Criminal Justice Ethics

by

John Kleinig

• LAST REVIEWED: 09 July 2015
• LAST MODIFIED: 30 November 2015
• DOI: 10.1093/obo/9780195396607-0080

Introduction

The scope of criminal justice ethics is usually construed narrowly to encompass a range of concrete and mid-level ethical problems encountered within the primary institutions of criminal justice—police, courts, and corrections—including, for example, use-of-force policies, judicial corruption, and the rights of prisoners. Within that narrower framework, criminal justice ethics may focus on problems generated by the institutions themselves, such as the place of police discretion, the independence of the judiciary, or prison overcrowding, as well as on problems encountered by criminal justice practitioners— problems of professional ethics, such as conscientious objection to particular police strategies, the use of ad hominem legal defense tactics, and forming friendships with prison inmates. More broadly, however, criminal justice ethics may encompass ethical problems that arise in connection with the foundations of the criminal justice system, the moral limits of criminal law, ethical problems that emerge in reflections on the nature and origins of criminality, as well as more general ethical problems that have important particularized expressions within the framework of criminal justice—for example, those concerning human rights, loyalty, impartiality, ends and means, and punishment. To the extent that criminal justice ethics is construed narrowly, as it often is in courses and texts designed for those who are or aspire to be criminal justice practitioners, the curriculum should also encompass ways in which broader frameworks and issues impinge on the narrower discussions. Consider, for example, how a discussion about the judicial treatment of drug offenders should be responsive to larger questions about the social context of and appropriate responses to drug use, the justification for imprisonment, as well as a general consideration of the justification and purposes of punishment. What some of these larger questions also show is the extent to which ethical problems within criminal justice may be based on quasi-empirical data that are shifting and contentious—whether, for example, a “war on drugs” is inherently discriminatory and likely to be won. Although there has always been a level of ethical reflection on criminal justice issues, the development of criminal justice ethics as an identifiable academic focus is relatively recent, and, to some extent, it is predated by some of the more particularized studies in legal and police ethics. Given the vast criminal-justice-related literature, it may be appropriate to indicate the principles used here to determine inclusion/exclusion, especially given that some of the items included are not directed primarily to ethical issues, while some of those that have been excluded are directed to ethical issues. First of all, ethical issues concern the basic normative conditions for people’s relations and interactions, whether these are construed interpersonally, communally, or institutionally. They differ from moral issues only insofar as they operate through personal and institutional roles rather than at the level of basic humanity. Whereas we talk about the morality of killing, we speak of the ethics of the police use of deadly force. Much of what is encompassed by the ethics of role relations is also incorporated within the idea of professionalism. Where available, the best of such materials have been included here. As is always the case with applied ethics, and particularly so in the case of criminal justice ethics, ethical determinations require a close understanding of the social roles involved, and of the social circumstances in which those roles operate. In selecting materials for inclusion, the author has therefore been concerned to select a range of materials that will not only address what might be called the exclusively ethical dimensions of issues, but that will also point to relevant empirical resources for embodying an informed ethical focus. On some occasions, a choice has been made between “classical” contributions to the criminal justice field and those with which the author may have been more ideologically or even academically sympathetic. For the most part, the author has opted for the classical contributions, expecting that this would integrate the ethical material more adequately into “mainstream” criminal justice discussions.

General Overviews

There are relatively few comprehensive overviews of criminal justice ethics, narrowly construed, that have not been written with a student audience in mind. The scope is too broad. Zedner 2004 comes closest to an ethically sensitive scholarly overview, and Braithwaite and Pettit 1990 sketches an ethical framework for a general theory of criminal justice institutions. Most philosophers who write in the area have avoided the “institutional” turn and have focused instead on much broader questions, such as the moral limits of criminal law or the justification of punishment. Feinberg 1984–1988, Husak 2008, and Simester and von Hirsch 2011 provide major general discussions of the former, and Hart 1968, Duff 1986, Duff 2001, and Primoratz 1999 give sophisticated but accessible overviews of the latter.

• Braithwaite, John, and Philip Pettit. 1990. Not just deserts: A republican theory of criminal justice. Oxford: Clarendon.

  A readable attempt to develop a republican theory of criminal justice around the idea of individual “dominion.”

• Duff, R. A. 1986. Trials and punishments. Cambridge Studies in Philosophy. Cambridge, UK: Cambridge Univ. Press.

  The first of two major contributions to the theory of punishment by one of the foremost contemporary British philosophers of criminal law. Punishment is construed as a communicative attempt to bring the wrongdoer to an acknowledgment of wrongdoing.

• Duff, R. A. 2001. Punishment, communication, and community. Studies in Crime and Public Policy. New York: Oxford Univ. Press.

  Not so much a revision as a development of communitarian ideas only latent in the author’s first book (Duff 1986). Both are well written and suitable for graduate classes on punishment theory.

• Feinberg, Joel. 1984–1988. The moral limits of the criminal law. 4 vols. New York: Oxford Univ. Press.

  Magisterial defense of a revised Millian understanding of criminalization. Although not written for a student audience, it is beautifully clear and accessible. Vol. 1, Harm to Others (1984); Vol. 2, Offense to Others (1985); Vol. 3, Harm to Self (1986); Vol. 4, Harmless Wrongdoing (1988).

• Hart, H. L. A. 1968. Punishment and responsibility: Essays in the philosophy of law. Oxford: Oxford Univ. Press.

  A collection of articles by one of the 20th century’s most influential contributors to analytic philosophy of law, including the title essay, in which a hybrid theory of punishment is developed. Individual essays suitable for graduate classes.

• Husak, Douglas. 2008. Overcriminalization: The limits of the criminal law. New York: Oxford Univ. Press.

  Offers an alternative schema to Feinberg 1984–1988, though written within the same general tradition. Focuses on internal and external constraints on criminal law.

• Primoratz, Igor. 1999. Justifying legal punishment. 2d ed. Atlantic Highlands, NJ: Humanities Press.

  Clearly written overview, defending, ultimately, a communicative retributivism. Could be used as a text.

• Simester, A. P., and Andreeas von Hirsch. 2011. Crimes, harms, and wrongs: On the principles of criminalisation. Oxford: Hart.

  Two well-known theorists of criminalization combine efforts to produce a comprehensive theory of criminalization. A partial critique of Feinberg 1984–1988.

• Zedner, Lucia. 2004. Criminal justice. Oxford: Oxford Univ. Press.

  Primarily focused on criminal justice in a British context, this book is packed with a wide range of materials. Could be used in a graduate course.