Lawyers and Virtue

Lawyers and Virtue

Bill Piersol

Several years ago I was at a professional conference being held in a large hotel.  In a room down the hall from where the conference I was attending, the meeting poster for that room read something like, "Steps to Help Lawyers with Addictions".   I remember my first thought was, "wait a minute, these are lawyers, we can help them by disbarring them". 

Looking back, that probably was pretty harsh.  If a lawyer gets addicted on pain killers and admits it, shouldn't he or she be allowed to get treatment and keep their job?   But it brings up a point, just exactly how virtuous does a lawyer have to be? 

Aristotle is often referenced with regards to virtue. For moral virtues, he specifically identified justice, courage and honesty (McGinniss, 2011).  It seems to me, honesty is the primary catch-all. If you are guided by that, you are doing pretty good.  But as the old saying goes, nobody is perfect, so having the courage to admit mistakes is the way to get back on track.  So in the case of lawyers who are addicted to drugs, having the courage to admit an addiction is virtuous (although there may have been some none-virtuous decisions earlier that got him or her in that situation for which a person may be held accountable).

Moral virtue though is not the only virtue that lawyers should be guided by.  There is intellectual virtue, evidenced by practical wisdom or prudence, that Aristotle called "phronesis" (McGinnis, 2011).   This is a type of sensitive "early warning system" that has a person looking ahead to avoid getting into a situation that one would prefer not to be in.  Aristotle advised that the best way to learn this wisdom is to observe and model after those who have practical wisdom (McGinnis, 2011).  There is a saying that a "smart person learns from his mistakes, but a wise mane learns from the mistakes of others". 

I think the value of the ethics course is it gets you to consider numerous situations which better prepares you to face them - a kind of modeling.

 Reference

McGinniss, M. S. (2011). Virtue ethics, earnestness, and the deciding lawyer: Human flourishing in a legal community. North Dakota Law Review, 87(1), 19-57.

 

Does the Fantasy Follow the Rules?

Does the Fantasy Follow the Rules?

Bill Piersol

I have a common fantasy that I am driving an unmarked police car on the highway and there is a car coming up behind me weaving in and out of traffic at a fast rate of speed.  The car then pulls behind me, about two inches from my bumper, and I see in the mirror the driver making obscene gestures and the flashing of his headlights into my side mirror.  I pull to the right, let him pass me and quickly see him speed up to 81 mph in a 60 mph zone.   I speed up, turn on my blue lights, and take glee in his expression as I give him a reckless driving ticket with a fine of $3,000.00.   I usually have this fantasy after I am driving on the highway and there is some idiot driving recklessly in and around me.

I am not a police officer but I do have a desire that someone who is annoying me on the road gets punished.  According to Lammers and Stapel (2009), it could be said I am looking for an outcome that is outside my power- in this case the other driver getting punished.  Since I do not have the power, I have a "consequentialist" ethical perspective - an outcome based approach.  For people who do have power, Lammers and Stapel (2009) say they generally take a deontological, or rule based approach. 

We can leave the highway and think about police work in general and the ethical issues of a rule-based versus outcome based approach.  Having seen my fair share of police drama on television, I've observed that police officers are happy when they get a bad guy for breaking the rules straight up, that is the way it is supposed to be.  But on the other hand, some police on these shows have fudged the rules and evidence, or withheld exculpatory evidence, in order to get what they felt to be the deserved outcome.  This type of behavior though also takes place with some real police on the streets, as born out in real court cases,  (Bhave, 2011).

The law is based on rules; a police officer is on much more solid ground when laws are enforced based on the facts that laws were violated. When they stray from that and start thinking the ends (putting a bad person in jail) justifies the means (fudging evidence), they have put themselves, and the case, in a perilous situation.

So, stay tuned for our upcoming class court case to see if the jury thinks that Officer Cult was enforcing the law in accordance with law, or fudging things based on what he thought would be the deserved outcome for Bart James - and did he go too far?

References

Bhave, S. (2011). The innocent have rights too: Expanding Brady v. Maryland to provide the criminally innocent with a cause of action against police officers who withhold exculpatory evidence. Creighton Law Review, 45(1), 1-31.

Lammers, J.,& Stapel, D. A. (2009). How power influences moral thinking. Journal Of Personality & Social Psychology, 97(2), 279-289.

Police Discretion

Police Discretion

Bill Piersol

About six months ago I was with my wife in our minivan rolling down a hill on a wide-open divided four lane highway in Southwestern Pennsylvania. At the bottom of the hill, I noticed a police officer parked under an overpass, and as I passed him, I noticed him start moving and then he did a U turn and started in my direction and turned on his blue lights.  Sure enough, he got up behind me, and I pulled over.  He came over to my window and asked me if I knew why he stopped me, and I said, "I guess I was speeding." He said I was doing 66 in a 55.  As I was pulling out my license, he asked me what the other ID was in my wallet, and I said it was a retired military ID card. He asked for it, and after he had given it back to me, he said, "have a nice day" and walked back to his car.  I was the beneficiary of his discretion.  Now I'm not a chronic speeder but back a few years ago I received a couple of tickets, so I know what's it like also to get rung up for a speeding ticket.  So it brings up the question is police discretion good, bad, or somewhere in the middle.

In the performance of his or her duties, a police officer can exercise a high degree of discretion (Banks, 2013).  Discretion though is generally exercised within parameters - including what the police officer's peers would generally approve of (consistent with the rules), and two, those that fall within community norms.   If it falls outside those two, it could be improper use of discretion,  or even  illegal (LaFrance, 2011).   Proper use of discretion includes what is the best use of an officer's time (Banks, 2013).  Depending on the issue, a verbal warning could make sufficient impact while keeping the officer on the street instead of in the precinct doing paperwork.  There are instances of discretion though that are immediately subject to review - i.e. use of deadly force.  Use of deadly force is explicitly covered in written police policies and rules (Albrecht, 2011).  Those policies and rules will be used when answering the question "Did the police officer have to shoot that person."   In other circumstances, the officer will have more leeway in using discretion.  This might include how to deal with a youthful offender.   Depending on the nature of the criminal activity, whether it be a minor delinquency or something more major, the police officer may decide not to arrest a juvenile due to the consequences of an arrest.  Some police agencies facilitate discretion options by making arrangements with other agencies in which a juvenile may be referred to instead of being arrested  (Schulenberg and Warren, 2009).

Most citizens, and police officers, believe that police should have wide latitude in utilizing discretion (Banks, 2013).  I agree with that within the limitations of what most people would consider appropriate; i.e. very limited discretion on when to use deadly force or not.  Discretion has to be applied in a way that appears fair across the board - it should not appear to be inconsistently applied.   Police need to know what their overall objective is in regards to public safety, and be empowered to make decisions that are in alignment with that while allowing them to exercise discretion when it makes sense.  Their actions though are under a microscope, so they need to be able to defend their decisions to their peers, their supervisors, and to the public.

                                                                            References

Albrecht, J. F. (2011). Examining police discretion and the use of firearms involving the New York City police department. Pakistan Journal Of Criminology, 3(2/3), 1-10.

Banks, C. (2013). Criminal justice ethics: Theory and practice (3d. ed.).  Thousand Oaks, CA:  SAGE Publications.

Schulenberg, J. L., & Warren, D. (2009). Police discretion with apprehended youth: assessing the impact of juvenile specialization. Police Practice & Research, 10(1), 3-16. doi:10.1080/15614260802128609

 

Media, Emotions, and Criminal Justice

How the Media Impacts Public Perception

of the Criminal Justice System

 

I am always amazed at how some stories catch on in the media when the facts of a particular followed case is not much different than hundreds of other cases that are current around the same time.  There are far too many kids that come up missing, get abused or get murdered - but every so often one case will come along that becomes sensationalized - and become a regular story on the Greta show or CNN.  One thing I have noticed is that it seems to happen much more often on the TV than in print media.  I think what happens is that an emotional connection is made between the individuals who collectively make up the large audience, and the story.  The people sitting in their living rooms internalize the story between themselves, the news anchor they see every evening, and the relatives of the victim that they get to know through countless interviews.

 The media does have the power to shape the story.  As our class text points out, they have an ethical duty to be responsible in how they report the story (Banks, 2013).  The issue is once a story establishes an emotional bond with an at large audience - the television shows getting higher ratings.  I know I  get the feeling that a lot of stories are overemphasized and hyped - in order to keep or increase ratings.

There is a third piece to this phenomena, and that is politics.  The coming together of media stories, individual emotions that become shared amongst a large audience, and individuals who wish to become voted into office come together in a very dynamic environment.   This phenomena as resulted in things like mandatory minimum sentencing, which has had a great impact on the criminal justice system.  We see unintended consequences that often have to be rectified years or decades later.   Examples are Supreme Court cases which allows the shifting of more discretion back to judges to avoid some of the sentences given out that really don't fit the crime.

 Overall I would hope myself and the larger audience put some thought in how to react to media stories.  Is the story really a broad representation of what we find in real life, or is it focused and packaged in a way that might result in an altered state of reality?

 

Reference

Banks, C. (2013). Criminal justice ethics: Theory and practice (3d. ed.).  Thousand Oaks, CA:  SAGE Publications.

 

 

 

Whistle Blowing and Ethics

Whistle Blowing and Ethics

Bill Piersol

According to the course text, there are two kinds of police whistle blowers; those that make a report to internal supervisors and those that make reports to external organizations such as the press or lawyers (Banks, 2013).  Of the two, it would seem like making a report to internal supervisors that document misconduct of other police officers would be considered the honorable and respectable thing to do.   But no, apparently any form of "snitching" violates the code of the blue wall and results in shunning and out-casting,  as a minimum, of the perceived snitch.   In New York City, a patrol officer complained first to a "duty Captain" and then internal affairs about improper stops and arrests.  Sometime later a SWAT team forcibly took the complaining police officer into custody from his apartment and he was then admitted against his will to a psychiatric hospital (Balko, 2011).  While this might have been one of the more extreme responses, it seems no one respects a whistle blower.  The ones who go to external agencies and organizations predictably find the same outcome of being considered a traitor, even when uncovering vicious behaviors of police officers.  The culture of not snitching against another police officer comes into play even when the parties belong to different agencies.   In one case, an on-duty DEA agent (not responding to a call) was illegally passing a car on the right side of a one lane road and flew into a rage after having an accident with a driver who had right of way.  He drew his gun, threw the other driver to the ground and beat him so bad that it caused brain damage.  The city police detective who investigated the incident reported that the DEA agent was in the wrong and documented the victim's injuries.  He testified in a lawsuit against the DEA agent, and as a result his own police force shunned him and treated him as a "pariah", and forced him into early retirement (Balko, 2011).

The police code of silence is predicated on the premise that if police don't protect each other at all cost, then they can't expect support from other officers in dangerous situations (Banks, 2013). My belief is It will take a change of culture and true leadership for a systemic change to occur.  Police recruits who are taught ethics in the academy have to see that their supervisors respect righteous behavior that doesn't overlook improper physical conduct or corruption.  The leadership and chain of command has to support a police code of conduct at the appropriate level.  Small transgressions should not be overlooked, they don't have to be blown out of proportion but when doing the right thing is encouraged for the small things, it can prevent outrageous behavior from taking root.  Policing is a dangerous profession and teamwork is paramount to safety, but it shouldn't be the norm that accepts bad behavior in order to stay part of the team.

References

Banks, C. (2013). Criminal justice ethics: Theory and practice (3d. ed.).  Thousand Oaks, CA:  SAGE Publications.

Balko, R. (2011). Why cops aren't whistleblowers. Reason, 42(9), 48-49

Ethical Dilemmas vs. Ethical Issues

Ethical Dilemmas and Ethical Issues

Starting at page 11 In the first chapter of the class text, Banks (2013) addresses the difference between ethical dilemmas and ethical issues. I found reviewing the differences between the two to be useful early on in this class.  The topic then prompted me to explore the topic of ethical dilemmas, because that is what we as individuals generally have to deal with. Once you understand what issues are wholly within your decision making scope, then you can learn how to approach them - from a critical thinking perspective or an emotional, intuitive manner.

An ethical dilemma is defined as a personal decision, wholly contained within how a person decides a course of action in reaction to a situation.  On the other hand, an ethical issue involves public policy that is out of hands of most individuals, with the exception of empowered decision makers for certain issues, such as governors who can make decisions that affect public policy - in which case the issue is a dilemma for the governor.

While a person can be influenced by others, such as peer pressure within a group; an ethical dilemma still boils down to a personal decision. An example provided was for a prison guard to decide to stay quiet or not when a group of prison guards decided to physically assault an inmate in a pre-planned manner.   Staying quiet would be to acquiesce to what is criminal behavior while to disclose the plan would cause a rift with co-workers, the same co-workers who would have to assist if the objector found himself being assaulted by inmates.  If the decision is to prevent the assault by guards on the inmate, the sub-dilemma is to confront the guards themselves to tell them you cannot support their decision and report them if they don't cancel their plans, or make a report straight to higher management.  

An ethical issue by comparison, is a societal decision - for example should a state allow a capital punishment option or not.  As an individual, you can be active in promoting for or against a policy, but the decision is out of your hands (unless in this example you are a governor that can make a unilateral decision that halts capital punishment).  An ethical issue though could boil down to creating an ethical dilemma, i.e. a correctional guard who doesn't believe in capital punishment but works in a facility that executes those awarded capital punishment.  The dilemma is generally limited to whether to continue working in such a facility or not, it is not a decision to execute the sentenced individual or not, that decision is out of the hands of the correctional guard.

So as described by Banks (2013), ethical dilemmas are the things that every individual in the criminal justice system, and generally in all other professions and life situations, have to face.  It is best that ethical dilemmas be approached in an analytical, critical thinking manner, and not as an emotional response (Hare as cited in Banks, 2013).  Pawlukewicz and Ondrus (2013) listed six areas in public service in general  (not just criminal justice in particular) where ethical dilemmas arise.  Listed below are the six broad areas, and criminal justice relevant examples that I provided:

Gifts / Solicitations:  We've talked about this a lot in class - should a patrol officer accept free meals or coffee?   I personally think free coffee (you can only drink so much coffee) and accepting meal discounts (if it is the restaurant's policy for police and first responders) is fine.  Accepting any free gifts beyond that is a problem, and a police officer soliciting for gifts is always wrong.

 Confidentiality / Treatment Rights:  Confidentiality applies to just about all of personnel involved in criminal justice.  In the course of a case, a whole host of personal information is discovered about suspects,  victims, witnesses, and other parties.  Often this personal information is relevant, but it has to be handled, utilized, and shared  (discovery process) in a proper manner - and protected from improper use.   Regarding treatment rights, in the criminal justice field it generally relates to not withholding treatment as a leverage to perhaps influence an interrogation.

Safety:   While in custody or in confinement, criminal justice personnel have a responsibility for the safety of those in custody or confined.

Boundaries / Dual Relationships:   This involves improper relationships between criminal justice personnel and people they come across in their duties.  Examples would include officials demanding or accepting sexual activities to overlook criminal transgressions,  and developing personal relationships with victims.

Self-Awareness:  Pawlukewicz and Ondrus (2013) used this as a catch all category.  This involves a duty to consider personal ethics in all activities.  This involves having the inner voice to discern what actions cross and ethical boundary or could lead to that.  This also includes the criteria would my boss, wife, or kids approve of a response to a situation.

Duty to Warn:  In criminal justice, this often comes into play for defense attorneys  - when a client indicates occasions of child abuse or criminal plans that are still in the execution phase.

In conclusion, it is ethical dilemmas that individuals primarily face, and ethical issues are addressed by society.   A understanding of what is right and wrong, and awareness of any relevant policies in effect, guide individuals into what is the proper course of action.  Ethical dilemmas are best approached in an analytical manner, not in an emotional manner.

References

Banks, C. (2013). Criminal Justice Ethics: Theory and Practice (3d. ed.).  Thousand Oaks, CA:  SAGE Publications.

Pawlukewicz, J., & Ondrus, S. (2013). Ethical dilemmas: The use of applied scenarios in the helping professions. Journal Of Social Work Values & Ethics, 10(1), 2-12.

 

Stoicism as an Ethical Guide

Reviewing the class text Criminal Justice Ethics, I was drawn to chapter 13 for my first blog contribution.  The chapter is titled "Egoism, Pleasure, and Indifference".   The section that really got my attention though was on "Stoicism"

The first thing of particular interest was discovering that stoicism came about during a period of great transition.   The major transition was the shift of a social-political environment of individual city-states into an environment of a larger environment of an empire, the Macedonian Empire.  It struck me as I read that, that the world right now is experiencing a major transition due to globalization and the changes brought about because of the information age as we moved from the industrial age.

The gist of the issues that facilitated the rise of stoicism is that in the city-state era, understanding of what was virtuous and good was the common understanding of the local community.  When the far reaching empire era came about, there had to be a more broader, universal understanding of what was virtuous and good.  As the old, local constraints of social norms were going away, new religions and philosophies such as Epicureanism and Stoicism evolved.   Stoicism promoted that individuals be driven by their own will to be good, and to be indifferent to external influences.  It would not be an excuse to do something wrong by saying you were only following what others were doing.  

I see the parallel to law enforcement this way, in the older days the law enforcement culture was more closed and controlled by leaders within the culture, which could be good or bad.  Now a days, what happens within one city or within a police department can be broadcast around the world in minutes using social media or other global media networks.  The one way to attempt to be consistently virtuous is to adopt an internal set of guidelines that will stand in the light of day for all to see.

As part of researching the issue for this blog, I read a journal article entitled How Ethical Theory Can Improve Practice: Lessons from Abu Ghraib (Snow, 2009).   The gist is that the abuses at Abu Ghraib by U.S. Military prison guards occurred because the environment was not seen as connected to the outside world, that they were in a closed environment that was dangerous (subject to mortar attacks and assaults by prisoners) and they started to take things in their own hands, also with the feeling that their superiors wanted the prisoners "softened up".   If the prison guards had been trained and groomed to develop a more stoic approach to their job, individually they would of been guided to take a more universal virtuous approach that could of prevented a mob mentality to develop that accepted bad treatment of prisoners.

Snow, N. (2009). How ethical theory can improve practice: Lessons from Abu Ghraib. Ethical Theory & Moral Practice, 12(5), 555-568. doi:10.1007/s10677-009-9180-8