Morality and the Law / Edition 1

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Overview

This comprehensive, accessible collection of essays raises compelling questions on morality and the judicial system that are designed to stimulate readers' awareness of the correct way, the moral way for those in criminal justice to conduct themselves. Addressing all participants in the system—lawyers and judges, police and probation officers, victims and the accused—the essays provide readers with a thought-provoking presentation of the many issues surrounding human conflict and the role ethics and fairness play in our criminal justice system. Provides an overview of morality and the law, the Socratic question and the criminal justice practitioner, ethical concerns of a criminal defense attorney and the criminal prosecutor, judicial ethics, victims' vengeance, and the ethical behavior of correctional officers. For individuals interested in social issues and morality.

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Editorial Reviews

From the Publisher

"Persons...possess natural moral rights to life, property and liberty; these rights are not to be transgressed by others either individually or collectively as a state."—John Locke

"To be moral...one must not just act in accordance with duty; one must act for duty's sake. An action is right if it conforms to a moral rule that any agent must follow if he is to act rationally."—Immanuel Kant

"Every free action is produced by the concurrence of two causes; one moral, i.e., the will that determines the act; the other physical, i.e., the power that executes it."—Jean Jacques Rousseau

"This universe is a monster of energy, without beginning or end.... It is nothing vague or wasteful, it does not stretch into infinity...."—Friedrich Nietzsche

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Product Details

  • ISBN-13: 9780139169588
  • Publisher: Prentice Hall
  • Publication date: 7/20/2000
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 159
  • Product dimensions: 6.90 (w) x 9.00 (h) x 0.50 (d)

Read an Excerpt

Preface

Ethics addresses questions of right and wrong, good and bad, virtue and vice. Ethics involves the evaluation of actions and lives, choices and characters. The orientation is toward rational argument—toward the production of reasons supportive of one's position. As argued by Dworkin (1977) when I take a moral position on an issue I involve myself in a distinctive sort of discourse. Many thinkers since the 17th century have sought to find a solid ground upon which to determine the correct system of morals. In this work the terms morals and ethics are used interchangeably.

This is a work on the role of morality in the various components of the criminal justice system. Specifically the role of defense counsel and prosecutor, the role of the police, the court, corrections, probation and parole officers, and the victims of crimes themselves as well as related issues.

Though defense counsel and the prosecutor are both bound by the Code of Professional Responsibility, they have significantly different roles and functions, and their ethical problems vary accordingly. The obligations of the defense counsel derives from the importance within the adversarial system of confidentiality between attorney and client, the defendant's presumption of innocence and burden of proof, the constitutional right to counsel, and the client's constitutional privilege against self-incrimination. On the other hand, we have the prosecutor who does not represent a private client, and is therefore, not affected by these considerations in the same manner.

As an example, the defense attorney may withhold evidence: there is nothing unethical in keeping a guilty defendant off thestand, and putting the government to its proof. However, it does not follow that the prosecutor is also privileged to withhold or suppress material evidence or that there is something essentially unfair in this double standard. Is it ethical for a defense attorney to make a prosecution witness appear to be inaccurate or untruthful under cross-examination even when the defense attorney knows that the witness is testifying accurately and truthfully? As indicated by the late Chief Justice Earl Warren, "the defense is entitled to 'put the government to its proof' and to 'test the truth of the prosecution's case."' Neither of these rationales justify a prosecutor obtaining a conviction by making a defense witness appear to be lying when the prosecutor knows that witnesses are testifying truthfully.

A prosecutor has enormous and unique discretion in defining the particular crime, affecting the punishment, and even in deciding whether or not to prosecute. This discretion explains the differences in prosecutorial ethics and defense counsel ethics to be discussed in this work.

We examine the role of the police and their use of police powers. The role of the police is to uphold the law. Police possess the power to use their authority, force, and discretion. They have the choice to arrest or not to arrest, to mediate or to charge, along with their choice to use deadly force. The police are held to the highest of standards and are supposed to be provided with standards of ethics that guide them in their work. Is this a good description of the police?

To what standards are correctional officers and probation and parole officers held? Here, too, there can be abuses of power and authority. The uniform is supposed to bestow the authority of rational and reasonable control and not be abused.

Important to the content of this work are the ethical obligations of victims not to seek private vengeance. It is the obligation of the prosecuting attorney to ensure that victims in pressing charges make correct choices and not seek any vengeance. In a civilized society crime victims and their families are expected to delegate revenge for criminal wrongs to a system of legal, rather than personal justice.

In the classroom, university professors like to upset their students by pointing out that there are no universally disapproved modes of conduct. Even a killing that we would consider murder is acceptable in some societies. There are those acts which once were or now are attacked as immoral. As indicated by Ryan in his chapter, "... moral education ... should be a matter of exposure to the actions, the thoughts, and tales about virtuous people."

This work presents a full discussion of issues of morality/ethics and the criminal justice system, and is not a work best left for philosophers and philosophy classes to learn. This is a solid work that deals with issues that bring to light how the criminal justice systems works with some suggestions for change.

Roslyn Muraskin

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Table of Contents

1. Overview of Morality and the Law.

2. Doing Right, Being Good: The Socratic Question and the Criminal Justice Practitioner.

3. Deviance as Crime, Sin or Poor Taste.

4. Ethical Concerns of a Criminal Defense Attorney.

5. The Ethical Obligations of the Criminal Prosecutor.

6. Prosecuting for Safety's Sake.

7. Judicial Ethics.

8. Noble Corruption—Police Perjury—What Should We Do?

9. Victims—Private Vengeance.

10. Probation and Parole Officers: Ethical Behavior.

11. The Ethics of the Death Penalty.

12. Corrections/Punishment: Ethical Behavior of Correctional Officers.

13. Conclusions.

Index.

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Preface

Preface

Ethics addresses questions of right and wrong, good and bad, virtue and vice. Ethics involves the evaluation of actions and lives, choices and characters. The orientation is toward rational argument—toward the production of reasons supportive of one's position. As argued by Dworkin (1977) when I take a moral position on an issue I involve myself in a distinctive sort of discourse. Many thinkers since the 17th century have sought to find a solid ground upon which to determine the correct system of morals. In this work the terms morals and ethics are used interchangeably.

This is a work on the role of morality in the various components of the criminal justice system. Specifically the role of defense counsel and prosecutor, the role of the police, the court, corrections, probation and parole officers, and the victims of crimes themselves as well as related issues.

Though defense counsel and the prosecutor are both bound by the Code of Professional Responsibility, they have significantly different roles and functions, and their ethical problems vary accordingly. The obligations of the defense counsel derives from the importance within the adversarial system of confidentiality between attorney and client, the defendant's presumption of innocence and burden of proof, the constitutional right to counsel, and the client's constitutional privilege against self-incrimination. On the other hand, we have the prosecutor who does not represent a private client, and is therefore, not affected by these considerations in the same manner.

As an example, the defense attorney may withhold evidence: there is nothing unethical in keeping a guilty defendant off the stand, and putting the government to its proof. However, it does not follow that the prosecutor is also privileged to withhold or suppress material evidence or that there is something essentially unfair in this double standard.

Is it ethical for a defense attorney to make a prosecution witness appear to be inaccurate or untruthful under cross-examination even when the defense attorney knows that the witness is testifying accurately and truthfully? As indicated by the late Chief Justice Earl Warren, "the defense is entitled to 'put the government to its proof' and to 'test the truth of the prosecution's case."' Neither of these rationales justify a prosecutor obtaining a conviction by making a defense witness appear to be lying when the prosecutor knows that witnesses are testifying truthfully.

A prosecutor has enormous and unique discretion in defining the particular crime, affecting the punishment, and even in deciding whether or not to prosecute. This discretion explains the differences in prosecutorial ethics and defense counsel ethics to be discussed in this work.

We examine the role of the police and their use of police powers. The role of the police is to uphold the law. Police possess the power to use their authority, force, and discretion. They have the choice to arrest or not to arrest, to mediate or to charge, along with their choice to use deadly force. The police are held to the highest of standards and are supposed to be provided with standards of ethics that guide them in their work. Is this a good description of the police?

To what standards are correctional officers and probation and parole officers held? Here, too, there can be abuses of power and authority. The uniform is supposed to bestow the authority of rational and reasonable control and not be abused.

Important to the content of this work are the ethical obligations of victims not to seek private vengeance. It is the obligation of the prosecuting attorney to ensure that victims in pressing charges make correct choices and not seek any vengeance. In a civilized society crime victims and their families are expected to delegate revenge for criminal wrongs to a system of legal, rather than personal justice.

In the classroom, university professors like to upset their students by pointing out that there are no universally disapproved modes of conduct. Even a killing that we would consider murder is acceptable in some societies. There are those acts which once were or now are attacked as immoral. As indicated by Ryan in his chapter, "... moral education ... should be a matter of exposure to the actions, the thoughts, and tales about virtuous people."

This work presents a full discussion of issues of morality/ethics and the criminal justice system, and is not a work best left for philosophers and philosophy classes to learn. This is a solid work that deals with issues that bring to light how the criminal justice systems works with some suggestions for change.

Roslyn Muraskin

Read More Show Less

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