Overview,
Part 3: Moral and Ethical Issues in Policing
This section
explores issues in police ethics, including police codes of ethics; deception,
seduction and entrapment; and issues related to discretion and selective
enforcement
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Author, Title &
summary |
Criminal Justice
Ethics topics and pages |
This section on policing opens with an article by
John Kleinig, “Ethics and Codes of Ethics” from his book The
Ethics of Policing. Kleinig traces the development of a police code
of ethics in the larger context of the “general flowering” of
professional codes. Ethical codes go beyond personal morality to help
establish public trust and accountability, although Kleinig is well
aware of their limitations. The Appendix of Criminal Justice Ethics
contains more information about professional codes of ethics, and
information about finding the codes of ethics for professions the
readers are most likely to enter.
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Deception,
seduction and entrapment
In “The Ethics of Deceptive Interrogation,”
Jerome Skolnick and Richard Leo argue that tactics involving physical
coercion are rare, but psychological persuasion and manipulation are
“the most salient and defining features of contemporary police
interrogation.” They survey a range of police practices while drawing
out three competing principles: ensuring reliable evidence, due process
and fairness, and deterring police misconduct.
Gary Marx elaborates on the questions of police
tactics by posing the question, “When, if ever, is it appropriate to
use friendship and the lure of sex as part of an investigation?” In
his article “Under-the Covers Undercover
Investigations,” Marx is
interested in sorting through issues related to the use of the physical
intimacy of sex and/or the psychological intimacy of friendship. He lays
out a typology and discusses many perplexing, humorous and troubling
examples within each category to highlight what is at stake.
U.S. v Tobias
deals with entrapment. Tobias called an organization that was a front
for the Drug Enforcement Administration to place an order for material
to make cocaine. He later cancelled the order because he realized he did
not have the background in chemistry, but he “just wanted to make some
money.” The DEA agent told him that making PCP was as easy as
“baking a cake” and for $500 Tobias could have everything he needed.
He ordered the chemicals and the recipe, then called 13 times for
technical advice before the DEA arrested him on drug charges. The
majority opinion reasons that he had the prerequisite disposition to
commit a crime and was not entrapped as a matter of law, nor was the
government’s involvement so outrageous as to violate due process; his
15 year prison term is affirmed. The dissent argues that if the
Government had stopped assisting Tobias, he could not have produced the
drug and it is not acceptable for the government to “vicariously
manufacture PCP through Tobias in order to gather evidence to justify
his prosecution.”
The final reading in this section on police
tactics is Carl Klockars’ “The Dirty Harry Problem.” Many readers
will have seen the Clint Eastwood movie from which this article draws
its name, although that is not required to appreciate the timeless moral
question: “When and to what extent does the morally good end justify
an ethically, politically, or legally dangerous means for its
achievement?” Klockars affirms the reality of this question in police
work and reviews the conditions that make it a true moral dilemma –
one that will admit no final solution or resolution. He reviews some
thoughtful, but defective, attempts at resolution. Ultimately, “the
danger in Dirty Harry problems is never in their resolution, but in
thinking that one has found a resolution with which one can truly live
in peace.”
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Police discretion
and selective enforcement
The final readings on law enforcement involve the
issue of police discretion and selective enforcement of the law. Laws
are written in categorical language that calls for arrest and charging
of persons doing legally prohibited acts, but police officers exercise a
certain amount of discretion in deciding whether or not to arrest and/or
charge individuals who in fact violate the law. For humanitarian
reasons, a police officer may bring a juvenile home to his parents for
discipline rather than to the station house where he will earn a lasting
arrest record, or issue a warning for speeding rather than a summons.
Sometimes, however, discretion is exercised to gain leverage over
potential informants, and sometimes in ways that appear to reflect
racial bias against nonwhites and/or class bias against the poor and
unemployed. In the debate that follows, John Kleinig argues, in
“Selective Enforcement and the Rule of Law,” that police discretion
is tacitly approved by the citizenry, that it allows the police to
correct for unnecessarily harsh outcomes, and that it is not dangerous
because it amounts to the police using less than their full legal power
rather than more. In “Against Police Discretion: Reply to John Kleinig,”
Jeffrey Reiman contends that discretionary enforcement amounts to police
exercising powers that were not given them in law, that it renders the
law vague and uncertain (is the speed limit the posted one, or is it the
one that police are actually enforcing?), and that it gives the police
unjust leverage over citizens from disadvantaged groups in our society.
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