
their experiences have been truly heard and recognized, their emotions have been
felt, and the harm done to them has been mended. This quality involves a sense of
empathy-the ability to feel another's pain-on the part of all involved, including
the offender. Umbreit, Lewis, and Burns (2003) suggest that "the victim is a central
part of the criminal justice process" (p. 384). This is different from the traditional
process of primarily focusing on the offender. Within the traditional criminal justice
system and through its reactive response to crime, the principal question of
how the criminal should be punished is usually the first order of business. We
rarely ask whether victims feel that their thoughts, feelings, and suffering have
been fully understood by the people who have harmed them and the community.
Umbreit and colleagues (2003) contend that the restorative "emphasis is placed
on offender accountability and making amends whenever possible rather than the
severity of punishment" (p. 384). Of the four virtues explained by Lozoff and Braswell
(1989), the offender and the community must possess kindness within themselves
to feel what the victim has experienced. If there is an inability to feel
empathy on the part of the offender or community, the restorative justice process
will be largely ineffective. Harris (2004) suggests that one who is engaged in
restorative justice must also "be empathic" and "act so as to empower oneself
and others" (p. 117). Without empathy, the ability to repair the harm done is
impossible. If victims feel they are not really being heard and understood by the
people who are running a restorative justice program, they will be less likely to
240 CHAPTER 14 Restorative justice and the peacemaking ethic
gain anything of substance from the experience. Likewise, if offenders do not feel
that their experiences are being genuinely understood by staff members, they will
be less likely to fully participate. Through restorative justice, victims have the ability
to feel that they are included in the reconciliation process instead of feeling a
sense of alienation.
The fourth quality embedded in the practice of restorative justice is the ability
of the community to actively be involved in the process of justice. Community
members typically allow the criminal justice system to handle unlawful acts
because of tradition and the justice system's organization and jurisdiction. In
restorative justice practices, "the entire community is engaged in holding the
offender accountable and promoting a healing response to the needs of victims,
offenders, and the community as a whole . . . The community recognizes and
assumes responsibility for social conditions which contribute to intolerance, hate,
and criminal behavior" (Umbreit et al., 2003:384-385). Peacemaking criminologists
would encourage community participants of restorative justice to understand
that criminal behavior can also be influenced by community dynamics as well as
the more general values of the culture at large.
It is also important for community participants to understand the interconnectedness
and interdependence of people with all aspects of their environment.
Because all elements of life are connected, when one aspect of life is affected,
all aspects of life are affected. As a result, community members have a responsibility
to take part in the workings of the criminal justice system. The quality of
restorative justice that encourages community involvement represents the virtues
of self-honesty, courage, kindness, and a sense of humor. Self-honesty and courage
come into play regarding a community's ability to understand how the social network
created by their interactions with others also can contribute in some instances
to the development of offenders and victims. The community must also develop a
capacity for kindness toward the offender and victim, to aid in their restoration.
Finally, the community needs to address the social structures that have contributed
to crime and at the same time maintain a sense of humility-and even, on occasion,
humor-regarding such conditions. It is important to realize that the only
method of moving forward requires not dwelling on the past. The way forward
requires us to learn as a community and as individuals to become more aware
and mindful-to pay better attention to what is going on in us and around us.
BOX 14.2 FOUR QUALITIES OF RESTORATIVE JUSTICE
Quality 1. The ability to reconcile differences of all parties involved.
Quality 2. The ability of offenders to hold themselves accountable for their actions.
Quality 3. The ability of victims to feel that their experiences have been truly heard and
recognized, their emotions have been felt, and the harm done to them has been
Quality 4. The ability of the community to actively be involved in the process of justice.
Evolution of restorative justice and the peacemaking ethic 241
Thich Nhat Hanh (1998) writes that: "We must come together as individuals,
families, cities, and a nation to discuss strategies of self-protection and survival"
by practicing mindfulness (p. 34).
Another quality of restorative justice noted by Harris (2004) is participants'
ability to "fully embrace equality" (p. 117). By treating everyone as equals, all
people involved understand their ability to be an important piece of the puzzle
and of the process. For example, justice for offenders may be to hold themselves
accountable for their actions, to feel genuine remorse for what they have done,
and to hopefully be forgiven for the crime committed. Justice from the victim's
perspective may be related to gaining a personal understanding of the offender,
including the offender's reasons for committing the crime. Justice for the victim
may also include fully expressing to the offender the pain and suffering the
victim has experienced as a result of the offender's actions. Both offenders and victims
may feel a sense of justice because their story has been heard. Justice for the
community may be the opportunity for community life to return to some sense of
normalcy. The community's sense of justice may also be viewed as repairing the
relationships and the harm done.
EVOLUTION OF RESTORATIVE JUSTICE AND THE
In Chapter 1, we discussed the three contexts for understanding justice, crime, and
ethics. The personal context is described as what constitutes one's inner definition
and idea of justice. Individuals who possess a personal sense of peacemaking have
the ability to join together to create a greater social context that can encourage
peacemaking. Looking through the lens of the social context, an individual may
understand why some criminals could be more predisposed than other offenders
to make criminal choices due to the social environment created within a given
community and society. As a greater number of individuals come to believe in
peacemaking in a personal context of justice, a greater number of people will also
understand and practice peacemaking in the social or community context. This
leads to the concept of relating to offenders not as isolated, disconnected persons
who commit crimes but rather as members of the community who have made poor
choices and moved away from the core social values. The collaboration of individuals
who subscribe to a personal peacemaking context moves communities to create
new methods and approaches, such as restorative justice, to intervene with
When individuals embrace personal and social peacemaking, practices are more
likely to evolve within the criminal justice context to accommodate such perspectives.
Some of the programs developed from peacemaking perspectives that fall
under the umbrella of restorative justice have included victim/offender panels
(Braswell et al., 2001), family group conferencing (Hackler, 2004), victim/offender
reconciliation programs (Lovell, Helfgott, & Lawrence, 2002), reparative boards
242 CHAPTER 14 Restorative justice and the peacemaking ethic
(Dzur & Wertheimer, 2002), sentencing circles (Keeva & Newell, 2004), and reintegrative
shaming (Van Ness & Strong, 1997). These programs and practices are
examined later in this chapter. With such approaches, the offender and the punishment
are no longer considered the sole responsibility of the court system. Community
members have a degree of responsibility as well. The justice system utilizing
restorative justice techniques and the peacemaking perspective in the criminal justice
process can be viewed as a form of community justice.
Restorative justice is different from the traditional view of justice. As mentioned
previously, the traditional view is more reactive, relies heavily on law
enforcement, specifies punishments, and is highly connected to retributive philosophies
of justice. The traditional view of justice is reactive in that offenders do not
typically come into contact with the criminal justice system until after a crime has
been committed and often have little or no contact with the victim(s). Restorative
justice and peacemaking criminology take a more proactive approach to crime by
helping the offender more fully understand and take responsibility for the personal
harm he or she has caused others. Such an approach can at least increase the odds
that the offender will more seriously consider the effects and consequences of his
or her future actions.
The traditional view of justice focuses on enforcement of the laws with an eye
toward punishment. An individual who commits a crime is said to have acted
against the social contract written into statutory law. Professionals in the traditional
criminal justice system are charged with carrying out the necessary punishment.
Punishment in the traditional view of justice includes retribution. Retribution is
defined as "punishment imposed as repayment or revenge for the offense committed"
(Garner, 2004:1325). Punishment as retribution is not relied on in restorative
justice practices. Restorative justice looks for a solution that best satisfies
the needs of all people involved, including the offender, the victim, and other citizens,
through a process of community justice.
In the traditional approach to justice, if an individual commits a burglary, that
person will appear before a court of law that will ask the defendant how he or she
pleads. The offender will plead guilty or not guilty and will be furnished a trial.
On the outcome of the trial, if found guilty the offender will receive a punishment
within the minimum and maximum requirements as stated within state or
federal criminal code. In contrast, if the same crime were handled within the
restorative justice practice of family group conferencing, the offender would
come face to face with the victim and any affected members of the community
who wanted to be involved. The purpose of this alternative approach is for the
offender to personally realize his or her wrongdoing, take responsibility for the
criminal actions in question, and aid in the healing process for all those involved,
including him- or herself. With a restorative justice approach, the laws that are
broken are enforced. However, enforcement is not the primary purpose. Rather,
restorative justice seeks to enforce the laws in ways that encourage the restoration
and reconciliation of all individuals who are involved and the community
Echoes from the past: peacemaking and the wisdom traditions 243
ECHOES FROM THE PAST: PEACEMAKING AND THE WISDOM
Restorative justice techniques and peacemaking also stem from the ancient teachings
of wisdom traditions and a variety of religious beliefs. In Chapter 3, the three
themes of peacemaking-connectedness, caring, and mindfulness-are explored.
In the following section, these themes are examined through their connection to
restorative and community justice practices (see Chapter 3).
Richard Quinney (1993), a pioneer in the field of peacemaking criminology,
With unconditional compassion, we have no need to close our hearts and minds
to the suffering of others, or to deny our own suffering . . .. Compassion must be
accompanied by insight, by wisdom; wisdom into the interconnectedness-and
the interconnected suffering-of all beings. (p. 6)
The theme of connectedness suggests that human beings are not as individualistic
or independent as they think they are. Connectedness points out that the way the
criminal justice system responds to offenders will affect everyone-law-abiding
and law-breaking members of a given community. It may be difficult for many
of us to view ourselves as connected to others, because the idea of individualism
is so heavily indoctrinated within our culture. As children, we are often taught that
we must do things for ourselves and set personal goals to achieve. To some extent,
that can be a good quality. Yet we live in separate homes, drive separate cars,
move about as we personally choose, and have separate sets of friends and coworkers.
Many of us choose to rarely intermingle with others who are not within our
innermost social network. It is not difficult to understand why we might question
whether we are connected to the cashier at the grocery store, the homeless man
on the street corner, people in foreign countries, the person sitting next to us in
class, those who we pass by on a daily basis, and the physical environment that
is responsible for sustaining us with food, air, and water. Ram Dass and Paul Gorman
(1985), in their book, How Can I Help?, write: "the sense of ourselves as separate
is what we are contending with virtually all of the time" (p. 29). If we do not
feel a connection to other human beings as well as our environment, we will not
understand how we may also be connected to crime, nor will we be as open to creative
possibilities in solving the problems of crime and its victims.
An integral part of the healing process of restorative justice "is the public acknowledgement
by the community at large of what has taken place, an acknowledgment
that something has been ruptured and is in need of repair" (Sullivan & Tifft,
2001:38). For such a response to take place, "caring" must be present on the part of
community members, the victim, and the offender. Understanding connectedness
should lead us to develop a sense of responsibility to care for our environment
and all who inhabit it-even those to whom we may fall victim.
After viewing a video documenting a victim/offender reconciliation program in
an undergraduate ethics course, one student wrote the following regarding the
offender and victim:
Being able to confront her daughter's offender, prevail over her fear, and place
a face to what she considered a killer; [the offender] was transformed into an
actual person and this allowed [the victim] to see his pain and remorse. It made
it possible for [the victim] to accept his apology and grant forgiveness for a
crime so merciless. The conference gave [the offender] a fresh conscience and
personal awareness from the mere act of talking to [the victim's] family. [The
offender] was finally allowed to release his shame.
The caring nature and actions of the victim in this case led the mother to want to
meet her loved one's aggressor. This action allowed the offender to express his
remorse for the victims of his crime. By looking through a caring and compassionate
lens of the world, we are more likely to understand the importance of caring
about how the other party feels.
The third theme of peacemaking is mindfulness. Mindfulness in peacemaking criminology
"allows (persons) to experience a more transcendent sense of awareness,"
and "it allows (persons) to be fully present, aware of what is immediate, yet also at
the same time to become more aware of the larger picture in terms of both needs
and possibilities" (Braswell & Gold, 2005:35). The act of becoming more mindful
from a peacemaking perspective requires one to understand the imaginary line that
has been drawn between victims and offenders. In other words, mindfulness makes
it necessary for individuals and a community to move away from the idea of "us
versus them." In contemporary society, community members often view criminals
as different from themselves. Mindfulness requires people to understand that placing
individuals in prison and out of their sight will not heal the wounds and problems
of the community at large.
The majority of people in prisons and jails will be released. The Department of
Justice found that "during fiscal year 2000 through fiscal year 2002, 74, 401
inmates were released from federal custody" (U.S. Department of Justice, 2004).
Through being more mindful and aware, we may come to understand that "problems
diminish or disappear only when (society) attend(s) to the needs of those
involved" (Sullivan & Tifft, 2001:45). Addressing such needs requires a sense of
connectedness and caring as well as the ability to be mindful of the world in which
we live. Positive incremental improvements, small or large, can have lasting
effects. These themes may be found, are intertwined, and stem from the great
Echoes from the past: peacemaking and the wisdom traditions 245
wisdom traditions. A discussion of the connection between the wisdom traditions
and the themes of peacemaking criminology and restorative community justice
The roots of peacemaking themes are reflected in such ancient-wisdom traditions as
Christianity, Judaism, Taoism, Hinduism, Buddhism, Islam, and Native American
customs. The ideas of connectedness, caring, and mindfulness are enmeshed within
each of these traditions' tenets. Differences may be noted regarding the vast array of
religious thought that makes up the wisdom traditions. However, their similarities
regarding the themes of peacemaking criminology are the focus of this section.
Koenig (2006) writes that: "at their heart, most religions place a strong emphasis
on community" (p. 37).
The underlying principles of Christianity include themes of peacemaking. The
ideas of connectedness and caring are present in the essential teaching of the New
Testament and suggest that "all of us are children of God and therefore we are to
love one another" (Braswell et al., 2001:12). Connectedness, caring, and mindfulness
are echoed through the voices of prominent figures of the Christian faith, such
as Mother Teresa (2000):
People throughout the world may look different or have a different religion,
education or position, but they are all the same. They are the people to be loved.
They are all hungry for love. The people you see in the streets of Calcutta are
hungry in body, but the people in London or New York also have a hunger which
must be satisfied. Every person needs to be loved. (p. 151)
In 1963, Martin Luther King, Jr., wrote to fellow clergy:
Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable
network of mutuality, tied in a single garment of destiny. Whatever
affects one directly, affects all indirectly. (in Carson, 1998:189)
Mindfulness encourages us not to retaliate but to see the value of becoming more
compassionate and more interested in the process of reconciliation. Martin Luther
King, Jr., explained the importance of reconciliation:
It must be made palpably clear that resistance and nonviolence are not in themselves
good. There is another element that must be present in our struggle that
then makes our resistance and nonviolence truly meaningful. That element is
reconciliation. Our ultimate end must be the creation of the beloved community.
The importance of reconciliation may also be found in the New Testament. Peter
asked Jesus, "how oft shall my brother sin, against me, and I forgive him? Till
seven times?" (Matthew 18:21). Jesus responded to Peter by stating, "I say not
unto thee, until seven times: but, until seventy times seven" (Matthew 18:22).
246 CHAPTER 14 Restorative justice and the peacemaking ethic
Community members need to understand that the manner in which offenders are
treated and processed will ultimately affect the community they return to on exiting
the correctional system. Mother Teresa (2000) also speaks of the personal
responsibility of community members when she states, "do not neglect the weaker
children; consider the problems of the slow-witted, the dropouts-what will they
become in society if you do not look after them?" (p. 56). We can see the present
moment as an opportunity to do something new to improve society for the future.
Many Judaic precepts are present within the themes of peacemaking. From the
Torah we learn that "God created man in his own image" (Genesis 1:27). The idea
of connectedness may be understood from this perspective. All beings are
connected because we share the commonality of being creations of God. Jewish
belief suggests a level of "communal responsibility" is required because an "individual's
deeds are not his or her own private affair, because they profoundly influence
the fate of the people as a whole" (Dan, 1986:101).
Like other wisdom traditions, the Jewish faith extols people to "honor their parents,
not kill, not commit adultery, not steal, not bear false witness, and not covet
their neighbor's wife or possessions" (Braswell et al., 2001:15). Followers are
encouraged to demonstrate a great level of care in relation to other persons' natural
rights and needs.
The act of being mindful may be viewed through two Jewish conceptions of
being open to the possibility for change and the understanding of good and evil.
Ariel (1995) writes, "The dual nature of the human being means that a person is
neither inherently good nor bad but is, or becomes, what he does" (p. 85). In other
words, we have a choice to do good or bad. In the end, we are known by the
choices we make. Being mindful requires us not only to be in the present moment
but also focusing an eye toward the future. The importance of mindfulness
included within the practices of restorative community justice requires us to always
keep in mind the possibility of positive change for the future.
From the peacemaking perspective, people who are mindful are not only aware
of the present moment but are also open to the future-to what is possible. The
term representing peace in Hebrew is shalom, which also signifies the definition
of "completeness" or wholeness (Aaron, 1997:121). It does not seem difficult to
understand how a whole, complete world might be a world that has been reconciled
and restored to a place of peace and higher purpose.
It has been suggested that Taoism "is used by every school of Chinese thought"
(Ching, 2002:382). The Tao Te Ching is composed of the teachings of Lao-Tzu.
The following excerpt from the Tao Te Ching expresses the importance of connectedness,
caring, and mindfulness:
The sage wise man does not live to accumulate instead he lives to help people
because the sage wise man realizes that how he behaves towards others is really
how he behaves towards himself and the universe. (Bright-Fey, 2004:144)
Taoist belief also suggests that compassion is a cornerstone on which we should
build the foundation of our lives. Another ancient Taoist work known as the
Echoes from the past: peacemaking and the wisdom traditions 247
I Ching, or The Book of Changes, provides another example of the importance of
compassion and care when it suggests one should "look for the opportunity to
express humility when dealing with others" (Bright-Fey, 2006:33). Lao-Tzu
encourages each of us to have a personal responsibility to care for others, and
the I Ching suggests we must "be gracious in leadership, gentle in correcting
others, and patient when listening to others" (Bright-Fey, 2006:103).
The I Ching states:
Now is the time to be patient and calm. Mindfully observe all that is occurring
around you and carefully gather all of your resources and thoughts. Do not
become self-indulgent or weak in the face of opposition or tragedy. Instead show
courage and resoluteness. Now is not the time to play the victim. (Bright-Fey,
The themes of peacemaking may also be viewed from the Hindu perspective.
The influence of karma may be described as "every act we make, and even every
thought and every desire we have, shape our future experiences" (Fisher, 1999:88).
In other words, "human beings are rewarded or punished according to the merits
and demerits of their behaviour" (Narayanan, 2002:28). The idea of karma may
also suggest that our actions speak louder than our words. We are connected to
both what we do and what we fail to do.
The importance of care and kindness is also echoed through the words of
We notice love between father and son, between brother and sister, friend and
friend. But we have to learn to use that force among all that lives, and in the
use of it consists our knowledge of God. Where there is love there is life; hatred
leads to destruction. (Attenborough, 2000:12)
In Buddhism, the first noble truth explains dukkha, or that suffering is present
in the human experience. Dukkha is described as "all those things which are
unpleasant, imperfect, and which we would like to be otherwise" (Harvey,
1990:48). Dukkha, or suffering, is common to all people. No one is exempt from
pain and suffering. Because everyone experiences suffering, we should be attentive
to each other's troubles. We should not be quick to judge others based on their circumstances.
Rather, we should be mindful that we all have problems from time to
time. At different times in life, we each play the role of offender and victim-at
least of the heart. We have been betrayed and we have betrayed others. Developing
such an understanding helps people better comprehend the healing that needs to
take place, whether one is the offender or the victim at a given time. Understanding
that we play both roles allows us to see the importance of caring. The Dalai Lama
writes, "to be genuine, compassion must be based on respect for the other, and on
the realization that others have the right to be happy and overcome suffering just as
much as you," and "since you can see that others are suffering, you develop a genuine
sense of concern for them" (Mehrotra, 2006:22). Deegalle (2003) suggests
that "Buddhism seems to advocate moral restraint and kindness toward those who
248 CHAPTER 14 Restorative justice and the peacemaking ethic
commit crimes," and "this is because of the belief that only action based on lovingkindness
will in the long run generate a stable and peaceful environment" (p. 128).
Finally, Buddhism suggests that what we as human beings view as a problem may
not really be a problem at all. Instead, what is more important is how we react to
whatever is challenging us. In terms of restorative and community justice, the
offender, the victim, and the community possess the ability to transform a negative
situation into a positive outcome and a deeper sense of community.
In today's world, Islamic belief is often misunderstood. The peacemaking
theme of connectedness may also be viewed through Islamic thought. The Qur'an
warns of the tendency for humans to split into groups and suggests we should live
every day knowing that we are related to each other. Maqsood (2003) writes:
Some are tested with poverty or ill health-will they become despairing, dishonest,
or show patience and faith? Others are tested by being rich-what use will
they make of their riches? Will they become selfish, greedy, or act with responsibility?
Caring is not only discussed in terms of Allah's caring, but in terms of the caring
human beings should show to each other. "If a person is patient and forgives,
this is one of the greatest things" (The Qur'an 42:43). The lack of caring is also
addressed within Islamic religion: " . . . ignorance, arrogance and lack of compassion
lie at the root of all evil, are the causes of all corruption, and the sources of
all suffering" (Maqsood, 2003:49). The word jihad has a number of meanings
and in the United States is often associated with violence, terrorism, and armed
conflict. However, on a deeper level, jihad is explained by Maqsood (2003) as:
A personal struggle involving some form of hard work or effort to accomplish
something of value for Allah's sake-such as studying, teaching others, caring
for others in trying circumstances . . . even trying to eliminate some harmful personal
habit. (p. 49)
Engaging in such a struggle on a personal level reminds us that possessing and
demonstrating compassion and charity for others will eventually lead to a reduction
Your smiling in your brother's face is a gift of charity; and your encouraging
people to virtuous deeds is charity; . . . and your showing people the road when
they have lost it is charity; and your assisting the blind is charity. (Hassaballa
& Helminski, 2006:120-121)
Native American thought is primarily taught through an oral tradition, and the
importance of connectedness is strongly intertwined. There are four assumptions
within Native American thought that are said to be present in the oral traditions
of "speeches, stories, prayers, and songs" (Einhorn, 2000:15):
(1) The universe is one circle, moving endlessly and eternally, perpetually and
for perpetuity; (2) everything continually changes and moves; (3) everyone
Echoes from the past: peacemaking and the wisdom traditions 249
and everything are inextricably interrelated; and (4) everything is alive, possessing
a physical form and a spiritual vitality, and performing a vital function in
the universe. (Einhorn, 2000:15)
Within the four assumptions of Native American thought we find a philosophy
encouraging the acceptance of connectedness. Native Americans believe that "they
come from the earth, that they must live in mutual relationship with the earth, that
they must constantly and responsibly observe ceremonies that revitalize and renew
the earth, and that in the end, they return to the earth" (Mann, 2003:194).
Communication is said to be important because it aids individuals in better
understanding their connection to all that is. It is suggested that "communication
concerns establishing connections and negotiating relationships with the goal of
living in balance or in a state of ‘at-one-ment' with all sentient beings" (Einhorn,
2000:106). The importance of caring is also a focus of Native American thought.
Simply stated, Native American thought suggests that "living in harmony and
right relationship involves mutual respect, generosity, compassion, and caring"
(Einhorn, 2000:43). The importance of care may also be viewed through the
method and process utilized with those who cause an imbalance within themselves
and a disruption in the community. Krech (2002) suggests:
Most young-adult Native American males come to helping and healing by way
of tragedy: Cops, Courts and Corrections. Innumerable Native Americans have
experienced devastating events in their lives and have turned to addictive
behavior to cope with the destructive feelings. However, many of these youth,
when given enough opportunity and guidance, have found the way out of the
mire of addiction. In the process, recovering individuals can develop a bond
or "camaraderie" with their peers. This synergistic sense of inclusion globalizes
recovery in the community, greater than if a single person were to make the
unaccompanied journey. (pp. 85-86)
The ability for community members to provide support and care is said to be
essential in aiding others in becoming more balanced. Caring requires one to listen
and truly understand what another person is feeling. Native Americans "view listening
as a privilege, a responsibility, a sacred act" (Einhorn, 2000:4). Possessing
such a philosophy explains why forms of justice "offer Native people the venues
and opportunities to share thoughts and feelings openly, honestly, and without
shame," and "this allows participants to focus on positive happenings, the value
of a caring community, and possibilities to begin the healing process themselves"
(Krech, 2002:87). Such an approach includes utilizing talking circles, as described
in Box 14.3.
Children are taught at an early age the art of listening and communication. Often,
we do not provide our undivided attention to others when they speak. If we do not
truly listen to others, people speaking will feel they are not fully being understood.
Sometimes to achieve full concentration on one who is speaking, a physical object
may be utilized. For example, ethics students of one of the authors of this book often
250 CHAPTER 14 Restorative justice and the peacemaking ethic
BOX 14.3 NATIVE AMERICAN TALKING CIRCLES
Talking circles are a way for every community member to be heard in an ultimately
democratic process. People speak one at a time in talking circles and may not be interrupted
by others as they speak. Talking circles are usually begun and ended ceremonially, in a
manner consistent with local culture or tradition. A talking object, such as a talking stick and
often an eagle feather or wing (eagle fan), is given to the speaker, establishing the right to
speak while sitting in the circle with others. In this way, everyone is heard and the other
people respect the speaker's words. Native American youth participate in talking circles at an
Source: Coyhis and Simonelli (2005:327).
250 CHAPTER 14 Restorative justice and the
find themselves passing a talking stick during debates regarding the death penalty.
This is because as human beings, we seem to have an easier time espousing verbally
what we believe than taking the time to listen to how others might feel, and a talking
stick reminds us to listen when we don't have the floor to speak.
The importance of mindfulness may also be noted from the Native American
perspective. Coyhis and Simonelle (2005) explain:
The honor of one is the honor of all; the pain of one is the pain of all. Connectedness
teachings have much to offer in the way of community understanding
because they say it is not possible for difficulty in one part of the community
to remain insulated from other parts of the community. For example, community
disharmony of any kind will eventually affect economic productivity, the elderly,
spirituality, and even the natural environment in which the community lives.
Native American belief suggests that "the world exists in a delicate balance;
therefore, humans must always act reciprocally, taking only that which is truly
needed and replacing whatever is used" (Young, 2002:345).
The ideals of Christianity, Judaism, Taoism, Hinduism, Buddhism, Islam, and
Native American thought contain a number of compatible themes and beliefs. Each
wisdom tradition believes our actions will influence the future. All the traditions
contend that human beings are inherently connected. We should care about others
with whom we interact socially as well as the environment that sustains our existence.
The wisdom traditions possess the underlying idea of being mindful of the
present (our current actions) and the future (what the consequences and effects
of our actions will be).
CORE ELEMENTS OF RESTORATIVE JUSTICE
We were reminded earlier in the chapter of the three contexts for understanding
justice, crime, and ethics. The personal context includes one's own personal view
of justice; the social context suggests we must look beyond our personal views of
Core elements of restorative justice 251
justice and realize that social dynamics also influence the creation of social disorder.
Further more, the social context includes the manner in which communities
respond to such actions. The criminal justice context includes personal views
and social dynamics and represents the system's response to crime control, justice,
This section discusses the principles and values of restorative justice as well as
the ethical concerns and challenges noted by Van Ness and Strong (2010) in their
book. Van Ness and Strong (2010) contend that three underlying principles may be
articulated and 10 values are embedded within restorative justice practices. The
three underlying principles are noted in Box 14.4.
The principles of restorative justice explained by Van Ness and Strong (2010)
include the healing of all affected parties and participation with sincere engagement
and the need for community members to rethink and reshape their role within
society. To begin the process of healing, the community must first acknowledge
that there is a problem and recognize that social dynamics play a part in crime
and disorder. The principle of participation involves community members because
they are the means necessary for just and restorative resolutions to be effective. It
is important that we recognize past labels of offenders and victims, to assist those
in society who are in need of help. This requires us to rethink and reformulate what
is expected of persons belonging to a community. Van Ness and Strong (2010)
suggest there are also a number of values that should be engrained within restorative
justice management teams. These include amends, assistance, collaboration,
empowerment, encounter, inclusion, moral education, protection, reintegration,
and resolution, as explained in Box 14.5.
The role of the community in restorative justice practices is different from the
current role of the public in the traditional criminal justice system. The roles of the
community are embedded in the process of restorative justice and in the values of
such programs. Van Ness and Strong (2010) suggest that one value of restorative
justice is the encounter. The encounter includes the role of the community to show
up in an environment that is created to facilitate the necessary discussion of the
harm caused as well as possible solutions. Van Ness and Strong (2010) also
BOX 14.4 PRINCIPLES OF RESTORATIVE JUSTICE
Principle 1. Justice requires that we work to heal victims, offenders, and communities
injured by crime.
Principle 2. Victims, offenders, and communities should have the opportunity for active
involvement in the justice process as early and as fully as they want.
Principle 3. We must rethink the relative roles and responsibilities of government and
community: in promoting justice, government is responsible for preserving a just
order and the community for establishing a just peace.
Source: Van Ness and Strong (2010:43-46).
252 CHAPTER 14 Restorative justice and the peacemaking ethic
BOX 14.5 RESTORATIVE JUSTICE VALUES
Amends. Those responsible for the harm resulting from the offense are also responsible for
repairing it to the extent possible.
Assistance. Affected parties are helped as needed in becoming contributing members of
their communities in the aftermath of the offense.
Collaboration. Affected parties are invited to find solutions through mutual, consensual
decision making in the aftermath of the offense.
Empowerment. Affected parties have a genuine opportunity to participate in and
effectively influence the response to the offense.
Encounter. Affected parties are given the opportunity to meet the other parties in a safe
environment to discuss the offense, harms, and the appropriate responses.
Inclusion. Affected parties are invited to directly shape and engage in restorative
Moral education. Community standards are reinforced as values and norms are considered
in determining how to respond to particular offenses.
Protection. The parties' physical and emotional safety is primary.
Reintegration. The parties are given the means and opportunity to rejoin their
communities as whole, contributing members.
Resolution. The issues surrounding the offense and its aftermath are addressed, and the
people affected are supported, as completely as possible.
Source: Van Ness and Strong (2010:49).
explain the importance of the community in providing assistance to both the victim
and the offender. It is the role of the community to aid individuals in numerous
ways, with each case providing its own set of conditions.
The community can provide accountability in two different ways. First, the
community is responsible for holding the offender accountable for his or her
actions; second, the community is also a contributor to the amends value noted
by Van Ness and Strong (2010). The community is required to hold itself accountable
for created conditions that assist in the occurrence of crime. Such a relationship
requires community members to stop viewing themselves as separate from
those who commit and those who are victimized by crimes. It is important for citizens
to understand how the conditions and consequences of criminal behavior
affect the lives of everyone, not just those people directly involved.
It is the role of the community to shape aspects of the restorative process, and
this is noted by the value of inclusion. Members of the community are involved in
the sentencing process. Such involvement may include providing information as a
witness, civil duties of participating in a jury, or through participating in a presentencing
hearing. The role of the community includes working with the offender and
victim to create solutions. This is known as collaboration. Collaboration includes
the opportunity for all people involved to discuss the matter at hand, including possible
solutions. The community needs to create an understanding of what will be
considered success regarding the offender's future behavior. Because the community
is important in the process of restorative justice, its members' opinions and
Types of restorative justice programs 253
feelings should also be included in how the offender will be evaluated (Van Ness
& Strong, 2010).
It is the role of the community to become empowered and to understand its
ability to influence the outcome of the process, as suggested by Van Ness and
Strong (2010). It is also the role of the community to empower the offender
and the victim as genuine participants in the process of reconciliation and restoration.
This can be achieved through various forms of assistance to such individuals.
In a sense, it is the role of the community to be a kind of "guiding
light" that can be achieved through reiterating the morals embedded at the most
basic level within the community. It is the role and responsibility of the community
to (re)educate the offender regarding community values and to utilize such
norms in the process of creating a workable solution. The community's role
beyond the empowerment and (re)education of offenders includes protection of
all people involved in the restorative process. The community needs to make sure
that the offender and the victim are both sheltered from elements that could prove
disruptive to their emotional or physical well-being. Such a responsibility
requires members of the community to set guidelines pertaining to what will
and what will not be permitted during the restorative process (Van Ness &
The community's role of reintegration includes providing both the offender and
the victim the means to rejoin society. Community members need to persevere
toward forgiving the harm created and accepting the offender and the victim back
into a supportive social network. The community's role of reintegration is important
because it allows offenders to know they are not considered outcasts in the
society in which they live; rather, they are viewed as a part of the community, worthy
of being assisted.
It is also the role of the community to address the necessary issues and to
support both the victim and offender after the process has been completed. This
is known as the value of resolution and requires the value of assistance within
the restorative justice community. Although the issue may seem to be resolved at
the end of the encounter, the community needs to be a continuing source of the
solution. Citizens should aid offenders and victims through appropriate social services
as well as through emotional support. At this point, we may also see that the
community is making amends by attempting to repair the harm created due to prior
inadequate social support. A number of ethical concerns evolve from practices of
restorative justice, as noted in Box 14.6 (Van Ness & Strong, 2006).
TYPES OF RESTORATIVE JUSTICE PROGRAMS
A variety of types of restorative justice programs are utilized around the world.
Restorative community justice practices that are examined here include family
group conferencing, victim/offender reconciliation programs, sentencing circles,
reparative boards, victim/offender panels, and reintegrative shaming (see Box 14.7).
254 CHAPTER 14 Restorative justice and the peacemaking ethic
BOX 14.6 ETHICAL CONCERNS IN RESTORATIVE JUSTICE
Issue 1: Does restorative justice privatize justice and eliminate criminal law?
Comment: Restorative justice does focus more on the victim's feelings, rights, and needs
than the offender's actions. Solutions enacted in more private community-based settings
can restore a lack of or lost trust more effectively than, perhaps, more traditional
prosecutorial approaches. However, larger social concerns of society as a whole are not as
easily addressed. Criminal law offers a wider range of procedural and financial resources
to control and prosecute criminal behavior.
Issue 2: How can restorative justice work when most victims and offenders are never
Comment: Research regarding victims suggests that about half the people who indicate they
are victims of crimes do not report the offenses to the authorities. In addition, a number of
crimes against persons are never solved. Restorative justice programs could increase the
likelihood of victims reporting crimes, given the social support of such programs and the
increased opportunity for some form of reparation or restitution to be made. Even for victims
who choose not to come forward, nonprofit groups offering financial aid, emotional support,
and counseling as well as other services provide potential aid and comfort.
Issue 3: Won't large-scale use of restorative processes compromise their quality?
Comment: Large-scale use of restorative justice programs could contribute to such
programs becoming more competitive for available funding and oriented toward more
easily defined outcome measures and standards for efficiency. There could also be a
greater risk for restorative justice programs becoming assimilated into the traditional
criminal justice status quo.
Issue 4: Can restorative justice work in individualistic cultures?
Comment: The tension of individual rights versus community needs has been a
longstanding source of tension in our society. The restorative justice approach is more
relational and communal, whereas traditional criminal justice is more systemic and
impersonal. For restorative approaches to work in transforming lives, communities have to
honor racial, ethnic, religious, and gender differences.
Issue 5: Can restorative justice work for serious crimes like murder?
Comment: It is difficult to imagine serious harm and injury being repaired, given that the
primary victim in a murder would not be available and secondary victims (such as family
members) would often not be interested. Restorative justice does not preclude incarcerating
violent offenders and offers holding the offender morally as well as legally responsible. Even
when offenders are imprisoned, victims of sexual assault and other forms of violence have
felt empowered through confronting the perpetrator and making him or her fully aware of the
suffering he or she has caused. There have also been instances where offenders have
expressed genuine remorse to victims, and for example, parents of a child who was killed
have been able to rid themselves of anger and struggle toward forgiveness.
Issue 6: Will restorative processes lead to unfair results?
Comment: Issues include proportionality, disparity, and discrimination. Given that the
restorative process is more interpersonal and informal, various offenders, victims, and
communities might arrive at very different results for similar crimes and offenses.
Restorative justice is less interested in retribution and legal/procedural matters and more
concerned with repairing and restoring the relational and social harm that may be often
somewhat unique to a given victim, offender, and community. As a result of the informal
nature of restorative justice, outcomes may be more inconsistent and disproportionate
than traditional criminal justice but not necessarily less effective.
Issue 7: If restorative processes produce shame in offenders, doesn't that amount to cruel
and degrading treatment, violating their rights?
Types of restorative justice programs 255
BOX 14.6 ETHICAL CONCERNS IN RESTORATIVE JUSTICE-Cont'd
Comment: Intentionally shaming an offender engaged in a restorative justice program
could amount to cruel and degrading treatment. However, a sense of reintegrative shame
that comes about as the result of an offender taking responsibility for the harm he or she
has caused and remorse that is felt could be considered a natural outcome of a restoration
and transformation process.
Source: Van Ness and Strong (2006:185-204).
Family group conferencing
Conferencing is said to be "the coming together of those affected in a systematic and
thoughtful process for the purpose of restoring harmony, reintegration, and healing"
(Hackler, 2004:346). During such processes, "the family members receive significantly
more information than usual from the state about their case, including the
actions of the social worker, the official concern about the abuse or neglect, and any
other pertinent facts about resources and constraints that could affect decision-making"
(Adams & Chandler, 2004:97-98). Although there is still a legal aspect to these procedures,
the sole focus is not on punishment but rather repairing the harm done in an
effectivemanner. Burford and Adams (2004) suggest "in restorative justice, the family
group conference brings together extended family members with professionals and
others involved in the situation who can provide information to assist the family in
developing a plan to keep all its members safe" (p. 19). Procedures utilized in Canada
with juveniles provide an example of family group conferencing. In this type of conference,
a young offender and the person harmed by the offense are brought together
along with "their respective families and supporters, and other key people affected
by the harm and relevant community members" (Hackler, 2004:348). In this
BOX 14.7 TYPES OF RESTORATIVE COMMUNITY JUSTICE PROGRAMS
and professionals meet to discuss the wrongdoing and create a plan regarding the most
appropriate method of reintegration for both the offender and victim.
mediator to discuss the transgression at hand.
each have the ability to speak and jointly create a solution regarding the outcome of the
criminal action at hand.
community members regarding steps an offender shall take to restore the harm done to
the victim(s) and the community.
offenders who have been convicted of the crime the victim has suffered, without being
required to meet their personal assailant.
regarding his or her criminal actions.
256 CHAPTER 14 Restorative justice and the peacemaking ethic
conference, not only does the victim attend, but family members of the victim are also
invited to attend. This is important because often the family members of the victim
have incurred discomfort on some level due to the offender's actions.
Victim/offender reconciliation programs
Victim/offender reconciliation programs are said to "bring victims and offenders
together with a trained mediator" in an attempt to resolve an offense as either an
"alternative to court proceedings" or "after conviction as a condition of probation"
(Hackler, 2004:250). The utilization of a mediator provides a neutral viewpoint in
a stressful and conflicted situation. Mediators have the ability to lead the encounter
between victims and offenders while keeping a watchful eye on the anticipated
results. An example of a victim/offender reconciliation program is located at the
Washington State Reformatory Prison. This program "provides offenders and victims
with opportunities to restore victim-offender relationships, to educate offenders
about the experiences of victims, and to facilitate a healing process among interested
community members" (Lovell et al., 2002:261). One victim indicated that the program
is accomplishing the goal at hand; another victim stated he would "like the
guy who murdered (his) son to admit guilt and take responsibility . . . feelings alone
are not always enough" (Lovell et al., 2002:264). Victim/offender reconciliation
programs provide a level of accountability from offenders and require victims to
be courageous in their quest for justice by personally interacting with the people
who committed the crimes against them.
An example of sentencing circles can be found in Canada, which provides aboriginal
sentencing circles for juveniles. Community members, including the "victim,
offender, supporters, and court officials," as well as "the judge or a respected
elder," may oversee the proceeding (Hackler, 2004:350). Each participant is heard
as part of a process to reach consensus regarding sentencing or other consequences
(Hackler, 2004). Aboriginal sentencing circles are seen as the equivalent to a normal
court proceeding. However, community involvement is what separates such
circles from more traditional court proceedings.
Another restorative justice circle is utilized with inmates in Green Bay, Wisconsin,
and includes a "broken ball" as a symbolic tool within its practice. This
program encourages individuals to speak "one at a time, moving around the circle,
the speaker holding two pieces of glass that, together, form a large ball" (Keeva &
Newell, 2004:73). This helps everyone involved in the circle to give their undivided
attention to the speaker. "Like them, it is broken, and no matter how hard
they try to rebuild their lives they are still filled with cracks" (Keeva & Newell,
2004:73). Such a utilization of symbolism produces an understanding of the troubles
possessed by each person involved and aids in the conception of connectedness
and the importance of caring.
Types of restorative justice programs 257
Reparative boards typically are "public meetings" that take place in such settings
as "public libraries and community centers" (Dzur & Wertheimer, 2002:9).
An interesting aspect of reparative boards is that they do not view any crime to
be victimless. For this purpose, when a victim is unknown, "the offender may be
asked to perform restitution or write a letter of apology" (Dzur & Wertheimer,
2002:10). This suggests that reparative boards hope to help offenders understand
that even if no one individual is harmed, society still bears the burden of the
crime in many different ways. For offenders to learn different ways of perceiving
themselves, reparative boards create "classes tailored to the offense or general
tasks like writing an essay on the importance of law and the social consequences
of offenses like the one that was committed" (Dzur & Wertheimer, 2002:10).
With reparative boards, the offender is required to attend a series of meetings.
After 3 months, "there is a closure meeting where offenders who have successfully
completed their tasks are congratulated," although "the board can return offenders
to court for recommencing if they fail to complete their tasks" (Dzur &
Wertheimer, 2002:10). In the traditional justice system, offenders are not required
to consider the reasoning behind their arrest, conviction, and incarceration. By
encouraging offenders to better understand themselves and the effects of their
actions, personal transformation is more likely to occur.
An example of reparative boards is located within the Yukon and Northwest
Territories of Canada. This program involves a panel of individuals who are
required to oversee the process. Panel members' responsibilities include making
sure "the agreement (is) proportionate, fair, and realistic," and panel members
must be certain the agreement "strikes a balance between welfare and justice
consideration" (Mackay, 2003:14). The panel members are also required to make
sure the agreement has "reparative value" instead of only being punishmentoriented
(Mackay, 2003:14). Reparative boards require a social web and network
that supports and offers to aid in the reintegration of the offender back into
In victim/offender panels, victims of a particular crime discuss their experience
in front of a number of offenders who have committed the type of crime in
question. Such panels "allow victims to address offenders who have committed
the same type of crimes" that the victims have experienced (Braswell, Fuller,
and Lozoff, 2001:149). Victim/offender panels have been indicated to be
effective with some "victims of drunk drivers and with victims of burglary"
(Braswell et al., 2001:149). It may be better for some victims to discuss their
experience with individuals who have committed the same crime the victim has
suffered from instead of talking face to face with the particular offender who
258 CHAPTER 14 Restorative justice and the peacemaking ethic
Reintegrative shaming is somewhat different from the other types of restorative
justice approaches previously discussed. It is suggested that shaming should be utilized
as a "reaffirmation of the morality of the offender by expressing personal disappointment
that the offender should do something so out of character" (Van Ness
& Strong, 1997:69). Critics of reintegrative shaming suggest that given the individualistic
nature of our culture, there is some concern that the shaming might not be
reintegrative, because many people are not well integrated into society to begin
with (Braswell et al., 2001). If people do not feel a connection or bond to their
community, whether others are disappointed in them is likely to make a little
difference. The outcome of the reintegrative shaming technique depends on the
conception of the offender regarding his or her relationship with the community
as well as how community members view themselves in relation to the community
in which they live.
A PRECARIOUS BALANCE
The effects of restorative community justice are uncertain today because evaluations
of such programs are in their infancy. Yeager (2004) suggests that "there presently
exist few studies worldwide that adequately . . . implement and isolate restorative
justice processes and compare their effects on recidivism for samples carefully
matched to control groups" (p. 897). It has been suggested that "without credible
evaluation of restorative justice programs, there will continue to be resistance to their
blanket implementation and reluctance in the victim community to embrace them"
(Mika, Achilles, Halbert, Amstutz, & Zehr, 2004:35). Strang (2004) contends that
"we simply don't know whether any of the various programs that are said to be
underpinned by community justice are successful by any measure that community
justice advocates themselves might articulate because so little robust evaluation
research has been conducted" (p. 77). It is easy to understand why some might be
skeptical of restorative community justice processes, although there is substantial
anecdotal evidence attesting to the effectiveness of such approaches.
How do we measure the effectiveness of restorative justice? Basile (2002)
believes that "in essence, program success should be proportional to the recidivism
rate of the offenders it serves" (p. 56). However, the goal of restorative justice is
not only to prevent crime but also to restore the relationships among the offender,
the victim, and the community. Rodriguez (2005) suggests that a "successful reintegration
process experienced by juveniles who participated in one restorative justice
program is clearly reflective of program effectiveness" (p. 103). An evaluation
of such programs should also involve a qualitative aspect as well as relying on
quantitative research such as recidivism rates.
Current research into the effectiveness of restorative community justice programs
leaves us with a mixed understanding. For example, Yeager (2004) explains
that "some studies produce only mixed or modest results favoring restorative justice"
(p. 897). In a restorative justice program utilized in Canada, "participants
reported benefiting greatly from the circle process by having a voice and stake in
just outcomes, being understood, experiencing strengthened commitment to change
and healing, mutual respect, and renewed community/cultural pride", whereas
"others pointed to a lack of privacy, difficulty working with family members and
close friends, embarrassment, unprofessionalism, and religious conflict as negative
aspects of the circle process" (Lajeunesse and Associates Ltd., 1996).
Another possible problem reported by researchers regarding restorative community
justice is that in certain jurisdictions there are limited services and options
for victims and resistance to alternative programs from the traditional court and
criminal justice system (Mika et al., 2004). It is important that restorative community
justice remains a community process and is not overtaken by professionals.
Other problems include "attrition of those involved in a program especially when
the process requires face-to-face meetings between offender and victim" (Bonta
Wallace-Capretta, Rooney, McAnoy, 2002:320-321). If individuals drop out of
the process, researchers are unable to evaluate the program effectively.
Regarding restorative justice programs in prison, due to the embedded punishment
philosophy found in the traditional criminal justice system, restorative justice
may confuse some inmates because of the contradiction between retributive and
restorative practices. One evaluation preformed in the United Kingdom indicates
that restorative justice programs can be effectively implemented in "residential
establishments" (Littlechild, 2004:46). Another positive finding suggests after
3 years of implementation, program evaluations demonstrated a "15% reduction
in recidivism" compared to other offenders not involved with the program (Clearinghouse
for Drug-Exposed Children, 1996). Basile (2002) contends that "an
offender may fail because we are either referring the wrong person to a good program
or a good candidate to the wrong program" (p. 56). As with other rehabilitation
and reform-minded programs, if researchers and practitioners are not aware of
what types of programs work with certain types of offenders, the needed programs
will not be created or implemented.
For more on restorative justice, go to www.restorativejustice.org/.
Defining restorative justice is not an easy task. Evaluating such programs can
prove difficult as well. It seems as though restorative justice approaches are
balancing on a tightrope. The values underlying such practices may seem to be
idealistic and unachievable in an individualistic and self-absorbed world, yet the
ideas behind restorative justice and peacemaking seem to flow from a deeper, more
humane level of understanding-an understanding that victims and offenders alike
are human beings who have a capacity for remorse, forgiveness, and restoration.
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Note: Students provided consent for release of papers referenced within the chapter.
1. How are the themes of peacemaking criminology (connectedness, caring, and
mindfulness) related to restorative justice techniques?
2. What are the primary differences between the traditional system of justice
and restorative justice?
3. What do research findings suggest regarding the effectiveness of restorative
4. If you were the primary victim of a crime, would you choose to participate in
a restorative justice program if provided the opportunity? Why or why not?
Case Study 14-1 The Limits of Responsibility
"Hey, Joe, bring me one of those cigars," you shout, pouring yourself another steaming cup
You, Frank, Mark, and Ted had been coming to your lake cottage every Thursday night
for the past 10 years. Located just 30 min from Middleville, where you all live, it is a great
place to get away. Who says middle-aged men can't have their own clubhouse? Sometimes
you drink tea and soft drinks; other times you and the boys might have a couple of beers. In
cold weather, hot coffee tended to be the preferred drink. Whatever the beverage of choice,
your evenings together always culminated with the four of you smoking cigars and talking
about whatever came to mind. On this particularly cold February night, you perked, drank,
smoked, and talked.
Case Study 14-1 The Limits of Responsibility-Cont'd
"My real estate business has been mighty good to me," you say. "My wife and children
are healthy and happy. I've got a lot to be thankful for."
"I'll second that thought," Mark echoes. "My hardware store has held its own, and Sue
has recovered from her surgery."
Ted, a successful local attorney, reflects on his past year of getting through a difficult
case and being able to breathe again. It has also been a pretty good year for Frank, a
third-generation cattle farmer.
You continue, "You know, I've been thinking about those homeless folks on the streets
this winter. Seems like there are more of them than ever before. And that piece in the paper
about the need for a women's shelter. I've been wondering if, with me being so fortunate,
maybe I ought to see about helping those folks in some way."
Casually blowing spiraling smoke rings, Mark replies, "God helps those who help
Frank chimes in, "Don't go getting bleeding-heart liberal on us, Rick. I'd like to see
some of those homeless men out on my farm working like I do. Besides, everyone knows
a lot of the homeless are just lazy-and as for the women's shelter, they need to take shelter
in their own homes and be good mothers and wives."
"I don't know," you reply. "It's awful cold out there. Everyone's not as lucky as we are.
I've been thinking about calling Jenny Andrews, the community director of social services,
to see if she could use a couple of my empty buildings downtown."
Relighting his cigar, Ted compliments you for your charitable attitude and adds, "Just
remember, Rick, the downtrodden have to want to help themselves. And no matter how many
you help, there are always others to take their place. Besides, you need to consider liability
issues. No matter how good your intentions are, some people will sue you at the drop of a hat."
"Maybe so, but it seems like we ought to do our part and give something back to our
community," you protest.
"We do," Mark replies. "We pay taxes and give to charities like the United Way and
March of Dimes."
"Come on, Rick, lighten up," Frank chides.
You smile sheepishly, "Okay, but is there something else we could do?"
1. Does Rick have a point, or should he just let human services agencies take care of problems
associated with homelessness or victims of abuse?
2. How might citizen involvement proactively help police with issues regarding the homeless
and abuse victims?
3. Do those of us who are financially comfortable have a duty toward others? If so, what is
From Michael Braswell, XXXXX XXXXX, and Joycelyn Pollock, Case Studies in Criminal Justice Ethics (Long Grove,
IL: Waveland Press), 2006. Reprinted with permission.
EXERCISE IV-1 RESTORATIVE JUSTICE: ETHICAL SCENARIOS
1. You are the victim of a home burglary. The burglar stole your stereo system
and wide-screen television. Total loss: $3500. The thief was a 16-year-old
boy with a family problem: a father who drinks and is not the father he
should be. Do you push the prosecutor and judge to "throw the book" at the
264 CHAPTER 14 Restorative justice and the peacemaking ethic
boy, or are you agreeable to victim/offender reconciliation with a probable
probation sentence and restitution? What if you know that the boy will be
able to pay back only a fraction of your loss? Are you still agreeable to a
restorative justice process? Does restorative justice detract from efforts to
achieve deterrence? Incapacitation? Retribution?
2. A man robbed your convenience store. He brandished a gun and frightened
you extremely. The court has restorative justice programs such as victim/
offender reconciliation and sentencing circles. Would you agree to
participate? Under what circumstances? Why or why not? What types of
offenses and offenders should restorative justice include or exclude?
3. The juvenile court in your area has several restorative justice programs in
place, including a program to find jobs for juvenile offenders who are
making restitution to their victims. Quite a few law-abiding youths are
having trouble getting summer jobs and part-time jobs. Many of them feel
resentful because the court program is helping offenders while they are
having difficulty finding such jobs. News of this resentment comes to you,
the director of the program. What should you do?
THIS IS THE END OF CHAPTER 14
Keeping an eye
on the keeper:
Prison corruption and its control* 15
corruption through default
corruption through friendship
corruption through reciprocity
"pains of imprisonment"
Civil Rights of Institutionalized Persons Act of 1980 (CRIPA)
In the introduction to Justice, Crime, and Ethics, Michael Braswell states, "ethics is
the study of right and wrong, good and evil." This chapter focuses on a troublesome
and damaging problem in the administration of justice involving conduct that is both
wrong and evil in U.S. prison systems. It involves a personal choice by employees to
engage in behavior that is clearly wrong and damaging.
Corrupt practices within the criminal justice system undermine and neutralize
the administration of justice as well as destroy public confidence in the system.
Corruption serves to negate the goals and processes of corrections and breeds disrespect
for the process and the aims of justice. The purposes of punishment are also
The prison system is one of the most visible and symbolic aspects of the coercive
nature of criminal justice, yet at the same time it is one that is most closed
to the public. As Supreme Court Justice William Kennedy (2003) stated to the
American Bar Association, "Even those of us who have specific professional
*Adapted from McCarthy, B.J. Keeping an eye on the keeper: Prison corruption and its control, The
Prison Journal, 64(2), 113-125.
266 CHAPTER 15 Keeping an eye on the keeper
responsibilities for the criminal justice system can be neglectful when it comes to
the subject of corrections. The focus of the legal profession, perhaps even the
obsessive focus, has been on the process for determining guilt or innocence. When
someone has been judged guilty and the appellate and collateral review process has
ended, the legal profession seems to lose all interest. When the prisoner is taken
way, our attention turns to the next case. When the door is locked against the prisoner,
we do not think about what is behind it." This chapter takes a glimpse at what
goes on behind the door-and exposes the student to a little-known area of ethical
With the exception of the imposition of death, the deprivation of liberty is the
most serious action society takes against an offender. The prison represents
society's ultimate penalty. By being sent to prison, offenders are involuntarily
removed from the community through a legal process and placed in a confinement
facility where their liberties are circumscribed. In the United States, prison systems
are a huge and expensive enterprise. The 50 states, the federal government, and the
District of Columbia all operate prisons. More than 1.6 million people are confined
in prisons, with terms ranging in length of time from 1 year to life without parole.
An additional 786,000 inmates are confined in jails throughout the United States.
In addition, based on the threat that individuals pose to society and the crimes committed,
inmates are confined in conditions that severely restrict their freedom, and
they are deprived of goods, services, and liberties from which nonincarcerated citizens
are free to choose. More recently, prisons in the United States have become
more punitive in their outlook and operating philosophy, and conditions of confinement
have become more severe. Harsh Justice, a book by Yale law professor
James Q. Whitman, makes the controversial suggestion that the goals of the U.S.
prison system have shifted from rehabilitation to purposes that degrade and
In this chapter, the problem of corruption and its control are examined as one
form of ethical misconduct in state correctional systems. Historically, staff misconduct
in the form of prison corruption has been a persistent and pervasive feature of
corrections, periodically erupting in the form of scandals that are usually brought
to our attention by the press. No prison system is immune from this problem; in
recent years, major prison scandals have been reported in Alabama, California,
Delaware, Florida, Hawaii, Illinois, Michigan, New York, Pennsylvania, Tennessee,
and Texas. Political payoffs, organized crime, large-scale street gangs, and
the general avarice of people who have been hired to work in prisons have contributed
or played a role in a number of these scandals. Other than media reports
and the occasional state investigation, little is known about the problem. Prison
systems are not open to the public, and much of what goes on inside is hidden from
public view. In fact, Supreme Court Justice William Kennedy, in a speech to the
American Bar Association, described the prison as "the hidden world of punishment;
[and] we would be startled by what we see" if we were to look.
Periodically, the prison becomes exposed to the general public when extreme
abuses make their way to the public eye, as in the case of the charges of torture
The role of staff in prison misconduct 267
and sexual abuse occurring in the military prison in Abu Ghraib. Military police
officers working in a U.S. Defense Department confinement facility used digital
cameras to record their abuses of inmates, and these photographs were
disseminated worldwide on the Internet. Philip Zimbardo, a social psychologist
and architect of the Stanford Prison Experiment, described these actions as an
example of the Lucifer Effect. The Lucifer Effect describes the process of transformation
by which good people are working at jobs that transform them into evil
For more details on Zimbardo's Lucifer Effect concept, see www.lucifereffect.com.
THE ROLE OF STAFF IN PRISON MISCONDUCT
One of the most critical elements in any correctional system is the quality of the
staff hired to work in prisons. The critical role played by employees in the correctional
enterprise has long been noted by correctional practitioners and prison
[It] is obvious, too, that the best security which society can have, that suitable
punishments will be inflicted in a suitable manner, must arise from the character
of the men to whom the government of the prison is entrusted. (Boston Prison
Discipline Society, 1827:18)
In 1870, the Reverend XXXXX XXXXXworth, Secretary of the California Prison
Until [prison guard reform] is accomplished, nothing is accomplished. When
this work is done, everything will be done, for all the details of a reformed
prison discipline are wrapped up in this supreme effort, as oak is in the acorn.
Jessica Mitford reported in a critical study of prisons:
The character and mentality of the keepers may be of more importance in understanding
prisons than the character and mentality of the kept. (Reid, 1981:211)
Generally, in the area of public service, the integrity of government workers has
been viewed as a significant factor in the effective and efficient operation of
government. The most visible forms of corruption occur in the front end of the
criminal justice system and involve the police. In criminal justice, a voluminous
literature exists on police corruption, yet this subject represents one of the least
understood areas in corrections. This chapter shifts the focus to prisons and the
268 CHAPTER 15 Keeping an eye on the keeper
types of corrupt practices occurring behind their walls (both figuratively and literally).
Here, we examine the forms, functions, and impact of corrupt practices on
the correctional process.
Corrupt practices in prisons range from simple acts of theft and pilferage to
large-scale criminal conspiracies (e.g., drug trafficking, counterfeiting rings, sale
of paroles, etc.). These forms of correctional malpractice may be directed at
inmates and their families, other employees, the state, and the general community.
The impact of such practices cannot be underestimated. They are destructive
and dangerous. In terms of their impact on the criminal justice system, corrupt
practices undermine and erode respect for the justice system by both offenders
and the general public and lead to the selective nullification of the punishment
and the "pains of imprisonment" (i.e., the correctional process for certain offenders).
For example, offenders may be able to arrange the purchase of paroles and
pardons, arrange for confinement in a less secure setting, or drastically improve
their standard of living in custody. Corrupt practices may also lead to a breakdown
in the control structure of the organization and to the demoralization of correctional
workers. It also dramatically increases the threat to their safety when drugs,
cell phones, or weapons are smuggled into prison. The existence of corrupt practices
also undermines the impact of correctional programs designed to change
offenders. For example, the importation of drugs into a prison may completely
undo the efforts of maintaining a drug-free facility.
The pernicious effects of employee misconduct were pointed out by
Massachusetts Public Safety Director Ed Flynn when commenting on the unjust
treatment suffered by a prison inmate that lead to his death. Flynn said, "if nothing
else, inmates must leave our custody with a belief that there is a moral order in
the world . . . If they leave our care and control believing that rules and regulations
do not mean what they say they mean, that rules and regulations can be
applied arbitrarily or capriciously for personal interest then we fail society. We
fail them and we will unleash people more dangerous than when they went in"
As one might expect, the incentives and opportunities for corrupt behavior for
employees engaged in low-visibility discretionary actions in prison systems are
many. From the offenders' perspective, they have everything to gain to persuade
staff to make decisions that benefit them personally (i.e., the so-called "pains of
imprisonment" may be neutralized or their release from custody secured) and very
little to lose. Some inmates seek to exploit any weaknesses they may find in the
system, including those of the staff. From the employees' perspective, corrupt
practices represent a lucrative, albeit illicit, way to supplement one's income
(and, in some systems, usually without significant risk). In one investigation nicknamed
Operation Bad Fellas, U.S. Bureau of Prison correctional officers were
charged with smuggling heroin, marijuana, steroids, Italian food, vodka, wine, vitamins,
clothing, and electronic equipment into a federal correctional facility in
New York City. Bribes received by staff ranged from $100 to $1,000 per delivery
Types of prison corruption 269
In examining staff corruption within a prison system, three basic questions are
raised: First, what is corruption, and what forms does it take in a prison setting?
Second, what factors appear to be associated with it? Third, what steps should be
taken to control the problem?
DEFINING CORRUPTION IN A CORRECTIONAL ENVIRONMENT
In the correctional literature, the concept of corruption has been used frequently,
usually referring to a general adulteration of the formal goals of the correctional
process (Rothman, 1971; Sykes, 1956, 1958). The literature on corruption, particularly
police corruption, provides a much narrower definition, which aids researchers
interested in studying the more specific problem (see Kleinig, 1996). For the
purposes of this chapter, corruption is defined as the intentional violation of organizational
norms (i.e., laws, rules, and regulations) by public employees for personal
This definition was formulated on the basis of a review of the corruption
literature-particularly the literature on police corruption-and guides our discussion
of the issue. As one might expect, varying definitions and corresponding
approaches to the study of corruption exist (Heidenheimer, 1970). In the research
on police corruption, most studies appear to use what has been referred to as a public
office-centered definition of corruption (Simpson, 1978). The public office-
centered definition views corruption as essentially a violation of organizational
norms by a public employee for personal gain (Heidenheimer, 1970). Examples of
this approach may be found in the writings of Sherman (1974), Meyer (1976), Goldstein
(1977), Barker (1977), and Kleinig (1996), and the approach has been adopted
in this chapter. Corruption occurs when a public servant (prison employee) violates
organizational rules and regulations for his or her own personal material gain.
In operationalizing this definition of corruption for research purposes, certain
conditions must be satisfied before an act can be defined as corrupt. First, the
action must involve individuals who function as employees. Second, the offense
must be in violation of the formal rules of the organization. Third, the offense must
involve an employee receiving some personal material gain (something of value)
for the misuse of one's office. These conditions are used to distinguish corrupt
behavior clearly from other forms of staff misconduct, such as excessive use of
force. A standard definition of corruption, consistent with the general literature,
is critical in building an information base regarding corrupt practices in corrections
and for comparative purposes with the larger criminal justice system.
TYPES OF PRISON CORRUPTION
In contrast to the literature on police corruption, very little is known regarding the
types of corrupt practices experienced by correctional agencies, especially prisons.
Court cases, media accounts, and inmate and staff surveys could be conducted, but
270 CHAPTER 15 Keeping an eye on the keeper
they would provide an incomplete view of the issue. Another approach is to examine
the internal affairs records of a state correctional agency (see McCarthy, 1981).
From an administrative point of view, this approach examines the types of misconduct
that is reported and acted on within a system.
An internal affairs unit has the responsibility for investigating all allegations of
misconduct by staff or inmates. The cases during a specific time period were
reviewed first to identify those that fit the preceding definition of corruption and,
second, to identify and analyze the range and types of corrupt practices experienced
by this agency. Admittedly, this information source provides a limited view
of the problem because it is based on official statistics. However, as researchers in
the field of police corruption have suggested, the records of the internal affairs unit
represent one of the best available sources of information for examining this topic
(Myer, 1976; Sherman, 1979).
A content analysis of the case files identified several types of corrupt conduct:
theft, trafficking in contraband, embezzlement, misuse of authority, and a residual
or miscellaneous category.
Theft generally involved accounts of items reported as stolen from inmates during
frisks and cell searches (drugs, money, jewelry), visitors who were being processed for
visiting, and staff members. This form of misconduct was generally committed by
low-level staff (e.g., correctional officers) and was opportunistic in nature.
Trafficking in contraband involved staff members conspiring with inmates and
civilians to smuggle contraband (drugs, alcohol, money, steroids, food, and weapons)
into correctional facilities for money, drugs, or services (usually of a sexual
nature). The organization of this activity varied considerably. Some were largescale
conspiracies involving street gangs or organized crime officials on both the
inside and the outside. Others were individuals acting on their own. As part of their
sentence, inmates are deprived of access to many things that are accorded to freeworld
citizens. The items smuggled into prisons range from items such as food,
makeup, and cigarettes to much more serious items such as drugs, guns, bullets,
and explosive devices. In recent years, dozens of staff and inmates across the country
have been arrested for smuggling in cell phones to inmates. These phones have
been used to continue outside criminal activities (organized crime), intimidate witnesses,
and engage in criminal activities such as drug smuggling. According to one
recent report in Philadelphia, guards were indicted for smuggling drugs, cigarettes,
and cell phones. One guard made up to $10,000 for bringing in cigarettes and a
phone before being caught (Butterfield, 2004).
Acts of embezzlement were defined as systematically converting state property
for one's own use. This offense was differentiated from theft. Theft tended to occur
in single events that were opportunistic in nature. Embezzlement involved employees,
sometimes with the help of inmates, systematically stealing money or materials
from state accounts (inmate canteens or employee credit unions), state property,
Misuse of authority is a general category involving the intentional misuse of
discretion for personal material gain. This form of corruption consisted of three
The role of discretion 271
basic offenses directed against inmates: the acceptance of gratuities from inmates
for special consideration in obtaining legitimate prison privileges (e.g., payoffs to
receive choice cells or job assignments); the acceptance of gratuities for special
consideration in obtaining or protecting illicit prison activities (e.g., allowing illegal
drug sales or gambling); and the mistreatment or extortion of inmates by staff
for personal material gain (e.g., threatening to punish or otherwise harm an inmate
if a payment is not forthcoming).
An additional form of misuse of authority is the taking of bribes by correctional
administrators to award contracts to private vendors for services needed by the correctional
system. As the privatization movement continues to grow in corrections,
we can expect more reports of this form of misconduct as some companies vie for
an unfair advantage. The use of an open bidding process for contracts helps minimize
Another form of misuse of authority that is getting attention in the media is sexual
misconduct involving staff and inmates, staff against staff, and staff and
offender family members/friends. A National Institute of Corrections (2000) study
found that roughly one-half of the agencies in the Department of Corrections have
been involved in litigation related to sexual misconduct. At least 22 state correctional
agencies were facing class action or damage suits as a result of sexual misconduct
by staff. One major reason for this upswing in allegations and charges is
the use of cross-gender assignments in prisons, that is, male officers assigned to
supervise females and female officers assigned to supervise male offenders. Several
recent studies have concluded that this is a major problem in corrections
(see, e.g., Buell Kayman, McCampbell, & Smith, 2003).
Staff sexual misconduct with other employees usually involves a supervisory
relationship and exploits the imbalance in power. Sexual exploitation of family
members and friends of inmates occurs when a staff member either accepts an
offer of sexual favors and/or takes advantage of the power relationship he or she
has over the inmate and the inmate's family by extorting sexual services.
THE ROLE OF DISCRETION
All forms of corruption involve the misuse of discretion by public employees. The
role played by discretion in corrections is significant. By law correctional officials
are provided with a broad mandate to develop and administer correctional agencies.
This broad authority extends to devising rules, regulations, and procedures
designed to control and otherwise handle offenders under custody. Corruption
occurs when officials misuse this discretionary power for personal material gain.
At a general level, three forms of discretionary misconduct can be identified:
misfeasance, malfeasance, and nonfeasance. For the purpose of understanding the
relationship between corrupt practices and the misuse of authority, the different
forms of corruption have been sorted into three categories of discretionary misconduct
(see Table 15.1).
272 CHAPTER 15 Keeping an eye on the keeper
Misfeasance refers to the improper performance of some act that an official
may lawfully do (Black's Law Dictionary, 1968). Offenses in corrections that fall
into this category include the acceptance of gratuities for special privileges or preferential
treatment (e.g., assignment to honor blocks, access to phone calls), the
selective application of formal rewards and punishments to inmates for a fee, the
sale of paroles or other forms of releases, and the misuse or misappropriation of
state resources for one's own personal gain. All these acts involve an employee
misusing the lawful authority vested in his or her office for personal gain.
Corrupt practices falling into the category of misfeasance are directed at
improving the living conditions of inmates and, as a result, they reduce the deprivations
associated with imprisonment. The misuse of lawful authority appears to be
in an area in which line staff have the greatest opportunities to maximize their personal
gain (especially in supplementing their income through the commission of
illicit acts), because the nature of their work permits them the greatest influence
over routine prisoner conditions. These acts are also considered low-visibility ones
with little oversight at the lowest levels.
Malfeasance refers to direct misconduct or wrongful conduct by a public official
or employee, as opposed to the improper use of legitimate power or authority
(Black's Law Dictionary, 1968). Corrupt practices that fall into this category involve
primarily criminal acts and include theft; embezzlement; trafficking in contraband;
extortion; exploitation of inmates or their families for money, goods, and services;
protection rackets; assisting escapes (as opposed to arranging paroles or sentence
communications); running prostitution rings; and engaging in criminal conspiracies
with inmates for such purposes as forgery, drug sales, and counterfeiting.
Acts of malfeasance appear to represent more aggressive and serious acts by staff
to supplement their incomes. This type of offense is similar to the grass eater/meat
eater distinction found in studies of police corruption (Knapp Commission, 1973).
Meat eaters are viewed as aggressively exploiting every possible situation for personal
gain. Grass eaters, however, take whatever comes their way. For instance, a
meat eater might sell drugs in prison, whereas a grass eater might respond to an
inmate's request for drugs. This type of behavior is destructive to the correctional
environment and in a very real way poses a danger to inmates and staff.
The last category is nonfeasance. Nonfeasance refers to the failure to act
according to one's responsibilities or the omission of an act that an official ought
to perform (Black's Law Dictionary, 1968). McKorkle (1970) has suggested that
nonfeasance is more responsible for corrupting correctional officers than malfeasance.
Two types of corrupt practices appear to be involved in this type of decision:
(1) selectively ignoring inmate violations of institutional rules, such as
permitting inmates to engage in sexual activities with visitors or looking the other
way when marijuana or other drugs are smuggled into the facility by visitors in
return for payment and (2) the failure to report or stop other employees involved
in misconduct. This second practice might typically consist of a low-level
employee not informing on a fellow officer or superior because of an implied or
direct promise of personal gain, such as promotion, transfer, or time off or reduced
Factors associated with corruption 273
Table 15.1 Pattern of Corruption by Type of Decision
Corrupt Acts by
Discretionary Decisions Officials Involved
Provide preferential treatment
and special privileges Line staff
Selective application of rewards
and punishments Line staff
Forms of legitimate release Administrators
Misappropriation of resources Administrators
Trafficking (cell phones, drugs,
alcohol, weapons, and money) Line staff
Extortion/exploitation Line staff
Protection rackets Line staff
Embezzlement/theft Line staff and administrators
Criminal conspiracies Line staff
Facilitation of escapes Line staff
Failure to enforce regulations Line staff
Coverups Administrators and line staff
duties. In other cases, an administrator may fail to stop staff misconduct for fear of
public scandal and possible loss of position.
As Braswell aptly points out in the introductory chapter to Justice, Crime, and
Ethics, "our beliefs and values regarding right and wrong are shaped by many forces
. . . being unethical is not simply committing an evil or wrong act (commission), it is
also a matter of being an indirect accomplice to evil by silently standing by when evil
occurs (omission)." In prisons this might occur when misconduct is committed and
you know about it and don't do anything about it. For instance, recent revelations
of torture in the U.S. prisons in Iraq were brought forward by individuals who were
working there and bore witness to the actions of their fellow soldiers. The conduct
is wrong and involves both action and witness: commission and omission.
FACTORS ASSOCIATED WITH CORRUPTION
Research has shown that certain factors are associated with varying levels of corruption
in an agency. In a U.S. Department of Justice study on municipal corruption
(1978), two factors were identified as having a major influence on the level
and degree of corruption experienced by a particular governmental agency. These
factors were: (1) the opportunities for corruption and (2) the incentives within the
274 CHAPTER 15 Keeping an eye on the keeper
workplace to make use of those opportunities (Gardiner & Lyman, 1978). In the
following section, these two factors are examined within the context of a prison
A third driving force identified by other studies of public corruption was the
influence of politics (Gardiner, 1970; Sherman, 1978). Sherman suggests that a
leading explanation for police corruption was the capture of the department by
the political environment. Prison systems come under the executive branch of
government, and their leaders are political appointees. As such, corrections is not
immune from the power of politics. Correctional programs at the state and local
levels are influenced by the political process, particularly in terms of the appointment
of administrative staff and the allocation of resources.
THE ROLE OF OPPORTUNITIES
Three external forces influence prison systems and directly affect the incentives
and opportunities for corruption. One is the continuing trend to incarcerate criminals.
This has led to unprecedented levels of crowding in state and federal prison
systems. Second, career criminals are receiving longer sentences as the public sentiment
toward punishment continues to harden (e.g., "three strikes and you're out"
laws), and these long-term offenders are making up a larger percentage of the
inmate population. A third is that citizen attitudes toward the treatment of prisoners
have led to a toughening of programs directed at prison inmates (e.g., chain gangs,
the introduction of tobacco-free prisons, and the elimination of amenities such as
college-level educational programs and recreation). These forces increase the
deprivations associated with imprisonment and provide extra incentive to inmates
to attempt to mitigate or neutralize the pains of imprisonment.
The opportunities for corruption arise from the tremendous amounts of discretionary
authority allocated by the legislature to correctional officials. As Costikyan
has noted, "Corruption is always where the discretionary power resides" (1974).
In the prison, employees-particularly low-level ones (e.g., correction officers,
counselors, and other line workers)-are responsible for monitoring and
controlling virtually all inmate behavior. These officials constantly make lowvisibility
discretionary decisions that reward positive behavior and penalize negative
behavior. These decisions directly affect the day-to-day living conditions
experienced by inmates in custody.
In a prison environment, staff members-armed with a limited arsenal of formal
rewards and punishments-are given the task of controlling a reluctant, resistant,
and sometimes hostile inmate population. Special privileges in the form of
extra television time, phone calls, job assignments, cell changes, conjugal visits,
transfers, and furloughs may be used to reward positive behavior. Punishments in
the form of withdrawal of privileges, transfers, or various forms of deprivation
(from restriction of calls to solitary confinement and loss of good time) are used
to control inmates.
Incentives for corruption 275
The way that staff members apply these rewards and punishments has both
short-term and long-term consequences for inmates and their experiences in the
correctional system. Accordingly, when one considers the conditions of confinement,
one recognizes the many incentives and pressures for inmates to attempt to
corrupt staff as one means of improving their living conditions or for staff to
exploit their power. Individuals sentenced to prison are subjected to various levels
of deprivations, commonly referred to as "pains of imprisonment," that affect both
(search of cells) or access to key correctional personnel. Frequently, these take the
form of reciprocal relationships in which valuable information is exchanged by
both staff and inmates. Inmates inform on one another, and staff in turn may disclose
administration plans regarding such activities as the time and place of cell
Status accommodations result when staff provide special deference to certain
inmates. According to Cloward:
The right guy . . . seems to be left alone (by staff) in spite of conspicuous deviance
from official values, and this mark of untouchability results in high status
among his peers. (1960:40)
The cumulative effect of these accommodations may predispose certain correctional
employees to take advantage of their situation and attempt to materially
benefit from their working relationships with inmates, staff, and contractors.
Another factor that complicates matters is the type and quality of people
recruited and hired to work in correctional facilities. Frequently, the quality of
the workforce is uneven and sometimes substandard because of low pay and poor
working conditions. These individuals are placed in situations in which they are
given considerable discretionary authority (without much training in its use) in a
setting in which the visibility of their actions is quite low. When this situation
occurs, the probability of corrupt practices increases. Another factor that provides
an incentive for corruption is the impact of politics. If the selection and promotion
of employees are influenced by politics, employee decisions may benefit the political
party in power.
First, it must be recognized that corruption is a regular feature of government processes.
The problem of corruption will always be hovering in the background and
can probably never be eradicated; however, certain steps may be taken to reduce
and control the problem (Gardiner, 1970:93). In this section, we examine several
strategies that a correctional administrator may adopt to address the problem of
corruption within a correctional agency.
A first step in dealing with the problem of corruption is to develop and enforce
a strict, zero-tolerance policy on corruption, and implement and communicate a
strong and forceful anticorruption policy. This policy should define specifically
what the agency means by corruption as well as specify the penalties associated
with such practices. (See Ward & McCormack, 1979, for an example of developing
an anti-corruption policy for police departments). Once this policy has been
formulated, it needs to be disseminated to all workers. Training should also be
provided to employees regarding the nature, causes, impact, and consequences of
corrupt practices. This training should be integrated into both preservice and inservice
training modules. Without enforcement, these policies will have no impact
physical and psychological states of the individuals. Sykes defined these pains
of imprisonment as the deprivation of liberty, goods and services, heterosexual
relations, autonomy, and security (Sykes, 1958). In dealing with these "pains"
associated with confinement, inmates make various adaptations to their immediate
environment to help soften its psychological and physical impact. One of the techniques
they use is the corruption of correctional employees as a means of neutralizing
or improving their conditions of confinement (e.g., through the smuggling
of drugs, food, radios, or money, or the purchase of privileges).
In her journalistic study of an inmate incarcerated in a maximum-security
prison, Sheehan made the following comment regarding the motivation of inmates
Most men in the prison are in prison precisely because they were not willing to
go without on the street. They are no more willing to go without in prison, so
they hustle to afford what they cannot afford to buy. (1978:9)
Hustling usually brings the inmates and/or confederates into situations in which
they need the cooperation of a staff member, to overlook an infraction, perform
a favor, or smuggle in some item. As such, the incentives or pressures for inmates
to influence the reward-and-punishment structure through corruption are enormous.
Gardiner and Lyman underscore this point when they state: "Corruption
can only occur when officials have an opportunity to exercise their authority in
ways which would lead others to want to pay for favorable treatment"
(1978:141). When it comes to the prison, nowhere in society are deprivations
found that exceed the harsh conditions of confinement found in the deep end of
INCENTIVES FOR CORRUPTION
There are many incentives for employees to take advantage of the power associated
with their position in an institutional setting. They range from structural
and organizational characteristics of prison management to individual factors
(e.g., honesty of staff, the financial needs of employees, etc.).
A major incentive for corrupt practices results from defects in the prison organization's
control structure. The prison, which is essentially a coercive organization,
formally bases its control on the use of coercive power (Etzioni, 1964:59). However,
correctional employees, particularly line staff, find that there are limits to the degree
276 CHAPTER 15 Keeping an eye on the keeper
of compliance achieved through the use of coercive power (Cloward, 1960; Sykes,
1958). To do the job successfully, coercive power must be supplemented with informal
exchange relations with inmates. These informal control practices are utilized
by staff for control purposes and are responsible for the smooth functioning of the
institution and for maintaining an uneasy peace (Cloward, 1960; Irwin, 1980; Sykes,
1958). As Sykes pointed out more than 40 years ago:
The custodians (guards) . . . are under strong pressure to compromise with their
captives for it is a paradox that they can insure their dominance only by allowing
it to be corrupted. Only by tolerating violations of minor rules and regulations
can the guard secure compliance in the major areas of the custodial
According to Sykes, three factors are responsible for undermining the formal control
structure of the prison: (1) friendships with inmates, (2) reciprocal relationships,
and (3) defaults. Each of these factors develops at the line-staff level as a
function of long-term and close working associations between guards and inmates
in a close setting. Irwin (1980), in a contemporary update, cited corrupt favoritism
as a significant factor in the day-to-day management of the prison.
Corruption through friendship evolves from the close contact that prisoners and
guards share in their daily interactions. In many cases, they get to know one
another as individuals, and friendships may develop. These friendships may, in
turn, affect how staff members use their authority. Corruption through reciprocity
occurs as an indirect consequence of the exchange relations that develop between
inmates and staff: "You do something for me, I'll do something for you." Corruption
through default occurs when staff members (e.g., cellblock officers) begin to
rely on inmates to assist them with their duties, such as report writing and cell
checks. In time, the employee depends on the inmates for their assistance in satisfactorily
performing his or her duties.
Cloward (1960) also pointed out how defects in the prison organization's control
apparatus lead staff members to develop informal means of control through the
development of various accommodations between the keepers and the kept. Material
accommodations occur when staff provide certain inmates with access to forbidden
goods and services or contraband in return for their cooperation. Cloward
provides an example of this when he quotes an inmate explaining how he makes
You go to make arrangements with the mess sergeant. He gets the ingredients and
when we're in business . . . it's one of those you do this for me and I'll do this for
you sort of thing. . . . The sergeant has to feed 1,500 men. It don't look good if he
goofs. He wants the job done right. Now we're the ones who do the work, the
cooking and all of that. So the sergeant, he says, okay you can make a little drink.
But see to it that you get that food on the lines or the deal's off. (1960:7)
Power accommodations occur when selected inmates are provided with access
to restricted information, such as the date and time of an impending shakedown
training modules. Without enforcement, these policies will have no impact.
278 CHAPTER 15 Keeping an eye on the keeper
For deterrence to work, these policies must be enforced. Employees charged with
corruption should be investigated and prosecuted if warranted-not merely asked
Second, the correctional agency should develop a proactive mechanism to
detect and investigate corrupt practices. This includes the establishment of an internal
affairs unit and processes that encourage employees, inmates, and civilians to
report allegations of staff misconduct. Many states use a whistleblower hotline to
deal with governmental misconduct, and this can be extended to prison systems.
In addition, the use of routine and special audit procedures on a random basis will
ensure the proper expenditure of funds. In one state, state-level investigators randomly
target prisons and conduct interdiction investigations to search for contraband.
Inmates, staff, and civilians are subject to searches and drug testing,
including a drug-detection system known as IONSCAN. In 1 year, these searches
resulted in the seizure of a large quantity of drugs (powder cocaine, crack cocaine,
and marijuana) and weapons, including 13 firearms and 280 rounds of ammunition
in one state system (Florida Department of Corrections, 1997). Drug testing of
employees and the screening of correctional employees as they enter and leave
institutions should also be considered.
Third, correctional administrators should attempt to improve management of
material practices in the prison. This internal reform is directed at improving the
control of the organization. In prior studies of corruption where it was shown that
leadership and control of persons were weak, the potential for corruption increased
(Gardiner, 1970). Management must take affirmative steps toward reducing the
opportunities for corruption. One step in this direction is to structure the use of
discretion and make the visibility of low-level decisionmakers more public and
subject to review. Guidelines for the use of discretionary rewards and punishments
should be public. For example, specific criteria and a review process
should be established to review cell changes, job assignments, and transfers or temporary
releases. In addition, the disciplinary process should be opened up to
review. These decisions should be periodically reviewed by supervisors to ensure
the accountability of decisionmakers. An example of the misuse and abuse of the
disciplinary process occurred a few years ago in the state of Massachusetts, where
John Geoghan, a defrocked priest convicted of molesting dozens of children,
was falsely accused on disciplinary infractions by guards so that he would be
transferred to a more punitive and restrictive setting. Geoghan was later killed by
an inmate in a supposedly more secure but more punitive correctional facility.
Internal reform should also include screening of employees to improve their
Another management enhancement practice is to upgrade employee selection
procedures to include psychological testing and formal preservice training
designed to screen out questionable employees. In addition, simple police checks
of an individual's background should be expanded to include in-depth background
investigations of prospective employees. Some states are finding that members of
The legal option when abuses become extreme 279
street gangs are applying for jobs as correctional officers to assist in the expansion
of the gang's power inside prisons. Routine investigations have also found that
individuals with felony convictions and even escapees have been hired as correctional
employees. Another step entails improving the working conditions of
employees so that the quality of correctional worker is raised. Employees making
just barely above the minimum wage might be attracted to supplement their
incomes through illicit behavior. Improving wage scales, enlarging job responsibilities,
and broadening employee participation in decision making, as well as
increasing efforts toward professionalism, will all help address the issue of staff
commitment to the mission of the agency.
A fourth and final recommendation addresses the political environment of prisons.
Prisons are located in the executive branch of government, and top administrators
serve at the pleasure of the state governor or the President. Correctional
administrators have little control over political and community attitudes toward
prisons and prisoners, but they should take steps to insulate their employees from
external pressure placed on them to act in a way that benefits some constituent or
campaign donor who seeks to intervene on behalf of an inmate. By requiring merit
selection and promotion of employees, a correctional administrator reduces the
impact of political interference in the operation of the agency.
THE LEGAL OPTION WHEN ABUSES BECOME EXTREME
The Eighth Amendment of the U.S. Constitution prohibits cruel and unusual punishment.
The study of corruption usually involves an examination of so-called "bad
apples" within a system. Sometimes the level of misconduct rises to a system level
and it becomes a matter of not only bad apples but also a bad barrel. The violations
and abuses become pervasive in a prison or system. This is what occurred in the
state of Michigan, where there was widespread sexual abuse of female prisoners
by male correctional officers. In a consent decree with the U.S. Department of Justice,
the state of Michigan agreed to remove male officers from female prisons
because of high levels of sexual abuse. Legal action was subsequently taken within
the state court system as well, and 10 female inmates were awarded $15 million in
damages (USA Today, February 1, 2008).
When abuses rise to this level, federal protections are available for inmates
under custody of the state. The U.S. Constitution's Eighth Amendment prohibits
the infliction of cruel and unusual practices. Within the context of the Eighth
Amendment, legislative action has followed with the passage of the Civil Rights
of Institutionalized Persons Act (U.S. Statutes 42 U.S.C. § 1997).
This act authorizes the Civil Rights Division of the U.S. Department of Justice
to investigate complaints. This unit has broad authority to investigate constitutional
violations that occur in institutions, including jails and prisons, and covers protections
from abuse by staff.
280 CHAPTER 15 Keeping an eye on the keeper
A complete listing of the complaints the U.S. Department of Justice receives, and actions
taken, can be found at www.justice.gov/crt/split/cripa.php.
Another source of protection of inmates comes from the Prison Rape Elimination
Act (PREA) of 2003. This federal law focuses specifically on the sexual
assault of prisoners. The act was designed to reduce or eliminate sexual assaults
and rape in custodial settings. The act called for national standards and reporting
requirements both to document the dimensions of the problem and to come up with
solutions (including national standards designed to address the issue). The National
Prison Rape Elimination Commission produces reports on the problem. In addition,
the U.S. Bureau of Justice Statistics has been assigned the responsibility of carrying
out a survey each calendar year as well as an analysis of the incidence and
effects of prison rape on a nationwide basis.
In sum, controlling corruption requires correctional administrators' commitment
to provide leadership in setting high standards of ethical conduct, communicating
and upholding standards of ethical behavior, and holding people accountable
for their actions. This includes improving and upgrading the general correctional
environment (particularly the working conditions for staff) to protect employees
from political pressures and to replace a tendency toward complacency with a concern
for accountability. Kathleen Hawk Sawyer, the recently retired director of the
Federal Bureau of Prisons, summed up the problem by stating that dealing with
staff "sexual misconduct has been the single most frustrating issue" she encountered
during her years as director of the U.S. Federal Bureau of Prisons. Dealing
with staff misconduct is not a simple or easy thing to respond to:
[T]here are many pieces to dealing with the issue of sexual misconduct. There is
the investigative piece, the personnel piece, training, and also the inmate management
piece. It's not only about the investigation and nailing someone to wall
then getting rid of them. It is a whole system response that will produce positive
outcomes. Otherwise, you're missing the mark. Your strategy has to be very
integrated and cross-system oriented to have any positive impact at all. (U.S.
Department of Justice, 2005)
Opportunities for corruption must be identified and addressed, and the risks
taken by people predisposed to misconduct must be increased. It is doubtful that
corrupt practices can be eliminated, but they can be reduced and controlled. It is
important to keep in mind the words of Supreme Court Justice Kennedy when he
addressed the American Bar Association:
We have a greater responsibility, as a profession, and as a people, we should
know what happens after the prisoner is taken away. To be sure the prisoner
has violated the social contract; to be sure he must be punished to vindicate
the law, to acknowledge the suffering of the victim, and to deter future crimes.
Still, the prisoner is a person; he or she is part of the family of humankind. It
is no defense if our current prison system is more the product of neglect than
of purpose. Out of sight, out of mind is an unacceptable excuse for a prison system
that incarcerates over two million human beings in the United States.
To upgrade and improve the prison in a democracy, we must make sure that the
prison is opened to the public and its workings exposed to citizens. The light of day
shined on prison practices will ensure that our expectations for ethical conduct will
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1. What kinds of motivations might a correctional officer have for engaging in
corruption? Are some forms of corruption worse than others? Explain.
2. If you were an inmate serving time in a punitive prison, would you attempt to
curry favor with staff to obtain extra privileges? Would you pay for those
3. Is corruption an unavoidable result of discretion?Discuss your response in detail.
4. Working in corrections can be morally challenging for employees. What
does this mean? What are some of the temptations that might exist?
5. Should the goals of the prison system include degrading and demeaning
6. What implications would this have for staff working in prison?
7. You have been serving as a prison commissioner for several months without
any political pressure placed on you. During a friendly conversation with
the governor's chief of staff, the Chief mentioned that a former political ally
doing time for bribery would like to be transferred to a minimum-custody
classification facility close to his family's hometown. The Chief said he would
really appreciate your assistance in this matter. As an aside, he mentioned
that your performance review was coming up. How should you respond?
8. What forms of sexual misconduct by staff might take place in a maximumsecurity
Case Study 15-1 Legacy of Corruption
You are a young woman, born and reared in a rural area in the South. Your family was above
average in relation to the income of the working-class families in your town. Your father,
a farmer, worked hard and saved his money. As a result, he was able to provide you,
your brother, two sisters, and your mother with a life of dignity and a sense of belonging-
belonging to family, to town, and to country.
There was dignity, but no extras. Work was hard and income uncertain. Thriftiness was
no mere virtue; it was a necessity. Your parents imbued you with the "American dream"-
that hard work and education would make your life easier and more productive than theirs
had been. By education, your parents meant high school and possibly some vocational training.
After high school, you and one of your best friends decided to join the Air Force, enlisting
for the full four years. You were assigned to a base in the North where you were able to
learn a profession. Since your Air Force job was in personnel, you planned to seek work in a
similar field when you were finally discharged.
When you returned to Smallberg and your family, you were ready to seek a career and a
life of your own. Smallberg was home to you and you wanted to settle there, but there were
no personnel jobs available. You felt that you would like to do something meaningful with
your life. You wanted a job that would give you both security and a sense of accomplishment.
You even considered reenlistment. Then you saw an advertisement:
Case Study 15-1 Legacy of Corruption-Cont'd
Correctional Officers needed at State Prison. Civil service position, fringe benefits,
career opportunity. High school diploma required. Beginning salary $24,000. Apply
at personnel office, main prison.
You couldn't believe your eyes! Twenty-four thousand dollars a year! Who could live on
that? But after several more weeks in a fruitless job search, you decided to apply for a position.
You could live at home for awhile and at least the work would be meaningful.
Six weeks later you completed your basic correctional officers' training and with your
fellow trainees you signed your oath of office as provided for in Section 26 of the state code:
I do solemnly swear or affirm that I will faithfully and diligently perform all the duties
required of me as an officer of the Department of Corrections and will observe and
execute the laws, rules, and regulations passed and prescribed for the government
thereof so far as the same concerns or pertains to my employment; that I will not
ill treat or abuse any convict under my care, nor act contrary to the laws, rules and
regulations prescribed by legal authority, so help me God.
During the 3 years since you took the job at the state prison, you have observed worsening
conditions. You have been promoted twice, but your annual gross pay is still only
$26,500. The inmate population has increased 40 percent, while there has only been a
10 percent increase in correctional officer positions. To make matters worse, the political
and public mood has become increasingly negative. The education and recreation specialist
positions have been eliminated, and three of the eight counselor positions have been frozen.
No educational programs, little if any organized recreation, more inmates, and fewer correctional
officers have resulted in dismal working conditions.
Now, to increase your sense of frustration, you have learned that your captain and several
other of your fellow officers are taking bribes from inmates in exchange for choice assignments.
You mentioned to the captain that word has reached you with regard to the purchased
assignments. Instead of being embarrassed or evasive, the captain tells you, "These scumbags
would sell their mothers for a dime and they deserve whatever happens to them." He
then offers to assign you to the unit in charge of housing so that you can "get in on the
action." There are even reports that several of the female officers are earning extra income
by having sex with some of the better-connected inmates. Since you yourself have been propositioned
twice during the last month, you have little doubt that the rumors are true.
Conflicting needs flood your consciousness. The last officer to complain about this particular
captain was summarily dismissed and threatened with prosecution for possession of
contraband that he claimed he was not even aware of. The captain's father is also a former
warder of this prison, and his brother is the present business manager of the institution.
Needless to say, the situation has created a major crisis in your life. Your decision will
be crucial because of its lasting implications for you. You value your personal integrity and
you believe in the intrinsic value of your profession, yet you could use more money. In addition,
there is the pragmatic necessity of your employment and your hope for advancement
within the system-what there is left of it. You live in a beautiful, if depressed, economic
area where few decent jobs exist. What should you do?
1. In this case, should the correctional officer contact the prison superintendent or someone
at the state level?
2. What kind of oversight or programs could effectively address corruption among corrections
Reprinted by permission of Waveland press, Inc., from Braswell, Miller, and Pollock (2010). All rights reserved
THIS IS THE END OF CHAPTER 15
Ethics and prison:
Selected issues 16
disproportionate minority prison populations
Prisons are a source of fascination for many of us. Although prisons are intended to
repel us, they instead sometimes seem to be a source of mysterious interest. Moviemakers
have capitalized on this interest with countless movies set in real or fictitious
prisons, especially traditional "Big House" prisons such as Sing Sing or
Walla Walla. Another testimony to the uncanny attractiveness of prisons is the
conversion of Alcatraz, the former disciplinary prison of the federal prison system,
to a museum where tourists can walk around and even be locked in a cell for a few
minutes of imaginary incarceration.
This chapter examines some of the ethical issues about prison. It discusses
prison composition, discrimination, prison conditions, treatment, victimization,
elderly offenders, women in prison, and privatization. Guard corruption is not considered
because that issue was discussed in Chapter 15.
WHO BELONGS IN PRISON?
A basic ethical question about prison is: Who belongs there? What kinds of offenders
deserve to be sentenced to prison? A number of critics contend that many of
the people sent to prison do not need to be there. According to these critics, these
prisoners are neither violent nor career criminals, and most citizens do not really
want such people incarcerated. Irwin and Austin (1997:58-59), for example, cite
1992 prison admission statistics that show that only 27 percent of prison admittees
that year were admitted to prison for a violent crime conviction. This is especially
evident in the federal prison system, where less than 9 percent of inmates sentenced
in 2007 were convicted of violent crimes and 53 percent of prison admittees
were drug offenders (West & Sabol, 2009).
Conservatives, however, applaud the growth in the prison population. DiIulio,
for example, argues that average citizens want prisons to be used and that prison
incapacitates and saves money: "‘prison pays' for most prisoners: it costs society
about twice as much to let a prisoner roam the streets in search of fresh victims
as it does to keep him locked up for a year" (DiIulio, 1995:41). DiIulio (1994) also
argues that greater use of incarcerative sentences will reduce crime in our nation's
A complete analysis of this issue is beyond the scope of this chapter,1 but some
consideration is necessary. First, critics of increased incarceration fail to mention
several crucial points about prison/prisoner statistics. For example, critics often fail
to note that approximately 15 percent of the offenders admitted to prison each year
are admitted for burglary (Maguire & Pastore, 1996:567). Although prison critics
conventionally label burglary as a "property" crime, many citizens regard this crime
as a much more serious crime than other property crimes, such as shoplifting. Burglary
involves trespass into one's personal space (one's "castle," or home), and it
also involves a very real potential for violence. Either the burglar or the victim
may have a weapon at hand and resort to using it. A qualitative indicator of the seriousness
with which some people regard burglary is the criminal law allowance
of deadly force against burglary in at least one state (see, e.g., Alabama Code,
13A-3-23). Another connection of burglary to violent crime is that many burglars
are looking for guns (Wright & Decker, 1994:144). Clearly, there is some probability
that these guns will be fenced or otherwise transferred to other criminals directly
engaged in violent crime. Furthermore, many of the "nonviolent" offenders admitted
to prison in any year were repeat offenders and/or offenders who had been under
community supervision of some sort. In 1991, for example, 45.9 percent of all state
prisoners were either probation or parole violators at the time of their admission to
prison (Cohen, 1995). In 1992, parole violators represented 29 percent of prison
admissions (Maguire & Pastore, 1996:567). Thus, it is misleading to argue that only
27 percent of new admissions to prison are violent when another 15 percent are burglars
and another 29 percent are repeat offenders (parole violators).
In addition, in giving admission statistics, critics may overlook composition
statistics. For example, in 2005 more than one-half (53%) of the prisoners in state
prisons were in prison for violent crimes (West & Sabol, 2009). Another 10 percent
were in prison for burglary. Thus, approximately 6 of 10 prisoners were in prison
for either burglary or violent crimes.
Moreover, drug offenders may be more threatening than Irwin and Austin consider
them to be. One investigation found that many crack cocaine users were
involved in both crack dealing and other crime. Inciardi and his colleagues
(1993) studied serious delinquents in Miami at the start of the crack epidemic in the
mid-1980s. They found thatmore than one-half of the crack users in their sample were
dealers and 18 percent were "dealers plus" (i.e., they also manufactured, smuggled, or
wholesaled the drug). More important, these dealers were far from innocent, recreational
purveyors: "Degree of crack-market participation was also related to earlier
and greater general crime involvement, including violent crime (emphasis in the original)
(Inciardi, Horowitz, & Pottieger, 1993:178). Furthermore, a number of studies
"have shown that lethal violence is used commonly by drug traffickers in the pursuit
of their economic interests" (Brownstein, Spunt, Crimmins, & Langley, 1995:475).
On the other hand, prison proponents also omit or fail to emphasize some important
points about prison composition. For example, the contention that the average
citizen wants criminals incarcerated (see, e.g., DiIulio, 1995) is only partially correct.
There is substantial agreement in the literature that the public is not as punitive
as surmised but rather still wants rehabilitation and will opt for nonincarcerative sentences
for many offenders. For example, in 2003, 72 percent of a national sample
agreed that the criminal justice system "should try to rehabilitate criminals, not just
punish them" (Sourcebook of Criminal Justice Statistics, 2010). Similarly, in 2006,
65 percent of Americans stated that more money and effort should go to attacking
social problems, whereas only 31 percent favored more spending on law enforcement
to lower the crime rate (Sourcebook of Criminal Justice Statistics, 2010).
Research in California found that citizens did indeed initially express a preference
for prison for 25 hypothetical cases varying from petty theft to rape. After being
informed of costs and alternatives to incarceration, however, these same citizens
wanted only 27 percent of the hypothetical offenders to be incarcerated (DiMascio,
1995). Recent research in Ohio showed that on a global measure of support, 88 percent
of the sample favored a "three strikes and you're out" law. On more specific
measures, however, only 17 percent of the respondents favored life sentences; most
favored sentences of five to 15 years in prison. Thus, it is safe to say that "underneath
more punitive global attitudes, in specific situations, the American public
tends to be less punitive and to favor a more diversified response to crime than simply
locking up offenders . . ." (Applegate, Cullen, Turner, & Sundt, 1996:519).
Similarly, the matter of incapacitation is much more complex than many prison
proponents portray. Spelman (1994) found that collective incapacitation is at best a
"gamble" that "may pay off" (p. 289) and that the effect of selective incapacitation
is at best-and under ideal conditions-only 4-8 percent (p. 289). This led Spelman
to caution that "the crime problem can never be substantially reduced through
incapacitation alone" (1994:312). Instead,
. . . criminal justice policies that deter and rehabilitate individual offenders;
broader-based policies aimed at ameliorating continuing social problems such
as chronic poverty and unemployment, teenage pregnancy and child abuse,
and the like; and entirely different approaches aimed at reducing the number
of criminal opportunities rather than just the number of criminals, all deserve
continued attention. (Spelman, 1994:312)
In summary, the debate about who should go to prison is often clouded by partisan
positions that fail to consider some important pieces of information. Critics of
prison tend to overemphasize the use of prison for nonviolent offenders. Proponents
oversell the alleged benefits of prison and ignore polling research that indicates the
public's willingness to use nonincarcerative options. Hopefully, a peacemaking
approach mindful of as much clarity as possible will help to resolve the debate.
Go to www.loc.gov for images of prisons and prisoners throughout U.S. history.
DISPROPORTIONATE MINORITY PRISON POPULATIONS
A more specific concern in the larger question of prison composition is the disproportionate
number of African Americans, especially black males, behind bars.
In 2008, African Americans made up 12 percent of the general population but
39 percent of state and federal prison populations (U.S. Census Bureau, 2010; West
and Sabol, 2009). Disturbingly, 1 in 15 black men age 18 or older were behind
bars, compared to 1 in 106 white men of the same age group (Warren, 2008).
Although the black imprisonment rate is decreasing (Sabol, West, & Cooper,
2009), disproportionate minority representation is still a concern.
The overrepresentation of African Americans in prisons is nothing new. This
group made up 30 percent of the prison population in 1940, more than 40 percent
in 1980 (Walker, Spohn, & DeLone, 1996), 46 percent in 1985, and 49 percent in
1990 (Mumola & Beck, 1997). However, one aspect of the problem that is new is
the increased number of African Americans incarcerated for drug offenses
(Mumola & Beck, 1997). Several observers argue that police "target minority communities-
where drug dealing is more visible and where it is thus easier for the
police to make arrests-and tend to give less attention to drug activities in other
neighborhoods" (Walker et al., 1996:209).
A few cautions are in order. Drug offenders may be more threatening than some
of the critics of the incarceration of drug offenders consider them to be. As noted in
the previous section, drug use may also mean involvement in drug dealing, criminal
activity, and violence, including lethal violence (Brownstein et al., 1995;
Inciardi, Horowitz, & Pottieger, 1993).
These observations are not meant to justify discriminatory policing and/or sentencing
of African-American drug offenders. They are simply offered to show that
there is some reason for society to be concerned about drug offending, no matter
which racial or ethnic group is involved.
It would seem that the ethical course of action is to pursue a drug policy that
treats all races the same. It would also seem that any drug policy should not
discriminate or give the appearance of discrimination. At the very least, our
nation's drug policy has failed on the latter account. A number of observers have
judged the drug war to violate the appearance of impartial handling. Steps need
to be taken to correct that appearance. If the famous O. J. Simpson murder trial
said anything, it is that the way the criminal justice system treats African Americans
is clearly under scrutiny, and even the perception of bias can have harmful
consequences. Continuing the recent drug policy runs the risk of alienating still
further minority members who are already substantially alienated.
Space limitations here do not allow for a complete discussion of whether discrimination
leads to disproportionate minority representation in prison or if disproportionate
criminal involvement accounts for the overrepresentation. Whatever the
sources of disproportionate minority prison populations, the issue needs to be
PRISON CONDITIONS: CODDLING OR TOUGHNESS?
Another fundamental ethical issue concerning prisons is the question of what kind
of prison environment society should provide for prisoners. A number of voices are
calling for tough, spartan-like prisons with no "frills" such as television, recreational
facilities, or athletic equipment. More traditional voices think that prison
intrinsically involves a number of pains or deprivations and that we do not need
to make it much tougher than it is. To these people, what looks like a frill may
in fact be justified for one or more logical reasons.
Van den Haag (1975) is an example of a critic who argues for spartan prisons.
He argues that prisoners should work many hours each day for the purpose of punishment
and that such hard labor should be sufficient to tire them out. At night,
they would be so exhausted that they would just rest before bed. This type of
prison would serve retributive, incapacitative, and deterrent objectives. It would
be tough punishment for crime, it would keep offenders off the streets and away
from opportunities to commit crime, and it would serve to frighten potential offenders
from committing crime because people considering crime would not want to
be sentenced to a hard-labor prison.
Bidinotto (1997) has criticized our nation's prisons for coddling prisoners. In an
article originally published in Reader's Digest, he alleged that hard labor was out
of fashion. In style, he said, were electronic exercise equipment, horseshoe pits,
bocce, conjugal visits (even at such supposedly spartan prisons as Attica Correctional
Facility in New York), and opera appreciation classes.
More extreme critics argue for even tougher prisons. In addition to removing any
frills or amenities from traditional prisons, these individuals contend that prison
should be made as tough as possible. Possible changes would be very limited diets
and the introduction of chain gangs. Chain gangs would add humiliation to prison
labor. Prisoners would be chained to each other and forced to work outside prison
walls so that the public could see them at work. In this scenario, scorn would return
to the criminal justice system. (See the separate section on chain gangs that follows.)
Perhaps the most well-known advocate of this position is Maricopa County
(Arizona) Sheriff Joe Arpaio, who the media named "America's toughest sheriff."
Arpaio proudly notes that the cost of an inmate's food at his facility is approximately
60 cents per day, and inmates are fed only twice daily (Griffin, 2001).
More traditional voices note that prison already contains numerous painful features
that are sufficient punishment for offenders. These inherent pains of prison
are harsh enough to make prison punitive and also serve as a deterrent to potential
offenders. Sykes (1958), for example, noted more than 50 years ago that prison
involves a number of pains or deprivations. These are deprivation of freedom,
autonomy, possessions, security, and heterosexual contact. Deprivation of freedom
or liberty is self-explanatory; inmates lose their freedom to come and go as they
please. Deprivation of autonomy refers to the removal of choices; inmates are told
what to do and when to do it by virtue of a schedule that governs every minute of
the day. Unlike free citizens, inmates have no choices about when to get up in the
morning, when to go to meals, what to eat, what to wear, when to watch television,
and when the lights go out. The prison dictates the decisions that those of us in the
community take for granted each day and treats the inmate like a child who is incapable
of making autonomous decisions. Likewise, with possessions, the administration
allows only minimal possessions such as a picture or poster or two and
no distinguishing clothing. In a society that exalts material possessions as signs
of status, accomplishment, and individuality, the prison restricts possessions to
the minimum and thereby depersonalizes each inmate. Security is far from a given
in prison. Inmate assaults are a real possibility, especially for the weak. Even the
strong have to fear attacks from groups of inmates who can overpower any one
individual (more on this shortly). Finally, deprivation of heterosexual contact is
the norm in most prisons. Very few prisons allow conjugal visitation, and a prisoner
must be married to participate.
Guenther (1978) has noted some additional deprivations or pains. The subjective
experience of time in prison can be very painful. For example, weekends are periods
of "hard time" because the inmate does not have to go to a job that helps him or her
pass the time during the week. Through the holiday season, inmates see holiday shows
and advertisements that remind them that they are missing contact with loved ones at a
special time of the year. Even letters from home can be painful because sometimes the
letter writer expresses anger or hurt at the offender for the things the offender did to
the writer. Children, for example, may express anger at their father for abandoning
them and not being with them to do simple things like take them fishing. Visits can
be occasions for other inmates to offer taunts. Other inmates may tease the inmate
who receives a visit from his or her spouse, reminding the offender that the spouse
is free and might be seeing other people behind the offender's back. Or a visit from
a spouse may cause the inmate "to question how ‘the government' can deny him sexual
access to his spouse" (Guenther, 1978:602). At the very least, visitors have to be
searched, and they see the offender in prison clothing that reminds both the visitor
and the offender that he or she is a lawbreaker who has been arrested and convicted.
Traditionalists argue that these inherent pains of prison are sufficient suffering.
Additional torments such as removing exercise equipment or televisions and radios
are unwarranted. Traditionalists also argue that amenities can serve to keep
inmates occupied and thereby help prevent restlessness, attacks on other inmates,
attacks on guards, and, ultimately, prison riots.
Conrad (1982:313) frames the question aptly: "What do the undeserving
deserve?" His answer is worthy of consideration. He argues that they deserve
"safety, lawfulness, industriousness, and hope" (Conrad, 1982:328). Safety and
lawfulness are self-explanatory; unfortunately, they are often lacking in our prisons.
Inmates often fear that they will be victimized in some way while behind bars.
By industriousness Conrad does not mean mere busywork but that "everyone puts
in a full day of work at jobs that are worth doing and paid accordingly" (p. 328).
Hope is the most important consideration: ". . . where everyone has some reason
to hope for better things to come-or could have such a reason if he or she were
willing to look for it-the prison will not only be safer, but it will also be a place
in which its staff can take some pride" (Conrad, 1982:328).
Sometimes the debate over prison conditions can make it sound like prisoners
are living in expensive luxury resorts in which every whim is satisfied, but "f
our prisons are such resorts, simply open the gates and see how many run out
. . . and how many walk in" (Taylor, 1997:92).2
Related to the issue of the appropriate conditions for prisoners is the issue of
whether treatment opportunities should be provided for prisoners. Although rehabilitation
was once routinely provided, many voices question providing anything
other than punishment to inmates.
There is no question that most prisoners are in need of various types of assistance.
Many prisoners are high-school dropouts, do not have employable skills,
had alcohol or other drug problems prior to entering prison, and may suffer from
psychological difficulties such as lack of self-esteem.
An argument for providing services to offenders is that such services may help
reduce recidivism when the inmate is released. Employment, for example, has been
shown to be a clear correlate of success on parole (Pritchard, 1979). Similarly,
recent studies of correctional rehabilitation have demonstrated that offenders who
received treatment for various problems recidivated less (were less likely to reoffend)
than offenders who did not receive appropriate treatment (Lipsey & Cullen,
2007). Such empirical evidence for the efficacy of treatment (see also Aos, Miller,
& Drake, 2006) suggests that the ethically correct course of action is to provide
In spite of its effectiveness, some still argue that treatment is not appropriate for
prisoners. One argument is the principle of least eligibility, which maintains that
prisoners do not deserve anything better than what is given to the least eligible
in our society. Because many people cannot afford college or vocational training or
psychological counseling, a strict adherent of this principle might argue that prisoners
should not benefit from any such treatments. To do so would give them
something better than that had by a significant minority of the free population.
One response to this is that the deprived status of the neediest in U.S. society is
not sufficient justification for depriving inmates. The answer is to address both
problems. Law-abiding citizens deserve the opportunity to attend college or learn
a vocational trade. Prisoners, too, should have such opportunities, which will hopefully
help prevent any return to crime. Years ago, the Vienna Correctional Center
in Illinois attempted to solve the problem by opening up a number of prison programs
to any interested citizens from the community. That way, the area residents
did not feel that the inmates were benefiting from programs that were not available
to them (Silberman, 1978).
Another argument against services for inmates is that the prison environment is
highly likely to sabotage such efforts. Drawing on the prison research of Sykes
(1958), the mental hospital research of Goffman (1961), and other research, some
argue that so much suspicion, distrust, and animosity arise between inmates and
prison staff that it is impossible to offer meaningful treatment options in the prison
environment. In Goffman's terms, inmates are so involved in seeking secondary
adjustments that mitigate the intended punishments of prison that they would not
benefit from treatment programs. In Sykes's terms, inmates are so busy trying to
soften the pains of prison by such strategies as making home-brewed alcoholic
beverages, achieving status by boisterousness or physical prowess, or prowling
for sexual conquests that any treatment efforts would fall on deaf ears. The counterargument
is that prison officials have often failed to implement rehabilitation
programs as needed. Instead, wardens and guards put custody concerns over treatment
concerns in terms of both dollars and emphasis. Thus, prison staff get what
they want: custody rather than rehabilitation.
An important reminder in any debate over providing treatment is that most
offenders will be released back into society. If society makes no effort to educate
or train offenders for gainful employment after release, the offenders will not have
a legal means of support and may well resort to crime. Releasing offenders without
any improvement of their condition seems highly unlikely to improve their chances
For a discussion of faith-based programming in prison, see Box 16.1.
Chain gangs were reintroduced in Alabama in 1995, but the move was followed by
court challenges. Governor Fob James justified their use as a way to save money
and to make incarceration tougher. He argued that a prison guard can supervise
only 20 unchained men on a road crew, but the number doubles to 40 prisoners
if the men are shackled. Concerning toughness, he argued that some men were
Chain gangs 293
BOX 16.1 RELIGIOUS PROGRAMMING IN PRISON
Some states, such as Florida, and the federal prison system have invested heavily in faithbased
programming for prisoners. Two concerns stand out.
First, a major concern is whether faith-based programming is effective. This usually
translates into whether faith-based program graduates recidivate less than other prisoners. To
date, most studies have found no impact of faith-based programming on recidivism (Aos
et al., 2006). One study, however, found that lower proportions of inmates in faith-based
programming in federal prisons committed serious misconduct than did non-faith-based
prisoners. For some reason, there was no difference in less serious acts of misconduct (Camp
et al., 2008).
Measuring recidivism is a utilitarian concern: a search for positive consequences. One
religious writer argues that this utilitarian perspective is misguided when it comes to faithbased
programs. He argues that faith-based programming is justified as a means of seeking
religious redemption or conversion for the inmate. He thinks religious outcomes are not
necessarily measurable-that you cannot measure grace or redemption, or it may take years
for the process to take effect. This writer thinks we should offer such programs to prisoners
based on religious principles, not out of a concern to reduce criminal activity (Hewitt, 2006).
A second concern is that any research that attempts to measure the effectiveness of a
faith-based program needs to attend to the fact that inmates who volunteer for faith-based
programming might very well be more motivated inmates. In other words, they may be the
inmates most motivated to change, and so therefore self-motivation might be the true cause
of any positive results. It is critical to measure the motivation levels of inmates going into
such programs as well as that of the comparison inmates in other programs or undergoing no
programming (Camp, Daggett, Kwon, & Klein-Saffran, 2006).
What do you think? What place should religious programming have in corrections?
declining parole because they thought incarceration was easier (Morris, 1997). An
argument can also be made that chain gangs are constitutional because the Thirteenth
Amendment to the U.S. Constitution prohibits involuntary servitude "except
as punishment for crime." The only current chain gangs are in the Maricopa
County jail in Arizona, where Sheriff Joe Arpaio (mentioned in a previous section)
operates voluntary boot camps as a step to return from disciplinary lockdown
A major argument against chain gangs is that they are discriminatory or, at best,
give the appearance of discrimination. Observers have noted that 70-90 percent of
the Alabama chain gang prisoners were black (Corsentino, 1997). For African
Americans, chain gangs are a reminder of the Reconstruction Era in the South,
when racism was still rampant. After the Civil War, the South needed to rebuild
railroads and roads, and prison labor was leased out to contractors to engage in
such direly needed projects. Many of the prisoners were blacks, since the South
used its criminal justice systems as a way to get around the legal abolition of slavery.
As in slavery, the offenders were classified as "full hands" or "half hands,"
tacit recognition that slavery had simply taken another form (McKelvey, 1997).
A constitutional question is whether the use of chain gangs violates the cruel and
unusual punishment prohibition of the Eighth Amendment.
294 CHAPTER 16 Ethics and prison
Another argument against reintroducing chain gangs is von Hirsch's (1990) principle
of acceptable penal content. What he means is that sanctions are only acceptable
if the offender can endure them and still maintain his or her human dignity. von
Hirsch, who argues that punishments such as bumper stickers on the cars of drunk
drivers proclaiming their DUI (driving under the influence of alcohol) status are
too demeaning, would oppose chain gangs because they are intrinsically humiliating
and do not allow the offender the necessary minimum condition of human dignity.
Finally, it is important to consider what emotions might be generated in offenders
by the use of measures like chain gangs, especially after release. Do we want
offenders living next to us who have been humiliated and scorned? Or do we want
offenders who feel that prison was a painful but appropriate punishment for the
wrongs they committed?
SAFETY/SECURITY IN PRISON
As noted, Sykes (1958) listed deprivation of security as one of the pains that prisoners
suffer. There is some controversy about how much lack of security prisoners
should undergo. A number of studies have detailed the victimization that many
prisoners have had to face. For example, Wolff, Blitz, Shi, Siegel, and Bachman
(2007) found that 21 percent of an inmate sample had been a victim of physical
violence in the previous 6-month period. Wachtler (1997), former chief judge of
the New York Court of Appeals, reported being stabbed in a federal facility. Therefore,
it appears that although federal facilities are supposed to be relatively safe
and secure, even a prominent white-collar criminal has a considerable risk of being
attacked in prison. Sexual violence is also of concern, although difficult to measure
accurately. Official statistics show that 4.5 percent of inmates report being the victim
of sexual violence, whereas some studies have shown this percentage to be as
high as 21 percent (Beck, 2007; Struckman-Johnson, 2000).
More generally, Bowker (1980) provides a thorough (but now dated) catalog of
the various types of victimization that prisoners suffer. Irwin and Austin have
argued that prison produces harmful effects on offenders: "The disturbing truth is
that growing numbers of prisoners are leaving our prisons socially crippled and
profoundly alienated" (1997:82). They are also concerned that the increasing use
of maximum-security confinement compounds the harmful effects of prison so that
contemporary prison systems are "spewing out such damaged human material"
(Irwin & Austin, 1997:106). Indeed, a survey of prisoners revealed disciplinary
practices, including beatings that were characterized as capricious and brutal
(Hamm, Coupez, Hoze, & Weinstein, 1994).
Several studies, however, have painted a less negative picture. A study of coping
in New York prisons concluded that "most prisoners serve fairly trouble-free
terms" and that their overall experience in prison is "no more overwhelming
to them than other constraining situations they have encountered in their lives"
(Toch & Adams, 1989:254). A longitudinal study of the incarceration experience
in Canada led Zamble and Porporino to compare a prison sentence to a "deep
freeze," after which the offenders are unchanged: "As they had done on the outside,
most of the inmates in this study followed a path of least resistance, and they
focused on the fine line of present time passing" (1988:150). A 1990 review of
prison studies failed "to show any sort of profound detrimental effects" (Bonta &
In summary, a number of studies have shown that victimization is problematic
in at least some prisons or for some prisoners in many prisons. Other studies have
shown that a number of prisons are relatively secure and safe and that a considerable
number of offenders come out unscathed. The ethical mandate is to make all
prisons safe and lawful. Even the undeserving deserve this minimal guarantee
With longer sentences, mandatory sentences, and "three strikes and you're out"
laws, state prison systems and the federal prison system can expect an increase
in the number of elderly offenders. In fact, the number of federal and state inmates
age 55 and over increased 55 percent from 2000 to 2005 (McCaffrey, 2007). This
increase raises some ethical issues.
A basic question concerns the release of elderly prisoners once they are no longer
a danger to others. In other words, given some of the changes in sentencing in
the last 10 years, it is reasonable to expect that prison officials will see increasing
numbers of prisoners in their 60s, 70s, or 80s. As prisoners become elderly in
prison, it is clear that many of them will pose little or no danger to society. A prisoner
who has Alzheimer's disease, arthritis, or heart disease is hardly at risk of
engaging in burglary, armed robbery, or murder. At some point, age reduces the
risk of further criminal behavior to zero or close to zero.
If there is little incapacitative or rehabilitative value in keeping such prisoners
locked up, should we release them? Or does the goal of retribution dictate that they
stay in prison for as long as their original sentence dictated? If a prisoner gets to
the point at which he or she does not even understand where he or she is (e.g.,
due to a disease such as Alzheimer's), does it make any retributive sense to keep
the prisoner confined? Doesn't the concept of punishment require that the prisoner
understand what is being done to him or her?
Conversely, society may want to release elderly offenders to save money.
As prisoners age, it is logical to expect that their health care expenses will rise.
They generally will need increasing medical care. As a result, it now costs about
$70,000 a year to house an older offender, compared to about $24,000 per year
for a younger prisoner (Warren, 2008). Should society keep these offenders in
prison so that they can receive the medical attention they need, or should society
release them to save money? Parenthetically, a system of national health care could
eliminate this dilemma by removing any incentive to release them.
296 CHAPTER 16 Ethics and prison
WOMEN IN PRISON
Women make up a small but significant proportion of the U.S. prison population.
At year-end 2008, there were 114,852 female prisoners in state and federal institutions,
constituting 7.1 percent of the total prison population (Sabol, West, & Cooper,
Although prison conditions are not as violent for women as for men, there are
some problems that are unique to women's prisons. Because women constitute a
much smaller proportion of any state's prison population, there are usually fewer
prisons for women and also fewer opportunities for education and training. Part
of this situation is related to stereotyped conceptions of the appropriate role for
women in society. Traditional notions of appropriate roles have played a part in
providing programs to train women to become cosmetologists or cooks instead
of auto mechanics or television repair workers. Traditional notions of appropriate
female behavior have also led to prison disciplinary practices that can be more dictatorial
than those found in men's prisons. Beliefs that women should be "prim and
proper" have influenced many officials to enforce rules against arguing and talking
back to guards more stringently in women's prisons than in men's prisons. Thus,
whereas women's prisons may look more pleasant than men's, the appearance of
a softer regime may in fact belie an institution that oppresses by intruding into
more dimensions of behavior than occurs in the typical male prison.
Perhaps the fundamental ethical question is that suggested by Durham (1994):
Would it be right to treat women exactly like men when such a shift in orientation
might very well take away some of the benefits-such as single rooms rather than
cells-that have benefited many women prisoners? Equal treatment would mean
some positive changes, such as increased opportunities for vocational training,
but would the overall results be beneficial for women, or would equal treatment
actually mean generally worse conditions for women?
Another ethical issue is whether states should privatize prisons or continue to keep
them public. As noted in Chapter 13 on ethical issues in probation and parole, proponents
of privatization argue that there are several benefits for turning over prisons
to private corporations. One alleged benefit is budgetary savings. Proponents
claim that private enterprise can do things more efficiently and less expensively
than the government. Government operation is equated with waste and inefficiency.
Some of this is attributed to the civil service system that guarantees job tenure
except in extreme circumstances when jobs are abolished. Civil service
workers are not under the same pressures as workers in private industry who must
constantly show a profit. Competition forces private industry to be effective, efficient,
and accountable (Logan, 1990).
effective. Government offices can adopt strategies that enhance efficiency and
effectiveness just as can privately run agencies.
A number of states have turned over some of their prisons to private corporations.
Several evaluations of private prisons, jails, and juvenile facilities have been
conducted. In most of these studies, a private prison and a public prison from the
same state are compared in terms of costs and inmate and/or staff satisfaction.
One reviewer of a number of such studies concluded that the results are very inconclusive
(Perrone & Pratt, 2003). The reviewer went on to note that although some
studies have shown a small cost savings in private prisons, many of these studies
did not account for important factors such as the number of inmates, the facility's
age, and the facility's security level. Perrone and Pratt thus agree with the conclusion
of the General Accounting Office study that private prisons have not yet been
Perhaps the main argument against privatization is whether it is appropriate for
the government to turn over functions as basic as correctional supervision of offenders
to private businesses. Many question whether the symbolic task of punishing
offenders can be handed over to workers who wear uniforms that say "Acme Corrections
Company" rather than the "State Department of Corrections" (American
Bar Association, 1986). The most dramatic example would be for "Brand X Corrections"
to carry out capital punishment. Should the state surrender the symbolism
of the state executing an offender? Less dramatically, is it right for the state to
allow private companies to impose deprivation of liberty and serious disciplinary
measures such as solitary confinement? Or does incarceration involve a basic right
that ought not to be relinquished by the government? Going further, is it right to
bring the profit motive into this area? One answer is that it is wrong to do so; "it
can be found morally troubling that corporations will try to make a profit on the
punishment of people (which is a deliberate cause of suffering by representatives
of society)" (Shichor, 1995:258).
Another concern regarding privatization is whether the profit motive can
debase corrections. For example, would private prisons be under pressure to keep
clients incarcerated beyond an appropriate release time so as to keep prison populations
and reimbursements high? Would these companies begin to lobby for
lengthier sentences and fewer release opportunities? Would private prisons try to
pay guards fair salaries or would profit pressures work to minimize salaries and
benefits for officers? Would private agencies try to cut services for inmates
(counseling, drug treatment) to a minimum?
were leased out to private contractors for their labor. Hard-working boys would
be kept under supervision longer than necessary because the contractor did not
want to lose their productivity (Pisciotta, 1982). Evidence has also substantiated
some of the other concerns, showing that the private sector offers a lower starting
salary, less potential for salary advancement, and larger inmate-to-staff ratios than
public prisons (Blackely, 2005)
A response to such problems is spelling out a private agency's responsibilities
of the contract. If state inspectors enforce the contract conditions, problems
can be prevented or quickly resolved. If a private agency does not resolve any problems,
it is in violation of the contract and the agency can be dropped. Opponents
of privatization contend that there is a problem with this argument. If the state
wants to end a contract, there might not be another service provider willing and
able to step in and take over the contracted service. At the very least, it would take
some time for another company to be ready to do so.
and in areas such as welfare have been criticized for picking the most capable
clients (Rosin, 1997). The criticism is that these individuals may have been able to
succeed on probation or in getting off public assistance with little or no help. Statistics
showing them to be success stories are thereby misleading. The private agency
selected the individuals most likely to succeed and ignored the individuals most in
need of intervention. The state is left to deal with these more difficult cases.
Proponents of privatization argue that contracting of services can make spending
on correctional services more visible. When the government operates its own prisons,
the prisons "have been ignored by the public and given . . . ‘hands-off' treatment
by the courts" (Logan, 1990:256). Because there has been some criticism of contracting,
there would be a number of eyes scrutinizing the privately run prisons.
In summary, proponents of prison privatization argue that private agencies can
provide needed services more effectively and more efficiently than the government
has done in the past. Opponents argue that government agencies can become more
effective and efficient. Opponents also contend that there can be serious problems
with privatization and question whether it is right to allow the state to give away
the highly symbolic function of depriving citizens of their freedom and supervising
that deprivation of liberty.
This chapter has examined a number of ethical issues pertaining to prisons. Probably
the most basic question is Conrad's: What do the undeserving deserve? One's
choice of answer to this question permeates most of the other issues raised in this
chapter. At this moment in our nation's history, it appears that many answer that
prisoners deserve little or nothing. Because they treated their victims with no compassion,
they deserve no compassion in return.
The three theories that form the framework for this book, however, suggest that
the current answer to Conrad's question may not be the ethical answer. Kant's categorical
imperative urges us to treat others as subjects. Utilitarianism urges us to
consider the consequences of our actions, including the consequences of treating
inmates very harshly for years and then simply releasing them back onto the
streets. The peacemaking perspective reminds us that we are all connected, including
offender, victim, and public, and that caring is a basic ethical principle. It
seems that all three ethical theories suggest that though punishment is appropriate,
we cannot lose sight of the humanity of offenders, even when they have appeared
to lose sight of their own humanity and the humanity of others.
The challenge for the next century is to try to punish offenders in ways that are
fitting and to remain mindful of the need to treat offenders with dignity. The Quakers
and others tried to do this 200 years ago. It is not an easy task.
1. For a more thorough analysis of the issue of prison composition, see Irwin and Austin
(1997) and Braswell and Whitehead (1997). This section of the chapter relies heavily
on the latter source.
2. Ironically, one conservative critic of soft prisons, former Governor J. Fife Symington III
of Arizona, who removed many frills from his state's prisons, recently pleaded guilty to
fraud. He may be forced to experience firsthand the tougher prison environment that he
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1. What do you think the "undeserving deserve"? Describe an ethical prison.
What would it look like? How would prisoners live? What would be their
daily regimen? If you were a state commissioner of corrections and could
design your own prison system, what would it be like? Could you sell your
ideal system to the governor and to the public?
2. Is there any place for chain gangs or other harsh measures in an ethical
prison? Why or why not?
3. Is there a point at which elderly offenders should be released even if they
have five, 10, or more years to serve on their sentences? Discuss.
4. Should women prisoners be treated exactly like male prisoners? Would equal
treatment be advantageous for female prisoners? Discuss.
5. Is it desirable for a state to contract out its prison operations to a private
correctional company? What are the ethical considerations of doing so?
Case Study 16-1 Who's Running the Prison?
You came to the state correctional system with good credentials. You feel that your
background-as an ex-military officer with 15 years of experience in high-level correctional
management positions and a recently completed master's degree in criminal justice-
qualifies you for almost any correctional-related position. You have a practical, no-nonsense
attitude and feel quite comfortable in being appointed superintendent of the state penitentiary,
which had been suffering from incompetent leadership and political intrigue.
The facility was in the state's most isolated corner, and the inmates there were either
considered to have little potential for rehabilitation or were serving such long-term sentences
that rehabilitation was of little immediate interest. In accepting the job as superintendent,
you stated that your top priorities were to upgrade conditions in the prison,
especially the physical plant, and to improve the quality of the correctional officer staff.
Recently the two problems have become entwined in an unexpected way.
You had only been on the job for 1 week when the county commissioner for the district
in which your institution is located came to see you. The commissioner, as you soon
learned, was a political power in the county and could make conditions miserable for you
if he wanted. It seems that his son-in-law needed a job, and he wanted you to find a place
for him on you staff. One word led to another, and before you knew it you responded by stating,
"Hell, no! I won't hire anybody unless they are qualified."
The county commissioner left angrily, and a day later Senator Nester called. Senator
Nester was on the state corrections committee and represented the district in which your
institution was located. At the time he called you did not know that he was also on the
appropriations committee. You learned later that if someone wanted a management job at
Case Study 16-1 Who's Running the Prison?-Cont'd
the institution, he had to call Senator Nester in order to be hired. Senator Nester stated in
his call to you that he just wanted to "get acquainted" and give you a little friendly advice.
First, he indicated that you should make a serious effort to get along with all the local officials,
and second, he recommended that you hire the county commissioner's son-in-law.
You told the senator that you would look at the son-in-law's application when he submitted
it, and if he was qualified, you would give him serious consideration, but beyond that you
could make no promises.
Your review of the son-in-law's hastily submitted application revealed that he had a high
school diploma, had been a police officer on a local force, and had held several other unrelated
jobs, all of rather short duration. In short, he might be qualified for an entry-level correctional
officer slot. However, his work record was spotty and the reason for his departure
from the police department was unclear. Although no one was talking openly about it, there
were some allegations circulating from certain members of the department of police brutality
involving the son-in-law. Since you did not want an unqualified and questionable political
hack in your organization, you placed his application in "file 13."
After a week Senator Nester's office called "on behalf of a constituent" and inquired
about the son-in-law's application. Your personnel officer told the senator's office that a letter
had been sent to the applicant thanking him for his application but informing him that
applications were competitive and, unfortunately, he had not been selected.
Later in the day Senator Nester called back in person; he was enraged. "Why wasn't I
informed of your decision? I've done a hell of a lot for this correctional system and have a
right to expect the courtesy of a reply. I never had this problem before." Nester was clearly
threatening when he said, "You may find that these upcoming hearings will question your
practices in dealing with the legislature, and I'll have some questions about your personnel
policies, too." You finally told Senator Nester that you were running the institution, and
until you were replaced you would continue to hire people based on merit.
Two months later, at budget hearings in the legislature, you found out Senator Nester
was a man of his word. Because of his influence, a new car for the prison superintendent
was stricken from the budget; slots for 18 new correctional officers were also stricken,
and to make matters worse, the committee voted to nullify the badly needed pay raises that
had been budgeted for all the prison employees.
The senator's message has come through to you loud and clear. You realize that the two
of you will have to reach some sort of working agreement unless you can marshal enough
support from other, more friendly legislators, which at present does not seem likely. How
should you approach Senator Nestor? How can you maintain your standards and at the same
time appease him? Should you give and take a little, should you look for a new job, or should
you do both? You are not a quitter; you would prefer to work with Senator Nestor, but you
keep asking yourself: How?
1. What are some ways a powerful senator can corrupt a correctional facility located in his
2. Is there anything the prison superintendent can do to remedy this situation?
THIS IS THE END OF CHAPTER 16
Crime and justice myths 17
"friend of a friend"
war on drugs
Walter Snyder waited in prison for more than seven and a half years for justice. He
had been convicted of a rape, but nearly seven years after his trial even the prosecutor's
office agreed he could not have committed the crime. However, due to a
legal technicality, the Virginia court system's rules prevented his release though
court procedures; it was up to Virginia's governor to grant Snyder clemency.
Nevertheless, Governor Douglas Wilder refused to do so, out of concern for
appearing soft on crime. It was important to the governor that his actions and policies
reflect the public's "get tough" mood toward crime (Scheck, Neufield, &
Public opinion influences criminal justice policies throughout the United States.
This fact is a reflection of democracy in action, but the premises for the policies
are often based on myths about crime in society. All policies shape citizens' lives,
but criminal justice policies have to meet a higher ethical threshold than many
other policies. Policies that may typically be considered immoral, restrict freedoms,
or cause harm to someone have an aura of legitimacy when associated with
enforcing a law. If the policies are created out of information that is inaccurate,
people suffer wrongfully, regardless of the intentions of the policies that legitimate
them. Whether the sanction is a simple fine or a state-sponsored execution, the
resulting suffering caused by a policy is supported by the power of the state. In
some cases, wrongfully convicted people and citizens who might not have been
criminals pay the price for the influence of myths on policies that turn out to be
biased or unjust. Baer and Chambliss (1997) note that fear of crime based on inaccurate
information also causes harm to all of society. The concern is therefore how
crime myths, whether accidental manifestations of stereotypes or intentionally created
propaganda, affect the policy-making process.
THE NATURE OF MYTHS
Myths have historically served a number of purposes, including perpetuating a
culture's ideals and protecting valued behaviors from outsider influence. They
may be read or heard as stories of events or characters, but whatever the mode,
they transmit values and accepted codes of behavior. Kappeler and Potter
(2005:2) state, "While myths seem to explain events, they more often instruct us
on how to integrate an event into our belief systems and world views."
"The great enemy of truth is very often not the lie-deliberate, contrived, and
dishonest-but the myth, persistent, persuasive, and unrealistic. Too often we
hold fast to the cliche´s of our forbears. We subject all facts to a prefabricated
set of interpretations. We enjoy comfort of opinion without the discomfort of
thought."-John F. Kennedy
It is the mythmaker's values that are integrated into the events that are presented as
facts. Nimmo and Combs (1980) define a myth as a ". . . socially constructed re-presentation
of perceived realities that people accept as permanent, fixed knowledge of reality
while forgetting (if they were ever aware of it) its tentative, imaginative, created, and
perhaps fictional qualities" (p. 16).
Because myths are passed to consumers who are typically in agreement with the
expressed values, their authenticity is seldom questioned. Not that it matters, because
as Kappeler and Potter (2005) note, myths are unverifiable and unscientific. Yet when
people acceptmyths as fact, it is because they agree with the beliefs about proper behavior,
so they are not likely to conduct an exhaustive search for supporting facts and evidence.
Myths are a unifying force for similar people and consequently create animosity
toward outsiders who do not share the expressed value system. The outsiders' beliefs
and actions are depicted as threatening and eventually destructive. To prevent such a
disaster, people who accept the myth see the importance of protecting their way of life
from the outsiders. The "us versus them" mentality evolves from such thinking.
Ryan (1976) refers to these outsiders as "different ones" who have a number of
inferior qualities. Myths allow differences in groups of people to be qualitative differentiations
that dehumanize the group that is painted as inferior by the myth. The
differences may be based on a class of characteristics or a single characteristic that
is magnified to raise concern. In terms of crime myths, the threatening or uncivilized
characteristics and behavior of the group of outsiders mandate a need for control.
This will not only protect the status quo for the socially powerful but it will
also keep in check the outsiders. Laws provide the needed controls. Kappeler
and Potter (2005:147) state:
Myths of crime and criminal justice, for the most part, revolve around two central
themes. First, there is a criminal act or behavior. That behavior is seized
upon by the media, law enforcement bureaucracies, and politicians as a way
to attract public attention and to win support for policy issues related to
crime. . . The second recurring theme in myths of crime and criminal justice is
a massive law enforcement response to the behavior in question.
U.S. society has come to depend on laws as a way of confronting societal concerns.
Therefore, myths may raise an often fictional need for creating the criminals,
yet they may also arouse belief in a need for more controls on existing criminals.
Either way, people labeled as criminals become the "them" in our
society. Once society becomes indifferent to the needs and treatment of the myths'
villains, unfair treatment is likely to follow. Society may become so enamored of
the myth and the initial reaction to it that the result is often overlooked. In the
end, human beings pay the price for society's reaction to crime myths, just as
Walter Snyder paid the price for the myth of a criminal justice system that is soft
INFLUENCING MYTHS: MEDIA, POLITICS,
AND PUBLIC OPINION
Like all myths, crime myth origins are often hard to pinpoint. Folklorists have
noted the persistence of a friend of a friend (FOAF) who assists in passing helpful
information to others based on his or her experiences (Nicolini, 1989). Folklorists
have noted that these apparently fictional people are often referred to by people
spreading urban legends as evidence of their authenticity. This FOAF can never
be located, so the origin of the tale can never be verified. This is true to some
degree with crime myths. However, it is evident that due to the power of crime
myths, the influence of powerful forces such as the media, politicians, and the government
as well as public perception aids in their dissemination and sustainability.
THE MEDIA AND CRIME MYTHS
The growth of media in the late twentieth and early twenty-first centuries has been
unprecedented. Such growth contributes to crime myths spreading in a number of
ways. There are more television channels than in earlier decades. They require programming
that will lure viewers away from other networks. Crime and policing
programs can serve that end. News networks are under tremendous pressure to
report an event before the competition; crime events in the news are often used
to lure viewers. Local news programs use teasers at the start of their broadcast,
to hook viewers to stay tuned for the entire broadcast. This is often accomplished
with the most graphic and violent news available. Crime is obviously one of the
most important issues for news outlets (Center for Media and Public Affairs and
Kaiser Family Foundation, 1998; Chermak, 1995; Klite, Bardwell, & Saltzman,
Crime is covered more frequently in local newspapers and local broadcast news
programs than national news programs (Yanich, 2005). Although crime is a newsworthy
event, the frequency of the reporting and presentation of the stories often
present unique cases as normal societal interaction and typical of criminal justice
The media and crime myths 311
This is not entirely coincidental (Bennett, 1996; Iyengar & Kinder, 1987).
Yanich (2005) points out that local television news broadcasts shape the importance
of news events by how, when, and from where they are reported. For example,
criminal acts are more likely than other news to lead the broadcast. The old
adage "if it bleeds, it leads" is true. Furthermore, Yanich (2005) notes that a series
of crimes are often reported in a montage that clumps them together and thus creates
an impression of crime occurring frequently.
Yanich's (2005) research also reveals a tendency among local news programs
in large television markets to treat juvenile crime differently from adult crime.
Juvenile crime is more likely to receive coverage that depicts it as occurring more
often than it proportionally occurs. The combination of how and when juvenile
crime stories are covered creates an illusion of greater juvenile crime than actually
occurs. Yanich (2005) states, "The Kids Crime stories perpetuated the notion that
juveniles live in a violent and dangerous world. However, that is only true for a
very small percentage of juveniles and, for that matter, adults" (p. 130).
Though it is true that national news media outlets can influence perceptions,
Weitzer and Kubrin (2004) conclude that local television news has a greater impact
on fear of crime among some portions of their sample than national news programs,
radio news, Internet news sources, and daily newspapers. They also point
out that this finding corroborates earlier research (Chiricos, Eschholz, & Gertz;
1997) on the impact of local television news. Weitzer and Kubrin (2004) explain
why local television news would be expected to have a greater impact on citizens'
fear of crime:
Local television is literally "close to home" for viewers, whereas national television
news tend to be far removed from viewers' everyday lives . . . and compared
to newspapers and radio, local television news broadcasts are often
televised live from crime scenes and presented in a graphic, sensational, or disturbing
manner. (p. 503)
In support of the "close to home" notion, Dowler (2004a) compared crime
stories on broadcast news in Canada with those in the United States and concluded
that national stories were more likely to be shown on local Canadian news than on
local news programs in the United States. Nonetheless, local news broadcasts for
both countries showed stories that supported popular or mythical views of crime
and justice. They also made efforts to keep station owners and advertisers from
becoming disgruntled about their broadcasts.
Other researchers have found evidence to support the notion that local television
news is a source of information about, and therefore understanding of, criminal
justice interactions. In 2004, Yanich noted discrepancies in the way that local
television news channels report urban and suburban crime, which created an
impression that crime was more prevalent in low-crime areas. Romer, Jamieson,
and Aday (2003) concluded that local television seemed to be related to increased
fear of crime among residents of Philadelphia. Dowler (2004b) found that local
newscasts distorted images of criminal defendants by race through predictors such
as firearm usage, length of the story, and showing handcuffs. Klein and Naccarto
(2003) also found support for the local news programs' practice of disproportionately
representing racial minorities as criminal and suggest that the motive for this
practice may be as simple as financial gain. It is important to note that these
researchers were conducting their research during times when crime rates were
actually falling-yet fear of crime stayed high (Yanich, 2004). It therefore appears
that local television news programming and editing perpetuates myths of crime,
thereby creating greater public anxiety about it, even when it is a declining problem
Local television news seems to play a different role in influencing crime myths
than other news sources. Research on the role of newspapers has generally failed to
find support for a strong influence regarding fear of crime (Chiricos et al., 1997;
O'Keefe & Reid-Nash, 1987; Weitzer & Kubrin, 2004). This may be because
newspapers readers have control over the news to which they are exposed. They
may simply decide not to read a specific story. Perhaps it is because newspapers
are less visual mediums. Yet ideas of crime and criminals that lead to myths are
different from fear of crime. Newspaper crime coverage is more likely to focus
on infrequent crimes involving sex and or violence (Chadee & Ditton, 2005). This
practice may be attributable to the importance of reporting serious crime, but the
failure to report other, less serious offenses still distorts readers' understanding
Local sources are not alone in their responsibility for the dissemination of
crime myths. Network news may also influence the public's perception of crime
as being a greater problem than it is. The Center for Media and Public Affairs
(July-August, 2000) reported that crime was the most common topic on the three
major U.S. television networks during the 1990s. The Tyndall Reports (ADT
Research, 1994) found that the three networks' news programs more than doubled
their broadcast minutes of crime stories from 1991 to 1994, even though crime
rates were simultaneously declining. This is important because Lowry, Nio, and
Leitner (2003) found that news story lengths accounted for fear of crime better
than the number of crime stories that networks broadcast. They also concluded that
network crime news reporting better explained public concern of crime than the
actual crime rates during the early 1990s.
Popular media sources such as movies and television also present distorted
images of crime as well as police, courts, and corrections work. Some media
sources blur the line between popular media and news media by showing atypical
depictions of illegal criminal justice events as standard practice. Entertainment
shows that are formatted in such a way that they resemble actual news events have
also distorted reality. Eschholz (1998) refers to programs such as Hard Copy as
providers of false news. She concluded that they influence fear of crime among
white males and African Americans. The same was true for reality shows like
COPS. She also notes that fictional television shows such as crime dramas produced
more fear of crime than did nonfictional shows. However, the differences
between these types of shows are not always clear. Eschholz, Mallard, and Flynn
(2004) found that fictional crime programs often embellish story lines from factual
events that have recently been in the news. These shows perpetuate crime myths by
showing stories with close similarities to actual events but offer a distorted picture
of the races of offenders and criminal justice officials. For example, regarding
crime dramas, African-American criminals were nearly twice as likely to be shown
wearing handcuffs than white criminals, and African Americans were nearly five
times more likely to be portrayed as an offender than a victim. This is in contrast
to official crime rates. Escholz, Mallard, and Flynn (2004) conclude that primetime
television programming distorts true crime figures while sensationalizing
solutions to crime in the United States. They discuss the effect of these kinds of
The combination of the crime control model and the criminal typification of
minorities . . . may reinforce that perception that minorities pose a "social
threat" to the white majority . . . and that the only way to deal with this threat
is by giving the police more power and punitive policies . . . . (p. 174)
Public perception of crime is likely to be shaped by all these types of media
influences. This means that the public may be more likely to believe stereotypes
of a failing criminal justice system that is hampered by the defendant protections
as well as media-fed images of typical offenders, crime fighters, and victims. Such
images often do not agree with actual crime facts. Of course, even the government
and politicians contribute to crime myths.
For more on how mass media influence perceptions of crime and justice, visit http://law
GOVERNMENT, POLITICS, AND CRIME MYTHS
Even though society should be able to rely on the government and official crime
facts and statistics to correct the course of crime myths, the unfortunate truth is that
they are too often contributors to such images. Criminal justice enforcement agencies
are in the difficult quandary of needing to fail in order to demonstrate their
need for additional budgetary resources, yet they must also demonstrate some level
of success to ward off accusations of incompetence. This creates a criminal justice
system that Reiman (2007) has theorized is designed to fail.
Politicians often play on public fear of crime as a problem to be addressed.
During the 1988 Presidential campaign, Democratic candidate and Massachusetts
governor Michael Dukakis presented an image of being soft on crime as a result
of two major events. First, during a debate with Republican incumbent George
H. W. Bush, Dukakis stated that he would not support the death penalty for a criminal
who hypothetically raped and killed his wife. Second, the Bush campaign,
using data suggesting that the public saw Dukakis as soft on crime, began airing
television commercials telling the story of a convicted murderer named Willie
Horton who had been released on a furlough program in Massachusetts while
Dukakis was governor. Horton had committed a multiple rape and robbery and
never returned from his furlough. This appearance of "coddling criminals" went
against the societal belief in crime control policies and helped Bush defeat Dukakis
in the general election.
The message was clear to all politicians: To be elected, candidates understood
that they must not appear soft on crime. The public's fear of crime was an easy
issue to address with answers such as greater enforcement and more severe punishment.
Moreover, rising crime rates can work for either politician in a campaign, if
framed in the right manner. For example, a politician in office can refer to high
crime rates as evidence of a social problem that requires more funding and cooperation
on crime control policies. The incumbent can then note the need to keep
him- or herself in office so that progress is not stymied. A politician running for
the same office can use the same high crime rates as evidence that the incumbent
is not adequately handling the crime problem. Either way, crime appears out of
control to the public and raises concerns while both incumbent and candidate vie
for public support of their interpretation concerning rising crime rates.
Governments are expected to address crime issues. This means that they have a
virtual monopoly on crime information, such as how often police respond to calls,
what types of offenses occur most often, where they occur, and by whom and
against whom they are committed. The public depends on the information keepers.
The data to verify or dispute crime myths often lie with the criminal justice
agencies. Because of this control, the government is ". . . one of the most powerful
mythmakers in the criminal production enterprise" (Kappeler & Potter, 2005:10).
The government influences other mythmakers, such as news media, through information
released in press conferences (Herman & Chomsky, 1988), public service
announcements, and edited government research reports (Kappeler & Potter,
2005). Due to the access and control of information pertaining to crime, the government
releases that information which serves its interest. This puts government
officials at an advantage as more reliable sources than other sources who do not
have access to the information needed for news stories (Welch, Fenwick, &
The government influences which actions are considered the most nefarious
through funding of research and law enforcement initiatives. For example, the federal
government makes grants available to researchers who propose projects that
the government deems worthy of funding. With competitive grants, the information
brokers determine which research proposals will receive requested funds.
When the government has prioritized crime policies, the concern becomes whether
researchers exploring other worthy crime proposals will fail to receive funding
because their ideas are not in accord with the government's priority. For example
during the 1980s the federal government's main crime priority focused on using
criminal justice resources to confront illicit drug use and trafficking. Researchers
seeking funding for other criminal justice issues were less likely to receive funding
for their projects; hence, the government's control of funding dictates which crime
problems are most widely publicized and understood (Potter & Kappeler, 2002).
During the 1930s, the Bureau of Narcotics implemented a publicity campaign
to garner public support for controlling marijuana. To do this, the Bureau collected
a series of crimes and dangerous acts committed by marijuana users. Kappeler and
Potter (2005) state:
These stories included the murder of a Florida family and their pet dog by a
wayward son who had taken one toke of marijuana. Newspapers printed this
story and others like it. The war on drugs had begun. The myth of the "dope
fiend" was born out of the minds of law enforcement officials. (p. 12)
This type of governmental propaganda eventually contributed to the creation of
several drug control laws.
Government reports about crime are often so politicized that they present a
blurred view of criminal justice. They can be politicized for political purposes.
Crime rates in Indianapolis over the course of 30 years have been found to be
manipulated up or down, depending on the political needs of the time (Selke &
Pepinsky, 1984). Sherman (1998) reported that during the 1980s the FBI stopped
including two southern states' crime reports in aggregate national numbers because
of faulty and unreliable reporting. By the late 1990s, major metropolitan areas in
the United States were caught reporting false crime numbers to the FBI (Kappeler
& Potter, 2005).
The federal government is also responsible for making faulty claims about
crime rates to protect political interests. For example, the cover of the 1992
Uniform Crime Reports shows a line chart with a line rising as though it is representative
of crime. However, actual examination reveals that most major crime
rates had declined for that year (Baer & Chambliss, 1997). In addition, only the
most serious crime in a series of crimes is reported by the UCR, which shows
the overall crime rate lower than it actually is while raising the reported violent
crime rate. The National Crime Victimization Survey results have at times been
reported in such a way that summarized attempted but unsuccessful crimes, or
crimes without any harm felt by the victim, as being violent crimes (Baer & Chambliss,
To achieve the goal of creating a need for larger law enforcement budgets while
still appearing successful, the government manipulates crime rates to present some
problems as being solved while new ones are rising. For example, official violent
crime rates were declining in the 1990s. The government presented this as evidence
of crime policy success while referring to the growing threat of violence
from strangers. This makes crime seem more random and frightening. Yet the rates
of stranger violence were shown as rising due to their classification as unsolved
murders (Baer and Chambliss, 1997). This new threat was released to news outlets
claiming a newly discovered "trend." News organizations accepted the grim outlook
from the information brokers in the government and quickly publicized it.
This myth was designed to keep the public concerned and to maintain public support
for increasing budgets and furthering crime control policies.
THE GENERAL PUBLIC AND CRIME MYTHS
Nimmo and Combs (1980) point out that one of the functions of myths is to provide
"social glue" (p. 13) for society. Myths obviously assist in building a consensus
in society about the regulation of behaviors. As pointed out earlier, forces such
as the government, politicians, and the media spread crime myths to society, yet
the general public often puts up little resistance to the influence of these myths.
Myths provide convenient guides for the "us versus them" dichotomy. The unconscious
desire for easy labeling of bad or evil people reinforces the fantasy of a
clear-cut enemy. Nimmo and Combs (1980:12) state, ". . . individuals have dreams,
whereas whole societies have myths."
Buying into and perpetuating crime myths are easier behaviors than confronting
the more complicated issues of achieving society-wide justice. Bohm (2002:292-
293) notes the different ways the general public contributes to crime myths as:
1. Overgeneralizing personal experiences
2. Relying on inaccurate communication
3. Relying on atypical information
4. A lack of consciousness
Bohm (2002) notes that members of society often generalize their own experiences
with crime or the criminal justice system as typical of everyday functioning
of crime processing. Any perceived injustice buttresses the believed dysfunctions
of the criminal justice system that may already be in place as a result of the other
mythmakers. In terms of inaccurate communication, Bohm states, "Some people
embellish crime experiences and thus distort their own conceptions or the conception
of those to whom they communicate" (2002:293). Because crimes are often
emotional experiences, emotion bleeds into the discussion of experiences about
crime. This means that the communication of the experiences may include bitter
or resentful feelings.
People who have not had many direct dealings with crime and its consequences
are often left to rely on the communications of those acquaintances who have.
They will then generalize the communicators' experiences as examples of criminal
justice at work, without realizing how atypical those experiences may have been.
Finally, Bohm (2002) refers to a lack of consciousness as the general public's
failure to recognize, understand, or even know about many types of crime. When
we are not aware of our victimization to corporate or environmental crime, we cannot
conceptualize crime in those terms. We focus on street-level crimes such as
robbery and drug dealing instead of the dangers resulting from pollution, for
example. In this way, we perpetuate the myth of criminals being unpleasant people
instead of corporate leaders.
In extending Bohm's (2002) point, it is worth noting that this lack of consciousness
can also be broadened to a lack of involvement in the criminal justice system
and community outreach programs. Because we are often busy with our own lives,
we seldom focus much attention on events in the criminal justice system until we
are forced to be involved or drawn into its functioning by high-profile crimes. This
makes us more susceptible to mythmaker influences. The same is true when we fail
to be involved in community outreach programs for at-risk youths, drug addicts, or
convicts who are reintegrating into society. This lack of effort means that these
groups will feel less accepted in society. Not getting to know at-risk youths
through a community mentoring program keeps them depersonalized. Myths about
classes and types of people are therefore allowed to flourish. Furthermore, we often
do not reach out to individuals who are different from us and who may be troubled
or seek acceptance. When those individuals lash out in violent ways, such as the
shootings on the Virginia Tech campus in April 2007 or the 1999 Columbine
shootings, society is bewildered. Yet these people are often lumped into the category
of violent predatory criminals even though early warning signs were apparent
and more personal relationships and interventions may have prevented their violent
acts. By refusing to assist stereotypical or potential criminals, society implicitly
refuses to do away with myths about criminals.
MYTHS ABOUT CRIME
We are socialized to believe that laws mark the boundaries of right and wrong
behavior. This message implies that there is an objective difference between good
and evil and that those committing crime are on the immoral side. Crime myths
feed this message and therefore perpetuate it. A deeper understanding helps us
understand that legal and illegal labels are often not related to ethical behavior.
Drug suppliers and providers in the United States serve as an example.
Since the "war on drugs" was initiated, Americans have been socialized to
believe that marijuana is dangerous and should therefore be prohibited by the government.
Yet some states have now moved to allow marijuana to be used for
medicinal purposes. In fact, the first laws prohibiting the cultivation, selling, and
possession of marijuana were only created in the twentieth century as a means of
controlling immigrants who were coming into the United States (Yaroschuk,
2000). Meanwhile, prescription drugs are socially accepted and legal, though controlled,
due to their legitimate medical purposes. A close examination of pharmaceutical
company influence on Food and Drug Administration (FDA) approval of
prescription drugs indicates unethical influences on government agencies. For
example, pharmaceutical companies present research on drugs for which they are
seeking approval, but the research is selected so that only benefits are demonstrated
and dangerous side effects are often concealed (Cohen, 2001). These
unethical practices not only provide the pharmaceutical companies with huge profits
but also contribute to more than 100,000 deaths annually in the United States as
a result of preventable side effects and overdoses. The legal response to these drug
problems is to first apply warning labels to the prescription drugs and pull them
from the market only if problems persist. Despite these and other questionable
practices by pharmaceutical companies, none of these prescription deaths show
up in murder statistics.
Also excluded from murder statistics are accident deaths attributable to mining
companies ignoring safety considerations, as well as cancer deaths stemming from
environmental pollution. Our socialization says that these kinds of issues are complex
accidents that should not be called crime, yet the perpetrators' behaviors are
virtually identical to the criminal equivalent. Illegal drug dealers who sell drugs
to an individual who overdoses and dies are charged with some form of homicide,
depending on the legal circumstances. If an individual poisons another person
slowly until the victim dies of a disease, the criminal law treats it as a homicide.
However, though, when corporations carry out the same behavior, it is labeled as
an unfortunate accident. Behaviors carried out by entities with the social and political
power to label their actions as "legal" trump similar behaviors by those criminals
The socialized belief that the law is an unbiased regulator of right and wrong
largely comes from the consensus view of society. This explanation of the law
states that actions are criminalized because much of society deems the actions as
so bad that the social code is canonized. Although there is substantial evidence
to support this view with regard to crimes such as murder and rape, our socialization
process limits the use of those labels. Lawmakers, mythmakers, and law
enforcement personnel all demonstrate a bias against street crime while more often
overlooking corporate misconduct.
As is evident from the discussion of the news media depiction of crime, street
crime grabs headlines in part because of the public's fear of crime. This public
leads to the public consensus to implement policies that focus on limiting this
street crime. In turn, there is a difference in law enforcement between street crime
and corporate crime. For example, the FBI employs more than 12,500 special
agents (Federal Bureau of Investigation, n.d.), but only slightly more than 2,300
employees work for the Mine Safety Health Administration (2007). This is not
to suggest that enforcement of street crime should be discontinued but that crime
myths resulting from the actions we call criminal lead to a lack of uniform law
enforcement for activities that are just as dangerous as street crime.
Beyond applying the term criminal to behaviors, there are myths about crime
itself that concern the public the most. The myth that is perhaps the most persistent
is that crime in the United States is rising, particularly violent crime. Crime rates in
the United States are higher than in other industrialized nations (Kappeler & Potter,
2005; Messner & Rosenfeld, 2007; Reiman, 2007), yet official data indicates that
crime rates have had fluctuations but overall reported violent crime incidents and
rates were lower in 2005 than in 1986 (FBI, 2006). Victimization data also
supports the notion that crime rates are lower than the 1980s (Bureau of Justice
Statistics [BJS], 2006a). Official crime rates indicate that violent crime occurs
much less frequently than property crime (FBI, 2006; Office of Juvenile Justice
and Delinquency Prevention, 2000).
One of the tragedies of the differential labeling and enforcement of crime is
that the law, which is supposed to arbitrate justice, on occasion actually serves
to further injustice. People who have contributed to the deaths of others do not bear
the scarlet letter proclaiming them criminals, whereas people who have committed
more harmless offenses are often lumped into the social category of criminals.
MYTHS ABOUT CRIMINALS
Who are our criminals? An understanding of law creation and enforcement indicates
that society has some firmly held ideas about who the law should control. The people
who frighten most of society feel the brunt of law creation movements and law
enforcement crackdowns. These myths may be the most comfortable set of crime
myths for the public to accept because they serve directly to create the "us versus
them" societal dichotomy. Yet, as we have seen, this fear is often to a large effect
the result of myths. The people who aremost often given the title criminal meet a small
number of criteria. Typical criminals are presented through the media as predatory
males. They are either teenagers or hardened convicts, and sometimes they are both.
After increases in juvenile crime during the late 1980s and early 1990s, predictions
of juvenile "superpredators" started making their way into media and political
discussions (Annin, 1996; Bennett, DiIulio, & Walters, 1996; Zoglin, 1996). The
prognostications were based on media portrayals of youths who were more likely
to join gangs and use firearms in violent crimes more often than previous generations
of adolescents. It was suggested that the members of this new wave of criminals
were unable to inhibit violent impulses. Furthermore, they were said to have
little fear of arrest or incarceration (Bennett et al., 1996).
This myth was quickly disseminated to the public. Politicians began writing
legislative mandates to increase the punitiveness of juvenile court processing. They
targeted protections from the long-lasting consequences of adult conviction and
incarceration that the juvenile court system had originally provided. Juvenile protections
were dismantled through sentencing changes and the removal of confidentiality
protections for juvenile offenses. Juvenile transfers to adult court
became more common, with the intent of incarcerating juveniles for longer terms
(Kappeler & Potter, 2005). Kappeler and Potter (2005) note, "[John Ashcroft]
sponsored crime bills that made the receipt of federal financial support dependent
on a state's willingness to try juveniles aged 14 and older as adults and removed
restrictions that required juveniles to be separated from adults in jails" (p. 219).
These measures led to more juveniles being incarcerated
While all these efforts were being implemented to more effectively control the
juvenile superpredator crime wave, an interesting thing never happened: the crime
wave. A report by the Office of Juvenile Justice and Delinquency Prevention
(2000) shows that juvenile violent crime rose slightly in the early 1990s but came
back to typical levels and even dropped by the late 1990s. The report also concludes
that the rise in serious juvenile crime in the early 1990s was comparable
to a similar trend that had occurred with previous generation of juveniles. Zimring
(1998) examined the rates of juvenile crime in the 1980s and 1990s and concluded
that the apparent rise in juvenile violence was more a result of police reporting
practices than an actual increase in crime. He further explains that predicting future
crime among youth populations is unscientific. Nevertheless, the initial dissemination
of the juvenile superpredator myths led to radical policy changes that have
drastically altered the life course of many juvenile offenders. They paid the price
for the myth.
Bohm (2002) examines another crime myth about society's criminals: He
points out that the belief of stranger violent victimization has been a persistent concern.
Crime statistics do not lend validity to this belief. Violent crime committed
by strangers is not as common as violence between family members and acquaintances
(BJS, 2006b). Nevertheless, the fear of being attacked by a stranger, and
media portrayals that reinforce this fear, serve to further distort society's image
of criminals. These ideas lead to policies regulating how the assumed criminals
should be handled by the criminal justice system. Such beliefs have historically
led to greater efforts at controlling crime through tougher sentences on crime
and more enforcement efforts. These attempts to control crime also bring their
For information about school shooting myths, visit www.msnbc.com/id/15111438.
MYTHS ABOUT CRIME CONTROL
Society often accepts and even embraces a number of myths about controlling
crime. Garland (2002) states:
. . . mandatory sentences, victims' rights, community notification laws, private
policing, "law and order" politics and an emphatic belief that "prison works",
have become commonplace points in the crime control landscape and cause no
one any surprise, even if they still cause dismay and discomfort in certain circles.
Above the jungle of myths discussed to this point is the canopy that covers them
all: the myth that crime can be controlled or even brought to a halt. This is the
manifest goal of many criminal justice policies. Much of this mindset results from
Myths about crime control 321
the influences of the previously discussed mythmakers. When crime myths are presented
for public consumption, they are often accompanied by the implicit message
that new policies or strategies can control the crime. This is to be expected because
our criminal justice system is largely based on early criminological explanations
that revolved around deterrence. For example, Cesare Beccaria's classic work On
Crimes and Punishment (as cited in Williams & McShane, 1993) pointed out shortcomings
in criminal justice practices in Europe prior to the Era of Enlightenment.
In recommending changes, Beccaria focused largely on deterring crime by setting
punishments to be slightly more harsh than the benefits derived from committing
the crimes. His ideas were revolutionary at the time. They influenced the French
and American Revolutions and criminal justice policies that are still used. Once
they were instituted, they became commonplace in societal expectations of
Crime control policies continue to revolve around the idea of deterrence. The
rational choice explanation fathered by Beccaria assumes that potential criminals
will be deterred from committing crime if the likelihood of being caught is too
high or if the punishment for the offense is severe enough to outweigh the gain
from committing the crime. These ideas have been accepted to a large extent by
society and are often used to explain crime. If people are still committing crimes,
it is assumed that they need to spend more time in prison to decide to reform their
ways. Society responds to concerns about crime with new laws, greater law
enforcement, or more punitive penalties. A casual understanding of crime rates
and the public's fear of crime makes it clear that controlling crime through such
measures is a myth.
Because crime persists despite new and revised policies, the public often
assumes that crime is out of control because the criminal justice system is too
lenient to create an adequate level of deterrence. Kappeler and Potter (2005) state:
The choice of words in describing legislation as "get tough" is a direct response
to the belief-and myth-that courts are too lenient with offenders. Politicians,
most police officers, and many vocal citizens allege that criminals escape the
severe punishments they deserve. If judges would impose tougher sentences,
then we could deter some violent crimes and incapacitate those who choose to
ignore the laws. (p. 313)
Research shows that the United States is already implementing some of the
most severe sanctions for crime in the world (Kappeler & Potter, 2005). In terms
of incarceration rates, the United States locks up far more offenders than western
nations such as Sweden, France, Germany, the Netherlands, and England. Even
nations that are more socially and economically similar to the United States have
lower incarceration rates: The United States puts more than six times as many citizens
in prison than do Canada and Australia (Kappeler & Potter, 2005). Confinement
in U.S. jails occurs at a higher rate than in other industrialized countries, as
does being sentenced to supervised probation. In addition, imposition of life and
death sentences is higher in the United States than in comparable nations. What
Crime control policy: where research and politics collide 323
harshens the punishment for criminal offenders is the fact that the punitive sentences
are becoming more severe and more frequent. All these strict sanctions
are explained by van Zyl Smit (2002) as resulting partly from the death penalty.
In examining sentences for a variety of criminal justice systems, van Zyl Smit
concluded that maximum punishments set the bar of acceptable punishments for
lower sentences. Nations employing capital punishment as a sentence demonstrate
higher punishments for lesser offenses than nations with lower maximum sentences.
It seems evident that myths about controlling crime have an impact on
the policy-making process.
CRIME CONTROL POLICY: WHERE RESEARCH
AND POLITICS COLLIDE
With myths about criminals and crime in place and a society susceptible to their
placement, the public is looking for solutions. As noted earlier, politicians are
included among crime mythmakers and disseminators. They do this partly not only
to create concern about previous policies but also to build support for their proposed
solutions to crime. Because our society uses law as the tool to achieve justice,
a new policy or policy revision typically involves some form of deterrent or
crime control theme. This is in accordance with the tendency for crime myths to
point to a need to control a particular group of people.
Policies often implement get-tough measures such as putting more police on
the streets or imposing lengthier sentences. Yet, as Reiman (2007) notes, the
implementation of these types of measures has resulted in more public concern
about crime over the course of several years. The myths have accomplished their
latent purpose to a large degree: They have unified much of society against criminals
and labeled the deviants as the threat to the accepted norms of behavior.
Research on the policies created in response to the myths demonstrates that
efforts to control crime often cause more problems than the laws foresee. One only
need look at the war on drugs to see such failure. U.S. society has used laws to
grapple with drug issues for decades, so defining the start of the "war on drugs"
is a debatable topic. It is now clear that crime control policies aimed at curbing
illicit drug distribution and use in the United States have slowly been increasing,
with particularly focused crime control efforts increasing in the 1960s and again
in the 1980s. As more crime control policies have been implemented to address
the drug problem, conventional reason dictates that the problems must be declining,
yet research suggests otherwise.
Federal monies spent on the drug war increased more than 25-fold from 1969 to
1982 and then grew to more than 11 times the 1982 budget by 2002, to $19 billion
(Kappeler & Potter, 2005:176). The fact that it would remain a policy priority for
so long indicates the failure of these crime control efforts. Much of the focus of
these expenditures addressed reducing drug supplies at their sources (domestically
and abroad) and crime control enforcement efforts on the streets. During the times
324 CHAPTER 17 Crime and justice myths
when these policies have been enforced, drug manufacturing and distribution have
increased. When illicit drug production is decreased in one area of the world,
another area simply increases production to meet the demand (Kappeler & Potter,
2005; Nadelmann, 2003). Illicit drug prices have fallen during the time when policies
aimed at reducing their availability have been enforced (Reiman, 2007). This
indicates that supply is up in spite of the reduction efforts. Street-level law enforcement
attacking drug use has also shown negligible effect on drug availability while
dramatically increasing the numbers of offenders incarcerated for nonviolent drug
Blumstein's (as cited in Reiman, 2007) research points to the likelihood that
crime-control policies focusing on illicit drugs may actually contribute to more
violent crime. He found that older drug dealers incarcerated during the 1980s
and 1990s were simply replaced by juveniles. Blumstein concluded that these less
mature drug dealers were more likely to use violence to settle disputes in the crack
Three-strikes laws demonstrate another example of how crime-control policies
may actually increase crime problems. Johnson and Saint-Germain (2005) examined
the impact of California's three-strikes law on law enforcement officers.
Though their findings did not show greater dangers to police statewide, they did
find a greater risk of arrestees resisting arrest and assaulting officers in Los
Angeles. Knowing the incarceration that awaited them apparently contributed to
their decision to exert more effort in attempting to avoid apprehension. In a 5-year
period after the law's implementation, they also found a significant increase in
police officer victimizations resulting in offenders' second and third strikes. In
examining the impact of three-strikes laws across 24 states, Marvell and Moody
(2001) concluded that the legislation increased homicide rates because criminals
were more likely to kill victims and witnesses to their crimes to reduce the likelihood
of being convicted for their third offense. In examining the effect of threestrikes
laws across the 188 largest cities across the United States, Kovandzic,
Sloan, and Vieraitis (2004) concluded that three-strikes laws were not effective
in impacting crime rates or recidivism. They did note a number of social and financial
costs of implementing get-tough policies on crime.
If crime-control policies such as three-strikes laws were effective in deterring
crime, previously convicted offenders would be deterred from any further violations.
Yet, Reiman (2007) notes, "We know that more than 70 percent of the
inmates in the nation's prisons or jails are not there for the first time" (p. 32). In
fact, increasing the number of incarcerated citizens may actually create a culture
of prestige associated with having done time. The stigma of being an inmate is
being replaced by street credibility and greater respect from peers who have not
What is evident from these societal crime control experiments is that there have
been huge financial and social costs. We have documented the financial price earlier.
The social costs refer to a number of costs, including the vacuum created in
communities with higher rates of incarceration. Many of the get-tough policies
have taken greater tolls on minority neighborhoods than other areas. Therefore
these neighborhoods lose a large portion of their male population as a result of
these policies. Reiman (2007) states:
ecause so much of the recent increase in imprisonment has been of inner-city
black men who were involved in families and who had at least part-time employment
at the time of their arrest and incarceration, social scientists are beginning
to study the ways in which imprisonment is undermining the family and other
community institutions depriving children of male role models, and depriving
women of potential husbands and support. Several criminologists have found
limited evidence suggesting that massive imprisonment may weaken inner-city
institutions of informal social control and thus lead to more crime in the long
run. (p. 33-34)
Increased crime-control policies resulting from myths also contribute to social
problems such as corruption among criminal justice officials and a greater number
of wrongful convictions. Sagarin, Huff, and Rattner (2003) estimate that there may
be more than 10,000 wrongful convictions in the United States annually. Many of
these miscarriages of justice result from pressures on criminal justice personnel to
win convictions. Although arrest and conviction rates may be used to placate the
public's fear of crime, innocent people lose freedoms and suffer the consequences
of inappropriate policies in action.
Media outlets, politicians, and the government all contribute to the public's perception
of crime. These perceptions include the societal label of what behaviors are
called crime and who bears the title criminal. Myths about crime end up harming
all of society. Obviously, the public feels more fear of crime when they're fed a
stream of images showing the threat coming from particular segments of society.
Yet the wrongly convicted and harmless offenders who have to serve severe sentences
pay the highest price.
The intent of myths is partly to bond a social group against outsiders. Once the
mythmakers have the capability to write laws that reflect their biases, outsiders are
more vulnerable. The resulting irony is that a system that is based on the beliefs of
protecting people can often do the opposite. It is easy to see why wrongly convicted
people like Walter Snyder might view the term justice as the biggest myth of all.
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1. Describe the persistence of the "friend of a friend" concept discussed in the
2. The authors contend that local television news contributes more to crime
myth creation than the national news. Explain this phenomenon.
3. How are crime myths a type of "social glue" for society?
4. What has the "war on drugs" done to perpetuate crime myths?
5. Juvenile crime is an often exploited topic in the media. What do the authors
offer as an explanation for this phenomenon?
6. How are crime-control policies negatively affected by crime myths?
EXERCISE V-1 HOW TELEVISION AFFECTS OUR
PERCEPTIONS OF CRIME
Watch your local television news, paying particular attention to the crime stories.
Take note of when and how often during the telecast the crime stories are reported
in comparison to noncrime stories. Keep notes on the following:
see any trends regarding the characteristics of defendants whose images are
the language exaggerated, deceptive, biased, or misleading, based on what
you learned in this chapter?
In your notes, keep up with the stories that are reported from remote
locations. How much time has passed since the crime has been committed?
Why is the journalist reporting the story from outside the studio? Does the
reporter have something substantive to say, or do you think he or she is at the
remote location primarily for dramatic effect?
Discuss with your classmates how you feel your findings might influence public
perceptions of crime and whether such reporting perpetuates crime myths. You
might consider repeating this exercise for several evenings while your classmates
do the same, reviewing different channels and networks and then comparing your
THIS IS THE END OF CHAPTER 18
I made a mistake.......the last chapter you rec'd is 17 not 18! The next chapter to be sent is 18!
I am working through your introduction.
Could you please tell me how long your part of the EAI paper should be?
Thanks so much! DXJ
I hope you had a great weekend, and now it's time to set our eyes and goals on this week's assignment. We must each write an assessment of our own Ethics Awareness Inventory that we turned in last week. We are responsible for a word count of 1,050 to 1,400 all together, so if we can each turn in at least 220 words a piece by following these two points within your paper:* How each style relates to the criminal justice field and how it relates to being part of a team. * How you work with people with different styles.If everyone can have their portions no later than Saturday, February 25, 2012, then it can be put together and submitted. Will someone agree to write a short introduction, as I will write a short conclusion and turn it in, if this is ok with everyone? Please give me your input on this. Thanks, XXXXX XXXXX always, GO "B" TEAM!
OK, let me see if I understand this correctly.............
You need the introduction and the section on the two points. The latter of these must be at least 220 words.
Did you want me to wait on the introduction until everyone submits suggestions?
Please let me know. Thanks! DXJ
BTW- love the graphic!!!!!!
Your introduction is here.
Hope this helps! DXJ
Your portion of the group paper (EAI) is here
Hope this helps! DXJ
I'm not understamding - all I got was the info. I sent you so you would be able to do the paper.