• David Beers

Police & Prosecutorial Ethics

Police and Prosecutorial Ethics

Author’s note: My final assignment in ethics class @ Empire State College

Introduction:

As human beings, we are judgmental by nature. We are continuously judging each other in our respective relationships with one another. While many of our independent judgments of each other are insignificant or meaningless, there are others that can have a serious impact on our lives. The decisions we make, based on these judgments, can impact our lives in a variety of ways; some good, and some bad. Judgments and decisions made in the field of medicine for example, could mean the difference between health and illness, or even life and death. On the other hand, judgments and decisions made in our criminal justice system could mean the difference between freedom and imprisonment, or even death as well.


Although there are numerous groups and agencies that represent the different elements of the criminal justice system, this communication will focus primarily on those two elements that wield the greatest amount of power; police and prosecutors. In the past several years, the criminal justice system has come under a great deal of criticism, and rightfully so. The numbers are disturbing. We seem to learn more and more frequently of serious convictions that have been overturned, or individuals that have been outright exonerated after spending many years in prison for crimes they didn’t commit. Several of these injustices involved those convicted and sentenced to death. While advanced technology such as DNA (genetic fingerprinting) is responsible for many of these overturned convictions and exonerations, it’s only addressing a very small percentage of a much larger problem. When someone is exonerated by DNA that means that some other impropriety led to the false conviction.


Unfortunately, even though the use of DNA has uncovered numerous injustices within the system, it is only available in a relatively small percentage of cases. If someone can be falsely convicted with DNA available, it’s only reasonable to conclude that someone can also be convicted when DNA is not available. Accordingly, the only one who really stands a chance at exoneration is the one where DNA is available. Therefore, it is also reasonable to conclude that there are a significant number of false convictions where DNA is not available, therefore, injustice prevails. What’s more disturbing than the number of false convictions discovered by DNA testing, are the types of police and prosecutorial improprieties that have been, and are continuing to be used to secure convictions. The following paragraphs will examine and address some of the ethical theories that are applicable to the moral and ethical issues involved in the professions of police and prosecutors, including specific examples of police and/or prosecutorial conduct or misconduct.

Ethical Issues:

Police and prosecutors have a very difficult and demanding job. Day in and day out, they are continually dealing with the lowest and most negative elements of our society; crime and criminals. Many, if not most, of these professionals purport to be honest, hardworking, dedicated officers of the criminal justice system. In most instances, they undergo a great deal of intensive training in learning how to do their jobs. Before entering their profession, they swear to an oath which includes a code of ethics. They swear to maintain a high ethical standard as a condition of their employment. This oath also includes upholding the laws of the U.S. Constitution and Constitution of their respective states and local jurisdictions. While many of these men and women work diligently and effectively under the stresses and confines of the law, and in accordance with their oath of office, there are others who do not.


Unfortunately, there are those who abuse their authority by engaging in various acts of misconduct in their pursuit of “justice.” Because of their status as power-wielding public servants, police officers and prosecutors are often automatically placed in a category of high moral character. Society’s expectations of these individuals would include a higher standard of morality and ethical responsibility than that of the average citizen. With so much at stake in the criminal justice system, the ethical obligations and morality of decisions made by the police and prosecutors is essential to ensure that justice prevails. Therefore, when any one or more of these individuals acts unethically or immorally, there is a risk of injustice. For every single act of impropriety or misconduct, the risk of injustice increases proportionately.


According to a non-profit organization known as Truth-In-Justice, wrongful convictions due to police and/or prosecutorial misconduct have become routine throughout our society. Truth-In-Justice has documented numerous accounts of police and prosecutorial misconduct all across the country. These acts of misconduct have resulted in multiple overturned convictions, including several death-penalty cases, as well as numerous false convictions where those convicted have served a number of years in prison for crimes they didn’t commit. According to another watchdog agency known as the Innocence Project, the range of misconduct expands well beyond police and prosecutors to include judges, jurors and so-called experts. These acts of misconduct cover a broad spectrum including, but not limited to, faulty eye witness identification, coerced or forced confessions, lazy or sloppy investigations, coerced witnesses, planted or fabricated evidence, overzealous and/or untruthful police or prosecutors, suppression or destruction of evidence, junk science, unreliable or untruthful jail house snitches, and the list goes on.


According to a newsletter entitled The Champion, written by members of the National Association of Criminal Defense Lawyers, police and especially prosecutors, have more power and control over life, liberty, reputation and freedom than any other person in society. They have a great deal of discretion and freedom in how their power is dispensed. The article makes specific reference to prosecutors, but much of the same information would apply to the police as well. This same article also makes reference to the fact that a police officer or prosecutor at their best is a very valuable asset in our society, however, when they engage in acts of malice and misconduct, they can be one of the worst. The number of incidents involving acts of misconduct is staggering. Due to the volume and frequency of these acts of misconduct, it would appear that the police and prosecutors are attempting to justify their conduct in the name of justice.


There is no doubt that the police and prosecution are under a great deal of pressure to solve crimes and bring those responsible to justice. They are under constant pressure from the victim or victim’s family, members of the community, the media and even their own peers. These pressures are often compounded by increasing case-loads and manpower shortages. Accordingly, some may find it necessary to take short-cuts which may involve cheating, lying, or some other form of misconduct to expedite the process. They may feel that their actions are morally justified because they “know” the guy is guilty, so what harm is there in “making sure” he gets convicted. After all, we owe it to the victim, or victim’s family, and the people to this community to make sure this guy is punished for his crime. With this ideology, the risks of injustice are being ignored. Therefore, any attempt to morally justify their misconduct is severely flawed. Whether it’s cheating, lying, or some other form of misconduct associated with their official duties as police and prosecutors, the risk of injustice is far too great for these acts to be considered morally justified.

Ethical Theories & Principles:

Moral conduct:

When police and prosecutors perform their respective duties by subjecting themselves to the ethical rules of conduct that apply, they are establishing the necessary high standard of fairness, honesty and objective truthfulness required in their pursuit of justice. When they conduct themselves in this manner, they are keeping the promise they made in their oath of office and they are fulfilling their moral and ethical obligations. Because the consequences and risks of injustice are so great, the ethical and moral conduct by the police and prosecutors is essential if justice is to prevail.


One of the primary ethical theories involved would be that of the utilitarian. Under this theory the police and prosecution, would be attempting to bring about a desirable or good end, or try to achieve the greatest good for the greatest number [Thiroux pg 42]. Therefore, if the police and prosecution were to arrest and convict someone for a crime, they would be bringing about a desirable end or good. Additionally, they would also be achieving the greatest good for the greatest number by protecting society. If the person or persons responsible for the crime(s) was removed from society by being sentenced to imprisonment, he/she could no longer bring harm to other members of the free society. Another theory that can also be considered is Kant’s Duty Ethics. According to Thiroux [pg 61], Kant believed that, “If we are to act morally, however, we must rely on our reason and our will and act out of a sense of duty.” Kant went a step further by saying that, “an act simply is not fully moral unless duty rather than inclination is the motive behind it.” This appears to be one of the theories involved by police and prosecutors. They are acting out of a sense of duty, rather than inclination in their pursuit of justice.


Virtue ethics can also apply to police and prosecutors when they are acting virtuously. When someone is acting virtuously, the emphasis is on their good and virtuous character, as opposed to their acts, feelings or rules [Thiroux pg 67]. Thiroux [pg 69], also makes reference to the philosophy of Aristotle who believed that virtuousness involved the use of practical wisdom which he defined as, “the ability to see what is the right thing to do in any circumstance. Therefore, a person must determine what a ‘practically wise, virtuous man’ would choose in any circumstance calling for moral choice, and do the right thing.” In utilizing Thiroux’s five (5) ethical principles, it would seem that all five (5) principles could apply to various aspects of police and prosecutorial conduct. The value of life principle could certainly apply as it relates to the victim of a crime, or to a person charged or subsequently convicted of a crime.


The principle of goodness and rightness would also apply as it relates to a victim or perpetrator of a crime, as well as members of society. Even though these first two principles are important, the following principles of justice or fairness and honesty and truth-telling are essential components of a workable moral system. Without justice or fairness, along with honesty and truth-telling, the value of life and goodness principles are placed in jeopardy along with “true” or “real” justice. And last but not least, the principle of individual freedom also plays an important role in the moral system. This final principle allows the individual police officer and/or prosecutor the freedom to make their own decisions as they relate to their respective responsibilities within the criminal justice system.

Immoral conduct:

When police and prosecutors willfully engage in misconduct by ignoring or circumventing their moral and ethical obligations that they swore to uphold, the ethical principles involved are somewhat different. The theory of ethical egoism may certainly be applicable under certain circumstances of police and/or prosecutorial misconduct. A police officer or prosecutor may engage in misconduct to obtain special recognition for a number of reasons including promotion, advancement, peer approval, reward, etc. If this is the case, it would seem that they would be acting under the ethical egoism theory where there only interest is themselves. Again, because of the significant consequences involved in the criminal justice system, there is no place for self-serving interests of police and/or prosecutors.


An ethical egoist may try and mask or justify their misconduct under the utilitarian theory. Accordingly, they would claim or pretend to be acting to bring about a desirable or good end, or bring about the greatest amount of good with the least amount of bad consequences. Therefore, they could “justify” their misconduct as a necessary means for the desired end, when in reality their own-self-serving interests would be their motive. Under Kant’s ethical theory, these acts of misconduct would not be allowed since they would be in violation of Kant’s absolute moral truth requirement. And it would seem quite obvious that these deliberate acts of misconduct would certainly not qualify under the virtue ethics theory.


Men and women cannot be considered virtuous when they have engaged in acts of misconduct that could lead to injustice. So, what’s left? Thiroux’s five (5) principles. According to Thiroux [pg 168], his five (5) basic principles – “are not absolutes, but near absolutes, and they can be violated so long as there is sufficient justification to do so.” So now the big question; if these principles are violated by acts of police and/or prosecutorial misconduct, does sufficient justification exist that would morally allow for this? There may be those who would argue in the affirmative, that some acts of misconduct may be acceptable under certain circumstances to assure that justice prevails. But this appears to be a very weak argument.


Whenever there is, one or more acts of misconduct, justice can never be assured. On the contrary, acts of misconduct are more likely to result in some form of injustice such as false accusations, false convictions, false imprisonment, or all of the above. The value of life principle may or may not be applicable in all cases. It would certainly be applicable in a homicide case or a case involving the death penalty. This principle could also apply to someone that is imprisoned, since the value of their life would change from one of freedom to one of imprisonment. If this principle were to be violated by police and/or prosecutorial misconduct, there is a risk that someone could be falsely imprisoned or even falsely executed for a crime they didn’t commit.


Accordingly, there is insufficient justification to violate this principle. Violating the principle of goodness cannot be justified if harm or badness is caused. Therefore, if someone is falsely convicted or imprisoned for a crime they didn’t commit as a result of police and/or prosecutorial misconduct, they have been harmed. The additional harm that can be attributed to this same misconduct would be that the real criminal was never brought to justice and is free to commit more crimes. Violating the principle of justice and fairness involves the unfair or unjust distribution of good and bad [Thiroux pg 163]. Therefore, police and/or prosecutorial misconduct must be considered unfair and unjust and accordingly, cannot be sufficiently justified.


Similarly, the principle of honesty and truth-telling is an essential part of any moral system. When this principle is violated by police and/or prosecutorial misconduct, it too, cannot be justified. Last, but not least, is the principle of individual freedom. According to Thiroux [pg 166], this principle allows individuals, “the freedom to choose their own ways and means of being moral within the framework of the first four basic principles.” However, Thiroux [pg 166], also says, “that individual freedom is limited by the other four principles.” And, that this freedom is not absolute. Therefore, just because a police officer or prosecutor chooses to engage in misconduct, does not mean he ought to have the freedom to do so. The limitations of this freedom would be governed by the other four principles. Accordingly, if police and/or prosecutorial misconduct failed to protect human life, failed to promote good over bad, failed to act justly and fairly in the distribution of good or bad, and failed to be honest or tell the truth, they would not be justified in using the principle of individual freedom.

Conclusion:

Unfortunately, this examination of the ethical issues involved as they relate to police and prosecutorial conduct, has painted a very bleak picture of our criminal justice system. As citizens, we would like to believe that the vast majority of police and prosecutors are performing their duties in the professional manner that we expect and deserve. But having said that, we still can’t ignore the staggering number of incidents where misconduct has been cited that has resulted in injustice. If it is only a few that are abusing their authority and acting immorally, they are certainly making it very difficult for those who are trying hard to be honest and moral.


When police and prosecutors abuse their authority by bending, breaking, or creating their own rules, or even committing criminal acts in the name of justice, they are undermining the integrity and jeopardizing the entire system that they swore to uphold. To make matters worse, they may actually believe they are doing the “right” thing, but yet they engage in their abuse of authority or misconduct surreptitiously, and then hide behind the shield of their authority knowing that it’s unlikely they will be caught. The scales of justice are supposed to be balanced, or what some might refer to as a level playing field. When someone is charged with a crime, the scales of justice are usually tipped in favor of the prosecution from the beginning. But, when police or prosecutors engage in misconduct, the scales are so far out of balance that there is only scant hope that true justice will prevail. It appears that justice has taken a backseat and now winning is more important.


This would tend to support the egoist theory that justice is less important than their own self-interests. The ideology and motives for misconduct also tends to diminish the concept of our own Pledge of Allegiance, where reference is made to, liberty and justice for all. Perhaps it should be changed to read, “with liberty and justice for some.” Thiroux is correct in his belief that there are no absolutes. This would certainly be the case as it pertains to the criminal justice system. Because of the human element involved, and the fact that there are no absolutes, it is unfortunate, but understandable, that mistakes will occur and injustices are likely to happen from time to time. As members of society, we can understand and accept that. However, when those mistakes are compounded by abuse of authority or misconduct, those acts are immoral, and accordingly, we cannot knowingly accept those immoral acts if we desire a criminal justice system that is fair and just for all members of our society.

Introduction to Ethics – Final

Empire State College

David M. Beers

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