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DXJAnswerMagic
DXJAnswerMagic, Professional w/Adv. Degree
Category: Homework
Satisfied Customers: 2057
Experience:  MALS, BA with honors in 3 majors and 2 minors, assisted K-12, Undergrad and Grad students
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For DXJ Writer:Week TwoCJA/324 –

Resolved Question:

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.


 


DUE NOT WORK-ALREADY GOT ANSWER!!!

Submitted: 2 years ago.
Category: Homework
Expert:  DXJAnswerMagic replied 2 years ago.

DXJAnswerMagic :

HI! I posted these at 5:30 p, CST. Did you not get these?

DXJAnswerMagic :

I don't see any of the previous messages in this window.

DXJAnswerMagic :

I'll report technical difficulties. Many apologies!!!!!!!!!!

DXJAnswerMagic :

Did you still need the ethics dilemma? DXJ

Customer:

yes I do very much

Customer:

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!

DXJAnswerMagic :

Sorry for any confusion. I didn't see the second set of questions.

DXJAnswerMagic :

I'm so glad someone helped you with these!

DXJAnswerMagic :

There are more criminal justice experts on Just Answer now:-)

Customer:




















Ethics Awareness Inventory Scoring Summary












C












o












10












R












E












(Row Totals)












Most












Least












combined score












9












1




 















your Ethical Profile is MOST closely aligned with:












(C) CHARACTER

















Your Ethical Profile is LEAST closely aligned with:












(E) EQUITY








Customer:






































































Ethics Awareness Inventory Scoring Summary












C












o












10












R












E












(Row Totals)












Most












Least












combined score












9












1





















your Ethical Profile is MOST closely aligned with:












(C) CHARACTER



















Your Ethical Profile is LEAST closely aligned with:












(E) EQUITY










Customer:

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:

Customer:

C---- O---- R---- E === (Row Totals)

Customer:

Side of the page going down Read: Most then Least then Combined Score

Customer:

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

Customer:

Then it stated: AWARENESS - Your Ethics Awareness Profile

Customer:

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.

Customer:

The category with which your Ethical Profile is least closely aligned should reflect values that generally do not resonate with your views on ethics.

Customer:

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.

Customer:

SO THAT IS EVERYTHING ON MY EAI SCORING SUMMARY!

Customer:

I hope it make sense to you now!

DXJAnswerMagic :

OK, let me copy and paste it and really look at it. Thanks so much! DXJ

Customer:

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.....

DXJAnswerMagic :

Could you explain a little more about the entire project so I could write an intro? Without that, it would really be difficult.

DXJAnswerMagic :

Is there a particular source for this assignment?

Customer:

no, other source than the original text readings!

Customer:

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:




  • · 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



Format your paper consistent with APA guidelines

Customer:

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!!!

DXJAnswerMagic :

Does each classmate have to answer the two bullet points?

DXJAnswerMagic :

Did the EAI score give you summary? (It usually does:-)

DXJAnswerMagic :

I can come up with something for the intro:-)

DXJAnswerMagic :

Let me roll it around in the midn a bit:-)

DXJAnswerMagic :

"mind"

DXJAnswerMagic :

Also for the ethics worksheet- is there a source requirement?

Customer:

Yes, we all do

DXJAnswerMagic :

OK, that makes it easier to establish the premise:-)

DXJAnswerMagic :

I can help:-)

Customer:

I wrote out everything that came out on my EAI scoring summary

DXJAnswerMagic :

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:-)

Customer:

Ethics Awareness Inventory- Gain New Insight into Your Ethical Perspective

Customer:

C-O-R-E Categories:

Customer:

C-Character

Customer:

O-Obligation

Customer:

R-Results

Customer:

E- Equity

Customer:

Ethical Beliefs in Multiple Categories

Customer:

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.

Customer:

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.

Customer:

External Conflicts May Influence Your Beliefs

DXJAnswerMagic :

got it..........

Customer:

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.

Customer:

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.

DXJAnswerMagic :

OK, Thanks So much!

Customer:

Do you think you're up to answering another question tonight

DXJAnswerMagic :

Not sure............

DXJAnswerMagic :

I'm working through your intro and the worksheet now.......

Customer:

what if you could put the intro off until tomorrow

DXJAnswerMagic :

Just a DQ?

DXJAnswerMagic :

I could take a look:-)

DXJAnswerMagic :

It would still depend on the question:-)

Customer:

Well, here and you tell me:

Customer:

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.

DXJAnswerMagic :

That I can help with:-) Minimum word count?

Customer:

150

DXJAnswerMagic :

Ok..........will get that ot you shortly!

Customer:

ok, thank you!

DXJAnswerMagic :

DQ answer here

DXJAnswerMagic :

Hope it helps! DXJ

DXJAnswerMagic :

Quick question........could you put in the statute on the ethics worksheet?

DXJAnswerMagic :

Your Worksheet is here.

DXJAnswerMagic :

It should open in a new window. Hope this helps!

DXJAnswerMagic, Professional w/Adv. Degree
Category: Homework
Satisfied Customers: 2057
Experience: MALS, BA with honors in 3 majors and 2 minors, assisted K-12, Undergrad and Grad students
DXJAnswerMagic and 11 other Homework Specialists are ready to help you
Expert:  DXJAnswerMagic replied 2 years ago.
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Customer: replied 2 years ago.
I don't understand what you mean by could you put in the statute on the ethics worksheet? Can you explain please?
Expert:  DXJAnswerMagic replied 2 years ago.

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

Customer: replied 2 years ago.
Ok! I am going to start sending you Next week's chapters, if that's ok with you?
Customer: replied 2 years ago.

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

Jeffrey Gold

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

Steven J. Ellwanger

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

vii

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

viii

SECTION V ETHICAL ISSUES IN CRIME CONTROL

POLICY AND RESEARCH

CHAPTER 17 Crime and justice myths ................................................... 309

Egan Green

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

Bernard J. McCarthy

SECTION VI ETHICS AND THE FUTURE

CHAPTER 21 Criminal justice: An ethic for the future ............................ 399

Michael C. Braswell and Robert C. England

Index....................................................................................................... 411

Table of Contents

A Note on the Seventh

Edition

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.

MB

BM

BM

xi

 

Expert:  DXJAnswerMagic replied 2 years ago.
OK Smile
Customer: replied 2 years ago.

Whatever happened

to Atticus Finch?

Lawyers as legal advocates

and moral agents

8

Joycelyn M. Pollock

KEY CONCEPTS

active role

adversary process

client-centered/friend role

ethics of care

ethics of rights

guru/godfather role

hired-gun role

legal advocate

moral agent

moral dialogues

passive role

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

so lucky.

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

amounts.

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

lawyers?

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

Markovits, 2003:213).

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

Pollock, 2004.)

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

relationships.

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

the attorney.

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,

2002:Rule 1.6).

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

the activity.

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

the crime.

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,

2003:159)

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

FOR LAWYERS

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

belief, anyway?

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"

strategies:

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

attorney.

THE PROSECUTOR

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

to win."

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,

2000).

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,

2002).

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

costs.

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

References 143

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

themselves.

References

American Bar Association, (2002). Model rules of professional conduct. Retrieved from

www.abanet.org/cpr/mrpc.

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,

215-234.

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,

1717-1727.

Gershman, B. (1991). Why prosecutors misbehave. Criminal Law Bulletin, 22(2),

131-143.

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

Hall Press.

Pollock, J. (2004). Ethics in crime and justice: Dilemmas and decisions. Belmont, CA:

Wadsworth.

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.

DISCUSSION QUESTIONS

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

attorneys?

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

existence?

5. What are the criteria used to decide whether to engage in a "moral dialogue"

with a client?

References 145

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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.

Continued

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."

Questions

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

case?

Reprinted by permission of Waveland Press, Inc., from Braswell, Fletcher, and Miller (2006). All rights reserved

 

THIS IS THE END OF CHAPTER 8

Customer: replied 2 years ago.

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

belief, anyway?

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"

strategies:

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

attorney.

THE PROSECUTOR

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

to win."

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,

2000).

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,

2002).

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

costs.

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

References 143

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

themselves.

References

American Bar Association, (2002). Model rules of professional conduct. Retrieved from

www.abanet.org/cpr/mrpc.

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,

215-234.

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,

1717-1727.

Gershman, B. (1991). Why prosecutors misbehave. Criminal Law Bulletin, 22(2),

131-143.

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

Hall Press.

Pollock, J. (2004). Ethics in crime and justice: Dilemmas and decisions. Belmont, CA:

Wadsworth.

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.

DISCUSSION QUESTIONS

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

attorneys?

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

existence?

5. What are the criteria used to decide whether to engage in a "moral dialogue"

with a client?

References 145

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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.

Continued

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."

Questions

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

case?

Reprinted by permission of Waveland Press, Inc., from Braswell, Fletcher, and Miller (2006). All rights reserved

 

THIS IS THE END OF CHAPTER 8

Expert:  DXJAnswerMagic replied 2 years ago.

got it.........

Customer: replied 2 years ago.

Prosecutor misconduct 9

Richard R.E. Kania and Ardie Dial

KEY CONCEPTS

abuse of power

bias

deceitfulness

denial of due process

favoritism

personal gain

neglect of duties

nolle prosequi

INTRODUCTION

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.

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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

STANDARD 3-3.11

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

on that.

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

MISCONDUCT

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

Box 9.2).

Personal gain

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

5. Deceitfulness

6. Denial of due process

7. Neglect of duties

152 CHAPTER 9 Prosecutor misconduct

  • Taking bribes and extorting payoffs
  • Accepting gratuities and unauthorized benefits
  • Receiving excessive compensation and benefits
  • Using the office to promote personal aims
  • Harboring and advancing excessive ambition

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

against:

  • Political and ideological patronage
  • Racial, ethnic, and religious bias (favorable and unfavorable)
  • Nepotism and other family favoritism
  • Overt and covert discrimination (racial, ethnic, sexual, political, etc.)

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:

  • Authoritarianism, coercion, and harassment
  • Arranging or condoning unjustified arrests
  • Seeking to deny opportunities for reasonable bail
  • Denial of liberty by lengthy detention prior to trial

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:

  • Criminal wrongdoing
  • Financial improprieties and tax evasion
  • Sexual misconduct, deviance, or unconventionality
  • Civil illegality (tax, regulatory, and civil law violations)
  • Questionable associations and membership in controversial organizations
  • Private prejudicial expressions and actions

Ethical problems revealed in prosecutorial misconduct 153

Deceitfulness

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:

  • Overt lying, duplicity, "loopholing," and evasions
  • Covering up misdeeds
  • Unwarranted secrecy in the conduct of the public business
  • Fraud, trickery, and hypocrisy

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:

  • Ignoring the civil rights and constitutional guarantees
  • Not following the rules and procedures
  • Failing to comply with internal bureaucratic rules
  • Ignoring regulatory and statutory guarantees

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:

  • Nonfeasance. The failure to perform one's duty by oversight or omission, usually

inadvertent (willful nonfeasance is typically considered malfeasance).

  • Misfeasance. The wrongful performance of one's duties, usually in the form of making

mistakes, not following procedures correctly, or other unintential blunders.

  • Malfeasance. The intentional performance of an official act or use of one's official powers

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

  • Malfeasance
  • Nonfeasance
  • Misfeasance
  • Disobeying lawful orders
  • Abuse of discretion
  • Failing to comply with regulations and standing orders

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

ethical requirements.

A defense attorney has ethical obligations that include:

  • Responsibility to client
  • Confidentiality
  • Zealousness of defense

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").

Customer: replied 2 years ago.

Plea bargaining 155

Certain legal processes also are under the control of a prosecutor, including:

  • Plea bargaining (Heumann, 1978:92-126)
  • The exercise of prosecutorial discretion, merging and dropping charges
  • Selective prosecution
  • Nolle prosequi (Latin for "to be unwilling to pursue") decisions
  • Deals and promises made to secure testimony

PLEA BARGAINING

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.

Exercising discretion

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

favor.

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

courts.

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

PROSECUTORIAL ETHICS

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

Conclusion 159

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

(1991:125-126).

Learn more on the Internet

For more on ethical issues involving prosecutors, go to www.abanow.org and search on

the term prosecutorial ethics.

CONCLUSION

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

misconduct.

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.

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DISCUSSION QUESTIONS

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.

References 161

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

question.

"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

References 163

............................................................................................

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

what?"

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.

Questions

1. Where is the line between "zealous prosecution" and a subversion of the due process

system?

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

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Criminal sentencing:

Goals, practices, and ethics 10

Lawrence F. Travis III

KEY CONCEPTS

desert

deterrence paradox of retribution

disparity treatment

false negative

false positive restoration

incapacitation

truth in sentencing

utililitarianism

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

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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

punishment.

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

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

of crime.

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).

Incapacitation

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).

Treatment

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,

2004).

Desert

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).

Restoration

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,

1976).

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

crime.

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

interests.

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

make reparations.

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

additional crimes.

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

penalties.

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

decision.

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.

Conclusion 177

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?

Learn More on the Internet

For more on sentencing and court issues, go to http://bjs.ojp.udoj.gov.

CONCLUSION

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

and practices.

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).

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180 CHAPTER 10 Criminal sentencing

DISCUSSION QUESTIONS

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

case.

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

penalties?

 

THIS IS THE END OF CHAPTER 10

 

Customer: replied 2 years ago.

Crime and punishment:

Punishment philosophies and

ethical dilemmas 11

Laurie A. Gould and Alicia H. Sitren

KEY CONCEPTS

deterrence

general deterrence

hedonistic calculus

incapacitation

punishment

proportionality

rehabilitation

retribution

specific deterrence

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

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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.

Retribution

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

sentences.

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

spectrum.

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,

2003).

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).

Incapacitation

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

dilemma.

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,

1999).

186 CHAPTER 11 Crime and punishment

Rehabilitation

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,

1970).

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

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

  • In 2008, a total of 21,987 inmates held in state or federal prisons had confirmed cases of

AIDS (Maruschak and Beavers, 2009).

  • U.S. prisons incarcerate more than 2 million inmates each year, and between 12 and 31

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, &

Latessa, 2004).

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"

(p. 97).

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?

References 191

CONCLUSION

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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DISCUSSION QUESTIONS

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

behavior.

3. What are some of the challenges that special populations face in prison?

Examine the ethical implications of incarcerating the mentally ill and

juvenile offenders.

4. Compare and contrast contemporary retribution with retribution as revenge.

Do you think that revenge has a place in contemporary punishment? Explain

your answer.

5. What are the policy implications of retribution, incapacitation, and

rehabilitation?

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

Customer: replied 2 years ago.

To die or not to die:

Morality, ethics, and the death

penalty 12

John T. Whitehead and Michael C. Braswell

KEY CONCEPTS

arbitrariness

death penalty

deterrence

discrimination

incapacitation

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,

2007).

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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.

Deterrence

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.

Incapacitation

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.

PEACEMAKING PERSPECTIVE

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

penalties do.

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

transformation.

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

MISTAKES

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 &

Perkins, 2003:369)

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

exoneration.

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

Mistakes 203

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

unacceptable.

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

death row.

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,

2003:77).

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

Arbitrariness 205

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.

ARBITRARINESS

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

penalty.

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

television.

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

disturbing.

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

other inmates.

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,

1998:215)

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

from prison.

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.,

2003).

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

punishment.

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

death").

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

penalty.

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

(House, 1997).

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

death penalty.

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,

1988:163).

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.

Religion and capital punishment 209

210 CHAPTER 12 To die or not to die

Customer: replied 2 years ago.

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

Conclusion 211

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"

(Turow, 2003:47).

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.)

CONCLUSION

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

administration.

Learn More on the Internet

For more information on the death penalty, go to http://www.deathpenaltyinfo.org/

212 CHAPTER 12 To die or not to die

References

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

Press.

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.

Department of Justice.

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

.gov/bjs/cp.htm.

Cabana, D. A. (1996). Death at midnight: The confession of an executioner. Boston: Northeastern

University Press.

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 &

Bacon.

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:

West/Wadsworth.

Lezin, K. (1999). Finding life on death row: Profiles of six inmates. Boston: Northeastern

University Press.

Liebman, J. S., Fagan, J., & West, V. (2000). A broken system: Error rates in capital cases.

Found at www.law.Columbia.edu/instructionalservices/liebman.

References 213

Lundman, R. J. (1993). Prevention and control of juvenile delinquency (2nd ed.). New York:

Oxford University Press.

Mandery, E. J. (2003). The principles of proportionality review. Criminal Law Bulletin, 39,

157-193.

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:

Padma.

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

Press.

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.

Bohm & C. S. Lanier (Eds.), America's experiment with capital punishment: Reflections

on the past, present, and future of the ultimate penal sanction (pp. 223-249). Durham,

NC: Carolina Academic Press.

DISCUSSION QUESTIONS

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

of each?

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

cases."

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?"

Questions

1. Discuss the various choices the governor could make from utilitarian, deontological, and

peacemaking perspectives.

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?

Ethical issues

in corrections

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

Customer: replied 2 years ago.

Ethical issues in probation,

parole, and community

corrections 13

John T. Whitehead

KEY CONCEPTS

acceptable penal content

community service

effectiveness

mission of probation and parole

parole

probation

INTRODUCTION

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

house arrest.

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

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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

being delivered.

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

penal content.)

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

community).

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,

2008).

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,

2009).

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

greatest number.

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

for offenders.

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

such visits:

. . . 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,

1990:169)

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.

Offender concerns

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.

PRIVATIZATION

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

Privatization 227

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.

CORRUPTION

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

References 231

(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.

CONCLUSION

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.

Learn More on the Internet

For more on probation issues, go to www.uscourts.gov and search on Federal Probation

Journal.

Note

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).

References

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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.

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Clear, T. R., & Braga, A. A. (1995). Community corrections. In J. Q. Wilson & J. Petersilia

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monitoring movement. Justice Quarterly, 8, 399-414.

Dietrich, S. G. (1979). The probation officer as therapist. Federal Probation, 43(2), 14-19.

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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?

Explain.

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?

.............................................................................................

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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?

Explain.

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

situation.

Questions

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

Customer: replied 2 years ago.

Restorative justice and

the peacemaking ethic 14

Lana McDowell, Michael C. Braswell, and John T. Whitehead

KEY CONCEPTS

family group conferencing

peacemaking

reintegrative shaming

restorative justice

reparative boards

sentencing circles

victim/offender panels

victim/offender reconciliation programs

wisdom traditions

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

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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

social actions.

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

institutions.

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.

PEACEMAKING VIRTUES

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

broken.

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 community.

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

mended.

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

PEACEMAKING ETHIC

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

offenders.

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

at large.

Echoes from the past: peacemaking and the wisdom traditions 243

ECHOES FROM THE PAST: PEACEMAKING AND THE WISDOM

TRADITIONS

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).

Connectedness

Richard Quinney (1993), a pioneer in the field of peacemaking criminology,

writes:

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.

Caring

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.

Mindfulness

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

follows.

Wisdom traditions

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.

(Carson, 1998:140)

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,

2006:9)

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

Gandhi:

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

Customer: replied 2 years ago.

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?

(p. 41)

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

of suffering:

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

early age.

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.

(p. 327)

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

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

early age.

Source: Coyhis and Simonelli (2005:327).

250 CHAPTER 14 Restorative justice and the

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,

and corrections.

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).

Core elements of restorative justice 251

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

processes.

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 &

Strong, 2010).

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

identified?

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?

Continued

254 CHAPTER 14 Restorative justice and the peacemaking ethic

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

  • Family group conferencing. The offender, victim, family members, community members,

and professionals meet to discuss the wrongdoing and create a plan regarding the most

appropriate method of reintegration for both the offender and victim.

  • Victim/offender reconciliation programs. The victim and offender meet face to face with a

mediator to discuss the transgression at hand.

  • Sentencing circles. Community members, the victim, the offender, and court officials

each have the ability to speak and jointly create a solution regarding the outcome of the

criminal action at hand.

  • Reparative boards. Includes a series of public meetings organized and implemented by

community members regarding steps an offender shall take to restore the harm done to

the victim(s) and the community.

  • Victim/offender boards. Victims are provided the opportunity to speak with a group of

offenders who have been convicted of the crime the victim has suffered, without being

required to meet their personal assailant.

  • Reintegrative shaming. Community members express their disappointment in the offender

regarding his or her criminal actions.

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).

Types of restorative justice programs 255

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.

Sentencing circles

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

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

society.

Victim/offender panels

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

harmed them.

258 CHAPTER 14 Restorative justice and the peacemaking ethic

Reintegrative shaming

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

Conclusion 259

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.

Learn More on the Internet

For more on restorative justice, go to www.restorativejustice.org/.

CONCLUSION

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.

260 CHAPTER 14 Restorative justice and the peacemaking ethic

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Note: Students provided consent for release of papers referenced within the chapter.

 

 

Customer: replied 2 years ago.

DISCUSSION QUESTIONS

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

justice techniques?

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

of coffee.

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

themselves."

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?"

Questions

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

that duty?

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

Customer: replied 2 years ago.

Keeping an eye

on the keeper:

Prison corruption and its control* 15

Bernard J. McCarthy

KEY CONCEPTS

corruption

corruption through default

corruption through friendship

corruption through reciprocity

malfeasance

material accommodations

misfeasance

nonfeasance

"pains of imprisonment"

power accommodations

status accommodations

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

undermined.

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.

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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

misconduct.

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

demean prisoners.

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

people.

Learn More on the Internet

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

reformers:

[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

Commission, stated:

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.

(Fogel, 1979:69)

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"

(Belluck, 2004).

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

(Suro, 1997).

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

material gain.

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,

and warehouses.

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

this problem.

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).

The role of discretion 271

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

Misfeasance

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

Malfeasance

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

Nonfeasance

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

environment.

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.

Customer: replied 2 years ago.

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

the

(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

searches.

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.

CONTROLLING CORRUPTION

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

in prison:

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

confinement facilities.

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

regime. (1956:158)

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

home brew:

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

(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

searches.

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.

CONTROLLING CORRUPTION

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.

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

to resign.

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

overall quality.

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

Learn More on the Internet

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

be met.

References

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introductory report. Montclair, NJ: Patterson-Smith.

Buell, M., Layman, E., McCampbell, S., & Smith, B. (2003). Addressing sexual misconduct

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Parole Association, 2(27), 26-37.

Butterfield, F. (2004). Inmates use smuggled cellphones to maintain a foot on the outside.

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Clark, J. P., & Hollinger, R. C. (1981). Theft by employees in work organizations. Minneapolis:

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Cloward, R. (1960). Theoretical studies in social organization of the prison. New York:

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Duchaine, N. (1979). The literature of police corruption (Vol. II). New York: John Jay

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Duffee, D. (1974). The correction officer subculture and organizational change. Journal of

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Goldstein, H. (1977). Policing in a free society. Cambridge, MA: Ballinger.

Heidenheimer, A. (1970). Political corruption: Readings in comparative analysis. New

York: Holt, Rinehart & Winston.

Irwin, I. (1980). Prisons in turmoil. Boston: Little, Brown.

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Anderson.

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McKorkle, L. (1970). Guard-inmate relationships. In Johnston et al. (Ed.), The Sociology of

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Little, Brown.

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15(September-October), 449-461.

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References 283

DISCUSSION QUESTIONS

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

privileges?

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

prisoners?

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

prison?

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:

Continued

............................................................................................

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?

Questions

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

officers?

Reprinted by permission of Waveland press, Inc., from Braswell, Miller, and Pollock (2010). All rights reserved

 

THIS IS THE END OF CHAPTER 15

Customer: replied 2 years ago.

Ethics and prison:

Selected issues 16

John T. Whitehead and XXXXX XXXXX

KEY CONCEPTS

disproportionate minority prison populations

elderly offenders

faith-based programming

prison composition

prison conditions

privatization

treatment

victimization

INTRODUCTION

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

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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

crime-ridden neighborhoods.

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.

Learn More on the Internet

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

addressed.

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.

Treatment/rehabilitation/programming 291

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

TREATMENT/REHABILITATION/PROGRAMMING

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

treatment opportunities.

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 success.

For a discussion of faith-based programming in prison, see Box 16.1.

CHAIN GANGS

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

(Griffin, 2001).

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 &

Gendreau, 1994:57).

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

(Conrad, 1982).

ELDERLY PRISONERS

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,

2009).

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?

PRIVATIZATION

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).

Opponents of privatization argue that government agencies can be efficient and

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

proven superior.

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?

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. 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

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,

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.

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 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.

CONCLUSION

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.

Notes

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

orchestrated.

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DISCUSSION QUESTIONS

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?

Questions

1. What are some ways a powerful senator can corrupt a correctional facility located in his

district?

2. Is there anything the prison superintendent can do to remedy this situation?

From Michael Braswell, XXXXX XXXXX, and Joycelyn Pollock, Case Studies in Criminal Justice Ethics (Long Grove,

IL: Waveland Press), 2006. Reprinted with permission.

 

THIS IS THE END OF CHAPTER 16

Customer: replied 2 years ago.

Crime and justice myths 17

Egan Green

KEY CONCEPTS

deterrence

"friend of a friend"

"get-tough" policies

juvenile superpredator

three-strikes laws

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, &

Dwyer, 2003).

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.

Justice, Crime, and Ethics.

© 2012 Elsevier Inc.. All rights reserved.

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.

310

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

on crime.

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,

1997).

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

practitioners' work.

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

312

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

(Yanich, 2004:537).

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

of crime.

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

media misrepresentations:

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.

Learn More on the Internet

For more on how mass media influence perceptions of crime and justice, visit http://law

.jrank.org/pages/1582/Mass-Media-Crime.html.

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, &

Roberts, 1998).

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,

1997).

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

without power.

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

own flaws.

Learn More on the Internet

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.

(p. 1)

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

controlling crime.

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

offenses.

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

cocaine market.

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

been imprisoned.

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

References 325

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.

 

 

Customer: replied 2 years ago.

CONCLUSION

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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Weitzer, R., & Kubrin, C. E. (2004). Breaking news: How local TV news and real-world

conditions affect fear of crime. Justice Quarterly, 21, 497-520.

Welch, M., Fenwick, M., & Roberts, M. (1998). State managers, intellectuals, and the

media: A content analysis of ideology in experts' quotes in feature newspaper

articles on crime. In G. W. Potter & V. E. Kappeler (Eds.), Constructing crime: Perspectives

on making news and social problems. Prospect Heights, IL: Waveland Press.

Williams, F. P., III, & McShane, M. D. (1993). Criminology theory: Selected classic readings.

Cincinnati: Anderson.

Yanich, D. (2004). Crime creep: Urban and suburban crime on TV news. Journal of Urban

Affairs, 26, 535-563.

Yanich, D. (2005). Kids, crime, and local television news. Crime & Delinquency, 51,

103-132.

Yaroschuk, T. (2000). Hooked: Illegal drugs and how they got that way. Motion picture,

A&E Television Networks.

Zimring, F. E. (1998). American youth violence. New York: Oxford University Press.

Zoglin, R. (1996). Now for the bad news: A teenage time bomb. Time, 147(January 15),

52-53.

DISCUSSION QUESTIONS

1. Describe the persistence of the "friend of a friend" concept discussed in the

chapter.

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:

  • Write down the race of the defendants whose pictures are broadcast. Do you

see any trends regarding the characteristics of defendants whose images are

broadcast?

  • Note the words used to describe crime and/or criminals in the broadcast. Is

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

results.

 

THIS IS THE END OF CHAPTER 18

Expert:  DXJAnswerMagic replied 2 years ago.
Copying and pasting this now......Thanks so much!Smile
Customer: replied 2 years ago.

I made a mistake.......the last chapter you rec'd is 17 not 18! The next chapter to be sent is 18!

Expert:  DXJAnswerMagic replied 2 years ago.
OK.....thanks for letting me know! Smile DXJ
Expert:  DXJAnswerMagic replied 2 years ago.

Hi!

 

I am working through your introduction.

Could you please tell me how long your part of the EAI paper should be?

Thanks so much! Smile DXJ

Customer: replied 2 years ago.

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!

Expert:  DXJAnswerMagic replied 2 years ago.

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!!!!!!Laughing

Customer: replied 2 years ago.
No, you don't have to wait on everyone's section to do the introduction! Yes, my personal section has to be at least 220 words! I'm sorry I am just getting back to you, but I did have access to my internet. Hey need to be two seperate parts! Thank you....
Expert:  DXJAnswerMagic replied 2 years ago.
OK, I will send you the introduction momentarily.......... revising it now. Wink DXJ
Expert:  DXJAnswerMagic replied 2 years ago.

Hi!

 

Your introduction is here.

Hope this helps! DXJ

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Expert:  DXJAnswerMagic replied 2 years ago.

Hi!

 

Your portion of the group paper (EAI) is here

Hope this helps! Smile DXJ

Customer: replied 2 years ago.

I'm not understamding - all I got was the info. I sent you so you would be able to do the paper.

Expert:  DXJAnswerMagic replied 2 years ago.
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