Professional Discretion and Crossing Ethical Boundaries - Research Paper Example

When does the use of professional discretion cross ethical boundaries Introduction In the recent past,there has been increasing debates concerning the degree to which professional discretion has been receiving different challenges. This development has been sparked by recent progress that has been happening in different fields like health and other services offered in the public sector. This paper attempts to make a detailed analysis of professional discretion, by focusing on how the concept has been receiving attention in various public service sectors. It examines how the prosecutors in courts have been conducting their ethical practices in the course of their legal profession. 2. Professional discretion In the process of carrying on with responsibilities at the workplace, an employee would often find it necessary to rein in his personal activities and conduct, this behavior continuous on even if what is being done is not related to the job (Thomas 56). In the business world, consumers always make judgments about a company depending on the actions of its employees. This happens even if the particular activities are done with a positive intention. Professional discretion can be described as the choices an individual makes in his professional duties to be cautious about the things he says or takes part in. People that are fond of making discussions over issues relating to their personal are described as being indiscreet or lacking discretion. 3. Ethics Ethics, which are also called moral philosophy, describes a category of philosophy that deals with learning of issues related to right or wrong, as well as the manner in which we are expected to live by such an understanding (Thomas 24). The concept of ethics concerns our ability as human beings to make proper moral judgments concerning practices that are right or wrong in accordance with the societal and moral expectations (Reynolds 23). Right and wrong refers to the qualities or judgments that are placed on people’s actions and their manner of conduct during their daily lives. Ethics play an important role in helping people establish proper moral choices especially when it comes to situations where moral issues are involved. It is important to realize that in our everyday lives, it is a desirable habit to have moral rules. This is not because they are useful in expressing absolute truth, but it is because they offer essential guides as far as normal circumstances of life are concerned. 4. The value of ethics Different views have been raised concerning the need for ethics in our general life and professional activities. One of the views holds that human beings, in their professional and non-professional lives require special rules as well as principles to offer direction over difficult decisions that involve moral issues. When conclusions and decisions cannot be made about ethical frameworks, people end up relying on their emotions, instincts as well as personal values (Thomas 28). However, these approaches are not adequate in providing answers and solutions to various moral dilemmas. Ethical knowledge makes it possible for an individual to raise questions and make analyses that do not raise issues in business, politics and other areas of life. In this case, the criminal justice systems stand to be encouraged to take this direction. Some of the common issues that need to be raised as far as criminal justice systems are concerned include; functions of law enforcement systems, the authority and general mandate carried out by the state among others. Another significant reason as to why ethics are important considerations is the fact that they increase people’s sensitivity on various issues involving right and wrong, and the way they behave towards this knowledge. In this regard, they are helpful in the process of identifying acts that carry certain levels of moral conduct. 5. Professional discretion in the legal institution 5.1 The prosecutor In the court system, the prosecutor features prominently as one of the most fascinating players, whose duties include conducting criminal investigations alongside the police. In this process, he establishes contact among all the parties involved in the criminal case and includes the victims, the police, suspects as well as any witnesses to the case (Zelden 34). After completing all the investigations, it is the prosecutor who makes the decision about whether there exists sufficient grounds for following up the case in the court. In as much as the prosecutor is often viewed as the representative of the government in the court’s criminal process, the perspective does not portray the actual complexity that comes with the position. In addition, it does not effectively provide the significance of the processes involved in criminal courts as well as the entire justice system. The great level of significance that accompanies the prosecutor’s job is based on the main position that he holds in the entire legal systems. It is important to note that judges and other parties involved in the law enforcement process are only involved in certain focused aspects that are limited in nature. Each of the actions carried out by these players starts and ends in certain aspects that are not easily noticed. Conversely, the prosecutors role is profound, he is an active player in the investigation process which includes, suspect arrest, prosecution and conviction. These are comprehensive processes that places him in close contact with all the parties involved in a court case, therefore, the prosecutor is a person that is expected to have a high level of integrity and professional experience. 5.2 Prosecutors discretionary power From the foregone discussion, it is evident that discretion is a very essential and profound force that is characteristic of all prosecuting attorney in a criminal justice system. In fact, the enormity that is characteristic of the discretion process as conveyed by legal prosecutors is largely determined by the absence of proper checks on the decisions that are arrived at by prosecutors (Marguery 67). This follows the fact that most of the decisions that are arrived at by the prosecutor’s office happen behind the curtains (Davis 56), away from the curious eyes of the public. The court systems rely on the professionalism of the prosecutor and his discretional powers to make worthwhile judgments about the case before it is brought to the court. In every country, there are certain procedures that have been laid down to ensure that courts make reliable judgments concerning criminal cases and other forms of disputes through fair systems of justice and a high regard to discretion from all players in the justice system including the prosecutor. For a very long time, the prosecutor’s discretional powers have been bolstered by past records about suspects in the court system. In this regard, he relies on these records to develop moral judgments about the nature of the case as well as whether there is sufficient grounds to prosecute the suspect in the court of law. Other factors that play a role in enhancing the prosecutor’s discretionary powers include; the types of crimes committed before, exact number and nature of past convictions that the suspect has had before among many others. In this case, the increase in scope of the prosecutor’s discretion happens about the judicial discretion that is required at the sentencing stage. The laws that relate to sentencing often require that judge sentences an offender for a certain time of incarceration, in this case, if there is any sentencing discretion that may come before, is often not applicable. If the prosecutor realizes that a compulsory life sentence can happen to be too extreme for the offender, he can use his discretion to decide not to declare prior convictions in the process of charging the case defendant and avoid the mandatory sentence. Alternatively, the prosecutor is at liberty to charge the defendant by classifying him as a repeat offender, this can be followed by a compulsory sentence after the conviction process. In this regard, he may employ the prospective punishment as a way of leveraging in the course of negotiating a plea. All these approaches can be used by the prosecutor as provided for in his legal discretionary powers in the legal justice system 6. When does the use of professional discretion cross ethical boundaries? As pointed out earlier, the work of the prosecutor in the justice system is to stand on behalf of the government in all criminal prosecutions. On the other hand, the process of the criminal courts operates under what is referred to as an adversarial system. In this system, attorneys advocate a particular side, in this case, the specific functions of the prosecutor and the defense are very distinct. Defense attorneys are expected to do their best within the ethical lines to ensure that their clients are given favorable outcomes; this is the same for those clients that are guilty according to the evidence presented. On the other hand, the specific role of the prosecutor is quite distinct, his main duty is to ensure that justice prevails for all parties, he is not to make a conviction (Suthers 67). According to this legal mandate for the prosecutor, it is very wrong for a court prosecutor to make a conviction for a crime to an innocent person. In this regard, the prosecutor is expected to work with certain limits in order to reduce the chances of any wrongful convictions. Secondly, the prosecutor works on behalf of the government and not for an individual, on the other hand, private attorneys are hired to ensure a fair legal process and outcome for their clients. In all these functions, they are expected to work within the ethical standards, and not influence court outcomes in their favor. The society, benefits immensely from a court system that gives due regard to ethical standards, as well as fair trial and justice (Peterson and Dixon 539). In this manner, the prosecutors are not expected to find themselves under undue influence or duress to undermine their powers and expectations in the right legal practice. Professional discretion crosses ethical boundaries when court prosecutors find themselves at compromising situations that make them disregard the rule of law. All forms of bribery have been cited as evidence of professional discretion crossing the ethical boundaries. Besides having stable and reliable legal structures that condone corruption and its forms in the legal fraternity, prosecutors and other players are expected to use their ethical and moral judgment to practice what is right and deserving in the face of the law. Works Cited Davis, Angela. Arbitrary justice: The power of the American prosecutor. New York, NY: Oxford University Press. 2007. Print Marguery, Tony. "The Plurality of Functions of the Polish Minister of Justice – General Prosecutor: Paradox or Adaptation?" European Journal of Crime, Criminal Law and Criminal Justice (2007): 67-82. Print. Peterson, Richard and Dixon, Joe. Court oversight and conviction under mandatory and non-mandatory domestic violence case filing policies. Criminology & Public Policy, 4.3. (2005). 535–557. Print Reynolds, William. Judicial Process in a Nutshell. St. Paul, MN: Thomson/West, 2003. Print. Suthers, John. No higher calling, no greater responsibility: A prosecutor makes his case. Fulcrum: Golden, CO. 2008. Print. Thomas, Elisabeth Louise. Emmanuel Levinas: Ethics, Justice, and the Human beyond Being. London: Routledge, 2004. Print. Zelden, Charles. The Judicial Branch of Federal Government People, Process and Politics. Santa Barbara, Calif.: ABC-CLIO, 2007. Print. Read More