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of Consequences

On Christmas Eve 1968, Robert Anthony Williams sexually assaulted and murdered a ten-year-old girl in the bathroom of a YMCA in Des Moines, Iowa. Having wrapped her body in a blanket and placed it in his car, he fled from the scene and disposed of the body in the wilderness. Two days later, Williams contacted an attorney in Davenport, Iowa, indicating his desire to surrender to law enforce- ment. As part of an agreement reached between his attorney and the Davenport police, the officers who would transport him from Davenport back to Des Moines were not to question him. Williams had indicated he would provide details of the offense once in the presence of his attorney in Des Moines. During the subsequent transport, however, one of the police officers accompanying him gave Williams what has come to be known as the “Christian Burial Speech.” Knowing that Williams was a deeply religious man with a history of serious mental illness, the officer (addressing Williams as “Reverend”) stated:

I want to give you something to think about while we’re traveling down the road . . . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it . . . the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered.1

Following the speech, Williams led the officers to the young girl’s body. He was later tried and convicted of murder—a verdict which was upheld on appeal, despite claims that the evidence uncovered during the trip from Davenport to Des Moines should not have been admitted.

Although this case raises important legal questions concerning the admissibility of evidence and Sixth Amendment right to counsel, it also provokes crucial ethical questions about police interrogations, agreements and contracts, and the desirability of employing questionable means to achieve a desired (and desirable) end:

• Was the officer’s appeal to Williams’ conscience simply a case of good police work? • Does it matter that Williams was mentally ill and easily manipulated?

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• Does it matter that the officer violated an agreement or promise not to question Williams during the automobile ride?

• Does it make a difference that the behavior of the officer ultimately led to success in finding the girl’s body and, thus, critical evidence?

To answer questions such as these, we need a means of identifying what is ultimately important, and how what we regard as important applies in principle to particular instances. As discussed in Chapter 2, we need to know what we value, and how decisions and actions pro- mote or fail to promote what we regard as valuable. Is there some sense in which finding the young girl’s body should be prioritized over procedural rules? Does our respect for individual rights take priority over what we regard as the best interests of the victim’s family and the community?

When we introduced the ethical importance of good decision-making in Chapter 2, we noted that our decisions and beliefs should be informed by good reasons, and having good reasons is often a matter of identifying and prioritizing key moral values and principles and the ways in which they apply to the issue or situation in question. We also noted that the subfield of ethics known as normative ethics consists of theories or frameworks that attempt to identify and prioritize moral values and, in so doing, provide guidelines for moral decision-making. Different ethical frameworks, however, prioritize different values, thus promoting different principles and pulling us toward different conclusions about moral issues and dilemmas: consequentialist theories focus on the consequences that our decisions or actions bring about; deontological theories focus on conforming our decisions and actions to relevant moral duties and obligations; and virtue ethics encourages us to develop good moral character, seeking to embody virtue while avoiding vice.

Given the importance and usefulness of these three basic ethical frameworks, we explore each of them in greater detail over the next three chapters. We begin in the present chapter with an examination of consequentialist theories—those that have us ask, “What will happen of I do X?” “Who will be affected and how?” and “How might other alternatives produce different outcomes?”

CONSEQUENTIALISM

According to consequentialism, actions are “right” so far as they have beneficial consequences. Thus, actions, laws, policies, etc., are morally right to the degree—and only to the degree—that they produce some good or some useful outcome.2 Actions themselves are neither inherently right nor inherently wrong; rather, moral worth attaches only to what decisions and actions bring about, not directly to the decisions or actions themselves. Some consequentialists, for example, would argue that there is nothing inherently wrong with an act of torture; instead, the moral permissibility of torture should be judged only by the good that it yields (or is expected to yield) relative to all other possible courses of action. In other words, the “means” can be justified by the “end.”

For a particular decision or action to be morally appropriate, then, it must on balance generate better consequences than all other available courses of action. If all available options produce both good and bad consequences, then the morally preferred one is the action that yields more overall good than harm.3 The desirability and permissibility of pretrial release policy, plea bargaining, determinate sentencing, capital punishment, and many other issues and dilemmas within criminal justice can be determined using the basic orientation of consequentialism: if, relative to other reasonable options, the overall benefits of the policy or practice outweigh the overall harm, then it is a “good” policy or practice.

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While seemingly straightforward and intuitively appealing, several critical questions need to be addressed with respect to the logic and implications of consequentialist moral theory, each of which will be explored over the remainder of the chapter:

• What constitutes a “good” or desirable outcome? • For whom should the outcome be beneficial? • Should we focus on actual consequences? Expected consequences? Intended consequences? • Are consequences really the only thing that matters morally?

GOOD AND DESIRABLE CONSEQUENCES

What if we could substantially decrease the overall amount of physical pain in the world by giving everyone a “universal” vaccination which guards against almost all illnesses and diseases, but has the inescapable side effect of dulling emotions and permanently limiting our experience of joy? Would we willingly give up our experiences of joy for the sake of remaining in good health? What if we could completely eradicate crime in society, but doing so would require each of us to live under constant surveillance? Would we be willing to give up our experience of privacy and freedom for the sake of living without fear of criminal victimization?

To answer either of these questions, of course, we need to know whether we place greater value on health or on joyful emotions, on privacy and freedom or protection from criminal harm. If morality requires that we bring about good consequences through action or policy, we need to first know what things are good—in other words, what we value most. In and of itself, the idea that we should act so as to produce the best overall consequences does not answer this question for us. We need an additional “theory” of the good. We need to determine what matters.

By far the most widely discussed and influential variation of consequentialism is utilitarianism. Originally outlined by Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873), utilitarianism argues that actions are morally right so far as they maximize good consequences and/or minimize bad consequences; more specifically, however, classical utilitari- anism understands only one thing to be ultimately “good” or valuable—happiness. Every human being desires happiness, and each of us understands happiness to be the greatest possible kind of good. In John Stuart Mill’s words, “The utilitarian doctrine is that happiness is desirable, and the only thing desirable, as an end; all other things being desirable as means to that end.”4 In other words, wealth, status, food, love, knowledge, and many other things commonly understood as “goods” can only be understood as such because they are means by which we attain the more primary end of happiness.

Mill’s quote employs the distinction we made in Chapter 2 between values and goods that are intrinsic, and those that are instrumental. Recall that intrinsic goods are those things that are good in and of themselves or for their own sake; instrumental goods are those things that help us attain intrinsic goods. Thus, money is generally understood to be an instrumental good because its value lies in its ability to help us attain other things that are intrinsically good—by itself, money is of limited worth or utility. Happiness, however, is not a means to anything—we do not use it to get other things that are desirable. Instead, we desire happiness because the state of being happy is, by itself, something we consider to be good. Knowing that happiness is the highest of goods, we are in a better position to determine what constitutes good consequences, as well as what kinds of decisions and actions are morally permissible and desirable.

Whereas happiness is intrinsically valuable, honesty, legal rights, and other moral values and principles must be thought of as valuable only instrumentally—only to the extent that they aid in

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realizing the ultimate goal of producing happiness. It may be the case that having legal rights aids in producing a more just society in which people are better able to pursue good lives. In this respect, legal rights may be morally desirable. However, the instrumental nature of legal rights also means that they can be trumped by other considerations in some situations. Rights to privacy, for instance, might be justifiably violated if doing so brings to light information that could potentially save many lives, thereby generating more happiness than unhappiness on the balance.

The Principle of Utility: Seeking the Greatest Happiness

Consider the following: Would it be morally permissible for local law enforcement to infringe upon privacy rights by surreptitiously monitoring the phone conversations of suspected drug dealers? For the U.S. government to do the same of suspected terrorists? In both examples, producing good consequences requires that we also cause harm. How do we resolve moral dilemmas such as these? We need a rational, overriding principle by which to guide our decision. According to utilitarianism, where we have a choice such as that between respecting privacy rights (a moral good) and protecting the community from harm (also a moral good), it is not only morally permissible but perhaps morally obligatory to choose that action or policy which has “the best overall consequences for everyone affected.”5 Because we know that “good” consequences are defined in terms of happiness, we can say that our decisions should be guided by an effort to bring about the “greatest happiness for the greatest number of people.”

The rational, overriding principle promoted by utilitarianism is thus the principle of utility or greatest happiness principle, which holds that:

• Actions are right to the extent that they promote happiness, and wrong to the extent that they produce unhappiness; and

• Because more than one “party” will be affected, the action which is “right” is that which produces the happiness for the greatest number of people (or, conversely, “eliminates pain for the greatest number of people”).

Actions (or laws, policies, practices, etc.) are morally justifiable only if they have a tendency to produce happiness or eliminate pain for the greater number of people relative to other courses of action.6 In some instances, the best overall consequences for everyone involved may include doing what is necessary to protect the well-being of the group, community, or the country, even if that course of action also causes harm in other respects. The goal of utilitarian decision- making is to produce the greatest balance of happiness over unhappiness. Thus, with respect to the questions posed at the beginning of this section, utilitarian logic may support infringing upon people’s privacy rights if, in so doing, we are bringing about a greater good for a greater number of people. Again, “means” such as wire-tapping might be justified by an “end” such as community safety.

Agent Neutrality: Consequences for Whom?

Thus far we have seen, according to the principle of utility or Greatest Happiness Principle, that: (1) actions are to be judged right or wrong only (or at least primarily) with reference to their consequences; (2) in considering consequences, what is important is the amount of happiness or unhappiness that is brought about; and (3) we must take into consideration the happiness and unhappiness experienced by all people affected by the decision. This last point is particularly important and worth emphasizing further, as it separates utilitarianism from another common form of consequentialism—that of ethical egoism (see Box 8.1).

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BOX 8.1

The Rationale for Ethical Egoism

Ethical egoism suggests that self-interest is not a psychological motivation but a moral principle. We act rightly whenever we act out of consideration for our own interests, and wrongly whenever we do not. On its face, ethical egoism seems objectionable. Thus, on what basis or by what reasons might we legitimately support such a principle? The most common justifica- tions for ethical egoism are as follows:

• We know what is in our own interests, while we can know the needs and interests of other people only imperfectly. If we attempt to look after the needs and interests of others, we may well do more harm than good. If we limit our concern to ourselves, we are more likely to “get it right.”

• Looking out for other people’s interests is akin to invading their privacy. We should “mind our own business.”

• Aiding or assisting others is degrading to them— it is an assault to their dignity and self-respect. In a way, it suggests that others are incapable of meeting their own needs and caring for their own interests. In taking care of others, we may even be fostering a cycle of passivity and dependence, discouraging them from being or becoming self-reliant.

• Each of us has one—and as far as we know only one—life to live. Thus, we have a single oppor- tunity to find success, fulfillment, or happiness. Altruism would have us sacrifice that opportunity (or parts of it) for the sake of other people or the common good. Consequently, altruistic obliga- tions inhibit the development of outstanding individuals and, because great societies are achieved through the work and insight of great individuals, we should allow space for outstanding individuals to flourish.

As an example, consider cases such as mandated drug treatment or involuntary mental health intervention. These paternalistic practices involved are premised upon the notion that educated and trained professionals are in a position to understand the interests of others and assist them in overcoming their maladies. As we have

seen, however, ethical egoism questions whether we can ever know the needs and interests of others. Consequently, not only might paternalistic practices be misguided and unfruitful, they may also be construed as invasions of privacy and affronts to the dignity of those whom we are attempting to aid. Ethical egoism might raise the following concerns:

• Treatment services are not based on the patient’s expressed wants, needs, or desires, but on the professional’s “expert” knowledge of what the patient needs. In effect, experts presume to know patients’ needs and interests better than the patients themselves do. Are these assumptions accurate, or might they do more harm than good?

• Some have argued that patients who are treated against their will eventually come to appreciate the services they have received. The argument is that persons who are mentally ill or drug dependent are not—because of their illness—in a position to know what is in their best interests. Because of this, they may initially resist treatment. Once they are “better,” how- ever, they come to realize that treatment was in their best interest and are grateful for the inter- vention. Would you agree that persons who are drug dependent or suffering from a mental disorder such as major depression or schizo- phrenia are incapable of knowing their own interests because of their “illness?” Do you agree that many people who are treated without consent might eventually be thankful for the intervention?

Source: Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul (Eds.), Self-Interest (Cambridge, MA: Cambridge University Press, 1997), pp. 286–307; James Rachels, The Elements of Moral Philosophy (New York: McGraw-Hill, 2002); Ayn Rand, The Virtue of Selfishness (New York: Signet, 1964); Alen A. Stone, Mental Health Law: A System in Transition (Washington, DC: U.S. Government Printing Office, 1975); J. Beck, and E. Golowka, “A Study of Enforced Treatment in Relation to Stone’s ‘Thank You’ Therapy,” Behavioral Sciences and the Law, 6(4), 559 (1988).

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Recall from Chapter 6 that ethical egoism demands that our decisions be guided by self-interest that each of us should—indeed, is morally obligated to—act so as to satisfy our own best interests or maximize our personal welfare. Ethical egoism is consequentialist in that, like utilitarianism, it is concerned primarily with the consequences of our actions. However, where ethical egoism argues that what matter most are consequences for ourselves, utilitarianism holds that our decisions should produce the greatest happiness for the greatest number of people. The“all people affected”aspect of the principle of utility means that no one person’s happiness is more important than anyone else’s. In other words, each person’s welfare is equally important. As John Stuart Mill wrote,

The happiness which forms the utilitarian standard of what is right . . . is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator.7

Thus, utilitarianism requires that we weigh equally the happiness of everyone affected by our actions, without placing more or less importance on that of anyone (including ourselves). In fact, in some cases, the morally right action may be one in which we endure harm or pain in the interest of bringing about happiness or reducing suffering for a greater number of people. We cannot, then, consider our own happiness to be more important than anyone else’s—much like we cannot (or should not) make distinctions on the basis of personal relationships, wealth, status, race, gender, age, or any other potential source of bias. Utilitarianism demands that we become “disinter- ested spectators” in making a rational assessment of what consequences will result from our actions and in determining which course of action will have the most beneficial consequences for everyone (see Box 8.2).8 We are to be objective, unbiased, “neutral” decision-makers, with self-interest, the welfare of family, friends, colleagues, and so on granted no special moral attention.

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BOX 8.2

Plea Bargaining and the Greatest Happiness Principle

The practice of plea bargaining is one that is widely employed in criminal justice, yet has been attacked from a variety of perspectives. In effect, a plea bargain is an agreement between a defendant and the prosecution whereby the latter reduces charges or recommends a reduced sentence in exchange for the defendant pleading guilty before (or, on occasion, during) trial. Plea bargaining became a popular means of resolving criminal cases in the early decades of the twentieth century and, today, over 90 percent of crim- inal cases are disposed of through plea bargains.

Utilitarianism would have us consider the conse- quences of plea bargaining for everyone affected by its practice. Morally “good” practices are those that pro- duce the greatest happiness (or eliminate the greatest

pain) for the greatest number of people. In the case of plea bargaining, we would need to consider the ways in which it affects the defendant, prosecution, victim(s), and the greater community. Because each of these parties will be affected, the morality of plea bargaining becomes a matter of whether it tends to produce the “greatest happiness for the greatest number of people” when compared with alternative responses (in this case, a criminal trial). What consequences—good and bad— are produced by the practice of plea bargaining? Do the “good” consequences sufficiently outweigh the “bad” such that plea bargaining can be morally justified on utilitarian grounds?

Following is a list of possible effects, both bene- ficial and detrimental, to each of the major parties

(continued)

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MEASURING HAPPINESS: QUANTITATIVE HEDONISM

If our guiding moral principle is one which obligates us to attempt to maximize the happiness of everyone affected by our decisions and actions, we need to know a bit more about what “happiness” is and how we are to “measure” it for purposes of choice-making. Although the answer to each of these questions is a matter of continuing dispute within ethics, it may be valuable to consider the responses of Bentham and Mill themselves.

affected. As you read through them, weigh the costs and benefits and ask yourself whether the practice of plea bargaining on the whole passes the test of greatest happiness. If so, are there other reasons that plea bargaining might not be morally desirable?

• Prosecution. By most accounts, the party most positively affected by the practice of plea bargaining is the prosecution. Reaching a compromise with the defendant saves the prosecution countless hours of preparation, the time and monetary costs of trial, and ensures a conviction. This latter point is significant, as prosecutors often face strong administrative and political pressures to maintain a high conviction rate. This tension only increases where district attorneys are elected and must appease the public to secure reelection. Particularly in cases where the prosecution’s case is weak, plea bargaining can serve a variety of interests with relatively few negative consequences.

• Victim(s). Critics have argued that plea bargaining often leaves victims feeling as though justice has not been done. Defendants often receive more lenient sentences than would have been imposed by a judge following a conviction. We might imagine how a rape victim would feel upon learning that the offender had pled guilty to a lesser sexual assault charge and will only serve a minimal amount of time in prison. On the other hand, victims are spared the pain of enduring— and perhaps participating in—a criminal trial. As well, even though a lesser sentence may be imposed, victims are not exposed to the uncer- tainty that comes with not knowing whether a jury will reach a guilty verdict. In other words, the victim is assured that the offender will be punished in some fashion and to some extent.

• Defendant. Although on the surface it may seem as if the defendant has the most to gain from plea bargaining (e.g., a lesser charge, reduced

sentence), the alleged offender may also be most negatively affected by the process. Defendants find themselves in the unattractive predicament of having to choose between pleading guilty and thus ensuring their own punishment, or braving the uncertainty of a criminal trial that may or may not bring a conviction on a more serious charge and/or a harsher punishment. This dilemma is especially troubling in cases involving innocent defendants who may fear being found guilty by a jury following an unsuccessful defense. Those defendants who are poor, represented by public defenders, and/or do not understand the legal process may be especially at risk. Critics have argued that plea bargaining exploits the fear and uncertainty that defendants feel, thereby coercing them into surrendering their constitutional (Sixth Amendment) right to a trial by jury.

• Community. In some ways, plea bargaining serves the interests of the community. Firstly, the costs associated with criminal trials are shouldered by taxpayers. If most criminal cases went to trial, the financial burden on taxpayers would increase substantially. As well, in those cases involving defendants who present a continued danger to the community (e.g., violent offenders, drug dealers), plea bargaining offers a more certain means of ensuring public protection—even if for a shorter period of time. On the other hand, if the public feels that criminals are “getting off easy” and/or that innocent persons are being coerced into pleading guilty to crimes they did not commit, pubic confidence in and respect for the legal system may be undermined.

Source: Jeff Palmer, “Abolishing Plea Bargaining: An End to the Same Old Song and Dance,” American Journal of Criminal Law, 26 (3), 505–535 (1999); Michael Gorr, “The Morality of Plea Bargaining,” Social Theory and Practice, 26 (1), 129–151 (2000); Kenneth Kipnis, “Criminal Justice and the Negotiated Plea,” Ethics, 86 (2), 93–106 (1976).

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HEDONISTIC GOOD Bentham defined “good” not simply as happiness, but more specifically as pleasure. What is “good” is happiness, and what makes people happy is pleasure. Bentham’s position on this matter followed a philosophical tradition dating as far back as the ancient Greeks known as hedonism (hedone = a state in which pleasure is present or a quality that produces pleasure). Hedonism is a simple and popular theory which suggests that pleasure and pain are the only things we can say are intrinsically good or intrinsically bad.9 Everything that we normally consider good is good only because it in some way produces pleasure; while anything bad is bad because it produces pain. Thus, pleasure is considered central to human motivation, choice, and action—including moral considerations. While there has been long-standing disagreement about what kinds of things are pleasurable, all hedonists favor the basic idea that pleasure—whether linked to good food, wine, sex, or to family and friendship, tranquility, or knowledge—is the “ultimate good” in life and the only thing worth pursuing.

Bentham’s utilitarianism fits squarely within this broader tradition of hedonism. More fundamentally, Bentham’s moral philosophy assumes that human beings are by nature hedo- nistic or pleasure-seeking. Indeed, all human behavior ultimately is motivated by pleasure and/or pain alone. Thus, we naturally seek to maximize pleasure while avoiding pain. This is the principle of psychological hedonism: the claim that the pursuit of pleasure is a fact of human nature. As Bentham famously wrote, “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do . . . ” In terms of normative implications, psychological hedonism suggests that we can determine what we should do by appealing to what we naturally seek—happiness in the form of pleasure (see Box 8.3).

THE FELICITY CALCULUS How do notions of happiness and pleasure assist us in making moral decisions? Bentham argued that we can make moral decisions by considering the amount of pleasure or pain that our actions bring. More specifically, he believed that we can quantify such pleasures and pains along a number of dimensions. Bentham described this process of categorizing and measuring pleasures as the felicity calculus (also sometimes referred to as the “hedonic calculus,”“calculus of pleasures,” or simply the “utilitarian calculus”). To aid our moral decision- making, pleasure can be measured by seven dimensions:

• Intensity of pleasure—how strong is it? • Duration of pleasure—how long does it last? • Certainty of pleasure—how sure are we that it will be experienced? • Proximity of pleasure—how soon will it be experienced? • Fecundity—will the pleasure lead to or produce other pleasures as well? • Purity—how free will the pleasure be from pain? • Extent—how many people are affected?

Bentham suggested that whenever we are contemplating an action, we should analyze its consequences in terms of these seven dimensions of pleasure, contrasting it with alternative courses of action.10 For instance, suppose you are trying to decide whether to stay home and study for a midterm exam tonight or go out with friends. In making your decision, you should consider how intense the pleasures of studying versus going out with friends are, how long those pleasures will last, how certain you are that these respective pleasures will occur, how soon you will experience them, whether they will lead to further instances of happiness, how free from pain either or both will be, and whether they each will bring pleasure to other people as well. Your felicity calculus might look something like Table 8.1 (numbers in parentheses are “hedons” or

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“happiness units” along a ten-point scale with the score of “1” representing very low happiness and the score of “10” representing very high happiness).

Admittedly, the above example is drawn from decision-making in everyday life rather than from moral choice-making; however, the same “calculus” applies to the decisions we make that have ethical implications. To illustrate, if you were considering whether to lie to a friend in order to protect that person’s feelings, to have an abortion in order to not be subjected to parenting as a

BOX 8.3

Hedonism, the “War on Drugs,” and “Noble-Cause” Corruption

Though remaining within the tradition of hedonism, Bentham made some important modifications. In par- ticular, his utilitarianism represents a variation of social hedonism (as distinguished from egoistic hedonism). Social hedonism regards pleasure as the ultimate good, but demands that we consider the pleasures and pains of others in our moral contemplations. In fact, utilitarianism demands that, at times, we place the interests of others above our own if in so doing the result is happiness to a greater number of people. Indeed, the Greatest Happiness Principle demands that our actions bring the greatest amount of pleasure to the greatest number of people. This is the social and altruistic element of utilitarianism, and this is what distinguishes it from the tradition of egoistic hedonism in moral philosophy.

One prominent issue in criminal justice ethics that is an interesting illustration of this difference is police corruption—particularly as it intersects with the “war on drugs.” Indeed, drugs are a significant force in police deviance, with as many as half of all convic- tions in police corruption cases involving drug-related crimes. As we saw in Chapter 5, much corruption in law enforcement, courts, and corrections can be explained through egoism—selfish desires for personal gain. In other cases, however, corruption might be better understood as stemming from socially hedonis- tic incentives; that is, a desire to produce good consequences for others. In their discussion of drug- related police corruption, for instance, Kappeler, Sluder, and Alpert describe four types of corruption that can be linked with drugs:

• Use corruption occurs where police officers use illegal drugs. In one study, as many as 20 percent of officers admitted to smoking marijuana.

• Economic corruption occurs where officers use their power and discretion for personal

monetary gain, such as by keeping drug money confiscated from offenders.

• Police violence may occur in the context of extracting confessions or information from drug suspects.

• Subjugation of a defendant’s rights occurs where police commit perjury or plant drugs on a suspect in the interest of obtaining a confession or getting a conviction.

While the first two of these forms of corruption would seem to be explicable in terms of egoistic hedonism (i.e., self-interested pursuit of pleasure or personal gain), the latter two (use of violence and subjugation of rights) might be linked to what is some- times called noble-cause corruption. Rather than a purely egoistic form of corruption, noble-cause corrup- tion occurs when police officers violate ethical and legal obligations in the interest of achieving the “good” ends of police work. Getting the “bad guys” and protecting communities and potential victims are seen as more important than ethical and procedural restrictions on police conduct. Planting evidence at a crime scene, for instance, may result in the apprehension and conviction of a notorious offender who has avoided criminal prosecution and continues to present a significant danger to the community. While “noble- cause” corruption is by all accounts still unethical and often illegal, would you consider the latter two types of drug-related corruption to be less morally reprehensible than the first two?

Source: Roy Roberg, Kenneth Novak, and Gary Cordner, Police and Society, 3rd ed. (Los Angeles, CA: Roxbury, 2005), pp. 304–305; Victor Kappeler, Richard Sluder, and Geoffrey Alpert, Forces of Deviance: Understanding the Dark Side of Policing, 2nd ed. (Prospect Heights, IL: Waveland, 1998), pp. 166–173.

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teenager, or to take sick leave from work when not sick (a type of “stealing”) in order to have some time off from a stress-filled period in your life, you could apply the same formula. To be clear, however, there are some obvious problems with this approach. One of these problems is that Bentham focused on the quantity of pleasure as opposed to its quality. In the above example, the felicity calculus would have you go out with friends rather than study for your exam. For at least some people, this would seem unsettling. So, what is missing from the formula?

Quality of Pleasure: Quantitative versus Qualitative Hedonism

Bentham’s utilitarianism describes “good” in terms of pleasure and, more specifically, the quantity of pleasure that results from our actions. As we have seen, this is consistent with the doctrine of hedonism—that pleasure and pain are the only things that we can say are intrinsically good and bad, with everything else being in some way dependent on or secondary to pleasure and pain. However, even within the tradition of hedonism, there has been some debate regarding the inter- pretation of happiness and pleasure for purposes of moral decision-making.11 Perhaps the most notable detractor from Bentham’s original formulation of utilitarianism was his disciple, John Stuart Mill (Mill’s father was a friend of Bentham’s and a key figure within his intellectual circle). Though working within the utilitarian tradition established by Bentham, Mill sought to rework

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TABLE 8.1 Bentham and Measuring Pleasure

Studying for the Exam Going Out with Friends

Intensity Not intensely pleasurable; perhaps even more painful than pleasurable (2)

Moderately to very intense, depending upon the specifics of the evening (7)

Duration Potentially long lasting; though studying is short lived, the knowledge you gain will last indefinitely (9)

Short lived; likely lasts only a few hours (2)

Certainty Not very certain that it will be pleasurable; in fact, more certain that it will be painful (3)

Fairly certain that you’ll have a good time (7)

Proximity More than likely, you won’t experience the pleasure until later in life, although doing on the exam could be pleasurable in the near future (4)

Pleasure will be experienced in the very near future (9)

Fecundity There are many additional benefits that come from studying: knowledge, wisdom, better career prospects, income, etc. (9)

Probably will not lead to other pleasures, although you could meet new friends, contacts, learn new things, etc. (2)

Purity Probably not free from pain, unless you really enjoy the subject (2)

Could lead to some pain (e.g., arguments with friends, hangover), but overall probably more pure than not (7)

Extent In the near future, studying probably only benefits you; but it is possible that your knowledge could benefit many other people in the future (4)

May bring pleasure to your friends as well, but mostly affects your happiness (5)

Score 33 39

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what he understood as several problematic dimensions of Bentham’s original formulation. In particular, while Bentham saw pleasure as good and pain as bad, John Stuart Mill argued that there are degrees of goodness associated with different types of pleasures. In other words, we should understand some pleasures as better than others.

Given the formulation of the felicity calculus put forth by Bentham, we could easily conclude that we should go out with friends rather than study for our examination, or that watching reality television is better than pursuing knowledge in the arts and sciences. These sorts of prospects were especially troubling to Mill. In fact, he believed that utilitarianism needed to be reworked in order to demonstrate that certain pleasures (e.g., reading Shakespeare) were more important than, better than, or of a higher quality than other pleasures. As Mill saw it, the problem was that the felicity calculus was purely quantitative in nature, with no regard for qualitative differences in types of pleasures. In turn, Mill claimed that our concern should not be with the quantity of pleasure, but with its quality.12

Mill argued that some kinds of pleasures are of higher quality than other kinds. Thus, “lower” pleasures such as eating, drinking, and sexual activity are qualitatively different from the “higher” pleasures of intellectual, creative, and spiritual activity.13 The pleasure of studying for and doing well on an exam is of a higher quality than that of going out with friends and having a few drinks; the pleasure of reading classic literature is greater than that of reading a sports magazine; and the pleasure of doing volunteer work to help persons in need is of a higher quality than that of going fishing. In cases such as these, Mill argued that there are important differences between types of pleasures, and that these differences are a function of the quality of enjoyment being experienced: “It is quite compatible with the principle of utility to recognize the fact that some kinds of pleasures are more desirable and more valuable than others.”14

As an example, Mill suggested that, “anyone who has experienced the pleasure of solving a mathematical equation will attest to the fact that it is indeed superior in kind to the pleasure of eating an exquisite meal.” Even though the “lower” pleasure of eating an exquisite meal may be more intensely gratifying, the “higher” pleasures tend to be of more benefit in the long run. As most of us have experienced, the pleasure associated with eating a good meal comes and goes in a matter of hours. Even though it may be intensely pleasurable during the time we consume the food, it does not offer any long-term pleasure—and may even produce long-term pain (e.g., overeating, weight gain). “Higher” pleasures—though not always immediately and intensely experienced—are capable of contributing to our continued happiness.

Although Mill accepted the basic principle of hedonism (i.e., that pleasure is the basis of determining what is good), he clearly believed some pleasures were better than others.15 The question then becomes, “By what or whose criteria are we to make such determinations?” For Bentham, pleasure is “measured” in terms of duration, certainty, fecundity, and as forth. However, for Mill “better” pleasures are those that possess a higher quality.16 With quality of pleasure in mind, Mill essentially reformulated the Greatest Happiness Principle from “greatest happiness for the greatest number of people,” to the greatest quantity and quality of happiness for the greatest number of people. The problem with this reformulation is that many people do not know which qualities are desirable and valuable and, thus, are unaware of those qualities that should be taken into consideration in the Greatest Happiness Principle. So, how should qualities of pleasure be judged?

In response, Mill claimed that “Of two pleasures, if there be one to which all or almost all who have an experience of both give a decided preference . . . that is the more desirable pleasure.”17 In determining which types of pleasures are of higher quality, we must rely on the opinions of those who have experienced various types. In other words, establishing the quality of a pleasure requires a judge or an “expert” on the subject. This person can distinguish between them. Thus, for example, we cannot expect a person who has never solved a complex mathematical equation to be able to distinguish the happiness derived from it versus the pleasure experienced

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while watching football. Following Mill’s utilitarian theory, anyone who has experienced both of these types of pleasure clearly should recognize that solving a difficult arithmetic problem produces happiness that exceeds the pleasure experienced from watching football. Of course, many people have no point of reference when it comes to deciphering complicated mathematical equations. As such, they are not in a position to make a distinction between the quality of happi- ness that follows from doing this successfully versus enjoying an athletic event on television. In fact, given the choice, we might suspect that most people would choose the pleasure of watch- ing football. For Mill, this possibility was the source of considerable concern. The “uncultivated cannot be competent judges of cultivation,” he argued, as their preference for “lower” desires and pleasures may lead to the eventual degeneration of entire cultures.

The Problems with Utilitarianism

Bentham’s utilitarianism is intuitively and practically appealing: there is one—and only one— principle to apply in all situations. This simple rule pertains equally to personal and professional scenarios; to love, friendship, and acquaintance relationships; to law, crime, and justice decision- making; and to environmental, economic, and health care policy. In all cases, we are to maximize happiness or pleasure, and/or minimize suffering or pain. What is more, Bentham offered a means of quantifying pleasure and pain such that in any given instance we can calculate and impartially apply our measurements to the issue or situation in question in order to determine what we should do. Additionally, some have argued that utilitarianism is valuable in that it “seems to get at the sub- stance of morality.”18 Following utilitarianism, morality is not simply a formal system of rules and principles, but has a function or end to which it should aim. Ultimately, this end is about promoting happiness and alleviating suffering. Morality, then, is not so much about following rules as it is about helping people and doing what we can to alleviate the misery in the world. Utilitarianism seems to recognize this feature of morality. It asks us to consider the happiness we can cause and the suffering we can reduce by way of our (quantitatively and qualitatively calculated) choices and actions.

However, despite its appeal, utilitarianism is certainly not without its shortcomings. The three most significant criticisms leveled against utilitarianism include: (1) its requirement that we predict the future; (2) its focus on happiness as the only consequence of importance; and (3) its exclusive regard for the consequences of our actions.19

THE PROBLEM OF PREDICTION Utilitarianism has been accused of asking—or requiring—us to do that which we cannot possibly do: know what the consequences of our actions will be.20

Bentham’s felicity calculus requires us to make a prediction about the intensity, duration, extent, and so on of pleasure brought about by certain courses of action. Yet, none of us can ever know the consequences of our actions—especially including the more long-term effects.

Recall the decision to stay at home and study for an exam or go out with friends. Now suppose that in choosing to go out you run into an ex-lover, have a heated argument, go home upset, stay up all night thinking about the encounter, and miss your exam. Conversely, suppose you choose to stay home and study when, had you gone out, you would have met your future husband/wife or would have made an important contact resulting in your career being launched upon your graduation. The point is that there are an infinite number of possible events that could follow whatever choice you make. And while each of these events represents a possibility, none can be predicted with any degree of success. Given all of these possibilities, how can we possibly be expected to make an informed decision?

In response to this difficulty, supporters of utilitarianism distinguish between real conse- quences, expected consequences, and intended consequences.21 Since it is impossible to determine

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what the actual or real consequences of our actions will be, the moral “rightness” of our choices must be based on what we reasonably expect the consequences to be. The best we can do—and that which we should do in any situation—is to use whatever information we have at our disposal to make a choice that any reasonable person would, anticipating that it will result in the best possible (most pleasurable) outcome.22 If our actions fail to produce the expected consequences, perhaps even causing more pain than happiness, we cannot be said to have made a poor choice. So long as we do what a reasonable person would do in light of the expected consequences, we are fulfilling utilitarian requirements. Since we cannot predict the future, we simply need to do what “reason judges to be the best act based on likely consequences.”23

ONLY HAPPINESS? Utilitarianism simplifies morality in that it reduces “good” to happiness or pleasure. However, in doing so, arguably it oversimplifies morality. While most of us would not deny that happiness is intrinsically good and that it is worth pursuing, the more important ques- tion is whether happiness is the only thing that is good in itself, worthy of consideration in our moral decision-making. The notion that happiness is the one ultimate good and the only thing worth considering when faced with ethical choices is problematic on a number of grounds.

Consider the following illustration from James Rachels. Your neighbor insists that he is your friend and so you believe him. However, in actuality he ridicules you behind your back. Not one of the other neighbors discusses this with you, so you believe the person who professes to be your friend.24 By hedonistic standards, this situation is not a concern because you were never caused any unhappiness. However, in evaluating this situation, most of us know or at least feel that something is wrong here. You are led to believe that someone is your friend when, in fact, that person is just using you as a source of humor for himself and others. On utilitarian grounds, the problem is that because you do not know this, you are not caused any unhappiness and, consequently, do not suffer in any way. At the same time, as a good source of humor you unknowingly bring happiness to a group of people. Clearly, because no harm is being caused and a good amount of happiness is taking place, the situation is not a moral predicament, according to utilitarianism. In fact, happiness is produced for everyone involved, and, moreover, “the truth would hurt.”

However, for many people there is something deeply disturbing about the situation as it exists, despite the happiness it brings. What seems to make it disturbing is that we value other things in addition to happiness. We value truth, honesty, and fairness. Moreover, we are generally upset by people who use or exploit others for their own benefit, despite the consider- able pleasure that materializes because of it. Thus, in cases like this, many of us would likely determine that ridiculing a person for the sake of so many people’s happiness is not the morally right decision to make.

ONLY CONSEQUENCES? The most fundamental principle of utilitarianism is that, in making moral decisions, we should attend to what will happen as a result of our doing one thing or the other. While being considerate of the consequences of our actions seems like a good rule of thumb, utilitarianism’s exclusive focus on consequences carries with it several limitations. Suppose, for instance, that we are troubled by overpopulation. We might then define beneficial consequences as those that reduce overpopulation in the world. Any number of questionable actions (e.g., suicide, abortion, euthanasia, murder) might have to be defined as “good” because they bring about the beneficial consequence of reducing the world’s population. Of course, undertaking these sorts of actions would be a problem for most people. However, if we focus only on the consequences of our actions—to the exclusion of other considerations—they must be regarded as good in that they bring about desired consequences (see Box 8.4).

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BOX 8.4

Are We Utilitarians? The Trolley Problem

Utilitarianism is normative theory which provides a framework for what we should do. However, we can also ask a descriptive question about moral decision- making; namely, are we often inclined to make moral decisions on the basis of expected consequences. Several researchers of moral psychology have sought to provide relevant insight into this question. Consider the following classic scenario—referred to as the “trol- ley problem”—initially presented by moral philosopher Philipa Foot:

A trolley is running out of control down a track. In its path are five people who have been tied to the track by a mad philosopher. Fortunately, you could flip a switch, which will lead the trolley down a different track to safety. Unfortunately, there is a single person tied to that track. Should you flip the switch or do nothing?

Most research subjects presented with this dilemma will choose to flip the switch and save five lives at the expense of one—a decision we would be obligated to make by utilitarian principles. Yet consider whether you would respond differently if we were to change one significant detail, as originally posed by Judith Jarvis Thomson:

As before, a trolley is hurtling down a track towards five people. You are on a bridge under which it will pass, and you can stop it by dropping a heavy weight in front of it. As it happens, there is a very fat man next to you—your only way to stop the trolley is to push him over the bridge and onto the track, killing him to save five. Should you proceed?

Fiery Cushman, Liane Young, and Marc Hauser presented just such a dilemma to over 200,000 people representing various religious backgrounds, nationalities, and educational levels. In response to this second variation of the trolley problem, most people are not willing to push the man to his death to save five lives. Why this is the case is a matter of debate. In fact,

when asked to explain why they would pull the switch but not push the man, most people couldn’t provide a reasoned response. Importantly, however, the logic is precisely the same—make a decision which leads to the death of one person but saves the lives of five others. If we are operating under the principle of the “greatest good for the greatest number,” the good of five people clearly outweighs the good of the one. It would seem that we are utilitarians with respect to some things, but not others.

• First, consider what you would do in each of the two scenarios. Would you, like most people, choose to flip the switch? Would you, also like most people, choose not to push the man?

• To add a twist to the dilemma, would your own response change if the one person you would have to sacrifice to save the five lives was a person of importance? The President of the United States? A scientist close to finding a cure for a deadly disease? Your best friend? Your child?

• In general, why do you suppose that people make different decisions when the scenario is changed?

• Joshua Greene suggests that human beings might share an innate revulsion to “hands-on” killing or harming of other people. Do you believe that there is some truth to his conclu- sion? Might such a revulsion help explain why it is easier to pull a trigger than murder someone with bare hands? Might it help explain any of the relationship between homicide rates and handgun availability?

Source: Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect in Virtues and Vices (Oxford: Basil Blackwell, 1978); See Judith Jarvis Thomson, “The Trolley Problem,” Yale Law Journal, 94 (6), 1395–1415 (1985); Judith Jarvis Thomson, “Killing, Letting Die, and the Trolley Problem,” The Monist, 59, 204–217 (April 1976); See, e.g., Joshua Greene, “The secret joke of Kant’s soul.” In W. Sinnott- Armstrong (Ed.), .Moral Psychology, Vol. 3: The Neuroscience of Morality: Emotion, Disease, and Development (Cambridge, MA: MIT Press, 2007).

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Utilitarianism has been criticized for precisely this reason. In addition to utility, what other considerations should be important when determining what actions are morally right? Critics have pointed to several. For example, justice requires that people be treated fairly, according to what they need or deserve.25 If consequences are the only consideration deemed important when making moral decisions, then injustices might be warranted by appealing to their beneficial effects. Additionally, critics of utilitarianism’s consequences-only approach object that it can lead to violations of rights.26

According to utilitarianism, these infractions may be morally permissible if they serve the greater good (see Box 8.5). Again, the example of the neighbor who professes to be your friend when, in fact, he privately ridicules you, undermines your “right” be treated decently and honestly. Finally, a third objection to the idea that only consequences are of moral importance is that the theory does not allow for “backward-looking reasons.”27 Utilitarianism is future directed. It demands that we consider what will happen as opposed to what has happened. The problem with this reasoning is that most of us believe that the past is important, or at least certain types of past actions (e.g., promises we have made) should be regarded as important for purposes of determining what we should do in the present.

BOX 8.5

Ethics, Crime, and the Internet

As technology continues to evolve at a rapid pace, lawmakers and law enforcers are faced with increas- ingly novel challenges. “Computer crime,” “internet crime,” “cybercrime,” and similar terminologies are relatively recent additions to the vocabulary of crime and justice—though they refer to what are by now recurrent themes within media and scholarly accounts of crime and justice. Only within the past decade or so have “crimes” and emerging issues such as child pornography, cyberstalking, cyberbullying, cyber- homicide, and theft of identity and other confidential or private information begun to warrant serious attention from the criminal justice community. As new crimes and new techniques of criminal behavior emerge, new strategies of social control are devised to combat them. Generated within this cycle are a host of issues of moral relevance. Consider the follow- ing, particularly with respect for the interplay of “means and ends,” and the ways in which rights and justice might be balanced with the interests of the community:

• There is much content on the Internet that might be regarded as obscene or offensive to many readers/viewers. In only some cases is such material illegal. What are the moral implications of allowing the following to be accessible by choice: hate speech; politically radical speech; pornographic images? To what extent should

people have the freedom to express their views online, when those views are potentially inflam- matory? In some cases, people are exposed to offensive materials, not by choice, but by accident or malicious intent on the part of the author. Generally, should the rights of persons to express their “speech” and “art” take priority over the potential harm caused to the public?

• Online predators are those who utilize the Internet (e.g., chat rooms, e-mail, message boards) to exploit children for sexual purposes. Some parents have turned to utilizing software to track where their children go and to what they are exposed on the Internet. Is there any sense in which such parental behavior could be regarded as a violation of the privacy interests of children? If so, are these justifiable violations? To what extent do parents have a right or responsibility to track the online behavior of their children?

• A number of organizations have emerged with the goal of combating online predators. Perverted Justice, for example, is a vigilante organization (featured on the television program, To Catch a Predator) that lures online predators from chat rooms to the homes of underage children for what they believe will be sexual encounters. In less than a decade, Perverted Justice claims to have helped police capture hundreds of potential child sex offenders. Specifically, adult volunteers pose

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as children in chat rooms and wait for messages from adults with explicit or implied sexual content. Striking up a relationship, the volunteer eventually sets up an in-person meeting where law enforce- ment officers will be waiting to make an arrest. Ethically speaking, a number of critical issues are raised, including:

• Is it morally permissible for volunteers to pose as children, or do such deceptive techniques raise moral red flags?

• The approach of these organizations is preventive, meaning they act to intervene before any actual (in-person) illegal contact occurs between the adult and the child. Is it morally permissible to take action in such cases under the assumption that a crime would have been committed?

• Is there any sense in which organizations such as Perverted Justice invade the privacy inter- ests of adults, particularly when they have yet to be convicted of any crime?

• Is it morally permissible for spouses and family members to be called and/or information posted for public consumption labeling that adult a “predator” or “pedophile” (again prior to any conviction)?

• What other ethical issues are raised by such vigilante efforts?

Source: Yvonne Jewkes, Crime Online (Cullompton: Willan, 2006); Matthew Williams, Virtually Criminal (New York: Routledge, 2006); Janis Wolak, David Finkelhor, Kimberly J. Mitchell, and Michele L. Ybarra, “Online Predators and Their Victims: Myths, Realities, and Implications for Prevention and Treatment,” American Psychologist, 63 (2), 111–128 (2008).

CONSEQUENTIALISM AND THE CRIMINAL JUSTICE SYSTEM: MEANS AND ENDS IN POLICING

All varieties of consequentialist ethics ultimately raise questions about the relationship between ends and the means used to achieve those ends. As we have seen, consequentialism holds ends to be more important than means, such that actions that might otherwise be considered immoral (e.g., lying) become moral so long as they serve to bring about good ends. In the next chapter, we will see that varieties of deontological ethics generally hold means to be the more important moral consideration, such that immoral or illegal means are never justifiable—even if they lead to morally good or desirable outcomes.

This tension between means and ends is one that criminal justice practitioners are forced to confront and work within on an everyday basis. In the context of criminal justice practice, this tension is perhaps best summarized by Carl Klockars’ question, “When and to what extent does the morally good end warrant or justify an ethically, politically, or legally dangerous means for its achievement?”28 In other words, can the “good” ends of police work ever justify the use of morally questionable means to achieve them? If so, when and under what circumstances are we willing to accept or at least overlook immoral or illegal law enforcement practices? To illustrate this tension as it applies to criminal justice work, we focus on two important—and interrelated—ethical controversies in policing, linking them to ethical utilitarianism as discussed earlier in the chapter.

The Dirty Harry Problem

The “Dirty Harry” problem is titled after a series of films in which the protagonist “Dirty” Harry Callahan (played by Clint Eastwood) employs a variety of questionable and sometimes outright objec- tionable means to “get the bad guy.” Callahan’s techniques involve everything from illegal stops and searches, to intimidation and coercion, to the use of torture to obtain the whereabouts of a kidnapped girl. As the hero, Callahan’s methods are presented as justifiable—“dirty” but necessary methods of getting the job done in a society plagued by dangerous criminals who prey on innocent victims.

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Outside of popular film, “dirty” methods are regularly practiced and assume a number of forms in everyday police interactions. Nearly any legally or morally questionable police practice undertaken to achieve the “good” end of preventing or controlling crime can be made to fit the moral dilemma raised by the Dirty Harry Problem. For our purposes, the Dirty Harry Problem can be outlined as follows:

• A police officer is in a situation in which a morally good or desirable outcome may be accomplished.

• The officer believes that the only way (or, at least, the most certain way) to accomplish this end is through the use of techniques that would otherwise be considered morally ques- tionable or even illegal (e.g., falsifying probable cause to make a stop, manufacturing a false arrest to justify an illegal search, using deceptive interviewing and interrogation techniques).

• The officer believes that the good brought about by accomplishing the desirable outcome outweighs the evil done through the use of immoral or illegal techniques.

The moral dilemma of this scenario is contained in the third statement above; namely, can good ends ever justify immoral or illegal means? According to utilitarian varieties of ethics, the answer to this question may be affirmative. Of course, as Carl Klockars points out, there are other considerations:

• How certain is the good outcome? As critics of consequentialism suggest, we cannot predict the future and thus can never be certain of any outcome. When a police officer is in a situation in which she or he believes that a desirable outcome may be accomplished, the officer is necessarily dealing only with probabilities. With this in mind, how certain must one be that the outcome will be accomplished in order to justify the use of dirty means? If an officer believes that there is a 10 percent chance that a suspect knows the whereabouts of a kidnapped victim, does this justify the use of intimidation, coercion, force, and even torture to try to extract that information? What if the officer is 50 percent certain? 99 percent certain?

• Are dirty means necessary? How certain are we that dirty means are the only—or only reasonable—method of achieving the good end? If dirty means are simply the easiest or most convenient means of accomplishing the end, this may dramatically change the extent to which they are justifiable. How certain is the officer that she or he has considered all alternatives and all possible nondirty means?

• Because the consequences of our actions are unpredictable, the question is not only whether a given action will bring about the desired end but also whether that action might bring about other, unintended or undesirable outcomes. In other words, what if the use of dirty means accomplishes the good end, but at the same time has the effect of causing other harms that were not predicted? While the good of the end might outweigh the evil of the means, can the good of the end outweigh the evil of the means and the additional evil consequences that are brought about by the means?

Deceptive Interrogation

Deceptive interrogation strategies present intriguing ethical questions. While brutal or otherwise physically coercive means are no longer commonly used by police officers to obtain confessions, officers regularly use deception as an interrogation strategy. Jerome Skolnick and Richard Leo suggest that “psychological persuasion and manipulation” are “the most salient

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and defining features of contemporary police interrogation,” as officers are “instructed to, are authorized to—and do—trick, lie, and cajole to elicit so-called ‘voluntary’ confessions.”29

The ethical question is on what, if any, moral grounds the use of deception as an interrogation strategy is justifiable.

Skolnick and Leo offer a typology of interrogatory deception which is worth briefly reviewing as we consider the ethics of ends and means. As you read through each type of deception, consider whether it is a justifiable means of reaching the desired end.

• “Interview” versus “interrogate.” By telling a suspect that she or he is free to leave at any time and having her or him acknowledge the voluntariness of the encounter, police can sidestep Miranda requirements that would apply to a suspect taken into custody. An interrogation becomes, for legal purposes, a noncustodial interview.

• Miranda warnings. Police cannot deceive a suspect into waiving her or his Miranda rights, although some officers consciously recite the warnings in such as way (e.g., as if they are merely a bureaucratic ritual) as to increase the likelihood of obtaining a waiver.

• Misrepresenting the nature or seriousness of the offense. This particular strategy comes in several varieties. For instance, police may tell a suspect that a murder victim is still alive, hoping she or he will then openly talk about her or his role in the lesser offense (e.g., assault); exaggerate the seriousness of the offense, hoping the suspect will then admit to a lesser role in the offense to “save” herself or himself; or suggest to a suspect that they are interested in her or his role in one crime, when they are in fact investigating another (e.g., suggest that they are interrogating a suspect for possession of stolen property when, in fact, they are hoping the suspect will admit to participating in a robbery which involved a homicide).

• Role-playing: Manipulative appeals to conscience. Interrogators may project sympathy, compassion, and understanding to “play the role” of the suspect’s friend, brother or father figure, or therapeutic/religious counselor to elicit a confession. Doing so may produce an “illusion of intimacy between the suspect and the officer while downplaying the adversarial aspects of interrogation.”

• Misrepresenting the moral seriousness of the offense. This common strategy involves an officer offering excuses or justifications for the offender’s conduct by providing an “external attri- bution of blame that will allow [the suspect] to save face while confessing.” The officer may, for instance, suggest to a rape suspect that the victim was “asking for it” or is somehow responsible for the incident. Doing so displaces moral guilt, encouraging the suspect to think of herself or himself as justified or less morally responsible for the offense.

• The use of promises. While officers cannot legally make direct and specific promises of leniency, they can make vague and indefinite promises. Officers may suggest to a suspect that they will “inform the court of [her or his] cooperation,” that showing remorse will be a mitigating factor, or that they will do whatever they can to aid the suspect if she or he confesses. In each case, officers are creating implicit expectations of leniency that will not be met.

• Fabricated evidence. This strategy involves confronting a suspect with false evidence of guilt through one of several deceptive techniques: (1) falsely informing a suspect that an accomplice has identified her or him; (2) falsely state that physical evidence (e.g., blood, fingerprints) exists that confirms her or his guilt; (3) falsely suggest that a victim or eyewitness has identified the suspect; (4) staging a lineup in which a false witness identifies the suspect; or (5) have the suspect take a lie detector test and suggest that its results confirm her or his guilt.

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The various types of deceptive interrogation outlined by Skolnick and Leo are morally problematic in that they involve the intentional use of deception or dishonesty to accomplish the aim of a confession (or the revealing of other desired information). As you may have realized, many—if not all—of these strategies could be legitimized or justified on utilitarian grounds. In each case, the use of deceptive means may allow law enforcement officers to accomplish the “good” end of a confession or the obtaining of information that may lead to solving a crime. The larger question, however, is whether deception, deceit, and dishonesty are ever justifiable on moral grounds—despite the “goodness” of the outcome they may produce. As you read through the next chapter on deontological ethics, consider how the moral legitimacy of these practices might be more questionable when approached from an alternative ethical perspective.

Summary

This chapter examined the normative theory of con- sequentialism, especially as a basis or a set of “tools” for engaging in ethical choices and moral actions. Our focus was on utilitarianism, which suggests that what matters morally are the consequences for everyone affected by our actions. Although utilitarianism offers considerable insight into how to make choices and undertake actions that are moral—including decisions within criminal justice—it is not without

significant and varied limitations. Although utilitari- anism has many supporters (and may be the “default” moral framework in everyday life), we need to critically examine at least two other forms of norma- tive theory. In the next chapter, we explore how duties, rights, and obligations represent another normative basis for ethical reasoning, decision-making, and behavior, mindful of several ethical problems posed in the realm of crime, law, and justice.

Key Terms and Concepts

consequentialism 145 deceptive interrogation 160 Dirty Harry Problem 160 felicity calculus 151 hedonism 151

noble-cause corruption 152 plea bargain 149 Principle of Utility

(Greatest Happiness Principle) 147

psychological hedonism 151 social hedonism 152 utilitarianism 146

Discussion Questions

1. Suppose that a person regularly watches another person undress by peeping through a small hole in an adjoining wall. Suppose further that the voyeur has planted a small camera in a second hole with which photographs to be taken. Address this scenario using a utilitarian approach to moral decision-making.

2. A police officer close to retirement is training a rookie cop. Their shift is over and they are returning to the precinct. Suddenly, they spot several teenagers smoking marijuana. Relying on utilitarianism, explain how the

officers’ choice not to pursue the matter is (or is not) consistent with moral principles.

3. An overworked and underpaid public defender is assigned to represent a prostitute who has no prior arrests and “works” to support a drug habit. What arguments from consequentialism might the attorney utilize when discussing this case with the assistant district attorney prosecuting the matter? Would these arguments change if the prostitute had been previously arrested and/or convicted? Explain your response.

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4. A successful Fortune five hundred company manufac- tures tires. In an effort to make the tires more affordable for and more readily available to the general public, several modifications to the tires are proposed by the marketing division of the company. The automotive engineering division objects, arguing that the changes will likely produce an increase in accidents and fatalities. The proposed changes are approved by the company’s corporate board of directors. An increase in accidents and fatalities occurs. Explain how this decision is ethical based on insights from consequentialism.

5. To illustrate Mill’s concern with the uncultivated making poor decisions, consider the following example. Your state government determines that it has a budget surplus of $5 billion that it must spend before

the end of the fiscal year. So, the legislature puts the following to a popular vote: ALL citizens currently residing in the state are entitled to either (1) a free college education; or (2) a free lifetime supply of beer. Because the “uncultivated” among you may not be able to distinguish between the “lower” good of free beer and the “higher” good of free education, do you believe that the majority of citizens would choose the beer? In what, if any, ways might decisions such as this lead to the eventual decline of the cultural and intellectual life of your state? Mill argued that we should imple- ment a requirement that people be “competent” judges, familiar with differences, before they could vote. Do you agree? If so, how should we determine who is competent or who is not?

Endnotes

1. Brewer v. Williams, 430 U.S. 387 (1977); Phillip Johnson, “Return of the ‘Christian Burial Speech’ Case,” Emory Law Journal, 32, 349–381 (1983); see also Ronald Standler, ‘“Christian Burial Speech’ in Brewer v. Williams,” (2010). Available at http://www. rbs2.com/cbs.pdf (retrieved August 9, 2011).

2. S. Jack Odell, On Consequentialist Ethics (Belmont, CA: Wadsworth, 2003).

3. Ibid., p. 1. 4. Ibid., p. 91. 5. James Rachels, The Elements of Moral Philosophy

(New York: McGraw-Hill, 1986), p. 80. 6. Ibid., pp. 80–81. 7. John Stuart Mill, Utilitarianism (Indianapolis, IN:

Hackett, 2002), quoted in James Rachels, The Elements of Moral Philosophy (New York: McGraw- Hill, 2002), p. 90.

8. Ibid. 9. Ibid.

10. Donald Palmer, Does the Center Hold? An Introduction to Western Philosophy, 2nd ed. (Mountain View, CA: Mayfield, 1996), p. 256.

11. Michael Flocker, The Hedonism Handbook: Mastering the Lost Arts of Leisure and Pleasure (Cambridge, MA: De Capo Press, 2005).

12. Palmer, Does the Center Hold? pp. 257–258. 13. Ibid., pp. 258–261. 14. Quoted in Ibid., p.259. 15. Ibid., p. 261. 16. Ibid. 17. Ibid. 18. Louis Pojman, Life and Death: Grappling with the

Moral Dilemmas of Our Time, 2nd ed. (Belmont, CA: Wadsworth, 2000).

19. Rachels, The Elements of Moral Philosophy, pp. 91–97.

20. Pojman, Life and Death, pp. 40–41. 21. Ibid., p. 40. 22. Ibid., p. 41. 23. Ibid. 24. Rachels, The Elements of Moral Philosophy, p. 92. 25. Ibid., 94. 26. Ibid. 27. Ibid. 28. Carl Klockars, “The Dirty Harry Problem,” The

Annals of the American Academy of Political and Social Science, 452, 33–47 (1980).

29. Jerome Skolnick and Richard Leo, “The Ethics of Deceptive Interrogation,” Criminal Justice Ethics, 11(1), 3–12 (1992).

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9 Respecting Persons, Respecting

Rights: The Ethics of Duty

Suppose that you are sitting on your front porch one afternoon when a woman suddenly runs past you, dives behind some bushes, and quietly hides herself from view. After a moment, you approach the woman and ask her what she is doing. She proceeds to tell you that someone is trying to kill her and asks if you would please leave so she can remain hidden. After a moment, you return to the front porch and make yourself comfortable again. A couple of minutes later, a man approaches with a knife in his hand and asks if you have seen a young woman run by this way. Assuming on her word that the man probably intends to kill the young woman, should you lie to him or tell him the truth?1

In response to the dilemma of the “Inquiring Murderer,” most people have little difficulty concluding that lying to the man is the best course of action. Informing the man as to the whereabouts of the woman may well result in him taking her life, whereas if we are dishonest, he may continue searching unsuccessfully and the woman will live. In other words, we should lie because doing so is likely to produce the best outcome for all but perhaps the inquiring murderer. Indeed, approaches to ethical decision-making such as those explored in the last chapter would almost certainly have us violate the moral prohibition against dishonesty in these kinds of situations. However, it could be argued that the focus on consequences proposed by frameworks such as utilitarianism tends to devalue, if not altogether ignore, features of morality that we cannot justifiably disregard simply for the sake of generating some desirable result. Indeed, by appealing exclusively to beneficial effects, consequentialist variations of ethics would often justify violating moral concerns for duty, rights, obligations, and justice that some would prioritize over matters of self-interest, social welfare, or general happiness.

In this chapter, we will examine several approaches to ethics that place diminished importance on consequences, arguing instead that the decisions we make and the actions we undertake should be informed by relevant moral duties. Ethical theories of this sort are called deontological (Greek deon = “duty”). In holding good outcomes to be largely irrelevant moral concerns, deontological ethics shifts attention away from the effects of our actions, placing the focus squarely on the actions themselves. As such, the question to examine is not what consequences might result from those actions, but whether a given action conforms to relevant moral duties, such as those prohibiting lying, killing, and dishonesty. Over the course of this

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chapter, three schools of thought consistent with the deontological tradition will be featured. These include the following:

• Kantian Ethics—what matters morally is whether our actions conform to relevant duties and absolute moral laws (i.e., those that cannot be violated).

• Prima Facie Duties—what matters morally is whether our actions conform to relevant duties and moral laws, though these duties can sometimes be overridden by other duties that are more significant in a given situation.

• Rights-Based Ethics—there exist certain basic moral guarantees that all ethical subjects enjoy and which should not, under any circumstances, be violated.

KANTIAN ETHICS

For most people, the case of the “Inquiring Murderer” which opened the chapter is one in which a typically immoral act such as lying might be permissible in light of its overall results. Yet there is another angle from which to contemplate that same dilemma. Immanuel Kant (1724–1804), widely considered one of the most important philosophers in the history of Western civilization, asks us to consider that morality is grounded in absolute moral rules. Kant argues that there exist moral rules that we must adhere to under all circumstances—rules that must be followed—no matter what consequences may befall an individual, a group, a social institution, and/or society more generally. One such moral rule is the prohibition against lying. For Kant, lying is morally forbidden under any and all circumstances, including those from which “good” consequences might result. Even in extreme cases such as that of the “Inquiring Murderer,” we are still morally obligated to be honest. Even if lying to the inquiring murderer leads to the death of the young woman, we can still be said to have done the morally “right” thing (more on this in a moment). Kant rejected outright the notion that consequences should be an appropriate measure of right and wrong. Instead, acts are only considered right when they are performed in accordance with duty (e.g., the moral duty not to lie).

Hypothetical and Categorical Imperatives

To get a better sense of Kant’s moral philosophy, we can begin by distinguishing between what he termed, “hypothetical imperatives,” and what he termed, “categorical imperatives.”2 An imperative is a command. More specifically, it is a command that we perform or not perform some action. Various forms of “oughts” are imperatives that govern much of what we do in all areas of our daily lives. For instance, if we claim that we ought to study or that we ought not to lie, we are making use of imperatives. However, the imperative that we “ought to study” is in an important respect different from the contention that we “ought not to lie.”

By stating that we ought to study we are really saying that we ought to study if we wish to bring about some desired consequence. In other words, if Joe wishes to receive an “A” in geometry, he “ought” to study. Similarly, if Jane wishes to make the basketball team, she “ought” to practice this summer. In both illustrations, we are claiming that we ought to do this or that if (and only if) we wish to achieve some end.3

Much of our everyday conduct is informed by precisely these ways of “if-then” thinking. We realize that in order to get what we want there are certain courses of action we should follow. Consequently, we conclude that we ought to follow that course of action in order to reach one or another desired state of affairs. The types of imperatives at issue here are what Kant called hypothetical or conditional imperatives.

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A hypothetical imperative is a command that we ought to follow if we have certain desires that we wish to achieve or realize.4 If Joe did not care about getting an “A” in geometry or if Jane did not care about making the basketball team, they would have no reason to abide by those respective commands or imperatives. Hypothetical imperatives, then, have no binding moral force. To avoid adhering to them, all we need to do is renounce the wish or desire that they are intended to produce.5 Thus, escaping the force of hypothetical imperatives—“getting out of” the obligations they entail—is as simple as foregoing our desire for certain consequences.

Moral obligations, however, are not conditioned by or dependent on any particular desire or the realization of any particular outcome. For Kant, moral obligations are categorical. Categorical imperatives are absolute commands that we ought to follow, period!6 A conditional imperative might consist of the moral principle that we ought to respect others if we want them to respect us. However, a categorical imperative would indicate that we ought to respect others regardless of what we want or desire from them, including their respect. For Kant, categorical imperatives are the basis of morality. We have certain moral duties and obligations that we cannot avoid or escape even when abandoning our wants or desires, and that must be followed irrespective of the consequences they bring about for us or for others. Categorical imperatives are thus more difficult for and demanding of us than conditional duties.

Maxims and Universal Laws

From where do these duties or commands come? Kant suggested that categorical “oughts” are a product of human reason alone. As he argued, they are derived from a single principle that every rational human being must accept.7 Once we understand this basic principle, we have a formula or procedure by which we can infer a number of more specific moral oughts. Since all categorical oughts are derived from this one basic principle, our obligation to abide by them should be clear to any sensible person. While there are several variations to or formulations of this principle, Kant suggested that they are all similar in nature. He termed this principle the Categorical Imperative. In its first formulation, the Categorical Imperative can be stated as follows:

Act only according to that maxim by which you can at the same time will that it should become a universal law.8

Through the Categorical Imperative, Kant effectively proposed a procedure that we should use when determining whether any given act is morally permissible or morally right. When contemplating a given action, we should first ask ourselves what maxim we would be following in so doing. By maxim, Kant simply was referring to a moral rule—whatever rule we would be adhering to is the maxim of the act.9 For instance, if we determine that we should lie to our best friend in order to avoid hurting that person’s feelings, the maxim we would be following is: “We should lie to our friends whenever telling the truth stands to hurt another’s feelings.” Once we figure out the rule or maxim we are adopting, the next step is to ask ourselves whether we would be willing to make it a universal law. By universal law, Kant meant a rule that would be followed by everyone, all of the time. Thus, in the above example, we would need to ask ourselves whether we would want all people, all of the time, to lie to their friends whenever telling the truth would hurt their feelings. If we answer “yes” to this question, then the act is morally right or permissible. If we answer “no”—that we would not be willing to have everyone follow this principle on all occasions—we must conclude that the maxim is not a universal law and, as such, is not morally permissible.

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All moral principles that we could wish to become universal laws are categorically imperative—they are principles that we must, in all situations, follow irrespective of our desires or the consequences that may issue forth from them. At the same time, all such principles that we could not wish to become universal laws are those that we ought not to adopt, again regardless of our desires or the potential consequences. Kant’s most notable examples on this subject include borrowing money and charity.

BORROWING MONEY Suppose you need to borrow money. Further, suppose you know that no one will lend it to you unless you promise to repay it. Finally, assume that you know that there is no way you will ever be able to repay the loan. Given this, the question becomes whether you should promise to repay the money, knowing full well that you will never be able to do so, in order to persuade someone to financially assist you. The maxim of the act would be as follows: When a person needs a loan, one should promise to repay that loan even though the person knows he or she will not be able to do so. Can we say that this maxim becomes a universal law? Kant indicates that the answer is “no.” His reasoning is as follows: If everyone who needed a loan promised to repay it, despite knowing that they could not, then no lenders would believe any such promises and no borrowers would ever be granted the money.10 Obviously, this would be self-defeating—the entire practice of loan making would be jeopardized if not altogether undone.11 Consequently, we cannot will that this maxim should become a universal law and, moreover, we are categorically bound to abide by the moral principle that we should not make promises that we know we can never keep.

CHARITY Suppose that Scott refuses to help people who are in need, claiming that its not any concern of his. In Kant’s words, “What concern is it of mine? Let each one be as happy as heaven wills, or as he can make himself . . . to his welfare or to his assistance in time of need I have no desire to contribute.”12 Can Scott will that this maxim—that we should not concern ourselves with others who are in need—become a universal law? Again, Kant says “no.” Such a maxim would contradict itself because there may be future cases in which one “would need the love and sympathy of others, and in which he would have robbed himself . . . of all hope of the aid he desires.”13 In other words, because we, at some point in the future, may ourselves be in need, we clearly cannot will a maxim by which we do not assist others in distress to become a universal law.

Moral Duties and Absolute Rules

According to Kant, then, ethics is about following absolute moral rules, derived from the Categorical Imperative. These imperatives are universal in that they must be followed by all persons, all of the time. Strictly adhering to these rules—applying them without exception in all situations—is our duty as rational, moral human beings. Duties are things we must do (positive duties)—or must not do (negative duties)—no matter how we feel, how we or others might be affected, and no matter the peculiarities of the situation in which we find ourselves. In short, duties are obligations that must be fulfilled.

While we have numerous specific moral duties, each of them is derived from the general moral principle of the Categorical Imperative. One of Kant’s most notable examples of a specific duty is not to lie. As he suggested, lying could not be a universal law and, thus, would not pass the test of the Categorical Imperative. Lying would be self-defeating in that if we fail to tell the truth, we must be willing to wish that all other people do so as well. If this were the case, we would all soon enough stop believing what other people said. If none of us could trust what others said, social living would be exceedingly difficult.14

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Recall the “Case of the Inquiring Murderer” discussed at the beginning of this chapter. Kant held that even in a situation where undesirable consequences plainly might result (e.g., the death of another person), we were morally bound to uphold our duty—we were still obligated to abide by the universal law not to lie. The problem for Kant is that he supposed that by telling the inquiring murderer the truth, we endorsed a universal law that prohibits lying. However, there are other potential interpretations or formulations of this general law that might be applicable in this case.

For instance, suppose that by lying the moral rule we followed was not that it is permissible to do so but, rather, that it is acceptable only when doing so saves someone’s life.15 Many of us probably would be willing to have this latter formulation become a universal law. Thus, when put to the test of the Categorical Imperative, the potential universal law that “it is permissible to lie when doing so saves the life of another” seems defensible and justifiable. This action would rescue or salvage lives and, more than likely, would not result in a situation in which none of us believed anything anyone else said. Because circumstances in which people lie in order to save another person’s life would be extremely rare, especially in the context of our everyday realities, we would have no reason to cease trusting the word of other people.

Changing the maxim on lying as delineated above represents a basic problem with Kant’s ethical approach on the whole; namely, “for any action a person might contem- plate, it is possible to specify more than one rule that he or she would be following.”16

Anytime we posit certain moral rules or laws as absolutes, we can “get around any such rule by describing our action in such a way that it does not fall under that rule but instead comes under a different one.”17

Exceptions and Consequences

In his own analysis of the Case of the Inquiring Murderer, Kant suggests that:

. . . whoever tells a lie, however well intentioned he might be, must answer for the consequences, however unforeseeable they were, and pay the penalty for them.18

Suppose that you lied to the inquiring murderer, believing that doing so would save the woman’s life. Not knowing that the woman is hiding in the bushes, the would-be murderer proceeds to continue about his search, leaving your porch step and making his way around the back of your house. In the meantime, however, the woman has decided to find a more secure place in which to hide. She has quietly removed herself from the bushes, called the police, and sought shelter in a storage shed in your backyard. Unfortunately, the storage shed is the next place the inquiring murderer looks. He finds her in hiding and, before the police can arrive to apprehend him, kills her. At least to some degree, Kant would argue, you were responsible for the woman’s death. In lying to the potential murderer, you encouraged him to search elsewhere, which eventually led him to locate her and, in so doing, to take her life. Of course, you could not have known that this would happen, but this is precisely Kant’s point. Had you told the truth, it is possible that the man would have wasted time searching in the bushes, thus giving the police time to get to the scene and thereby preventing the woman from being murdered. On the other hand, she might still have been hiding in the bushes and your honesty would have led him directly to her, resulting in the woman’s untimely death.

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But these various conditions help to make Kant’s argument even simpler: “We can never be certain what the consequences of our actions will be.”19 Though we may often consider lying, cheating, stealing, and so forth in order to prevent evil or bring about good consequences, we can never know exactly what the results of our actions will be. This is a considerable problem for all approaches to morality that emphasize consequences—consequences require us to predict the future, something which cannot always be done by any of us with a sufficient degree of accuracy (recall the limitation of utilitarianism on this point as discussed in Chapter 8). Even if we are motivated to lie (or to tell the truth) in order to bring about good (e.g., preventing a murder), we can never be certain that our actions will, in fact, bring about that good. It is at least possible that the results of our action would be much worse than those that would have resulted had we told the truth.

In the Case of the Inquiring Murderer, there are several important considerations that might factor into our decision about whether we should lie:

• In telling the truth, we are avoiding a known evil (lying), which might: 1. bring about good consequences (preventing a murder), or 2. bring about evil consequences (causing a murder by leading the assailant to his victim)

• In lying, we are committing a known evil (lying), which might: 1. bring about good consequences (preventing a murder), or 2. bring about evil consequences (accidentally causing a murder)

Though we can never be certain what the consequences of our actions will be, we can be certain that lying would be committing an evil, and that telling the truth would be avoiding an evil. Whether good or bad consequences follow is largely beyond our control. What is in our control is whether we intentionally commit an act that we know to be an evil. Kant argues that in every situation, the best policy is to “avoid the known evil . . . and let the consequences come as they will.”20

On the chance that bad consequences arise from our telling the truth, they are not our fault. We have abided by the moral law not to lie, and this is as much as we can do.21 So long as we have done our duty we cannot control the consequences nor should we be held accountable for them (see Box 9.1).

Respect for Persons

Kant also offered us a second variation of the Categorical Imperative. This alternative formulation has slightly different but equally important implications:

Act so as to treat humanity, whether in your own person or that of any other, as an end and never as a means only.22

This version of the Categorical Imperative entails a key component of Kant’s moral philosophy—and arguably a key feature of any moral philosophy. In brief, Kant argued that all human beings have intrinsic worth or dignity.23 Because of this, we have a moral imperative to treat all human beings with respect—to affirm, through the way we treat others, the inherent dignity of every person. This imperative or absolute exceeds any self-interested gain or loss we might experience as a consequence of so doing. Moreover, it transcends any personal feelings we might have or might not have for individuals. The very basis of morality, then, is to demonstrate—through our intentions and actions—a respect for the inherent value or worth of others.

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More specifically, Kant presented this ultimate law of morality as an imperative to never treat others “as a means only.” In other words, we should never “use” others purely as a means to some end—whatever the end is or its importance might be.24 For instance, some of us may have friends who we do not truly respect as human beings; however, we are willing to spend time with them in order to benefit from something they possess or could get for us. Maybe we date someone because the person has money; maybe we invite someone out with a group of our friends because the individual has physical qualities that attract members of the opposite (or same) sex; maybe we associate with a co-worker because the person’s parents are season ticket holders to the football games played by our city’s professional team.

In each hypothetical case, we are using someone because of what that person can do for us. Missing in these interactions is any genuine regard for the individual’s inherent worth as a human being. Kant reminds us that in none of these cases would we be acting morally. Of course, this does not mean that we can never benefit in various ways from others. Instead, it is simply to say that our treatment of others—whether they are friends, stockbrokers, convicted criminals, or the clerk at the checkout counter from the local convenience store—should reflect a genuine respect for that person’s inherent and ever-present importance as a human being.

BOX 9.1

Policing and the Duty to Tell the Truth

You are a police officer called to testify at a murder trial. Through your investigation of the case, you and your partner collected enough physical evidence to ensure a conviction, including the murder weapon with the defendant’s fingerprints, an audiotape of the defendant confessing the crime to a cellmate, and a videotape showing the defendant entering the victim’s apartment building shortly before the time of the offense. However, you also know that the murder weapon was obtained through an unconstitutional search of the defendant’s place of residence, and that the audiotape was acquired in such a way that, if truth be told, it would likely not be admitted at trial as legally obtained evidence. Upon taking the stand, you are directly ques- tioned concerning the constitutionality of the search and the acquisition of the tape.

Kantian ethics would ask that you consider the following: (1) if you lie, this will likely (but not certainly) result in the conviction of a known killer; (2) if you tell the truth, this will likely (but not certainly) result in the case against a known killer being dismissed for lack of evidence. Importantly, Kant’s deontology would remind you that there are other potential consequences that you cannot possibly predict as well. Suppose that having lied, the truth comes out through some other means—either

during the trial or sometime thereafter. If this happens, not only will a known killer be found not guilty (or released on appeal), but you and your partner will likely be brought up for disciplinary action and reprimand, face criminal prosecution, and/or lose your jobs. More- over, the case would bring national media attention, making you, your partner, your department, the chief of police, and your entire city look bad in the eyes of the public. Though it is likely that the criminal trial will be dismissed for lack of evidence if you tell the truth, it is also possible that the defendant may be found guilty anyway—perhaps he unwittingly confesses at trial, or there is additional testimony from witnesses, friends of the defendant, and so on, of which you are unaware. Even if the case were to be dismissed, perhaps new evidence would emerge sometime in the near future and the defendant would then be convicted legitimately.

Whatever the consequences of lying or telling the truth might be, Kant reminds us that we cannot ever know for sure. The best we can do is to pursue our moral duty and let the consequences come as they may. In this instance, our moral duty is to tell the truth. If the criminal case against the murderer is dismissed because evidence is lacking, this is certainly not your fault—no one can blame you for abiding by your moral duty to tell the truth.

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By “ever-present,” we mean that dignity is not something that people must earn or that people will lose through their actions; rather, it is something that each of us possesses by virtue of being human. This sense of worth and respect endures so long as we are alive. In many cases, it remains long past our time on this earth.

What, more specifically, does this innate respect for and call to value others mean, especially in terms of our treatment of them? According to James Rachels,

we have a strict duty of beneficence toward other persons: we must strive to promote their welfare; we must respect their rights, avoid harming them, and generally ‘endeavor, so far as we can, to further the ends of others.’25

Given the above observations, there is yet another implication embedded in the second formulation of the Categorical Imperative. Kant believed that the inherent worth of human beings stems from their nature as rational creatures—as “free agents capable of making their own decisions, setting their own goals, and guiding their conduct by reason.”26 As such, treating people as “ends” requires that we respect their rationality. In part, this clearly entails assigning value to the capacity of others to make free, autonomous choices about their own welfare through the exercise of their reason. As Kant insisted, we should never select courses of action for others or influence their choices through manipulation, deceit, or trickery. Manipulating people or otherwise using people to satisfy our own needs or to achieve our own goals—no matter how significant or valuable those needs and goals might be—fails to respect the rationality of others and, consequently, fails to conform with the moral imperative to always treat others as ends. By treating people as “things,” we are regarding them as beings without the capacity for reason and autonomy. Reason is what differentiates human beings from other “things” in the world. Thus, following Kant, our moral duty is to respect that difference.27

Returning to the example of pursuing a loan, Kant asks us to consider the following: If we were to ask for the money, promising to repay it even though we knew we could not, we would be manipulating someone for purposes of getting financial assistance (i.e., using the lender as a means or as a way to achieve our own ends). On the other hand, if we told the truth—that we needed money but would not be in a position to repay it—the lender would be in a better position to assess whether to grant the loan or not. In short, by being truthful we allow the lender to utilize his or her own capacity for reasoning and autonomous decision-making as this person endeavors to determine whether financial assistance in our case is warranted. In doing so, even though we would still be relying on that individual as a means to get money, we would be respecting that person’s rationality and, thus, dignity in the process.28

To be clear, Kant did not claim that we could never use people as a means; instead, he argued that we should not use them this way exclusively. To illustrate, we cannot avoid “using” our stockbroker as a means to purchase stock (or to make money); we cannot avoid “using” the waitress at our favorite local restaurant as a means to obtain food and drink; and we cannot avoid “using” our teachers as a means to gain knowledge or a degree. However, in doing so, we can still treat these persons as human beings with intrinsic value and dignity. In all such situations, then, Kant reminds us that in order to be ethical we should recognize and respect people’s capacity for reason and autonomous choice, fully acknowledging them as unique and valuable individuals with their own needs, wants, and goals (see Box 9.2).

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BOX 9.2

Means, Ends, and Intimate Relationships: The Case of Mary Jo Laterneau

Consider the following: Is there a difference between “using” one’s spouse or someone with whom one is involved in an intimate, caring relationship to meet one’s sexual needs versus “using” a person one has just met at a nightclub for purposes of satisfying one’s own sexual desires? The answer, of course, is that there most often is a significant difference.

Intimate, caring relationships are (hopefully) founded upon a genuine respect and concern for the other person and recognition of that person’s value as a unique human being. As spouses, girlfriends, boyfriends, etc., we not only respect the other person as a human being, but value the fact that the individ- ual has unique wants and interests. Moreover, we should do whatever we legitimately can to help that person satisfy those needs and interests.

Conversely, “one-night stands” and other short- term sexual relationships are often characterized by one or both parties using the other purely to fulfill selfish desires. As Kant would remind us, this is espe- cially the case—and especially morally problematic— when manipulation or deceit is involved. Making false promises or implicit false promises (e.g., the pledge of a long-term relationship when this is not intended) or offering false compliments (e.g., “you have the most beautiful eyes I have ever seen”) are ways of manipu- lating the other person for one’s own ends. In doing so, Kant would argue that we fail to allow that other person to make a free and rational choice about whether to engage in the relationship. Instead, that person’s decision is—at least in part—influenced by the promises, compliments, or other falsehoods we

have offered. Kant would suggest that we should always be completely honest and up-front with the other person, allowing the consequences to come as they may.

Now consider the case of Mary Jo Laterneau. Mary Jo was a schoolteacher. She found her “Romeo” in a twelve-year-old boy whom she had initially met and taught while he was in second grade. At the age of thirty-five, Mary Jo entered into a “consenting” and ongoing sexual relationship with the boy when he was fourteen years of age. She had a child with him and the case erupted into a national debate about responsi- bility and intimacy. To make matters more complicated, Ms. Laterneau’s affair occurred while she was married with children of her own. Although eventually resigning from her place of employment; separated and divorced from her husband (losing custody of her children); and prosecuted, convicted, and sentenced to a prison term, Mary Jo professed deep and abiding true love for the boy. After serving a term in prison, Ms. Laterneau defied a court order upon her release requiring her to terminate all contact with the boy. Ms. Laterneau resumed the relationship with her “Romeo” and had a second child with her lover. The boy, now an adult, and Ms. Laterneau recently were married. Following the ethical insights of Kant, the only obligation in life one has is to be true to one- self and those others with whom one interacts. Despite our likely repulsion concerning this story, would you agree that this is precisely what happened in the case of Mary Jo Laterneau, especially given the nature and quality of the intimate relationship she established?

PRIMA FACIE DUTIES

One of the key concerns with Kantian ethics—as with absolute moral rules more generally—is that it provides no resolution for or guidance in the face of conflicting duties. Most of us have confronted or will face situations in which we are forced to choose between doing “A” and doing “B,” where both “A” and “B” are governed by moral imperatives. Returning again to Kant’s Case of the Inquiring Murderer, suppose there are two absolute moral rules at issue: (1) it is wrong to lie; and (2) it is wrong to permit the murder of an innocent person.29 If both of these as maxims are absolute, then each of us is morally obligated to follow them in all situations. However, the inquiring murderer presents a dilemma: we cannot both not lie and not permit the murder of an innocent person. The coexistence of two equally weighty imperatives seems to have created an irreconcilable ethical quandary.

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While the Case of the Inquiring Murderer is not likely to occur in “real life,” there are certainly other situations in which conflicts between absolute moral duties can and do arise. For instance, think of prisoners of war who are forced to choose between revealing government secrets and watching an innocent person be executed as a consequence of their refusal to cooperate with the enemy. Assuming that there is an absolute moral duty to be loyal to one’s country and an absolute moral duty not to permit the murder of innocent people, a moral dilemma arises that seemingly cannot be reconciled simply by appealing to absolute moral rules. Whatever choice is made, one or the other moral rule will be violated. Thus, it appears as if Kantian ethics and the notion of absolute moral duties are seriously flawed. Or are they?

In situations where we are forced to choose between multiple moral duties (i.e., impera- tives), we have no ethical basis for making such a choice. W. D. Ross (1877–1971) recognized this problem with traditional Kantian ethics. In response, he argued for an ethics of prima facie duties.30 “Prima facie” duties—also called conditional duties—are different from those of the absolute variety that are central to Kantian ethics. While prima facie duties should be followed in most circumstances, they can be overridden by other duties that are more imperative in a given instance. In situations where more than one prima facie duty is at issue, we should “study the situation as fully as [we] can until [we] form the considered opinion . . . that in the circum- stances one of them is more incumbent then any other. . . . ”31 In other words, certain duties can and should be violated if, given the situational factors in play, we determine that other duties override them.

This is the key difference between prima facie duties and absolute moral duties—the former are not absolute in the sense that they must always be followed. So, how would conflicting prima facie duties function in an everyday context? Let us return to the inquiring murderer, supposing that we have both a duty not to lie and a duty not to permit the death of an innocent person. If our duty not to permit the death of an innocent person outweighs (or is more important than) our duty not to lie, then we may—with good conscience—violate our moral duty not to lie in favor of saving someone’s life. If the duty not to lie is a prima facie duty—one that is not absolute but can be overridden—we are allowed the possibility of violating it if the circumstances demand that we do so.

The Role of Prima Facie Duties

While Ross offers a tentative list of prima facie duties (see Box 9.3), we are still faced with the question of how to determine which prima facie duties override others. This question is not easily addressed. In part, Ross attempts to respond by focusing on those concerns that emerge from Kant’s emphasis on absolute moral duties. Again, these are imperatives that we all must adhere to no matter what the situation is or the “good” consequences that follow. We can use prima facie duties to determine what we should do in any given situation. Remember, these types of imperatives are binding or obligatory unless they are superseded by other duties. For example, we have a prima facie duty of fidelity that includes keeping the promises that we make. Thus, we are morally obligated to keep our promises unless there are other, stronger moral considerations that override or “trump” that duty in a particular situation.

However, we should keep in mind that by “other, stronger moral considerations,” we are not referring to consequences. Similar to Kant, Ross provides us with a deontological variation of morality. Our ethical choices should be based on whatever prima facie duties apply to the situation at hand. Unlike Kant, Ross recommends using conditional duties to address moral

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dilemmas involving more than one imperative. In other words, if the application of duty “A” conflicts with the application of duty “B” in the same situation, we are not obligated to follow both unconditionally or absolutely. Rather, we can violate one in favor of the other, provided the one we select to follow is more imperative.

So, which conditional duties are more imperative than others? Regrettably, Ross’ theory does not offer a precise way for us to determine which ones take precedence over others or which ones serve as “trump cards” in particular situations. In short, he does not offer a ranking of prima facie duties nor does he suggest that one exists. Each situation must be judged uniquely.

BOX 9.3

A Brief List of Prima Facie Duties

Exactly what are prima facie duties? In response to this question, W. D. Ross offers an “incomplete,” though useful, list of major types:

Duties arising from our own previous acts: • Duties of Fidelity—These include duties that

stem from our own previous promises, contracts, or other agreements. Prima facie duties of fidelity can be explicit or implicit. The duty not to tell a lie is a prima facie duty arising from an implicit promise that we make to others upon entering a conversation, writing a book, etc. The duty not to lie can also be an explicit prima facie duty of fidelity arising from the oath we take as a witness in a criminal trial or the pledge of faith- fulness that we make when getting married.

• Duties of Reparation—These are duties that issue forth from our own previous wrongful acts. We have prima facie duties to make repa- rations for harms or damages that we have caused previously. Examples include criminal conduct, school bullying, gossiping.

Duties issuing from the previous acts of others: • Duties of Gratitude—These are duties that

surface, given the previous acts of others. Prima facie duties of gratitude require that we be grate- ful for the assistance of others, returning that aid or kindness whenever possible. Examples include buying lunch for a friend who has done the same for you in the past; volunteering your time at a rape counseling or drug abuse center, given that others have done the same for you previously.

Duties that emerge from an imbalance between the distribution of happiness (or the means by

which to attain happiness) and the merit of the people concerned:

• Duties of Justice—These duties require that we act so as to distribute benefits and burdens in a fair and equi-table manner. We have a prima facie duty to prevent an unfair distribution of goods, or to disrupt an existing unfair pattern of distribution. Work-place inequities (e.g., salary discrimination, scheduling imbalances) based on race, gender, ethnicity, age, disability, etc., illustrate this principle.

Duties arising from the notion that there are other individuals in the world whose condition we can improve:

• Duties of Beneficence—Doing good deeds for others such as aiding their health, happiness, welfare, etc.

Duties stemming from the fact that we can improve our own condition:

• Duty of Self-Improvement—This entails the duty to promote our own good—our health, security, wisdom, happiness, virtue, etc.

Duties that can be summarized as not injuring others:

• Duty of Nonharm or Nonmalfeasance—This duty entails not harming others—physically, emotion- ally, or otherwise. Examples include avoid causing harm to the health, safety, character, happiness, etc., of others. The duty of nonharm has also been interpreted to include the duty to prevent harm to others.

Source: W. D. Ross, The Right and the Good (Oxford: Clarendon Press, 1993).

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RIGHTS: THE “OTHER SIDE OF DUTY”32

In contemporary American culture and society, the idea of “rights” plays a crucial role in the consideration of moral behavior, as well as in our response to contentious social, political, and legal issues. Examples such as the “right” to have an abortion, the “right” to bear arms, the “right” to punish criminal offenders or to utilize animals and the natural environment as we see fit, all convey this point.33 Similarly, discussions surrounding rights violations inform our views on such matters as torture, poverty, and slavery.34 What this suggests, then, is that the idea of rights is especially important when addressing various topics in law, crime, and the justice system.

For instance, the significance of procedural rights tends to be one of the first topics to which students and practitioners of criminal justice are exposed in their educational and professional careers.35 Along these lines, we commonly hear stories of the rights of criminal suspects, defendants, or prisoners being in some respect violated by persons working within the criminal justice system.36 The appellate court system operates for precisely this purpose—it hears arguments and makes rulings on these sorts of infractions. What all of this suggests, then, is that irrespective of how we might feel about rights or certain types of rights (e.g., for defendants, for victims, for those criminally confined, for women, for minorities), the reality is that we cannot easily escape their consideration.37 This is as true in ethics as much as it is in criminology and criminal justice.

In the context of ethics, rights are important in that their existence justifies behavior and places limitations on behavior. They factor into determinations about what is morally required, permissible, or forbidden. Where rights are prioritized over other moral considerations, we may be required to respect a person’s right to privacy; we might assert that an act of self-defense was morally permissible given our right to protect self and/or property against harm from others; or we may be forbidden from violating the bodily integrity of another person. In each case, rights regulate what we can and cannot do, how we treat others, and how we expect others to treat us. In this light, rights share an important relationship with moral duty.

Rights and Duties

In the last section, we were introduced to Kant’s deontological or duty-based claim that there exist absolute moral imperatives that each of us is obligated to follow, irrespective of consequences, contexts, and desires. In this approach, our moral duties spring forth from universal maxims or laws. Similarly, the tradition of rights also can be regarded as deontological in the sense that it argues for moral duties. However, the duties that stem from moral rights do not emerge from universal moral laws but, instead, they arise from the moral rights themselves.38 How so?

First, consistent with deontology, the notion of rights implies that consequences are irrelevant moral considerations. If you have a “right” to own a handgun, then your possession of it has nothing to do with the consequences that might arise from your doing so. If a crimi- nal defendant has a “right” to an attorney, there is no suggestion that having counsel should depend, in any way, on what the consequences will be for the defendant, the prosecution, the victim, or the criminal justice process overall. Thus, the various rights that we enjoy are not contingent upon whatever effects may or may not result. The same can be said for the sorts of absolute moral rights that underlie other duties. Your right to be treated with respect and dignity stems alone from your status as a human being. Each of us can be said to have a moral duty to respect your status as a person and, therefore, to revere your moral right to be treated as such.

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Second, rights are often said to be correlative with duties. The correlativity of rights and duties means that the rights of people imply duties that others must acknowledge and value.39 To illustrate, if you have a right to privacy, then people (including the government) have a duty to respect what you define as intimate or confidential. If you possess a right to refuse unwanted and invasive medical treatment, this right implies that others have a duty not to interfere by imposing or forcing it on you, even if it is deemed therapeutic (see Box 9.4). If you have a right to worship as you see fit, this means that others have a moral duty to respect your right by not interfering in any way with your religious preferences or practices.

Natural Rights Ethics

Rights are generally understood as either natural or derived from duties.40 The idea of natural rights has its conceptual basis in a type of moral universalism. Recall from Chapter 4 that ethical universalism refers to the notion that there exist moral principles or standards that can and should be relevant to everyone, everywhere, in all situations. To say that such principles or standards are universal is to suggest that they are true of and applicable to all people in all

BOX 9.4

The Right to Refuse Treatment and Competency to Be Executed

Just because rights and duties are correlative does not mean that this relationship is supported in all situations or with all ethical dilemmas. One such example is the problem of treatment refusal invoked by mentally ill persons on death row. Complicating this matter is the process of competency restoration. Typically under these conditions, returning one to a state of mental fitness involves the forced administration of drug treat- ment over the confined person’s objection. The goal is to restore competency such that the individual is cognizant of his or her imminent execution. Clearly, there are ethical concerns about physicians forcibly administering mind-altering drugs to psychiatrically ill death row offenders who object to them, particularly when the expressed purpose is execution and nothing more. To some extent, the court has addressed this matter. However, the issue at hand is one of respecting the rights of individuals as a moral duty, notwithstanding the individual’s psychiatric condition.

In the instance of treatment refusal for persons on death row, this is difficult to assess. Part of this difficulty relates to whether a person can exercise a right to refuse treatment knowingly and voluntarily. After all, if someone does not know what she or he is requesting and/or does not make such a decision freely, it remains to be seen whether the exercise of this right should be respected and honored at all. Ethically speaking, the

absence of both (awareness and volition) may very well erode one’s duty to adhere to the request.

Perhaps one way to gauge whether one’s treatment refusal is undertaken freely and knowingly is to consider whether the mentally ill death row inmate’s position changes after competency is restored. Some have suggested that if a person’s competency is restored and the individual still insists that the forced medication remains objectionable, that the person was, at the least, competent enough prior to the restoration to have had their right respected in the first place. Unfortunately, this “after the fact” sort of proof does not value the person’s deontological right and the corresponding duty that should have been adhered to initially. At best, the right to refuse treatment and competency to be executed demonstrate how the politics of mental illness and fitness for death can trump the fundamental rights of citizens, despite disability.

Source: Bruce J. Winick, The Right to Refuse Treatment (Washington, DC: American Psychological Association, 1997); Bruce A. Arrigo and Christopher R. Williams, “Law, Ideology, and Critical Inquiry: The Case of Treatment Refusal for Incompetent Persons Awaiting Execution,” New England Journal on Criminal and Civil Confinement, 25 (2), 367–412 (1999); Kursten Hensly, “Restored to Health to Be Put to Death,” Villanova Law Review, 49, 225–251 (2004).

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cultures and all time periods. Thus, we are obligated to recognize and utilize them in all cases in which those principles or standards are pertinent. Moreover, that which is identified as universal supersedes all other considerations (e.g., cultural, historical, situational contexts).

The doctrine of natural rights suggests that all human beings enjoy certain basic rights irrespective of their membership in a particular political society.41 In this sense, then, rights are enjoyed universally and apply globally. The natural rights that all people benefit from are not derived from laws or granted by governments; rather, they stem from human nature. That these rights stem from human nature means that: (1) they do not need to be earned; and (2) they cannot be taken away. Thus, natural rights function as universal moral laws or principles that must be respected regardless of circumstances. What are these principles and what implications do they hold for morality?

In short, the tradition of moral rights maintains that each “moral subject” has a right to “a kind of integrity.”42 This “kind of integrity” implies that each individual has moral worth wherein the individual is endowed with certain rights that cannot be taken away and which must be respected in all instances. These rights are said to be shared by all citizens, irrespective of who, where, what, or when they are, and irrespective of consequences, motivations, situational factors, and so forth.

The universality or absoluteness of moral rights has its roots in the tradition of natural law (see Chapter 7 for more on natural law). This tradition emerged in antiquity and, more specifically, in the writings of ancient Greek philosophers such as Aristotle and the Stoic philosopher, Chrysippus.43 The Greeks routinely distinguished between nomos, or human law, and phusis, or laws of nature. Human laws included established practices such as customs, and “positive” or human-constructed written laws that varied by time and place. Consequently, they were subject to change. Because they were variable and changeable, human laws were under- stood to be fallible; that is, they could be unjust or misguided. In contrast, phusis represented a general term referring to what was unchangeable, such as the laws of physics. Thus, as philosophers reasoned, there must be some moral equivalent to the laws of nature—an unchanging moral order that was, like the laws of physics and biology, part of the natural world. This natural law was thought to exist independently of human laws and codes, applicable to everyone, everywhere.

The ethics of human rights begins with the natural law assumption that there is a certain universal moral order that exists apart from social, cultural, and historical conditions—a moral order which supersedes or “trumps” the “man-made” laws and socially constructed moral principles that are particular to civilizations and time periods.44 Within this all-encompassing order exists a universal moral community that includes all human beings (and, by some accounts, all living things). By virtue of being connected to this global community, all human beings enjoy equal moral worth and status. This standing cannot be removed by others, and we are all morally obligated to honor it. In some important respects, the tradition of natural law is not unlike the laws of God or the sorts of universal laws that are found in many religions. However, the difference is that the natural law tradition does not depend on any conception of a supernatural being; instead, the source of its laws are derived from the natural order of the universe and apply to all human beings who are a part of that order.

While the concept of “rights” was not specifically discussed by Aristotle, the Stoics, and other early Western philosophers, the notion of natural law that emerged from Greek antiquity would later generate the idea of natural rights. Natural rights refer to the notion that basic guarantees exist and that all people possess them simply by virtue of being human.45 For example, the eighteenth-century philosophers argued for the existence of a number of negative rights

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(or liberty rights) that were understood as limitations impacting the treatment of citizens by governments or political authorities.46 More recently, the idea of rights has come to include positive rights (i.e. welfare rights) as well—rights to various things as well as rights against unjust interference by lawmakers. Unlike earlier conceptions that worked to restrict government, subsequent variations justified the expansion of the state. Rights to education, health care, housing, and so forth, all justify increased government involvement in the lives of its citizens. Examples of natural rights include those of life, liberty, and property, as well as the right to be treated fairly and equally no matter one’s class, race, gender, political or religious affiliation, and the like.

Legal and Moral Rights

In many cases—including several of those noted above—discussions of rights revolve more specifi- cally around various legal rights. This is especially true in criminal justice where the notion of rights typically refers to legal protections that people enjoy when interacting with representatives of the justice system. For instance, the right to the presence of an attorney in a criminal trial and the right to humane treatment are specific legal protections. Moreover, as an indication of the importance that legal rights assume in criminal justice, consider the decision in Miranda v. Arizona (1966). In this case, the U.S. Supreme Court guaranteed criminal suspects a right to be informed of their protections under the law. The aim was to ensure that such citizens, although thought to be responsible for criminal wrongdoing, were not treated unfairly. However, the legal rights that are so crucial to criminal justice are different in an important sense from the broader notion of moral rights. To be clear, moral rights are of greater concern when it comes to ethics.

When Thomas Jefferson (1732–1799)—writing under the influence of British philosopher John Locke (1632–1704)—authored the U.S. Declaration of Independence, he claimed a “right” to life, liberty, and the pursuit of happiness for all citizens. Clearly, the Declaration of Independence is not concerned with outlining legal rights that U.S. citizens have or should have in relation to these basic goods. This was the function of the Bill of Rights. However, what Thomas Jefferson and others did have in mind with the Declaration was basic, fundamental guarantees that each of us should enjoy irrespective of our backgrounds, statuses, or positions within society. In this respect, then, this document is similar to a variety of more recent provisions on rights, including the Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1954), and the International Covenant on Civil and Economic Rights (1966).47 What each of them has in common is a profound conception of rights in which certain “inalienable” liberties and protections possess deeper and more enduring significance than any formal rights that might or might not be created by government. In other words, the moral rights enumerated or implied in these declarations attach to people simply by virtue of their being human and this is why they are considerably more fundamental than the articulated legal protections.

It is worth noting that there is often an overlap between moral and legal rights. For example, many legal rights—such as those derived from the U.S. Constitution—are themselves traceable to some more elemental conception of human and moral rights. To illustrate, the notion of a right to life gives rise to a number of more specific legal guarantees including those pertaining to self-defense; the right to liberty gives rise to a variety of specific legal protections against unjustified interference with our pursuit of happiness. In many cases, then, human or moral rights (to life, to liberty) ground the drafting of legal rights.

However, what is more important in the context of ethics are the ways in which legal and moral rights differ. Notwithstanding the overlap, not all legal guarantees originate from moral rights, and many moral rights exist apart from an appeal to legal assurances. To be clear, moral rights exist prior to and independent of any legal considerations. And, as we have seen, some interpret moral rights as

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being derived from a universal moral order that precedes social and historical conditions—a moral order that applies to all human beings, everywhere, in every time period. Whether the legal system recognizes them, all human beings are said to have certain needs and interests, and corresponding moral rights that exist to protect and further these needs and interests. For instance, governments that deny political participation to ethnic or racial groups (whether the groups represent majority or minority constituencies) may do so legally; however, the moral “rightness” of political participation cannot be denied to people because of one’s heritage or skin color. Similarly, slavery in the United States was deemed objectionable because its practice violated certain moral rights pertaining to humanness and personhood, even though existing laws made slavery entirely permissible.

What the above observations make evident is that moral rights possess binding force, irrespec- tive of whether they are translated into law. Under these circumstances, even if laws exist requiring us to violate a particular moral right, it is unethical to do so. This is because in those situations where the law and moral rights come into conflict, our ethical duty is to obey the moral order rather than the formal law. Thus, moral rights transcend and “trump” human law. After all, human law can be, and some times is, constructed in error. Perhaps most importantly, the presence of moral rights suggests that laws made by people are subject to limits that emerge because of moral rights. In other words, precisely because moral rights are not derived from legal guarantees or from a Constitution, it is pos- sible for existing laws and constitutional protections to be in violation of moral rights (see Box 9.5).48

BOX 9.5

The Scope of Moral Rights and International Criminal Justice

As we have seen, moral rights are said to be possessed by all people, everywhere, and in equal degree. Thus, irrespective of class, race, religion, nationality, or any other social distinction, each person enjoys the same basic moral rights simply because he or she is a human being. At the same time, though, this implies that all persons have a duty to protect and promote the moral rights of everyone else, regardless of whom these indi- viduals are or where they might live.

Notwithstanding our personal moral responsibil- ity to protect and promote the moral rights of others, in practice this duty often falls upon nations and interna- tional governments. According to some, government is best situated to effectively undertake these actions. Indeed, we need such institutions to protect rights for two reasons: (1) as individuals we tend to place higher moral priority on persons close to us (e.g., family, friends, community); and (2) our ability to exercise our duties with regard to the protection and promotion of moral rights is often limited by our personal circum- stances (e.g., financial, geographical). To illustrate, it might be difficult for individuals in the United States to intervene in rights violations taking place in countries on the other side of the globe. If we consider various claims to rights that we are said to possess (e.g., the

right to an adequate education; protection against cruel and unusual punishment), it seems necessary to have some form of governmental body to ensure that these rights are promoted. But how do these rights translate into actions that countries and political authorities can and must ensure ethically?

• Generate a list of rights that you believe to be fundamentally important in the context of crime and justice.

• With the rights you have identified, ask yourself whether they should also be protected in foreign lands, or if there is room for cultural variability.

• Moreover, ask yourself whether and to what extent the United States has a duty to ensure that these crime and justice rights be enjoyed by all citizens in other countries. Would you argue that the United States has an affirmative obli- gation to ensure these rights exist in other countries even if the result is war? In what ways are these rights moral imperatives?

Source: Philippe Sands (Ed.), From Nuremburg to the Hague: The Future of International Criminal Justice (New York: Cambridge University Press, 2005).

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DEONTOLOGY AND THE CRIMINAL JUSTICE SYSTEM: THE MORALITY OF LEGAL PUNISHMENT

To illustrate the significance of deontological ethics for criminal justice issues, as well as to demon- strate how it differs from consequentialist perspectives, we turn in the remainder of this chapter to a common but morally controversial criminal justice practice—that of punishing lawbreakers. In Chapter 1 (Box 1.1), we were exposed to the moral problem of punishment. In short, the problem is one of justifying punishment. In other words, because punishing people involves inflicting pain and suffering—things we typically should not do—we must have some ground upon which we can claim that it is morally appropriate to impose punishments upon criminal offenders.49 To find this ground, we must turn to normative ethical theories. Although many justifications for punishment have been proposed, most of them can be classified as either utilitarian or deontological. As normative moral frameworks, both utilitarianism and deontology offer ethical recommendations for how we should or ought to treat people who violate criminal laws. As we will see, however, utilitarian and deontological justifications for punishment are largely incompatible; that is, we cannot have both. Importantly, the ethical perspective we employ to justify punishing criminals will have important implications for why, how, and when we punish.

Utilitarianism and Criminal Punishment

As we saw in the previous chapter, utilitarian ethics holds the morality of actions to be a function of whether they bring about good consequences to all affected parties. As you might imagine, whether punishment of any sort is justifiable from a utilitarian perspective depends upon whether it brings about good or desirable consequences for the people who are affected by it. While the offender herself or himself is most directly affected by punishment, the positive (or negative) effects of punishment also indirectly impact the larger community and society. Because punishment typi- cally causes pain and suffering to those individual offenders who are subjected to it, utilitarianism would have us look to its beneficial impact on the greater community to find moral justification.

What are the “good” consequences of criminal punishment for the community? In what ways can these benefits be said to outweigh the pain caused to those who are punished? While we will shortly see that there are several ways in which punishing criminals arguably benefits the greater good, all of them are said to have the same basic positive effect—preventing future crime. From a utilitarian standpoint, we punish lawbreakers so that future crime is prevented (and only for this purpose). As you may anticipate, if punishment practices fail to achieve the intended effect of preventing future crime, then they cannot be morally justified on utilitarian grounds.50

From a utilitarian standpoint, then, the negative consequences for the punished lawbreaker are “smaller evils” that may be outweighed by the greater moral good that is the prevention of future harm to others. In other words, if punishment can prevent many future victims from suffering the effects of crime, the gain in public safety is enough to justify the harm caused to individual offenders. It is important to keep in mind, however, that there are various types of punishment available in any given case (e.g., fines in various amounts, probation, imprisonment). As a general rule, utilitarianism holds that punishment should entail as little harm as is necessary to achieve the desired goal of prevention. If, for instance, a sentence of probation can effectively prevent an individual from committing future crimes, then any more severe punishment would cause harm above and beyond what is necessary and therefore morally justifiable. It is in part for this reason that utilitarians often oppose the practice of capital punishment. If an offender can be prevented from committing further crimes by imposing a life sentence, then capital punishment causes harm above and beyond what is necessary to achieve the goal of crime prevention.51

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While crime prevention is the overriding utilitarian goal of punishment, there are several ways in which this goal can be accomplished. Each of the following is a purported beneficial effect of punishment that, from a utilitarian standpoint, serves to justify its practice:52

1. Disablement. Commonly referred to as incapacitation, disablement prevents future crime by physically disabling the offender. The most common form of punishment that serves the goal of disablement is incarceration. The imposition of a jail or prison term makes it physically impossible for the offender to victimize persons outside of that immediate environment. Mutilation, or physically dismembering or disfiguring an offender (e.g., removing the hand of a thief or the penis of a rapist), may also prevent certain offenders from repeating certain types of offenses (see Box 9.6). Finally, disablement can occur where a person (e.g., public official, medical or mental health professional, accountant) is simply removed from her or his position. In these instances, eliminating access to resources needed to commit future crimes can physically prevent the offender from repeating her or his offense.

BOX 9.6

Chemical Castration as Disablement

A contemporary controversy involving “mutilation” is that surrounding the practice of chemical castration for sex offenders. While surgical castration has never found popularity in the United States, beginning in the late 1990s a number of states proposed laws that would require qualified convicted sex offenders to submit to chemical castration. In 1996, California made chemical castration a condition of probation for certain offenders, and Montana, Iowa, Wisconsin, Louisiana, Oregon, and Florida have since implemented their own variations of chemical castration statutes.

Specifically, chemical castration involves weekly injections of medroxyprogesterone acetate (MPA) (com- monly known as female contraceptive Depo-Provera). In effect, MPA administration in males fools the brain into believing that there are sufficient levels of circulating testosterone in the body, thereby inhibiting natural testos- terone production and, in theory, lowering sex drive. Metaphorically “cutting off” an offender’s sex drive will thus disable him from committing future sex crimes. While the use of MPA has been successful with some— perhaps even the majority—of sex offenders, it is not universally so. As well, it carries side effects such as loss in bone density, weight gain, fatigue, and depression— though the majority of such effects are thought to be reversible upon cessation of treatment in most men.

The reasoning behind chemical castration laws is clearly utilitarian in nature. Castration of sex offenders is performed in the interest of rehabilitation and protection

of the public (especially children) from dangerous crimi- nals. The advancement of these utilitarian goals is held to justify the practice of chemical castration on moral grounds. If, however, castration fails to work, then there is no corresponding gain in public safety. For those offenders for whom chemical castration is ineffective, the practice may be unjustifiable on utilitarian grounds. In addition, critics have raised a number of other legal and moral concerns about the practice of castration:

• The U.S. Supreme Court has held that competent adults—including prisoners and the civilly commit- ted mentally ill—maintain a constitutional right to refuse medical treatment. This right may be subject to limitation, however, where there is a compelling government interest at stake (e.g., preserving prison safety). Where chemical castra- tion is required as a condition of release for convicted sex offenders, the right to refuse medical treatment has in effect been taken away. Does the state’s interest in protecting the public from known sex offenders outweigh an offender’s constitutional right to refuse treatment? If so, does it matter that some drugs—including MPA— have known side effects?

• An implied right to privacy under the Fourteenth Amendment generally protects autonomy and bodily integrity with regard to decisions concerning childbearing and contraception.

(continued)

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Forced castration could be interpreted as a viola- tion of an offender’s reproductive autonomy—the fundamental civil right to procreation that we all enjoy. Again, does the state’s interest in protect- ing the public morally justify infringing upon an offender’s autonomy and bodily integrity with regard to reproductive decisions? Does it matter that the effects may be reversible?

• Several states require that an offender’s crime/s be against a child for chemical castration to be imposed. Others have no age requirement. Should chemical castration, if practiced, be limited to or mandated for offenders with certain victim types?

• Some states (Iowa, Louisiana, California, Florida) still allow for, but do not mandate, physical

castration as an alternative to a longer prison sentence and/or chemical castration. What are the moral implications of the practice of surgical castration and why, if at all, is chemical castra- tion a “more moral” option?

Source: Elizabeth Tullio, “Chemical castration for Child Predators: Pra`ctical, Effective, and Constitutional,” Chapman Law Review, 13 (1) (2009); Charles L. Scott and Trent Holmberg, “Castration of Sex Offenders: Prisoners’ Rights Versus Public Safety,” Journal of the American Academy of Psychiatry and Law, 31 (4), 502 (2003); Stone T. Howard et al., “Sex Offenders, Sentencing Laws, and Pharmaceutical Treatment: A Prescription for Failure,” Behavioral Sciences and the Law, 18 (1), 83–110 (2000).

2. Specific Deterrence. The aim of specific deterrence is to prevent an individual offender from committing future wrongdoings by instilling in her or him fear of punitive consequences. To “deter” is to “discourage” or even “scare away.” Recall that utilitarianism views humans as free-willed, rational beings, motivated to pursue pleasure and avoid pain. In the context of criminal motivation, lawbreakers will choose the pleasures of crime when they outweigh its associated pains. Contrarily, potential lawbreakers will choose law-abiding behaviors if the painful consequences of crime outweigh its pleasures. One such painful consequence is that of legal punishment, whether it be in the form of a fine, community service, probation, incarceration, etc. As we have discussed on several occasions throughout this text, many persons choose to follow the law because they fear such conse- quences. It is this fear by which deterrence operates and through which future crime is arguably prevented. Punishment in all forms, then, serves as an example or reminder to the individual offender of the “evil” that will be inflicted if she or he should choose to violate the law again in the future.

3. Reform. Importantly, deterrence does not eliminate the desire to engage in wrongdoings; rather, it simply makes a potential offender afraid to commit them for fear of consequences. The goal of reform or rehabilitation, on the other hand, is to change the inclinations, motives, habits, and character of the offender so that the offender no longer desires to engage in criminal activities. For example, a prisoner who is released back into the community after serving a five-year term may refrain from committing future crimes because she or he fears going back to prison. While it would be accurate to suggest that the offender has been effectively deterred by her or his previous punish- ment, she or he cannot be said to have been rehabilitated. In principle, reform efforts should be tailored to fit the individual offender’s needs and therefore may occur in a variety of settings and may include treatment for drug and alcohol problems, education and job training, psychological or spiri- tual counseling, and participation in other programs designed to aid in the offender’s rehabilitation.

4. General deterrence. Whereas disablement, specific deterrence, and reform all seek to prevent crime by modifying the behavior of specific offenders who have already violated the law, general deterrence seeks to prevent crime by deterring people “in general.” The underlying principle of general deterrence is the same as that of specific deterrence; namely, people will choose law-abiding behavior where the negative consequences of crime outweigh any pleasure it might bring. The key difference between specific and general deterrence is that, in the latter, punishing criminals serves as an example to others of the negative consequences of lawbreaking.

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Chapter 9 • Respecting Persons, Respecting Rights: The Ethics of Duty 183

Deontology and Criminal Punishment

From a deontological ethical perspective, a number of objections to utilitarian justifications for punishment can be raised. One such objection was noted above; namely, because utilitarianism justifies punishment by appealing to the beneficial end of preventing crime, it fails to justify punish- ment if the means don’t achieve the end. If it can be shown that punishment fails to prevent crime (e.g., incapacitate, deter, and/or rehabilitate criminals), then by utilitarian standards we have no grounds on which to punish. In short, it could be argued that punishment does not work and we are therefore inflicting harm on persons without any corresponding “greater good.” If punishment fails to achieve its utilitarian objectives, then it becomes an exercise in increasing the amount of suffering in the world without the increase in happiness that would be necessary to justify it.53 As support for this claim, many have pointed to high rates of recidivism as evidence that deterrence and reform efforts are ineffective. For the utilitarian, however, this is merely a practical problem. It is not, for instance, that criminals cannot be rehabilitated, but that the system has been ineffective in doing the job of rehabilitating criminals.54

A second deontological objection to utilitarian grounds for punishment is one that Kant alluded to on a number of occasions. Recall that Kantian ethics holds human dignity to be of fundamental moral importance. With this in mind, Kant claimed that utilitarianism ignores human dignity. More specifically, justifications for punishment that appeal to beneficial consequences—incapacitation, deterrence, and rehabilitation—violate Kant’s second variation of the categorical imperative (“treat others as an end and never as a means only”). When punish- ment practices are grounded in a concern for the incapacitation, deterrence, or reform of offenders, we are using offenders as a means to an end. While the objective of preventing crime may be worthy, using people—treating them as a means rather than an end—is fundamentally incompatible with the deontological commitment to and respect for human dignity:55

• Incapacitation. If we imprison an individual to secure the well-being of the community, we are using that offender to benefit others.

• Deterrence. Philosopher Georg Wilhelm Friedrich Hegel once wrote, “to base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with freedom and respect due to him as a man.”56

• Rehabilitation. Reform or rehabilitation would have us treat others as “unfree, immature being[s], whose behavior may legitimately be reshaped by others in accordance with their notions of what is good, desirable, and socially acceptable.”57 Rehabilitation can thus be criticized as an attempt to mold people into what we think they should be. For Kant, this violates respect for autonomy—if we are to treat others as free, rational beings, then we must recognize that they are entitled to decide for themselves what sort of people they wish to be.

If incapacitation, deterrence, and reform are not moral grounds for punishing lawbreakers, how are we to justify punitive practices? Rather than justifying punishment by appealing to future consequences, deontology looks backward. The moral basis for punishment is not in future consequences, but is the offense which has been committed and for which justice must be done. Offenders should be punished because—and only because—they have committed a crime.58

Further, where an offense has been committed, punishment of the offender must occur— irrespective of consequences. We punish the guilty because that is what is demanded of us by justice. If it so happens that good consequences result, then so much the better. Yet conse- quences, whether positive or negative, should have no bearing on our decision to dispense justice.

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184 Part 3 • Normative Ethics: Theory and Application

The principle of justice found in the practice of punishment is that of desert—giving people what they deserve. Punishment is “just”because it entails treating offenders the way they deserve to be treated in light of their offenses. The justification for punishment is thus retribution, or the principle that the state should “pay back” the offender for her or his offense.59 Importantly, the notion of desert implies that punishments must be proportionate to the seriousness of the offense. Proportionality— the principle that the “punishment should fit the crime”—is crucial to deontological justifications for punishment. If an offender has been convicted of rape, for instance, he deserves to be punished for his crime. He does not, however, deserve to be punished with death. In this case, the severity of the punishment would unjustly outweigh the seriousness of the crime. On the other hand, while utili- tarianism does not generally allow for the imposition of capital punishment, deontology can justify the punishment of death where—and only where—it is proportionate to the offense (e.g., murder).

Deontologists would argue that utilitarianism potentially violates both of these key principles (that punishment must be administered following a conviction, and that the punishment must be proportionate to the offense). In this respect, they argue, utilitarianism fails to account for justice and, in fact, would have us commit injustices if doing so would bring beneficial consequences. The focus of utilitarianism is on preventing crime, not ensuring that offenders get what they deserve. Consequently, there are several scenarios in which utilitarianism might allow for persons to receive something less, more, or other than what is deserved in relation to their actions.60

There is nothing, for instance, in utilitarianism that limits the amount of punishment that can be imposed. Utilitarianism could allow for disproportionately harsh or disproportionately lenient penalties if their imposition would achieve the desired end of crime prevention. A ten-year prison sentence for speeding may be effective in deterring crime, but would be arguably unjust in that the severity of the penalty would be undeserved in relation to the severity of the crime. Conversely, the experience of killing an innocent pedestrian while driving intoxicated and having to apologize to the victim’s family may be enough to deter an offender from ever again driving drunk, yet without further punishment many would argue that the offender received less than was deserved and, thus, that justice had not been done (see Box 9.7).

As well, there is nothing in utilitarianism that prevents innocent persons from being punished, or guilty persons going unpunished. In all of those cases where punishing an offender would do more harm than good, utilitarianism commits us to refrain from punishment. On this note, Kant once asked, “What then are we to think of the proposal that the life of a condemned criminal should be spared if he agrees to let dangerous experiments be carried out on him in order that the doctors may gain new information of value . . . ?” Justice, Kant notes in response to this question, “ceases to be justice if it can be bought at a price.”61 Similarly, in those cases where punishing the innocent may bring about good overall consequences, utilitarianism may allow for it to be introduced. In both cases, although the punishment (or nonpunishment) has passed the test of utility, many would argue that justice has been compromised.

How is it that retribution, unlike incapacitation, deterrence, and reform, respects human dignity? Kant tells us that to treat others as ends involves treating them as rational beings, responsible beings. In punishing offenders, we are respecting their freedom and rationality, holding them responsible for what they have done, and treating them as they deserve to be treated. In other words, we are allowing their conduct—rather than the system’s objectives—to determine how they will be treated.

In sum, the deontological justification of criminal punishment suggests that: (1) the state has a moral right to punish offenders on the basis of what they have done; (2) the state has a moral duty to punish offenders in the interest of justice; (3)that punishments must be proportionate to the offense committed; (4) that punishment serves to rectify or “even out” the harm of the offense; and (5) offenders have a moral right to be treated by respect and, therefore, punishment is a moral right of the offender.62

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Chapter 9 • Respecting Persons, Respecting Rights: The Ethics of Duty 185

Summary

This chapter examined the deontological approach to the choices we should make and the actions we should undertake. Central to this approach are a focus on duties, rights, and obligations. As we have seen, deontological ethics binds us in ways that transcend laws, rules, codes, and procedures. Although this brand

of ethics is difficult to uphold in our daily lives, it attempts to establish universal principles of doing what is good for others, for ourselves, and for society more generally. Deontological ethics commits us to concerns for personhood, fairness, dignity, and worth for all people everywhere, regardless of timeframe or

BOX 9.7

Mandatory Sentencing Laws: The Case of California

On June 30, 1992, Douglas David Walker and friend Joe Davis attempted to rob eighteen-year-old Kimber Reynolds of her purse in the Tower District of Fresno, California. Kimber resisted and, during the ensuing struggle, was shot and killed by Davis—who himself was later killed in a shootout with police. Subsequent investigation revealed both Walker and Davis to have long histories of criminal conduct. Davis had two prior felony convictions and Walker—who entered a plea agreement to avoid murder charges—had a criminal record dating to age thirteen.

On October 1, 1993, twelve-year-old Polly Klaas was kidnapped from her home just a few hours from Fresno in Petaluma, California. The perpetrator crept into the Klaas household and abducted Polly at knife- point as her family slept not far away. In late November, after a troubling investigation, police arrested Richard Allen Davis for the murder of Polly Klaas. Davis’ criminal record revealed that he had twice been convicted and sentenced to prison for prior attempted kidnappings.

The tragedies of Kimber Reynolds and Polly Klaas generated public outcry and political pressure to “crack down” on habitual criminal offenders. In 1994, California voters passed Proposition 184—California’s “Three-Strikes Law”—by an overwhelming 72 percent majority vote. Under California’s new legislation, offenders who were convicted of three serious crimes would, following their third “strike,” receive a lengthy mandatory prison sentence (often twenty-five years to life). California allows for a variety of offenses to count as strikes, and for any felony to count as the third strike. Many offenders incarcerated under California’s law have been convicted of nonviolent and often nonserious offenses (though, in 2000, Californians amended the statute to allow for those convicted of

drug offenses to be mandated to treatment rather than life in prison).

Over the next decade, more than half of the states in the United States (as well as the federal gov- ernment) would pass similar legislation. Proponents of Three-Strikes Law and other habitual felony statutes appeal to their purported deterrent effect for justifica- tion. The threat of severe punishment is, in theory, enough to convince those with felony records to refrain from committing any additional offenses. The morality of mandatory sentencing laws is thus justified on utili- tarian grounds—harsh penalties pass the test of utility if they bring about good consequences (i.e., reduction in crime). To date, however, studies of the effects of mandatory minimum sentencing practices on crime rates have shown mixed and inconclusive results.

On the other hand, critics have argued that the severity of punishments handed out under mandatory sentencing laws are disproportionate to the severity of the offenses for which they are imposed. From a deontological perspective, sentences of up to life imprisonment for crimes as minor as shoplifting violate the imperative that the punishment must fit the crime (though, in 2003, the U.S. Supreme Court upheld as constitutional California’s statute by a 5–4 margin).

Source: Peter W. Greenwood, Three Strikes and You’re Out: Estimated Benefits and Costs of California’s New Mandatory Sentencing Law (Santa Monica, CA: Rand Corporation, 1994); Paul G. Cassell, “Too Severe: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums),” Stanford Law Review, 56 (5), 1017–1032 (2004); Shamica Gaskins, “Women of Circumstance: The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug Crimes,” American Criminal Law Review, 41, 1533–1554 (2003).

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186 Part 3 • Normative Ethics: Theory and Application

historical period. Whether in the context of personal responsibility or international accountability, these types of concerns are woven into the operation of criminal justice practices and are crucial to decision- making in criminal justice contexts. While the deonto- logical approaches entertained in this chapter offer

several strategies for advancing ethical conduct, there remains one further normative approach warranting consideration. Unlike consequentialist or deontologi- cal ethics that emphasize what it means to do good, virtue ethics stresses what it means to be good. This topic is the focus of review in the subsequent chapter.

Key Terms and Concepts

categorical imperative 166 correlativity of rights and

duties 176 deontological (deontology) 164 desert 184 deterrence (specific and

general) 182 disablement (or incapacitation) 181

duties 167 hypothetical (or conditional)

imperative 166 legal rights 178 maxim 166 moral rights 178 natural rights 177

negative rights 177 positive rights 178 prima facie duties 173 proportionality 184 reform (or rehabilitation) 182 retribution 184 universal law 166

Discussion Questions

1. Explain the difference between hypothetical and categorical imperatives. Provide three examples of each, taken from the field of criminal justice. How might this distinction be used to explore the practice of correctional facilities placing violent prisoners in solitary confinement?

2. A citizen is held up at gunpoint. A second person is a witness to this crime. The second person has a permit to carry a weapon and is in possession of this hand- gun. The second person reasonably believes that the attacker is likely to shoot and kill the citizen. Given these circumstances, the second person is trying to determine what course of action is ethically justified. Following the observations on prima facie duties, how would you reconcile this dilemma? Are there any conditional duties in operation here? Explain your response.

3. Explain the relationship between rights and duties. Identify three rights that help to understand a particular problem in crime and justice. Identify what correspon- ding duties attach to these rights and who is responsible for these corresponding duties.

4. Explain the concept of natural rights. Apply your definition to the following situation. A suspect is seen fleeing the scene of a crime. The suspect, brandishing a handgun, allegedly shot a police officer. A second police officer is in pursuit. The second officer firmly instructs the suspect to stop. The fleeing suspect does not adhere to the officer’s command. The officer repeats the instruction a second time, but the suspect does not yield. The officer fires at the suspect, killing him instantly.

5. What is the difference between human rights, legal rights, and moral rights? Rely on a criminal justice ethical dilemma to substantiate your perspective.

Endnotes

1. James Rachels, Elements of Moral Philosophy (New York: McGraw-Hill, 2002).

2. Immanuel Kant, Foundations of the Metaphysics of Morals (Indianapolis, IN: Bobbs-Merrill, 1959), pp. 30–31.

3. Ibid., pp. 31–33; Rachels, Elements of Moral Philosophy, p. 105.

4. Rachels, Elements of Moral Philosophy, p. 105. 5. Ibid. 6. Ibid.

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Chapter 9 • Respecting Persons, Respecting Rights: The Ethics of Duty 187

7. Ibid., p. 106. 8. Kant, Foundations of the Metaphysics of Morals, p. 39. 9. Rachels, Elements of Moral Philosophy, p. 106.

10. Kant, Foundations of the Metaphysics of Morals, p. 40. 11. Rachels, Elements of Moral Philosophy, p. 106. 12. Kant, Foundations of the Metaphysics of Morals, p. 41. 13. Ibid. 14. Rachels, Elements of Moral Philosophy, p. 107. 15. Ibid., p. 108. 16. Ibid. 17. Ibid., p. 109. 18. Quoted Ibid. 19. Ibid., p. 109 (authors’ emphasis). 20. Ibid. 21. Ibid. 22. Kant, Foundations of the Metaphysics of Morals, p. 47. 23. Rachels, Elements of Moral Philosophy, p. 114. 24. Ibid., p. 116. 25. Ibid. 26. Ibid., pp. 115–116. 27. Ibid., pp. 116–117. 28. Ibid. 29. Ibid., pp. 110–111. 30. William David Ross, The Right and the Good (Oxford:

Clarendon Press, 1993). 31. Ibid., p. 216. 32. Judith Boss, Ethics for Life (Mountain View, CA:

Mayfield, 2001), p. 355. 33. John Finnis, Natural Law and Natural Rights (New

York: Oxford University Press, 1980). 34. Lee Epstein, Constitutional Law for a Changing

America: Rights, Liberties, and Justice (Washington, DC: CQ Press, 2004).

35. Ronald J. Allen, Criminal Procedure: Investigation and Right to Counsel (New York: Kluwer Law International, 2005), p. 33.

36. Ibid. 37. See, e.g., Barbara Rafel Price and Natalie J. Sokoloff

(Eds.), The Criminal Justice System and Women: Offenders, Prisoners, Victims, and Workers (New York: McGraw-Hill, 2004).

38. Boss, Ethics for Life, pp. 372–374.

39. Ibid. 40. Ibid., p. 361. 41. Finnis, Natural Law and Natural Rights. 42. Ibid., p. 17. 43. See, e.g., Knudd Haakonssen, Natural Law and Moral

Philosophy: From Grotius to the Scottish Enlightenment (New York: Cambridge University Press, 1997); Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul (Eds.), Natural Law and Modern Moral Philosophy (New York: Cambridge University Press, 2001).

44. Haakonssen, Natural Law and Moral Philosophy. 45. Finnis, Natural Law and Natural Rights. 46. Frankel, Miller, and Paul, Natural Law and Modern

Moral Philosophy, p. 9. 47. Henry Steiner and Philip Alston, International

Human Rights in Context: Law, Politics, and Morals (New York: Oxford University Press, 2001).

48. Boss, Ethics for Life, p. 359. 49. Igor Primoratz, Justifying Legal Punishment (Atlantic

Highlands, NJ: Humanities Press, 1989). 50. Ibid. 51. Jonathan Glover, Causing Deaths and Taking Lives

(New York: Penguin Books, 1977); see, generally, Gertrude Ezorsky (Ed.), Philosophical Perspectives on Punishment (Albany, NY: SUNY Press, 1972), pp. 249–280.

52. See Primoratz, Justifying Legal Punishment, pp. 18–22. 53. Ibid; see also, Ted Honderich, Punishment: The

Supposed Justifications (New York: Penguin, 1984). 54. Ibid., pp. 33–35. 55. Ibid. 56. Quoted in Primoratz, Justifying Legal Punishment,

p. 35. 57. Ibid. 58. Immanuel Kant, “The Right of Punishing.” In

Gertrude Ezorsky (Ed.), Philosophical Perspectives on Punishment, pp. 103–104.

59. Edmund Pincoffs, The Rationale of Legal Punishment (New York: Humanities Press, 1966), pp. 2–16.

60. See Primoratz, Justifying Legal Punishment, pp. 35–61. 61. Kant, “The Right of Punishing,” p. 104. 62. Primoratz, Justifying Legal Punishment, p. 12.

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