Ethics in Criminal Justice - Research Paper Example

Research Paper On Ethics in Criminal Justice no: Sociology March, Introduction Ethics are moral virtues that govern a person’s behaviour, conductor wellbeing in society. They often govern each individual’s goal in life and career development except the secular humanist. Universally some moral virtues cut across all forms of professions and cultural beliefs like upholding life and civil liberties through due process of law. Other moral virtues are professionally governed and linked. For instance, doctors and nurses worldwide have “a duty of care” to treat all patients equally without any form of discrimination and are determined to save the life. To lawyers, upholding the right to a fair hearing and discharging the duty of legal representation to their clients and Courts of law is a professional moral conduct. This similarly applies to other professional courses like Accountancy. In this paper therefore, the researcher aims at underscoring the applicability of ethical and moral considerations plus their foundations in the criminal Justice system from a sociological point of view. The author is guided by two cardinal justice doctrines of discretions and due process of law and their relationship with the moral principles of utilitarianism, ethical formalism and religion within the criminal Justice system. The writer then concludes that morality and ethics are the foundations of a fair justice system. The manner in which these two concepts are applied in the criminal justice system indicates whether or not there has been abuse of the justice system. When an officer abuses his or her discretion, he or she is likely to defeat the due process of law which is a consequence of unethical and immoral conduct. Sometimes it is the manner in which offenders conduct themselves and then defeat the course of justice in unwavering due process of law guaranteed under the fifth and Fourteenth amendments of the U.S Constitution as seen in a combination of the following social points of debate. A critical analysis of the ethical considerations of discretion and due process of law in the Criminal Justice System A. Definitions of Discretion and Due process of law concepts and how they apply to utilitarianism, ethical formalism and religion Prior to defining discretion and due process, I wish to commence this part by defining the ethical concepts. I have read the article entitled “What Utilitarianism is, by John Stuart Mills (1863) and according to him, Utilitarianism simply means a moral belief or understanding that appeals to maximum satisfaction of one’s conduct or virtues in society. This utility must be appreciated by the majority than the minority. In modern times it’s referred to as consequentialism meaning that maximum satisfaction is a consequence of one’s moral conduct yielding happiness to others in society. I have benefited that utilitarianism is derived from the manner in which a person conducts himself or herself thereby creating the moral good of society other than pleasure. The author presupposes that moral actions are right in as much as they tend to promote happiness and the reverse is true. He gave the example of Jesus moral principle that moral virtues should be seen when a person does something which he or she would love to be done unto them. Another literature I have read and learnt the same principle was written by Walter Terence Stace (1937) who similarly appeals to “moral absolutism” as the foundations of fairness and justice. Ethical formalism is a theory that defines morality in relation to utilitarianism. It also appeals to proper moral judgments guided by ethics. In this belief, I have further read the article titled “the Categorical imperative” by Emmanuel Kant (Kant, 1724-1804) and according to him Ethical formalism is not determined by the resultant implications of an act done by someone but the intent for which that act was intended to achieve morally and ethically. The benefit I derive from Kant is that whatever somebody does will be judged others morally and for this reason ethics and morals are inextricably intertwined or inseparable. As we shall see in this discussion, people who have power of discretion and are enforcers of due process need to have moral and ethical in order to confer criminal justice. The reasonable person will Judge them based on their decision making which should be necessary and not just considerate. In criminal Justice, an act done by the officer which is taken to be a bad act but consequently yield positive or good results for the majority people in society is according to Kant taken to be a formally good categorical ethical conduct. In other words it’s the ethical end that justifies the means by which the act was done. As far as religion is concerned, he too appealed to Jesus’ golden rule of doing to others what wish to be done to you. Therefore, this ethical formality forms the foundations of a fair and just criminal justice system through discretion and due process of law. Religion is that extra ordinary, supernatural belief and worship of the Supreme Being. To Christians, it is the belief and worship of God, the creator of heaven and Earth, the beginning and end in everything. To Muslims is the worship of Allah through prophet Mohamed. To the traditionalist, it’s the worship of small gods and to the secular humanists such as Atheist; it’s the worship of nothing but themselves. In this paper, the writer is focusing ethics and morality and thus secular humanism will not be considered for it’s against moral virtues. I have read a book by Bernard Gert titled “Morality versus Slogans” (1989) and in his 37 pages concludes that ethics are born with Christianity as a religion because it appeals to morality. They embedded in the ethical principles of utilitarianism and ethical formalism. For this reason, I have benefited that while exercising discretion, the officer in charge should appeal to the golden rule of Jesus that “do to others what you would need them to do to you.” In other words, be equitable in discharging your duties as a police officer or judge because you are answerable to supreme God who will also judge you for what you have done. Therefore, exercise your discretion knowing that God is watching you and desires you to do the right thing before His people. This is how discretion is applicable to utilitarianism, ethical formalism and religion. According to another literature I have read by Lawrence Sherman titled “learning police Ethics” (1982) discretion simply means the ability to discern or determine right from wrong without necessarily being guided by either a written law or someone else. It is a personal discernment of one with authority of what is good in the prevailing circumstances of each case. It can also be the ability to know what should be said in public and what you shouldn’t say for the benefit of the majority. I have thus learnt that sometimes, majority does not determine what is right and wrong but your conscience does and this where morality plays a very significant role. That is why discretion must be exercised wisely and it shouldn’t be abused. It must be exercised with good conscience, understanding and belief. For a person to become prominent in decision making, he or she should be in position to make wise decisions. It thus requires a person to have good moral and ethical virtues in order to determine right and wrong without any bias. Some of the most prominent people with power of discretion include judicial officers and other administrative officers such police, civil servants in government departments, college administrators for both government and private institutions, lectures in higher institutions of learning among others. For instance, a prosecutor may exercise discretion by determining from the evidence available which offence has sufficient evidence to support homicide committed. If the facts of the case constituting to commission of the offence indicates two or more offences to be charged, one is a major offence and other a minor one like theft and robbery, then prosecutorial discretions requires that charge the offence with enough evidence. This power of determining which offence to change is left to the prosecutor and it is what is termed as discretion. It also applies to police officers. In gathering evidence, they have the discretion to gather evidence that not only supports the prosecution but also the defence as the essence of fair hearing or due process of law. If they choose to destroy evidence implicating the accused there destroying the prosecution case, then they have abused their discretion. So, it can go either way because the power to investigate is vested in the police force. Most times they have been responsible for doing shoddy work leading to the acquittal of guilty and punishment of the innocent which is morally wrong. It is at this moment that religion is applicable to discretion because religious virtues will convict the officer’s conscience to do the right thing and confer equity (Sherman, 1982). After carefully reading the article titled “Due process- How much is enough? By Js Fuerst and Roy Petty (1985), I have learnt that due process of law simply means the right to a fair hearing. It is the process by which Judicial officers administer criminal Justice to all without discrimination, bias or abuse of discretion. They write from the perspective of an “operating government” and place emphasis on the manner in which family Courts administer property right and other rights incidental there to in family law cases. They look at all civil rights liberties such as the right to education, privacy, and social security among others which are guaranteed under the fifth and fourteenth amendments as only applicable if there was due process of law or the right to a fair hearing for all parties concerned. It does not matter whether you are a complainant or defendant in any case but what is important is the manner in which Judicial officers handle such cases. Either party must be accorded a fair hearing. It is guaranteed when the state puts in place mechanisms for good service delivery to her vulnerable citizens and those given authority by the state to deliver such services to do it without bias, favour, ill will or undue influence. Where discretion is necessary, every decision must be met judiciously and equitably. The state must gear the protection of the fragile and vulnerable citizens through the due process of law. It is applicable to utilitarianism and Ethical conduct in a sense that failure to observe due process of law means injustice to the poor or vulnerable citizens. A person with moral virtues as judicial officer will always place people’s rights supreme to everything done in his or her power without discrimination. In relation to religion, the officer should do everything that he or she desires to be done to him or her. That is why the authors gave the analogy that in heaven there will be no law and the lion will lie down with the lamb. While in Hell, the law will fetch those who did wrong while on Earth. It is simply the analogy equity and justice as God the Supreme Being will Judge the acting judicial officer. It does not discredit the judicial system as being contrally to religion but it should be in conformity with good conscience, justice and fairness in the manner you wish God to do them to you. B. The Influence of discretion on decision making process in Criminal justice and its applicability by professional to due process of Law. As earlier stated, discretion is power of proper discernment in relation to ones ethics and morality. Criminal justice is a phenomenon that starts with the commission of the offence and investigations, to charging of the offender until he or she is tried and either convicted or acquitted of the offence. Whereas there are written codes governing the administration of criminal justice system, the trial process sometimes does not bar an officer of the police or a judge from exercising discretion. This is done through individual exercise of other alternatives of criminal justice without necessarily affecting the due process of law. Most often it is exercised by police officers in determining whether or not to arrest the suspect or conduct any investigation into the alleged criminal offence. Sometimes it’s exercised by prosecutors who after investigations by the police recommend that there is no sufficient evidence to prosecute the offence; either drops the case or advices that the case is taken on as a civil case. He or she may also advice police to conduct a further investigation into the alleged offence. There is another discretionary possibility of plea bargaining where the prosecution and the defence bargains on the possible course of criminal action than going adversarial. Judicial officers also exercises criminal discretion when accepting or refusing to grant bail, plea bargain, ruling on whether there is a case to answer in preliminary trials and if the case went on full trial, at the stage of sentencing based on how counsel for the defense mitigated the sentence. For parole discretion by board members, they do exercise this discretion through their intuitive judgement by either releasing inmates from custody or not. These are all forms of exercise of discretion in the criminal justice system (McCleary, 1981) . However, I have benefited that the manner in which the above discretion is exercised by the various stakeholders in the criminal justice system will have far reaching consequences on the due process of law. If poorly applied, it will affect the entire justice system while if it is properly exercised will have far reaching fairness in the entire system. For instance, if a police officer knows that there is sufficient evidence to prosecute offence and instead chooses to destroy that evidence thereby aiding the acquittal of the accused or not to be prosecuted at all, it affects the due process of law guaranteed under the 5th and 14th amendment of the US Constitution and is purely contrally to the moral ideals of utilitarianism, ethical formalism and religion as explained above. Therefore, discretion has a big influence in decision making and is a good yardstick in determining how professional apply their moral virtues in the administration of criminal justice (McCleary, 1981). C . The effect of Due process in Decision making from an Ethical Point of View The effect of due process ethically is achieving justice for all through respect of “rule of law” (Rawls, 1994). Due process helps in cementing the independence of the judiciary and the equitable treatment of each party to the case fairly. Ethics and moral virtues are back born of criminal justice and must be upheld in order to promote trust and confidence in the institution of the Judiciary by the public. It is the process of rendering what is due to each person justly and fairly without fear, ill will or favour. Decisions are done without any sentimental biasness but by the “rule of law”. Decisions made must be concrete and specific in relations to the rules of criminal law. For instance, I have read the case of Rochin v California (1952, P.174), where the supreme Court upheld the due process of law guaranteed under the fourteenth amendment by carefully evaluating the maner in which the police forced themselves into the petitioners bedroom without searcch warrant and when petitioner swallowed capsules containing morphine, they forced him to vomit it using emetic substance inserted into his stomarch which the Court said that it was an obuse of the petitioners civil liberty. The Court reasoned that the methods used in obtaining evidence were prejudicial to the civil rights of the petitioner in a sense that it deprived him of the right to privacy and property hence violating the due process guaranteed under the 14th amendment. I have learnt from this case that the police ought to have lawfully subjected the petitioner to proper medical examination and got medical report to that effect. It true that the capsules were prohibited drugs but the manner in which they were forced out of the petitioner’s stomarch was an abuse of due process of law. I am convinced that this was a fair and conclusive judgement showing that justice was achieved as a consequence of due process of law. I am also persuaded by another literature written by Phillip Jenkins tilted “Crime control and due process.” He observed that justice and fairness as the effect of due process relates to manner in which criminal trials are conducted. In preliminary stages of criminal trial, the prosecution must lead its evidence to convince Court that there is a case to answer. In doing so, the defence should be given an opportunity to cross examine the defence witnesses with the aim of discrediting the evidence tendered in Court. If the evidence is so overwhelming pointing to the guilty of the accused person, then the judge ethically does not pass a verdict but rules that there is a case to answer and the accused is put on his or her defence to be heard. I have thus benefited that the entire criminal trial is therefore conducted in such an equitable manner that both sides to the trial are accorded a fair hearing. Whether the accused is at the end it convicted and sentenced or not, Justice will have been done. This is what utilitarianism call maximum utility or satisfaction. To the ethical formalist, it is the art and science of passing moral judgments- the manner in which the “end justifies the means” as long as the due process is complied with. In relation to religion, the effect of due process is coined in the golden rule that do to all parties in a criminal as you would wish to be done to you. Therefore, the judge applies due process knowing that God is watching and desires him or her to be just and fair in decision making and that is the effect of due process in decision making from an ethical point of view (Jenkins, 1995). D. How Discretion and Due Process provide a Foundation for Morality within the Criminal Justice System. This is premised on inculcating moral virtues into all officers that handle crimes. I have stated above that utilitarianism, ethical formalism and morality are inextricably intertwined. You cannot divorce one from the other and they are the foundations of fairly criminal justice system. I draw my inspiration from Emmanuel Kant’s literature titled “Categorical Imperative (Kant, 1724-1804” that the ability of making moral decisions is based on moral reason and observation as the foundation of a criminal justice system. Proper adjudication on matters criminal justice appeals categorically to objectivity than subjectivity by observing the moral code of treating other fairly in the manner you would love to be treated. Moral philosophy which is a cornerstone of discretion and due process of law is the ability to reason objectively and making moral judgments. If discretionary powers are abused, then the moral foundation and due process will also be abused. Therefore, the manner in which criminal law officers exercise their discretion and handle due process is based upon the moral foundations of utilitarianism, ethical formalism and religion. Without these moral parameters, there is likelihood that discretion and due process will be abused. Conclusion. I have come to the conclusion that morality and ethics are foundations of fair justice system. The manner in which these two concepts are applied in criminal justice system has left an unending debate that often times are misinterpreted. When an officer abuses his or her discretion, he or she is likely to defeat the due process of law which is a consequence of unethical and immoral acts. Sometimes it is the manner in which offenders conduct themselves and then defeat the course of justice under unwavering due process of Law aimed at protecting people civil liberties guaranteed under the written codes. The ability to make right decisions is a subject of paramount moral considerations. A person without morals can never be justiciable because he or she lacks the supreme directions of ethical conduct. Law, ethics and justice emanate religion and failure to observe such inherent golden rules of justice is a total failure of the entire criminal Justice system. We may have different understanding of religion, morality and justice but the fact that moral virtues come from Christian religious conduct is hard truth which will last for the test of time. If discretion and due process is applied by officers in charge properly, we will eventually reduce crimes and promote justice for all. References Gert, B. (1989). Morality Versus Slogans. Michigan: Western Michigan University. Center for the Study of Ethics in Society. Jenkins, P. (1995). Crime control and due process . Journal of Criminal Justice and popular Culture 3(2) , 25-42. Kant, I. (1724-1804). The Categorical Imperative. Retrieved March 16, 2013, from Kant’s Moral Philosophy: http://www2.fiu.edu/~harrisk/Notes/Ethics/KANT.htm McCleary, R. (1981, April 10th ). How Structural Variables Constrain the Parole Officers Use of Discretionary Powers. Retrieved March 19, 2013, from National Criminal Justice Reference Service: https://www.ncjrs.gov/pdffiles1/Digitization/75189NCJRS.pdf Mills, J. S. (1863). What Utilitarianism is. Retrieved March 14, 2013, from Utilitarianism: http://www.utilitarianism.com/mill2.htm Rawls, J. (1994). The Rule of Law. Retrieved March 18, 2013, from Punishment: http://ethics.sandiego.edu/Applied/deathpenalty/Rawls.html Rochinv.California , 342 US 165 (Supreme Court January 2, 1952). Roy, J. F. (1985). Due Process. Retrieved March 18, 2013, from How Much is enought: http://www.nationalaffairs.com/doclib/20060406_issue_079_article_8.pdf Sherman, L. (1982). Learning Police Ethics,. Criminal Justice Ethics Journal, Vol. 1, No.2, 10-19. Stace, W. T. (1937). The Concept of Morals. In W. T. Stace, Ethical Relativity (pp. 1-68). New york: Macmillan Publishers. Read More