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Law enforcement officers are authorized to exercise discretion consistently throughout the discharge of their law enforcement duties. This holds true at all levels of the hierarchical command structure, but particularly among the front line and least senior personnel. When exercising discretion, individual officers may be confronted with challenging and complex situations that require immediate action which neither academy training nor departmental policy effectively covers.
Because Law enforcement officers are also required to make exigent decisions absent any review with a superior or consultation of policy, law enforcement should refer to a normative ethical framework to assist in problem solving. In modern day law enforcement, increased litigation pertaining to alleged misconduct, the erosion of trust between the public and police, as well as the fomenting of questionable conduct that results from consistent stress and other job related pressures among police officers, demands a holistic and enhanced training regimen that includes ethical moral theory found in utilitarianism and deontology to inform their work.
Utilitarianism and Deontological Ethics
Many researchers for the past two decades have focused on different fields of studies relative to professional ethics with the select aim of highlighting the moral imperatives associated with each. Environmental ethics, medical ethics, as well as other fields such as business ethics are some of the areas that have received much more thorough examinations in academia. The criminal justice field in general, has been much less inclined or more appropriately, too slow in following suit. Ethics instruction really began in earnest in the mid-1990s due to the rapidly evolving changes to the field of law enforcement and because social justice movements as well as reform minded individuals have seized upon and highlighted a plethora of ethical concerns and challenges in the field. The majority of ethical issues faced in the criminal justice system as it relates to law enforcement focus on the conditions and decision making processes pertaining to police discretion and the use of force. In these particular areas, understanding deontological and utilitarianism moral theories can be instructive and offer guidance in terms of how law enforcement personnel are expected to discharge their duties.
Within the criminal justice system, it is clear that the use of force is inherently within the purview of the law enforcement. Police officers in all states are granted authority to use force to accomplish lawful objectives, however, employing force while at the same time being expected to engage in strategies that prevent harm or injury is, paradoxically, a significant ethical issue in law enforcement today. The standards of conduct and behavior relative to the use of force are viewed very differently depending on your orientation to the issue. That is to say, if one is peripherally associated with the field or is part of a majority group that simply does not have as much direct formal police contact as other groups, there is broader trust and a general willingness to allow the system to operate with broad discretion in the interest promoting the greater good for all. In essence, the group implicitly authorizes one individual, the front line officer, to make collective moral judgments on behalf of all citizens. Because law enforcement are held to a higher standard than any other profession, the greater the responsibility and pressure for an individual officer to be correct in his decision making. It should be noted that the involves many factors, but as the Supreme Court in Graham v. Connor (1989) asserted that a “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” In cannot be understated how law enforcement has a far greater responsibility than all other professions in terms of decision making. It is not incidental decision making, rather, it is ethical decision making.
Making ethical choices demands that one makes distinctions between competing options which also considers possible outcomes. In law enforcement, this occurs quickly, but when law enforcement engages in this process of evaluating and choosing among alternatives, the officer must consider and eliminate perceived unethical options. This must be deliberate and done with intentionality. Taking this step is critical in terms of establishing law enforcement’s commitment to understanding theoretical problems and the nexus between ethical theory and morally correct decision making (Conway 2013).
One might consider then that it is right for law enforcement officials to begin by asking a general question relating to the nature of justice. According to Cassidy (2006), various existing theories that address the issue of justice deal with a range of social issues like egalitarianism, human rights, and the sharing and distribution of wealth. Some theorists have used their studies to indicate that justice is considered an extension of ethics, however, this is not a seamless as it appears on the surface.
If justice is thought of as society’s response to proscribed law, and ethics are the norms accepted by society, one can see where some of subjectivity between the two theoretical disciplines may emerge and why this contributes to the ever evolving discussions regarding law enforcement and ethics.
The theory that people learn about how to differentiate what is right and wrong is identified as normative ethics. Therefore, it is worth noting that when interacting with normative ethical theorists such as found in the social sciences and criminal justice fields, they will consider whether a particular issue has some philosophical underpinnings that address right and wrong. The realization of the underlying principles of right and wrong then becomes the cornerstone of moral judgment. While it may be simple to say that egregious acts such as sexual assault, murder, or even lying are wrongful acts, an ethical theorist will be interested in establishing the link that fundamentally concludes that sexual assault, murder, and lying are indeed wrong. According to Singer (2000), morally righteous actions have much in common when examined through an ethical lens. This also was true for Socrates when he deliberated on the meaning of justice, since merely portraying examples related to justice were not the same as drilling down to understand the intrinsic characteristics of the action itself.
Generally speaking, Utilitarianism posits that the morally right action is the action which produces the most good. Further, the right action is also understood almost entirely in terms of the outcomes or consequences thusly, is considered a form of consequentialism. This ethical theory is grounded in the belief that it is only the final product of an action that can be used to judge its morality.
Jeremy Bentham and John Mill were responsible for having engaged in some of the more notable accounts of utilitarianism (Lechner 2011). Mill presented that there were some end goals that influenced every action that a person committed. Therefore, consequentialism is guided by the understanding that moral actions are responsible for producing good things, unlike immoral actions which can, and likely do, produce bad results (Conway). As shown in this argument, they relate to what law enforcement encounters as part of discharging their duties as part of the criminal justice system. Following moral reasoning, law enforcement officials are likely to conclude that various actions like murder and theft are wrong because they produce harmful results and violate proscribed law (Conway). However, as for actions involving charity and benevolence, the same law enforcement people will obviously view these as positive and constructive activities as they lead to a valuable and positive outcome (Lechner). Lechner further states that the law enforcement consequentialist is likely to say that consequences guide the morality of their actions, and moral actions can be reasonably linked to good outcomes while bad consequences likely result from immoral actions.
During the identification of right and wrong, good and bad, a law enforcement officer should always be interested in defining what the good and bad consequences might result in when making such a determination. It is for this reason that we identify that people have different views on what the consequences of a certain actions should be and this may differ radically from law enforcement and even proscribed law (Conway). It is these wide ranging views that is critical for law enforcement to consider when assessing a group’s perception of what is reasonable or what is ethical, and apply this to their interaction with an offender if part of that group.
According to Xu and Ma (2016), the establishment of correct answers for these problems allows the utilitarian law enforcement officer to implement a type of consequentialist moral theory into his or her approach and work.
Examining different aspects of the utilitarianism theory assists with the development of moral decision making in law enforcement. Bentham and Mill’s concepts of utilitarianism are considered as the prominent ones, and they are commonly identified as hedonistic utilitarianism. Mill argues that happiness is the common thing that every person seeks. People, by nature, tend to find the happiness that is characterized by pleasure. Happiness is therefore linked with pleasure as well as lack of pain, while conversely, being unhappy is related to pain which withholds pleasure. In the context of law enforcement responsivity, determining how to best meet proscriptive law and balance that with what is deemed to be acceptable in terms of societal norms, is the very crux of the issue.
Utilitarianism can also be instructive in terms of deciding whether a specific act is considered to be ethical or unethical, by first trying first determine whether it is the offender or the victim whose happiness should be considered. For law enforcement to find a suitable way to deal with this situation, it is essential to examine all aspects of the activity or action. Law enforcement in the context of utilitarianism, will have to compare the weight of the action that causes happiness for the larger group of people and what action produced the most good (Conway). In essence, if the action causes more pain than the pleasure that is derived from it, then one might conclude that the most correct ethical action is that which is associated with the right amount of pain (Conway & Gawronski 2013). For instance, a person might be engaged in theft as a way to produce money to survive. These actions satisfy a basic instinctive drive to survive and while the actor himself may not necessarily enjoy the act, must default to the thinking that his circumstances are what dictate his behavior. In the example, the victim certainly derives no pleasure from the transaction and may have even been placed in fear. The pleasure/pain index is notably and distinctly different for each individual and herein lies the ethical concern. The examination of this pleasure and pain construct drives the ethical determination and decision making.
Perhaps one ethical solution would be to make the victim whole by utilizing a restorative justice framework, returning the stolen goods to the owner, and then connecting the thief to some supportive services that can assist with meeting some basic needs. In the end this might be the outcome that disrupts the cycle of offending and which may then influence societal values in terms of what is deemed ethical or unethical. Is survival a crime? Under the utilitarian/consequentialism paradigm, the final examination should revolve around the end result of law enforcement activities and what had been identified as the desired outcome. Further, embracing utilitarian principles in law enforcement may help produce the long term results of happiness and good outcomes for the largest portion of the community, but clearly law enforcement activities will have different outcomes for different groups.
Deontological moral theory posits that the rightness or wrongness of actions does not depend on their consequences, but rather whether or not they fulfill our duty (Lechner 2011). The categorical imperative espoused by Immanuel Kant is the central philosophical underpinning of deontology and emphasizes that there is a supreme principle of morality, and further, that the end result is not of primary importance (Forschler 2013). So in essence, a deontological decision assesses the morality of one’s action and disregards the consequences.
In deontology, these duties are absolute and must be applied to everyone equally (Xu & Ma 2016). Taking it a step further, the ideal of duty is of paramount importance to law enforcement officers who are naturally bound by the law and their oath to perform their duty. Essentially, law enforcement is required to execute their duty under all circumstances, regardless of whether they want to or not. As a result, this requirement is without equivocation and naturally becomes an imperative.
For example, if a person believes that lying is wrong, then under no circumstances is it permissible to lie. In a police context, an officer comes across a group of juveniles throwing snowballs at cars and decides to exercise discretion and let them off with a warning. He must return later after the same group again threw snowballs forcing one car off the road resulting a fatality. The decision to let the youth off with a warning was based in deontology. Despite the horrific outcome, one could argue that the officer’s motivations were appropriate and just, and thusly, moral, despite the outcomes in terms of human welfare. Similarly, one might also reason that it is the moral imperative or duty of a police officer to issue tickets to speeding vehicles even though the tickets were issued at 3 a.m. and no other cars or pedestrians were affected and a warning could have a viable option.
Kant believed that everything that a person does is born out of good will. Lechner further tells us that while a person’s action might be morally correct, it is possible that others perceive the act to be morally wrong because it was not influenced by goodwill. Kant also brings into focus that people do certain things because they are driven by the morality of the categorical imperative and not the consequences that might follow (Conway). A person’s categorical imperative is what commands that person into action or, avoid an action because of its consequences.
In contrast, we have the hypothetical imperative which has the “if” command in helping one weigh his or her choices (Conway & Gawronski 2013). In such a case, if someone wants to stay away from being arrested, then they should not involve themselves in criminal conduct. Based on these concepts, it is evident that the categorical imperative seems to call for acting unconditionally, while the hypothetical imperative demonstrates the potential consequences of personal behavior and choice, particularly as it relates to breaking the law.
Utilitarian ethics essentially implies that no moral act, rule or law is, in and of itself, right or wrong. Rather, determining the right or wrong nature of an act is exclusively based on the overall non-moral good achieved as a result of following the act, rule, or law (Schuessler 2015). In a practical law enforcement application, utilitarianism may not align with the goals and aims of law enforcement agency because the ethical theory might justify morally appropriate acts which are in fact, indisputably immoral. For example, utilitarianism can be used to justify harsh punishment of an innocent man or the enslaving of a small group of people because in the end, the act itself produces the maximum benefit of consequences to the larger group (Schuessler). Despite the result for the greatest number of people, these acts cannot be considered anything but immoral, but are provided for in utilitarian thinking (Lechner).
Deontological ethics asserts that duty must be done for duty’s sake. The rightness or wrongness of an act or rule is, at least in part, a matter of the intrinsic moral features of that specific kind of act or rule (Schuessler). For example, acts of lying, theft, or murder are intrinsically wrong and therefore, Deontological theory would assert that we have a moral duty not to engage in these acts. However, it does not mean that the consequences of those acts are not relevant in terms of assessing the acts.
In essence, consequences help us determine what our duty is, but consequences alone, do not define the duty, rather, it only helps law enforcement align their actions with they know their duty to already be (Schuessler).
In the final analysis, law enforcement should aim to empower individuals, promote humanism, and support the idea that the right thing to do is the only thing to do (De Schrijver & Maesschalck 2015). While neither ethical theory is without its own deficits, law enforcement would be well served to teach all members the basic fundamental underpinnings of utilitarian and deontological ethical theory to inform their approach. This would be instrumental in helping guide law enforcement towards meeting the universal values of honesty, integrity, compassion, and lead to more ethical behavior and ethical decision making.
- Cassidy, R. M. (2006). Character and context: What virtue theory can teach us about a prosecutor’s ethical duty to “seek justice”. Notre Dame Law Review, 82(2), 635.
- Conway, P., & Gawronski, B. (2013). Deontological and utilitarian inclinations in moral decision making: a process dissociation approach. Journal of personality and social psychology, 104(2), 216.
- Conway, P. (2013). The Process Dissociation of Moral Judgments: Clarifying the Psychology of Deontology and Utilitarianism. Retrieved from https://ir.lib.uwo.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2830&context=etd
- De Schrijver, A., & Maesschalck, J. (2015). The development of moral reasoning skills in police recruits. Policing, 38(1), 102-116. Retrieved from https://search-proquest-com.ezproxy2.apus.edu/docview/1660588291?accountid=8289
- Forschler, S. (2013). Two dogmas of kantian ethics. Journal of Value Inquiry, 47(3), 255-269. doi:http://dx.doi.org.ezproxy1.apus.edu/10.1007/s10790-013-9381-1
- Graham v. Connor, 490 U.S. 386 (1989)
- Lechner, S. (2011). Kantian ethics. Kantian Review, 16(1), 141. doi:10.1017/S1369415410000129
- Schuessler, R. (2015). Violating strict deontological constraints: Excuse or pardon? Criminal Law and Philosophy, 9(4), 587-601. doi:http://dx.doi.org.ezproxy2.apus.edu/10.1007/s11572-013-9278-x
- Singer, M. (2000). Ethical and fair work behavior: A normative-empirical dialogue concerning ethics and justice. Journal of Business Ethics 28(3), 187-209.
- Xu, Z. X., & Ma, H. K. (2016). How can a deontological decision lead to moral behavior? the moderating role of moral identity. Journal of Business Ethics, 137(3), 537-549. doi:http://dx.doi.org.ezproxy2.apus.edu/10.1007/s10551-015-2576-6
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