PHILOSOPHICAL EGGS

In the last few years the police have been under scrutiny like never before and many criminal justice reforms are currently underway. One of the many areas of such reform is ethical reform. Over the past year I served as an ethical advisor to a criminal justice program which gave me an opportunity to think a bit about how such reform might look from an academic perspective. This post presents some of my ideas which might be of use to others.

My central idea is to have philosophical ethics integrated into criminal justice programs. It is recommended that students develop (1) an understanding of the nature of philosophical ethics; (2) an understanding of one important metaethical issue, namely, the issue of free will vs. determinism which is becoming more and more influential in various areas of criminal justice reform; (3) a very basic understanding of a set of normative theories and their principles for making and justifying moral judgments; and (4) an ability to apply such theories and principles to actual issues such as those involved with  community policing. Let me elaborate a bit on these recommendations, provide an action item for each, and suggest methods for assessing these items. 

I

Recommendation: The word ‘ethics’ can have a variety of meanings. For many people, the word is  synonymous with things like morals, being a good person, virtues, a code to live by, and so on. We might hear someone say: “I am not like you. I have ethics.” Or: “He is an ethical person and lives by a code.” But in philosophy the term takes on a very specific meaning: 

Ethics is the activity of rationally investigating values and conduct in order to systematize, defend, and recommend concepts of right and wrong behavior.

This activity has three aspects: metaethics, normative ethics, and applied ethics. 

Metaethics considers very fundamental preliminary questions about morality such as: is there any objective truth to be found in morality at all? Is it all just a matter of personal and/or cultural opinion? Are morals just a matter of feeling? Is free will necessary for moral action? Is God necessary for objective moral values and duties? What motivates morality? 

Normative ethics is the activity of formulating and evaluating theories that offer models of objective morality. These theories typically offer us (1) a general and fundamental understanding of our moral terms, especially terms like ‘right’ and ‘wrong’ (terms that apply to actions) and ‘good’ and ‘bad’ (terms that apply to things or people) and (2) principles with which to make and evaluate moral judgments. 

Finally, we have applied ethics which is the branch of ethical inquiry which takes various normative theories and applies them to specific moral dilemmas in areas like euthanasia, abortion, capital punishment, cloning, stem cell research, war, distributive justice, etc. 

Since calls for ethical reform in criminal justice require a basic understanding of what ethics is, it is recommended that students develop a basic understanding of the discipline. 

Action item: Develop a basic understanding of philosophical ethics.

Method of Measuring Action Item: A quiz or portion of an exam which assesses whether students can (1) distinguish the meaning of the term ‘ethics’ in philosophy from common, although very different, meanings of the term and (2) accurately identify and describe the three branches of ethics. Questions can be of various kinds: true/false, multiple choice, fill in the blank, short answer, essay, etc.  

II

Recommendation: We now have significant scientific understanding of the conditions that compromise morally responsible action. Many actions that appear to be freely chosen criminal actions can be necessitated by a form of mental illness or other determining factors such as substance abuse. The failure to distinguish free from unfree action has led to plenty of potentially avoidable problems and tragedies. Thus it is important that criminal justice students explore this metaethical issue of freedom and its relationship to morally responsible action to (1) develop a sense of some of the determining conditions that negate or reduce free action; (2) the ability to recognize them in the field and consider methods for addressing them that differ from how criminal action is addressed; and (3) think about how the presence of such determining conditions changes how we might think critically about reform in sentencing, drug policy, re-entry, juvenile reform, and so on.

Action item: Develop a sensitivity to the conditions that can impair free and morally responsible action in order to make better judgments while policing and think critically about a variety of issues in criminal justice. 

Method of Measuring Action Item: Students will read a description of a scenario(s) in which behavior appears to be determined by a mental illness (or some other necessitating factors) and offer written reflections which demonstrate their ability to (1) assess the behavior as potentially unfree and (2) consider alternative methods for resolving the situation in ways that differ from how criminal action is addressed. Students will also write an essay which reflects on how the conditions for unfree action can impact various areas of criminal justice reform. 

III

Recommendation: It is important to have a more specific understanding of normative theory in order to be able to make and justify moral judgments. There are many normative theories from which to choose. But I think having a basic understanding of three or four is sufficient. Four of the most famous and applicable to issues in criminal justice are utilitarianism, Kantian deontology, virtue ethics, and natural law theory. The key will be to understand (1) how each theory defines good/bad (terms that qualify people, places, and things) and right/wrong (terms that qualify actions) and (2) what the principle(s) of each theory is, that is, the guiding rule of thumb that allows one to both make and justify moral judgments. 

Action item: Develop a more nuanced understanding of three or four normative theories. 

Method of Measuring Action Item: A quiz or portion of an exam which assesses whether students can understand (1) how each theory defines good/bad (terms that qualify people, places, and things) and right/wrong (terms that qualify actions) and (2) what the principle(s) of each theory is, that is, the guiding rule of thumb that allows one to both make and justify moral judgments. 

IV

Recommendation: The final recommendation brings us to applied ethics. It is important that the students have an opportunity to apply the theories they learn. Of course, there are plenty of issues that can benefit from such an application and it may be hard to choose which to focus on. But the key is to get the students to practice doing ethics so they can carry this practice into their own experience, understand discussions about ethical reform in more depth, and critically assess new initiatives.

One possible approach is to focus on the network of issues that fall under community policing. As the Wikipedia entry “Criminal Justice Ethics” states, “Policing the community often brings ethical situations into consideration that may be, but is not limited to, one of the following circumstances: criminal investigations, procedural justice, racial profiling, early intervention systems, internal affairs, citizen complaints, mediation, recruitment, and use of force.” Students can explore a variety of ways normative moral theory helps them morally evaluate these issues.

Action item: Be able to apply the concepts and principles of a set of normative theories to a range of issues associated with, for example, policing practices. As a result, students will develop the ability to think critically about the issues, justify proposals for reform, and rationally evaluate their own moral actions and the moral actions of others. 

Method of Measuring Action Item: Students will be presented with a set of scenarios that include actions which call out for moral interpretation and justification. They will then be asked to use a set of normative moral theories to morally assess the actions. 

Here are a few examples of how such assessments might unfold: 

Scenario 1: An officer’s actions appear to be unjustly disrespectful during an arrest. How might we argue these actions are morally unacceptable?

Applied Theory: Utilitarianism

Utilitarianism is a consequentialist theory insofar as it only takes consequences, not motives or acts, into account as far as moral analysis is concerned. An act is right if it generates the right consequences, namely, pleasure for the majority of those involved in a situation and wrong if it generates pain for the majority. This is the greatest happiness principle. 

The officer’s disrespect, especially if undertaken as a rule, would not benefit the majority of those who stand to be affected by it (in this case, initially the local community but certainly other communities as well). Indeed, it is plausible that disrespectful conduct will undermine trust between officers and the community which, in turn, can undermine investigations, escalate tensions, generate more complaints and negative media coverage, and so on. So, without taking into account intentions or the disrespectful act in of itself, we can see that the consequences of the act will most likely lead to more pain than pleasure and so the act is wrong and, if embraced as rule, will lead to more unwanted pain in the future. 

Scenario 2: An officer’s actions appear to be excessively angry on multiple occasions in ways that seem unjustified. How might we argue such anger is morally unacceptable?

Applied Theory: Virtue Ethics

Virtue ethics emphasizes what kind of people we are to become. It is a theory concerned with developing and acting in accordance with virtues—good habits—that dispose us to act correctly, make good judgments, and live life well. Virtue ethicists will be interested in describing and developing such virtues in themselves and others. Typically this theory has recourse to two principles: (1) the mean, which prescribes that we feel and act appropriately or between the extremes of excess and deficiency (as courage is the mean response to danger that lies between the deficiency of cowardice and the excess of recklessness); and (2) the moral exemplar principle, which states that we can look to virtuous people for guidance in the cultivation of our own virtuous behavior so we can, in turn, be exemplary for others. 

Rather than having righteous indignation, which would exhibit anger in the right way, to the right person, at the right time, the officer’s angry disposition leads him to act excessively rather than in the mean. This disposition is not good: it is a vicious character defect in need of correction. Moreover, in acting viciously the officer is not being a moral exemplar. Since police officers are in the public’s eye like never before, it is crucial they develop virtues that allow them to make good judgments, act rightly, and set positive examples for others. Virtue ethics can provide a rich framework for articulating such virtues and guiding efforts to put them into practice.

Scenario 3: An officer has been observed treating people from different communities very differently despite the similarity of their crimes and other actions. How might we argue such profiling isn’t morally acceptable?   

Applied Theory: Kantian deontology

Immanuel Kant’s deontological or duty-based moral theory is the opposite of this consequentialist approach. His view maintains that choices cannot be justified by their consequences no matter how beneficial to the majority. What matters is whether one has the right motive – to obey the moral law – and acts in accordance with this law. One of Kant’s well-known moral laws is his categorical imperative which requires that we ask the following question of any action we want to morally evaluate: can I accept that this course of action would become a universal law for all people, including myself, to follow? If we find upon analysis that something irrational results from following such a law – something self-defeating or contradictory – then the action cannot be undertaken. If there is nothing irrational that emerges from our analysis then the act can be undertaken. 

Let’s apply the categorical imperative to the officer’s preferential treatment. Would any person, including the officer himself, be willing to live under a law which makes such preferential treatment applicable to all? It certainly doesn’t seem so: any free, rational person would see that it would be self-defeating to live under such a law that is unfair. So the officer isn’t doing the right thing since his actions cannot be universalized in a way that all persons with freedom and dignity would accept. 

Scenario 4: A certain chokehold is, despite being legal in certain states, becoming controversial. Moral questions about its use by the police are being raised and outrage, protests, and calls for reform are building. How might we argue that the hold should be removed despite its being a  legally acceptable method supported by many police officers?

Applied Theory: Natural Law Theory

Natural law theory tries to establish objective, universal, and intelligible moral laws by rationally investigating human nature. It holds that we can discover certain good potentials in our nature such as the potential to be rational, social, loving, free, virtuous, etc. Once we have these good potentials we can formulate natural laws for right action that facilitate their actualization. It is important to understand that natural laws are more fundamental than civil laws. Civil laws are made by humans who decide, under certain historical circumstances, to draw guidelines on how to act. But should a certain society change, pass away, or get taken over, then presumably the civil laws of that society will disappear. Not so with natural laws since their existence is grounded in human nature as such. This fundamental dimension to natural law allows the theory to ground natural rights. Natural rights will be those things that are essential to us if we are to realize our natural potentials. Natural rights, just like natural laws, are not granted by a particular society: they are simply necessary for our welfare and we are entitled to them by virtue of being human. So, for example, if we see that freedom is a good potential of humans then we can (1) formulate various natural moral laws to protect it and (2) formulate a natural right to protect it like the right to liberty mentioned in the Declaration of Independence.

It may very well be that the chokehold isn’t illegal. But, as we know from so many disturbing examples in history such as slavery, segregation, and laws in Nazi Germany, what is legal is not necessarily moral. So we can go deeper and see if the hold violates or threatens certain natural rights like the right to life. If we see that it needlessly does so, perhaps because it simply cannot be administered in a predictable manner, then perhaps we can make a case based on natural law that, despite it being legal and even widely supported, it should be abolished.