INTRODUCTION

Not only did the events of September 11, 2001 (henceforth 9/11) have a profound effect on our national and international psyches, but they also prompted a radical reconsideration and even revision of seemingly well-established moral responses. The racial profiling by police that had been recently condemned by public opinion and official inquiry was often revived with a different attitude and outcome when the perpetrators of the 9/11 attacks were identified. Governmental surveillance that would have been considered incompatible with a free society was suddenly and overwhelmingly enshrined in what, without a trace of irony, was called the USA PATRIOT Act. Even the revulsion against torture that seemingly required no further justification has been reviewed and reconstructed in official memoranda and public debate.

This was not, of course, the first time that some of these issues had been broached. National security has a long history of debate associated with it. The Korematsu (1944) decision of World War II, sanctioning the internment of large numbers of Japanese Americans, was only one of the more notorious occasions on which such debate occurred. Other incidents during the Vietnam War (e.g., the publication of the Pentagon Papers and violation of Daniel Ellsberg's privacy rights) excited similar concerns. Secret CIA manuals prepared for Latin American military use crossed the public radar screen in the late 1980s and early 1990s.

A person who pleads guilty to or is convicted of a crime normally faces punishment. Should this be the case and, if so, why? Responding to these and some related questions will be our central concerns in this chapter. Of all the ethical issues in the criminal justice system, punishment – at least as a general response to wrongdoing – is the topic that is most thoroughly explored. But it is also riven by deep and persisting disagreements, disagreements that go to the heart of ethical theory. Although we will address some of them, many will have to be put to one side. There is an extensive and rich literature that can be consulted. Our first stop will be to review the nature of punishment – what makes what one person imposes on another a punishment rather than, say, an assault, and how punishment differs from other, similar impositions. We will then briefly review some of the classical debates concerning its justification. And finally we will ask: Are there legitimate alternatives to punishment for crime?

What is punishment?

Although the primary context in which we will be discussing punishment is that of the criminal justice system, it is important to remember that punishment is not limited to and in fact preexists the criminal justice system.

The jury is an ancient institution. It was, after all, a jury that in 399 BCE (by a vote of 281 out of 501) sentenced Socrates to death for corrupting the youth of Athens. But even the “modern” jury pre-dates the emergence of the liberal democratic societies with which we now associate it. After the Norman invasion of England in 1066 CE, a system of grand and petit juries that Charlemagne had developed in eighth-century France was introduced to Britain. In 1215, the English Magna Carta – a formative document for democratic polities – provided for jury trials by peers, and it was about that time that the determination of guilt became the jury's primary role. In early juries, jurors were usually familiar with defendants; it was not till relatively recent times that such familiarity would serve to disqualify a person from participation. By the time of the American Revolution, the jury had arrived at pretty much its present form – though, as the revolutionaries complained, jury trials were frequently corrupted or circumvented by those in power. After the New World colonists broke from the distant and centralized power of England, the “American experiment” accorded to jury trial a much greater symbolic and practical role than was found in its countries of origin.

The view that every person who comes before the court as a defendant should have access to legal representation was not always embedded in our legal system. English common law made no such provision, and in the United States it was only in 1963 that the right to counsel became generally available to criminal defendants charged with serious crimes. This entitlement to legal counsel was as long overdue as it was crucial, for the court is an arcane institution whose rules and procedures, quite apart from the complexities of the law with which it engages, are likely to be bewildering to outsiders. Moreover, those who come before the court as defendants come before an institution with enormous strategic, personnel, and financial resources and, unless there is provision for someone to be at their side – indeed on their side – both to guide them through its intricacies and to some extent to counterbalance its power, defendants will almost inevitably be at a substantial disadvantage.

Of course, the inequality of power between accused and accuser (that is, between the defendant and the prosecutor) may remain even if defendants have legal representation, and this is so because many who come before the court lack the wherewithal to obtain “strong” representation, and in some cases, any representation at all.

Once charges are laid, those charged come before “the court.” This is not to be equated with a trial. Initially, a prosecutor will review the charges and determine whether to pursue the case or dismiss it. If the case is pursued, it is more likely – in the American context at least – that it will be plea-bargained rather than tried. If tried, it will go before either a judge or a jury for a determination of “guilt” and sometimes of “sentence.” Here we look at the roles of prosecutor, defense lawyer, judge, and jury in the disposition of charges, and some of the major ethical challenges that confront their distinctive roles. Although we look at each “player” separately, their roles, though distinctive, are deeply intertwined. There is a division of labor within a formally integrated process comprising myriad rules but also significant discretion.

The institutions of criminal justice – most particularly the police, courts, and corrections – do not exist in a moral, social, or political vacuum, but reflect important and often controversial assumptions. The three chapters that follow attempt to expose and reflect on some of those assumptions, not specifically to reject them but to enable us to hear the “accent” with which we speak when we consider the activities of police, courts, and corrections. Our accent is that of a liberal democratic tradition, with roots in Greek, Judaeo-Christian, and Enlightenment thinking, characterized by ideas of equality, dignity, freedom, and responsibility, but increasingly enriched and challenged by ideas from other traditions. It is within this increasingly diverse environment that the institutions of criminal justice must develop a voice that is not only faithful to their heritage but also sensitive to the legitimate expectations of those who have come within their reach.

In an ideal world, socially acceptable relations would come about through people's voluntary conformity with both social norms generally and the subset of norms that the criminal law seeks to secure. However, our world is not an ideal one and, given the failure of people's voluntary conformity with norms that specify desirable social behavior, the criminal law and its supporting cast of actors have become essential tools for identifying and securing acceptable public conduct. The criminal justice system is of course not the only or even our most important instrument for discouraging antisocial behavior. We may offer various public incentives for voluntary conformity (such as just distributions of social benefits, a responsiveness to social need, and better education) as well as various nonpunitive disincentives (such as situational crime prevention techniques that diminish opportunities for and temptations to crime). And there are of course important social disincentives – such as the influence of family, peers, friends, and other affiliational connections. Nevertheless, the promulgation and enforcement of criminal law plays a critical role in securing public order. It does this through clear identification of behavior deemed criminal, efforts to prevent criminal conduct, the investigation and prosecution of crimes, and the fashioning of appropriate social responses to those convicted (of which legal punishment is usually the most prominent).

The prison is such a familiar institution that it is easy to forget how recently it has been socially normalized as – after fines – our most frequently used form of punishment. There has, of course, always been a need to detain those who are believed to pose an ongoing social threat or risk of flight pending legal judgment concerning their alleged offenses, and the imprisonment of debtors has also had a long history. But it was not until the late eighteenth century that imprisonment as punishment came into its own. Recent (2005) figures put the United States jail and prison population at over 2 million, an incarceration rate of 737 per 100,000 people, and the highest in the world (ahead of Russia, with 611). The rate for Canada was 107, for England and Wales it was 144, and for Australia it was 126. Within the United States, another 5 million are under some form of court supervision.

In the wake of exposés of prison brutality and neglect, it is also easy to forget that imprisonment (along with transportation) was originally advocated as a more humane Enlightenment alternative to corporal and public punishments. As attitudes toward the body changed, confinement – albeit often with incapacitating forced labor – became the favored penalty. Subsequently, mostly under the reformist influence of religious dissenters, the penitentiary was introduced as a vehicle for remorse and rehabilitation.

We have already noted that about 95 percent of those who are sentenced to prison are later released back into the community – several hundred thousand each year in the United States. You might think that once people had served their sentences – had, as it were, paid their debt to society – they could then resume their lives with all the rights and privileges of ordinary citizens. But that would portray the situation inaccurately. For many of those released from prison there are what are spoken of as the “collateral consequences” of their conviction. Some of these consequences, of course, are understandable. Those convicted of corporate fraud might be barred from returning to executive positions; those who have multiple convictions for driving under the influence may have their driving licenses suspended for a long period; and convicted child-molesters may be prohibited from employment that involves working with children. Such people have lost our trust, and, presuming that it can be done, restoration of such trust must be earned.

But the story is not just about risk management. It is also about status. At one time serious felons used to be subject to “attainder,” that is, the loss of all their civil rights, including rights to property and possessions, rights to inherit and bequeath, and the right to bring suit.

Within the adversarial system, judges and juries function as fact-finders – that is, as those who, having heard the arguments both for and against a particular construction of the facts of a case, are called upon to decide whether the construction of the facts presented by the prosecution (in a criminal trial) reaches an appropriate level of certainty: beyond reasonable doubt. Fact-finders are concerned with the truth of the matter at issue – whether, for example, given the evidence and arguments, it is the case that Smith embezzled the funds of Alpha Inc. or assaulted Bill Bloggs. However, because the determination of truth is the basis for the just disposition of a case, fact-finders may be said to be concerned with justice as well as truth.

But judges do not always function as fact-finders. In jury trials they do not. In the US criminal justice system, in serious cases defendants have a right to a jury trial, and in those cases, the judge who presides over a case will function as a “master of ceremonies” and interpreter of the law. Presiding judges also have a critical role in determining that the trial is fair and (with varying degrees of discretion) making sentencing decisions should the defendant be found guilty.

For most of the past two centuries, the institutions of criminal justice have been predominantly agencies of or accountable to government (be it local, state, or national). That is not to deny or ignore the presence or influence of privatization. But because government is usually the main source of funding and oversight, how we conceive of governmental power influences how we view such institutions and their processes, and the resources upon which we draw when we seek to justify them. The justificatory framework for this volume is broadly “liberal democratic” – that is, it views the role of the institutions of criminal justice in terms of “social peacekeeping” rather than of “pacification.” It sees, in other words, the institutions of criminal justice as securing public rather than merely state interests. But to say one takes a “liberal democratic” approach is to speak in fairly broad terms. There is no single way of being liberal and democratic, and the institutions and processes of criminal justice found in the United States, United Kingdom, Europe, and Australia differ in many and sometimes quite significant ways, though not necessarily in ways that diminish their liberal democratic claims. Their histories (and to some extent their geographies) are sufficiently different to have given rise to what are often quite distinctive ways of being liberal and democratic.

We begin our discussion of the major institutions of criminal justice by considering its “executive,” law enforcement, or policing dimension. Classic liberal democratic theory saw the policing role simply as one of ensuring that those who violated rights were called to answer for what they had done. But contemporary policing is much less clearly defined. Here we review the scope of the police role and the limits of police discretion in fulfilling that role, and then consider two of the important strategic powers that enable police to fulfill their role: coercion and deception. For obvious reasons these present great moral challenges.