Prologue:
Due to Badpenny’s financial situation, she is unable to post bail because her bond is set too high. The charges Badpenny faces include possession of methamphetamine (felony), possession of drug paraphernalia (misdemeanor), and official misconduct – using her position as a dispatcher to access confidential information for personal gain (misdemeanor).
While Badpenny sits in jail awaiting the disposition of her case, many of the jailers treat her with indifference. When Badpenny requests to use the phone, take a shower, or get commissary, the jailers disregard her request. Badpenny noticed that the jailers did not treat the other prisoners as poorly; she has worked with most of these jailers and cannot believe the jailers would mistreat her.
Badpenny has no one to talk to except her cellmate, Heather Scandell, whose current arrest was for possession of cocaine and methamphetamines with intent to sell. Badpenny and Scandell have been in jail for weeks together in the same cell sharing life experiences and hopes for their future.
Everyday Scandell tries to get Badpenny to discuss her case, but Badpenny remains guarded; she will not discuss her criminal case with anyone but her attorney, Liddy Gate. One day, after getting back from the law library, Scandell’s cot was empty, Badpenny asked the jailer where she went, the jailer told Badpenny not to worry about the other inmates. Later that day, a jailer came to inform Badpenny that her attorney wants to talk with her, the jailer escorted Badpenny to the visitation room.
Liddy Gate told Badpenny to sit down she had some troubling news about her case. Once Badpenny sat down, Liddy informed Badpenny that Heather Scandell, her cellmate has become a jailhouse informant for the prosecution against her. Liddy said, “Scandell is going to get a reduced sentence in exchange for testifying against you. Scandell spoke with the prosecuting attorney and explained how you got the confidential information from county and city where you where worked, and then gave it to Dreadford in exchange for methamphetamines.”
Badpenny told Liddy that none of what Scandell says is true; she has not talked to anyone about her case. Badpenny asked Liddy, “Why is this happening to me?”
Liddy told Badpenny, “I will do what I can to minimize the damage Scandell may cause. I will see if we can get a plea deal instead of going to trial.”
Assignment:
This week, use the information from chapters 10 and 11 to complete a 2 to 3 – page paper, discussing the implications of prosecutors using jailhouse informants and the problems with wrongful convictions. Also, explain how the occupational subculture in corrections plays a role in how correctional officers treat or mistreat prisoners.
*Identify an ethical system that relates to the way correctional officers are treating Badpenny.
Chapter Introduction
The wrongfully convicted, like John Nolley, serve decades in prison for crimes they did not commit, sometimes because of unethical actions taken by justice professionals.
AP Images/Paul Moseley
Learning Objectives
1. Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.
2. Explain the reasons why such misconduct occurs.
3. Describe some factors in wrongful convictions.
4. Discuss some proposals to improve the justice system and reduce ethical misconduct.
5. Describe the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.
Reading the cases described on the Innocence Project’s website or on the Exoneration Registry is difficult because it is truly disheartening to become aware of the blatant racism, laziness, tunnel vision, and/or ambition that leads criminal justice actors to commit actions that contribute to innocent people being incarcerated for decades. A few of the thousands of cases illustrate the pattern:
James Curtis Giles—Giles was exonerated of a gang rape after spending 10 years in prison and 14 years as a registered sex offender. There was no physical evidence linking him to rape and he had an alibi. Police investigators ignored the real perpetrator, a man also named James Giles, who was a crime partner of the other defendant, lived closer to the victim, and matched her description of the attacker (Garay, 200
7
).
Clarence Brandley—Convicted of rape and murder, Brandley was reportedly told that he was going to hang for the crime because he was black. Caucasian pubic hairs found on the victim were lost, witnesses were coerced, and defense attorneys were not told of witnesses whose statements pointed to another perpetrator. At one point, he was nine days away from being executed. Even after a judge ruled that there was enough evidence to show innocence, it took another two years for him to be released (Davies, 1991; Radelet, Bedau, and Putnam, 1992).
Jeffrey Deskovic—Convicted of the murder of 15-year-old Angela Correa, Deskovic was a 16-year-old classmate. He was interrogated and given a polygraph exam without his parents or an attorney present. Deskovic’s mental health was suspect even before the onerous interrogation, and he was hospitalized as suicidal afterward. No physical evidence linked him to the murder, and seminal fluid found in the victim was never compared to sex offender DNA databases. After spending decades in prison, the DNA was finally compared and matched to another man, already serving time for another rape/murder (Snyder, McQuillan, Murphy, and Joselson, 2007).
Kevin Fox—Kevin Fox was convicted of the murder of his own 3-year-old girl. Her body was found about a mile away from his home. Despite searchers finding shoes with the true killer’s name, a police report of a burglary next door to the Fox home the night she disappeared, and a police officer who had talked to the killer after relatives had reported him as being extremely agitated the day after the child’s body was found, police focused on Fox and set out to prove him guilty. He was subjected to a long interrogation without food or water, and was offered involuntary manslaughter and release on bond if he would plead guilty. He confessed, but immediately retracted. Despite his confession being inconsistent with the medical examiner’s report of injuries, he was charged with first-degree murder. The prosecutor pursued the death penalty and made public statements that the child had been sexually abused during her lifetime, although there was no proof ever produced and her pediatrician said that was categorically false. When the DNA from the body was analyzed, it came back to an unknown profile. Charges against Fox were dropped but community members still believed he was guilty. Years later the case was reopened and the true killer was identified (Dardick, 2010).
While ethical misconduct on the part of legal professionals is not always the reason innocent people end up in prison, unfortunately in many cases it is.
10-1Ethical Misconduct
In the sections to follow, it is true that more attention is given to the misconduct of prosecutors and judges than defense attorneys. This is not to say that defense attorneys are more ethical than the other two groups; however, except for public defenders, defense attorneys are not public servants as are the other two groups of legal professionals. It is a legitimate argument that prosecutors and judges have higher duties than defense attorneys because they represent the body politic. They are the public servants referred to in
Chapter 4
who have immense powers of discretion but also are held to higher standards of behavior in their public and private life.
The major complaint about defense attorneys is that they do not communicate regularly with clients. Complaints received by bar associations generally involve clients who believe that they are not getting what they paid for, in that attorneys don’t return their calls, don’t keep them informed about what is being done on their case, and don’t seem to be putting any effort in the case after they have been paid. This is true for civil attorneys as well; however, criminal defendants are helpless since they may be in jail. Some attorneys meet with their client only before hearings or other court appearances. Perhaps most neglect occurs because of large caseloads. Many attorneys operate under a crisis management approach whereby the to-do list every week can only accommodate those tasks that are at deadline or after a deadline has passed. The consequence is that some cases do not get the attention they should—witnesses are not contacted, legal research is not conducted, and exculpatory evidence is not asked for.
Ineffective Counsel
One of the most often cited reasons for false convictions (in addition to eyewitness testimony) is ineffective assistance of counsel. The legal standard for what constitutes ineffective counsel is set quite high—so high that in the case of Calvin Burdine, whose lawyer slept through parts of his trial, the state appellate court said that if a lawyer wasn’t sleeping during a crucial part of the trial, it wasn’t ineffective counsel. After the defense attorneys appealed in federal court, the 5th Circuit decided that due process required that Burdine deserved a new trial (Cockrell v. Burdine, 262 F.3d 336, 2002). Other behaviors reported of lawyers in capital and other cases include the following (Schehr and Sears, 2005):
· Attorneys’ use of heroin and cocaine during trial
· Attorneys letting the defendant wear the same clothes described by the victim
· Attorneys admitting that they didn’t know the law or facts of the case
· Attorneys not being able to name a single death penalty case holding
· Attorneys drinking heavily each day of the trial and being arrested for a 0.27 blood alcohol level
Cases identified by the Innocence Project or by the Exoneration Registry include many examples of criminal defense attorneys not bringing forward alibi evidence or other exculpatory evidence. Cases also include those where defense attorneys did not challenge the testimony of jailhouse informants, or, in other ways, provided such a poor defense that convictions occurred, even with little or no evidence against innocent defendants.
There are also cases where the attorney has crossed the line from zealous defense to breaking the law. In a few cases, defense attorneys go to extreme lengths to change the course of testimony, such as bribing witnesses or judges, allowing their client to intimidate a witness, or instructing their client to destroy physical evidence or to manufacture an alibi and then commit perjury. In San Antonio, a local attorney pled guilty to bribing a local judge for lenient sentences and other favors for his clients. In return, he paid for repairs on the judge’s car. The judge did not run for reelection and eventually also pled guilty (Perez, 2015). Most misconduct by defense attorneys probably falls into the realm of negligence, not criminal behavior, as was the case in the
In the News
box.
In the News
A Baltimore defense attorney was arrested and arraigned on charges of obstruction of justice and witness intimidation in May 2017. He and his investigator were allegedly recorded as telling a rape victim’s husband that she risked deportation if she came to court to testify against their client. They also offered her $3,000.00 to not appear to testify. Then they suggested that her husband just find their client and beat him up. Their client was charged with second-degree rape, third- and fourth-degree sex offenses, and second-degree assault.
Source: Fenton, 2017.
It is important to recall that the duty of prosecutors is to seek justice, not convictions. Even so, prosecutors want to win, and there are few checks or monitors on their behavior (Elliott and Weiser, 2004). When prosecutors forget that their mission is to protect due process, not merely win the case, misconduct can occur. The types of misconduct range from minor lapses of ethical rules to commission of criminal acts. The In the News box describes an extreme case of alleged criminal conduct.
In the News
Seth Williams is Philadelphia’s top prosecutor, heading an office of 300 prosecutors. In 2016, he was indicted on federal charges of bribery and obstruction. He was elected to the office in 2010 and, until his career burst into a flame of scandal, he had won accolades for innovations in the prosecutor’s office. Charging documents indicate he asked for thousands of dollars in bribes from individuals who faced legal charges. A 29-count indictment describes some of the exchanges. In return for intervening in one case, he accepted foreign trips, a used Jaguar convertible, and other gifts including a $205 Louis Vuitton necktie and a Burberry watch. He is also accused of stealing from his own mother, taking $20,000 of Social Security and pension income intended to pay for her nursing home. Despite a salary of over $175,000 a year, Williams was known for complaining about not having enough money to pay for his lifestyle. He had already been assessed a large fine by the Philadelphia Board of Ethics for failure to report more than $175,000 in gifts he had accepted, including a new roof, luxury vacations, Eagles sidelines passes, and use of a defense attorney’s home in Florida. The federal investigation evidently uncovered e-mails where he asked for a vacation trip and admonished the man to give him at least a week when he wanted his help in criminal matters.
He did not resign even when his trial started in June 2017; however, two weeks into the trial he abruptly sent a resignation letter to the mayor and pleaded guilty. The plea agreement with the federal prosecutor had him pleading guilty to one count in return for dropping all other charges. Williams faces up to five years in prison, $250,000 in restitution, a $62,000 fine that has already been assessed by the election board for mishandling campaign funds, and the loss of his pension.
Sources: Roebuck and Brennan, 2017; Roebuck, Gambacorta, and Brennan, 2017; Roebuck, 2017.
Most prosecutorial misconduct involves unethical or illegal means to obtain convictions, not pecuniary graft. There is no source that has an accurate accounting of the number of cases marred by prosecutorial misconduct in any jurisdiction. Various investigations have uncovered hundreds of instances where prosecutors either commit unethical acts or break the law. Prosecutorial misconduct includes concealing exculpatory evidence (both testimonial and physical), misleading the jurors as to the meaning of evidence, suppressing expert witness reports when they were exculpatory, and even withholding evidence that pointed to the culpability of their witness as the real killer instead of the person they were prosecuting (Armstrong and Possley, 2002; Kirchmeier, Greenwald, Reynolds, and Sussman, 2009). The Veritas Initiative reviewed more than 4,000 state and federal rulings between 1997 and 2009 in California and identified 707 cases where courts found prosecutorial misconduct. These cases are an undercounting of what probably occurs because they came from appeals. In 159 cases, appellate courts set aside the verdict or declared a mistrial. Only 10 prosecutors received any form of disciplinary action from the state bar (Ridolfi and Possley, 2010). An updated study found 102 more cases in 2010 where 130 instances of prosecutors’ misconduct were identified. In 26 of the cases, judges set aside convictions or sentences, declared a mistrial, or barred evidence specifically because of the misconduct. These studies identified 107 prosecutors who committed more than one case of misconduct, and a few were cited for misconduct four, five, and six times (Martinez, 2011).
The Innocence Project (working with the Veritas Initiative) conducted similar studies in New York, Texas, Arizona, and Pennsylvania. Researchers searched through Westlaw database and reviewed trial and appeals court decisions addressing allegations of prosecutor misconduct between the years 2004 and 200
8
, and searched through state bar disciplinary records. New York had 151 findings of prosecutor misconduct and 3 prosecutors were disciplined. In Texas, there were 91 findings of prosecutor misconduct and only 1 prosecutor disciplined. In Arizona, 20 incidents of prosecutor misconduct were found and 3 prosecutors disciplined. Pennsylvania had 46 findings of prosecutor misconduct with 2 prosecutors disciplined.
The California District Attorneys Association (CDAA) and the Texas District & County Attorneys Association (TDCAA) published reports strongly critical of the methodology of the research into prosecutorial misconduct. These organizations reanalyzed the cases used in the California and Texas studies. Their findings indicate that prosecutorial misconduct is extremely rare and that prior studies incorrectly and unfairly conflated unintentional error with misconduct (CDAA, 2012; TDCAA, 2012).
Cox reexamined a sample of the California cases and all the Texas cases as a validity check against the Veritas and district attorney associations’ findings, finding that the district attorney’s analysis undercounted cases of misconduct by misclassifying them as error (T. Cox, 2016). She found the types of prosecutorial misconduct or errors most commonly noted included improper comments during closing arguments, eliciting improper testimony from a witness, and prejudicial statements made to the jury. Brady violations accounted for very few of the instance of misconduct (less than 6 percent). Only 20 percent of misconduct findings resulted in a conviction or sentence being overturned. Significant themes included the lack of consistent language used by judges to identify misconduct and error, the lack of judicial concern over whether the prosecutor had the intent to commit misconduct or simply made a mistake, the role that lack of prosecutor training and experience plays in the occurrence misconduct, and the lack of agreement between appellate cases and prosecutors themselves regarding the prevalence of Brady violations. She concluded that appellate decisions are not suitable sources of data for identifying and policing prosecutor misconduct because judges are often unclear regarding their findings of misconduct or error, or may not reach a decision regarding misconduct at all. Furthermore, harmless error analysis is used; therefore, the intent of the prosecutor is less important than the strength of the state’s case against a defendant in determining the consequences of misconduct. She also noted that the prosecutor culture may also contribute to the amount of misconduct and error that occurs and, although prosecutors considered Brady violations to be the most common types of misconduct, they appeared in less than 10 percent of the appellate case decisions in the study.
Kirchmeier et al. (2009) discuss four types of prosecutorial misconduct: withholding exculpatory evidence, misusing pretrial publicity, using false evidence in court, and using peremptory challenges to exclude jurors despite Batson v. Kentucky, 476 U.S. 79, 1986, which prohibited race discrimination in jury selection. When a prosecutor violates the Batson ruling and uses peremptory challenges in a racially discriminatory manner, there should be some sanction; however, the prosecutor must show only that he or she had some other reason for exclusion, and the legal standard is whether there is any explanation for the exclusion, even if implausible (Purkett v. Elem, 514 U.S. 765, 1995). Statistics from the Equal Justice Initiative, a legal advocacy group, indicate that black jurors are dismissed at a blatantly disproportionate rate compared to white jurors. In some jurisdictions, blacks were removed three times as often as whites and, in another jurisdiction, 80 percent of blacks were struck from capital cases by prosecutors (New York Times, 2010). There is really no way to know if a prosecutor uses a peremptory challenge because of the race of the potential juror, but in some cases, there are suspicious indications such as codes for racial appearance on the prosecutor’s notes. Some other types of misconduct are discussed next.
Improper Conduct, Improper Relationships
There are some examples in the news where it appears the prosecutors involved did not take their duty as public servants seriously. For instance, the Two-Ton Contest in Illinois has been written about by several authors. It occurred when prosecutors participated in a contest to see who could convict 4,000 pounds of flesh. In the attempt to win, they vied to handle cases of the most overweight defendants and, one assumes, let their prosecutorial judgment be affected by the size of the defendant (Medwed, 2009). In other instances, such as the one described in the
In the News box, a prosecutor and police detective together subvert justice.
In the News
Prosecutorial Misconduct
Michael Vecchione was a top prosecutor in Brooklyn before his and a disgraced former police investigator’s actions led to an investigation of over 70 cases that might have resulted in wrongful convictions. Both men retired, leaving the office to reexamine scores of cases they worked on. One of the cases identified was Jabbar Collins who served 15 years in prison before he was released and settled his lawsuit against the city for $10 million. A court released him because of evidence that Assistant District Attorney Vecchione coerced false testimony. A federal judge called Assistant District Attorney Vecchione’s conduct “horrific” and said that he was “disturbed” and “puzzled” that the District Attorney did not punish him. A prosecution witness who has recanted said Vecchione threatened to hit him with a coffee table and make him stay in jail unless he testified for the prosecution. Vecchione was also accused of Brady violations, intimidating a second witness with jail, and promising a third witness that his probation violation would be cleared. There was also testimony that law enforcement officials from the Brooklyn District Attorney’s Office held witnesses in hotel rooms against their will and without legal justification, and prosecutors used forged, falsely “sworn” applications to obtain warrants to arrest and detain individuals who were merely prospective witnesses. The police investigator, Louis Scarcella, has been implicated in over 70 cases where there is evidence that innocent people have been convicted because of coerced confessions, intimidated witnesses, and/or perjured testimony. In at least five Scarcella cases, the individuals have been exonerated. Most of them date back to the 1980s and 1990s and observers note that the patterns do not point to simply one rogue detective, but, rather, the collusion of prosecutors and detectives to move cases through the system.
Sources: Clifford, 2014; Marzulli, 2015; Robles, 2013a, 2013b; Saul, 2014.
Model Rule 3.3(a) forbids an attorney from knowingly allowing false evidence to be admitted; some argue that “knowingly” is too strict a standard because prosecutors have argued that they did not “know” that the evidence was false and that an objective negligence standard should be used instead (Zacharias and Green, 2009). Like a defense attorney’s quandary when a witness commits perjury, a prosecutor must also take steps to avoid allowing false testimony to stand. The prosecutor’s role is the easier one because there are no conflicting duties to protect a client; therefore, when a prosecution witness perjures himself or herself, the prosecutor has an affirmative duty to bring it to the attention of the court.
Recall from
Chapters 5
and 7 that the prevalence of “testilying” by police officers is unknown, but many believe that it is widespread. Researchers, observers, and especially defense attorneys believe that testilying would not occur as much if not for the active or passive acceptance of the practice by prosecutors (L. Cunningham, 1999; S. Cunningham, 2016). In 1999, in the small Texas town of Tulia, many black defendants were convicted based on the perjured testimony of one police investigator. The prosecutor knew that the police officer on the stand had lied about his past, yet he did not disclose that information and allowed the perjury to stand. It was also revealed that the investigator lied about the defendants as well. After the intervention of the ACLU and, eventually, the governor of Texas commuting the sentences, the dozens of people convicted were finally released. The prosecutor was sanctioned by the Texas bar and almost lost his law license. Many believe he should have, considering his role in the convictions (Herbert, 2002, 2003).
Recall from
Chapter 9
that the use of jailhouse informants has become increasingly subject to scrutiny as their role in wrongful convictions becomes apparent. Prosecutors who use jailhouse informants today are on notice that research shows there is a high probability that their testimony is false. Jailhouse informants have been implicated in many wrongful convictions.
Misconduct also occurs when prosecutors intentionally use scientific evidence that they know to be false. There are proven instances where prosecutors put on the stand so-called experts that they knew were unqualified and/or their expertise was without merit (Gershman, 2003). Prosecutors may bolster a witness’s credentials or allow him or her to make gratuitous and unsupported claims on the witness stand, such as to state “unequivocally” that the fingerprint, hair, or lip print was the defendant’s.
Giannelli and McMunigal (2007) and Fisher (2008) describe a long list of expert witnesses who became well known for their pro-prosecution bias and outlandish testimony in bite marks and other areas. So-called experts include Louise Robbins (who testified in one notorious case that a boot mark matched the defendant’s even though no other forensic examiner agreed) and Michael West (who supposedly invented a way to use light to identify bite marks on murder victims and always seemed to find a match to the suspect). Joyce Gilchrist, a forensic chemist from Oklahoma, was implicated in several exonerations for her hair analysis testimony in which she overstated the accuracy of the procedure and/or simply lied (Fisher, 2008; Raeder, 2007). Fred Zain evidently systematically lied, altered lab reports, and suppressed test results favorable to the defense (Possley, Mills, and McRoberts, 2004). These experts continued to be used by prosecutors even after appellate courts had excoriated their testimony and they were widely criticized by peers (Fisher, 2008).
Quote & Query
There are disturbing indications that a non-trivial number of prosecutors—and sometimes entire prosecutorial offices—engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.
Judge Alex Kozinski, 9th Circuit Court of Appeals—the judge who barred the entire office of prosecutors from Orange County, California, from appearing in his court.
Source: Ferner, 2016.
· Do you think the judge should have barred the entire office of prosecutors because of unethical behavior?
Prosecutors have had experts suppress information that was favorable to the defense and not put it in their report or not conduct tests that might be helpful to the defense. Sometimes expert reports are provided to the defense but delay is used to undercut the ability of the defense to use the information. In other cases, experts are asked not to write a report at all if their findings do not help the prosecution, or prosecutors have the report filed as inconclusive so that they do not have to provide it to the defense (Giannelli and McMunigal, 2007). In their closing arguments, prosecutors may overstate the expert’s testimony so “is consistent with” becomes “matched” (Gershman, 2003: 36). In some egregious cases, prosecutors have simply lied about physical evidence, such as stating that the red substance on a victim’s underpants was blood when, in fact, it was paint (Gershman, 2003; Miller v. Pate, 386 U.S. 1, 1967). The quote in Quote and Query indicates that at least some judges notice prosecutorial misconduct.
Brady Violations
The most common charge leveled against prosecutors, failure to disclose evidence, stems from a duty to reveal exculpatory evidence to the defense. In
Chapter 9, the obligation to disclose exculpatory evidence established in Brady v. Maryland 373 U.S. 83, 1963 was discussed. Prosecutor Charles Sebesta was disbarred from the practice of law in the state of Texas for Brady violations and other misconduct during the Anthony Graves’ trial. The 1992 murder of six family members, include four children, traumatized a town. Police quickly arrested Robert Carter, the father of one of the children. He named Anthony Graves as the person who helped him commit the murders, although he later recanted. Anthony Graves was convicted despite having an alibi and no evidence that he even knew the people killed. The prosecutor used Carter’s testimony, and the testimony of five inmates and jailers who swore they heard Graves confess, even though it was later discovered they had committed perjury. Graves’ case was reopened when a journalism class found evidence that Sebesta never shared Carter’s recantation with Graves’ attorneys. Evidently Sebesta obtained an indictment against Carter’s wife and told Carter he would prosecute her if Carter did not testify against Graves. After Graves’ trial, the charges against Carter’s wife were dropped. The prosecutor who was brought in to retry the case found it highly unlikely that charges would be dropped against anyone who had participated in a multiple homicide. After she began evaluating the evidence, she came to realize that Graves was innocent and took steps to secure his release. After Graves’ exoneraton, in June 2015, a three-person panel of the Texas State Bar Association voted to strip Sebesta of his law license (Colloff, 2011).
Prosecutors who engage in acts such as those described in the In the News box not only risk losing the immediate case, but also lose their credibility and undercut the trust and faith we place in the justice system.
In the News
Ted Stevens was a senator from Alaska before his death in an airplane crash. A federal judge threw out his federal conviction for conflict of interest and bribery in 2009 after an FBI agent that had been an investigator on the case reported that prosecutors tried to hide a witness and did not share transcripts where Bill Allen, their star witness, made contradictory statements. Justice Department prosecutors used pending charges of sexual misconduct with underage girls as leverage for Allen’s testimony, a fact not shared with defense attorneys.
In another case involving federal prosecutors, Dr. Ali Shaygan was acquitted of 141 counts of illegal prescriptions of painkillers and federal prosecutors were admonished by a federal justice who suspected them of witness tampering and secretly taping conversations with Shaygan’s lawyers. U.S. District Court judge Alan Gold accused the federal prosecutors of knowingly and repeatedly violating ethical guidelines and acting in bad faith.
In New Orleans, the convictions of Robert Faulcon Jr., Kenneth Bowen, Robert Gisevius Jr., Anthony Villavaso II, and Arthur “Archie” Kaufman, the officers who had been convicted of homicide and a cover-up in the Danziger Bridge incident after Hurricane Katrina, were overturned. Federal Judge Kurt D. Engelhardt ruled that “grotesque prosecutorial misconduct” on the part of federal prosecutors left him no choice but order new trials for all the men. The prosecutors, he argued, had created a prejudicial atmosphere by anonymously posting comments before and during the trial at Nola.com, the website of the New Orleans Times-Picayune.
Sources: Hagan, 2012; Johnson, 2009; Linderman, 2013; Perksy, 2009.
10-1cJudicial Misconduct
Public exposés of judicial misconduct are rare. Operation Greylord, in Chicago, took place in the 1980s. Because of an FBI investigation, 92 people were indicted, including 17 judges, 48 lawyers, 10 deputy sheriffs, 8 police officers, 8 court officials, and a member of the Illinois legislature, and 31 attorneys and 8 judges were convicted of bribery. Judges accepted bribes to “fix” cases—to rule in favor of the attorney offering the bribe. Not unlike law enforcement’s “blue curtain of secrecy,” not one attorney came forward to expose this system of corruption, even though what was occurring was well known (Weber, 1987).
In the infamous “kids for cash” scandal in Pennsylvania, former judges Michael Conahan and Mark Ciavarella in Lucerne County were prosecuted for almost literally “selling” youthful offenders to a private correctional facility. They were charged with racketeering, money laundering, fraud, bribery, and federal tax violations for accepting millions of dollars in return for sending juveniles who appeared before them to a private correctional facility. Conahan had earlier shut down the county-run youth corrections center, so they would have to send the kids to the private facility. The judges conducted hearings without appointing lawyers for the juveniles and then sent them to the private facility for minor offenses. The scandal led to overturning hundreds of juvenile convictions and releasing many of the juvenile offenders sent to the facility. No one can explain why the scheme had not been exposed years before or why prosecutors, probation officers, or defense attorneys never questioned what was happening. But red flags were raised. A newspaper had done an exposé on harsh juvenile sentencing in 2004, and a defense attorney had filed a complaint with the state judicial disciplinary board in 2006, but the board failed to act until after the two judges had been indicted by the federal grand jury. The investigation began after another judge in the jurisdiction went to the FBI with his suspicions. Conahan pleaded guilty to a racketeering conspiracy charge and was sentenced to 17 years in prison. Ciavarella went to trial, was convicted of racketeering, was sentenced to 28 years in prison, and must pay $965,000 in restitution.
Biased Decisions
Most judges strive to fulfill their role with integrity and honesty, taking care to protect the appearance and reality of justice. Judicial canons require judges to avoid even the appearance of bias or impropriety. In
Chapter 9, the rule against conflict of interests was discussed. Misconduct is alleged when judges do not recuse themselves and/or act in ways that give preferential treatment to individuals or groups.
There is a prohibition on attorneys and judges discussing a case outside the presence of the other attorney, this is called ex parte communication and is prohibited because it gives one side preference over the other. Because of working conditions, this is much more likely between prosecutors and judges than with defense attorneys. This rule applies to casual conversations as well as more formal interchanges or offerings of information. Ex parte communications create the perception (if not the reality) of bias and if a judge favors one side or the other, due process is imperiled; for instance, one Houston judge was investigated for sending text messages during the trial to the prosecutor suggesting a line of questioning to help bolster the prosecution’s case. There were allegations that it was not the first time she had done so (Horswell, 2013).
In Chapter 9, we discussed the expectation that judges maintain an unbiased position toward any issue that might come before him or her. In some cases, judges have been asked to recuse themselves because they have indicated to news media that they already had opinions on a case before it was concluded. In 2006, the late Justice Scalia, in a public speech, opined that giving full due-process rights to detainees in Guantanamo was “crazy” and made remarks referring to his son, who was serving in Iraq at the time. Several groups demanded that he recuse himself from the case of Hamdan v. Rumsfeld, 548 U.S. 557, 2006, because the case was about what, if any, due-process rights in American courts the detainees deserved. Justice Scalia did not recuse himself, and Hamdan did win his case, with the Supreme Court holding that detainees deserved some due process and that the military commissions that were created at the time were not sufficient. Scalia was in the dissent, however, so arguably one might conclude that he had already made up his mind before the case was decided (Lane, 2006).
Swisher (2009) lists and discusses various forms of judicial misconduct, including
· failing to inform defendants of their rights,
· coercing guilty pleas,
· exceeding sentencing authority,
· exceeding bail authority,
· denying full and fair hearings or trials,
· abusing the criminal contempt power,
· ignoring probable cause requirements,
·
denying defendants’ rights, and
· penalizing defendants for exercising their rights.
In the News
Judicial Misconduct
Judge Joseph Boeckmann in Arkansas resigned before a disciplinary committee could fully investigate allegations from dozens of people that he had propositioned male defendants for nude photographs and sexual favors in return for leniency. Male defendants described how they were given community service and then asked to take off their shirts, and let the judge take photos of them bending over “to prove they had performed community service.” Sometimes he touched their buttocks. Some men agreed to let him take nude photos and some said they agreed to be spanked by the judge. The head of the Arkansas Judicial Discipline and Disability Commission called it “if not the worst, among the worst cases of judicial misconduct” in state history. Gossip and allegations had existed for 30 years about the judge. Only recently, however, did several victims file a lawsuit and submit charges to the Judicial Discipline board. The judge denied all charges but resigned. An investigation uncovered over 4,000 pictures of nude or semi-nude men on the judge’s computer; and records that showed defendants who had their charges dropped despite being repeat offenders. Some of them listed the judge as their employer or listed as their residence houses owned by the judge. Possibly at least 35 potential victims have or will come forward. The Judicial Commission’s investigation ended with the judge’s resignation but there might be a criminal investigation underway.
In another case, former Nashville Judge Casey Moreland was charged with five felony counts and arrested in March 2016. Allegations are that he offered leniency to at least two women in exchange for sex. There are also allegations that he attempted to get one of the women to recant her allegations against him, and when she refused, he developed a scheme to frame her by planting drugs in her car and then having her arrested. He also was alleged to have interfered in a traffic stop of his girlfriend by telling the police officer to not give her a ticket. He could face a maximum of 80 years in prison and a fine of $1.25 million.
Former Pennsylvania Supreme Court Justice Seamus P. McCaffery resigned in 2014 before an ethics investigation would have probably stripped him of his pension. McCaffery was accused of exchanging 234 e-mails containing pornographic materials, interfering in civil courts in cases involving individuals who paid referral fees or contributed to his campaign, and fixing a traffic ticket for his wife.
Federal District Court Judge Mark E. Fuller of the Middle District of Alabama was arrested and charged with battery in early August 2014 for beating his wife. Other allegations against the judge were that he had also beat his first wife, had an affair with his current wife who was his court bailiff at the time, refused to recuse himself from cases where the federal government was a party even though he received millions in federal money in his private business, and orchestrated the arrest and conviction of the former governor, refusing to recuse himself from that case even though there had been enmity between the two. He refused to step down until June of 2015 when the U.S. Judicial Conference, recommended impeachment. Fuller resigned to keep his federal pension.
Sources: Barchenger and Boucher, 2016; Blinder and Robertson, 2014; Friedman, 2015; Lauer, 2016; McCoy and Purcell, 2014.
Other forms of unethical behavior are less blatant. Judges have a duty to conclude judicial processing with reasonable punctuality. However, there are widespread delays in processing, partly because of the lack of energy with which some judges pursue their dockets. In the same jurisdiction, and with a balanced assignment of cases, one judge may have only a couple dozen pending cases and another judge may have literally hundreds. Some judges routinely allow numerous continuances, set trial dates far into the future, start the docket call at 10:00 a.m., conclude the day’s work at 3:00 p.m., and in other ways take a desultory approach to swift justice.
Pimentel (2009) notes that while egregious cases of judicial misconduct appear in the news (i.e., sexual misconduct or bribery), the more prevalent forms of misconduct may only be known to the attorneys who practice before the judge (i.e., favoritism, racial or gender bias, and arbitrary decision making). However, it is extremely rare for attorneys to file complaints against judges. In fact, Pimentel notes one case in which an attorney reported that his client bribed a judge, and, as a result, the attorney was disciplined by the bar association for revealing client confidences. Nothing happened to the judge.
We must be careful not to paint with too broad a brush. Only a few judges are involved in the most egregious examples of unethical behavior, such as taking bribes or trampling the due-process rights of defendants, just as only a small percentage of police officers, defense attorneys, and prosecutors commit extreme behaviors. Most judges are ethical and take great care to live up to the obligations of their role. However, as with the other criminal justice professionals, sometimes there are systemic biases and subtle ways in which the principles of justice and due process are subverted.
10-2Factors in Wrongful Conviction
Recall from
Chapters 3
and 8 that wrongful convictions are increasingly appearing in the news. The factors that seem to be correlated with wrongful convictions clearly indicate that legal professionals must take responsibility for reducing the possibility of such gross miscarriages of justice. It should be recognized that while sometimes prosecutors are implicated as pivotal in a wrongful conviction (e.g., Ken Anderson in the Michael Morton case), in other cases, prosecutors have been pivotal in helping to free someone.
When wrongful convictions were compared with cases where a factually innocent defendant was indicted but the prosecution was dropped or didn’t result in a conviction, researchers found that these factors influenced the likelihood of a wrongful conviction: state punitiveness, a weak case, error during forensic testimony, age and prior criminal history of the defendant, honest mistaken identity by an eyewitness, and poor representation by a defense attorney (Gould et al., 2014; see also, Gould, Carrano, Leo, and Young, 2012). Other factors (perjury by informants, police and prosecutorial misconduct, false confessions, “junk science,” ineffective assistance of counsel) have been discussed previously.
Mistaken eyewitness testimony is the most frequently identified factor in wrongful convictions. We know more today about the vagaries of eyewitness memory today than we have in previous years. Research shows that memory is not as accurate as some people (including jurors) believe. Mistaken eyewitness testimony may not involve any wrongdoing on the part of police or prosecutors; however, in some cases, improper police or prosecutor behavior influenced witnesses to identify the wrong person. For instance, police officers may repeatedly ask victims if they were sure that the suspect was not the person, or using “show-ups” that present only one person to the witness instead of a lineup. Research shows that people are woefully poor witnesses and, more dangerous, are convinced they are right about the identification by the time of trial.
The Supreme Court rejected an argument that judicial review of eyewitness testimony was necessary even given the research that showed how faulty it was (Perry v. New Hampshire, 132 S. Ct. 716, 2012). This leaves it to prosecutors’ offices to make sure such testimony is credible. Suggestions include using sequential identification (since witnesses feel pressure to pick one person from a regular lineup even if told none of the people may be the suspect), and double-blind identifications where the law enforcement official does not know which person is the suspect (to avoid giving conscious or unconscious cues) (Wise and Safer, 2012). These science-based techniques to improve accuracy are only helpful if prosecutors and law enforcement investigators are motivated to use them.
10-2bFalse Confessions
False confessions are another important factor in wrongful convictions.
Chapter 6
covered how police behavior can induce a person to confess by coercive and/or deceptive interrogations, but prosecutors are also complicit in participating in or using false confessions. False confessions are so powerful that juries have convicted individuals even when there is exculpatory DNA evidence introduced at trial. Prosecutors explain away the DNA by saying in rape cases that the victim may have had consensual sex with someone else before the rape by the defendant, and, in murder cases, that explanations exist for the presence of unknown persons, for example, someone came along after the murder and had sex with the corpse was used as an explanation in one case! Garrett (2011), in his review of wrongful convictions, identified 40 cases of false confessions; over half were given by juveniles or mentally challenged suspects.
Eddie Lowery spent 10 years in prison for a rape he didn’t commit. His confession included elements of the crime that only the perpetrator would have known. He confessed because police told him he failed a lie detector test and he believed that they wouldn’t let up until he confessed. How did his confession include details of the crime scene? Because they coached him, said Lowery, correcting him on every element of his confession until he got it right. Lowery received $7.5 million in a suit against the police department in Riley County, Kansas (Garrett, 2011).
The “Norfolk Four” were four sailors who were convicted of rape and murder in 1997. They allege that they falsely confessed to the crime because of the coercive interrogation tactics of a police investigator. He told them that if they didn’t confess, they would die. There was no other evidence to link them to the crime. Before they were brought to trial, another man, who knew the victim, confessed, admitting he did it alone, and his DNA was found at the crime scene, yet the prosecutors continued with their case against the Norfolk Four. One of the Norfolk Four served eight years before being released, but the other three were still in prison until being pardoned by Virginia’s governor in August 2009. The pardon was conditional and the men were released on parole, but had to register as sex offenders. In 2017, they finally received a full pardon by the current governor who referred to additional evidence of innocence. For instance, Robert Glenn Ford, the police detective who interrogated them, was later found guilty of extortion and lying to the FBI and sentenced to 12-and-a-half years in prison (Boghani, 2017).
Garrett’s (2011) study of 250 exonerees found that 70 percent were minorities. Whereas some of the cases probably involve pure and extreme racial prejudice, a prevalent factor in false convictions is a subtler form of racism. Many in the criminal justice system tend to prejudge the guilt of the accused, especially if they are black men. There is a pervasive stereotypical belief that all defendants are guilty, and a disproportionate number of defendants are black. This thought pattern shapes and distorts decision making on the part of prosecutors who may sift and use evidence in a way that will support these predetermined beliefs. Also noted is a higher rate of error in cross-racial identification, stereotyping, and lack of resources among minority defendants (Schehr and Sears, 2005).
10-2dConfirmatory Bias
Confirmatory bias is when someone ignores evidence that is contrary to what they believe. Confirmatory bias may lead to wrongful convictions because prosecutors ignore evidence that tends to refute their theory of the case. It might even lead to the noble-cause corruption discussed in
Chapter 5
. Just as police may commit misconduct when they think they have the guilty party, so, too, may prosecutors bend and even break the rules when they are sure the defendant is guilty. For instance, some prosecutors may not disclose evidence to the defense because they perceive that as possibly endangering their ability to get a murderer off the street. Alternatively, these individuals may be affected by confirmatory bias in that they truly cannot see the exculpatory nature of the evidence because they believe so strongly that the defendant is guilty.
The ideal, or vision, of our justice system is that it is fair, unbiased, and, through the application of due process, arrives at the truth before finding guilt and assessing punishment. The reality is that the law is administered by humans with human failings and that errors and misconduct result in innocent people being convicted, incarcerated, and sometimes executed. In this section, prosecutors get a disproportionate amount of attention because they are public servants and owe special duties to the public.
Prosecutors have similar powers of discretion as police officers, and they seem to also have a subculture that creates pressure to cut corners to gain a conviction. In the Quote and Query, a prosecutor explains how the mission of justice becomes subverted.
Quote & Query
… In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie And Justice for All, “Winning became everything.” … After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That’s sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any “celebration.”
Marty Stroud, a New Orleans prosecutor in the Glenn Ford wrongful conviction case. Ford served 30 years before being exonerated. The quote is from Stroud’s letter to the newspaper apologizing for what happened. Read his letter here: www.shreveporttimes.com/story/opinion/readers/2015/03/20/lead-prosecutor-offers-apology-in-the-case-of-exonerated-death-row-inmate-glenn-ford/25049063.
10-3aExplanations of Prosecutor Misconduct
In response to a question about why prosecutors commit the various forms of misconduct described earlier, one commentator explained succinctly, “Because they can.” The office of the prosecutor is one of the least scrutinized in the criminal justice system and has not experienced the intense analysis directed to law enforcement or the courts. Hidden from public view are the decisions as to whom to prosecute and what charges to file. Furthermore, when wrongdoing is exposed, there is little chance of serious sanctions.
Prosecutors are immune from Section 1983 liability for their decision to prosecute or actions taken in preparation for or during trial (Imbler v. Pachtman, 424 U.S. 409, 1976). The Supreme Court has also ruled that prosecutors cannot be subject to civil suits against them, even in cases of egregious rule breaking, if it concerns their adversarial function or prosecutorial decisions (Connick v. Thompson, 563 U.S. 51, 2011). Prosecutors have limited immunity for actions taken during the investigative phase of a case and for administrative activities. Thus, lying for a warrant, coercing confessions, or making false statements to the press could expose them to liability, but rarely does (Kirchmeier et al., 2009; Zacharias and Green, 2009). Prosecutors have limited immunity when giving legal advice to police officers (T. Cox, 2016; Cox, Cunningham and Pollock, 2017).
When Mike Nifong was sued by the lacrosse players for statements made to the press and other misconduct, the city refused to indemnify him and he declared bankruptcy. Thomas Lee Goldstein was more successful in obtaining damages. He was wrongfully convicted in Los Angeles County partially due to the prosecutor’s misconduct. In this case, the prosecutor used a jailhouse informant who testified that Goldstein confessed, but the informant lied on the stand that he had never been an informant in the past. In fact, he had and had received money for previous testimony in another case. The prosecutor allowed the perjury to stand. Goldstein had his case overturned and was exonerated and sued on a theory of misconduct during the administrative functions of the prosecutor role. A lower court barred his suit holding that the prosecutor’s actions fell under his immunity protections and he appealed that decision; however, he ended up settling with the city for $7.95 million (Cathcart, 2010; Zacharias and Green, 2009).
At this point, the Supreme Court has shown no inclination to take away prosecutors’ immunity. In Pottawattamie County v. McGhee and Harrington, 556 U.S. 1198, 2009, the parties settled before the Supreme Court reached an opinion. However, during oral arguments, the justices seemed concerned that reducing the immunity of prosecutors would make them more hesitant to aggressively prosecute crime and subject them to frivolous lawsuits. The case involved two men who were wrongfully convicted when they were teens and served almost 30 years in prison because a prosecutor helped assemble and present false testimony against them and hid evidence that implicated the relative of a city official. They settled for $12 million with the county before the Supreme Court made any decision whether the immunity of prosecutors extends to the acts of preparing false testimony to be used in court. In another case, the Supreme Court reaffirmed prosecutorial immunity even when the prosecutor violated Brady rules by not disclosing exculpatory information about a jailhouse informant to the defense (Van De Kamp v. Goldstein, 555 U.S. 335, 2009).
In 2011, John Thompson’s favorable verdict by a federal trial court awarding him $14 million for prosecutorial misconduct by the New Orleans prosecutors’ office was overturned by the Supreme Court. Thompson was convicted of robbery and murder when New Orleans prosecutors withheld exculpatory test results of blood found at the crime scene that was not his. He spent 18 years in prison for a crime he did not commit. After he was exonerated, he filed a Section 1983 suit against the district attorney’s office, arguing there was deliberate indifference in allowing prosecutors to violate Brady rules (to turn over exculpatory evidence to the defense). The Supreme Court ruled 5–4 that District Attorney Harry Connick, Sr. could not be held liable for a single Brady violation (Connick v. Thompson, 131 S. Ct. 1350, 2011). In Truvia v. Connick, No. 14-708, 5th Cir., 2014, several individuals who had been exonerated sued District Attorney Connick again. There was ample evidence that withholding exculpatory evidence occurred in many cases in the Orleans Parish District Attorney and there was a lack of training. Twelve additional exonerations since 1990 were detailed. The Fifth Circuit Court of Appeals, however, held that there was not sufficient evidence to prove that the Orleans Parish District Attorney’s office had a custom or policy of withholding exculpatory evidence and the Supreme Court denied certiorari.
Raeder (2007) argues that one of the reasons for prosecutorial misconduct is that the Model Rules and Standards do not cover many of the activities described as misconduct, or they refer to them obliquely with no clear guidance. Furthermore, there are few complaints against prosecutors, except in high-profile cases. Gershman (1991) writes that prosecutors misbehave because it works and they can get away with it. Because misconduct is scrutinized only when the defense attorney makes an objection and then files an appeal (and even then the appellate court may rule that it was a harmless error), there is a great deal of incentive to use improper tactics in the courtroom. The simple fact is that most prosecutors who commit wrongdoing are not disbarred or punished in any way and, in fact, some go on to be judges and politicians (Armstrong and Possley, 2002).
In a review of nine years of cases in New York City by Propublica, a liberal civil rights advocacy group, only one prosecutor was found to have been seriously punished for cases that were later overturned because of prosecutorial misconduct, such as Brady violations, coaching witnesses, hiding witnesses, or lying to the judge. Their review of cases found that even serial offenders received raises and commendations and apparently experienced no consequences for misconduct, even in cases where appellate judges rebuked the prosecutor. If there are grievances against prosecutors investigated by the state bar’s disciplinary committee, such proceedings are usually done in secret with no public access to their findings (Sapien and Hernandez, 2013).
In the discussion of wrongful convictions earlier, confirmatory bias was described as related to noble-cause corruption in that once there is a determination that the defendant is guilty (by police and prosecutors), this perception may lead to misconduct to make sure a conviction is obtained. Grometstein (2007) also applies the concept of noble-cause corruption to prosecutors, arguing that they adopt a utilitarian ethic of using bad means to get a conviction, like police officers. Aronson and McMurtrie (2007), in their discussion of prosecutorial misconduct, identify the issue as “tunnel vision,” arguing that prosecutors work under a bias that defendants are guilty; therefore, they ignore exculpatory evidence. Like the problems this causes with police investigators, these authors discuss several psychological processes that contribute to misconduct:
· The presence of confirmatory bias (human tendency to seek to confirm rather than disconfirm)
· Selective information processing (only recognizing evidence to fit one’s theory)
· Belief perseverance (believing one’s original theory of the case despite evidence to the contrary)
· Avoidance of cognitive dissonance (adjusting beliefs to maintain existing self-perceptions)
Acker and Redlich (2011) also describe tunnel vision, expectancy theory, and confirmation bias as reasons for false convictions. Medwed (2009) discusses the prosecutor’s “conviction psychology” and noted the fact that prosecutors work closely with police officers and victims and their families, and the emotional connections make it difficult to maintain professional objectivity in cases. Grometstein (2007) emphasizes the relationship between the prosecutor and the victim, arguing that the prosecutor spends even more time with the victim than do police officers, leading to pressure to convict.
Cummings (2010) used Bandura’s moral disengagement theory to explain intentional prosecutorial misconduct, concentrating on three types most relevant to prosecutors:
· Reconstructing conduct as morally justified
· Obscuring personal agency
· Blaming or dehumanizing defendants
The first type refers to “noble-cause corruption,” prosecutors (like police) feel they are on the side of the righteous, and so what they do can be justified. The second relates to office policies that have “batting averages” and pressure to convict that make it difficult for a prosecutor to express anything other than a strong conviction orientation. The final idea is, again, like police in that the culture of some prosecutors’ offices includes an orientation toward defendants that dehumanizes them by using “scum,” “slime,” and similar words. In one study, it was found that there were 34 different words—all negative—that were used to refer to defendants (Cummings, 2010).
10-3bExplanations for Misconduct of Judges
The immunity of judges insulates them from the effects of their decisions, although their decisions are public and can create storms of controversy. Their case holdings can be scrutinized and their courtroom behavior may be grounds for an appeal. Even so, it is difficult for attorneys to challenge judges’ actions or testify against them in disciplinary proceedings (Swisher, 2009). Thus, some judges evidently believe they are invulnerable and use the office as a personal throne. In the Pennsylvania case where two judges received kickbacks for sending kids to a private prison, employees and lawyers explained that anyone who criticized the judges, even slightly, found themselves facing retaliation. Judges have immense power and, as the saying goes, “power corrupts.” Attorneys tend to keep their head down and their opinions to themselves even when judges are clearly in the wrong. State judicial commissions rarely sanction judges, and voters tend to be oblivious to the reputation of judges, often voting along strict party lines, thus “bad” judges keep getting reelected.
10-4Responding to Misconduct
Voters have some control over who become a prosecutor and judge, but once in office, most stay in the good graces of a voting public unless there is a major scandal or an energetic competitor. A range of potential responses to prosecutorial misconduct have been offered or implemented. Many of these have weaknesses that prevent their effectiveness. It should be noted also that prosecutors’ associations believe that major changes in responses are unnecessary because they argue that prosecutorial misconduct is extremely rare. The
In the News box describes how legislators in California are responding to prosecutorial misconduct.
In the News
Governor Jerry Brown of California signed a new law in 2016 that will make it a felony for prosecutors to tamper with evidence or hide exculpatory material from the defense. Previously these acts were misdemeanors. They could be punished by 16 months, two or three years in prison, depending on the severity of the violation. The CDAA initially had opposed the bill but switched to a neutral position. The law was written in response to the jailhouse informant scandal involving the prosecutor’s office in Orange County discussed in the last chapter. Some described the law as “disincentivizing” prosecutorial misconduct.
Sources: Ferner, 2016; Goffard, 2016.
To enforce rules of ethics, the American Bar Association (ABA) has a standing committee on ethical responsibility to offer formal and informal opinions when charges of impropriety have been made. Also, each state bar association has the power to sanction offending attorneys by private or public censure or to recommend a court suspend their privilege to practice law. Thus, the rules enforced by the state bar have essentially the power of law behind them. The bar associations also have the power to grant entry into the profession because one must belong to the bar association of a state to practice law there. Bar associations judge competence by testing the applicant’s knowledge, and they also judge moral worthiness by background checks of individuals. The purpose of these restrictive admission procedures is to protect the public image of the legal profession by rejecting unscrupulous or dishonest individuals or those unfit to practice for other reasons. However, many believe that if bar associations were serious about protecting the profession, they would also continue to monitor the behavior and moral standing of current members with the same care they seem to take in the initial decision regarding entry.
Disciplinary committees investigate a practicing attorney only when a complaint is lodged against him or her. The investigative bodies have been described as decentralized, informal, and secret. They do little for dissatisfied clients because most client complaints involve incompetence and/or lack of attention and these charges are vague and ill-defined (Marks, Raymond, and Cathcart, 1986). Many bar disciplinary committees are hopelessly understaffed and overburdened with complaints. Complaints may take years to investigate, and in the meantime, if prospective clients call, they will be told only that the attorney is in good standing and has no substantiated complaints. A study of attorney discipline by an organization for legal reform reported that only 3 percent of investigations by state disciplinary committees result in public sanctions and only 1 percent end in disbarment (San Antonio Express News, 2002). A more recent study looked at a small sample of complaints submitted to the Florida bar association and found that variables that were associated with cases being sent forward for further review included being a solo practitioner, and the complainant being a legal professional; and the only factor that was significantly associated with a sustained finding and discipline imposed was being a solo practitioner (Piquero et al., 2016).
While individuals with complaints against their lawyers in the civil arena receive little satisfaction, criminal defendants are arguably even less likely to have anyone care or rectify incompetence or unethical behavior on the part of their attorney. One of the most common complaints against attorneys is that they allow deadlines to pass or miss court dates. Criminal defense attorneys could face civil suits for their incompetence or poor work performance, sanctions from their bar association, and even be cited by courts for contempt, but such events are rare. Recall from
Chapter 8
that 80 percent of criminal defendants resort to publicly funded attorneys (either public defenders or court-appointed) and these systems are woefully underfunded. Thus, it is possible that the poor legal representation received by many is due to overworked and under-resourced attorneys.
It seems that prosecutors may be even less likely to be the target of bar discipline committees than criminal defense attorneys. Such information is hard to access because disciplinary proceedings may be secret, but the numbers of prosecutors investigated, much less sanctioned, seem to be very small, maybe as low as 2 percent of all complaints filed result in discipline (Sullivan and Possley, 2016).
Zacharias and Green (2009) proposed that Model Rule 1.1 requiring all attorneys to display a level of competency could be used against prosecutors who use evidence that they should know is false or withhold evidence from the prosecution. The advantage of using the competency rule rather than the rule prohibiting the use of false testimony is that the “knowing” standard is difficult to meet (the prosecutor must “know” the evidence is false), but competency would be an easier standard to meet. For example, prosecutors who use jailhouse informants that are extremely questionable or otherwise engage in acts that they should know have the potential to result in innocent people being convicted could be disciplined without having to prove they knew they were changing the course of the trial.
Misconduct in the courtroom is sometimes orally sanctioned by trial judges, but prosecutors are rarely directly mentioned in appellate holdings even when case decisions are overturned. Many times, when there is clear misconduct, the court rules it is harmless error and does not even overturn the conviction. Recently, some states, through legislation, have created more stringent responses to prosecutorial misconduct and will require overturning cases even if there is no way to prove that such misconduct affected the outcome of the case (T. Cox, 2016; Kirchmeier et al., 2009; Sullivan and Possley, 2016).
Some have argued that the evidence of prosecutorial misconduct supports rethinking prosecutorial immunity, and perhaps employing criminal sanctions against prosecutors (Raeder, 2007). For instance, the Texas Judiciary and Civil Jurisprudence Committee has considered a bill that would establish liability for prosecutors in cases of extreme misconduct, giving them only qualified immunity (like police officers), rather than absolute immunity. Supreme Court Justice John Paul Stevens has also spoken out on removing the judge-made absolute immunity enjoyed by prosecutors, arguing that Congress never intended prosecutors to be immune from Section 1983 liability. Change would have to come from state legislatures and Congress (for the federal system) and then the new legislation would no doubt be challenged by prosecutors.
There is some argument that prosecutors do not get sufficient training on Brady obligations that then lead to some of the Brady violations that appear in wrongful convictions. Prosecutors’ associations advocate enhanced training on Brady obligations to reduce violations. Some argue that requiring prosecutors to work with Innocence Commissions to counteract the psychology of conviction at all costs would be helpful. It has also been suggested that prosecutors’ offices should have ethics officers and sanction employees who cross over the line. There should also be clear and public policies in each prosecutor’s office concerning the use of jailhouse informants and turning over exculpatory material (Kirchmeier et al., 2009; TDCAA, 2012).
Scheck (2010), one of the founders of the Innocence Project, explains that the criminal justice process could learn from quality assurance programs in medicine. He proposes that many of the mistakes of prosecutors are due to being overworked and careless. In other words, it isn’t that they intend to suppress evidence from the defense, it is that they forget to disclose it; similarly, other mistakes occur because of a lack of quality control in the process. The medical establishment underwent a fundamental improvement in the quality of care when checklists were begun in operating rooms. Error rates plunged to near zero in the same hospitals that had been experiencing unacceptably high rates. Scheck says this same approach should be used in prosecutors’ offices to uncover Brady material and make sure it gets to the defense. Other procedures should be an internal discipline review system that would undertake a systematic review of mistakes made and identify the prosecutors involved. Responses would depend on the reason for the mistake. If prosecutors erred because of overwork, then resources should be allocated to reduce those errors; if a prosecutor was ignorant of his or her duties under the law, then training was necessary. However, if the prosecutor intentionally violated the law or ethical obligation, then discipline was necessary.
While the number of Innocence Project affiliates is growing and the groups have been successful in identifying cases and prevailing in court, they can’t be the only solution to the problem of false convictions. Craig Watkins, former district attorney of Dallas County, instituted the first conviction integrity unit in his office in 2007. The unit reviews DNA cases that have been identified by the Innocence Project of Texas and all cases where DNA evidence has identified unknown suspects in addition to the defendant. By 2014, the office had freed 33 people, was investigating 30 cases, and had a backlog of 200 cases (Barber, 2014). Watkins lost a reelection campaign in 2014, ironically because of ethical scandals (including possible misuse of asset forfeiture funds) and political missteps, but his Republican successor promised to continue the work of the unit.
By 2014, over a dozen cities or counties had similar units, including San Francisco, Chicago, San Jose, Brooklyn, Detroit, Denver, Philadelphia, and Cleveland. By 2017, the Registry of Exonerations reports that there are 29 such units in the 2,300 prosecutors’ offices across the country. These units have been responsible for exonerating 225 individuals up to 2016 (National Registry of Exonerations, 2017). Recall from
Chapter 8 that the ABA added two sections to Rule 3.8 for prosecutors that concerned their ethical duty to investigate and remedy when there is a chance that an innocent person has been convicted. Even though most states have not adopted those changes, these units pursue the spirit of the rule changes.
Sometimes a similar body is formed at the state level. The North Carolina Innocence Inquiry Commission was created in 2007 by N.C.G.S. §§ 15A-1461 through 15A-1470. The commission has the power to order a formal inquiry by a three-judge panel appointed by the Chief Justice of the North Carolina Supreme Court. Since 2007, the commission received 2,035 cases and 1,985 had been reviewed and closed by March 2017. Ten people have been exonerated. The remaining cases are under review (North Carolina Innocence Commission, 2017).
As mentioned earlier, DNA has been the vehicle by which many innocent prisoners have obtained their release from prison. Even after many years, a small amount of preserved DNA evidence could exclude someone or help to identify the real perpetrator of a crime. Some states have mandated DNA testing of old cases when the inmate requests it. Still other offices, however, actively oppose retesting of DNA. In District Attorney v. Osborne, 557 U.S. 52, 2009, the Supreme Court, in a 5–4 decision led by the conservative majority, ruled that defendants had no constitutional right to DNA evidence, even if it was still held by the state and even if they were willing to pay for its testing. In this case, the prisoner argued that the testing done in his trial matched him only to 1 in 6 black men and more advanced tests available today could determine more accurately that he was not the rapist. Alaska argued that such a right would jeopardize the finality of case decisions when the trial was otherwise fair. One wonders, however, how a trial could be thought of as fair if an innocent person was convicted. One also wonders why the Supreme Court would not consider access to such evidence a part of due process. Contrary to this decision, many states are taking steps to make mandatory the preservation of biological evidence in criminal cases and creating a state right to postconviction DNA testing, even though such testing is prohibitively expensive and evidence must be kept in conditions sufficient to allow for later testing.
Because of the pro-prosecution bias that is said to exist in state or local police crime labs, there have been calls for private labs to test evidence. More than half of all labs in the country report directly to a law enforcement organization. Sometimes the bias is direct, but more often it is subtle and examiners may not even be aware of how they slant findings to the prosecution (cognitive bias). While there is an argument that private labs would not be subject to the same cognitive bias as employees of law enforcement agencies, a contrary argument is that examiners would still feel pressure because their continued contract would be the incentive to produce favorable results. A hybrid suggestion is that most testing would continue at state crime labs but periodically evidence would be sent to private labs for verification. Private labs could also be sued more easily than governmental entities, giving them the incentive to follow proper procedures (Balko, 2011b).
The research on eyewitness identification errors has led to procedural suggestions that can increase the accuracy of identifications (e.g., sequential photo arrays and double-blind examiners). While the Supreme Court does not seem to be interested in mandating such procedures as essential to due process, there is no reason why states or even local prosecutors’ offices shouldn’t. The more safeguards there are in eyewitness identification, the less chance there is of an innocent person being convicted.
Procedures can also ensure that obtaining confessions occurs in a manner designed to minimize the potential for false confessions. While the legal standard is whether coercion was present and the bar is set very high, some suggestions to deal with false confessions have emerged. One suggestion is to videotape all interrogations (not just the confession) (Garrett, 2011). More generally, suggestions include the requirement that all confessions have corroborating evidence, that lawyers be required to be present, and that stricter exclusionary rule applications be applied when there is evidence of coercion. As mentioned previously some locales have either eliminated or dramatically constrained the use of jailhouse informants because of the high probability that they are lying to gain some benefit.
There is new attention to and interest in addressing the weaknesses of the justice system to reduce the number of wrongfully convicted. It is important to note, however, that the new rules, sanctions, and guidelines that address jailhouse informants, confessions, eyewitness identifications, and other factors that have been identified as contributing to wrongful convictions will be effective only if there are ethical legal professionals who are committed to ensuring that there truly is justice for all.
Unfortunately, there is little reason for the prosecutor who sees injustice occur to come forward. In Garcetti v. Ceballos, 547 U.S. 410, 2006, the Supreme Court ruled against a prosecutor who was retaliated against for trying to rectify what he saw as a violation of due process. In this case, Richard Ceballos was an attorney for the Los Angeles County District Attorney’s office. He submitted a memorandum to his superiors detailing his findings that a search warrant obtained by law enforcement officers had serious flaws and recommended the case be dismissed. Instead, his supervisor continued the prosecution. Ceballos, against orders, provided the defense with a copy of his memorandum and was called as a defense witness. He was subsequently passed over for promotions and sanctioned in other ways, and filed a Section 1983 claim arguing that his First Amendment rights were violated. The Supreme Court, in a 5–4 decision, held that the First Amendment did not apply to public servants during their public duties. Sadly, this decision may act as a barrier to public officials who attempt to challenge what they believe to be miscarriages of justice. However, the Court revised this ruling in Lane v. Franks, 573 U.S. 13, 2014, holding that the First Amendment does protect public employees who provide truthful sworn testimony, under a subpoena, in a hearing that is outside of ordinary job duties, even if the testimony addresses information learned at work. Writing the opinion, Justice Sotomayor claimed that the act of testifying in court “sets it apart from speech made purely in the capacity of an employee” (p. 9). Moreover, she wrote, “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs” (p. 11).
In fact, some argue that it is the attorneys and other professionals who work in the courtroom that are responsible for prosecutorial misconduct if they don’t report it. Defense attorneys, clerks, judges, and others all have the duty to report any action that threatens the integrity of the court. Sullivan and Possley (2016) in a wide-ranging discussion of prosecutorial misconduct and how to address it argue that the way to reduce misconduct includes these five approaches:
1. instituting an open-file pretrial discovery requirement on prosecutors (similar to the Morton Act in Texas) that could even substitute for the Brady rule;
2. abandoning the harmless error test for reversing convictions; even if there is sufficient evidence of guilt, serious prosecutorial misconduct should be met with reversal;
3. identifying errant prosecutors by name in trial and appellate opinions;
4. stripping prosecutors of full immunity and giving them qualified immunity instead as protection from civil damages for misconduct; and
5. authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors.
Ethical misconduct by prosecutors is expensive and threatens the very legitimacy of our legal system. When prosecutors have been found to have engaged in a Brady violation, put a questionable jailhouse informant on the stand, or winked at police perjury, anyone convicted can argue that the same misconduct occurred in his case. As more of these cases come to light, more suspicion is cast on all prosecutors whenever there are allegations of misconduct. Conviction integrity units are expensive to operate and take needed resources away from prosecuting current criminals. Unfortunately, guilty perpetrators may go free when police and prosecutors don’t do their job legally and ethically. In one case where prosecutorial misconduct led to a conviction being overturned, Troy Bennett pleaded guilty to a lesser charge, was released, and then confessed to the murder he was originally charged with, effectively getting a free pass because of prosecutorial misconduct (Sapien and Hernandez, 2013). The problem is that when there is no confidence in justice system actors, then every case needs to be relitigated. The cost to the system of misconduct is incalculable. Thus, any utilitarian arguments prosecutors who are inclined to commit misconduct may make are weak and unpersuasive considering the costs at stake.
It is important to remember that legions of police, lab examiners, prosecutors, and judges engage in the honorable profession of pursuing justice for victims of crimes without committing any of the acts described in these chapters. Just as suspects should not be deprived of due process and be the victims of “noble-cause” corruption because of a belief that they are guilty, neither should prosecutors (or police officers) be presumed guilty because they are charged with misconduct. Just because there is an allegation in an appeal that prosecutors engaged in misconduct, does not make it so. Individuals on the side of defending the wrongfully convicted may be subject to confirmation bias as well and have their own ethical blinders on regarding what is legal and ethical when they believe that they are advocating for an innocent person in prison. It is also important to remember that in many of the cases where someone has been exonerated, the original conviction took place in the 1980s when large cities were struggling with incredibly large caseloads related to drugs and crime. The crime rate is, in some categories, far less than half of what it was in the 1980s; prosecutors’ offices today have more resources to devote to each case and some also have the desire to reevaluate old cases to make sure they were prosecuted correctly. Our
Walking the Walk
box describes one prosecutor who believed it was his duty to do so.
Kenneth Thompson was Brooklyn’s District Attorney for a short three years. By all accounts, his life, while short, was well-lived and he represented the very best of professional advocacy. Thompson won the election from his predecessor, Charles Hynes, who left under a cloud of scandal. Mr. Thompson became Brooklyn’s first black district attorney. His mother was one of the first female police officers in New York City. He was a federal prosecutor before starting his own firm specializing in civil rights.
After he took office, he expanded the conviction integrity unit to ten lawyers from two, and added three detective investigators. He also added a review panel of lawyers and a law professor consultant. The conviction integrity unit has been instrumental in releasing Jeffrey Deskovic and over 20 others. Thompson also established a policy to avoid prosecuting most low-level marijuana arrests. He instituted an amnesty program called “Begin Again” that allowed people to expunge old warrants. The idea was that years of zero-tolerance policing led to tens of thousands of low-level offense warrants; Brooklyn alone had over 250,000 open warrants, some dating back to the 1970s. If people showed up, waited in line, and filled out some paperwork, and, assuming they didn’t have serious charges, they could leave with a clean record. At the first event in June of 2016, 1,000 people showed up and Thompson worked the lines himself to increase trust. Many people evidently thought it was a trap and they would be arrested.
It’s difficult to balance the rights of all groups and he was criticized for prosecuting New York City police officer Peter Liang who accidentally killed a resident in a housing project stairwell; but also criticized by the other side for recommending probation for the officer. Others might see his position as balancing justice and mercy. He was arguably just getting started on criminal justice reform when he was diagnosed with cancer. He died in October 2016 at the age of 50. According to the Editorial Board of the New York Times, “His intimacy with the perspectives of both law enforcement and minority communities made him unusually well positioned to balance a respect for the justice system even as he fought to fix it from the inside.” His legacy continued as those who ran for the office after his death vowed to continue his work and the changes he had put in place.
Sources: Baker, 2015b; Editorial Board, 2016; Feuer, 2017a.
10-5Judicial Independence and the Constitution
Before we leave this set of chapters on legal professionals, it is helpful to revisit some basic perspectives of law and how one’s perspective or paradigm colors how we view judicial decisions or applications of the law. One view of law is that it is neutral and objective and that formal and absolute rules of law are used in decision making. However, the reality is that lawmakers, law enforcers, and lawgivers are invested with a great deal of discretion in making and interpreting the law. Professionals in law enforcement, the courts, and corrections use their discretion wisely and ethically, or, alternatively, they may use their discretion unethically. Far from being absolute or objective, the law is a dynamic, ever-changing symbol of political will. In this text, we address the ethical issues in the implementation, rather than the creation, of law. As you learned in political science or government classes, the creation of law is political. Laws are written by federal and state representatives who supposedly enact the public will. One might think that once a law is created, its implementation would be straightforward, but it should be clear by now that this is not the case. An appellate court can change over time and be influenced by political shifts in power. Far from being static, the implementation of law reflects political realities, in direct contrast to the ideal of judicial independence that is the cornerstone of our system of government.
If the judiciary is not independent of political powers, this calls into question the very existence of the checks and balances upon which this country’s government is constructed. For instance, many Democrats suspected that the political composition of the Supreme Court had a great deal to do with its decision in the case challenging the Florida vote after the Bush–Gore presidential election in 2000. Whether the allegations are true, it should be obvious that the strength of the justice system rests on the independence of its judiciary.
The system of federal prosecutors and the federal law enforcement agencies, which include the Federal Bureau of Investigation (FBI) as well as many others, is also supposed to be removed from political influence. If we do not trust that a true separation of powers exists, then we have no trust in our government. The reason why there was such a political uproar over the firings of eight federal prosecutors on a so-called “hit list” in 2007 by the Bush administration was because they were evidently fired for not carrying out the wishes of the administration. While it is true that there is usually a widespread replacement of U.S. attorneys at the beginning of a new administration, it is quite another thing when U.S. attorneys are targeted for not doing the administration’s bidding in terms of what prosecutions they pursue (Carr and Herman, 2007; Johanek, 2008). The reason why the Obama administration’s IRS scandal stuck a deep chord in individuals on both sides was because of the allegations that governmental power was used against enemies. Now, questions exist about the Trump administration’s attempts to influence the justice system (through firings of at least one U.S. attorney as described in the
In the News box) or attempts to influence federal law enforcement (by firing James Comey). It is probably very tempting as a sitting president to use the great resources available to protect friends and punish enemies. However, the greatest strength of our system of government is the separation of powers.
In the News
No one contests the right of a new president to request the resignations of U.S. Attorneys. It is a right that is exercised routinely by most elected presidents. What is not acceptable, however, is any hint of influence from a sitting president or any employee on the prosecutor’s discretion to investigate, charge, or prosecute individuals. Therefore, President Bush’s firing of U.S. attorneys mid-term received a scathing critique by the Justice Department because it had more than a hint of political influence over prosecution. After President Trump’s inauguration, he asked for the resignation of Preet Bharara, the U.S. attorney in Manhattan. Bharara was extremely well known and widely respected as a fierce prosecutor. He prosecuted insider trading and hedge fund fraud cases, a case against J.P. Morgan bank, the Times Square bomb plotter Faisal Shahzad, and Al Qaeda terrorist Khalid Al-Fawwaz for the bombings of U.S. embassies in Kenya and Tanzania. He was not afraid to go after the politically well-connected, such as a former aide to New York Governor Andrew Cuomo. The reason several news stories focused on the firing was because President Trump had earlier asked Bharara to stay. The other reason was that, according to Bharara, there was a series of troubling phone calls from President-elect Trump, and then President Trump to Bharara. While he took the first two calls before the election, Bharara chose not to return a call from President Trump after he became president and contacted President Trump’s chief of staff, suggesting that the president should be counseled about contacting a United States attorney directly. He believed that, especially considering his jurisdiction, it was not wise to have private conversations. The next day Mr. Bharara saw that he was on a list of 48 attorneys who were asked to tender their resignations. Since he had been called to a personal meeting and asked to stay on, he believed it was a mistake. It wasn’t and he was fired.
Sources: Bright, 2017.
If the justice system, including prosecutors and judges, is a pawn or an agent of political power, due process is a sham and the very essence of democracy is threatened. The importance of due process is that even criminals and enemies of the state are given due-process rights that protect them from errors in the deprivation of life, liberty, and property. If due process is reserved only for those who are not enemies of the state, all are threatened because anyone may become an enemy. If for some reason state power would become despotic, it would be likely to label as enemies anyone favoring open government and democracy. What this illustrates is that the law (and the nature of its protections) is more important than the state and, indeed, is even more important than threats to the state. Those who are more influenced by political allegiance than allegiance to due process and civil liberties create a weak link in the mantle of protection against despotic state power.
The U.S. Supreme Court, as the ultimate authority of law in this country, decides constitutionality, and these interpretations are far from neutral, despite the myth of objective decision making. This is the reason that the selection of Supreme Court justices (as well as all federal judges) is such a hard-fought political contest. Ideological positions do make a difference, and no one is fooled that a black robe removes bias. The confirmations of John Roberts as Chief Justice (during the Bush administration) and Sonia Sotomayor and Elena Kagan (during the Obama administration) illustrate this. When Justice Scalia died in 2016, President Obama nominated Merrick Garland to replace him. Senate Republicans refused to even hold a confirmation hearing for Garland spurring bitter criticism from Democrats. Then when President Trump nominated Neil Gorsuch, Democrats vowed to filibuster against his nomination. Republicans employed the “nuclear option,” meaning that Gorsuch was confirmed on a simple majority. Neither side opposed the two men on academic or judicial qualifications. Both, by all accounts, were well qualified. The fight is about political ideology and the intent to place on the bench those who will make decisions in conformance with one’s ideology. What is interesting is that so-called liberal justices have been appointed by Republican presidents: Justices John Paul Stevens (appointed by Gerald Ford), David Souter (appointed by George H.W. Bush), and Sandra Day O’Connor (appointed by Ronald Reagan) were not considered activist or liberal when they were appointed but moved in that direction compared to the justices who have been appointed since then (Greenhouse, 2007). Today, some say Justice Kennedy is the most important man in America because he is often the swing vote that shifts the decision from four to five or five to four. Justices Roberts, Alito, and Thomas typically return conservative decisions (e.g., pro-business and anti-criminal defendant), and Justice Gorsuch is expected to vote with this group. Justices Ginsburg, Kagan, Sotomayor, and Breyer return liberal verdicts (although this is a generalization). The fate of the most important social questions in this country being at the discretion of one individual should be deeply concerning to Americans.
10-5aJudicial Activism
Our law derives from the Constitution. Two basic philosophies regarding how to apply constitutional principles are at work in the legal arena. The first group might be called
strict constructionists
because they argue that the Constitution should be implemented as written, and if any changes are to take place in rights, responsibilities, or liberties, the changes should take place through the political system (Congress).
The extreme view of this position is that if a right isn’t in the Constitution, it doesn’t exist. So, for instance, the right to be free from state interference in the decision to abort one’s fetus does not exist in the Constitution; therefore, it doesn’t exist and cannot be created except through the actions of duly elected representatives. Strict constructionists argue that just because something should be a right doesn’t mean that one can decide the framers meant for it to be a right. Judges should not create law.
Interpretationists
(or activists) have a looser reading of the Constitution and read into it rights that the framers might have recognized or that should be recognized because of “evolving standards.” They argue that the Constitution is meant to be a living document and that the language of the framers was intentionally written as to accommodate interpretation based on changing times and circumstances. Concepts such as due process, for instance, from the Fifth and Fourteenth Amendments, are flexible so they can be used to address new questions and new concerns. Interpretationists place less emphasis on precedent, minimize procedural obstacles (such as standing, ripeness, and federalism), and offer less deference to other political decision makers (e.g., they use the strict scrutiny test rather than the rational relationship test when evaluating governmental actions). The debate as to whether the Constitution should be strictly construed or liberally interpreted is an old one, as the Quote and Query box indicates.
Critics of judicial activism point out that just because judicial activists have been promoters of civil liberties and socially progressive causes, such as integration and free speech, there is no absolute necessity that activism would always champion such individual rights. Activism could, for instance, be just as likely to recognize greater rights of the state to restrict individual liberties (Wolfe, 1991), or invalidate congressional acts by an interpretation of the Constitution that favored restricting laws obtained through the democratic process (some say this is the case with the Citizens United v. Federal Elections Commission, 558 U.S. 50, 2010, a decision that invalidated a law putting limits on corporate campaign spending).
Proponents of activism argue that the federal government itself has not been content to stay within the boundaries of its enumerated powers as specified in the Constitution, and that proliferation of the federal government’s reach into all areas of criminal and civil law through the expansive interpretation of the Commerce Clause requires greater judicial checks. Furthermore, there are limits to judicial power, including impeachment, confirmation, congressional definition of appellate powers, and the power to override a Supreme Court opinion through a constitutional amendment (Wolfe, 1991).
Quote & Query
When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.
Sources: Oliver Wendell Holmes Jr., Supreme Court Justice, 1902–1932, as quoted in Wolfe, 1991: 36.
· Does this quote by Holmes indicate he was a strict constructionist or an interpretationist?
When the Court was in its most activist phase during the Warren Court (1953–1969), it delivered broad opinions that have had dramatic effects on the political and legal landscape. The Warren Court was called activist or liberal because it recognized a whole range of civil liberties and due-process rights for groups that had been historically disenfranchised. The source of such rights was found in an expansive reading of the Constitution and based on the idea of “fundamental liberties”—those freedoms and protections that the framers would have recognized if they had been asked. Central to this view is the idea of
natural rights
. Recall that the natural law ethical system holds that there are natural laws of ethics that humans may or may not discover. Several of the authors of the Bill of Rights were natural law theorists; thus, taken out of the context of their time, they would probably recognize that humans have the following rights:
· To be free
· To be treated equal to other groups
· To be able to make decisions about personal matters without governmental interference
· To be free from torture and punishments that degrade the human spirit
· To have some protections against state power
In addition, there may be recognition that humans also have rights:
· To basic survival needs
· To avail themselves of opportunities to better themselves
The first set of rights leads to less government; the second set leads to more government. That is why the political terms conservative and liberal are not strictly comparable to “strict constructionist” and “interpretationist” and why there is such confusion when these terms are being used to describe judicial and political appointees and elected officials. “Liberals” argue that if the Warren Court hadn’t interpreted the Constitution to recognize civil rights, blacks would still be eating at separate lunch counters. Constructionists argue that if interpretationists had their way, the courts would be involved in every decision from birth to death.
The Supreme Court’s constructionist justices: John Roberts, Samuel Alito, Clarence Thomas, and Antonin Scalia have been instrumental in restricting the coverage of the Miranda warnings, upholding federal antiabortion laws, cutting free-speech rights of public school students, strictly enforcing procedural requirements for bringing and appealing cases, limiting the ability to use racially conscious measures to achieve or preserve integration, invalidating public corruption laws and campaign finance laws, and generally supporting law enforcement powers, with some exceptions. On the other hand, the Supreme Court has also recognized unconstitutionality in capital punishment and life without parole for juveniles and ruled against the government’s secret program to store electronic communication data of all Americans. Recent case decisions have recognized religious liberty rights for Muslims to grow beards in prison (Holt v. Hobbs, 574 U.S. ___, 135 Sup. Ct. 853, 2015), the requirement to obtain a warrant before searching a cellphone (Riley v. California, 573 U.S. ___, 134 Sup. Ct. 2473, 2014), and the rejection of the so-called provocation rule that removed immunity from police if they created the situation where they felt in danger of their lives (Los Angeles County v. Mendez, No. 16-369, U.S. Supreme Court, May 30, 2017).
Judges’ political leanings shouldn’t influence these decisions, but it is hard to argue that there is no correlation. One thing is clear: a judge is human and carries baggage of personal, political, and social bias. The importance of the foregoing discussion is to illustrate the law is not an equation that comes out with the right answer to every problem. Because there is room to interpret, individual ethics becomes extremely important. Prosecutors’ and judges’ ethics should lead them to use their discretion in ways that promote justice. We all, however, must be involved in a continuing, serious discussion about what justice means. For instance, should federal prosecutors “lighten up” on heavy charging of drug offenders or should they enforce the law to its full extent? Should asset forfeiture be restricted and curtailed or is it a legitimate punishment if one is involved, even peripherally, in crime? Should jailhouse informants be banned or should they be used when there is other evidence that points to guilt? Should we eliminate plea bargaining or does it resolve cases quickly helping both the defendant and the system? These are within the individual discretion of system actors, but they take their cues from what the public seems to want. The focus on wrongful convictions and police misconduct during the Obama administration has given way in the Trump administration to calls for returns to full prosecution, mandatory minimums and reducing the Department of Justice’s demands for police reform. The adage that we get the government we deserve once again seems relevant as system actors shift and respond to political winds and public sentiment.
10-6aConclusion
One might expect that the public’s respect and trust for legal professionals, as guardians of the justice system, would be high, but that is not the case. Part of the reason is the ability to take either side in a controversy. We should not forget, however, that attorneys and judges protect the bedrock of our structure of laws.
In criminal justice, it is crucial that legal professionals remember and believe in the basic tenets of due process and be ever vigilant against the influence of prejudice or bias in the application of law toward the pursuit of justice. Unfortunately, there are cases where defense attorneys, prosecutors, and judges do not uphold the ethical standards of their profession and instead engage in various forms of misconduct. Although the types of misconduct vary depending on one’s role in the system, each can be explained by individual enrichment (money, status, or time), or by ends/means thinking due to confirmatory bias (like noble-cause corruption for police officers).
There is a need to improve the ethics of the system, as evidenced by the Innocence Project’s exonerations of hundreds of people who ended up in prison because of the failings of the system and system actors. Just as important is to make sure the same “rush to judgment” isn’t directed to system actors when allegations of misconduct arise. Despite those who advocate strict constructionism, applying the law can never be truly objective or formulistic. Every decision is made through a reasoned and, one hopes, ethical interpretation of the law rather than by a robotic response. If the law is a living entity, legal professionals are its life’s blood.
10-6bChapter Review
1. Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges.
Misconduct by defense attorneys includes ignoring cases, incompetence, and going over the line when defending clients, including presenting false evidence. The types of prosecutorial misconduct include withholding exculpatory evidence, misusing pretrial publicity, using peremptory challenges to exclude jurors, and using false evidence in court. Misconduct by judges includes allowing bias (including bribery) to influence their decision making and acting arbitrarily and otherwise abusing their power.
2. Explain the reasons why such misconduct occurs.
Misconduct occurs because the disciplinary functions carried out by the state bar associations rarely result in serious sanctions. Prosecutors experience very little oversight and seldom suffer from sanctions when violating the ethical rules in their zeal to obtain a conviction. Courts often rule such misconduct as harmless error. Judges are feared by employees and lawyers who hesitate to file complaints against them. Also, prosecutors, like police, may be prone to confirmatory bias or what we have called noble-cause corruption in prior chapters.
3. Describe some factors in wrongful convictions.
The most commonly noted factor in wrongful convictions seems to be an error in eyewitness identification. Other factors include Brady violations, coerced interrogations that lead to false confessions, jailhouse informants, poor representation by defense attorneys, police and prosecutorial misconduct, false confessions, and faulty or perjured forensic testimony.
4. Discuss some proposals to improve the justice system and reduce ethical misconduct.
Suggestions to improve the system have been to institute official Innocence Projects or conviction integrity units. Suggestions also include more training and ethics officers. Also, some have suggested reevaluating prosecutorial immunity and using civil and criminal sanctions against prosecutors who create and use false evidence and engage in other forms of misconduct to obtain convictions. Other proposals more specifically to reduce the possibility of wrongful convictions include using videotape confessions, restricting the use of jailhouse informants, and using sequential and double-blind identifications to avoid improper influence over witnesses.
5. Understand the concepts associated with judicial activism or constructionism and how this issue relates to ethical misconduct.
An activist judge is one who believes such concepts as due-process and liberty rights are evolving and the founding fathers did not mean for the rights enumerated in the Constitution to remain static throughout time. Constructionists argue that legislators should make law, not judges. One’s opinion regarding this—and one’s values, opinions, and biases in general—affect decision making, so judges’ opinions on cases can be predicted ahead of time in many cases. This calls into question judicial neutrality and reminds us that, in the end, our system of laws is a system of people who enforce the law, and thus it is only as good or bad as the people in the system.
The field of corrections, which will be the topic in this next set of three chapters, encompasses county and state jails, prisons, community corrections, including probation and parole, and various correctional programs. Correctional professionals, like law enforcement and legal professionals, have a great deal of discretion and power over the lives of offenders.
As you may know, the United States has about 2.1 million people in jails and prisons. We incarcerate many more people per capita than other western, industrialized countries. At a rate of about 700 per 100,000, the United States incarcerates about seven times more people than Norway (72), France (98), or Canada (118) and a little less than five times more people than the United Kingdom (147) (Wagner and Walsh, 2016).
The reason our imprisonment rate is so much higher is not because of higher crime, but, because of our inclination to punish with incarceration rather than any other sentencing alternative (Raphael and Stoll, 2008). A careful analysis of sentencing patterns by Pfaff (2011) shows that the dramatic increase in
incarceration rates that began in the 1980s was largely due to the decision of prosecutors to seek prison terms for convicted individuals, and, to a lesser extent, increased sentence length and changes in parole release and revocation.
Further, we were roughly comparable to other countries in our punishment practices until the 1980s, at which time the incarceration rates increased dramatically every year. Recently, the rate and numbers in prison have plateaued, and many states, have even showed decreases in the number incarcerated (Kaeble and Glaze, 2016; Pollock, 2016). The number incarcerated in jail or prison decreased by 2.3 percent from 2014 and was its lowest level since 2004 (Kaeble and Glaze, 2016). Some states have created double-digit declines since 1999, including New Jersey, New York, Rhode Island, and California. Interestingly, states’ decrease or increase in the number of people imprisoned does not seem to show any correlation with whether the state’s crime rate has increased or decreased (Pew Research Center, 2016).
While the incarceration rate per 100,000 is 466 for white men, it is 1,130 for Hispanic men and an amazing 2,791 for black men. Women are incarcerated at a much lower rate: 51 per 100,000 white women are incarcerated, compared to 65 for Hispanic women and 113 per 100,000 for black women (Bureau of Justice Statistics, 2015). At year-end 2015 an estimated 6,741,400 persons were supervised by U.S. adult correctional systems (prison, jail, probation, or parole). This is a decrease of about 115,600 persons from year-end 2014 and represents almost 3 percent of the total adult population. The interested reader can go to the Bureau of Justice Statistics (https://bjs.gov/) to see how imprisonment patterns have changed over the years.
It is important to emphasize that the imprisonment patterns we see are a function of individual discretion on the part of sentencing judges, legislators who pass mandatory minimum laws, and prosecutors who choose how to charge and what sentences to recommend. We see this clearly by looking at the pattern of increases in sentence length over the last several decades and how they vary dramatically by state. In Florida, the average time served rose by 166 percent, while in New York, sentence length increased only 2 percent (Goode, 2012).
Did the incredible rise in incarceration cause crime rates to fall? The consensus seems to be that incarceration practices were partially responsible for the dramatic decline in crime that began in the early 1990s, but, quickly reached a point of diminishing returns as incarceration rates kept increasing as crime decreased. One estimate is increased incarceration accounted for approximately 6 percent of the reduction in property crime in the 1990s but less than 1/100th of the decline of property crime in the 2000s, and had no effect on violent crime rates (Roeder, Eisen, and Bowling, 2015). A National Academy of Sciences commission that reviewed all studies on the relationship between incarceration and crime concluded that changes in punishment policies were the main and proximate drivers of the growth in incarceration. Prosecutors and judges became harsher in their charging and sentencing. However, over the four decades of steadily increasing incarceration rates, the rate of violent crime rose, then fell, rose again, then declined (Travis, Western, and Redburn, 2014).
Beginning in the last several years, many groups have advocated rethinking the use of prison and sentencing policies like mandatory minimums. The Coalition for Public Safety (www.coalitionforpublicsafety.org) is funded by the MacArthur Foundation as well as the conservative Koch brothers, political power brokers that generally contribute to the most conservative politicians. The Coalition states their mission is to “reform our criminal justice system to make it more just, more fair, and more effective.” On their website, they advocate fair sentencing, fair and appropriate use of incarceration at both the federal and state level, and “fair chances” (addressing collateral consequences of a criminal conviction). The interesting thing about this advocacy is that it is bipartisan and both conservative and liberal advocates share the same message that our mass incarceration practices must be reexamined considering social science and common sense. While not all groups agree on all items, some of the proposals or changes that have received attention are briefly summarized below:
·
Reducing zero tolerance policies in schools that led to suspensions for very minor acts of misbehavior.
· Addressing the “school-to-prison pipeline” that has transformed school discipline into the entry into the criminal justice system using municipal tickets.
· Reevaluating the direct filing laws that allowed juveniles to be charged as adults (also the waiver procedures that accomplish the same thing) leading to juveniles being incarcerated in correctional facilities for adults.
· Considering raising the age at which juveniles must be dealt with through the juvenile court system considering recent research indicating juveniles’ decision-making ability is not fully developed.
· Rolling back mandatory minimum laws at both the federal and state level (these laws restrict the discretion of judges to sentence in some crime categories).
· Moving marijuana out of the Schedule 1 drug category, which is for drugs that have a high risk of addiction and no legitimate medical value.
· Decriminalizing possession of small amounts of marijuana to a “ticketable” offense or decriminalizing small amounts for personal use.
· Reviving or increasing the scope of pretrial release programs to reduce the number of people in jail simply because they can’t afford bail.
· Evaluating the system of fines and fees that have created new “debtors” prisons for offenders who have crushing debt they can’t pay solely because of criminal justice-related fines and fees.
· Specialty courts, such as drug courts, veteran’s courts, and courts for the mentally ill, which divert individuals from the system at the “front end.”
· Reestablishment of parole and good time in those states that had abolished one or both means to reduce sentences for good behavior.
· Evaluation of the use of solitary confinement given findings of the pervasiveness in which it is used and the deleterious effects it has on the human psyche.
· Reentry initiatives that assist offenders who are released to the community with job placement and other programs designed to reduce recidivism.
· “Ban the box” initiatives that question the legitimacy of using prior arrest as a categorical disqualifier for some jobs and programs that reward employers with tax incentives for hiring ex-offenders.
· Addressing collateral consequences of a criminal conviction, such as drug offenders being denied federal Pell grants or federal housing and, in some states, lifetime bans on voting.
· Improvement of indigent defense so that offenders can be diverted from the system (when appropriate) sooner, rather than later, in the process.
The impetus for the change is both pragmatic (corrections costs have skyrocketed to consume ever-increasing portions of budgets) and moral (conservative rationales especially speak to the power of redemption and urge policies that support reformation). With the election of President Trump, the movement for reform and revision of sentencing policies has halted, at least on the federal level. Legislation written to eliminate or revise mandatory minimum sentences for drug offenders has no chance of being voted on and there doesn’t seem to be any support for some of the other criminal justice reforms in this administration (George, 2017). There is still a great deal of activity at the state level however. Thirty states have limited sentence length and expanded alternatives to incarceration despite some opposition from district attorneys’ and sheriffs’ organizations (Oppel, 2017).
Two famous quotes resonate in any discussion of ethics in corrections. The first is from Dante’s Divine Comedy: “Abandon all hope, ye who enter here.” This inscription at the portal to hell, often scrawled as graffiti in prisons, unfortunately encapsulates what some prisons mean to those who are sent there. Fyodor Dostoyevsky was reputed to have provided the second quote: “The degree of civilization in a society can be judged by entering its prisons,” which cautions that the best of us still have certain duties of respect and care toward the worst of us.
Once someone has been found guilty of a criminal offense, the type of punishment must be determined. Punishments range from a suspended sentence to death. Sometimes punishment includes treatment, at least in name. Offenders may be required to participate in treatment programs or self-help groups such as Alcoholics Anonymous. They may be required to get their GED or obtain some type of job training. In addition to formal, legal punishments, there are informal, extra-legal punishments that should not exist, but unfortunately do exist. Those with a criminal record may never be able to recapture a derailed career or find a decent job again. Inmates are raped and beaten by other inmates and sometimes even by correctional officers. Their personal property is destroyed. Some get sick or injured and receive inadequate medical treatment. Prisoner advocates maintain that these events should never be part of the formal punishment of prison, but others strongly believe that the prisoner “shouldn’t do the crime if he (or she) can’t do the time.” Prisoners form an unsympathetic “victim” group perhaps explaining why public support for reform is usually lukewarm at best.
According to one author (Leiser, 1986: 198), five elements are essential to the definition of
punishment
:
1. There are at least two persons—one who inflicts the punishment and one who is punished.
2. The person who inflicts the punishment causes a certain harm to the person who is being punished.
3. The person who inflicts the punishment has been authorized, under a system of rules or laws, to harm the person who is punished in this particular way.
4. The person who is being punished has been judged by a representative of that authority to have done what he or she is forbidden to do or failed to do what he or she is required to do by some relevant rule or law.
5. The harm that is inflicted upon the person who is being punished is specifically for the act or omission mentioned in condition four.
We also need to define
treatment
. According to correctional terminology, treatment may be anything used to induce behavioral change. The goal is to eliminate dysfunctional or deviant behavior and to encourage productive and normal behavior patterns. In prison, treatment includes diagnosis, classification, therapy, education, religious activity, vocational training, and self-help groups.
This chapter and the next two follow the format we have established in the previous sections on law enforcement and legal professionals. In this chapter, we will first explore relevant issues, such as the various rationales for punishment, with special attention to capital punishment, present the formal codes of ethics for correctional professionals and describe occupational subcultures that sometimes conflict with the formal code of ethics.
In
Chapter 12
, we will discuss some ethical dilemmas for correctional professionals that arise because of the discretion inherent in these roles. In
Chapter 13
, we will review past and current instances of misconduct by correctional professionals, explanations proposed for such behavior, and suggestions for improving the ethical climate in corrections.
11-1Rationales for Punishment and Corrections
The rationale for punishment and corrections comes from the social contract. In the same way that the social contract forms the basis for police power, it also provides a rationale for further control in the form of punishment and corrections. Recall that according to the social contract theory, we avoid social chaos by giving the state the power to control us. In this way, we protect ourselves from being victimized by others by giving up our liberty to aggress against others. If we do step outside the bounds of this agreement, the state has the right to control and punish us for our transgressions. Concurrently, the state is limited in the amount of control it can exert over individuals. To be consistent with the social contract, the state should exert its power only to accomplish the purpose of protection; any further interventions in civil liberties are unwarranted.
Corrections pursues a mixture of goals, including retribution, reform, incapacitation, deterrence, and rehabilitation. The longstanding argument between proponents of punishment and proponents of treatment reveals a system without a clear mandate or rationale for action. Can treatment and punishment occur at the same time? Some argue that because punishment has the goal of inflicting pain on an individual, it is fundamentally incompatible with the goal of treatment (Garland, 1990). Others argue that there is no reason that positive change cannot occur in a correctional setting.
One of the most problematic issues in justifying punishment is that what we do to offenders change over time (and place). If what we consider appropriate punishment changes, how can any specific punishment be just under universalism or natural law theory? In other words, in earlier centuries we might have executed a pickpocket. Was that just, or is it just today to put that person on probation? Is it just to incarcerate 19-year-olds who have sex with 16-year-olds today when in times past (or, perhaps, in future times) they would not be imprisoned at all? Prisoners in different prisons have vastly different sentences. How can the worst prison be fair if it is chance whether a prisoner ends up there or in a prison with better living conditions? Finally, at various times, courts have invalidated laws or punishments, but not made their ruling retroactive; in that case, people who are already in prison stay there. Consider the states that have legalized marijuana—if individuals are in prison for possession because they were sentenced before the decriminalization occurred, can that be just? How can that be logical or fair if the punishment no longer exists? The
In the News
box describes one attempt to make punishment more equitable for some people after changes in sentencing laws reduced the amount of punishment for drug offenders.
In the News
Fair Punishment?
In 2010, the Fair Sentencing Act was passed to reduce the disparity between federal sentencing rules for crack and powder cocaine, reducing the disparity from 100:1 to 18:1. The bill did not apply retroactively, thus, thousands in federal prisons were incarcerated only because they were sentenced before 2010 and would have received much shorter sentences if sentenced under the new law. To address this inequity, a clemency initiative was created whereby federal prisoners sentenced under the old laws could apply for clemency (length of sentence is reduced, criminal conviction remains). Stringent requirements were put in place, including the following:
· Their original sentence was longer than current mandatory sentences for the same offense.
· They are nonviolent, low-level offenders without “significant ties to large-scale criminal organizations, gangs, or cartels.”
· They have served at least 10 years of their sentence.
· They do not have a “significant criminal history.”
· They have demonstrated good conduct in prison.
· They have no history of violence before or during their current imprisonment.
A working group called Clemency Project 2014 was formed to provide inmates with pro-bono (free) attorneys to help them with their clemency application. Over 30,000 inmates applied. President Obama began approving clemency to offenders in December 2014 and by the end of his term had issued clemency/commutation orders for 1,927 people. It is estimated that 98 percent of them were the drug offenders under the program. The clemency program closed because President Trump indicated he would not be granting any clemency or commutations to inmates who met the criteria.
Sources: Reilly, 2016; Smart, 2017.
An important question to ask is: “Whom are we punishing?” Studies show that only a small minority of individuals who commit crimes end up in prison; furthermore, we may assume that those individuals are not representative of the larger population. Those in our jails and prisons are there not only because they committed crimes, but also because they are poor, members of a minority group, or powerless. Certain types of criminals, for example, white-collar offenders and corporate criminals, tend to avoid the more punitive sanctions of the corrections system. Despite attempts to reduce disparity, sometimes there doesn’t seem to be any logic or consistency in the amount of punishment for offenders.
Long ago, criminals were viewed as sinners with no ability to change their behavior, so punishment and incapacitation were the only logical ways to respond to crime. Jeremy Bentham (1748–1832) and Cesare Beccaria (1738–1794) viewed the criminal as rational and as having free will and, therefore, saw the threat of punishment as a deterrent. Neoclassicists such as Adolphe Quetelet (1796–1874) and André-Michel Guerry (1802–1866) recognized that insane persons and juveniles could not be held entirely responsible for their actions and, therefore, believed that they should not be punished. In the 1800s, the positivist school looked for differences between criminals and noncriminals. The search for differences eventually, in the 1960s and 1970s, led to the short-lived rehabilitative era and the
treatment ethic
—the idea that all criminal acts were symptoms of an underlying pathology. The treatment programs created in the last hundred years or so operate under the assumption that we can do something to offenders to reduce their criminal activity. That “something” may involve
· treating a psychological problem, such as a sociopathic or paranoid personality;
· addressing physiological problems, such as alcoholism or addiction; and
· responding to social problems, such as chronic unemployment, with vocational training and job placement.
Obviously, the perception of the criminal influences the rationale for correction and punishment. The two major justifications for punishment and treatment are
retribution
and
prevention
. The retributive rationale postulates that punishment is a sufficient goal, whereas the prevention approach views punishment as a means of prevention rather than an end.
The retributive rationale for punishment is consistent with the social contract theory. Simply stated, the retributive rationale is that the individual offender must be punished because he or she deserves it (Mackie, 1982). Retribution may support punishment, but also limits it: only those who commit crimes should be punished, and only to the extent equal to the wrong.
What is an appropriate amount of punishment? This is a difficult question even for the retributivist. The difference between a year in prison and two years in prison is measurable only by the number of days on the calendar, not by how it is experienced by different people. Should this be considered during sentencing? Punishment of any kind affects individuals differently. For instance, a whipping may be worse than death for someone with a low tolerance for pain, better than prison for someone with a great need for freedom, and perhaps even pleasurable for someone who enjoys physical pain. Prison may be experienced as an inconvenience for some, and such a traumatic experience for others that it may induce suicide. Our current system of justice seldom recognizes these individual vulnerabilities or sensitivities to various punishments.
The rehabilitative era of the 1960s and early 1970s promoted sentencing based on a prevention rationale that supported the idea that individuals should be incarcerated until they were rehabilitated. That gave way to a retribution-based “just deserts” or justice model in the late 1970s and 1980s. Basically, the
justice model
reverted back to a retributive idea that individuals are rational and that, even though free will may not exist perfectly, the concept must serve as a basis for the criminal law. Punishment is to be used for retribution, not deterrence, treatment, or any other purpose. This led to “truth in sentencing” laws that restricted early releases, parole, and indeterminate sentences based on whether the inmate had changed (Fogel, 1975).
The
just deserts model
, appearing about the same time as the justice model, was also retributive and based punishment on “commensurate deserts” (von Hirsch, 1976, 1985; von Hirsch and Maher, 1992). According to von Hirsch, the leading proponent of the just deserts model, crimes should be weighed in seriousness based on their recidivism potential. Offenders who commit similar crimes should be punished equally, but the rank ordering of crimes should be determined by recidivistic potential.
Garland (1990) offered a different view, proposing that the emphasis of society should be on socializing and educating citizens. The punishment that was still necessary for those who broke the law should be viewed as morally expressive and retributive. Feeney (2005) continues this idea that sentencing should be purely retributive, and be “morally significant” in that it expresses condemnation of the behavior. Both writers were like the earlier just deserts theorists in that they believed punishment should be retributive rather than serve the goals of deterrence.
The 1990s and up through today has been described as the era of
penal harm
; this refers to the idea that the system intentionally or uncaringly inflicts pain on offenders during their imprisonment. There is very little attempt to rehabilitate and no attempt to minimize punishment or its harmful effects (Clear, 1996; Cullen, 1995). As noted earlier, the United States stands apart from most countries in the number of citizens incarcerated. If asked to describe the reasons for punishment, most people would probably propose either the retributive, just deserts rationale (because they deserve it), or a deterrence argument (so they don’t do it again).
Three common justifications or rationales for punishment can all be subsumed under a general heading of “prevention.” Prevention assumes that something should be done to the offender to prevent future criminal activity. There are three possible methods of prevention: deterrence, incapacitation, and treatment. Each of these is based on certain assumptions that must be considered in addition to the relevant moral questions. For instance, it is a factual question as to whether people can be deterred from crime, but it is a moral question as to what we should do to an individual to ensure deterrence.
There are two types of
deterrence
. Specific deterrence is what is done to offenders to prevent them from deciding to commit another offense. General deterrence is what is done to an offender to prevent others from deciding to engage in wrongful behavior. The first teaches through punishment; the second teaches by example.
Our right to deter an individual offender is rooted in the same rationale used to support retribution. By membership in society, individuals submit themselves to society’s controls. If we think that someone’s actions are damaging, we will try various means to persuade him or her to cease that activity. The implicit assumption of a deterrence philosophy is that in the absence of controls, society would revert to a jungle-like, dangerous “war of all against all”; we need the police and official punishments to keep us in line. Under this rationale, the true nature of humankind is perceived to be predatory and held in check only by external controls. The Quote and Query box enumerates the key points of view in this justification for punishment.
Quote & Query
1. Those who violate others’ rights deserve punishment.
2. However, there is a countervailing moral obligation not to deliberately add to the amount of human suffering, and punishment creates suffering.
3. Deterrence results in preventing more misery than it creates, thereby justifying punishment.
Source: Adapted from von Hirsch, 1976: 54.
· Is this utilitarian thinking or ethical formalism? Explain your answer.
The rationale behind specific deterrence depends on the effectiveness of punishment in deterring future bad acts by the individual being punished. The rationale supporting general deterrence is somewhat problematic. If we know that a term of imprisonment will not deter an offender but can deter others, can it still be justified? Under general deterrence, the offender is used as a tool to teach a lesson to the rest of us. The sociologist Emile Durkheim (1857–1917) believed that the value of criminals is in establishing the parameters of acceptable behavior. Their punishment helps the rest of us define what is “good.”
If one’s goal is purely general deterrence, there does not necessarily have to be an original crime. Consider a futuristic society wherein the evening news routinely shows or describes the punishments received by a variety of criminals. The crime—or the punishment, for that matter—does not have to be real to be effective. If punishing innocent people for crimes they might do were just as effective as punishing criminal offenders, this action might satisfy the ends of deterrence, but would obviously not be acceptable under any system of ethics—except perhaps act utilitarianism.
Incapacitation
Another rationale is to prevent further crime through
incapacitation
. Strictly speaking, incapacitation does not fit the classical definition of punishment, for the purpose is not to inflict pain but only to hold an offender until there is no risk of further crime. The major issue concerning incapacitation is prediction. Two possible mistakes are releasing an offender who then commits further crimes and not releasing an offender who would not commit further crimes.
Carrying the goal of incapacitation to its logical conclusion, one would not have to commit a crime at all to be declared potentially dangerous and subject to incapacitation. We now incarcerate career criminals for life—not for their last offense, but for what they might do if released. These “habitual-felon laws” were justified by the prediction that these criminals will continue to commit crimes, yet studies indicated that prediction instruments were little better than chance in correctly predicting who would recidivate (Auerhahn, 1999). Prediction today has become incredibly more sophisticated with algorithms that predict risk—for decisions regarding bail, pre-release, probation, supervision level, and release from prison. There are grave legal and ethical issues in using any predictive devices to sentence an offender, or even to increase supervision level or make decisions about parole if the prediction instruments use factors such as unemployment and zip code to predict. The tools may be racially discriminatory—not in their intent, but in their implementation since some factors will be correlated with race. This issue becomes even more problematic because the algorithms in risk instruments are often purchased from private vendors, considered proprietary, and, therefore, not subject to scrutiny from outsiders (Ritter, 2013; Starr, 2014; Tashea, 2017).
There are also ethical issues in how we incapacitate sex offenders. Sex offender registries are now mandatory for many offenders and they are available to the public. While states vary in the extent of the restrictions on sex offenders, typically there are housing restrictions, GPS monitoring (and requirements to pay for it), onerous filing requirements (in some states, sex offenders must be on the registry for the rest of their life no matter how young they are or how serious the crime), and work restrictions. Critics are now beginning to question whether the incapacitation tools have gone too far. One problematic issue in some states is that sex offenders (of all types from statutory rape to pornography) are combined with all offenders against children in one registry. This is misleading even though typically the crime descriptions are accessible through the registry as well. The most typical criticisms of sex offender registries are that
· juveniles should be given special consideration since they may be more amenable to change,
· some offenders (such as those convicted of statutory rape when there is a small gap in age between the partners and the sex was consensual) shouldn’t be on the registry at all, and
· the registries have been known to trigger vigilantism and some sex offenders have been killed by citizens.
Critics also note that the recidivism of sex offenders is no different from other offenders and, in some studies, is a bit lower. Because a sex offender is often a family member of the victim, the harsh sanctions directed to these offenders may lead the victim and family to hide the abuse. They do not want the offender punished so severely and/or they do not want the public shame of having a registered sex offender for the public to see (Pollock, 2013a; Vitiello, 2008).
Another incapacitative tool that is being used against sex offenders is civil commitment. The Supreme Court has declared that there are no due process or Eighth Amendment violations in civilly committing a sex offender after his punishment term has expired if there is some due process before the decision is made (Kansas v. Hendricks, 521 U.S. 346, 1997; U.S. v. Comstock, 560 U.S. 126, 2010). This means that a sex offender may serve his sentence, and then be civilly committed for an undetermined period, if certain statutory requirements are met.
Three-strikes laws
are defended under an incapacitative rationale because it is argued that repeat offenders are more likely to commit future crimes, so they should be held for long periods of time. More than half of all states now have some type of three-strikes or habitual-felon laws.
California’s three-strikes law has received the most attention nationally. A lesser known two-strikes provision was also part of the law that provided for a 25-year sentence to those with two felony convictions. California’s law was different from most states in that it included almost all felonies while other states limited the three-strikes provision to violent felonies. Critics argued that for both practical and ethical reasons, the California three-strikes sentence was bad policy. It incarcerated past the crime-prone age years, and it incarcerated nonviolent offenders for 25 years or life. There were also wildly disparate rates of three-strike sentences across the state. Some prosecutors frequently utilized three strikes for nonviolent offenders; others never did (King and Mauer, 2001; Leonard, 2009; Zimring, Hawkins, and Kamin, 2001). Another troubling aspect of three-strikes laws was that African Americans tended to be disproportionately affected (Cole, 1999).
The U.S. Supreme Court ruled in 2003 that California’s three-strikes law was not grossly disproportionate and deferred to the state’s authority in setting punishments (Ewing v. California, 538 U.S. 11, 2003; Lockyer v. Andrade, 538 U.S. 63, 2003). Various attempts to reduce the law’s harshness were unsuccessful until 2012 when Proposition 36, a voter-initiated ballot, changed California’s three-strikes law. Now, only certain violent felonies are eligible for the application of three strikes. A provision also allowed those in prison with life sentences to petition to have their sentence revised.
If we can find justification for the right to punish, can we also find justification for treatment? Treatment is a very different approach from the moral rejection implicit in retributive punishment. Treatment implies acceptance rather than rejection, support rather than hatred. However, the control over the individual is just as great as with punishment; some people would say it is even greater.
What is treatment? We sometimes consider anything experienced after the point of sentencing to be treatment, including education, prison discipline, and religious services. A court was obliged to define treatment in Knecht v. Gillman, 488 F.2d 1136, 1973, when inmates challenged the state’s right to use apomorphine, a drug that induces extreme nausea and a feeling of imminent death, as a form of aversive conditioning. In its holding, the court stated that calling something “treatment” did not remove it from Eighth Amendment scrutiny. In other words, merely labeling some infliction of pain as treatment would not necessarily render it immune from legal challenge as cruel and unusual punishment. Generally, courts have further defined treatment as that which constitutes accepted and standard practice and which could reasonably result in a “cure.”
The Supreme Court has never recognized a legal right for prisoners to receive rehabilitative treatment (although there is a Constitutional right to medical and dental treatment) unless the sentencing law expresses a purpose of treatment, such as extended punishment for sex offenders. In so-called totality-of-circumstances cases where a court decides that prison conditions constitute cruel and unusual punishment, lack of rehabilitative programming is listed as one of several issues, including violence levels and sanitation, but the absence of programming has never been sufficient, by itself, for a ruling. The ethical issue is that despite no legal duty to do so, does a state owe an inmate some type of programming to improve themselves while they are incarcerated?
The Supreme Court has also not accepted the principle that prisoners should be free from treatment if the state chooses to impose it. The Court held, in Washington v. Harper, 494 U.S. 210, 1990, that an inmate’s right to refuse antipsychotic medication did not outweigh the state’s need to administer it if there was a showing that the inmate posed a security risk. Recall from Knecht v. Gillman that inmates do have a right to refuse aversive conditioning treatment if the pain and discomfort imposed was considered akin to punishment, therefore falling under the scrutiny of the Eighth Amendment.
There is no Supreme Court case that tells us whether the involuntary use of medroxyprogesterone acetate (MPA), which is sold under the brand name of Depo-Provera, or other drugs or hormones to induce “chemical castration” in sex offenders would be a violation of the 8th or 14th Amendments. Some states mandate its use when an offender has committed multiple crimes; some when the victim is under a certain age. In some states, the treatment is voluntary (Tullio, 2009). Is there an ethical issue in forcing inmates to take drugs, including those that induce chemical castration?
According to some experts, treatment can be effective only if it is voluntary; others disagree. It is true that much of the treatment that inmates and other correctional clients participate in is either implicitly or directly coerced. Providing treatment for those who want it is one thing; requiring those who are resistant to participate in psychotherapy, group therapy, or religious activities is quite another. Although a retributivist rationale would not support treatment, it is obviously consistent with a prevention rationale, if the results show success in reducing recidivism.
The evaluation literature on rehabilitative treatment programs could fill a room. We now have more than 50 years of evaluations, as well as dozens of meta-analyses and exhaustive reviews of the literature on rehabilitation. It is simply not true that “nothing works,” as was widely believed through the 1980s and 1990s (for review, see Pollock, 2016). However, what works is more complicated than one program for all offenders. One interesting finding that comes from evaluation research is that, evidently, sometimes a program works because of the staff characteristics, not the modality of the program. Thus, we can see again that the individual ethics and performance of public servants (treatment professionals in corrections) have a great deal to do with how well the system (in this case, treatment) works.
11-2Ethical Frameworks for Corrections
The retributive and prevention (including deterrence, incapacitation, and treatment) rationales for punishment are well established and can be found in corrections textbooks. The ethical systems that were introduced in
Chapter 2
are discussed less commonly in corrections texts, but they form the underlying philosophical rationales.
The principle of utilitarianism is often used to support the prevention rationale of punishment: deterrence, incapacitation, and treatment. According to utilitarianism, punishing or treating the criminal offender benefits society and this benefit outweighs the negative effect on the individual offender. It is a teleological argument because the morality of the punishment is determined by the consequences derived—reduced crime. Jeremy Bentham was the major proponent of the utilitarian theory of punishment and established basic guidelines for its use.
Bentham believed that punishment works when it is applied rationally to rational people, but is not acceptable when the person did not make a rational decision to commit the crime, such as when the law forbidding the action was passed after the act occurred, the law was unknown, the person was acting under compulsion, or the person was an infant, insane, or intoxicated (Bentham, 1843; also see Beccaria, 1764/1977). The utility of the punishment would be lost in these cases; therefore, punishment could not be justified (Borchert and Stewart, 1986). Bentham’s basic formula for punishment provides that the utility of punishment to society (by deterring crime) outweighs the negative of the punishment itself (it is negative because it is painful). Utilitarian theory also supports treatment and incapacitation if these can be shown to benefit society. If, for instance, treatment and punishment were to have equal amounts of utility for society, treatment would be the more ethical choice because it has a less negative effect on the individual. Likewise, if incapacitation and punishment would be equally effective in protecting and providing utility to society, the choice with the least negative effects would be the ethical one.
Some argue that the harms inherent in imprisonment in either jail or prison are so extreme that they must be counterbalanced by rehabilitative programs to result in a greater good (Kleinig, 2001b). It is certainly true that, for minor offenders, the harm caused by incarceration far exceeds the harm they caused to a victim or society. It is also problematic when drug users (as opposed to dealers) are incarcerated because the harm caused to others by their actions may be less than the harms that they may endure in this nation’s jails and prisons, such as beatings by other inmates, economic exploitation, rape, and gratuitous abuse by correctional officers.
11-2bEthical Formalism
While utilitarianism supports prevention goals, ethical formalism clearly supports a retributive view of punishment. It is deontological because it is not concerned with the consequences of the punishment or treatment, only its inherent morality. It would support the idea that a criminal is owed punishment because to do otherwise would not be according him or her equal respect as a human. However, the punishment should not be used for any other end but retribution. Treatment is not supported by ethical formalism because it can be viewed as violative of the second element in the categorical imperative (do not treat others as a means). Involuntary treatment may be seen as using the offender as a means to protect society. The Quote and Query box presents Immanuel Kant’s views.
Quote & Query
Juridical punishment … can be inflicted on a criminal, never just as instrumental to the achievement of some other good for the criminal himself or for the civil society, but only because he has committed a crime; for a man may never be used just as a means to the end of another person… Penal law is a categorical imperative, and woe to him who crawls through the serpentine maze of utilitarian theory in order to find an excuse, in some advantage to someone, for releasing the criminal from punishment or any degree of it, in line with the pharisaical proverb “it is better that one man die than that a whole people perish”; for if justice perishes, there is no more value in man living on the earth…
Source: Immanuel Kant, The Science of Right, 1790.
· Do you understand what Kant was trying to say? Rephrase the passage to make it more simple and current.
Several arguments support this retributive rationale. First, Mackie (1982) discusses the universal aspects of punishment: the urge to react in a hostile manner to harm is an element inherent in human nature; therefore, one might say that punishment is a natural law. Another supporting argument is found in the principle of forfeiture, which postulates that when one intrudes on an innocent person’s rights, one forfeits a proportional amount of one’s own rights. By restraining or hurting a victim in some way, the aggressor forfeits his or her own liberty; in other words, he or she forfeits the right to be free from punishment (Bedau, 1982). The major point to remember about ethical formalism as an ethical rationale for punishment is that it does not need to result in any good end, such as deterrence. The offender should receive punishment because he deserves it, not because it will result in something useful for him or society.
11-2cEthics of Care
The ethics of care would probably not support punishment unless it was essential to help the offender become a better person or help the victim become whole. This ethical system defines good as that which meets everyone’s needs—victims and offenders alike. Several authors have discussed the ethics of care in relation to the justice and corrections system. For instance, Heidensohn (1986) and Daly (1989) discuss differences in the perception of justice from a care perspective versus a retributive perspective—as female and male perceptions, respectively. The female care perspective emphasizes needs, motives, and relationships, while the male retributive perspective emphasizes rights, responsibilities, and punishments.
The corrections system, ideally, is supported by a caring ethic because it considers offender needs. Community corrections, especially, emphasize the relationship of the offender to the community. From this perspective, one should help the offender to become a better person because that is what a caring and committed relationship would entail. Retributive punishment and deterrence are not consistent with the ethics of care. However, some say that retribution and a care ethic are not, nor should they be considered, in opposition to each other. Restorative justice, which is discussed in more detail in
Chapter 13, might be considered the merger of the two in that this approach views the offender as responsible for the wrong committed, but the responsibility is satisfied by reparation to the victim rather than by punishment and pain.
John Rawls presents an alternative to utilitarianism and retributivism. Rawls’s defense of punishment starts with Kant’s proposition that no one should be treated as a means, and with the idea that each should have an “equal right to the most extensive basic liberty compatible with a similar liberty to others.” According to Rawls, a loss of rights should take place only when it is consistent with the best interests of the least advantaged. Rules regarding punishment would be as follows (cited in Hickey and Scharf, 1980: 169):
1. We must punish only to the extent that the loss of liberty would be agreeable were one not to know whether one were to be the criminal, the victim, or a member of the general public (the veil of ignorance).
2. The loss of liberty must be justified as the minimum loss consistent with maintenance of the same liberty among others.
Furthermore, when the advantage shifts—when the offender instead of the victim or society becomes the one with the least advantage—punishment must cease. This theory leaves a lot of unanswered questions. For instance, if victims were chosen carefully (e.g., only those who would not suffer financially or emotionally) and the criminal was from an impoverished background, the criminal would still be at a disadvantage and, thus, not morally accountable for his or her actions. This rationale for punishment promotes the idea that the criminal act creates an imbalance between offender and victim, and that punishment should be concerned with regaining that balance. The utilitarian thread in this proposition is that by having this check-and-balance system in determining punishment, all of society benefits.
11-3Punishments
We have discarded many punishments that were acceptable in earlier times, such as flogging, hanging, banishment, branding, cutting off limbs, drawing and quartering, and pillories and stocks. Although we still believe that society has the right to punish, what we do in the name of punishment has changed substantially. As a society, we became gradually uncomfortable with inflicting physically painful punishments on offenders, and as these punishments were discarded, imprisonment was used as the substitute. However, we still employ capital punishment, at least in some states.
Inside prison, we have only relatively recently abandoned physical punishments as a method of control (at least formally), but that is not to say that prisons are not injurious. In addition to the illegal corporal punishments that are inflicted by officers and fellow inmates, prison is painful because it consists of banishment and condemnation; it means separation from loved ones and involves the total loss of freedom. More subtly, it is an assault on one’s self-esteem and prevents the individual from almost all forms of self-definition, such as father, mother, professional, and so on. About the only self-definition left is as a prison “tough guy” (or woman)—a stance that destroys the spirit and reduces the individual to a baser form of humanity. Super max prisons, which will be discussed separately, are, arguably, even more painful and injurious.
The Eighth Amendment protects everyone from
cruel and unusual punishment
. Although what is “cruel and unusual” is vague, several tests have been used to define the terms, such as the following, discussed in Furman v. Georgia 408 U.S. 238, 1972:
· Unusual (by frequency). Punishments that are rarely, if ever, used thus become unusual if used against one individual or a group. They become arbitrary punishments because the decision to use them is so infrequent.
· Evolving standards of decency. Civilization is evolving, and punishments considered acceptable in the past century are no longer acceptable in this century.
· Shock the conscience. A yardstick for all punishment is to test it against the public conscience. If people are naturally repelled by the punishment, it must be cruel and unusual by definition.
· Excessive or disproportionate. Any punishment that is excessive to its purpose or disproportionately administered is considered wrong.
· Unnecessary. There must be a purpose of punishment; generally, it is to deter crime. Thus, we should administer only the amount necessary to do so.
These tests have eliminated the use of the whip and the branding iron, yet some say that corporal punishment, at least the less drastic kinds such as whipping, is less harmful than a long prison sentence. After all, a whipping takes perhaps days or weeks to get over, but a prison sentence may last years and affect all future earnings.
Although probation is considered a “slap on the wrist” as a punishment, some conditions (rules) attached to a probation have been criticized as cruel. So-called shaming conditions include DWI offenders having special license plates that indicate to other drivers that the driver has been convicted of DWI; probation officers putting up signs in the yard or nailing them to the door of convicted sex offenders’ homes, warning people that a sex offender lives there; announcing to a church congregation one’s criminal conviction and asking for forgiveness; and taking out an advertisement in the town newspaper for the same purpose. These types of shaming punishments hark back to the days of the stocks and pillory, when punishment was arguably effective more because of the community scorn received than the physical pain involved. Whitman (1998) argued that the use of such penalties is contrary to a sense of dignity and creates an “ugly complicity” between the state and the community by setting the scene for “lynch justice.”
Braithwaite (2000), and others, distinguish between
stigmatizing shaming
and reintegrative shaming. The first is a rejection of the individual and has negative effects; the second is only a rejection of the person’s behavior and creates a healthier relationship between the individual and his or her community.
Ethical Dilemma
You are a judge about to sentence an offender for his third DWI. He will receive a mandatory time in jail, but then he will be on probation, supervised by your court. The other district judges in your jurisdiction have begun to utilize unusual probation conditions, such as requiring the offender to go to church, put a sign on their house indicating their crime, and so on. You are urged by the prosecutor to require this DWI offender to have a special sign made for his car that indicates he is a DWI offender; this would be in addition to the ignition-lock device that will be attached to his car that prevents ignition if the driver has over the legal limit of alcohol in his or her blood.
Law
There is a question as to whether such punishments violate the Eighth Amendment. Most would argue they are not cruel and unusual, certainly not compared to a prison sentence. On the other hand, some state laws typically demand that probation conditions have a “rehabilitative function.” In that case, there would have to be proof shown that these shaming punishments assisted rehabilitative goals. The other legal challenge would be a Fourteenth Amendment challenge by the offender’s family who are also impacted by the punishments with no due process. For instance, a family member might drive the car with the DWI sign and be wrongly stigmatized by it. In general, judges have imposed these punishments without much serious challenge, partly because they come with probation rather than a prison sentence.
Policy
As stated in an earlier chapter, judges are not subject to any office policy. They are fiercely independent and tend to sentence and run their court in very individualistic ways. However, they are influenced by public opinion and so if there is a strong pressure to utilize some form of sentencing; if they want to be reelected, their decisions are obviously affected.
Ethics
We could also examine these conditions considering the ethical systems discussed earlier. One issue, as noted, is the effect that shaming conditions have on family members of offenders and whether these conditions constitute a type of extra-legal punishment for them without any due-process procedures of trial and conviction. Punishments such as house signs and other public disclosures subject family members to stigma along with the offender, and, because they haven’t broken any law, it would be a violation of ethical formalism (because they are being used as a means). Generally, utilitarianism would support such punishments only if it could be shown to result in a greater good. There is little research that shows they deter, but, then again, there is no evidence to indicate that they result in worse recidivism numbers than more traditional forms of punishment such as prison. The ethics of care would be concerned for all involved, so, once again, how these punishments affect family members would be an issue. In conclusion, the ethics of inflicting a punishment such as a sign on a car that the person has been convicted of DWI probably is less ethically questionable when no one else would be using the car, when the person is a multiple offender, and other methods of deterrence have been attempted first.
Sex offender registries are also a type of stigmatizing and shaming punishment, and, in some cases, lead to fatal results. Many offenders have been harassed and threatened, the house of one was set on fire, and garbage was thrown all over the lawn of another. A sex offender in New Hampshire was stabbed, and, in 2006, a man in Maine evidently targeted sex offenders and killed two before killing himself (Fahrenthold, 2006). A similar case occurred in Port Angeles, Washington, where two offenders on the registry were killed (Associated Press, 2012a).
Supermax prisons, with 24-hour isolation and few or no programs of self-improvement, have also been considered cruel and unusual (Pollock, 2013a). There are allegations that supermax prisons were designed for the worst of the worst prisoners who were so violent that the inhumane conditions were necessary for safety, but that states are now using them for troublemakers who are not especially dangerous (See, e.g., Wilkinson v. Austin et al., 545 U.S. 209, 2005). Others contend that mentally ill offenders who cannot control their behavior are sent to supermax prisons, and become even more ill because of the isolation and lack of medical services (Haney, 2008).
Haney (2008) describes the supermax as having an “ideological toxicity,” an “ecology of cruelty,” and a “dynamic of desperation.” He explains that the ideology of the supermax is toxic in that it is purely punishment with no redeeming elements of rehabilitation or hope. It is the “penal harm” ideology magnified. “Ecology of cruelty” refers to the architecture and policies of supermaxes that are structured to employ more and more punishment to the inmates inside. Because there are no available rewards to encourage positive behavior, the cycle of punishment spirals to horrible levels that become normal to those working within the institution. Haney describes the “dynamics of desperation” as the inevitable tension that exists between the correctional officers and guarded and the tendency for relationships between them to escalate into cruelty. Inmates react in seemingly irrational violence and/or unruliness because of the powerlessness of their environment, and officers react with greater and greater force, going through a cycle where each side’s hatred of the other is reinforced. In this sense, Haney argues, the prison affects not only the inmates but also the correctional officers, who become desensitized to its violence and become cruel enforcers because the environment reinforces the notion that the inmates do not deserve to be treated as human. Officers are faced with moral crises when their behavior is normalized to a level of cruelty that would seem abnormal to anyone not inured to the environment of a supermax.
There are also those who believe that the supermax violates the 1994 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Generally, courts have not found the conditions of the supermax prison to constitute cruel and unusual punishment, except for the mentally ill. The
In the News box describes a federal lawsuit regarding this issue.
In the News
ADX—”A Clean Version of Hell”
ADX Florence is a “supermax” federal prison housing Ted Kaczynski (Unabomber), Terry Nichols (the Oklahoma City bomber), Eric Rudolph (the Atlanta Olympics bomber), and Zacarias Moussaoui (an Al Qaeda member that would have been part of the 9/11 attack if he hadn’t been arrested). It houses organized crime figures, domestic terrorists, and serial killers, but it also houses those who rack up infractions at other prisons. Inmates spent 23 hours a day alone in their cells. In a lawsuit against the Bureau of Prisons (BOP), several years ago, the legal team met inmates who swallowed razor blades, were shackled to their beds for days and weeks at a time, ate their own fingers or feces, and, in other ways, clearly demonstrated mental problems so severe that they should have been in a psychiatric facility. Instead, they were at a supermax where, when one inmate came back from the hospital after slashing his neck in a suicide attempt, was told to mop up his blood. Their stories seemed to indicate that the prison itself may have caused at least some of their mental issues. The BOP surprisingly agreed to settle the lawsuit submitting to a list of 27 demands that required, among other things, diagnoses and a treatment plan for the mentally ill inmates. There was no financial settlement as part of the deal. The men are still in prison, but have been transferred to other prisons and are now on medication.
Source: Binelli, 2015.
What sets capital punishment apart from all other punishments is its quality of irrevocability. This type of punishment leaves no way to correct a mistake. For this reason, some believe that no mortal should have the power to inflict capital punishment because there is no way to guarantee that mistakes won’t be made. The growing number of innocent men and women who came perilously close to being executed, as described in
Chapter 10
, indicates that we have an imperfect system.
Public support for capital punishment has swung up and down. Public opinion polls reveal that public support for the death penalty declined gradually through the 1960s, reaching a low of 44 percent in 1966, but then increased in the next 30 years. In the late 1990s, 75–80 percent supported the death penalty. By 2008, only 63 percent of Americans supported capital punishment (Harris Poll, 2008). In 2016, 60 percent of Americans favored capital punishment for murderers according to the Gallup poll. The Pew Research Center presented even lower numbers, with only 56 percent of the public favoring capital punishment (Pew Research Center, 2015). The number of executions has declined substantially from a high of 98 executions in the year 1999 to 20 in 2016 (Death Penalty Information Center, 2017).
Retentionists (who believe that we should continue to utilize capital punishment) and abolitionists (who believe that we should not execute anyone) both use utilitarianism, ethical formalism, and religion as moral justifications. Retentionists argue that capital punishment is just because it deters others from committing murder and it deters the individual who is executed. This is a utilitarian argument. They also argue that capital punishment is just because murder deserves a proportional punishment. This argument is more consistent with ethical formalism. Finally, they argue that the Bible dictates an “eye for an eye.” This is, of course, a (Judeo-Christian) religious justification for capital punishment.
Abolitionists argue that capital punishment has never been shown to be effective in deterring others from committing murder; therefore, the evil of capital punishment far outweighs any potential benefits for society because there is no proof that it deters. This is a utilitarian argument. Abolitionists might also utilize the categorical imperative under ethical formalism to argue that deterrence is using the individual as a means to an end. Finally, abolitionists would point to the religious command to “turn the other cheek,” an argument against any Christian justification for capital punishment.
The reason why utilitarianism can be used to justify or oppose capital punishment is that the research on deterrence is mixed. Those who have summarized the evidence marshaled on both sides of the deterrence question found little support for the proposition that executions are useful deterrents, although there are contrary findings by other researchers. The National Academy of Sciences reported that the science of death penalty deterrence research was not reliable, accurate, or valid enough to make policy decisions upon (Kronenwerter, 1993; Land, Teske, and Zheng, 2009; Walker, 1985: 79). However, despite the lack of research for general deterrence, many are still convinced that it does deter, at least the individual offender (although technically executing the offender does not result in deterrence but incapacitation). Ethical formalism supports capital punishment; however, the imperfect nature of the system is problematic. Recall that under the categorical imperative, you should act in a way that you can will it to be a universal law. In this case, knowing that innocent people may be sentenced to death, could you agree that murderers should be executed if you did not know whether you were the victim, the murderer, the judge, or an innocent person mistakenly convicted?
Religion, also, can be and has been used to support and condemn capital punishment. As with other issues, Christians have pointed to various verses in the Bible to justify their position. Kania (1999), for instance, presents a comprehensive religious justification for capital punishment, along with a social contract justification.
Should all murderers be subject to capital punishment, or are some murders less heinous than others? Should we allow defenses of age, mental state, or reason? If we do apply capital punishment differentially, doesn’t this open the door to bias and misuse? Evidence indicates that capital punishment has been used arbitrarily and discriminatorily in this country. One study, cited by the Supreme Court, indicated that minorities are more likely to be executed when their victims are white; in Georgia, black offenders charged with killing a white person were 4.3 times more likely to be sentenced to death than those charged with killing a black person. Yet the Supreme Court stated that this evidence of statistically disproportional administration was not enough to invalidate the death penalty because it did not prove that there was discrimination in the immediate case (McClesky v. Kemp, 481 U.S. 279, 1987).
Because our justice system is based on rationality, executions of persons with mental illness and mental retardation have been vehemently criticized. The Supreme Court has ruled that executing the mentally ill is cruel and unusual (Ford v. Wainwright, 411 U.S. 399, 1986; Miller and Radelet, 1993), as is executing the mentally challenged (Atkins v. Virginia, 536 U.S. 304, 2002). Further cases have evaluated how serious mental retardation must be to serve as a bar to capital punishment and the means to test levels of intelligence to determine whether execution is Constitutionally permissible (Hall v. Florida, 572 U.S. __, 2014; Moore v. Texas, 581 U. S. __, 2017).
Quote & Query
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored … to develop … rules that would lend more than the mere appearance of fairness to the death penalty endeavor… Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved … I feel … obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies … Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.” … I may not live to see that day, but I have faith that eventually it will arrive….
Source: Justice Harry Blackmun in a dissenting opinion in Callins v. Collins 510 U.S. 1141, 1994.
· Do you agree with Justice Blackmun? Why or why not?
It has also been ruled that it is a violation of the Eighth Amendment to execute for any other crime than murder (Kennedy v. Louisiana, 554 U.S. 407, 2008). Other legal challenges to capital punishment have targeted whether jurors must be unanimous, the selection of jurors, whether judges can overrule juries, and the means and methods of execution (e.g., Baze v. Rees, 553 U.S. 35, 2008). These are all legal questions, but moral ones too. The morality of capital punishment is still very much a topic of debate, and it elicits strong feelings on the part of many people. The quote illustrates a decision by a Supreme Court Justice to withdraw support for the use of capital punishment.
The Supreme Court has also ruled that it is cruel and unusual to execute individuals who were under 18 at the time of their crime. The Court considered research that shows juveniles have less control over their impulses than adults and are more amenable to change, therefore, they are not the most heinous of murderers (Dejarnette, 2015; Roper v. Simmons, 543 U.S. 551, 2005). This research has also led to some states considering revising their juvenile justice system described in the
In the News box.
In the News
Punishing Juveniles
A new law in New York will raise the age of criminal responsibility from 16 to 18 by 2019. In some states, 17 year olds are automatically prosecuted as adults. At this point, at least seven states have raised the age of criminal responsibility to 18, and several more are considering new legislation to raise the age for prosecution in adult criminal court. A few states (Connecticut and Vermont) have considered raising the age of criminal responsibility to 21. These changes are because of growing evidence that juveniles think differently than adults, or more accurately, don’t think before they act at all. There is other research to show that youth who are prosecuted and punished in juvenile court are less likely to recidivate than those who go through the adult system. Statistics from states that brought more juvenile offenders into the juvenile justice system years ago seem to support the notion that spending a bit more on juvenile offenders in the juvenile system reduces recidivism and costs years later.
Source: Wiltz, 2017.
11-3bShould Punishment Be Profitable?
In
Chapter 8
, the “criminalization of poverty” was described as the increasing practice of generating general revenue funds by onerous fees and late charges attached to minor offenses. Low-risk individuals who can’t pay bail stay in jail, while those who can pay are released. Individuals who receive traffic tickets or are found guilty of fine-only offenses end up owing thousands of dollars, because of late charges they can’t pay and, sometimes, end up in jail even though it is unconstitutional to jail people solely based on their inability to pay debts.
Pretrial diversion programs were quite popular in the late 1970s but fell out of favor with the ramping up of the drug war and imprisonment binge in the 1980s. Today, the programs seem to be coming back and allow individuals the chance to avoid adjudication and a criminal conviction if they complete requirements and stay out of trouble. However, what is different about today’s programs is that they typically cost money and if the accused is not able to pay, they do not get to participate. A pretrial diversion program in New York City, for instance, involves 12 weeks of classes, 24 hours of community service, and a clean record. If the accused completes these requirements, the charges will be dismissed and arrest expunged. This diversion program can cost over $1,000, and programs may cost up to $5,000 in other areas. If a person completes the classes and community services, but still owes any amount of money, their case will be sent back to court for prosecution. In most jurisdictions, defendants are required to enter a guilty plea to be eligible for diversion, so, in effect, there is no prosecution if they fail on diversion, they are automatically convicted of the original offense. This makes the program attractive to prosecutors with weak cases. In many jurisdictions, prosecutors have the discretion to refer defendants to the diversion programs and, also, benefit financially from the program’s fees—either because it is run in-house, or because a private contractor pays fees back to the jurisdiction. Some jurisdictions, like Cook County (Chicago) do not charge a fee to offenders in their diversion program, but others charge a fee even to apply to have program staff determine eligibility. In a review of the programs across the country, there seemed to be no consistency in fees, what crimes were eligible for diversion, requirements, or the length of programs. In a few instances, prosecutors have used the diversion fee account as their own personal bank account, one paying himself more than $300,000 from it. In other instances, the programs appear to have inched over from discretionary diversion into outright bribery where defendants pay inflated amounts for diversion and to have their charges dismissed (Dewan and Lehren, 2016). In other jurisdictions, the diversion program is run by a private company and their profit motive acts as an incentive to keep participants if they can pay. If they can’t, they may be sent to jail regardless of their risk to the community or lack of further criminal activity. For-profit companies are sometimes awarded contracts because they promise bigger kickbacks, called administrative fees, to the county (Romney, 2017).
This practice of squeezing revenue out of the offender population and their families continues even after correctional sentencing. It is important to note that the fees associated with probation supervision, electronic monitoring, mandatory drug treatment, jail and prison medical care, phone calls, and other goods or services to prisoners only began in earnest in the 1980s, simultaneously with the incredible increase in incarceration rates across the country. Cash-strapped states and municipalities began seeking to recoup some of the costs of their expensive correctional policy choices by making offenders pay for their punishment. Making offenders pay was congruent with the harsh, penal harm philosophy, and popular with voters. However, these practices increase the gulf between the haves (who easily pay for treatment alternatives to imprisonment) and the have-nots (who are being incarcerated sometimes solely because they don’t have enough money to pay their fees and court costs).
Many jurisdictions now charge those in jail a daily fee, like the fees gaolers charged in the 1700s and 1800s. Jail inmates are charged $20–$60 a day—whether they are serving time or being held before adjudication. If they can’t pay, the debt follows them after release. Just as in the 1700s, those who have money can buy comfort. Some inmates of Los Angeles County Jail can pay up to $175 a day to be housed in suburban jails. They may get such perks as iPods, flat-screen television, computer, private cells, and work release programs in these pay-to-stay jails. Some even allow inmates to order in food! At least 26 small cities around Los Angeles have these programs where they will take Los Angeles prisoners—for a price. While most offenders have been convicted of DUI, even inmates who committed serious crimes such as child abuse, rape, and possession of child pornography have served their time in jails that are cleaner, safer, more comfortable, and come with many more perks than a normal jail experience. Some of these city jails take offenders from out-of-state (Santo, Kim, and Flagg, 2017). California isn’t alone in allowing celebrities and the very rich to experience a very different jail experience from normal inmates. Journalists describe many examples of the rich and famous receiving special treatment (Clarke, 2010; Santo, Kim and Flagg, 2017).
Probation used to be touted as a cost-saving alternative to prison. When probation supervision fees were introduced in the 1980s, probation became an even bigger attraction for states struggling to meet the costs of a construction boom of prisons; however, probation supervision fees are one of the biggest barriers to success for probationers who often struggle to find a job and pay for housing and food. This issue is exacerbated when a state or county contracts out probation services to a private company who adds a profit margin onto the costs of supervision and is even less likely to accommodate individuals who cannot pay. Some of these programs are being sued by civil rights advocates who argue it is a Constitutional violation to threaten to revoke probation and jail probationers merely because of an inability to pay. In Bearden v. Georgia, 461 U.S. 660, 1963, the Supreme Court said as much (Dewan, 2015).
It is not clear which state began charging inmates for medical care, however, it appears that today, most do. Only eight states do not have medical co-pays for prisoners. States charge inmates from a couple dollars to $8 to see a doctor. Texas charges a flat $100 yearly fee for health services and, if not paid out of inmate account funds, the debt follows the inmate after release. While a $5 co-pay does not seem like much, many inmates have no financial resources in prison and, if they do work, they usually make less than 50 cents an hour. One doctor’s visit could cost a month’s wages (Sawyer, 2017). Proponents explain that it deters prisoners from needlessly taking up medical staff members’ time. Critics argue that this practice is dangerous because inmates who are sick are likely not to get treated because they can’t or won’t pay the fee and end up getting sicker, which will eventually cost the state more for expensive medical treatment, or they are contagious and infect many more inmates than if their medical need had been met immediately. In the closed environment of the prison, any contagious illness has the potential to turn into an epidemic (Sawyer, 2017).
Generating a revenue stream from offenders seems to be going on all over the country by states and local entities in pretrial, probation, jail, and prison settings. The reason it is morally questionable is that the offender population is, by and large, poor, so charging for correctional services or release options increases the differential sentencing between those who can pay and those who can’t. In many cases, poverty, and not the seriousness of the crime, is inextricably linked to how long someone is enmeshed with the criminal justice system. Further, there is something inequitable about punishing someone by depriving them of liberty and, also, charging them for it. What is even more insidious, however, is when a whole profit industry is based on imprisonment.
Despite critics, the industry of private prisons is big business bringing in over $3 billion per year (Cohen, 2015). Inserting a profit motive into the state’s power to imprison is fraught with ethical and legal issues. There have been instances of rigged bidding (where politicians and decision makers are rewarded for sending contracts to certain firms), contract performance problems (when private companies don’t provide the services they promised), and issues with poorly trained or overworked staff (leading to violence and escapes). Some believe that punishment and profit are never compatible and that linking the two has led to a variety of historical abuses (such as the contract labor system in the South) and current scandals.
In the News
Prison Savings?
In 2016, news reports indicated that the Michigan Department of Corrections set up a 30-person unit of monitors to oversee the contracts with food, medical treatment, and other service providers after a scandal over the former prison food contractor. The scandal with the food vendor included food shortages, maggots in the kitchen, smuggling of drugs and other contraband, and workers engaging in sex acts with inmates. The Michigan Department of Corrections spent about $250 million in 2015 on about 185 service contracts, including about 70 substance abuse contracts, more than a dozen sex offender related contracts and about a dozen prisoner reentry contracts with community service agencies. One report indicated that the Department spent about $2.1 million to monitor just the food contract between December 2013 and August 2015. Critics of privatization point out that, typically, evaluations of privatization show cost savings from administrative costs, but don’t include, or underestimate, the cost of monitoring contracts.
Source: Egan, 2016.
In 2015, 8 percent of the total number of state and federal prisoners were held in privately operated facilities that were under the jurisdiction of 29 states and the BOP. The number of prisoners held in private facilities in 2015 (126,300) decreased 4 percent (5,500 prisoners) from year-end 2014 (Carson and Anderson, 2016). CoreCivic (formerly Corrections Corporation of America) and the GEO Group (formerly Wackenhut Corrections Corporation) are the largest players in the private prison industry, holding a little more than half of all private prison beds (more than 60,000 beds in the United States alone). Both companies structure themselves as realty trusts with operational portions of the enterprise separated into different companies to reduce tax liabilities (Stroud, 2013). In addition to the “big two,” more than a dozen smaller companies across the nation are competing for the private prison bids put out by the states.
For decades, there have been news stories of and lawsuits based on sexual abuses, escapes, and violence in private prisons; but, to be fair, such events occur in state-run facilities as well. In some states, corruption scandals have occurred whereby politicians were paid to send contracts to private companies (Etter, 2015). In other states, private prison contracts have been rescinded in the wake of lawsuits proving the prisons were run poorly, treatment was nonexistent, and violence was at unacceptably high levels (Mitchell, 2014). One recent journalistic investigation into a private prison detailed the personnel issues that can arise when private companies pay bare minimum wage for a stressful and difficult job (Bauer, 2016).
Proponents argue that private corrections can save the state money. Private corporations are said to be more efficient; they can build faster with less cost and less red tape, and they have economies of scale (they can obtain savings because of their size). States and local governments are bound by a myriad of bidding and siting restrictions, unlike private corporations. While some studies have concluded that private prisons produce results equal to those of state institutions for less cost, others find that they are not cost-effective (Lundahl, 2007; Pollock, 2013a; Selman and Leighton, 2010). The problem is that many of the evaluations of private prisons are funded by private prison companies or libertarian groups that advocate private enterprise taking over government functions; thus, the objectivity of the evaluators is questionable (Bourge, 2002). At least one academic evaluator who has published articles showing private prisons are more cost-effective has owned $500,000 worth of stock in a private prison company, thus raising concern about his objectivity (Geis, Mobley, and Shichor, 1999). Common sense would dictate that private prison companies would have a difficult time squeezing profit for shareholders without cutting costs. While the CEOs of CCA and GEO make $2–$3 million in salary each year, correctional officers earn, on average, $10,000 less than their state-employed counterparts (Selman and Leighton, 2010: 137). The
In the News box describes how greed can ruin the careers of individuals in private and public correctional agencies.
In the News
In 2017, news reports detailed the prosecution and conviction of Chris Epps, the corrections commissioner of Mississippi. He was sentenced to almost 20 years in prison for accepting at least $1.4 million in bribes and kickbacks in return for more than $800 million in contracts to private providers. He rose through the ranks from prison guard to become the longest serving corrections commissioner in Mississippi’s history. At the height of his power, he was the president of the American Correctional Association and the Association of State Correctional Administrators. He also had several homes and luxury cars, mainly because of Cecil McCrory, who was owner of a private corrections company. Between 2007 and when Epps was indicted in 2014, McCrory paid tens of thousands of dollars to Epps in cash plus he paid off the mortgages of both of Epps’ homes. In return, Epps steered contracts to McCrory’s corrections company or another private company who paid McCrory. One such deal was described whereby Epps personally urged MTC, a Utah-based private prison company that received the contract to run all the private prisons in the state, to hire McCrory and, when he was hired, they split the fee. After he was indicted, Epps provided information about McCrory and several other people, including state legislators, who were also implicated in the corruption.
Sources: Fausset, 2014; Gates, 2017.
Reports are published with titles that clearly indicate the conclusions, such as “Too Good to Be True: Private Prisons in America” (2012, by the Sentencing Project), and “Unholy Alliance: How the Private Prison Industry Is Corrupting Our Democracy and Promoting Mass Incarceration” (2011, by PICO National Network and Public Campaign). What these reports describe is a very troubling association between private prison companies that financially benefit from increased rates of incarceration and legislators who write laws that affect incarceration levels. Private prison companies send large sums of money to legislators’ campaign funds and/or party coffers, and lobbyists for private prisons work with legislators to write laws that result in a greater likelihood of incarceration for illegal immigrants and mandatory minimum sentences that result in more incarceration for drug offenders. It is reported that private prison companies have given more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying efforts. Conservative politicians and political action committees (PACs) are the largest beneficiaries. For instance, the Republican Party of Florida PAC received nearly $2.5 million from GEO and CCA between 1989 and 2014 (Cohen, 2015).
Many would argue that what is good for this business is bad for the country. Private prison companies stand in direct conflict with (and opposition to) the trend to decriminalize, deinstitutionalize, and deconstruct this nation’s prison–industrial complex. There was no coincidence that the stock market value of these companies dropped precipitously when the Obama administration announced that the federal government would be phasing out its contracts with private prison providers, nor was it coincidental that when Attorney General Sessions publicly stated that the order was void and federal contracts with private prison companies would probably increase because of incarcerating immigration violators, the stock price jumped up 43 percent (Carroll, 2017).
Leighton (2014) describes “perverse incentives” where private prisons require contracts with governmental entities that guarantee occupancy rates of 90–95 percent. Thus, if they enter a 20-year contract with a private prison company, they must provide those numbers of inmates or pay anyway. There is no incentive under this system to reduce prison populations. He argues that privatization does have a role in corrections, but only if there is a shift in incentives to reward rehabilitative success and prevention rather than warehousing.
Private prison companies have also moved into housing immigration detainees. In past years, private prison company representatives were criticized for being involved in writing legislation regarding mandatory minimum sentencing. There is a troubling repetition of the practice of the lobbyists and CEOs of private corrections companies becoming involved in legislation, only this time as it concerns immigration, with the suspicion that, once again, what is good for the company (increasing numbers of illegal immigrants housed in massive detention centers) is not necessarily good for the country. More people are sent to federal prison for immigration offenses than for violent crime, weapons, and property offenses combined (Wilder and Mosqueda, 2014). This trend to criminalize and incarcerate immigration violators, ramped up during the Obama administration, has accelerated under the Trump administration.
Small towns that depend on detention facilities and prisons for jobs will see an increase in jobs and tax revenue with President Trump’s immigration enforcement policies. In January 2017, ICE incarcerated about 40,000 people a day in immigration detention centers; however, President Trump issued a memo to Homeland Security officials calling for that number to double to 80,000, and, in the budget he sent to Congress, he called for enough funding for an additional 17,000 immigrants to be detained each day (Verdugo, 2017).
In Eloy, Arizona, for instance, which has four private detainment facilities, Core-Civic is now the biggest employer and taxpayer. Townspeople can’t help but see the growing numbers of immigrant detainees as a good thing despite reports from Human Rights Watch (HRW) and Community Initiatives for Visiting Immigrants in Confinement (CIVIC) that there is an unusually high number of deaths and suicides in the facilities. Jobs are hard to come by and working at the prison is the best job in town. Like the old company towns of bygone days, CoreCivic engenders a fierce loyalty and defensiveness (Carroll, 2017).
A very troublesome element of privately run detainee centers and prisons is that they have been ruled exempt from open-records laws, which apply to public agencies, including departments of corrections. Shielding the inner workings of these companies is justified as protecting “trade secrets.” The ACLU and other groups have difficulty gaining access and investigating private detainment facilities, but allege that shocking mistreatment and lack of medical care exists resulting in an unusually high number of deaths and riots for what should be a low-security population (ACLU, 2011; Wilder, 2013; Wilder and Mosqueda, 2014). Another legal issue is that prisoners don’t have the same legal protections evidently as those housed in state facilities. In Minneci v. Pollard, 132 S. Ct. 617, 2012, the Supreme Court decided that prisoners in a private prison could not utilize federal courts to allege constitutional violations since prison employees were private employees. The Justices argued that there were state tort remedies available, but opponents argued this creates an equal protection issue between prisoners housed in private prisons compared to prisoners in state or federally run prisons. Federal and state legislators have the power to restrict the use of or put rules in place to monitor the activities of private corrections companies, but whether they will do so while accepting campaign donations is an interesting question and one that will play out differently depending on each state.
11-4Formal Ethics for Correctional Professionals
The American Correctional Association’s (ACA) Code of Ethics outlines formal ethics for correctional officers and other correctional personnel. This code has many similarities to the Law Enforcement Code of Ethics presented in
Chapter 5
. For instance, integrity, respect for and protection of individual rights, and service to the public are emphasized in both codes, as are the importance and sanctity of the law. Also, the prohibition against exploiting professional authority for personal gain is stressed in both codes.
The ACA code indicates that members should exhibit honesty, respect for the dignity and individuality of human beings, and a commitment to professional and compassionate service. The following principles are identified:
· Protect legal rights
· Show concern for the welfare of individuals
· Promote mutual respect with colleagues and criticize only when warranted
· Respect and cooperate with all disciplines in the system
· Provide public information as consistent with law and privacy rights
· Protect public safety
· Refrain from using one’s position to secure personal privileges or advantage or let these impair objectivity
· Avoid conflicts of interest
· Refrain from accepting gifts or services that appear improper
· Differentiate one’s personal views from professional duties
· Report any corrupt or unethical behaviors
· Refrain from discriminating because of race, gender, creed, national origin, religious affiliation, age, disability, or other prohibited categories
· Preserve the integrity of private information; abide by civil service rules
· Promote a safe, healthy, and harassment-free workplace (the ACA Code is available on the ACA website under the “About Us” link. http://www.aca.org.asp).
In an interesting discussion of implementing an ethics program for correctional officers, Barrier et al. (1999) described how officers presented elements of what they thought were important in an ethics code:
· Acting professionally
· Showing respect for inmates and workers
· Maintaining honesty and integrity
· Being consistent
· Acting impartially
· Being assertive but not aggressive
· Confronting bad behavior but reinforcing good behavior
· Standardizing rule enforcement
· Respecting others
· Practicing the Golden Rule
· Encouraging teamwork
· Using professional language
· Not abusing sick leave
· Telling inmates the truth
· Admitting mistakes.
The American Jail Association has a similar code of ethics for jail officers. The preamble states that the jail officer should avoid questionable behavior that will bring disrepute to the agency. The code mandates that officers keep the institution secure, work with everyone fairly, maintain a positive demeanor, report what should be reported, manage inmates even-handedly without becoming personally involved, take advantage of training opportunities, communicate with individuals outside the agency in a way that does not bring discredit, contribute to a positive environment, and support professional activities (American Jail Association, available at www.aaja.org/ethics.aspx).
Formal ethical guidelines for probation and parole officers are provided by the ACA Code of Ethics, and possibly by their own state ethics codes. Federal probation officers subscribe to the Federal Probation and Pretrial Officers Association’s ethical code. The formal ethics of the profession is summarized by the ideal of service—to the community and to the offender. As with other codes, the federal probation officer is exhorted to
· maintain “decorum” in one’s private life,
· avoid granting or receiving favors or benefits that are connected to the position,
· uphold the law with dignity,
· strive for objectivity in performance of duties,
· “appreciate the inherent worth of the individual,”
· cooperate with fellow workers and related agencies,
· improve professional standards,
·
recognize the office as “a symbol of public faith” (Federal Probation and Pretrial Officers Association, available at www.fppoa.org/code-of-ethics).
Ethical codes exist for other correctional professionals as well. Treatment professionals typically belong to a professional organization, and this organization will have a code of ethics, such as the National Association of Social Workers Code of Ethics or, for psychiatrists, the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Mental health counselors adhere to the code of ethics of the American Mental Health Counselors Association, and psychologists follow the Ethical Principles of Psychologists and Code of Conduct. There are also organizations or separate divisions of professional organizations specifically for correctional workers in that profession, such as the Criminal Justice Section of the American Psychological Association. Finally, the American Correctional Health Services Association and the American Association for Correctional and Forensic Psychology also have their own ethical codes to guide their members. The American Association for Correctional and Forensic Psychology’s code includes the following sections: Offender’s Right to Dignity and Respect, Avoid or Minimize Harm, Maintain and Advocate for Competent Mental Health Services and Rights, and Social Responsibility. The Ethical Principles of Psychologists promote five aspirational principles: beneficence (do no harm), fidelity and responsibility (create relationships of trust), integrity (honesty and truthfulness in science and practice), justice (fairness), and respect for rights and dignity (protect privacy and self-determination) (cited and described in Bonner and Vandecreek, 2006).
The American Correctional Health Services Association is an affiliate of the American Correctional Association and has developed a code of ethics for health care providers in correctional facilities, including medical care workers as well as mental health professionals. In developing this code, they surveyed their members and consensus emerged as to the leading principles that should guide professionals in providing healthcare in corrections: respect for human dignity, beneficence, trustworthiness, autonomy, prevention of harm, and promotion of a safe environment. The code includes “should” statements such as “Respect the law,” “Recognize a responsibility to seek changes in those requirements that are contrary to the best interest of the patient,” and “Honor custody functions but not participate in such activities as escorting inmates, forced transfers, security supervision, strip searches, or witnessing use of force” (described in Bonner and Vandecreek, 2006). These codes, in general or specific language, attempt to provide guidance to members who strive for ethical performance of their duties.
11-5Occupational Subcultures in Corrections
Another similarity between the corrections field and law enforcement is that there seems to be an occupational culture that is, in some ways, contrary to the ethical codes. Although the ethical codes clearly call for fair and objective treatment, integrity, and high standards of performance, the actual practices found in some agencies and institutions may be quite different.
11-5aThe Correctional Officer Subculture
The correctional officer subculture has not been described as extensively as the police subculture, but some elements are similar. First, the inmate may be considered the enemy, along with superiors and society in general. Moreover, the acceptance of the use of force, the preference toward redefining job roles to meet only minimum requirements, and the willingness to use deceit to cover up wrongdoing seem to have support in both subcultures (Crouch, 1986; Grossi and Berg, 1991; R. Johnson, 2002).
In an excellent study of the officers’ world, Kauffman (1988: 85–112) notes the following norms of the correctional officer subculture:
· Always go to the aid of another officer. Like law enforcement, the necessity of interdependence ensures that this is a strong and pervasive norm in the correctional officer subculture.
· Don’t lug drugs. This prohibition is to ensure the safety of other officers, as is the even stronger prohibition against bringing in weapons for inmates. The following norm against “ratting” on a fellow officer may exclude informing on an officer who is a known offender of this lugging norm.
· Don’t rat. In ways like the law enforcement subcultural code and, ironically, the inmate code, correctional officers also hate those who inform on their peers.
· Never make a fellow officer look bad in front of inmates. This applies regardless of what the officer did, for it jeopardizes the officer’s effectiveness and undercuts the appearance of officer solidarity.
· Always support an officer in a dispute with an inmate. Similarly to the previous provision, this prescribes behavior. Not only should one not criticize a fellow officer, but one should support him or her against any inmate.
·
Always support officer sanctions against inmates. This is a specific version of the previous provision, which includes the use of illegal physical force as well as legal sanctions.
· Don’t be a white hat. This prohibition is directed at any behavior, attitude, or expressed opinion that could be interpreted as sympathetic toward inmates. Kauffman also notes that this prohibition is often violated and does not have the strong subcultural sanctions that accompany some of the other norms.
· Maintain officer solidarity against all outside groups. This norm reinforces officer solidarity by making any other group, including the media, administration, or the public, the out-group.
· Show positive concern for fellow officers. Two examples are
· (1)
never leave another officer a problem, which means don’t leave unfinished business at the end of your shift for the next officer to handle, and
· (2)
help your fellow officers with problems outside the institution, which means lending money to injured or sick officers or helping in other ways.
If a correctional officer violates the subcultural code, the sanctions are felt perhaps even more acutely than by police officers, because one must work closely with other correctional officers all day long. Whereas police officers cite the importance of being able to trust other officers as backups in violent situations, one could make the argument that correctional officers have to trust each other more completely, more implicitly, and more frequently, given that violence in some institutions is pervasive and unprovoked, and that the correctional officer carries no weapon. An officer described to Kauffman (1988: 207) the result of violating peer trust:
If an incident went down, there was no one to cover my back. That’s a very important lesson to learn. You need your back covered and my back wasn’t covered there at all. And at one point I was in fear of being set up by guards. I was put in dangerous situations purposely. That really happened to me.
Fear of violating the code of silence is one reason that officers do not report wrongdoing. Loyalty is another reason. Correctional officers feel a strong esprit de corps like the previously discussed loyalty among police. This positive loyalty also results in covering for other officers and not testifying or reporting offenses. McCarthy (1991) discusses how theft, trafficking in contraband, embezzlement, and misuse of authority went unreported by other correctional officers because of loyalty and subcultural prohibitions against “ratting.”
A pattern of complicity also prevents reporting. New officers cannot possibly follow all the many rules and regulations that exist in a prison and still adequately deal with inmates on a day-to-day basis. Before long they find themselves involved in activity that could result in disciplinary action. Because others are usually aware of this activity and do not inform supervisors, an implicit conspiracy of silence develops so no one is turned in for anything because each of the others who might witness this wrongdoing has engaged in behavior that could also be sanctioned (Lombardo, 1981: 79).
In the years-long scandal at
Island in New York referred to in the In the News box, correctional officers who used brutal retaliation against inmates were rarely punished and a conspiracy of silence ensued. One incident was documented where two inmates in segregation threw urine or some liquid on correctional officers and they were forcibly extracted from their cells, strapped to gurneys, taken to the medical clinic (because there were no cameras there) and repeatedly beaten in the head and body to the point that blood sprayed on the walls and the medical staff pleaded with the correctional officers to stop (Winerip and Schwirtz, 2014a). In the investigative reports of Rikers, many instances were detailed where correctional officers and their supervisors would lie on incident reports to justify uses of force. Staff and inmates were intimidated into silence (Winerip and Schwirtz, 2014a, 2014b).
In the News
Rikers
In 2010, a correctional officer was sentenced to six years for his role in the death of a juvenile inmate at Rikers. An investigation revealed that a rogue group of officers used beatings and extortion by inmate “enforcers” to keep order in a facility where young offenders, aged 16–18, were housed. Other correctional officers entered guilty pleas and received sentences of two years.
Since that case, Rikers has been the target of a major investigatory series of reports by the New York Times, and investigation by federal prosecutors into the treatment of juvenile offenders that resulted, in the summer of 2014, in a blistering 79-page report documenting pervasive abuse and cover-ups in the juvenile lock-up. The report detailed a “culture of violence” and “code of silence” of correctional officers. In June of 2015, a settlement agreement was announced in a class action lawsuit that mandated a court-appointed monitor for the jail, a substantial increase in the number of cameras, body cameras worn by some correctional officers, use-of-force training, beefed up security to prevent contraband from coming in to the facility, and improved accountability measures for correctional officers who used inappropriate force. Changes over the last several years have included a reduction in the number of uses of force, improved programming for juveniles, the elimination of solitary for juveniles, improved mental health screening, hiring new officers, and improved training, but problems at Rikers continues.
Joseph Ponte, brought in as commissioner to spur the reforms, resigned in the wake of an investigation into the misuse of state vehicles and his absence from New York for 35 work days—evidently he spent those days at his former home in Maine. He was credited with many of the reforms that were undertaken and supported by the governor, but he was also criticized for not upholding a role model of integrity at the top of the organization. The latest report from the court monitor detailed increasing violence by and against correctional officers and a broken disciplinary system that excuses uses of force by officers. Recent news stories paint a troubling picture that the problems of Rikers aren’t going to go away anytime soon.
Sources: Weiser, Schwirtz, and Winerip, 2014; Schwirtz and Winerip, 2015a, 2015b; Weiser, 2015; Rashbaum and Schwirtz, 2017; Schwirtz and Rashbaum, 2017.
The correctional officer code, and informal sanctions against whistleblowers, varies from institution to institution, depending on permeability, the administration, the level of violence from inmates, architecture, and the demographic profile of officers. Distrust of outsiders, dissatisfaction, and alienation are elements of both the police subculture and the correctional officer subculture. In both professions, individuals must work with sometimes unpleasant people who make it clear that the practitioner is not liked or appreciated. Further, there is public antipathy (either real or perceived) toward the profession, which increases the social distance between criminal justice professionals and all others outside the profession. The working hours, the nature of the job, and the unwillingness to talk about the job to others outside the profession intensify the isolation that workers feel.
It should also be pointed out that some researchers believe that some of the values embedded in the correctional officer subculture may not be shared by most officers—a concept referred to as
pluralistic ignorance
. This refers to the idea that a few outspoken and visible members do not reflect the silent majority’s views. In a prison, this may mean that a few officers endorse and publicize subcultural values, whereas most officers, who are silent, privately believe in different values (R. Johnson, 2002/2006). Kauffman (1988: 179) found this to be true in attitudes toward the use of force (where the silent majority did not endorse it to the extent of the verbal minority) and toward the value of treatment (which was silently supported). In the
Walking the Walk
box, one correctional administrator went against the pattern of cover-ups in a state system, and his actions eventually cost him his career.
Walking the Walk
Tom Murton found his career dramatically altered when he was hired by the Arkansas Department of Correction as its director of corrections. He had been instrumental in setting up the prison system for the state of Alaska in the late 1950s and was teaching at Southern Illinois University when he was hired by Governor Winthrop Rockefeller, who wanted to modernize the Arkansas prison system. Upon arriving in 1967 to head the Tucker prison farms, he discovered abuses and inhumane conditions, described later in several writings by Murton and immortalized in the movie Brubaker. The U.S. Supreme Court case of Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), also documented the abuses, which included subjecting prisoners to electric shocks, staff taking food meant for prisoners and feeding them a disgusting gruel, forcing inmates into a metal box for long periods of time as a punishment, allowing prisoners to guard and inflict brutal discipline on other prisoners, and other inhumane treatments. Murton began to address these issues and received information that more than 200 inmates had disappeared and were listed as escapees. Acting on the information of one informant, he dug up (on the grounds of the prison) two bodies that had injuries exactly as the inmate had described. One had been decapitated, and one had a crushed skull. Even though one of the bodies was eventually positively identified as a missing inmate, opposing testimony at the legislative hearing called in response to his investigation proposed that the bodies were from an old church cemetery. Instead of pursuing the matter further and digging up more bodies or testing them in any way for age and other identifying marks, state officials fired Murton and threatened him with prosecution as a grave robber if he didn’t leave the state. He never worked in corrections again.
Sources: Murton, 1976; Murton and Hayams, 1969.
While there may be subcultural elements from correctional officers that migrate to those who work in treatment roles in correctional facilities, there doesn’t seem to be much research documenting it. Thus, we can only assume that when treatment professionals such as psychologists and counselors work in a prison or other correctional facility, they are not a part of the correctional officer subculture, but they may have a different, albeit weaker subculture of their own. Similarly, correctional medical care professionals may be influenced in greater or lesser ways by the “penal harm” atmosphere that pervades some correctional institutions where inmates are seen as not deserving of the care associated with medical services outside the prison. Ethical issues exist for treatment professionals that are different from those of correctional officers, and these will be described in the next chapter.
The subculture of probation and parole officers has never been documented as extensively as that of police and correctional officers. Because of differences between these professions, the subculture of the former is not as pervasive or strong as that of the latter. Probation and parole officers do not feel as isolated as police or correctional officers do. They experience no stigmatization, they have normal working hours, they do not wear a depersonalizing uniform, and they have a less obviously coercive relationship with their clients. These factors reduce the need for a subculture. Still, one can probably identify some norms that might be found in any probation or parole office:
· Cynicism. They have a norm of cynicism toward clients. The subculture promotes the idea that clients are inept, deviant, and irredeemable. Probation and parole professionals who express positive attitudes toward clients’ capacity for change are seen as naïve and guileless.
· Lethargy. There may be in some offices a pervasive subcultural norm of lethargy or minimal work output. This norm is supported by the view that officers are underpaid and overworked.
· Individualism. A norm of individualism can be identified. Although parole and probation officers may seek opinions from other professionals in the office, there is an unspoken rule that each runs his or her own caseload. To offer unsolicited opinions about decisions another person makes regarding his or her client violates this norm of autonomy.
Even though there does not seem to be the “blue curtain of secrecy” to the same extent as is found in policing, there no doubt is a norm against informing on colleagues for unethical or illegal behaviors. This relates somewhat to the norm of individualism, but is also part of the pervasive occupational subculture against informing on colleagues. Probation and parole officers may see and hear unethical behaviors and not feel comfortable coming forward with such information. If they work in an office where the norm against exposing such wrongdoing is strong, they may indeed suffer sanctions like those of police and correctional officers for exposing others’ wrongdoing.
Some offices develop norms that accept unethical practices and lethargy. Once this occurs, it becomes a difficult pattern to change. If it is already present, a single officer will have a hard time not falling into the pattern. If all officers feel overwhelmed by their caseloads and their relative lack of power to do anything about failure, the result may be that they throw up their hands and adopt a “who cares?” attitude. If the supervisor does not exhibit a commitment to the goal of the organization, does not encourage workers, treats certain officers with favoritism, or seems more concerned with his or her personal career than with the needs of the office, there is an inevitable deterioration of morale. If the organization does not encourage and support good workers, it is no wonder that what develops is an informal subculture that encourages minimum effort and treats organizational goals with sarcasm and cynicism.
11-6aConclusion
In this chapter, we have looked at the justifications for punishment (retribution and prevention) and some of the ethical rationales for punishment (e.g., utilitarianism, ethical formalism, and ethics of care). What we do to offenders is influenced by our views on things such as free will and determinism, the capacity for individual change, and the basic nature of humankind. The limits of punishment have been subject to the laws and mores of each historical era. Today, our punishments primarily consist of imprisonment or some form of restricted liberty, such as probation or parole. There are current conversations over the legality and morality of stigmatizing shaming punishments and supermax prisons. The death penalty continues to be used; however, the controversy surrounding it continues as well. The privatization of corrections and squeezing profits from offenders pose troubling ethical issues.
Formal ethics for those who work in corrections come from their professional organizations, such as the American Correctional Association. Common to all the codes are adherence to the law, respect for persons, and maintaining objectivity and professional standards of competence. Like police officers, there are elements in occupational subcultures that sometimes conflict with and subvert formal ethics.
We provide professional writing services to help you score straight A’s by submitting custom written assignments that mirror your guidelines.
Get result-oriented writing and never worry about grades anymore. We follow the highest quality standards to make sure that you get perfect assignments.
Our writers have experience in dealing with papers of every educational level. You can surely rely on the expertise of our qualified professionals.
Your deadline is our threshold for success and we take it very seriously. We make sure you receive your papers before your predefined time.
Someone from our customer support team is always here to respond to your questions. So, hit us up if you have got any ambiguity or concern.
Sit back and relax while we help you out with writing your papers. We have an ultimate policy for keeping your personal and order-related details a secret.
We assure you that your document will be thoroughly checked for plagiarism and grammatical errors as we use highly authentic and licit sources.
Still reluctant about placing an order? Our 100% Moneyback Guarantee backs you up on rare occasions where you aren’t satisfied with the writing.
You don’t have to wait for an update for hours; you can track the progress of your order any time you want. We share the status after each step.
Although you can leverage our expertise for any writing task, we have a knack for creating flawless papers for the following document types.
Although you can leverage our expertise for any writing task, we have a knack for creating flawless papers for the following document types.
From brainstorming your paper's outline to perfecting its grammar, we perform every step carefully to make your paper worthy of A grade.
Hire your preferred writer anytime. Simply specify if you want your preferred expert to write your paper and we’ll make that happen.
Get an elaborate and authentic grammar check report with your work to have the grammar goodness sealed in your document.
You can purchase this feature if you want our writers to sum up your paper in the form of a concise and well-articulated summary.
You don’t have to worry about plagiarism anymore. Get a plagiarism report to certify the uniqueness of your work.
Join us for the best experience while seeking writing assistance in your college life. A good grade is all you need to boost up your academic excellence and we are all about it.
We create perfect papers according to the guidelines.
We seamlessly edit out errors from your papers.
We thoroughly read your final draft to identify errors.
Work with ultimate peace of mind because we ensure that your academic work is our responsibility and your grades are a top concern for us!
Dedication. Quality. Commitment. Punctuality
Here is what we have achieved so far. These numbers are evidence that we go the extra mile to make your college journey successful.
We have the most intuitive and minimalistic process so that you can easily place an order. Just follow a few steps to unlock success.
We understand your guidelines first before delivering any writing service. You can discuss your writing needs and we will have them evaluated by our dedicated team.
We write your papers in a standardized way. We complete your work in such a way that it turns out to be a perfect description of your guidelines.
We promise you excellent grades and academic excellence that you always longed for. Our writers stay in touch with you via email.