Issues that beset criminal justice, especially in the United States but in other countries as well, are not only receiving considerable scholarly attention across a broad range of disciplines and methodologies, but are also increasingly acknowledged as serious, even urgent issues, by the wider society. One consideration that has motivated the increased interest, at least in the United States, is the enormous cost of criminal justice. From policing to incarceration, to the damage done to neighborhoods and communities as a result of mass incarceration, to the troubling rates of recidivism the cost of criminal justice runs into the hundreds of billions of dollars per year. It would be encouraging if moral concerns were motivating the enlarged public interest, and indeed concerns for justice are being voiced—more and more audibly. But even if cost is what is triggering the drive to make constructive changes, the fact that interest is enlarged is especially important because it provides an opening for bringing a multitude of issues more fully to the public’s attention and making more people aware of how numerous and how serious the issues are.
At least in the United States, no one aware of the facts could think that the current state of things is satisfactory or that current policies and practices just need some adjustment and refinement. The issues are at a complex intersection of political, social, ethical, and economic factors, and they have implications through all of those dimensions. In criminal justic e in the US issues of race and poverty are especially acute. In the US and the UK there is an enormous literature on criminal justice including government reports, scholarly research and analysis, and increasing discussion in the media. The issues are increasingly recognized as everybody’s business. Given their significance and scale they are not issues only for researchers and persons directly involved in criminal justice. They merit consideration across and throughout society and, directly or indirectly, they have an impact on everybody.
Issues concerning criminal justice are not just the business of victims of crime and those who have been charged with crimes or punished for committing them. Nor is criminal justice concerned only or even primarily with punishment. As John Kleinig points out in the Introduction difficult questions concerning what should be criminalized and what should be the powers and procedures of those with official roles in the administration of justice—all throughout the institutions of justice, and not just concerning police—are vitally important and shape many aspects of the social world.
We should not need crisis to persuade people of that fact. The papers in this Handbook address enduring, fundamental issues of criminal justice ethics and also address contemporary circumstances and the concrete forms of those issues. They speak to some of the most pressing current issues but do so within a larger setting of perennially important questions and issues. The US and the UK are the main focus of most of the papers but they include some discussion of the issues in other nations, such as Australia, and they address the issues in ways that are relevant to many liberal democracies whether or not they are part of the English-speaking world.
The issues of criminal justice ethics have global relevance, even though it is in liberal democracies that they tend to be most openly and thoroughly studied and discussed. In addition, while this may be a time when the United States begins to take substantial steps in the direction of significant reform, some of the issues are becoming more pronounced and garnering more attention in other parts of the world. As this is being written many European countries are contending with large influxes of people from war-torn and poor countries in North Africa and the Middle East. There could be a rapid increase in the ethnic, religious, and cultural diversity of the populations in many countries, and as the national populations of many European countries become increasingly ethnically and religiously heterogeneous the current liberal and humane practices and attitudes concerning criminal justice could be challenged quite powerfully.
Countries such as Germany, Norway, Sweden, and others, among those often pointed to as not having the very troubling issues so notable in US criminal justice, are starting to face issues concerning law enforcement, relations between police and culturally diverse communities, the need for new approaches to risk-assessment, and so forth on a new scale. This is not to say that the problems in US criminal justice will be replicated, but there is little doubt that the stresses consequent upon current trends of immigration and the movement (and the needs) of impoverished refugees are largely unaccustomed (at least in the era after European post-war reconstruction) and that the difficulties of addressing them will be substantial.
Some of the chapters in this volume reflect the value and importance of comparative study and approaches that involve collaboration of new types and on a larger scale. There are, after all, a number of issues that are shared by liberal democracies despite the many differences among them. Moreover, given the very nature of liberal democracy all sorts of issues concerning criminal justice merit and should receive attention concerning their empirical, conceptual, and normative aspects. If one takes seriously the values and principles of liberal democracy and has any concern with the character of civil society there is no question that the issues of criminal justice ethics require attention from many angles of approach.
What is the character of the present collection of papers, and what makes this a handbook of criminal justice ethics in more than just its title? The aspiration of this volume extends beyond offering new work by excellent scholars on a diversity of issues. We conceived the project not only as a compilation of new work done in criminal justice ethics but primarily with a view to giving shape and direction to criminal justice ethics as an area of study. That is different from a collection of ethical perspectives on criminal justice issues. We were hoping that those who accepted the invitation to write for the Handbook would show how their expertise and methodological approaches can give shape and orientation to central problems of criminal justice ethics in ways that will help develop it as an area addressing empirical and normative considerations in an integrated manner.
At the same time, the editors (and the publisher) have had no specific commitments in mind, as to the views to be elaborated and defended. This is not a volume of papers aimed at jointly making a case for some specific perspective on the issues. Contributors were invited to explore what they take to be the most significant ethical aspects of the specific topics they examine, and the volume is editorially wide open in regard to the views presented by contributors. In our letter of invitation to potential contributors we wrote:
We are inviting contributors to help develop criminal justice ethics as a field, to help shape the direction and the aims of criminal justice ethics, and to bridge empirical and philosophical inquiry. This does not mean that we expect all the contributors to somehow manage to acquire expertise in methods and technical vocabularies other than their own. However, we are encouraging invitees to be willing to include reflections on the normative presuppositions of methods of inquiry, on ethical questions regarding policies and practices and their ethically relevant implications, and, in general, to develop their contributions so that ethical considerations receive explicit attention. One need not be an ethicist to say important things about ethical issues and such issues can arise throughout the contexts of criminal justice.
This approach was motivated by the thought that such an approach can be much more illuminating than having ethical theory over here, empirical issues and social scientific explanations over there, and connecting them by some notion of how to ‘apply’ the former to the latter. The reality of ethical issues is not like that, and the notion of ‘applied’ philosophy is somewhat suspect or at least misleading. One does not apply moral theory the way one might apply a recipe or the instructions for assembling a piece of furniture purchased as a set of parts. There just isn’t a clean break between “here are the facts” and “here are the relevant ethical considerations.” Thus, it is probably more accurate to speak of practical philosophy or practical ethics. Practical ethics is the study of the ethical features of specific issues and practices, explicating the ethical considerations to which those issues and practices give rise. It concerns what we should do, what practices are normatively most sound, what terms of evaluation are most relevant and significant. Criminal justice ethics could not be a more practical project.
Moreover, from the perspective of many contemporary philosophers the putative ‘fact/value’ distinction, at least in the most familiar forms it took during much of the twentieth century, has been subject to so much destructive critique that it can almost seem surprising that at one time the distinction was very much in ascendance. This is not the place for a detailed examination of its ascendance and the various strands of destructive critique of it. Moreover, the critique has not led to any sort of consensual view of the relations between values and non-valuative facts and properties. There are persistent, important issues of the metaphysics and epistemology of value, and the semantics of value-discourse provides plenty of work for philosophers. However, insisting on the mutual exclusivity of facts and values, of objectivity and subjectivity, or of cognition on the one hand and expressing attitudes on the other often does little to illuminate the issues. More is to be gained by ethical thought and judgment engaging and being informed by the complex realities of contexts of action and decision and by the willingness to try to articulate the ethical significance of those realities.
To be sure, philosophical theorizing about moral value has distinctive theoretical concerns and issues, and the method of philosophical reasoning and analysis is different from that of empirical inquiry. There are problems of moral philosophy that are distinctively philosophical problems, and they will not be resolved by empirical inquiry. At the same time, while there surely is a role for philosophical theorizing at a highly general level regarding metaethics, i.e., the metaphysics, epistemology, and semantics of moral value, it is not at all clear how such theorizing might bear directly on issues concerning criminal justice ethics. The Introduction highlights the fact that the chapters in this volume do not seek to formulate a “grand theory” of criminal justice and that many of them engage extensively with empirical considerations and suggests that is a merit of the volume. In addition, at least in the US—and this may be true of numerous other countries, too—there is not really a criminal justice system in the sense of a deliberately designed, integrated, overall approach, each main element of which having been planned in conjunction with the others.
Of course, whether or not criminal justice reflects an overall system, progress formulating and addressing issues of criminal justice ethics will be made most effectively by examining those issues in their empirical specificity and complexity. Ethical thought can be coherent and illuminating without aspiring to be as explicitly systematic as possible. In addressing concrete, specific issues of practice, action, moral evaluation, and decision ethical reasoning and judgment need to be thickly informed by empirical understanding. In important respects ethical thought needs to be elaborated and articulated through reflective attention to the normative significance of criminal justice realities. That reflective attention might issue in more clearly systematic understanding and more systematic approaches to the issues—which would be a welcome development. But getting to that point may be helped along most by seeing how general and systematic points and principles are supported by engagement with the empirical realities of the issues.
The normative significance of those is unavoidable because criminal justice concerns institutions, practices, and policies connected with the employment of coercive power, the rule of law, and concrete, and often urgent, matters of social and economic life. That, of course, is one of the main reasons that reflection on the fundamental values and principles of the political/legal order is so important. Still, while taking that into account, many problems of criminal justice ethics need to be addressed by ethical thought that develops through negotiating the conceptual, empirical, and normative aspects of the issues as a joint, complex undertaking rather than bringing ethical thought to the issues from an external source. We encouraged contributors to look at their topics in that way and to be willing to see themselves as helping to shape the discourse of criminal justice ethics, explicating issues, addressing problems, offering suggestions through the perspectives of their expertise, seeing that expertise as a resource for helping to make ethical considerations more fully intelligible. That way the discussions are firmly anchored in the several types of relevant facts but do not limit themselves to some attempt at ‘value free’ description and explanation disconnected from ethical reasoning and analysis.
While description and explanation disconnected in that way might be an attempt to maintain the putative value-neutrality of the facts, free of the distortion of a valuative lens, it can be a way of failing to register and articulate the ethical significance of what we find to be the case. The role of values is not inevitably distorting. Moral commitments and theories are not items in an ideological salad bar from which one chooses what is most congenial or what is least disruptive of one’s antecedent views. The rationales for them need to be more fully connected with what we understand about the relevant contexts, institutions, and agents. The ethical reasoning needs to work its way into and through the facts, articulating the values those realities reflect and also making the case for values and principles that should inform the realities and orient policy and practice. The facts can be crucially important considerations in support of ethical judgments, reasoning, and recommendations. And, anyway, what is valuatively significant is perhaps what is most important about understanding the facts.
The papers in this volume approach criminal justice ethics in the spirit of examining the complex texture of the issues in ways meant to explicate the ethical significance of the various elements of them. Ethical theories are conceptual resources for thinking through the issues, but it is in the thinking-through that the real work is done. (Little is gained by showing how, ‘if one is a Kantian, one would maintain X’ or ‘if one is a utilitarian, one would maintain Y,’ and so forth. A very similar point, illustrated similarly, is made by John Kleinig in the Introduction, though it had occurred to us independently of each other.) Moral thought and judgment require (i) forms of discerning attention (to notice morally relevant considerations), (ii) the weighing of diverse considerations with a view to ascertaining what is morally most significant, and (iii) fashioning a reasoned approach to the issues, one responsive to the potentially diverse moral considerations and how they figure in a coherent conception of what is morally at stake.
Accordingly, we asked contributors to consider how their expertise could help explicate ethically significant features of criminal justice; how their understanding might be part of an ethically illuminating appreciation of the issues they study and the methods they employ. The wide range of disciplines and methods supplies a multitude of sources of ‘data’ for ethical thought and rich intellectual resources for formulating and addressing the issues. We hope that this way of proceeding will help give shape and orientation to further work in criminal justice ethics, developing it as a study to which scholars in a great many disciplines and also practitioners can contribute.
There are multiple connections to a large number of disciplines, and it is clear that the humanities, the social sciences, and the natural sciences all have important roles in formulating and addressing the issues. Whatever one’s disciplinary ‘home,’ whatever one’s methodological approach, it can have a voice needing to be heard in the discussion of criminal justice. The issues are not only significant, they are also as multidimensional as any issues could be. There can be little doubt of that with regard to both theory and practice, and that is another reason it is helpful to have several different methodologies represented. We hope that the discussions will be seen as relevant to each other and as contributing jointly to the understanding of the issues.
Among the most difficult and disputed aspects of issues of criminal justice ethics, both theoretically and practically, is the question of how one goes from data to policy. There are complex debates about how to explanatorily interpret data, i.e., about what the data tell us about the social world and human behavior in explanatory terms; and there are complex debates about the prescriptive significance of the data. What changes in law and policy are rationalized and justified by the data? How should the intersection of law and morality be understood? How should considerations of the efficacy of policies be weighed in relation to valuative commitments and ideals? What sorts of different attitudes and habits would be needed for criminal justice to be both more just and more civil? The step—basically, from data to policy—is critically important, and it is sometimes taken too swiftly, without sufficiently careful consideration of assumptions and implications. The papers in this volume help explicate some of the conceptual and normative complexity of the landscape that needs to be negotiated in taking the step from data to policy.
We hope that the contents of this volume, both individually and as elements of an overall project, help readers make the step from data to policy with more sure footing, if a bit more slowly than is sometimes the case. While there are many issues of criminal justice the Handbook does not address directly—the number and variety of important issues are enormous—we hope that reading these papers will motivate reconsideration of approaches to the issues discussed and others, as well. Success will be measured by the extent to which these papers motivate further analysis, argumentation, objections, responses, and elaboration in ways that deepen and enlarge understanding of the ethical issues. We hope that you will find this volume’s multiple angles of approach a valuable guide, highlighting key features of the terrain of criminal justice ethics and indicating directions for developing it as an area of inquiry, theorizing, and practice. The issues discussed extend all the way from fundamental considerations concerning the nature of the rule of law and the basic principles of political order, to highly specific matters of practice and policy.
Though this volume is aimed primarily at scholars and students of criminal justice, the topics addressed have plenty of connections with what we read in the news and in the opinion sections of major newspapers, what we see on television news, and what is on the minds of many politicians and citizens. This collection is well suited to a great many topics and issues analyzed and discussed in many classrooms in many disciplines. We hope that the arguments and the perspectives herein will reach many students focusing their studies in criminal justice and also reach many who are interested in it but may be focusing elsewhere.
Many of the contributors to this volume are scholars whose work has had a considerable impact on the study of the issues, and other contributors are younger scholars whose work is garnering attention and having a growing role in their areas of study. We are very grateful to all of the contributors for writing new works for this volume and, in many cases, writing with a focus a bit different from that to which they may be most accustomed. Developing criminal justice ethics as a field will need that kind of intellectual generosity. While the contents of the volume represent numerous fields and methods, we think that they can help develop criminal justice ethics as a coherent, integrated set of concerns of undoubted theoretical complexity and undoubted practical significance.
The main sections of the volume are as follows:
I: Morality, law, and criminal justice
The first part of the volume addresses fundamental issues concerning criminal sanction, moral and political aspects of the justification of punishment, and some important contemporary issues requiring important deliberations concerning policy. The papers take up some of the most enduring core issues concerning criminal sanction, having to do with the legal and political order, with what kinds of considerations should figure in fashioning sanctions, and with the role of various attitudes and sentiments in regard to punishment and offenders.
II: Criminalization, decriminalization, and punishment
The second part pursues some of those major issues with explorations of specific issues concerning criminalization and criminal liability and with analysis of widely shared assumptions and attitudes and how they shape some of the troubling realities of contemporary criminal justice. The discussions include suggestions regarding possible remedies regarding policies and attitudes. The contributions include works by philosophers, legal scholars, criminologists, and psychologists.
III: Institutions, policies, and practices
The third part deepens the empirical exploration of issues and it, too, includes contributions from scholars in several different disciplines. They evaluate in detail a number of prevalent policies and practices of criminal procedure, and they indicate important directions in which ethical reconsideration of them is required.