Crime and Punishment: A Conceptual and Ethical Enquiry - Research Proposal Example

Ethics This paper begins with sharing very deep and disturbing assumptions about lawyers, their conduct and the fate of the legal system. The public has little confidence in lawyers’ ability to live up to ideals of equity, fairness, and justice. People think that an attorney’s ability to make the truth appear false and the guilty appear innocent automatically makes them talented liars. The lawyers’ ability to argue either side of an issue strongly raises the level of distrust amongst people. The most important person to the victim of any crime is a prosecutor. (Braswell 2005) Victims see the prosecutor as the person who is going to represent them and indeed the purpose of the prosecutor is to represent the state or the United States against those people whom have wronged us. This does not mean, however that a prosecutor is beyond misconduct. A prosecutors career path is enhanced by being, and being known as "winner", which enables the prosecutor to get more visible cases, and to obtain higher position and compensation in the prosecutors office. In fact, prosecutors take an enormous amount of pride in their “conviction ratio”. (Braswell 2005) Also, the career path for the successful prosecutor, as we have seen from the past, can go right up to the White House or to the position as Attorney General or as a federal judge at any of the 3 levels (District Court, Circuit Court of Appeals and the Supreme Court). The loss of a criminal case once commenced through obtaining an indictment can cause a major reversal in a prosecutors planned career, and with such pressure to succeed, what difference (the prosecutor argues to himself) does it make if the prosecutor cuts a few corners here and there. The defendant is probably guilty, of something, if not the crime for which he/she has been indicted. (Simon 1998) In an economy which is becoming more concentrated, with big business and government becoming larger all the time, the economic opportunities for the prosecutor may appear to be dwindling in the private sector, whereas with government growth his/her prospects are steadily increasing, as long as the prosecutor wins. A prosecutor wants publicity, and so does the prosecutors superiors and political masters. (Simon 1998) If one of the major news media target someone for criminal prosecution, the prosecutors superior will jump at the chance, because there is a guarantee of publicity at least by the news medium which indicated its desire to have the person indicted and convicted for whatever reasons the medium put together for sale as soft news to the public. When the prosecutor responds to the announced wishes of the major media, the prosecutor is rewarded with favorable publicity. However, when the prosecutor fails to do the mediums bidding, the prosecutor can expect to receive little or no publicity, which will put the prosecutors career in a terminal, downward tailspin. It must be pointed out that not all prosecutors fall within the bad category, and obviously that most judges would not even see that the decisions they make enforcing prosecutorial misconduct were bad decisions. After all, many people working in the criminal justice system "know" that a person is not indicted unless he/she is guilty, especially when reading the reports from the media which caused the indictment in the first place. (Braswell 2005) Judges are there to protect the public from oppression, but the prosecutorial oppression occurs without any adversary, and any efforts to expose combat prosecutorial oppression can be expected to result in even more oppression, more prejudicial, illegal activity, a greater chance for conviction, and a longer sentence. Judges often favor prosecutors because many judges were prosecutors and were appointed judges for that reason. Prosecutors in effect are judges-to-be, or judicial descendants, and treated as such by current judges, to the extreme prejudice of defendants who are being prosecuted through unlawful, unconstitutional and oppressive tactics. (Braswell 2005) Its something similar to reading a judges decision for anyone except the involved parties and their attorneys. Almost every decision is written in a way to convince persons unfamiliar with the case that the decision is a just one. Accordingly, when a judge says something such as "there is absolutely no evidence at all in favor of the plaintiff", a person not familiar with the affidavits, testimony, exhibits and other documents in the case would probably assume that the decision is accurate, and not realize that the decision is using the language required to be used to dismiss a case. (Leighton 2001) In any case, judges are not immune from societal pressures. Judges would like to be appointed to higher courts; they would like to be appointed as CIA or FBI director; they would like to continue their friendships with the persons who appointed them as judges in the first place. Also, most importantly, they want to have a family life, something which they could never have if they did not dismiss most cases assigned to them. (Leighton 2001) The political system has deliberately created a shortage of judges by not appointing enough judges and building enough courts to solve the meritorious civil and criminal disputes produced by the most vibrant economy in the world. Thus, the judges are not given enough time to render justice and are forced into dismissing cases which they might otherwise not dismiss if they had a lower caseload. Judges are human and victims as well. They sign on as judges to render justice and learn, sooner or later, that it is not as easy to accomplish as one might expect looking in from the outside. When a defendant complains about prosecutorial misconduct, it is just one more matter for the judge to handle. If the complaint is dismissed immediately, there is less work to be done on the matter; but if the complaint of prosecutorial misconduct is handled with a view to even-handed justice, there might be hearings to schedule and conduct, discovery to review, and decisions to write - all time-consuming matters which would take the judge away from the other pressures of his/her caseload. Essentially what we have is little effective restraint against prosecutorial misconduct. It is conducted in secret against victims (even as to those who are in fact guilty of the indictment charges) who are reluctant to antagonize the prosecutor, in a non-adversary environment with little interest or opportunity for the judiciary to oversee. How does one fix this system? Perhaps the best place to start is with the origin of the concept of ethics and how those in the legal profession interpret and apply it. The word ethics is derived from the Greek word ethos, which means "character," and from the Latin word mores, which means "customs." Aristotle was one of the first great philosophers to study ethics. To him, ethics was more than a moral, religious, or legal concept. He believed that the most important element in ethical behavior is knowledge that actions are accomplished for the betterment of the common good. He asked whether actions performed by individuals or groups are good both for an individual or a group and for society. To determine what is ethically good for the individual and for society, Aristotle said, it is necessary to possess three virtues of practical wisdom: temperance, courage, and justice. Interestingly, law students know perfectly well that morals and ethics are purely subjective and therefore speculative. Four or more years of college tuition, room, board and books, followed by three or more years of the same for law school leaves many students drained financially, mentally, and emotionally. It must be quite shattering to then learn that the Board of Bar Examiners either will not permit them to take the bar exam, or will not license them because of alleged character or fitness defects. (Leighton, 2001) At or about the time most applicants enter law school they fill out an application that is submitted to the Board of Law Examiners. This application starts the process of review by the Board who assesses the character and fitness of the candidate to practice law. An applicant is required to possess good moral character. Nevertheless, there is an inherent difficulty in assessing "good moral character" to practice law. At best, what the Board does is look at past conduct of the applicant and makes a prediction about how the applicant will behave in the future. (Leighton, 2001) The American Bar Association set ethical guidelines for lawyers in its Model Rules of Professional Responsibility. The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law. Indeed, law school present coursework on the topic and the ethics part of the bar examination is compulsory for each student across the country. Each state bar association can sanction offending lawyers or recommend suspension of their law license. Many complain that bar associations ineffectively police their own ranks. While law schools require ethics courses, many believe that, in practice, ethical considerations are secondary. Should a morally ambitious person become a lawyer? The knee jerk answer is of course yes. Each year thousands of students enter law school, and a large portion of them are there because they want to pursue justice in a way that draws on their highest intellectual and moral powers. Others believe that they can truly assist the financially and legally impoverished. They are all to aware that “you get what you pay for” in legal defense. And yet, as William Simon observes on the first page of The Practice of Justice, "[t]hey tend to come out with such hopes diminished, and the hopes often disappear under the pressures of practice."(1) The phenomenon is not new; there have always been those who find the practice of law disappointing. Oliver Wendell Holmes, who wondered aloud "why the subject was worthy of the interest of an intelligent man,"(2) described law practice as "the greedy watch for clients and practice of shopkeepers arts, the mannerless conflicts over often sordid interests."(3) That was a century ago. (Simon 1998) Certainly modern lawyers would agree. The problem is not just that todays fiercely competitive market makes it difficult for lawyers to turn away legitimate business, no matter how sordid they may find it. It is also noted that legal ethics as perceived by lawyers, categorically requires zeal on behalf of all client interests, sordid or not. The rule of zeal, like other categorical rules of ethics as applied to law, precludes lawyers from responding to moral judgments. Have you ever wondered why attorneys do not ask their clients if they are guilty? The majority of attorneys ask their clients how they want to plea…guilty or not guilty. The rules of zealousness require that they do not judge, rather that they defend. (Simon 1998) Thus to the defense attorneys, it matters not whether the client is actually guilty, but rather, whether they want to admit to it. This is what the concept of blindness is all about in the justice system. For some reason, attorneys have led us to think that litigation deters wrongful conduct: The more lawsuits that are filed, the more people will behave carefully. Litigation also came to be seen as a way to redistribute wealth from those who have it to those who need it (Olson 2005) From this perspective, the more litigation there is, the more redistributive justice the courts can impose on society—and after all, isn’t that what justice is all about? Thus we have morphed into a society that feeds off of litigation. It follows then that If the aim of ethics is always the harmony, intensity, and vividness that involves the perfection of importance for that occasion, the effective boundaries of those occasions are set by social values imbedded in treaties, constitutions, laws, judicial decisions, and regulations. (Braswell 2005) But we must ask ourselves, what about the costs of litigation? Lawyers are also suspected of hiking their hours to charge more money to clients. A recent survey shows that about a third of U.S. lawyers have done it. Nearly half of all lawyers dont see an ethical problem with it. The American Bar Association condemns the practice, called "double billing." Some lawyers have another name for it: stealing. But it may not be that simple. Think of an ethical billing dilemma in these terms: A lawyer is on an eight-hour flight from Tampa to Seattle. The lawyers client has agreed to pay for business travel. In flight, the lawyer reviews the file of another client and drafts several letters, which takes four hours. Can the lawyer bill the first client for the eight-hour flight time and the second client for the four hours of case work? The American Bar Association released an opinion in 1993 that said lawyers should never bill for hours that were not worked. Therefore, it would be unethical to bill for travel time and for work performed during that travel time. A recent anonymous survey of 251 lawyers from across the country, however, shows that 46.6 percent of lawyers see nothing unethical about it. Of those lawyers who thought this was OK, nearly half said there was no need to tell the client about the practice, which many experts say is the real ethical problem. (Leighton, 2001) According to the billing survey, most bar associations and most clients feel double billing is unethical. Even if a lawyer thinks the practice is acceptable, hes not likely to put it in his Yellow Pages ad. "As a practical matter, most attorneys are not going to go to their clients and ask if they could double bill, The business relationship would probably end right there." (Simon 1998) Justice Stephen G. Breyer of the U.S. Supreme Court sat on a 2002 committee studying billable hours. Many firms, he wrote, require lawyers to produce a minimum number of billable hours each year. Often that number is about 2,100 hours, or a little more than 40 hours per week. As a rule of thumb, a lawyer works three hours in the office to bill two hours to a client. Breyer questioned how a lawyer could undertake pro bono work, engage in legal reform efforts, attend bar association meetings and still bill that many hours. "The answer is that most cannot," Breyer wrote. "For this, both the profession and the community suffer." (Leighton, 2001) Rosss survey asked lawyers how many hours they billed in the past few years. One lawyer responded that he billed 4,500 hours in 2003. Working 52 weeks a year and working seven days a week, a lawyer would have to work more than 12 hours a day to reach that number. "Suffice it to say that it would be very difficult for a person of normal stamina to record such extraordinary numbers," Ross said. (Leighton, 2001) Thus, we are left to wonder, what the solution is to all of the ethical dilemmas that exist. This paper has merely presented a small amount of them. Not surprisingly, there does not appear to be a solution in the future, because while the rules may exist, how can the conduct of unethical attorneys actually be regulated? Sources: Braswell, M (2005). Justice, Crime and Ethics. Florence, KY: Anderson Publishing Leighton, P (2001). Criminal Justice Ethics. Upper Saddle River, NJ: Prentice Hall. Olson , W (July 2005). Threat from Attack Attorneys Is No Joke. USA Today, 134 [2744], 66. Simon, W (1998). The Practice of Justice. Philadelphia, PA.: Harcourt Read More