Discretion and Dilemmas
Most officers’ ethical issues relate in some way to their ability to use discretion. These dilemmas are common, and often occur without other officers being present. The elements of police work that often lead to ethical dilemmas are officer discrimination, investigative practices, and the use of force. In resolving an ethical dilemma, one must consult the law, the department’s policy, and one’s own ethical system.
Individual prejudice and attitudes toward groups such as women, homosexuals, or ethnic groups can color one’s decision-making. The occupational culture found in police departments reinforces such prejudices. Discrimination can manifest itself in the differential enforcement of the law or in the withholding of services. Minority groups perceive law enforcement to be fundamentally racist, due probably to more interactions with the police. Interestingly, one group of authors documented the fact that blacks were stopped 1.5 times as often as their population percentage would have indicated, and another group of authors demonstrated that black officers were just as likely as white officers to stop blacks in disproportionate numbers. Once stopped, blacks were no more likely than whites to be treated with disrespect; one’s demeanor (attitude, state of mind) were most likely to correspond to how the officer treated the suspect.
Discrimination can be related to racial profiling, the use of a “profile” to select whom to stop and question. A “pretext stop” is the use of a minor traffic offense to justify stopping an individual, with the expectation that a subsequent search or investigation on the scene will reveal evidence of criminal activity. For instance, if an officer observes a young black male driving an expensive car, he might stop the driver for something minor such as failure to yield right-of-way, or changing lanes without signaling. Once the driver has been stopped, the officer will look through the car, ask the driver questions, check for outstanding warrants, and possibly request permission for a “consent search” of the vehicle. These activities are taking place because the officer believes the driver fits the “profile” of a criminal.
Whether racial profiling should be allowed depends on the ethical system being applied. Utilitarian philosophy would allow profiling if it could be shown that the “end” (successful crime solving) was being met as a result of the “means” of singling out certain individuals. An ethical formalist system would frown upon profiling since individuals are being used as a means to an end, and certainly not everyone would agree to be treated in this manner.
Turning to investigations, we can distinguish between proactive and reactive investigations. Proactive investigations often involve informants and/or undercover work, as the police endeavor to gather evidence. (A reactive investigation occurs after a crime had been reported and the police are seeking the perpetrator). The ethical challenges begin immediately. In a proactive investigation, there is the question of who to investigate, and why. Often, an investigation utilizes deception, which can take many forms. The chapter examines several types of lies: “placebos” are in the best interest of the person being lied to (such as telling the next of kin of a murder victim that the victim didn’t suffer). “Blue lies” are used as a substitute for force, such as to get a suspect to come into the station. Lies can be accepted, tolerated, or deviant. Accepted lies are serving a legitimate purpose, such as in an undercover operation. Tolerated lies are “necessary evils” such as a deception tactic in an interrogation, and a deviant lie is one such as perjury or filing a false affidavit.
Some police operations provide opportunities for crime, inviting a utilitarian argument that they might be creating more harm than good.
Informants are a common source of information and must be evaluated carefully. Officers must take care not to allow their relationships with informants to lure them toward unethical behavior. The chapter lists several examples. A related temptation is “creating” an informant that doesn’t actually exist, to add persuasive information to a search warrant application.
Undercover officers face a number of challenges as well, including the fact that they sometimes must observe or facilitate illegal activity in order to maintain their cover.
Entrapment is another ethical danger zone, and is defined as encouraging or enticing an otherwise innocent person to commit an illegal act. Whether they rise to the level of entrapment or not, activities such as stings raise ethical questions. As with the other examples, utilitarian ethics supports the action if the good to the community outweighs the negative aspects of the operation. Deontological ethics do not support “bad” acts, even if conducted in the pursuit of a “good” end. Marx (1985) and Cohen provided checklists to evaluate the ethics of a deceptive operation.
A reactive investigation occurs after the crime has been discovered. Police must take care not to develop an early prejudice about who they believe is the perpetrator, as this might lead them to misinterpret evidence or even to engage in “noble-cause” corruption. Interrogations are another area where deception is utilized routinely, especially now that physical coercion is not allowed (though it still occurs at times). The author lists deceptions used in interrogations—some legitimate, others not. Some techniques are so effective that they can result in false confessions. The major ethical systems discussed thus far apply to interrogations in a fashion similar to undercover operations: Utilitarianism would not approve of tactics that lead to false confession. Deontological ethics require the officer to behave lawfully in interrogation, and ethical formalism disapproves of tactics that betray the categorical imperative.
Individual prejudice and attitudes toward groups such as women, homosexuals, or ethnic groups can color one’s decision-making. The occupational culture found in police departments reinforces such prejudices. Discrimination can manifest itself in the differential enforcement of the law or in the withholding of services. Minority groups perceive law enforcement to be fundamentally racist, due probably to more interactions with the police. Interestingly, one group of authors documented the fact that blacks were stopped 1.5 times as often as their population percentage would have indicated, and another group of authors demonstrated that black officers were just as likely as white officers to stop blacks in disproportionate numbers. Once stopped, blacks were no more likely than whites to be treated with disrespect; one’s demeanor (attitude, state of mind) were most likely to correspond to how the officer treated the suspect.
Discrimination can be related to racial profiling, the use of a “profile” to select whom to stop and question. A “pretext stop” is the use of a minor traffic offense to justify stopping an individual, with the expectation that a subsequent search or investigation on the scene will reveal evidence of criminal activity. For instance, if an officer observes a young black male driving an expensive car, he might stop the driver for something minor such as failure to yield right-of-way, or changing lanes without signaling. Once the driver has been stopped, the officer will look through the car, ask the driver questions, check for outstanding warrants, and possibly request permission for a “consent search” of the vehicle. These activities are taking place because the officer believes the driver fits the “profile” of a criminal.
Whether racial profiling should be allowed depends on the ethical system being applied. Utilitarian philosophy would allow profiling if it could be shown that the “end” (successful crime solving) was being met as a result of the “means” of singling out certain individuals. An ethical formalist system would frown upon profiling since individuals are being used as a means to an end, and certainly not everyone would agree to be treated in this manner.
Turning to investigations, we can distinguish between proactive and reactive investigations. Proactive investigations often involve informants and/or undercover work, as the police endeavor to gather evidence. (A reactive investigation occurs after a crime had been reported and the police are seeking the perpetrator). The ethical challenges begin immediately. In a proactive investigation, there is the question of who to investigate, and why. Often, an investigation utilizes deception, which can take many forms. The chapter examines several types of lies: “placebos” are in the best interest of the person being lied to (such as telling the next of kin of a murder victim that the victim didn’t suffer). “Blue lies” are used as a substitute for force, such as to get a suspect to come into the station. Lies can be accepted, tolerated, or deviant. Accepted lies are serving a legitimate purpose, such as in an undercover operation. Tolerated lies are “necessary evils” such as a deception tactic in an interrogation, and a deviant lie is one such as perjury or filing a false affidavit.
Some police operations provide opportunities for crime, inviting a utilitarian argument that they might be creating more harm than good.
Informants are a common source of information and must be evaluated carefully. Officers must take care not to allow their relationships with informants to lure them toward unethical behavior. The chapter lists several examples. A related temptation is “creating” an informant that doesn’t actually exist, to add persuasive information to a search warrant application.
Undercover officers face a number of challenges as well, including the fact that they sometimes must observe or facilitate illegal activity in order to maintain their cover.
Entrapment is another ethical danger zone, and is defined as encouraging or enticing an otherwise innocent person to commit an illegal act. Whether they rise to the level of entrapment or not, activities such as stings raise ethical questions. As with the other examples, utilitarian ethics supports the action if the good to the community outweighs the negative aspects of the operation. Deontological ethics do not support “bad” acts, even if conducted in the pursuit of a “good” end. Marx (1985) and Cohen provided checklists to evaluate the ethics of a deceptive operation.
A reactive investigation occurs after the crime has been discovered. Police must take care not to develop an early prejudice about who they believe is the perpetrator, as this might lead them to misinterpret evidence or even to engage in “noble-cause” corruption. Interrogations are another area where deception is utilized routinely, especially now that physical coercion is not allowed (though it still occurs at times). The author lists deceptions used in interrogations—some legitimate, others not. Some techniques are so effective that they can result in false confessions. The major ethical systems discussed thus far apply to interrogations in a fashion similar to undercover operations: Utilitarianism would not approve of tactics that lead to false confession. Deontological ethics require the officer to behave lawfully in interrogation, and ethical formalism disapproves of tactics that betray the categorical imperative.
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Wren v. Unites States 517 v.806 (1996)
http://scholar.google.com/scholar_case?case=3416424011044753637&hl=en&as_sdt=6&as_vis=1&oi=scholarr
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The Use-of-Force Continuum
Office of Justice Programs - Predictors for use of excessive force How do you reduce excessive force? |
http://www.nij.gov/topics/law-enforcement/officer-safety/use-of-force/pages/welcome.aspx_ |
Essay question: (Discussion)
Describe the ethical questions surrounding the use of confidential informants. For the sake of discussion, consider informants who cooperate in an ongoing operation (as opposed to a one-time tipster). What are the controlling officer’s duties? And Your text lists a number of predictors for the use of excessive force. Why are these factors related to excessive force? Are these factors consistent with what you would expect? Explain why or why not. Is there a way of addressing these factors in order to reduce the use of excessive force? |
