Ethical Issues and Discretion in Law Enforcement

Ethics in Criminal Justice and the Importance of Moral Standards

Ethics is important in every professional field simply because ethics is synonymous with what is morally right and just. In general, a society in which individuals and professional entities respect moral principles and interact justly with each other is a fairer society for all. In particular, the field of law enforcement consists of enforcing justice and the moral rules of society as reflected in its laws and regulations. Therefore, that field should have the strictest requirements and standards of all professional fields, because without ethical values in law enforcement, there is no basis for enforcing the principles of conduct that are most beneficial to everyone in society. For the same reason, ethical violations in law enforcement and criminal justice are even more offensive to objective justice and moral values than ethical violations in other fields.

Discretion and the Police Officer's Moral Career

Discretion is perfectly appropriate throughout the field of criminal justice, provided that it is exercised objectively, fairly, and in an unbiased manner. Very often, the same choice might be ethical or unethical depending only on the mental state and motivation known to the criminal justice professional. A traffic enforcement officer may justly exercise his discretion to issue a verbal warning in lieu of taking formal enforcement action, based on the totality of circumstances — such as the subject's prior driving record, courteous demeanor, and cooperation. The officer may not use "discretion," however, to make the same decision based on personal interests or subjective biases.

In the earliest stages of a police officer's career, he or she might rely on formal enforcement too heavily instead of exercising discretion more appropriately. A new officer may carry the proverbial "heavy badge" and lose sight of the forest for the trees. A more experienced officer understands that not every technical violation necessarily requires enforcement action, and that overlooking certain minor violations allows the officer to focus on more important issues. For example, an officer who enforces every instance of jaywalking or failure to signal a lane change may never have the chance to look for more serious violations because he is continually tied up with minutiae.

A career in criminal justice can become morally dangerous in several ways. An officer could begin to feel above the law and take liberties simply because he knows that his professional status may preclude enforcement if he is caught. He may also come to believe that the criminal justice system is too inefficient and begin violating rules of procedure designed to protect civil rights, or lying on the witness stand, in order to secure convictions where he believes the circumstances justify the means.

Interrogatory Deception: Techniques, Consequences, and Ethics

Deception may be used in many ways during interrogation. Criminal investigators may misrepresent their interest in an individual by purposely treating him as a witness rather than as a suspect, in order to facilitate his willingness to talk about a crime. Police officers and detectives may pretend to know much more than they do about a specific crime to motivate a suspect to come forward, or to convince a third party to do so.

Interrogating officers may also promise a suspect to "do whatever I can for you with the judge," knowing full well that the crime at issue, the mandatory sentencing guidelines, or the idiosyncrasies of the judge make that promise entirely empty in reality. Alternatively, a detective might pretend to sympathize or identify with the suspect to gain compliance and reduce resistance by virtue of a personal bond between the suspect and the officer.

From a tactical point of view, the officer may wish to employ deception only when necessary, because a reputation for dishonesty within a small community of criminal subjects can spread quickly. Suspects can learn not to cooperate with or trust the officer at his word, which could compromise his ability to do his job and might even jeopardize his personal safety.

These types of deception do not violate any ethical principles and are perfectly legal. However, many opportunities also arise in the career of any police officer in which deception that is both illegal and unethical could also be useful. It is in those instances that an ethical officer will not exploit the situation or the fact that he is more knowledgeable about the law than the subject. For a typical example, a traffic officer might tell the subject of a car stop that "things will go a lot easier for you if you give me your consent to search your vehicle," knowing full well that he has no probable cause to search without consent and that consent to search may lawfully be refused by the motorist.

Often, the conversation is not recorded or witnessed by anyone else, and an unethical police officer could easily testify that he merely asked for permission to search and never said anything to suggest that the subject could refuse. This would not constitute an ethical or constitutionally permissible type of deception in law enforcement. Generally, there are clear lines between the types of deception that are ethical and permissible and those that are unethical and impermissible.

There are also grey areas where a particular misrepresentation or deceit is technically permissible but nevertheless morally questionable, depending on many factors. Exercising every opportunity to use deception without violating the law might be morally justified to prevent or solve a morally heinous crime, but less morally justified when addressing less serious offenses. With respect to the legally permissible use of deception, an officer must be guided by his conscience and his sense of whether the ends justify the means in particular circumstances.