Lesson Eight: Chapters 13 and 14

Chapter 13:

Q1. Briefly explain what  Zimbardo’s ‘Stanford Prison Experiment’ was about. What did we learn from this experiment?

Chapter 14:

Q1.  In Chapter Five of the text, and again  in Chapter 14, there was a  discussion about the ‘crime control approach’ and the ‘public service  approach’ to lawlessness. Keeping in mind what is happening in the US  today, comment on both of these approaches.

CHAPTER 14:

Making

Ethical

Choices

Lecture Slides prepared by Cheryn Rowell

*

Review of Major Themes

• The 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 that vary from formal principles of behavior
• The importance of ethical leadership
• The tension between deontological ethical systems and teleological or “means–end” ethical analysis

*

The Threat of Terrorism

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

*

The “Just War” Debate

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

• Natural Law: war is acceptable

– To uphold the good of the community

– When unjust injuries are inflicted on others

– To protect the state

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

*

Justification for War Includes:

• A grave, lasting, and certain threat

• No other means to avert the threat

• A good probability of success

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

*

Ethical Justifications for War
and Means Utilized

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

Ethical formalism: use of aggression can be justified with

principle of forfeiture

principle of double effect

*

• Can “just war” arguments be applied?
• Can “Dirty Harry” arguments be applied?

Response to Terrorism

*

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.

Response to 9/11

*

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

*

Detainments and Governmental 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.

*

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 labeled “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 Act after Hamdan v. Rumsfeld invalidated presidential decree
• Widespread criticism that Act ignored ancient right of habeas corpus
• Boumediene v. Bush (No. 06-1195, Decided June 12, 2008)—the Supreme Court rejected the military commissions as a due process substitute for federal courts and habeas corpus; also, Detainee Treatment Act was not a substitute for habeas corpus rights

*

Torture

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

Subjected to loud noises and extreme heat and cold

Deprived of sleep, light, food, and water

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

Kept naked and hooded

Thrown into walls

Sexually humiliated

Threatened with attack dogs

Shackled to the ceiling

*

• Justification

– Utilitarianism (doctrine of necessity)

Does torture result in the truth?

Does it matter?

• Where?

– Guantanamo

– Secret prisons

– Bagram prison—Afghanistan

– Abu Ghraib—Iraq

Torture

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 US 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 (waterboarding 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?

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

Patriot Act renewal had provision for speeding death penalty appeals

Routine partnerships (and conflicts) between local law enforcement and DHS

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

*