Criminology-Exam 3

Privatization and

Public Service

Privatization:

The trend of making services and functions, that are traditionally performed by public entities the province of private, for-profit entities, usually companies.

Private security field is more than 4 times the size of the public law enforcement sector.

Common reasons for the growth in the private security field:

Surge in workplace-related crime

Rise in fear of crime

Fiscal restraints on state and public expenditures

Increase in security resources designed for the protection of private businesses

Private Security VS Law Enforcement

Private security misconduct is enforced through civil litigation, commonly referred to as “torts.”

Law enforcement misconduct is enforced through criminal and civil litigation, but civil litigation can also be based on some constitutional violation.

Loss Prevention and Retail Security: General Duties

The growth with retail security and loss prevention industry is directly tied to economic growth of the private sector.

The industry experienced growth fueled by:

Significant economic growth in retail industry.

Increased risk to profit loss due to technologically-based crime and operation loss.

Privatization and Public Service

The private security industry is much more adaptive to change in the economy as opposed to public law enforcement.

With downsizing in the private security industry, there is increased strain on businesses to create profit and prevent loss with fewer resources.

This condition can influence some private security employees to engage in ethical misconduct to achieve organizational goals, i.e. successful apprehensions

Shoplifter Apprehension Protocol

The investigator must observe a shoplifter:

Approach a merchandise selection area.

Select the merchandise.

Conceal the merchandise or maintain the item in open view throughout the entire incident.

Fail to make an attempt to pay for the item.

Maintain constant surveillance of the suspect and property throughout all of these steps.

Bad Stop and Retail Shoplifting Task Force

“Bad Stop”: Occurs when an investigator stops an alleged shoplifter and does not recover the suspected stolen property.

For the novice, excitement is the most common reason for apprehending a suspect without following protocol, and can lead to a “bad stop.”

For the more experienced, a lack of respect for apprehension protocol more likely to be the basis for a “bad stop”

Retail Shoplifting Task Forces

Groups of investigators that focus on a specific location to crack down on problem thefts

Use of Force Against Shoplifters

Shopkeeper’s Privilege

The authority of store employees to use reasonable force to detain suspected shoplifters until the police arrive.

The Shopkeeper’s privilege does not provide the same level of immunity to private citizens compared to that of police officers

This makes private security personnel more vulnerable to civil litigation

Gains v. Nordstrom (2007)

NOTE: The act of detainment is not an arrest but a temporary detention

“No-Chase” policies:

forbid store security agents from engaging in pursuits beyond a set distance from the store’s entrance or exit.

This rule is in part for the safety of the security agent.

Security agents are not permitted to carry weapons or have any means of self defense against a suspect who becomes aggressive in an apprehension attempt.

The desire to make a successful apprehension can lead to poor decision-making in the use of force by store loss prevention agents.

Interviewing vs Interrogation

Interviewing and Interrogation is a skill that some law enforcement and private security investigators can never develop.

Interview- consists mainly of fact-gathering and testing for contradictory information.

Interrogation- employment of rationale in order to obtain incriminating information.

There are many opportunities for ethical misconduct when conducting interviews and interrogations.

Confirmation Bias

Tendency to seek out information from a suspect that supports initial determination of guilt or innocence and to disregard information that negates these initial judgments.

Unintentional vs. intentional

May influence an investigators perspective on the way questions are asked or the degree to which the investigator remains open-minded about the suspect’s responses.

False Confessions.

Lack of awareness on the part of private security investigators regarding the prevalence of false confessions

Tendency to lie or distort evidence to obtain incriminatory information

Types of false confessions

Voluntary: Confessing for attention, guilty conscience, or a perceived material benefit such as drawing unemployment from their employer.

Compliant: The person being interviewed may feel compelled to confess or admit culpability based on promises of leniency or avoiding prosecution all together.

Internalized: Where an employee is led to believe they are guilty when they are in fact, not.

Ethics and Closed-Circuit Television

Popularity of use of CCTV combined with lack of experience and training on the part of loss prevention investigators creates a situation ripe for ethical misconduct

Types of ethical misconduct involving use of CCTV:

Privacy infringements- “zooming”

Racial and gender discrimination

Personal gain, lack of deference toward company policies

More stringent policies aimed to reduce ethical misconduct are not likely to occur

In most cases where such a violation occurs and a member of the public is aware of it, the organization will simply terminate the employee’s employment without further consequences.

Key Commissions on Police Deviance

Wickersham-1929

Formed to investigate violations of alcohol prohibition.

Recommended more law enforcement to solve the problem.

Knapp-1970

Differentiated between “grass-eater” and “meat-eater” corruption.

Grass eater corruption was viewed as opportunistic deviance.

Meat eater corruption was regarded as more predatory in nature.

Police Supervision vs. Leadership

Great leaders inspire, motivate, and instill high values in their employees, and ultimately impact the behavior of employees.

Regardless of criminal justice work being performed, the potential for corruption and misconduct is heightened when senior officers and supervisors do not conduct themselves with high levels of integrity.

LEADERSHIP IS PERVASIVE

Theoretical Approaches to Leadership

Behavioral theories

Contingency theories

Trait theories

Behavioral Theory

Entails a balance between providing structure and empathy toward direct reports (employees).

Ethical issues arise when police leaders are unable to strike an adequate balance of structure and empathy.

Ex: police leader shows empathy or excessive attention toward specific officers and relies less on structure.

This action may be perceived negatively by some officers due to impressions of favoritism.

Contingency Theory

The CJ leader must select the most suitable approach given a particular problem or employee.

Emphasizes 3 factors:

Position power of the leader

Structure of the task

Interpersonal relationship between leader and follower

The better the match between the approach taken and the particular situation or problem, the more influence the leader will have on the direct report.

Contingency theory

Traits to measure position power:

Ability to sanction and reward behavior.

Possesses official rank and status.

Has knowledge of the work performed, position, and the limitations (if any) to perform the specified work.

Is aware of possible alternatives that can be explored in order to accomplish the desired goal.

Trait Theory

Holds that good leaders are able to effectively leverage specific traits they possess to influence others in a positive way.

Trait theory

In contrast to contingency theory, this theory maintains that leaders do not need to have a variety of leadership qualities to be successful.

Ex: Criminal Justice leaders may be able to use their sense of humor, ability to communicate, experience level, or some other quality to influence their direct reports. In essence, it is this quality that earns them respect and encourages followers not behave unethically

Discretion

Because decision-making is integral to the job of criminal justice officials, it is critical that CJ leaders conduct themselves in a professional manner at all times.

Factors that lead to an increase in the likelihood for deviance or unethical conduct to occur:

Reluctance to discipline direct reports.

Over-emphasis on disciplining direct reports.

Failure to communicate reoccurring problems to staff.

Failure to use positive reinforcement to reward good performance.

Official Misconduct and Civil Liability

Vicarious Liability

Leaders are legally accountable for failure to supervise or train direct report problem officers.

“Slippery Slope” Phenomenon

The idea that an officer who engages in conduct such as the acceptance of gratuities will eventually engage in more severe corruption.

Federal claims against officers typically involve issues such as illegal use of force and violations of due process and equal protection of the law.

Abuse of Authority Laws

Also called “official oppression” laws

Apply only to the conduct of public officials

Violations may be criminal or civil in nature

Ex: Witness the Dallas Police officers who were put on administrative leave after running a warrant check and confronting a tow truck driver who towed one officer’s vehicle.

Accepting Gratuities

The acceptance of gratuities has long been part of the culture of policing.

There is no real evidence to suggest that officers who accept minor types of gratuities will eventually engage in more serious misconduct.

NOTE: There is a difference between accepting a gratuity for services provided as opposed to an expectation that such services will be rendered.

Once the expectation is reinforced through the acceptance of gratuities, it may lead to more frequent or serious violations.

Probation and Parole Misconduct

Two main functions of probation and parole:

Protect the community.

Provide adequate resources to rehabilitate offenders.

Ethical misconduct occurs when officers deny specific offenders access to rehabilitative resources and afford those resources to other offenders (when all should have the same access and/or would benefit similarly from those resources).

Probation and Parole Misconduct-Unethical Conduct

Probation supervisors that condone preferential treatment or discriminatory treatment on the part of officers are acting unethically and/or committing civil or criminal violations.

Probation and Parole Misconduct-suing circumstances

Probation supervisors and their officers may be sued based on:

Theory of special relationship,

Theory of identifiable victims,

Application of discretionary v. ministerial functions,

The foreseeability of injury

Ethical Pitfalls of Correctional Supervisors

Ethical Pitfalls(dilemmas) for correctional supervisors concern:

Awareness of peer culture

Denial of responsibility

Tendency to be to rigid

Tendency to follow the “code of silence”

Some ethical dilemmas for correctional supervisors concern:

Awareness of peer culture

Denial of responsibility

Tendency to be to rigid

Tendency to follow the “code of silence”

Decisions that raise ethical and legal complications

the use of force,

search and seizure,

providing medical treatment to inmates, and

providing due process and equal protection

Terrorism

Premeditated, politically motivated violence perpetrated against noncombatant targets by sub national groups or clandestine agents” (U.S. Department of State, 2006).

International- terrorist acts that involve more than one nation.

Domestic-acts perpetrated against one’s own nation.

Racial Profiling

Defined as “any police initiated action that relies on the race, ethnicity, or national origin and not merely on the behavior of the individual” (Risse, 2007, pg. 4).

Rise (2007) maintains that profiling is most controversial when race is used as an information carrier

The ethical dilemma arises when one justifies some investigative strategy solely based on a person’s race

Counterterrorism

The need for training to fighting terrorism and ensuring that civil liberties are protected is paramount.

The New York Police Department is a front-runner in the development of counterterrorism training programs.

As of 2006, the Department of Justice has awarded 23 million to 31 regional training programs at the state and local levels focusing on a range of anti-terrorism issues.

The increase in funding opportunities has led to the misuse of authority on the part of high-ranking state officials in charge of the dispersion of grant funding to law enforcement agencies

Interrogation Practices

The FBI’s 10-week training program in Quantico, Virginia is the most prominent program for police ethics training, bringing in thousands of officers from local as well as international agencies.

Much of the attention has been devoted to police interrogation practices and has indicated that such tactics are ineffective at obtaining reliable information from terrorist subjects.

At the center of the conflict is the propriety of “stress and duress” interrogation practices.

1984 United Nations Convention Against Torture Act

Is considered the international source for defining torture, and distinguishes it from lesser forms of abuse.

The Act specifically defined 3 factors that must be present in order for torture to exist:

The behavior must be based on an intentional act.

The act must be performed by a state agent.

The act must be performed in order to obtain a confession or information.

Article 3 of the Convention Against Torture Act

It is unlawful to extradite an individual to another state or country where there are “substantial grounds” that the individual will be subjected to torture.

What constitutes “substantial grounds,” however, is a subjective determination.

NOTE: The “suspected terrorist” has no recourse to an extradition decision when the U.S. government determines that the likelihood of torture is not substantial

Padilla v. Haft

Padilla was suspected of being a material witness to a planned Al Qaeda attack and was declared as an “enemy combatant.”

This case posed the question of whether an AMERICAN CITIZEN can be detained indefinitely without being granted access to counsel or having been formally charged of a crime.

The ethical question is: How dangerous must an individual be to justify preventative detention?

This question necessitates an understanding of the probability level that a detainee will engage in future acts of terrorism if released.

Agency (government) Approach

Law enforcement action is appropriate as long as it is legal. Unethical but legal action is permissible.

The attorney’s loyalty is devoted to the agency.

Justifications for this view are grounded in how evidence is constructed to meet standards of proof according to statutory definitions.

Public Interest Approach

The interests of the public place greater weight on the integrity and spirit of the law as opposed to the letter of the law

With this view, prosecutors are more likely to decline prosecution when evidence is weak because the interests of the public outweigh the need to prosecute cases based on insufficient evidence or for some other politically motivated justification

U.S.A. Patriot Act

Created as a response to the 9/11 attacks.

Congress passed this legislation to give law enforcement more authority to investigate and prosecute terrorists.

Controversial Sections

Section 206: Allows the government, upon court order, to wiretap a particular suspect’s conversation instead of monitoring a specific phone line.

Section 215: Removed the limitations on the types of agencies and extended the scope of records to any “tangible items,” including books, medical and psychiatric records and financial documents.

Section 213: Allows the government to conduct wiretap searches without providing notice to the subject of the court order for up to 90 days following the search.

Effectiveness of the Patriot Act

There is no way to assess whether the measures taken by The Patriot Act have been successful in preventing terrorist attacks.

Violations of privacy are rarely, if ever, disclosed to the public.

Two main ethical dilemmas of the patriot acts:

The ethical question becomes whether the Patriot Act or similar laws have led to privacy infringements on innocent individuals who are not believed to be associated with terrorist activity.

Also, can such infringements on privacy be justified to detect and prevent terrorist activity?

Mental Illness & CJ

1 in 5 Americans has a diagnosable mental illness (U.S. Department of HHS).

There are generally no visible signs of mental illness and most individuals do not exhibit abnormal behavior that would be obvious to outsiders.

Due to budget cuts, many state hospitals have been closing.

Following closure, patients have been transitioned into the community usually into group homes or developmental programs.

The criminal justice system has become a de facto mental illness system especially due to homelessness, unemployment, and lack of medical treatment resources.

Mental Illness Percentages

Approximately

45% of federal inmates,

56% of state offenders &

64% of jail inmates

are suffering from some sort of mental health problem.

THIS EQUATES TO 55%

Strategies to reduce criminalization of mental illness:

Make use of supporting mechanisms to divert people with severe mental illnesses from the criminal justice system.

Strategies to reduce criminalization of mental illness:

Create an authority in state codes for judges to divert non-violent offenders with severe mental illnesses away from incarceration into appropriate treatment.

Strategies to reduce criminalization of mental illness:

Provide specialized training to probation and parole officers about

mental illness,

the needs of mentally ill people, &

treatment resources &

benefits available

to these individuals while on probation or parole

Strategies to reduce criminalization of mental illness:

Establish specialty

“mental health courts”

to hear cases involving individuals with mental illnesses charged with misdemeanors, or non-violent felonies, with the purpose of diverting as many of these cases as possible away from the criminal justice system and into appropriate mental health treatment and services.

Strategies to reduce criminalization of mental illness:

Train probate, civil and criminal court judges and court personnel about severe mental illnesses and legal issues affecting those with mental illness.

Sex Offenders

Sex offenders are considered to be “the lowest of the low” so it is especially important that they are treated ethically.

Punishment vs. treatment?

Most correctional programs are now trying to combine treatment with punishment.

Forced/involuntary treatment

Scholars argue that this will have limited results.

Is argued to be unethical and a violation of an individual’s rights.

Law enforcement officials must not engage in “noble cause” corruption

Apprehending sex offenders due to suspicion and not proof.

Investigations must be handled officially and properly.

It is important to ensure that other staff and inmates are treating sex offender inmates ethically.

Physical/mental/emotional abuse should not be tolerated.

Correctional officer perceptions of sex offenders:

Sex offenders are more dangerous, unpredictable, mysterious, aggressive, irrational, and afraid as compared to non sex offenders.

Sex offenders have higher levels of mental illness and are far more “crazy” than non sex offenders.

If officers see offenders in a negative way, it becomes easier to de-humanize them, demonize them and treat them differently or unethically.

It is difficult for officers to see, but sex offenders should be treated in the same manner as any other type of criminal.

HIV/AIDS

Due to high risk behaviors (i.e. unprotected sexual activity), inmates have higher levels of HIV and AIDS than the general population.

In almost every corrections setting rules are in place that prohibit inmate sexual activity. The enforcement of these rules is essential.

Under HIPPA, offender medical history and records are considered protected health information which cannot be disclosed.

In many cases, personnel will have no idea the offender they are dealing with has HIV/AIDS unless the offender tells them or the information is obtained in violation of HIPPA.

Prison Rape Elimination Act of 2003

Purposes of the Act:

Zero tolerance for prison rape.

Prevention is top priority for each prison.

Develop and implement national standards for detection, prevention and reduction of prison rape.

Increase available data

Prison Rape Elimination Act of 2003

Increase the accountability of officials who fail to detect or punish guilty offenders.

Protect the Eighth Amendment rights of federal, state, and local prisoners.

Increase the efficiency and effectiveness of federal expenditures through grant programs.

Reduce the costs of prison rape.

The National Institute of Corrections offers a two hour training course on prison rape.

Training objectives:

Articulate the key components of the Prison Rape Elimination Act (PREA).

Describe sexual abuse among male inmates, female inmates and staff and inmates.

Describe how sexual behaviors impact the corrections system and security.

Discuss the legal implications of staff sexual misconduct and inmate-inmate sexual assault.

The National Institute of Corrections offers a two hour training course on prison rape.

Training Objectives, cont’’d:

Demonstrate an understanding of the role, skills and duties of the first responder.

Develop ways to effectively and appropriately respond when an allegation of sexual abuse arises.

Identify the principles of investigation and the importance of a fair and timely investigative process.

Practice the application of skills learned in the course.

Discuss prevention strategies.

Articulate issues surrounding special population management.

Forensic Science Associations and Organizations

The American Academy of Forensic Sciences (AAFS) is one of the more prominent professional organizations in the field of forensic science.

The organization works toward professional development, encouraging research, and establishing professional standards for its members.

Membership is voluntary and therefore not all forensic scientists are bound by its standards.

Has more than 6,000 members worldwide.

Scientific Integrity

The primary professional duty of a forensic science practitioner is to seek the truth.

Scientific Integrity

The forensic scientist has a professional duty to function first as a scientist

Scientific Integrity

The forensic scientist should not be expected to produce a particular result in a case but rather allow the science or technique to produce an objective and unbiased result.

Scientific Integrity

While the forensic scientist may be employed by a state crime lab or police agency, the very nature of scientific integrity requires that the scientist remain objective and independent.

Ethical issues in forensics

The forensic scientist should remain impartial and function as an actor responsible for the independent examination and analysis of evidence.

Professional Qualifications and Experience

The professional qualifications and experience of modern forensic scientists are extremely diverse.

Generally, forensic scientists can be found in one of three venues:

In the field

In the laboratory

In the courtroom

Professionals within the Forensic Science Field:

Crime Scene Investigators

State and local crime laboratories.

Medical examiners

Private forensic crime laboratories

Law enforcement identification units

Resources such as registries and databases

Professional organizations

Prosecutors and defense attorneys

Quality system provides

Federal agencies

FBI - ERT

Fact witnesses:

are called to testify for the purpose of providing testimony about things they have observed or otherwise have obtained knowledge.

Expert witnesses:

individual who possesses certain knowledge in a particular field or area of expertise that would be helpful to the trier of fact.

Supreme Court under Daubert

In Daubert (1993) the Supreme Court held that prior to the admission of scientific testimony, the TRIAL JUDGE must determine that the evidence is both relevant and reliable.

Trial judges must consider the following factors:

(1) whether a theory or technique can be (and has been) tested.

(2) whether the theory or technique has been subjected to peer review and publication.

(3) the known or potential rate of error of a particular scientific technique.

(4) the existence and maintenance of standards controlling the technique’s operation.

(5) the degree of acceptance with the scientific community of a scientific technique

Under Frye

the scientific community is essentially the gatekeeper determining evidence admissibility.

Using the strict standard, if the scientific community finds a method or theory acceptable, the court must admit the evidence.

Practically speaking, this means courts consider the issue once.

Upon a finding of general acceptance, admissibility isn’t revisited in subsequent cases.

Under Daubert:

the judge, not the scientific community, is the gatekeeper determining evidence admissibility.

Because the factors under Daubert can be reevaluated, and because things such as additional information on error rates or additional peer reviewed publication takes place, the court has an ever-changing landscape.

This allows for a case by case evaluation, rather than a single finding of admissibility, in theory.

Qualification as an Expert Witness

Qualification of an expert witness involves the use of voir dire.

The calling party is allowed to question the individual first and should focus on establishing the:

(1) qualifications of the individual.

(2) why expert testimony in this particular area is necessary.

Following questioning by the calling party, the proposed expert will be tendered as an expert witness.

In the majority of cases, the opposing side will then question the proposed expert. Questioning may focus on the following areas:

qualifications of the expert

relevance of the proposed testimony

reliability of the science, technique, or area of expertise

The trial court makes the final decision regarding the proposed expert.

Expert Opinions

If an individual is qualified by the court as an expert witness, they may testify not only to those facts or circumstances that are within their personal knowledge but they may also give their expert opinion.

The opinion of an expert witness is extremely important, and in many cases, makes the difference in the outcome of a case because the jurors often place more weight on the value of expert testimony

Wrongful Convictions

The consequences of unethical, unprofessional, or sloppy forensic science practice can result in wrongful convictions.

The Center on Wrongful Convictions (Northwestern University) examined 788 cases involving wrongful convictions in the U.S. since the 1920s finding the use of DNA exonerated 40% of individuals during that time period.

Of the five common themes which accounted for wrongful convictions, the Innocence Project listed “flawed forensic science.”