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Ethics, Crime, and Criminal Justice This Page Intentionally Left Blank Second Edition Ethics, Crime, and Criminal Justice This page intentionally left blank Second Edition Ethics, Crime, and Criminal Justice Christopher R. Williams Bradley University Bruce A. Arrigo University of North Carolina at Charlotte Boston Columbus Indianapolis New York San Francisco Upper Saddle River Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montreal Toronto Delhi Mexico City Sao Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo Editorial Director: Vernon R. Anthony Senior Acquisitions Editor: Eric Krassow Assistant Editor: Tiffany Bitzel Editorial Assistant: Lynda Cramer Director of Marketing: David Gessell Executive Marketing Manager: Cyndi Eller Senior Marketing Coordinator: Alicia Wozniak Senior Marketing Assistant: Les Roberts Project Manager: Holly Shufeldt Senior Art Director: Jayne Conte Cover Designer: Suzanne Behnke Cover Art: Fotolia Full-Service Project Management and Composition: Anand Natarajan, Integra Software Services, Pvt. Ltd. Text and Cover Printer/Binder: R.R. Donnelley & Sons Credits and acknowledgments borrowed from other sources and reproduced, with permission, in this textbook appear on the appropriate page within the text. Copyright © 2012, 2008 by Pearson Education, Inc. All rights reserved. Printed in the United States of America. This publication is protected by Copyright and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. To obtain permission(s) to use material from this work, please submit a written request to Pearson Education, Inc., Permissions Department, One Lake Street, Upper Saddle River, New Jersey 07458 or you may fax your request to 201-236-3290. Library of Congress Cataloging-in-Publication Data Williams, Christopher R., Ethics, crime, and criminal justice / Christopher R. Williams, Bruce A. Arrigo. — 2nd ed. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-13-507154-0 ISBN-10: 0-13-507154-2 1. Criminal law—Philosophy. 2. Criminal law—Moral and ethical aspects. I. Arrigo, Bruce A. II. Title. K5018.W548 2012 345—dc23 2011029621 10 9 8 7 6 5 4 3 2 1 ISBN 10: 0-13-507154-2 ISBN 13: 978-0-13-507154-0 For Justus and Blaise, Rebecca and Anthony This page intentionally left blank CONTENTS Preface xvii About the Authors xxv Part 1 An Invitation to Ethics 1 Chapter 1 CRIMINAL JUSTICE AND THE STUDY OF MORALITY 2 Ethics and Morality 3 ࡯ Box 1.1: The Moral Problem of Punishment 5 Never Kill an Innocent Human Being 5 The Role of Morality and the Value of Ethical Inquiry 7 The Examined Life: What Does It Mean to Be Moral? 8 Why Ethics When We Have Laws? 9 Laws Are Not Infallible 9 Laws Can Be Immoral 10 ࡯ Box 1.2: Jury Nullification 10 ࡯ Box 1.3: Morality in Law: The Case of Sodomy 11 Right Does Not Always Make Good 11 Law Is Not Inclusive of All Moral Concerns 12 It Is Not Enough to Do the Right Thing 12 Morality, Ethical Inquiry, and Criminal Justice 12 Criminal Justice Practice 13 Laws and Lawmaking 14 Social Justice 14 The Special Moral Requirements of Criminal Justice 15 Authority, Power, and Discretion 16 Criminal Justice Agents as Public Servants 16 Individual Behavior Reflects Institutional Morality 16 ࡯ Box 1.4: Police Use of Force 17 What about Professional Codes of Conduct? 18 The Problem of Enforcement 18 Minimalism 19 Codes Are External, Ethics Are Internal 19 Generality and Moral Dilemmas 20 Summary 21 • Key Terms and Concepts 21 Discussion Questions 22 • Endnotes 22 vii viii Contents Chapter 2 CHOICES, VALUES, AND ETHICS 24 ࡯ Box 2.1: The Tavern Rape and the Duty to Report Crimes or Render Assistance: The Morality of Doing Nothing 25 ࡯ Box 2.2: Voluntariness and Criminal Defenses 26 Choices and Others 27 ࡯ Box 2.3: Personal Freedom and Consequences to Others 27 ࡯ Box 2.4: Media, Violence, and Morality 28 The Involuntary Nature of Evil? 29 The Universal Element of Choice 30 Making Choices 32 Types of Moral Values 33 ࡯ Box 2.5: Intrinsic and Instrumental Values 34 Normative Ethics and Moral Decision-Making 35 ࡯ Box 2.6: Values in Practice 36 Ethics, Values, and Criminal Justice 37 ࡯ Box 2.7: Police Subculture 38 Summary 40 • Key Terms and Concepts 40 Discussion Questions 40 • Endnotes 41 Part 2 Metaethics and Moral Psychology 43 Chapter 3 FREE WILL AND MORAL RESPONSIBILITY 44 Free Will 45 Determinism and Choice 46 Causality 47 Free Will as a Basis of Behavior 48 ࡯ Box 3.1: Probing Dishonesty 49 Biological, Psychological, and Sociological Bases of Behavior 50 Internal Factors 50 ࡯ Box 3.2: Transmitting Child Abuse? 51 External Factors 52 ࡯ Box 3.3: “Mirroring” Violence 53 ࡯ Box 3.4: Territoriality, Critical Mass, and Prison Violence 54 Free Will, Determinism, and the Criminal Justice System 55 Criminal Responsibility 56 ࡯ Box 3.5: The Case of Aileen Wuornos 56 Treatment, Punishment, and Implications for Criminal Justice Policy 58 Contents ix ࡯ Box 3.6: Vaccinating for Substance Use 59 Summary 60 • Key Terms and Concepts 60 Discussion Questions 60 • Endnotes 61 Chapter 4 IS MORALITY RELATIVE? THE VARIABILITY OF NORMS AND VALUES 63 Objectivism and Universalism in Ethics 64 Ethical Objectivism 65 Ethical Universalism 65 ࡯ Box 4.1: Crimes Mala in se and Mala Prohibita 66 Contemporary Ethical Relativism 67 ࡯ Box 4.2: Defensible Violence? 68 Descriptive and Prescriptive Relativism 68 ࡯ Box 4.3: Relativism Contra Science 69 ࡯ Box 4.4: Sex Crimes and Normative Relativism 70 Pragmatic Morality 71 The Value of Relativism 73 Relativism and the Criminal Justice System: The Morality of Criminal Law 76 ࡯ Box 4.5: The Relativity of Things Lawful and Unlawful 77 The Harm Principle 78 ࡯ Box 4.6: Justifying Legal Prohibitions 78 Paternalism 79 Legal Moralism 80 Offensive Conduct 81 Summary 82 • Key Terms and Concepts 83 Discussion Questions 83 • Endnotes 84 Chapter 5 WHY SHOULD WE BE GOOD? 85 The Ring of Gyges 86 The Forms and Effectiveness of Reward and Punishment 86 External Sanctions: From the Law and God 86 Internal Sanctions: Conscience and Guilt 87 ࡯ Box 5.1: Rationalizing Police Deviance 88 ࡯ Box 5.2: Rationalization and Cheating among College Students 89 The Moral Sufficiency of Reward and Punishment 90 Reward, Punishment, and Self-Interest 90 The Need for Reward/Punishment Reflects an Absence of Morality 90 x Contents Reward and Punishment Are Impediments to Morality 91 ࡯ Box 5.3: Desistance from Crime and Offender Rehabilitation 91 Religion as Source and Motivation for Morality 92 Necessary Belief? 92 Common Ground 92 ࡯ Box 5.4: Civil Religion and Flag Desecration 93 ࡯ Box 5.5: Religion and the Practice of Capital Punishment 94 Independent Good 95 Egoism and the Criminal Justice System: Corruption in Policing and Corrections 95 Police Corruption 96 Prison Corruption 97 Summary 99 • Key Terms and Concepts 100 Discussion Questions 100 • Endnotes 100 Chapter 6 MORALITY, HUMAN NATURE, AND SOCIAL COOPERATION 102 Self-Interest 102 ࡯ Box 6.1: Can We Be Moral? 103 The Prisoner’s Dilemma 104 ࡯ Box 6.2: Criminal Informants and the Prisoner’s Dilemma 105 Reciprocity 106 Kin Selection or Inclusive Fitness 106 Reciprocal Altruism 106 Indirect Reciprocity: The Importance of Reputation 107 ࡯ Box 6.3: Crime Prevention and Community Safety: An Ethic of Police–Citizen Trust 108 Strong Reciprocity and Altruistic Punishment 109 Non-Zero-Sum: Common Interest and Mutual Advantage 109 Moral Intuition and Mutual Aid 111 Human Universals 111 ࡯ Box 6.4: Empathy and Scientific Jury Selection 112 Moral Intuition 112 Integrity and Inner Balance 113 Justice and the Social Contract 114 The Importance of Justice 115 Reconsidering Justice 116 ࡯ Box 6.5: What Is Justice? 117 Summary 118 • Key Terms and Concepts 119 Discussion Questions 119 • Endnotes 120 Contents xi Chapter 7 BECOMING ETHICAL: THE DEVELOPMENT OF MORALITY 121 Moral Development 122 Kohlberg’s Moral Stages 122 Level 1: Preconventional Morality 123 Level 2: Conventional Morality 124 ࡯ Box 7.1: Moral Reasoning and the Ethics of Abortion 126 Level 3: Postconventional Morality 127 Implications of Kohlberg’s Moral Psychology 129 How Does Morality Develop? 131 ࡯ Box 7.2: Moral Development, Education, and the Criminal Justice Practitioner 133 Gender Differences? Gilligan’s Ethics of Care 133 ࡯ Box 7.3: The “Heinz Dilemma” 135 Moral Development and the Criminal Justice System: Making and Breaking Laws 135 Justice, Natural Law, and Postconventional Morality 136 Lawbreaking and Moral Development 137 Summary 139 • Key Terms and Concepts 140 Discussion Questions 140 • Endnotes 141 Part 3 Normative Ethics: Theory and Application 143 Chapter 8 MEANS AND ENDS: THE IMPORTANCE OF CONSEQUENCES 144 Consequentialism 145 Good and Desirable Consequences 146 The Principle of Utility: Seeking the Greatest Happiness 147 Agent Neutrality: Consequences for Whom? 147 ࡯ Box 8.1: The Rationale for Ethical Egoism 148 ࡯ Box 8.2: Plea Bargaining and the Greatest Happiness Principle 149 Measuring Happiness: Quantitative Hedonism 150 ࡯ Box 8.3: Hedonism, the “War on Drugs,” and “Noble-Cause” Corruption 152 Quality of Pleasure: Quantitative versus Qualitative Hedonism 153 The Problems with Utilitarianism 155 ࡯ Box 8.4: Are We Utilitarians?: The Trolley Problem 157 ࡯ Box 8.5: Ethics, Crime, and the Internet 158 Consequentialism and the Criminal Justice System: Means and Ends in Policing 159 The Dirty Harry Problem 159 xii Contents Deceptive Interrogation 160 Summary 162 • Key Terms and Concepts 162 Discussion Questions 162 • Endnotes 163 Chapter 9 RESPECTING PERSONS, RESPECTING RIGHTS: THE
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