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Ch. 10-14 Review "Ethical Dilemmas and Decisions in Criminal Justice" by J. Pollock

Public Perception of Lawyers

- Public has little confidence in lawyers ability to live up to ideals of equity, fairness and justice

Plato & Aristotle Condemned

- Advocate's ability to make the truth appear false and the guilty appear innocent; lawyer's ability to argue either side of an issue raises level of distrust

Model Code of Professional Responsibility

- Developed by American Bar Association
- Impartiality & diligence, No political activity, No personal favors
1969- first of its kind; Ethical standards for lawyer
1983- Model Rules of Professional Conduct
1.) Maintain integrity & competence
2.) Make legal counsel available
3.) Assist in preventing unauthorized practice of law
4.) Preserve confidence & secrets of clients
5.) Exercise independent judgment on behalf of client
6.) Represent competently
7.) Represent zealously w/in bounds of law
8.) Assist in improving legal system

Attorney-Client Relationship

1) Legal Agent
2) Special Relationship
3) Moral Agent

Legal Agent

- Defines the lawyer as neither moral nor immoral, but merely a tool.

Special Relationship

- Lawyer places loyalty to client above all other consideration

Moral Agent

- Lawyer must adhere to own moral code

Prosecutors Discretion to Charge

1) Decision must be based on probable cause
2) One of most important decisions in criminal justice process
3) May be influenced by politics
4) Is especially sensitive in capital cases

Conflicts of Interest

- Attorneys must not represent
1) Clients whose interests' conflict with those of the attorney
2) Clients with opposing interests

Plea Bargaining

- Subverts due process
- But makes sense if:
1) Goals of the system are crime control or bureaucratic efficiency
2) Considered by most to be efficient and probably inevitable, if not exactly "right"

Media Relations

1) No out-of-court statements should be given that would materially prejudice a proceeding
2) Statements regarding general nature of charge and public record information are permissible

Expert Witness, Independence

1) May provide testimony based on principles accepted in the scientific community
2) Lose credibility, gain rep. as "hired gun" by always appearing on one side of an issue

Prosecutorial Misconduct

1) Improper communication with media
2) Improper communication with the defendant
3) Ex parte communication with the judge
4) Failure to correct false testimony
5) Failure to disclose evidence
6) Misuse or manufacture of false evidence

Judicial Processing

1) Ideal Model
2) The "Confidence Game"
3) Bureaucratic Justice
4) The Wedding Cake Model

Ideal Model

1) Two equal advocates, with a neutral judge, arrive at the truth
2) American justice system is fair and unbiased

The "Confidence Game"

- Prosecutor & defense counsel appear to be something they are not
1) Advocacy pretence
2) Individualized justice a pretence

Bureaucratic Justice

- Used to describe the courts as administrators
1) Bureaucratic efficiency supplants goal of justice
2) Presumption of guilt (plea bargaining) fast food lawyer: speedy disposition of cases

The Wedding Cake Model

- Shows the criminal justice system in layers
1) The few "serious" cases are the top layer
2) Bottom of the cake represents the majority of cases

Judicial Discretion

1) Interpretation of the law
2) Sentencing

Interpretation of the Law

1) Ruling on admissibility of evidence
2) Ruling on objections during trial
3) Writing critical jury instructions
4) May oblige invoking exclusionary rule: can't convict based on tainted evidence; illegally obtained evidence can't be used (is excluded) at trial. Discourage police from breaking law

Sentencing

1) Raises unique ethical issues.
2) Is there a single acceptable punishment for a certain type of offense or offender?
3) Sentencing inconsistencies occur [between judges in same community]
4) The Federal Sentencing Guidelines reduced discretion of judges in sentencing

Appeals

1) Most routinely used check on misuse of judicial discretion
2) Request to a higher court for a review of a case

Federal Sentencing Guidelines

1) Written by Congress
2) Requires judges to impose specific sentences unless mitigating or aggravating factors exist in the case
3) Detailed rules judges follow when sentencing defendants in federal courts; this type of crime = this type of punishment:

Judicial Misconduct

Rare, but occurs
1) Neutrality is questioned when judges voice strong opinions on issues or cases.
2) May recuse self if has vested interest in the issue or one of the parties involved
3) Often the mere appearance of impropriety is sufficient to warrant recusal.
4) Lack of courtroom decorum could, in extreme cases, represent judicial misconduct

Operation Greylord in Chicago

- Attorneys and judges convicted of bribery

Judicial Independence

- Judiciary is separate from executive/legislative branch

Ethical Formalism

- "No rate of preventable errors that destroy people's lives and destroy the lives of those close to them is acceptable." (Law professor)

Utilitarianism

- "Is it better for 100,000 guilty men to walk free rather than have one innocent man convicted? The cost-benefit policy answer is no." (Prosecutor)

Retribution

- Punishment is an end in itself & should be balanced to the harm caused is called
- Revenge, balance, salvation; focus on action in present

Bentham and Beccaria

- Crime as rational and having freewill
- Saw criminals as rational beings with free will; thus, they saw punishment as a deterrent

The Positivist School

- Rise to idea that all criminal acts were symptoms of an underlying disorder

Determinate Sentencing

- Fixed sentence based on crime; focus on seriousness of offense

Indeterminate Sentencing

- Tailors sentence to individual offender; @ discretion of parole board

Specific Deterrence

- Punish the individual to discourage from committing more crime
1) Prevent a particular offender from deciding to commit another offense
2) Teaching through punishment; focus on offender

General Deterrence

- Punished to discourage future crime by others
1) Prevent others in general from deciding to engage in wrongful behavior
2) Teaching by example; focus on society as a whole

Three Strikes Laws

- Laws that punish habitual offenders
- Laws that imposes long sentences to repeat offenders; 3 felonies in this case
- Sentencing codes requiring offender receive life sentence after a third felony

Stigmatizing Shaming

- Offenders are cast aside and made to feel shameful
- Rejects the individual and may have negative effects.

Reintegrative Shaming

- Rejects only the person's behavior, thus creating a healthier relationship between the individual and his or her community

Restorative Justice

- Ethics of Care; Rehabilitative- connection of victim, offender & society

Restorative Justice Methods

1) Sentencing circles or healing circles:
2) Victim-offender mediation
3) Community reparative boards
4) Victim education

American Correctional Association's Code of Ethics

...

Treatment Professionals

- Must balance sensitivity & treatment
1) Educators
2) Counselors
3) Psychologists

Goal of Treatment Pros

1) Goal to help client
2) Goal inconsistent with punitive prison & jail environment
5) Treatment considered beneficial for society and individual offender

Dilemma of Treatment Pros.

1) Dilemma of treatment programs deciding who is to participate
2) Psychiatrists feel they are being used for social control not treatment
3) Treatment considered beneficial for society and individual offender

Private Corrections

- Built by private corporations, then leased to the state or run by the corporation, which bills the state for the service.

Private Corrections Pros

- Combination of profit & corrections may lead to abuse of inmates
1) Greater efficiency
2) Reduced operational costs
3) Less red tape
4) Economies of scale

Private Corrections Cons

1) Abuses of the bidding process
2) Limited economic benefit to local communities
3) Profit motive may result in substandard performance
4) Low employee salaries

Whistleblowers in Corrections

1) May be serious consequences for whistleblowers.
2) Loyalty—esprit de corps—is one reason officers do not report wrongdoing
3) Unwillingness to violate a code of silence is another
4) Term whistleblower has negative connotations, actually describes someone responding to higher ethical code than those whose behavior is exposed

Pluralistic Ignorance

- Vocal minority reinforce subcultural norms; when a few correctional officers go out & say, "This is what we are."

Discretion of Correctional Officers

- Limited by court decisions

Examples of Community Corrections

1) Halfway houses
2) Work release centers
3) Probation
4) Parole
5) Electronic monitoring

Intermediate Sanctions

- Alternatives to prison; including Community Correction

Community Corrections

- Model of corrections based on goal of reintegrating offender into the community

Probation & Parole Officer Subculture

1) Cynicism
2) Lethargy
3) Individualism

Cynicism

- Believe clients are inept, deviant, irredeemable & coworkers w/ a positive attitude are naive
- Belief that all people are motivated by selfishness

Lethargy

- Minimal work output supported by view that officers are overworked & underpaid
- Indifference; sluggishness of body or mind

Individualism

- Each caseworker runs own load w/out assistance or interference
- People should take responsibility for own life, & if they fail others should not be expected to help them

Souryal's Types of Probation and Parole Officers

1) Punitive law enforcer
2) Welfare/therapeutic practitioners
3) Passive time-servers
4) The combined model

Punitive Law Enforcers

- Abuse authority, use illegal threats, violate due process
- Officer who sees role as one of enforcer, enforces every rule, and goes "by the book"

Welfare/Therapeutic Practitioners

- Infringe on clients rights of privacy; client may not want "help"

Passive Time-Servers

- Not performing duties associated with role thereby violating ethics

The Combined Model

...

Net Widening

- Concept that some intermediate sanctions are used for those who would not receive any formal correctional sanction
- Offenders are placed in novel programs not designed for that type of offender. Consequence is; some in the program receive more severe sanctions than if the new program remained unavailable

Ethical Issue for Defense Attorney

1) Protect due process rights of clients
2) Often in position of defending clients they know are guilty
3) Must assist clients without regard for personal preference or interest
4) People with unpopular causes and guilty individuals still deserve counsel
5) It is the ethical duty of an attorney to provide such counsel

Atty. Responsibility/Cannot Abandon Client unless:

1) The legal action is for harassment or malicious purposes,
2) Continued employment will result in violation of a disciplinary rule,
3) Discharged by a client, or
4) A mental or physical condition renders effective counsel impossible

Attorney-Client Privilege

- Prevents compelling attorneys to disclose confidential information about clients

Exceptions that permit revealing confidences:

1) When clients consent
2) When required by law or a court
3) Defend against an accusation of wrongful conduct
4) Prevent clients from committing crime or fraud
5) Prevent, mitigate, or rectify financial injury to another

Retribution

- Revenge, eye for an eye
- Focus on present

Incapacitation

- States offenders must be held so they commit no more crime
- Take away ability to commit another crime

Deterrence

- Utilitarianism
- Set example, good for the majority

Rehabilitation

- Ethics of Care
- Change the behavior

Reform

- Ethics of Virtue & Utilitarianism

Death Penalty Morality

- Depends on the Ethical system
- Retentionists say Yes
- Abolitionists say No
1) Ethics of Care- No; restorative justice is goal, rehabilitation + connection of victim, offender & society
2) Utilitarianism- Maybe; if as effective deterrent and good for whole society
3) Ethical formalism- Maybe; balance between crime & punishment, proportional harm
4) Religious Ethics- Maybe; subjective, "eye for an eye" or "turn the other cheek"
5) Rawlsian Ethics-

Ancient Greek Philosophers

- Plato & Aristotle wrote about public distrust of lawyers

Positivists

- Saw criminal acts as symptoms of underlying pathology

Bureaucratic Justice Model of Judicial Processing

- Prioritizes efficiency over truth

Overcharging

- Not considered prosecutorial misconduct

2 Major Areas of Judicial Discretion

1) Sentencing
2) Interpretation of Law

Ethical Concern w/ Expert Witnesses

- Whether they are really Independent

Appeals

- Most routinely used check of judicial discretion

Probable Cause

- Standard by which prosecutors should make decisions about pursuing charges

"Fast Food Lawyer"

- Lawyers who take on a high volume of cases and process them speedily in order to survive financially.

Primary Duty of a Defense Attorney

- To protect the due process rights of the defendant

Retribution

- Rationale for punishment associated w/the offender achieving salvation

Utilitarianism

- Ethical system to support preventing crime using deterrence

Ethical Argument Against Private Corrections

- Combining profit & corrections may lead to abuse of inmates

Ethics of Care

- Ethical system would only support punishments that seek to balance the needs of the offender, the victim, and the community

Incapacitation

- Predicting which offenders will not commit future crimes upon release & which will is the greatest difficulty in which type of rationale for punishment

Rawlsian Ethics

- Ethical system most likely to oppose punishing offenders who are poor who commit crimes against the rich

Sensitivity and Treatment

- Treatment professionals in corrections must balance which two competing interests

Pluralistic Ignorance

- Vocal minority shaping the perception of subcultural values

Discretion

- Court decisions have limited what aspect of a correctional officer's duty

Uneasy Truce

- Describes the general relationship between correctional officers and inmates
- The way guards & inmates keep the peace

Probable Cause

- Standards prosecutors use to determine whether to file charges

Treatment

- Correctional terminology, anything used to induce behavioral change

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