Ethics Of Criminal Justice Research Paper

This research paper will not survey the wide variety of ethical issues found in modern criminal justice. Instead we wish to emphasize one central concern: the strategic importance of imposing limits on the punishment of criminals to ensure the respect of government for citizenship and individual dignity. Serious criminal offenders present the least attractive case for claims to limit government power, but they are, for that reason, the most important frontier for defending the limits of that power. If the claim of human rights is only as strong as its weakest link, that will almost always make the rules and limits of criminal punishment of central importance to respect for individual dignity as a limiting principle throughout government.

This research paper will first sketch out the argument for considering criminal punishment as a critical arena for human rights and then discuss those areas within criminal justice where the claims for limiting government are most important. A second section addresses the politics of governmental limits on punishment. A third section focuses on conditions of imprisonment. A fourth section contrasts two styles of characterizing the role of government in punishing criminals.

1. Appeals For Government Power

To the extent that power held by government comes at the expense of restrictions on the liberties of individual citizens, there is a natural tendency for citizens to resent increases in governmental power and to desire limits on government. Where citizens have continuing power over governmental policy, new powers must be approved on the basis of the need for government to produce common benefits that citizens value more highly than the liberties they surrender. The need to justify governmental power in terms of collective gains that are more important than lost liberty is spread over the full range of governmental powers from taxation and spending to military force. Crime and punishment have a special strategic importance in this dynamic to establish the limits of governmental power, because criminals are the most frightening and most unpopular citizens in a democratic state. Fear of crime means that citizens will cede authority to government for crime control that they might not be willing to surrender for other reasons. The public hostility toward criminals will support harsh punishments administered by government be-cause criminals are to receive them. Citizens will approve conduct in the punishment and control of crime that they would hesitate to support or tolerate in other domains.

Because criminal punishments are the most extreme deprivations that government will inflict on any citizen, most enforceable limits in governmental power will be limits on criminal punishments. Further, because of hostility to criminal offenders, public opinion and democratic institutions will support punishments of high magnitude. Expanding power to punish in democracy will be easier than in other arenas of government, and limiting power through democratic institutions will be more difficult.

That the punishment enterprise is the boundary territory for the maximum exercise of negative government power explains the historic importance of criminal justice in the basic architecture of limited government. The Bill of Rights to the US constitution has eight amendments dealing with the relationship of government and individual citizens. Five of these eight amendments (4, 5, 6, 7, and 8) are chiefly concerned with criminal justice.

2. An External Constraint

Concern about excessive governmental power is external to the usual topics of effectiveness and individual desert in the determination of appropriate punishment. To worry about whether it is proper for modern governments to extinguish life as a criminal sanction is not to address either topics like deterrence or incapacitation that concern the effects of punishment on crime rates or to address what particular punishment might be morally justified by the com-mission of a particular act. Restraints on government power of this sort are prior conditions to setting a scale of punishments based on individual desert or deterrence. Citizens are potential victims in this setting both of criminals and of government; and they need not imagine themselves as criminal offenders to feel threatened by a government that is without restraints in pursuing its policies.

The external concerns that motivate restraints on punishment can produce debates in which the contestants are talking past each other, and in which differences of opinion exist even about the topic being debated. In many disputes about capital punishment, retentionists typically assume that the topic is crime control and therefore the issues are individual desert and deterrence, while abolitionists see the topic as the appropriate limits of power in the modern state, a concern that has little use for criminological data or expertise. Often the debate is decided by which side succeeds in establishing its view of the topic under discussion.

What we are calling a ‘human rights’ perspective tends to be most prominent in circumstances where citizens have special concerns about the organization and limits of government. Change of regime is one obvious circumstance where citizens have pressing concerns about limiting governmental power. The widespread abolition of capital punishment in Central and Eastern Europe after the end of Soviet domination is one recent example of this. A second is that the abolition of the death penalty in Europe after World War II was first evident in the nations that were defeated and changed regimes, that is in Germany, Italy, and Austria (Zimring and Hawkins 1986). Only later did abolition spread to the major powers that were victorious, to the UK and France.

3. The Politics Of Governmental Limit

All the major democracies in the world have substantial constitutional limits on the government’s power to punish criminals that include prohibitions of torture, and all the major democracies except the USA and Japan prohibit the death penalty. All the developed democracies impose substantial minimal procedural conditions that must be met before punishing. The current pattern is that those nations with substantial democratic influence on government power also have more limits on punishment than nations with less citizen control on government, but this is no paradox. Authoritarian regimes do not choose to limit themselves and their citizens lack the power to force limits.

More interesting are the motives and mechanisms which limit punishment power in democracies. If a government responds to popular will, why not give it total discretion in the choice of punishment for criminal offenders? One problem with that position is that changing political circumstances is a risk that cannot be discounted. Governments may cease to be accountable, so that whatever safety came from popular control might disappear. But there is also a possibility of majority will supporting excessive use of force. In almost all nations, discrete minority populations support restrictions on government power in part because of a fear of popular control. And while self-interested enthusiasm for limits on government power is easiest to imagine for those with conspicuous minority identities, there are few of us immune from being outvoted in a matter of important personal preference. All citizens are potential minorities on contested issues.

So the reason democratic regimes have more restrictions on government power than autocratic regimes is that democracies allow such limits to exist. We know this because the strongest support for limits on government will come from those who have recently experienced autocratic governmental excesses. Limits on government power are quickly imposed once iron curtains fall.

How might a government constrained by limits on power tempt its citizens to remove such limits? Fear of crime and of criminals is one obvious technique, and this creates a strong motive for governments that desire additional power to exaggerate the danger of crime and criminals. The political task is to convince citizens that criminality is a greater threat to them than government excess.

Not all areas of criminal justice are of equal concern from a human rights perspective. The maximum dangers cluster at the extreme edges of the system—the most serious offenders, the most fear-inspiring crime problems, and the most extreme punishments. The most serious and hated criminal offenders are the justification for new incursions of state power. The serial killer, the murderer of children, the predatory sex offender, and the drug lord are the principal arguments put forward for extensions of the severity of punishments available and the length of incapacitation. Terrible crimes are always urged as the justification for terrible punishments. But more than the heinousness of individual offenders, the justification for new intensities of punishment depends on the public’s sense of insecurity in combating the particular problem that is urged as the necessity for the extension of state punitive power. It is citizens’ sense of vulnerability more than their distaste for particular criminal offenders that justifies the extension of state power. A sense of public emergency thus becomes the leading enemy of moderation and the limitation of government power.

The importance of public feelings of vulnerability about crime to support for the expansion of punitive power explains not only the incentive of ambitious governments to scare their citizens but also the cyclicality of the public sense of emergency about particular crime problems. From the war on drugs, to gang violence, to the Mafia, each campaign to make citizens feel acutely threatened has a relatively short effective life after the threatened Armageddon does not happen. So governments intent on consistent expansion of punishment powers will need to rotate the particular problems that are pushed to justify penal inflation. When drug wars are followed by panics about juvenile violence, the shift in topic may be the only way supporters of expansion in govern-mental power can generate consistent levels of public anxiety.

While extreme forms of criminality are the focus of support for extensions of governmental power, extreme forms of punishment attract the attention of the enemies of unlimited governmental power, particularly when a punishment is distinct from more standard penal measures in kind as well as degrees. Torture, beatings, and execution have been the targets of choice for human rights reformers, practices which inspire citizen empathy with the subject of the punishment, and types of deprivation that are easy to distinguish from more common penal measures such as imprisonment and fines.

Penal practices which differ from those in common use in extremeness but not in kind are more difficult targets for the human rights reformer to identify and to attack. An illustration of this phenomenon of current importance concerns what has come to be called ‘the maxi-maxi prison’ that has proliferated throughout the USA since the 1980s. Designed to impose unprecedented levels of individual isolation and psychological deprivation, the maxi-maxi prison is nonetheless a more difficult target for the human rights reformer than canings or torture because the institution can be defended by government as merely another form of prison.

The general acceptability of imprisonment as a penal sanction becomes that major premise in a syllogism; the minor premise is that these maxi-maxi institutions are prisons; and the conclusion is that therefore they must be acceptable penal measures. To date, these extraordinary institutions have not received the attention they deserve from either reformers or the wider community.

4. Impulse And Obligation In Conditions Of Imprisonment

Imprisonment is the most serious penal sanction that is frequently imposed in the modern state and a stunning example of the conflict and complexity involved in the protection of individual dignity during punishment. The imprisoning state administers an institution where the totality of the offender’s life is under its control and restraint. For this reason, sociologists describe such facilities as ‘total institutions.’ For the modern prison, the same government that condemns and wishes to punish offenders controls every aspect of their daily life: eating and drinking, social contact, excreting, communication with the world outside the prison, exercise, light and darkness are all state-administered conditions in the modern prison.

The totality of state power over individual life means that the punitive impulse that inspires imprisonment could in theory influence every aspect of the conditions of confinement. Why should those who have murdered and raped get decent meals or the opportunity to communicate with family and friends? What is the argument for allowing those who are being punished by imprisonment to enjoy movies on cable television or build their muscles in exercise rooms that have been equipped at public expense? One version of objections to positive conditions in prison acquired the label ‘less eligibility’: an argument that conditions in confinement should not be better than those available to the poorest members of the law-abiding community. But the broader argument is why not make the conditions of confinement in penal institutions punitive in all their details?

Two points of importance in considering the limits of punitive agendas on conditions of imprisonment echo general concerns which we adverted to earlier in this research paper. The first is that the source of any limits on the punitive content of imprisonment will be external to the purposes of punishment. One cannot derive compelling arguments for cable television in prison through analysis of concepts like deterrence and retribution. The second point is that the popular will in democratic government will be an unlikely source for conferring amenities on prisoners. The general hostility to the subjects of imprisonment is not self-limiting.

The limiting principal necessary to minimum standards of confinement is the governmental obligation to respect the human dignity of the prisoner. The content of this obligation is not easy to determine and will vary with economic resources and other social conditions. Deprivations that are not necessary to maintaining the restriction on liberty that make prisons punitive are gratuitous, and the claims of the prisoner as human being against the state make most gratuitous punitive conditions of confinement seem problematic. But the most that one can conclude from a discussion of the purposes of punishment is the lack of necessity to push further, a sense of what might not be necessary in order to condemn the punished offender or to deter others.

Yet more than a general notion of parsimony informs prohibitions on torture and execution. And the use of torture is prohibited even when it might prove quite useful to interrogations. As with torture, we believe that gross conditions of isolation and sensory deprivation that are intentionally imposed in hypermaximum security prisons in the USA also violate free-standing conceptions of human dignity that are no less important because they are imprecise.

But enforcing restrictions on punitive conditions of confinement through the political process is difficult not only in autocratic political regimes, but also in democracies. The authoritarian government is un-willing to constrain the tactics it uses in conflict with domestic enemies. In democratic regimes, citizens will be unwilling to spend resources to confer benefits on hated criminal offenders, particularly when politicians portray spending money on prison conditions as a status competition in which the citizen must choose between the interests of prisoners and the interests of crime victims (Zimring et al. 2001 Chap. 11). Under such circumstances books for prison libraries and educational programs in penal institutions might be regarded as a direct affront to the victims of crime.

Enforceable limits on the punitive content of imprisonment can be maintained in two ways even when they are unpopular. The first is by a commitment of government to constitutional principles that render some conditions of confinement beyond the reach of governmental discretion. This is a ‘bill of rights’ approach to the limitation of gratuitous punishment. It requires enforcement somewhere in government, but not necessarily by the executive branch that administers prisons.

A second strategy for protecting imprisonment from gratuitous punitive content is to make the detailed conditions of imprisonment the responsibility of ex-pert governmental actors whose discretion is insulated from populist politics (Zimring et al. 2001 Chap. 10). This has the advantage over a ‘bill of rights’ approach of allowing detailed consideration of conditions of confinement by governmental officials who have on-going responsibility for administering imprisonment. The disadvantage of delegating to the warden and the prison guard is the threat of conflict of interest, that prison administrators will themselves prefer unjustifiably punitive conditions for their least favorite prisoners for reasons of animus or administrative convenience. The recent history of maxi-maxi prisons in the USA suggests that administrative controls within the executive branches of government have been manifestly insufficient protection of the human dignity of prisoners.

5. State And Society In The Punishment Enterprise

When governments push for increased power to punish criminals, they assert an identity of interest between the state and society in the punishment process. Executions are necessary to protect the community from murderers and rapists, and preventive detention is required because individual citizens demand safety rather than for any distinctive self-interest of the government. The plea for power is premised on an identity of state interests, community interests and individual interests.

Those who oppose the expansion of state punishment power will typically emphasize the differences between the interests of government and of social groups. In this view, state power can suppress rather than facilitate the interests of social groups and individuals. State power is presented not as an ex-tension of social power but as power over society exercised by outsiders. This contrast in the rhetoric of punishment limits suggests a relationship between state and society that should predict the appeal of restraints on punishment power. In settings where there is an ideology of either identity or strong overlap between state and community, limits on government power to punish will be a hard sell, even if the populace has some control over government policy. States which govern simple and homogenous societies in accord with traditional principles will be difficult places to argue for a bill of rights, just as the identity of state and society assumed by theocratic and totalitarian regimes makes it difficult to imagine the appeal of limits on government to those who govern.

By contrast, limitations on government power have a natural constituency for citizens and social groups when the interests of government are regarded as separate from those of significant social groups. The simple example here would be the popularity of limited government to a population that has been recently been occupied by an alien political regime. For the same reasons, states which govern complex and plural societies will have a much more difficult time convincing citizens that the government will instinctively serve the interests of constituent social groups. The larger the number of groups and the more diverse the values and interests of groups within the boundaries of a political state, the more likely will be a consensus that limits on governmental power to punish serve the common good.

This simple hypothesis can help to explain the relative popularity of limits on government power to punish both cross-section ally and over time. Those nations that encourage complexity and diversity also embrace limits on the exercise of governmental power generally, and punishment power specifically. The theocratic regimes of Islam are notoriously inhospitable to constitutional limits on government because the apparatus of state power is regarded as the faithful servant of a single dominant social group. In totalitarian states, on the other hand, limitations on governmental power are unthinkable because social groups are regarded as the faithful servants of the state.

Trends over time in state and society provide some reason for hope, but not without cautionary counter-trends. Those areas of the world where pluralism and complexity are encouraged have become the breeding ground for domestic and international limits on government. The European community and the British Commonwealth nations are examples of political development in the direction of constitutionally limited regimes. Globalization and multinational economic organizations favor the development of limited government. But the march of history has not been inevitably in that direction. Totalitarian regimes were a twentieth-century development that often succeeded simpler social frameworks, and there are also strong theocratic trends in some areas of the world that run counter to theories of inevitable liberalization.

6. Penal Restraint And The Human Rights Agenda

In one key respect, the punishment of criminals is not a frontier issue for consideration of the obligation of the state to its citizens. Criminal justice is not the area where governments can be expected to innovate in the extension of opportunities and entitlements to citizens. Such innovations will usually first be extended to dependent populations with much higher social reputations than criminals—the elderly, children, and to those handicapped through no fault of their own. The strategic role of the criminal offender is in defining the absolute minimum obligation of state to citizen, so that adequate provisions for prisoners is a defensive necessity. Assuring the human dignity of the murderer and the rapist is not a strategy for expanding the entitlements of schoolchildren and senior citizens; instead it is a strategy to prevent the erosion of citizen claims against government, to prevent regressions applied to the least popular of dependent populations which might thereafter be applied more broadly.

The defensive significance of offenders’ interests in the human rights dynamic has two implications. The first is that the entirety of a human rights agenda can never be exclusively based on offenders’ interests. The defence of prisoners’ rights is always a necessary but never a sufficient condition for a human rights agenda. A second corollary of the defensive strategic position of offenders’ interests is that efforts to protect this particular flank will be much more important in bad times than in good times. In periods characterized by good will and the growth of government concern for citizens, the advocacy for offenders’ rights will be somewhat easier in its own right and less necessary for the protection of other vulnerable populations.

When a social climate turns threatening, the defense of offenders’ interests becomes at once tactically more difficult and strategically more important. It is during eras of bad feeling that the interests of vulnerable populations are most at risk. The path of least resistance to the erosion of individual rights will always be to target those domestic enemies assembled in the criminal justice process.

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