CHAPTER 14

Making Ethical Choices

Lecture slides prepared by Lisa J. Taylor

Review of Major Themes

• There is presence of authority, power, force, and discretion in each of the sub-systems of the criminal justice.

• Informal practices and value systems among criminal justice actors vary from formal principles of behavior.

• The importance of ethical leadership.

• The tension between deontological ethical systems and teleological or “means–end” ethical analysis.

The Threat of Terrorism

“Deliberate, negligent, or reckless use of force against noncombatants, by state or non-state actors for ideological ends and in the absence of a substantively just legal process.”

The “Just War” Debate Philosophers have debated the idea of “just” wars since the time of Cicero (c. 106–43 B.C.)

•Natural Law: War is acceptableo To uphold the good of the communityo When unjust injuries are inflicted on otherso To protect the state

•Positivist Law: (man-made) when international law is followed; e.g. United Nations.

Justification for War Includes

• A grave, lasting, and certain threat.

• No other means to avert the threat.

• A good probability of success.

• The means must not create a greater evil than the threat responded to.

Ethical Justifications for Warand Means Utilized

Utilitarianism: when the benefits outweigh the negatives; e.g., when there is a grave threat and civilian deaths are minimized

Ethical formalism: use of aggression can be justified with

principle of forfeiture

principle of double effect

Response to Terrorism

• Can “just war” arguments be applied?

• Can “Dirty Harry” arguments be applied?

Response to 9/11

• There has been a fundamental shift in the goals and mission of law enforcement and public safety.

• New goals include more national law enforcement and a reduction of civil liberties.

• There is a greater emphasis on surveillance and crime control.

• There are increasing links between local law enforcement and immigration services and federal law enforcement.

After 9/11

• Detainments and greater governmental secrecy

• The Patriot Act and the Department of Homeland Security

• Wiretapping and threats to privacy

• Renditions and secret prisons

• Guantanamo and the Military Commissions

• The use of torture

Attorney General

Eric Holder(2012)

• Publicly said the Authorization for the Use of Military Force (AUMF) gave the President the power to order targeted killings of individuals—even American citizens—believed to have engaged in terrorist activity in the U.S.

• This was after a targeted drone attack killed Anwar al-Awlaki, an American radical cleric believed to be responsible for soliciting and initiating several terror plots in the U.S.

• The ACLU and other organizations are engaged in a Freedom of Information Act request to obtain the memo and what evidence existed to justify the killing.

Detainments and Government Secrecy

• Immediately after 9/11, hundreds of non-citizens were detained on either immigration charges or material witness warrants.

• The Patriot Act required that all individuals on visas report to immigration offices. Many were detained on minor violations of their visa and held for months in federal facilities and county jails without hearings.

• Names and even the number of detainees were withheld for months.

• Deportation hearings were closed to the media and public.

Japanese Internment

Camps(WWII)

• Japanese-American internment was the relocation and internment by the United States government in 1942 of about 110,000 Japanese Americans and Japanese who lived along the Pacific coast of the U.S., to camps called "War Relocation Camps," in the wake of Imperial Japan's attack on Pearl Harbor.

• In 1988, Congress passed and President Ronald Reagan signed legislation which apologized for the internment. The legislation indicated that government actions were based on "race prejudice, war hysteria, and a failure of political leadership.”

• The U.S. government eventually disbursed more than $1.6B in reparations to Japanese Americans who had been interned and their heirs.

The Patriot Act

• Authorizes federal agents to spy on Americans without probable cause or reasonable suspicion.

• Allows authorities to share with state prosecutors information obtained via FISA search warrants which do not require probable cause.

• Authorizes deportation of anyone who financially supports a terrorist organization.

• Requires all Arab-born citizens to register under the National Security Entry-Exit Registration system.

The Act was extended in 2006 (to 2009), with modifications.

Wiretapping and Threats to Privacy

• Patriot Act—“sneak and peek,” “national security letters,” pen registers

• “Data mining” programs

• Presidential secret warrantless wiretappings

• DNA data banks

Renditions and Secret Prisons

• Renditions—kidnapping suspects in Canada, Sweden, Germany, and Italy sometimes without knowledge or approval of governments

• Secret prisons—subjects of renditions taken to countries to be tortured or to secret prisons (closed in 2006?)

Guantanamo and the

Military Commissions Act • Hamdi v. Rumsfeld (2004)—U.S. citizens could not be held

indefinitely without charges even if they were labled “enemy combatants.”

• Rasul v. Bush (2004)—Detainees in Guantanamo could challenge their detention in U.S. federal courts.

• Clark v. Martinez (2005)—Government may not indefinitely detain even illegal immigrants without some due process.

• Hamdan v. Rumsfeld (2005)—“Military commissions,” set up as a type of due process for the detainees, were outside the President’s power to create and were, therefore, invalid.

Military Commissions Act

• Congress passed the Act after Hamdan v. Rumsfeld invalidated presidential decree.

• Widespread criticism that the Act ignored ancient right of habeas corpus.

• Boumediene v. Bush (No. 06-1195, Decided June 12, 2008)—the Supreme Court rejected the military commissions as a due process substitute for federal courts and habeas corpus; also, Detainee Treatment Act was not a substitute for habeas corpus rights.

TortureDeliberate infliction of violence and, through violence, severe mental and/or physical suffering upon individuals:

• Subjected to loud noises and extreme heat and cold

• Deprived of sleep, light, food, and water

• Bound or forced to stand in painful positions for long periods of time

• Kept naked and hooded

• Thrown into walls

• Sexually humiliated

• Threatened with attack dogs

• Shackled to the ceiling

• Waterboarding

Torture• Justification

o Utilitarianism (doctrine of necessity)o Does torture result in the truth?o Does it matter?

• Where?o Guantanamoo Secret prisonso Bagram prison—Afghanistano Abu Ghraib—Iraq

Thinking

Point

In May of 2010, Faisal Shahzad made an attempt to set off a car bomb in Time Square. Shahzad has since been charged with an act of terrorism and mass destruction. Shahzad became a U.S. citizen in April of 2009. He had recently reentered the country after spending five months in Pakistan. Shahzad claims he acted alone in his attempt.

Knowing Shazad’s history, would it be ethical

to use certain torture methods to ensure he is being honest?

Crime Control and “Means-End” Thinking

The desired end (deterring/preventing terrorist attack) is seen as justifying such means as restricting:

• privacy rights

• due-process rights

• rights to associate (as when individuals are deported simply for associating with groups that have been defined as terrorist)

• right not to be tortured (water boarding and other “coercive interrogation techniques”)

The Crime Control Approach

A utilitarian approach can be used to justify invasive or restrictive police actions:

• The end must itself be good.

• The means must be a plausible way to achieve the end.

• There must be no alternative, better means to achieve the same end.

• The means must not undermine some other equal or greater end.

Crime Control vs. Human Rights

Crime Control

• “Dirty Harry” reasoning

• Ends-means thinking

• Doctrine of necessity

• Utilitarianism

Rights Based Policing

• Emphasis on law

• Emphasis on due process

• Emphasis on inalienable rights

• Ethical formalism

Rights Based Police Standards (UK)

1. To fulfill the duties imposed on them by the law

2. To respect human dignity and uphold human rights

3. To act with integrity, dignity, and impartiality

4. To use force only when strictly necessary, and then proportionately

5. To maintain confidentiality

6. Not to use torture or use ill-treatment

7. To protect the health of those in their custody

8. Not to commit any act of corruption

9. To respect the law and the code of conduct and oppose violations of them

10. To be personally liable for their acts

Is War on Terror Related to Criminal Justice Ethics?

• The War on Terror has affected police policies and added new responsibilities.

• Powers created to fight terror have been used against “garden variety” criminals and governmental surveillance/spying has been used against American citizens.

• The Patriot Act renewal had provision for speeding death penalty appeals.

• There are routine partnerships (and conflicts) between local law enforcement and DHS.

• Civil liberties take centuries to create, but only a few generations to destroy (Wilson).

NYPD’s Intelligence/Surveillan

ce Activities

• Intelligence division – 1000 employees.• Led by ex-CIA agent.• Unit includes 2 dozen civilian experts,

lawyers, academics, linguists, and other specialists in addition to law enforcement officers.

• Unit monitors jihad websites and gathers tips regarding terrorist activity.

• Use cameras on mosques and Muslim-frequented businesses, collected license plate numbers, and engaged “mosque crawlers” to infiltrate mosques and neighborhoods.

• Privacy concerns raised by the ACLU and Arab Islamic rights organizations

• Should torture be used to gain confessions?

• Is there a difference between information to save a victim and information to prosecute the suspect?

• Do innocent people confess to crimes they did not commit because of mental or physical coercion?

“Dirty Harry” Problem

Nga Truong Coerced

Confession(2008)

• Police received a hysterical call from an apartment where a Vietnamese-American teenager lived with her 13-month-old son, Khyle, her boyfriend, her mother, and her siblings.

• Khyle wasn't breathing, and later, a doctor at a nearby hospital pronounced him dead.

• Truong later admitted to suffocating her son. She was arrested and spent almost three years awaiting trial for murder.

• Police told her that if she confessed, she will get help and leniency in the juvenile court.

• She made the coerced admission, thinking she could go on with her life, but not processing at 16 years old that she just admitted to homicide.