Ethics and Apprehend Criminals - Research Paper Example

? Law and Order, at what Cost: Analyzing the Ethics of Bending Due Process Guarantees to Apprehend Criminals Law and Order, at what Cost: Analyzing the Ethics of Bending Due Process Guarantees To Apprehend Criminals The expedient needs of law and order have often trumped the rights of the accused to due process. Whilst the Constitution is replete with guarantees to ensure a fair trial for those charged with the commission of criminal offenses, law enforcement officers routinely violate these laws and justify their behavior in the name of public safety. The question that this paper seeks to answer is this: “should police officers violate the law in order to trap those who would otherwise escape their reach?” This paper answers this question in the negative and will make its case through the main arguments that if police officers violate the law, they will only make it easier for otherwise guilty criminals to go scot-free because the courts will rule that the process of apprehension or the procurement of evidence was tainted with illegality. Two concepts will be discussed here: the fruit of the forbidden tree doctrine, also known as the exclusionary rule; and the concept of “outrageous government conduct”. Lastly, this paper will argue that allowing law enforcers to bend the rules will herald a shift from restorative justice to retributive justice – where criminals are treated as scum of the earth, rather than human beings whose rights still remain to be sacrosanct. “Fruit of the Forbidden Tree” Doctrine On the first argument, the fruit of the forbidden tree doctrine, also known as the exclusionary rule, states that “not only is the Government precluded from basing a conviction on illegally obtained evidence, but also is forbidden any use of evidence derived solely from the product of the unlawful search and seizure.” (Bartlett, 1967: 251). A usual example of this is confessions extracted through torture. An accused in custody who was subjected to water treatment or psychological duress in order to extract and admission that he committed the crime, when he is subsequently brought to court to be tried, his confession cannot be used to evidence his guilt. It can, however, be used to prove irregularity in his arrest and custody. These are “procedural safeguards” (Brandsdorfer, 1987: 1082) designed to ensure that constitutional precepts are followed and that a fair trial will be given to the accused. Indeed, even the right of the accused to be given a Miranda warning is of such a high value that failure of the policemen to comply with this renders the arrest irregular. No doubt, if the police officer decides to violate the law and ignore the rules on arrest and custody, the courts will afterwards use it to acquit the accused, even though he or she may be guilty of the crime charged. A very powerful criminal who can hire the best lawyers, for example, will be exculpated from the crime he committed because the police officers were careless in the application of the rules. At the end of the day, this renders law enforcement and the criminal justice system inutile in the apprehension of criminals. “Outrageous Government Conduct” The jurisprudence surrounding entrapment and outrageous government conduct as valid defenses in a criminal prosecution remains to be much discussed, and the debates on whether and when these defenses may be employed remain to be the subject of much debate and controversy. The need to balance the demands of law and order, on the one hand, and the rights of the accused to due process on the other, is the central dilemma that undergirds the debate. The notion that behavior of state agents that “shocks the conscience” could constitute a violation of the right to due process of the accused and consequently, could secure the dismissal of the charges against him was first laid down in the case of Rochin v. California [342 us 165 (1952)]. In that particular case, the officers forcibly induced the accused to vomit capsules that they believed to be containing drugs. This decision served as the progenitor of the defense of “outrageous government conduct”, which essentially provides an extraordinary defense to the accused in a situation wherein the police had acted in an appalling, reprehensible manner that violated basic precepts of justice and decency. This was further refined in the case of United States v. Russell(1973):  "[W]e may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction (citing Rochin v. California, 342 U.S. 165. It must be underscored that only extremely exceptional cases should be considered here. A mere failure to disclose one’s role as an undercover informer does not come under the definition of outrageous conduct, as in the case of Hoffa v. United States [385 US 293 (1966)], nor does using an assumed name and identity in conducting at telephone transaction, as in the case of Lewis v. United States [385 US 206 (1966)]. To quote Burrett (1996: 1949) has stated that “the entrapment and outrageous government conduct doctrines involve the normative issue of whether the government should have used the inducements it did.” Restorative Justice This paper then argues that allowing law enforcers to be heavy handed in their tactics against criminal elements, particularly those who are difficult to reach, creates a culture of retributive justice. As it is, the main problem with the criminal justice system is its retributive character, which should be made into restorative or rehabilitative. (Judah, E. and Bryant, M. 2004: 2) The main focus of a retributive system is punishing the offender for his transgressions to society. At the most pragmatic level, this has not contributed in lowering the crime rate as what happens is that the offender is merely sent to jail and there he becomes exposed to the gangs and the criminals. There are no efforts to work towards his integration back into society or even reconciliation with the victim. It is litigious and protracted. This becomes even more of a problem when the offender is a child offender, a situation that becomes even more possible now that criminals are getting younger (Diplock and Plecas, 2010: 1). The over-all effect that this has is the creation of a punitive culture that will only result in children becoming even more hardened and even more embittered. Instead of providing a nurturing atmosphere so child offenders can learn and change their behaviour and integrate once more into society, they are treated as outcasts and are made to feel marginalized, thus heightening alienation from authority figures. This is helpful neither for the child nor for the society that these policies purport to protect. This paper suggests a paradigm shift from retributive to restorative – less emphasis on courts and hearings and trials, and more emphasis on counseling and mediation. Less emphasis on discrimination and social alienation, more emphasis on integration and inclusion. References Bartlett, G. (1967). “Search and Seizure: ‘Fruit of the Forbidden Tree Doctrine’”. William and Mary Law Review, Vol. 9: 1, pp. 250-255. Bransdorfer, M. (1987). “Miranda Right-to-Counsel Violations and the Fruit of the Forbidden Tree.” Indiana Law Journal, Volume 62: 4. Pp1061-1100. Burett, J.D. (1996). “Reconfiguring the Entrapment and Outrageous Government Conduct Doctrines”. Georgetown Law Journal. 84 Geo LJ. Pp 945-985. Diplock, J. and Plecas, D. (2010). “Revisiting Age and Crime.” The Journal of Criminal Justice Research. Volume 1, No. 2. Page 1-21. Judah, E. and Bryant, M. (2004). Criminal Justice: Retribution v. Restoration. NY: Hayworth. Read More