Ethics in Criminal JusticeEthics in Criminal Justice

CJ 3750CJ 3750

Professor James J. Drylie Professor James J. Drylie

Week 5Week 5

Paradigms of LawParadigms of Law

•• The law is a written embodiment of The law is a written embodiment of

societysociety’’s morals and ethics.s morals and ethics.

•• Declarative as well as activeDeclarative as well as active

–– Declares correct behaviorDeclares correct behavior

–– Tool for enforcement Tool for enforcement

•• Natural law refers to the belief that some Natural law refers to the belief that some

law is inherent in the natural world and law is inherent in the natural world and

can be discovered by reasoncan be discovered by reason

•• Positive law refers to written and enforced Positive law refers to written and enforced

lawslaws

Two areas of lawTwo areas of law

•• CriminalCriminal

–– PunitivePunitive

•• CivilCivil

–– Reparative Reparative

Understanding the Understanding the Paradigm Paradigm

•• A paradigm is a fundamental image of the A paradigm is a fundamental image of the

subject matter within a science. subject matter within a science.

–– Subsumes, defines, and interrelates the Subsumes, defines, and interrelates the

exemplars, theories, and methods/tools that exemplars, theories, and methods/tools that

exist within it (Rich, 1978)exist within it (Rich, 1978)

Consensus paradigmConsensus paradigm

•• Views society as a community consisting Views society as a community consisting

of likeminded individuals who agree on of likeminded individuals who agree on

goals important for ultimate survival.goals important for ultimate survival.

–– Serves as a tool of unification. Serves as a tool of unification.

–– DurkheimDurkheim views criminal law as a views criminal law as a

manifestation of consensual norms.manifestation of consensual norms.

•• An action is defined as criminal because the An action is defined as criminal because the

majority holds the opinion that it is wrong. majority holds the opinion that it is wrong.

–– Mechanical solidarityMechanical solidarity –– common or collective consciencecommon or collective conscience

–– Individual beliefs are indistinguishable from the wholeIndividual beliefs are indistinguishable from the whole

Conflict paradigm Conflict paradigm

•• Law is viewed as a tool of powerLaw is viewed as a tool of power

–– Used by the powerful for their own purposeUsed by the powerful for their own purpose

•• Law is restrictive or repressiveLaw is restrictive or repressive

–– Criminal definitions are relativeCriminal definitions are relative

–– Those in control determine how crime is Those in control determine how crime is

defineddefined

–– Defining crime is a tool of power Defining crime is a tool of power

Pluralist paradigmPluralist paradigm

•• Law is seen arising from interest groups that are Law is seen arising from interest groups that are

influx influx

•• Not to be confused with a Not to be confused with a MarxistMarxist systemsystem

•• Power is exercised inPower is exercised in

–– The political orderThe political order

–– The economic orderThe economic order

–– The religious orderThe religious order

–– The kinship orderThe kinship order

–– The educational orderThe educational order

–– The public order The public order

•• Law & Social control Law & Social control

Justification for lawJustification for law

•• Major justification is the prevention of Major justification is the prevention of

harmharm

•• Social contract theorySocial contract theory –– law is a contract. law is a contract.

Each person gives up some liberties in Each person gives up some liberties in

exchange for protection from others who exchange for protection from others who

are similarly restricted. are similarly restricted.

Legal paternalismLegal paternalism

•• The state protects people form their own The state protects people form their own behavior. Supported by an ethics of care.behavior. Supported by an ethics of care.

–– Laws regulating Laws regulating •• Seat beltsSeat belts

•• Motorcycle helmetsMotorcycle helmets

•• Speed limitsSpeed limits

•• Drug useDrug use

•• AlcoholAlcohol

•• Sexual behavior Sexual behavior

Legal Legal moralismmoralism

•• Law acts as the moral agent of society in areas Law acts as the moral agent of society in areas

where they may be no moral agreement. where they may be no moral agreement.

–– Certain sexual behaviorCertain sexual behavior

–– GamblingGambling

–– Drug useDrug use

–– PornographyPornography

–– SuicideSuicide

–– EthanasiaEthanasia

Culpability Culpability

•• Legal responsibility defined by positive law Legal responsibility defined by positive law

(human(human--made) made)

–– Need to distinguish between responsibility Need to distinguish between responsibility

and liabilityand liability

•• Legal liability relates to formal rules and decisions Legal liability relates to formal rules and decisions

•• Moral responsibility derives from ethical analysisMoral responsibility derives from ethical analysis

Issues related to culpabilityIssues related to culpability

•• Mentally ill Mentally ill

•• JuvenilesJuveniles

•• WhiteWhite--collar crimecollar crime

The mentally illThe mentally ill

•• Humanitarianism requires mercyHumanitarianism requires mercy

•• CanCan’’t help themselves t help themselves

•• Retributive goals cannot be metRetributive goals cannot be met

•• CanCan’’t spiritually prepare for deatht spiritually prepare for death

–– Execution would be cruel Execution would be cruel

•• CanCan’’t assist in defense t assist in defense

Juveniles Juveniles

•• Historically treated differently than adult Historically treated differently than adult

offendersoffenders

–– Main factor Main factor –– maturitymaturity

•• Today laws are changing allowing for Today laws are changing allowing for

greater controls and sanctions dealing greater controls and sanctions dealing

with juvenile offenderswith juvenile offenders

–– Are kids more violent today?Are kids more violent today?

•• ColumbineColumbine

•• Gang violence Gang violence

WhiteWhite--collar crimecollar crime

•• Lines of corporate and individual Lines of corporate and individual

responsibility may be blurred. responsibility may be blurred.

–– WorldComWorldCom

–– TycoTyco

–– ImCloneImClone

–– Martha StewartMartha Stewart

Immoral lawImmoral law

•• Can law/government actions be immoral?Can law/government actions be immoral?

–– Spanish InquisitionSpanish Inquisition

••Rooted in religious beliefRooted in religious belief

–– The The Holocaust Holocaust

–– Japanese interment during WWIIJapanese interment during WWII

–– Segregationist lawsSegregationist laws

•• ““An unjust law is no law at all.An unjust law is no law at all.”” ((St.AugustineSt.Augustine))

•• Civil disobedience is voluntary disobedience of Civil disobedience is voluntary disobedience of

established laws based on oneestablished laws based on one’’s moral beliefs.s moral beliefs.

•• Can civil disobedience be justified? Can civil disobedience be justified?

VictimsVictims’’ RightsRights

•• Ancient law focused on compensating the victim.Ancient law focused on compensating the victim.

•• Magna Magna CartaCarta changed focus to the statechanged focus to the state

•• Result was two systemsResult was two systems

–– Private wrong Private wrong –– civil lawcivil law

–– Public wrong Public wrong –– criminal law criminal law

•• VictimologyVictimology –– a separate a separate discplinediscpline within within

criminology. May provide a better balance criminology. May provide a better balance

between state harm and individual harm. between state harm and individual harm.

Rediscovery of VictimsRediscovery of Victims’’ RightsRights

•• Being present at trialBeing present at trial

•• Notification of hearing dates and pleaNotification of hearing dates and plea--

bargain agreementsbargain agreements

•• VictimVictim--impact statementsimpact statements

•• Courteous and compassionate treatmentCourteous and compassionate treatment

The MediaThe Media

•• May be responsible for creating a false May be responsible for creating a false

perception of crime.perception of crime.

–– Headlines and TV news only represent a small Headlines and TV news only represent a small

percentage of the overall picture.percentage of the overall picture.

–– Disproportionate representation of stories Disproportionate representation of stories

focus on violent crimesfocus on violent crimes

Victim precipitation Victim precipitation

•• Refers to the victims role in the criminal Refers to the victims role in the criminal

event.event.

•• Victims play a significant part in the crime.Victims play a significant part in the crime.

–– Wolfgang noted victimWolfgang noted victim--precipitated homicideprecipitated homicide

–– Drylie noted victimDrylie noted victim--scripted suicide scripted suicide

Restorative justiceRestorative justice

•• The current system is completely The current system is completely

oriented to the offenderoriented to the offender

•• Restorative justice describes the shift Restorative justice describes the shift

toward the center of the system.toward the center of the system.•• Moving away from retribution Moving away from retribution