HWLesson 7 

Lesson Seven: Chapters 11 and 12

Chapter 11:

Q1. What is a ‘supermax’ prison?  What is the criticisms of supermax prisons?

Q2.  Do you feel placing inmates in a supermax prison would violate their  8th Amendment rights? What does the 8th Amendment protect us from?

Chapter 12:

Q1.  Back to the question of ‘discretion’. Now that you have read Chapter  12…how do COs have discretion similar to police officers and court  personnel? What do you feel is the biggest reason for that?

Q2. What are two areas that probation and parole officers have discretion?

CHAPTER 11:
The Ethics of Punishment and Corrections
Lecture Slides prepared by Cheryn Rowell

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Elements of Punishment
Two people involved, the punisher and the one being punished

The punisher inflicts harm on the one being punished
The punisher is authorized by law to inflict the punishment
The one being punished has been judged to be in violation of a criminal law
The inflicted harm is meted out specifically as punishment for that violation of criminal law

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Treatment
In correctional terminology, treatment is anything used to induce behavioral change.

The goals of treatment are:
elimination of dysfunctional or deviant behavior
encouragement of productive, normal behavior

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Protection of individual liberty
Minimal intrusion in criminals’ lives
Justification of each intrusion
Crime should be prevented according to the requirements of justice
Suggested Guidelines
for Punishment

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Punishment Rationale
The social contract provides the rationale for punishment and corrections.

We avoid social chaos by giving the state the power to control us.
The state is limited in the amount of control it can exert over individuals.
For consistency with the social contract, the state should exert its power only to protect.
Any further interventions with civil liberties are unwarranted.

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Correctional Goals
1. Retribution

2. Prevention
Incapacitation
Deterrence
Rehabilitation
Reform

Can treatment and punishment occur simultaneously?
Can a punishment system in which “just” punishment is relative and changes with time be ethical or moral?

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Punishment and Corrections
Treatment programs created in the last hundred years assume that offenders’ criminal activity can be reduced by:
treating psychological problems such as sociopathic or paranoid personalities

addressing social problems such as alcoholism or addiction

resolving more practical problems, such as chronic unemployment, with vocational training and job placement

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Retribution: How Much Punishment?
Bentham: Criminal offenses deserve punishment that balances the pleasure or profit of the offense
Neoclassicists: Characteristics of the offender should influence the punishment decision
In today’s correctional climate:
Determinate sentencing focuses on the seriousness of the offense
Indeterminate sentencing tailors the sentence to the individual offender

Retributivists: Balance is restored when offenders have suffered as much as their victims

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Punishment
The Justice Model of punishment:
Promotes a degree of predictability and equality in sentencing
Reverts to earlier retributive goals of punishment
Restricts the state’s use of treatment as a release criterion

The Just Deserts Model of punishment:
Bases punishment on “commensurate deserts”
Incorporates incapacitation
Equally punishes offenders who commit similar crimes

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Prevention
Assumes that something should be done to the offender to prevent future criminal activity
Preventive methods include:
Deterrence
Incapacitation
Treatment

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Deterrence
Specific Deterrence:
Preventing a particular offender from deciding to commit another offense
Teaching through punishment

General Deterrence:
Prevent others in general from deciding to engage in wrongful behavior
Teaching by example

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Incapacitation
Holding an offender until there is no risk of further crime
Because incapacitation is predictive:
We might release an offender who commits further crimes

We might not release an offender who would not commit further crimes

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Three Strikes Laws
Are these laws justified under retribution, deterrence, or incapacitation?
Supreme Court holdings of Lockyer v. Andrade and Ewing v. California.

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Treatment
Treatment is considered beneficial for both society and the individual offender.
The control over the individual is just as great as with punishment.
Courts define treatment as “that which constitutes accepted and standard practice and which could reasonably result in a ‘cure.’”
Much of the treatment in the correctional environment is either implicitly or directly coerced.
No single program works for all offenders.

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Ethical Justifications
for Punishment
Utilitarianism: treatment, incapacitation, deterrence (we punish to benefit the majority)
Ethical formalism: retribution (we punish because the offender deserves it)
Ethics of care: restorative justice (we punish only if it is necessary to meet the needs of all involved)

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Punishment
The American criminal justice system has adopted prison as a standard form of punishment.
Imprisonment does not carry the physical pains of flogging or mutilation.
Imprisonment is painful because it involves:
banishment,
condemnation,
separation from loved ones,
deprivation of freedom, and
an assault on one’s self-esteem.
Prisons are extremely expensive.

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Cruel and Unusual Punishment
Unusual (by frequency): Punishments that are rarely used become unusual.
Evolving standards of decency: Punishments acceptable in the past (flogging) may not be acceptable today.
Shock the conscience: A punishment is cruel and unusual if it shocks the public conscience.
Excessive or disproportionate: Any punishment that is disproportionately administered or excessive to its purpose is considered wrong.
Unnecessary: The purpose of punishment is to deter crime; only an amount necessary to do so should be administered.

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Thinking Point
In May of 2010, the US Supreme Court ruled that sentencing a juvenile to life imprisonment without parole is considered cruel and unusual punishment when the crime is not murder. Until the recent Graham v. Florida ruling, judges around the country could sentence anyone under the age of 18 to life in prison for crimes such as aggravated robbery, rape, and murder.
Did the Supreme Court make the right decision? Why?

“Shaming” Punishments
Stigmatizing shaming rejects the individual and may have negative effects.
Reintegrative shaming rejects only the person’s behavior, thus creating a healthier relationship between the individual and his or her community.

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Prison authorities have long segregated the most notorious prisoners into special units.
Today, some states have constructed the most secure facilities, referred to as supermax prisons.
Supermax conditions are extremely harsh, including individual separation of all inmates around the clock and limited recreational activity.
Challenges due to conditions, procedures, and who is sent there (non-violent, mentally ill)
Supermax Prisons

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Private Corrections
Private prisons are built by a private corporation, then leased to the state or actually run by the corporation, which bills the state for the service.
What ethical issues do you think arise with the privatization of prisons?

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No ethical issues listed

Evaluating Private Corrections
A General Accounting Office study found that private and public institutions cost about the same
Private corrections tend to pay lower salaries than state corrections departments
Officers often transfer to state corrections departments after they are trained
Turnover is high in both private and state corrections

Where is incentive to rehabilitate?

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Public support
1966: 44 percent
late 1990s: 75–80 percent
2008: 63 percent
Who is in favor?
Whites
Fundamentalist Protestants
Politically conservative
Men
Capital Punishment

Ethical Justifications
RETENTIONISTS
Utilitarianism: deterrence

Ethical formalism:
proportional harm
Religion:
“an eye for an eye”
ABOLITIONISTS
Utilitarianism: deterrence ineffective
Ethical formalism:
categorical imperative
Religion:
“turn the other cheek”

Capital Punishment
Does failure to apply capital punishment
fairly invalidate its use?
The U.S. Supreme Court has ruled against executing:
the mentally ill
the mentally handicapped
juveniles (under 18)

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Recent Challenges
“Fast track” death appeals (OK)

Lethal injection (OK)

Execution for rapists (Not OK)

Community Corrections
Most offenders are under some form of community supervision (probation or parole, halfway houses, work release centers, and intermediate sanctions).
Community supervision poses different ethical challenges than institutional corrections.

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Formal Ethics for
Correctional Professionals
Common across all ethics codes:
Integrity
Respect for and protection of individual rights
Service to the public
Importance and sanctity of the law
Prohibition against exploiting professional authority for personal gain

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Correctional Officer Subculture
May consider inmates, superiors, and society in general as “the enemy”
Accept use of force as a routine job element
Show a tendency to redefine job roles to meet minimum requirements only
Show a willingness to use deceit to cover up wrongdoing by staff

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Subcultural Norms
Cynicism towards clients
Lethargy from heavy caseloads and poor pay

Individualism: an officer running his/her caseload in the manner he/she sees fit

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CHAPTER 12:
Discretion and Dilemmas in Corrections
Lecture Slides prepared by Cheryn Rowell

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Correctional Professionals
Correctional officers and supervisors

Treatment professionals (e.g., educators, counselors, psychologists, and others)

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Discretion
Correctional officers have a full range of control, including denial of liberty and application of physical force.
Correctional officers have discretionary powers, such as charging an inmate with a disciplinary infraction versus delivering a verbal reprimand.
Disciplinary committees also exercise discretion when making a decision to punish an inmate for an infraction.
Treatment professionals have discretion in writing parole reports, making decisions on classification.

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Correctional Ethics
In the 1970s, prison guards adopted correctional officer as a more descriptive professional title.
The period also saw such dramatic changes as:
Increased on-the-job danger
Loss of control
Increased stress
Racial and sexual integration
Unionization
Higher standards of professionalism
Expanded bureaucratization

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Relationships With Inmates
Both guards and inmates prefer to live in peace.
Both feel they must take sides when conflict occurs.
Reciprocity: Officers become dependent on inmates for completion of important tasks.
In return, officers may overlook inmate infractions and allow a degree of favoritism.

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Officers have the power to make life difficult for inmates they do not like.
If officers become personally involved (e.g., sexually), their professionalism is compromised.

An alliance sometimes forms between guards and inmates that is not unlike foreman-employee relationships.
Officers insist that “you can be friendly with inmates, but you can never trust them.”
Mature officers learn to live with this inconsistency.
Relationships With Inmates

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Thinking Point
In June of 2010, correctional officer David Francis of Charleston WV, was implicated for allegedly sexually abusing, harassing, and assaulting two female inmates over the course of two years. The inmates have filed suit against the officer as well as the West Virginia Department of Corrections for punitive and compensatory damages.
Should the inmates profit from the unethical behavior
of the correctional officer?
What punitive action should be taken against Francis?

Correctional Officer Subculture
May consider inmates, superiors, and society in general as “the enemy”
Accept use of force as a routine job element
Show a tendency to redefine job roles to meet minimum requirements only
Show a willingness to use deceit to cover up wrongdoing by staff

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Types of Officers
Violence-prone: use the role of correctional officer to act out an authoritarian role
Time-servers: serve time in prison much the same as most inmates do (trying to avoid trouble and hoping nothing goes wrong on their shift)
Counselors: seek to enlarge their job description; perceive their role as inmate counselor/helper

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Use of Force
Physical force is often necessary in prison situations.
Prior to the 1980s, overt physical force was used routinely in U.S. prisons.
“tune ups”
“hanging up”
Hudson v. McMillian
Today, the incidence of excessive force is less common, but it is still used in some institutions.
Inmates have more to fear from each other than from correctional officers.

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Detention Officers in Jails
In many respects, local jail officers have more difficult responsibilities than state prison officers.
Jail population is transitory and often unstable.
Offenders may come into jail intoxicated, suffer from undiagnosed diseases or psychiatric conditions, or be suicidal.
Visitation is more frequent, and family issues are more problematic.
The constant activity and chaotic environment of a jail often create unique ethical dilemmas.

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Treatment Staff
The professional goal of all treatment specialists is to help the client.
This goal may be fundamentally inconsistent with the punitive prison/jail environment.
A dilemma of treatment programs is deciding who is to participate.
Psychiatrists in corrections may feel that they are being used more for social control than treatment.

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Treatment in Prison
The fact that prisoners are captive audiences makes them attractive subjects for experimentation.
Can inmates give voluntary and informed consent?
Treatment vs. custody issues
Issues with faith based treatment programs

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Ethical Issues for
Prison Psychologists
Confidentiality
Protection of psychological records
Informed consent
Corroboration
Refusal of services
Nondiscrimination
Competence
Knowledge of legal structure
Accuracy and honesty
Misuses of psychological information
Multiple relationships

Probation Discretion
Make sentencing/revocation recommendations.
Write violation reports.
Responsibility to the offender’s family.
Relationships/closeness to the offender.
Gratuities.
Part-time employment.

Probation Officer “Types”
The punitive law enforcer: officers have a tendency to use illegal threats and violate due process protections.
The Welfare/therapeutic practitioner: officers infringe on clients’ privacy because they are “helping” the client.
The passive time server: officers do not perform assigned duties.

Parole
Supervision of parole officers is stronger than probation officers. The parole officer usually manages a caseload of older and seasoned offenders.
67 % of released inmates were charged with at least one serious crime within three years.
Studies indicate that the rate of recidivism is worse than twenty years ago.
Men, blacks, and young people are the most likely to recidivate.
Those who participate in property crimes are most likely to return to criminal behavior.

Causes of Probation/Parole Officer Burnout…
Low wages
Incompetent promotion
High caseloads
Correctional ineffectiveness
Politics
Emotional Investment