Assignment: Ethics in Criminal Justice

Part A

1. Case Study: Use the Internet to research the case of Tennessee v. Garner, 471 U.S. 1: In a narrative format, in a minimum of 400 words, discuss the key facts and critical issues presented in the case.

Part B

1. After reading Chapter 9 of your text, discuss the difference between human rights, legal rights, and moral rights.

2. Apply these three to the Tennessee v. Garner case, discussing the ramifications of each.

3. Research the Prima Facie Duties proposed by author W.D. Ross. In the Garner case, what duties of fidelity did the officers owe the victim, and what duties of justice were breached?

Part C

1.Executive Decisions

If you were the Chief of the Memphis Police Department during the Tennessee v. Garner case, what ethical dilemmas do you think should be addressed immediately upon the Supreme Court’s decision?

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10 The Virtuous and the Vicious:

Considering Character

Psychologists, criminologists, and others who study criminal behavior have, for some time now, dedicated substantial attention to a certain subgroup of offenders: those often described in everyday language as the embodiment of evil. While we suggested in Chapter 2 that the majority of “evil” in the world results from well-intentioned people making poor choices as they go about their everyday activities, there remain inexplicable acts of harm and cruelty that can only be described as wicked acts of bad people. The label psychologists typically reserve for the worst of such people is that of the psychopath—those described by Robert Hare as “social predators . . . [c]ompletely lacking in conscience and in feelings for others, they selfishly take what they want and do as they please, violating social norms and expectations without the slightest sense of guilt or regret.”1

Fortunately, psychopaths are rare, accounting for only about 1 percent of the population, and up to 25 percent of jail and prison inmates,2 and news-making crimes commonly associated with psychopathic offenders, such as serial homicide and sadistic sexual assault, represent only a very small percentage of all criminal offenses. However, there is at least one important parallel between our moral evaluations of the heinous crimes of some psychopathic offenders and far more common instances of schoolyard bullying, callous property offending, or manipulative heartbreaking. In both kinds of cases, we tend not only to negatively assess the action, but also the person engaging in that action. We say not that the bully is a good person who made a poor choice or didn’t fully consider the consequences of his actions; rather, we are more apt to assume that the bully is a certain type of person—one with enduring personality characteris- tics that lead to him to consistently demonstrate selfish behavior patterns, disregard for the welfare of others, and so forth. For most, there is an important relationship between evil deeds and evil persons. Our discussion of normative ethics, then, must account not only for actions and consequences, but also for types of people.

In the previous two chapters, we explored normative ethical theories that concentrate on the con- sequences of our actions and on our actions themselves. Consequentialist ethics asks that we consider the results of our actions, with those that produce the greatest benefit (i.e., good consequences)—for oneself and/or others—being the “right” ethical choice in a given situation or with regard to a particular issue. Deontological ethics, in turn, asks that we consider relevant duties and principles, making choices and engaging in actions that are consistent with those duties and principles. What each has in common is an emphasis on doing. The overriding question of both types of theories is, “What should I do?”

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The importance of actions and consequences notwithstanding, what each of these types of theo- ries fails to consider is the types of people we should be. When we shift moral focus from our actions and their consequences toward the notion of good moral character, we begin asking ques- tions common to the third major tradition of normative ethics—that of virtue ethics.

Virtue ethics is the eldest of all ethical traditions, having its roots in the ancient Greek and Roman moral philosophies of Plato, Aristotle, the Stoics, and Epicureans, as well as a storied history in Eastern philosophical traditions such as Buddhism, Taoism, and Confucianism. Each of these philosophers and philosophical traditions shares an interest in examining what it means to lead a “good” life, with the “goodness” of our lives having much to do with the kinds of people that we are. In short, they are each concerned with our being virtuous people. The principal question asked and contemplated by the virtue tradition is, “What kind of person should I be?” Consequently, our goal or task as moral people is to develop into and continue to be that type of person; that is, to develop certain types of character traits (i.e., virtues), while seeking to “avoid or extinguish” others (i.e., vices).3 In this third and final chapter on normative ethics, we explore this eldest of all ethical traditions and the crucial questions it poses about what it means to be a moral person.

VIRTUE AND VICE

Think of the people that you most admire ethically—people that can and do commonly serve as ethical role models or after whom you pattern (or try to pattern) your own moral behavior. Now, consider if you will what all of those people have in common. Most likely, it is not that they were all skilled at considering the consequences of their actions. It is also probably not that they were steadfastly committed to certain ethical imperatives and always placed their duty to abide by certain moral laws above all else. While they may have demonstrated one or both of these quali- ties, it is more likely that what they all have in common is that they are all certain types of people. Perhaps the people that came to mind are historical figures such as Jesus, the Buddha, Mother Teresa, or Martin Luther King Jr.; perhaps they are parents, family, friends, or teachers. In any case, what the people we most admire as exemplars of moral goodness seem to share is usually not so much about what they do, but the types of people they are. They tend to be caring people, compassionate, forgiving, merciful, respectful, and considerate of the needs and interests of others. In short, when we think of ethical or moral people, we probably think of what moral philosophers would call virtuous people.

Virtue and Character

When we talk about the types of people that we or others are, we usually do so in terms of character traits. A character trait is “a tendency to behave in certain ways in certain circumstances.”4 Character traits can dispose us toward moral or immoral behaviors; they can encourage us to be honest, responsible, and considerate of the needs and interests of others, or incline us to be dishonest, decep- tive, fraudulent, irresponsible, or indifferent to or harmful toward others. What is important about character traits is not only that they define us as people, but that they dispose us to act in certain ways when we encounter certain types of situations.

When taken together, character traits define a person’s character. By character, we mean a collection—a “cluster, or perhaps system”—of character traits as they appear in a given person.5 Thus, a person who possesses the individual traits of honesty, integrity, humility, and self-respect possesses an overall character that is constituted by these dispositions. Ultimately, as we will see, being a “good” or virtuous person requires more than simply possessing a few

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individual character traits; rather, it is about possessing a collection of traits that work together to generate a moral character that is typified by its collective “goodness” (see Box 10.1).

While it is common in everyday language to refer to “character traits,” moral philosophers have historically used the more specific terms virtue and vice to refer to traits of character that are regarded as “good” or “bad” in moral contexts. Good character traits such as honesty and integrity are considered moral virtues, while traits such as selfishness and arrogance are regarded as moral vices. Most generally, then, moral virtues are traits of character that dispose a person to act in a moral fashion, while moral vices are traits of character that dispose a person to act in an indifferent or harmful fashion. In the remainder of our discussion of moral character, we will typically use the terms “moral virtues” and “moral vices” rather than the more generic term “character traits.” Here are but a few character traits that are widely regarded as virtues:6

Benevolence Compassion Courage Faithfulness Generosity Gratitude Honesty Humility Integrity Justice Kindness Loyalty Mercifulness Modesty Nonharm Open-mindedness Patience Politeness Prudence Reliability Responsibility Self-control Self-respect Sincerity Tactfulness Tolerance Trustworthiness Unselfishness Wisdom

BOX 10.1

Virtue and Leadership

As Judith Boss points out, people tend to emulate those who are at a higher stage of moral development. Because of this tendency, placing virtuous persons in leadership roles can have a positive moral impact on an entire organization, community, or society. Think of persons you know who are in leadership roles—presidents, legislators, judges, police chiefs— and discuss whether those people serve as good moral role models by exhibiting virtue. What virtues should

persons in such positions embody? What, if any, vices should they embody? What are the dangers of embodying different virtues and vices for each of the following positions?

• The President of the United States • Legislators in your state • Judges and Supreme Court Justices • Chiefs of Police

VIRTUE, CHARACTER, AND BEHAVIOR

Moral virtues are thus dispositions to act, out of habit, in ways that benefit self and others.7

Compassion, generosity, and tolerance, for instance, are most always cited as examples of virtue—as character traits that, when motivating action, stand to benefit all those affected by the action. Persons of virtuous character are those who are disposed to act in ways compas- sionate, generous, and tolerant in situations that demand such actions. Importantly, to say that we act out of habit or in light of virtue is different from saying that we act on principle or in consideration of consequences. Instead, dispositions and habits are part of who we are as people. As we will see, however, this does not mean that we somehow either have these virtues

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Good Intentions

Virtuous Character

Right Actions Good

Consequences

FIGURE 10.1 Correlativity of Character, Action, and Consequences

or do not (e.g., as a function of personality); rather, virtue is something that, through regular practice, one comes to and continues to embody.

The exercise of virtue, then, does not follow from rational reflection or a desire to conform to duty; rather, it simply emanates from the person herself or himself. In other words, persons who demonstrate prudence through their choices and actions tend to be prudent people. This does not, however, mean that we should regard virtue as independent of actions and conse- quences. Rather, it is important to realize that there is a strong correlation between character and behavior. Though admittedly oversimplified, on the whole we can think of the relationship as depicted in Figure 10.1

In other words, virtuous character gives rise to good intentions which lead to right actions which produce good consequences. Part of the reason that right actions and good consequences are less significant in the virtue tradition than character is that the former tend to follow automat- ically from the latter. In other words, if we are virtuous people, we will almost invariably engage in right actions and right actions, in turn, often lead to good consequences. It would be difficult, for instance, for the kind person not to act kindly; it would be difficult for she or he who is compas- sionate to act other than compassionately. Virtue ethics recognizes that if we focus on character, ethically sound choices and behaviors will often follow (see Box 10.2).

Virtue and Negative Emotions

Virtues are not only tendencies to act in certain ways in certain situations, they are also tenden- cies to think, feel, believe, and desire in certain ways.8 Humility, for instance, has much to do with how we think about ourselves, our accomplishments and importance, while tolerance has much to do with how we think and feel about others. Having moral character is not simply a matter of being disposed to have good intentions and engage in right actions, but also concerns the psycho- logical states that give rise to intentions and that inform our choices and behaviors.

Especially problematic within the virtue tradition are incentives for human action that stem from “negative emotions”—often referred to as vices. Whereas virtues are dispositions to act in ways that benefit self and others, vices are traits of character or dispositions to act in ways that are indifferent toward or that harm oneself and/or others. In other words, vices are those characteristics that interfere with our capacity to be moral and that dispose us toward

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indifference or harm rather than morally desirable behavior. Below is a list of some character traits that are widely regarded as vices or “ways-of-being” that are in some ways harmful to oneself and/or others:9

Arrogance Callousness Cowardice Cruelty Dishonesty Disloyalty Envy Faithlessness Greed Ignorance Impatience Imprudence Ingratitude Insincerity Intolerance Irascibility Irresponsibility Jealousy Laziness Manipulativeness Mercilessness Prejudice Promiscuity Rudeness Selfishness Servility Shamelessness Tactlessness Unreliability Untrustworthiness

BOX 10.2

Actions and Intentions

Consider the following two scenarios:

Ralph is independently wealthy. Several years ago, he sold a company that he owned for a hefty $400 million. As part of that deal, he continues to receive an annual “payment” of $4 million per year. Yesterday, Ralph donated $1 million to Cure for Cancer—a charitable organi- zation. His donation, of course, is tax deductible. In addition, Cure for Cancer has decided to use the money to open the “Ralph Research Center.”

Louisa is a seventy-two-year-old widow who is currently unemployed and lost her entire retirement savings in an investment scandal. She has no savings, no checking account, no investments, and about $20 in her purse to last her until next week. While walking down- town yesterday, she came upon a home- less person who seemed tired, hungry, and suffering a good deal. After talking with him for several minutes, Louisa took her last $20 to the grocer on the corner and bought the homeless person food and a warm jacket.

Looking at the stories of both Ralph and Louisa, who would you consider to be the most virtuous?

Why? The difference between the two is not the action, nor is it the consequences of those actions. Ralph’s donation might be regarded as a right action with overall good consequences—particularly for himself. Louisa also performed what would likely be considered a moral action. The consequences of her charity, however, will not have the large-scale impact that Ralph’s did.

This, however, is where virtue ethics differs somewhat from Kant’s ethics and from utilitarian ethics in particular. Virtuous persons act on the basis of an “underlying disposition of concern for the well- being of others and themselves.” Louisa’s actions, it would appear at least, were motivated by just such a concern—she acted, in short, out of compassion. One might have difficulty, however, saying the same of Ralph’s actions. More likely, Ralph donated to the Cure for Cancer Foundation not out of compassion for persons with cancer, but largely from self-interest. While Ralph’s actions have far-reaching consequences, most of us would likely consider Louisa to be the more virtuous (and, therefore, moral) of the two. If we were interested only in consequences, we would be logically forced to regard Ralph’s actions as of higher moral quality. This is a function of something to which utilitarian moral philosophers do not attend; namely, the role of intention.

Source: Jupith Boss, Ethics for Life (Mountain View: CA. Mayfield, 2001). Quote is from p. 405.

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Part of the importance or value of virtue is that it enables us to overcome these sorts of negative emotions, desires, and tendencies. Contemporary virtue ethicist Philippa Foot suggested that virtues are corrective—they “correct” our tendencies toward indifference or harm.10 The virtues of compassion and forgiveness, for instance, help us to overcome tendencies toward anger, hatred, and the desire for revenge; open-mindedness can help us overcome tendencies toward prejudice; and humility and modesty can help us overcome arrogance and excessive pride. Virtues not only have the positive function of disposing us to do good, but have the negative function of aiding us in overcoming tendencies to think, feel, and act in ways that are immoral or otherwise demonstrate a lack of moral goodness (see Box 10.3).

VIRTUE AND THE GOOD LIFE

Ancient Greek philosopher Aristotle (384–322 B.C.E.) is perhaps the most widely recognized and widely discussed of virtue ethicists. Some would argue, in fact, that his Nichomachean Ethics (titled in reference to his son, Nichomachus) is the most important book ever written on ethics and morality. In any case, it is a text of crucial significance in philosophy, ethics, and virtue ethics more specifically. While some of Aristotle’s conclusions have since been the subject of controversy, his general theses about morality, virtue, and the “good life” are mainstays in discussions of ethics. In what follows, we outline several ideas that play a central role in the Nichomachean Ethics and that are vital to our discussion of virtue and its importance.11

BOX 10.3

Crime, Anger, and Forgiveness

In a recent essay on the role of virtue in criminal justice, Williams argues that the vice of resentment has come to define the American public’s attitude toward crimi- nal offenders and, consequently, has come to play an important role in many criminal justice practices (e.g., determinate sentencing, capital punishment). Problematically, he argues, the embodiment and expression of resentment and related desires for vengeance, retribution, and punishment more often lead only to further harm. Virtues such as forgiveness and mercy are crucial in helping us to overcome the negative emotions of resentment and the passion for revenge and punishment.

The emotional experience of anger, Williams sug- gests following Aristotle, is not one and the same with the belief that the offender should endure harm as a consequence of her or his offense. The experience of anger is justified; in fact, ignoring, overlooking, or for- getting about harms caused would be equally vicious (a deficiency indicative of an absence of proper anger). Yet the desire to express anger through harming the

offending party is a learned response to those initial feelings. Alternatively, the virtue of forgiveness asks not that we cease to feel anger, but that we overcome the desire to cause further harm that often issues from our emotional experience of anger. In this case, forgiveness “checks” anger, encouraging us to feel it with proper intensity and for the right length of time. Excessive anger can easily lead to hatred and the desire to respond excessively to an offense, causing more harm that what is called for.

Do you feel that the American criminal justice sys- tem is built upon resentment or the desire for vengeance and retribution? What practices demonstrate this? What practices are at odds with this claim? What role do you feel forgiveness plays in our current system of criminal justice? What role can or should forgiveness play?

Source: Christopher Williams, “Toward a Transvaluation of Criminal ‘Justice’: On Vengeance, Peacemaking, and Punishment,” Humanity and Society, 26 (2), 100–116 (2002); reprinted in Joseph L. Victor (Ed.), Annual Editions: Criminal Justice 05/06 (Dubuque, IA: McGraw-Hill).

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The Purpose of Human Life

Aristotle begins the Nichomachean Ethics by offering a simple but significant point—every action and every pursuit aim at some end or good.12 In other words, all actions are done for a reason or purpose. Why do we wake up in the morning? Eat breakfast? Brush our teeth? Go to school or work? To each of these questions we could no doubt offer one or more reasons (e.g., because we want to be healthy, because we want to make money or earn college credit). For Aristotle, however, each of these reasons has a further aim or purpose—we want to earn college credit so that we can get a job, we want a job so that we can earn money, we want to earn money so that we can . . . and so on. Ultimately, Aristotle tells us, all of these aims are motivated by one overriding aim or purpose. What is this ultimate aim or “highest good” toward which all of our actions in some way lead?

ARISTOTLE’S TELEOLOGY In asking what we aim at in life, Aristotle was ultimately concerned with what makes a life worthwhile or “good.” Answering this question, however, requires some understanding of the ultimate purpose of human life. It is only once we know the purpose of human life that we can begin to talk about what a “good” human life would be. This notion of “purpose” is fundamental to Aristotle’s ethics and his philosophy more generally. Aristotle has a teleological (end, purpose, goal) view of the world, meaning that he understands behavior to be goal-directed or aimed at achieving some purpose or end. Everything in the world—from inani- mate objects such as knives, to plants and animals, to human beings has some “inborn” purpose. Knives cut, flowers blossom, caterpillars turn into butterflies, and so forth. If we know that the purpose of knives is to cut, then we can deduce that a “good” knife is one that cuts well; if we know that the purpose of a flower is to blossom, we might say that a flower which has blossomed has in some sense lived a good, meaningful life in that it has fulfilled its purpose.

INTRINSIC GOODNESS Aristotle applies this same logic to human purpose and existence. What is the highest human good or ultimate purpose of human existence? Before looking more closely at this idea of “purpose” as it relates to human life, we need to revisit an idea we were exposed to in Chapter 2 and again in Chapter 8. In our discussion of values, we briefly discussed the distinction between intrinsic and instrumental goods and values—the former being those things that are good in themselves, and the latter being those things that are good only because they allow us to get some higher or more important good. Money, status, and power, for instance, are instrumental goods in that they are valuable only to the extent that they allow us to achieve or maintain other things that are more intrinsically valuable or desirable. Other things such as health and knowledge are regarded by many to have intrinsic value. Even if health and knowledge may help us to achieve or maintain other goods (in fact, they may even be necessary to achieve or maintain certain other goods), they are valuable in and of themselves. The purpose of health, for instance, is simply to be healthy. The value or “goodness” of health and knowledge do not disappear even if they are not used for anything in particular.

THE HIGHEST GOOD You may recall that we mentioned in this same context that, for many of the ancient Greeks, the only thing that was intrinsically good was happiness. Happiness was the “highest good” and, ultimately, all other goods, values, and human pursuits could be reduced to means or efforts to attain or maintain a “happy” existence. Indeed, Aristotle makes precisely this claim in the Nichomachean Ethics. His answer to the question of what we aim at in life is that we aim at happiness. This, for Aristotle, is the “highest good”—the good toward

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which all other goods lead. Leading a “happy” existence, in fact, is the very purpose of human life—it is what we aim for in life, what we naturally strive to achieve, and what all of our other pursuits are ultimately about. If we think about why we do anything at all, our answers will eventually lead us to realize that everything we do is done to further our pursuit of happiness. Consider the following example:

Why do I wake up in the morning? I wake up in order to go to school.

Why do I go to school? I go to school in order to get a degree.

Why do I want a degree? I want a degree in order to get a job.

Why do I want a job? I want a job in order to make money.

Why do I want money? I want money in order to buy a house, food, etc.

Why do I want these things? I want these things so that I can have shelter, nourishment, etc.

Why do I want these things? Ultimately, I want these things because they allow me to pursue a “happy” existence.

Although your answers to the above questions may vary, Aristotle would argue that even- tually we are led to conclude that everything we do is ultimately done as a means for achieving the highest human good—a happy existence. All other goods are good only in that they allow us to pursue or maintain happiness, and all other values are valuable only in this same sense. Yet what exactly is “happiness”? How are we to achieve it? We will return to these concerns shortly. Before we judge Aristotle on this claim, however, we should understand that what Aristotle means by “happiness” and “happy existence” is a bit different from how we might use these terms in everyday conversation.

The Fulfilled Life

“Happiness” has a particular meaning for Aristotle (and the ancient Greeks more generally), and one that is central to understanding his ethics. The term Aristotle uses to describe the “good life” is eudaimonia—a Greek term that is often translated as “happiness” or “well-being” but, for Aristotle, means something closer to “flourishing.” To be “happy” or to “flourish” is to live a fulfilled life. When flowers blossom and caterpillars become butterflies, they are flourishing in that they are fulfilling their ultimate purposes. In an important way, they are living “good” or “happy” lives. To know the “good life,” we must know in what the fulfilled life would consist; and to know the fulfilled life, we need to know something about the function or ultimate purpose of that life.

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BEING EXCELLENT So far, we know that the highest good for human beings is happiness, that happiness consists in flourishing, that flourishing has to do with living a fulfilled life, and that fulfillment has something to do with our ultimate purpose as human beings. What is a realized or fulfilled life for human beings? To answer this, we need to consider Aristotle’s conception of human function. Before doing so, however, we need to consider one more concept that appears prominently in Aristotle’s ethics—that of “excellence.”

For Aristotle, “function” is closely linked with the notion of “excellence” or “virtue.” The “good” or “fulfilled” life requires the embodiment and exercise of excellence (or virtue) in relation to function (i.e., performing one’s function with excellence). Thus, a knife is good to the degree that it excels at the function of cutting, while a medicine is good to the degree that it excels at its intended function of healing or alleviating symptoms of illness. By knowing the function of some- thing, we can know what it means to be an “excellent” or virtuous thing of that sort. Generally, to exercise excellence or virtue is to do something “in such a way that one’s skill, or virtue, is expressed in the way it is done.”13 The degree to which someone or something acts or performs its function with excellence or virtue, in turn, is the degree to which we can attribute “goodness” and “fulfillment” to that person or thing.

The excellences or virtues that are of primary concern for Aristotle are those that belong to one’s moral character. Courage, for instance, might be regarded as a moral excellence, and the exercise of moral excellence or virtue would entail doing something in such a way that one’s courageousness is expressed in how it is done. Again, moral excellences or virtues are traits that would allow for human beings to flourish in pursuing their ultimate function or purpose as human beings. To talk about moral virtues, then, we need to ask questions about the function of human beings, the purpose of human existence, and the qualities and charac- teristics that allow for human beings to fulfill those functions and flourish with respect to those purposes.

HUMAN FUNCTION AND PURPOSE Aristotle would thus suggest that when we talk about the virtue, excellence, or goodness of a thing, we should understand it in relation to the function of that thing (i.e., what the thing is for). “Excellences” or virtues are traits that enable things to flourish in performing their intended functions or in fulfilling their purposes (e.g., a knife is for cutting and the sharpness of a knife is an excellence or virtue that assists in the performance of that function). If we know that the function of ears is to hear and the function of teachers is to impart knowledge, then we can deduce whether someone’s ears are excellent and whether a given teacher is excellent. Both ears and teachers are excellent or virtuous to the extent that they fulfill their function. Logically, if we can know the function of human beings, we can know what it means to be an excellent or virtuous human being. What does Aristotle suggest is the function of human beings?

If we are looking for an answer that is provocative, controversial, or entertaining, we are not going to find it in Aristotle. However unsatisfying it may be to some, Aristotle’s answer to this question is nevertheless an important one. Specifically, he claims that the function and purpose of human being, and thus the characteristic feature of human excellence, is rational activity. Our capacity to reason is what distinguishes us from all other living (and nonliving) things. Unlike pleasure and procreation (other common answers to the question of human purpose), higher- level reasoning is a characteristic that human beings do not share with other animals. Thus, the good or excellent human life must have something to do with making use of this distinctive capacity. Being excellent or virtuous is thus about utilizing and expressing our rational potential in our choices and actions.

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For Aristotle, then, virtue is a kind of practical use of reason, whereby we utilize our specifi- cally human capacity for reason and rational reflection to determine what choices to make and what actions to undertake. We will see shortly that the exercise of virtue is not as simple as being a certain way in a certain situation. For Aristotle, there are no easy answers to what types of choices or actions are virtuous in a given context. Instead, we have to “figure it out”—we must use judgment. In so doing, we are employing practical wisdom or moral rationality. When we lead our lives in such a way that we exercise practical wisdom or moral rationality, we are acting with virtue and we are living a fulfilled or “happy” human life.

THE ACTIVITY OF VIRTUE In other words, for Aristotle, the fulfilled life is a life in which our specifically human capacity for rational activity is put to good use. We are well, happy, and flourish when we exercise virtue. Importantly, happiness and flourishing are ways of doing things. They are activities. Excellence or virtue, well-being and happiness are not about possessing something or attaining a certain condition or state of affairs; rather, they are about living our lives a certain way. A flourishing life is a life of virtuous activity. More specifically, flourishing involves the exercise of reason or practical wisdom as we make the choices that we do and engage in the actions we undertake while experiencing our lives. Before we turn to a closer examination of virtue and practical wisdom, let us conclude here with several summary points about Aristotle’s conception of the “good life.”

• The good life involves the possession of good character • More specifically, the good life further involves living in such a way that one expresses one’s

good character in one’s choices and actions • Expressing virtue (moral character) in our choices and actions is the foundation of well-being,

happiness, and flourishing (i.e., eudaimonia) • Well-being, happiness, or flourishing is ultimately what we aim at in life (i.e., the highest good) • In living a life according to virtue, we are flourishing and, in so doing, we are fulfilling our

very function or purpose as human beings

VIRTUE AND HUMAN FLOURISHING

We have seen that, for Aristotle, everything in the world has some “inborn” purpose. Just as flowers blossom and caterpillars turn into butterflies, all things strive to fulfill their purpose— including human beings. Once we have identified these purposes, we can then talk about what traits enable them to flourish in fulfilling that purpose. Once we recognize that the purpose of a knife is to cut, for instance, we can ascertain that the trait of “sharpness” is that which allows it to excel at that purpose. In the context of human life, once we understand human purpose and what we aim for in life (i.e., the highest good), we can begin to talk about what traits of character and what types of behaviors are necessary for helping us live purposively. Virtues become moral excellences that enable humans to function well, and vices become precisely the opposite. In other words, we can redefine virtue and vice, respectively, as traits of character that promote human flourishing, and those that hinder it.

Consider, for instance, how embodying the virtue of courage might assist a person in living a good life (earning respect from peers, doing well in academic and athletic pursuits, interviewing for and getting a job); alternatively, consider how lacking the virtue of courage might inhibit a person in these same pursuits. Some traits of character clearly aid us in living a good life, while others such as envy and jealousy clearly interfere with this purpose.

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Human Flourishing

Aristotle was interested in offering a generalized portrait of human well-being, happiness, and flourishing that applies to all people everywhere. In other words, Aristotle believed that, despite individual differences, all human beings are similar in certain respects. It is not differences between people that tell us something about human happiness and flourishing; rather, it is the similarities that we share as human beings that can help us to understand what it means to be well, flourish, and be happy. Though we depart somewhat from Aristotle’s conception of human flourishing here, we might consider more recent philosophical and psychological insights into human well-being. Our interest in this section is in outlining what we can call “universal conditions of well-being, happiness, and flourishing”—those elements of being well, happy, and flourishing that are characteristic of and sought after by all people and, consequently, represent a foundation for thinking about virtues and vices, good and evil in relation to human life.

BIOGENIC NEEDS At a most fundamental level, all human beings have basic biological needs that must be met as a precondition for the possibility of further well-being, happiness, and flour- ishing. How, for instance, can we expect the homeless person who struggles for food and warmth to spend time developing traits of character that will enable him to flourish? What we might call biogenic needs are those linked with the maintenance of life.14 These include such universally necessary and desired goods as food, housing, clothing, clean air, adequate medical care, and exercise and physical recreation. To this we might also add goods such as safety and security that are necessary for biological survival (animals will go days without even food and water if they feel their physical safety is at risk). Each of these goods must necessarily be met before one can pursue higher goods. It will do little good, for instance, to encourage the homeless, starving, and physically ill person to pursue a life of compassion, justice, and generosity.

COOPERATION Fulfillment of biogenic needs is, however, not sufficient for well-being, happiness, and flourishing. As psychologist Erich Fromm (1900–1980) reminds us, “man does not live by bread alone.”15 Indeed, simply having one’s basic biological needs fulfilled does not make for the “good life” in the sense in which Aristotle discussed it. In large part, this is because human beings also share another universal feature—in addition to being biological entities, we are also social beings. Our nature as human beings demands that we live in communities, cooperating with and depending upon one another—not merely for survival, but also to be well, happy, and flourish.

Aristotle recognized that human beings, like many other species of beings, are social animals. In other words, we are not best suited for solitary lives independent of other human beings. We live in groups because we must live in groups to survive and to have better opportunities for being well and flourishing. As interdependent creatures, our needs and desires are best met or satisfied by cooperating with others. If John is a good farmer yet knows nothing about managing finances or building houses, Liz has exceptional money-management skills yet knows little about farming and building houses, and Jane is adept at building houses but not so good with farming or money, then each stands to benefit from the others. Liz’s financial talents do little for her flourishing if she has no house in which to live and no food to eat. The same logic applies to John and Jane. Although this is obviously an oversimplified example, it demonstrates Aristotle’s point that human beings must live in groups if we are, collectively, to survive and flourish.

CONNECTEDNESS Because we are social animals, destined to live interdependently and cooperatively in groups, we have other types of social needs that emerge from these living circumstances. We seem, for instance, to have needs for affection, love, friendship, and family,

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as well as those for belonging and to be “connected” in meaningful ways with other people. We thus depend on other people not only for survival and for purposes of meeting basic biological needs, but also to meet social and psychological needs.

The necessity that human beings live in groups to flourish creates consequent needs. While French existentialist philosopher Jean-Paul Sartre once suggested that “hell is—other people!”16 there is a sense in which life without other people would be equally hellish. Imagine, for instance, having to live the rest of your life on a deserted island or in solitary confinement in a prison.17 Even if your basic needs were met, chances are you would not consider it a life of well-being, happiness, and flourishing. Humanistic philosopher Carliss Lamont once suggested that “ . . . people experience their deepest and most enduring joys, not as solitary hermits on some mountain top or desert isle, but in association with their peers, their friends, or their family.”18

The Value of Virtue

Healthy, cooperative, and caring relationships with other people thus become necessary elements of the “good life.” Much as life as social animals provides us with opportunities to flourish that we would not otherwise enjoy, it also creates difficulties that we would not experi- ence in solitary circumstances. In short, group life means that we must be able to “get along” with one another. We must cooperate with one another, respect one another, care for one another, and be considerate of one another’s interests; we must reach compromises with others, be willing to sacrifice our own wants and desires for the sake of the needs of others; we must be able to resolve conflicts—ideally in constructive, nonviolent ways—when they arise; on the whole, we should be able to be well, happy, and flourish ourselves while contributing to the well-being, happiness, and flourishing of others. This, we might suggest, is precisely where the value of virtue is to be found.

Imagine, for instance, the difficulties that might arise in a family, organization, community, or society in which members are disposed toward selfishness, prejudice, envy, and intolerance. Not only will such persons be unhappy themselves, as Aristotle suggested, but their dispositions will give rise to a host of interpersonal conflicts and problems. In such a situation, we would no doubt find a family, organization, community, or society in which the possibility of well-being, happiness, and flourishing for all people would be substantially diminished—in fact, nearly impossible. Part of the value of the virtues is that they can assist us in overcoming these vices, thus allowing for meaningful, productive human relationships that benefit the well-being of all involved. Dispositions toward compassion, care, and concern for others, for instance, not only give rise to positive relationships (thus augmenting our own pursuit of happiness), but also create a foundation for group life wherein all people have a better opportunity to realize their own potential and thus flourish as human beings.

Virtues, then, are not valuable in that they can get us money, status, power, or other instrumental goods; rather, virtues are good in that they allow us to pursue the ultimate or highest “good” of human existence—happiness or flourishing. The embodying and practice of virtue (and the avoidance or elimination of vice) will, in turn, provide the greatest opportunity to live a life of wellness, flourishing, and happiness and, simultaneously, provide the same sorts of opportunities for others. Thus virtues can be understood as all of those traits that in some way contribute to human well-being and flourishing, while vices are those traits that interfere with human well-being and flourishing or make them

less likely.19 With this in mind, let us look more specifically at the types of character traits that are typically regarded as virtues.

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VIRTUE, WISDOM, AND THE “GOLDEN MEAN”

Of moral virtue, Aristotle suggested that it, “is concerned with feelings and actions, and these involve excess, deficiency, and a mean.”20 One of Aristotle’s most widely discussed ideas on virtue is this notion of the golden mean (sometimes called the “doctrine of the mean”). Aristotle suggested that all virtues are means between two extremes of deficiency and excess. More specifically, he suggests of virtue that it is, “a mean between two kinds of vice, one of excess and the other of deficiency.”21 In any given situation and with regard to any given feeling or action, it is possible to have too much or too little of something. In both instances, what amounts is vice. In addition, we can find virtue by identifying these vices of deficiency and excess and finding the “middle road” between the two. It is possible, for instance, to feel too much anger, pity, or pleasure. It is equally possible to feel too little of these things. Virtue requires that we have such feelings, “at the right times on the right grounds towards the right people for the right motive and in the right way.”22 This “middle way” of feeling, he tells us, “is the mark of virtue.”

For every type of feeling, Aristotle is suggesting, there is some form of it that would be considered excessive and some form of it that would be regarded as deficient. The same applies for every type of action:

• “For both excessive and insufficient exercise destroy one’s strength, and both eating and drinking too much or too little destroy health, whereas the right quantity produces, increases and preserves it.”23

• In cases where we face danger, being “cowardly” would constitute a moral deficiency, whereas being “foolhardy” would constitute a moral excess. The mean lying between the vicious extremes of cowardliness and foolhardiness is the virtue of courage.

• With regard to how we should feel about ourselves and our own accomplishments, we might recognize as vices the excessive trait of arrogance (thinking too much of oneself) and the deficient trait of servility (thinking too little of oneself). Somewhere between these vices of deficiency and excess lies a middle ground that entails “self-respect” and “self-esteem,” or what Aristotle called “proper pride.” Self-respect and self-esteem can benefit one’s well-being, happiness, and flourishing, while traits such as servility and arrogance will have a detrimental impact on this pursuit.

The Golden Mean and Practical Wisdom

Recall that Aristotle suggested that virtue had to do with practical wisdom. This link with human reason and rationality is most evident in his conception of virtue as a mean. Supposing we know that courage is a virtue, what exactly is a courageous act? Aristotle in no way meant for his doctrine of the mean to serve as a “science”of ethical decision-making and behavior. In fact, he tells us that virtue and morality are in no way exact. Instead, they are situational—what may be courageous for one person may be cowardly for another, and what may be courageous in one situation may be cowardly in another.24 The exercise of virtue demands that we exercise practical wisdom in any given situation.25

In other words, virtue requires experimentation. It requires that we engage in life. Persons of practical wisdom “have developed skills to make the right decision at the right moment and to act efficiently on those decisions.”26 A courageous act is one that a person of practical wisdom deems to be courageous at a given moment in a given situation. As there is no “quick and easy” defini- tion of virtue and virtuous behavior that can apply to all persons in all situations, the exercise of virtue requires that we practice, learn from our experiences, and make an effort to continually develop our moral character. While some traits are inborn, the moral virtues must be developed.

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They are habits of character, and habits are developed through practice. We learn the virtues by exercising them regularly. In Aristotle’s terms:

Anything that we have to learn to do we learn by the actual doing of it. People become builders by building and instrumentalists by playing instruments. Similarly we become just by performing just acts, temperate by performing temperate ones, brave by performing brave ones.27

Aristotle’s Virtues

Aristotle named only a handful of virtues, including the “intellectual” virtues of wisdom and prudence, and the “moral” virtues of courage, temperance, liberality (i.e., generosity), magnificence, proper pride, gentleness, truthfulness, justice, patience, friendliness, modesty, and wittiness. In relation to these named virtues, his “golden mean” looks something like this:

Deficiency (Vice) Mean (Virtue) Excess (Vice)

Cowardice Courage Foolhardiness Inhibition Temperance Overindulgence/intemperance Miserliness Liberality Prodigality/extravagance Shabbiness Magnificence Bad taste/vulgarity Lack of ambition Proper pride Ambitiousness Poor-spiritedness Gentleness Irascibility Peevishness Friendliness Obsequiousness/flattery Maliciousness Righteous indignation Envy Sarcasm Truthfulness Boastfulness Boorishness Wittiness Buffoonery Shamelessness Modesty Shamefacedness

Attitude toward Self

Vices of Deficiency Virtues Vices of Excess

Attitude toward Self Self-deprivation; Servility

Proper self-love; Proper pride; Self-respect

Arrogance; Egoism; Narcissism; Vanity

Attitude toward Our Own Offenses

Indifference; Remorselessness; Downplaying

Agent regret; Remorse; Making amends; Learning from them; Self-forgiveness

Toxic guilt; Scrupulosity; Shame

Attitude toward Our Own Good Deeds

Belittling; Disappointment

Sense of accomplishment; Humility

Self- righteousness

Attitude toward Our Own Desires

Adhedonia Temperance; Moderation

Lust; Gluttony

We can also think of vices of excess and deficiency as they appear in our attitudes toward ourselves and our attitudes toward others. Contemporary moral philosopher Lawrence Hinman gives us the following list:28

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The Unity of Virtue

Finally, we should point out that, even though it is common to discuss the virtues as though they were individual traits, Aristotle reminds us that virtue is better regarded as an “overarching quality of goodness or excellence that gives unity and integrity to a person’s character.”29 On this note, we can think of virtuous people not only as those who exhibit virtuous traits, but also as those who serve as examples to follow—as role models for moral behavior. They are people who can be “counted on to act in a manner that benefits others” and who show a “willingness to perform supererogatory actions— going beyond what is required by everyday morality.”30 Rather than a collection of personality traits, then, virtue is best thought of as a unifying concept.31 A “good person” is virtuous in the sense of having a more global disposition to act in ways that benefit herself or himself and others.

THE ETHIC OF CARE

In Chapter 7 we were briefly introduced to Carol Gilligan’s research on gender differences in moral development and moral reasoning. Gilligan’s insights, along with those of Nel Noddings and others, are sometimes referenced as grounds for an alternative moral framework that emphasizes care and related virtues such as compassion, tolerance, and benevolence.32 Though not identical to virtue ethics, an ethic of care shares much in common with the tradition of virtue.33

Based on her research, Gilligan suggests that there are two fundamentally different orienta- tions toward moral scenarios—one more characteristic of, but not limited to, males; the other more characteristic of, but not limited to, females. The “male” orientation (termed the rights/justice orientation) is more consistent with the dominant mode of Western moral reasoning that perceives the world as comprised of isolated, independent, rights-bearing individuals. Through this lens, justice is a matter of impartially and universally applying laws, rules, procedures, and principles to the case at hand.34 Importantly, the justice approach tends to dismiss or deny a role for emotions—even those that may be beneficial such as care, compassion, love. Each of the approaches to moral decision-making examined prior to this chapter— utilitarianism, duty- and rights-based ethics, social contract theory—encourage the application of abstract principles to moral dilemmas, often specifically cautioning against allowing emotions to bias our judgment.

Arguably, however,“cultivating appropriate feelings and emotions” is a key part of becoming ethical—“we should try to make ourselves more empathic, sympathetic, compassionate, loving, and caring and less indifferent, hostile, and prejudiced.”35 As an alternative to the justice mode of

Attitude toward Others

Attitude toward Other People

Exploitation Respect Deference

Attitude toward Offenses of Others

Ignoring them; Being a doormat

Anger; Forgiveness; Understanding

Revenge; Grudge; Resentment

Attitude toward Good Suspicion; Envy; Gratitude; Over-indebtedness Deeds of Others Ignoring them Admiration Attitude toward Suffering of Others

Callousness Compassion Pity; “Bleeding heart”

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moral reasoning, an ethic of care stresses relationships, situational and contextual factors, and the unique needs and interests of affected parties as key considerations for moral issues and dilemmas. It conceives morality “contextually and in terms of interpersonal relationships and connections.”36

Rather than isolated, independent individuals, we are each fundamentally interdependent and connected to one another; rather than justice being linked with impartiality and universally applicable rules, it is best understood in relation to the situation and the particular or unique needs and interests of all parties involved;37 and rather than asking questions about relevant moral duties or applicable general principles, we should ask,“What is the loving or caring thing to do?”38

Care should not be confused with a moral duty or principle which should or must be followed; rather, it has more in common with virtue—it is an attitude or disposition, a way of perceiving, experiencing, and responding to the world. Especially important to a caring disposition is that we be mindful—seeking to understand and know the needs and interests of others and take these into consideration in our moral reasoning. We must “take on the standpoint or role of others . . . We must imaginatively project ourselves into the emerging dramas of their lives . . . ” Consider the problem of homelessness. Being mindful, compassionate, and caring might entail imagining what it would be like to be homeless and thereby becoming connected to the nature of that form of suffering; “ . . . being upset, distressed, regretting the different aspects of [the] plight”of the homeless, and wishing that such suffering did not exist; and “giving thought to what might be done to alleviate” that suffering.39 It is not so much that we feel a moral duty or obligation to aid the homeless, but that we perceive ourselves as being connected to them through their suffering, and this connection inclines us to act in benevo- lent ways and to avoid causing further harm or exploitation (see Box 10.4).

An ethic of care thus offers an alternative approach to moral issues and dilemmas which allows for greater sensitivity to the needs and interests of others. At the risk of oversimplifying, we might summarize by noting that an ethic of care:

BOX 10.4

Caring, Suffering, and the Perception of Desert

Especially important to an ethic of care is that we rec- ognize that, despite our superficial differences, we are all similar in important respects. We are, for instance, “fellow sufferers”—we know, on some level, what it is like to suffer physically and emotionally. Whether we have limited food to eat, not enough money to pay bills, are victims of crime and abuse, grapple with a debilitating illness, or are shunned by friends, suffering is an experience to which all of us can relate. Because it is universal, suffering is perhaps the most fundamen- tal way in which we are all connected to one another. Recognizing this connectedness allows us to increase our awareness of and sensitivity toward the pains and struggles of others.

Indeed, suffering is a fundamental human experience that cuts across social divisions such as race, class, gender, religion, and age. Moreover, it

does not discriminate between those who deserve it and those who do not. However, we often perceive suffering as something experienced only by those who do not deserve to deal with the situation in which they find themselves—the undeserved suffer- ing of innocent children, crime victims, persons afflicted with disease, and the like. In contrast, oth- ers are perceived as deserving of their condition and, consequently, may be considered less worthy of our care and sympathy. Aristotle made precisely this point in his discussion of the virtue, noting that our experience and exercise of compassion may be tied to our perception of whether a fellow sufferer deserves her or his suffering. In other words, our belief about whether suffering is justified may interfere with our capacity to relate to others in compassionate ways.

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• Values “compromise and accommodation”; • “Seek[s] solutions that will minimize pain and suffering for all involved”;40

• Focuses on relationships between people, seeking to create, preserve, or strengthen rela- tionships while addressing the needs and interests of all involved—particularly those with the least power, status, and thus the most vulnerability;

• Attends to “all of the concrete details of a situation in order to understand it in all of its individuality and specificity”;41 and

• Encourages us to imagine alternative solutions that we may not have considered—“focus[ing] less on deciding between given alternatives than on envisioning new alternatives . . . that we meet everyone’s needs . . . ”42

VIRTUE, CARE, AND CRIMINAL JUSTICE

As we have seen, virtue ethics emphasizes moral character, the embodiment of virtue in one’s deci- sions and actions, and the avoidance of vice. The ethical codes and statements of principles devel- oped by professional organizations in virtually every field of practice continue to emphasize traits of character that are regarded as necessary and beneficial within those professions. Within criminal justice, some virtues are conventionally regarded and commonly cited as critical. Examples include:

Honesty

• Law enforcement officers “ . . . shall be accurate, complete, and truthful in all matters.” (International Association of Chiefs of Police, “Model Policy on Standards of Conduct”);

• Lawyers “shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresen- tation” and “shall not . . . use or participate in the use of any form of public communication

In a study of contemporary American attitudes, for example, Candice Clark found that sympathy is less forthcoming when we perceive suffering to result from malfeasance, negligence, risk-taking, or when it is perceived as in some way being brought on by the sufferer’s own actions. Poverty may be regarded as a deserved form of suffering if perceived in terms of personal responsibility rather than economic forces or “bad luck,” and even sexual assault victims are some- times regarded as provoking or precipitating their own victimization. In the context of criminal offend- ing, of course, we regularly regard the suffering of legal punishment as deserved—even as “justice.”

Even in such cases where persons “deserve” to suffer by most accounts, the absence of compassion is not justifiable from a care or virtue perspective. How are we to have compassion for a convicted criminal offender? As moral philosopher Lawrence Blum suggests, we can “ . . . have compassion for someone in a difficult or miserable situation without

judging his overall condition to be difficult or miser- able.” In other words, it is possible to regard the condition of imprisonment as just and deserved without losing our compassionate awareness for the suffering an offender endures as a consequence of that imprisonment (e.g., isolation, separation from family, victimization by other offenders).

How might we “care” in such a situation? If compassion inclines us to refrain from adding more suffering to those who already suffer, what policies and practices might we support (or oppose) within jails and prisons? As is often argued with regard to impris- onment, offenders are sent to prison as punishment, not for it. Combined with compassionate awareness, what implications might this logic have for how we treat incarcerated criminals?

Source: Candice Clark, Misery and Company: Sympathy and Everyday Life (Chicago, IL: University of Chicago Press, 1999); Lawrence Blum, “Compassion.” In A. Rorty (Ed.), Explaining Emotions (Berkeley, CA: University of California Press, 1980).

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involving a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.” (American Bar Association, “Code of Professional Responsibility”).

Justice

• “Corrections leadership . . . must ensure that employees are treated with righteous standards of fairness and justice . . . ” (American Correctional Association, “Declaration of Principles”).

Wisdom/Knowledge

• “Corrections must be committed to pursuing a continual search for new knowledge . . . ” (American Correctional Association, “Declaration of Principles”);

• “A lawyer is aided in attaining and maintaining his competence by keeping abreast if current legal literature and developments, participating in continuing legal education programs . . . and by utilizing other means.” (American Bar Association, “Code of Professional Responsibility”).

Responsibility/Accountability

• “Accountability is a keystone of sounds corrections practice; therefore, all those engaged in corrections activity should be held responsible for their actions and behavior.” (American Correctional Association, “Declaration of Principles”);

• “Officers shall accept responsibility for their actions without attempting to conceal, divert, or mitigate their true culpability . . . ” (International Association of Chiefs of Police, “Model Policy on Standards of Conduct”).

Temperance

• “A lawyer . . . should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct.” (American Bar Association, “Code of Professional Responsibility”).

Other virtues, however, appear less frequently in discussions of moral character and criminal justice. While bravery and courage are widely regarded as admirable qualities among criminal justice profes- sionals, are compassion, mercy, and love desirable qualities for police officers, judges, prosecutors, prison guards, and others in the practice community? Moreover, is the “masculine” justice orienta- tion to criminal justice policy and practice more desirable than its care-based alternative? Although the implications of caring as an ethic have not been fully developed within criminal justice studies, it raises some important questions about (and criticisms of) many current criminal justice policies and practices.

Justice and the Ethic of Care

As previously discussed, a key component of caring is having and utilizing the capacity to empathize—to consider the needs and interests of all people involved in a situation. Seeking to know others and project ourselves into their situations is not only the basis of caring, but arguably is crucial to justice as well. It is this element of the ethic of care that is perhaps most relevant to the resolution of conflicts, cases, and issues in the realm of criminal justice. Those promoting an ethic of care would point out that the American criminal justice system leaves little—if any—room for the types of considerations that are central to caring. The American legal system, for instance, operates largely according to the “rights/justice” approach. Judges are expected to decide cases with reference to the rule of law and legal precedent; to approach cases in

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an impartial, unbiased fashion and decide similar cases in a like-minded fashion. In other words, the same resolution (e.g., determination of guilt, sentencing decision) may be applicable in many different cases, so long as the legal facts of those cases are similar.

The ethic of care would seem to promote a radically different approach to the resolution of legal cases. Rule of law, legal precedent, and legal facts would be less important considerations than contextual or situational factors. As we have seen, the ethic of care centralizes contexts, situations, and relationships. Justice cannot follow from the application of universal rules and principles; rather, justice emerges when we attend to the uniqueness of human situations and of the people involved in those situations (see Box 10.5). Resolving conflicts in both criminal and civil spheres would require that judges come to know the details of a particular situation, the persons involved in and affected by that situation, and make a determination on the basis of those particulars—not, as traditional conceptions of law and justice would have it, on the basis of a law, rule, principle, or precedent that is meant to apply to all similar cases. In a criminal case, for instance, this may mean that judges would need to make an effort to “know” the defendant, consider her or his life circum- stances and motives, and take these into consideration when making a ruling.

BOX 10.5

Restorative Justice

As an example of an alternative approach to criminal justice which focuses less on abstract legal principles and more on the needs and interests of all parties affected within a particular situation, consider the rela- tively recent movement toward restorative justice. Restorative justice is an approach to justice which focuses on repairing harms caused by criminal offend- ing through programs that seek to involve the offender, the victim, and the community in the restorative process.43 Rather than focusing on the individual offender and abstract principles such as those derived from law, restorative justice emphasizes relationships and the needs and interests of all parties affected by crime. As traditional approaches to criminal justice focus almost exclusively on the offender, restorative justice is argued to provide an alternative that allows for the forgotten victim as well as representatives from the community to become involved in forging a solution that benefits all parties involved.44

One of the more popular and widely used restora- tive justice programs is Victim-Offender Reconciliation. Victim-Offender Reconciliation Programs (VORP) bring offenders and victims together in a setting that promotes a healthy interaction between them. Under the guidance of a trained mediator, victims have the opportunity to explain the harm that was caused by the offender and the ways in which the criminal event has affected their lives. The offender, in turn, has an

opportunity to explain her or his motivations to the victim. As John Fuller writes,

Sometimes all the victim wants is to tell his or her story to the offender and receive an apology. Sometimes the offender welcomes the opportunity to confess his or her transgression without fear that the court will use it to impose a harsh sentence.45

Overall, as “each side learns more about the humaneness and circumstances of the other, they are able to craft solutions” that identify the injustice, make things right, and establish mechanisms for future action.46

Victim-Offender Reconciliation Programs, as well as other restorative justice programs such as family group conferencing and victim-offender panels seek to re-involve the victim and the community in a legal process that has lost sight of them. Justice, some have argued, requires that victims, offenders, and communi- ties be healed, and that all involved parties are offered an opportunity to participate in the healing or restora- tive process.47 Doing so not only repairs the harm caused, but arguably does much more for the preven- tion of future offending than traditional models of criminal justice.

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A contemporary criminal justice trend that would seem to be at odds with this type of approach is the movement toward determinate sentencing schemes. Many states have now implemented sentencing guidelines that severely restrict the amount of discretion judges have in deciding sentences in individual cases. Consequently, judges are unable (or less able) to take situational and circumstan- tial factors into consideration. Instead, judges are forced to impose sentences within a limited range that is defined by legislatures. For example, an offender convicted of a residential burglary might be sentenced to twenty-three months in prison, as mandated by sentencing guidelines, regardless of the circumstances of the crime or the offender. In theory, determinate sentencing produces uniformity, proportionality, and equity in sentencing decisions. In addition, it prevents judges from considering the types of situational factors that an ethic of care might otherwise showcase.

Beyond judicial decisions, the ethic of care would seem to have relevance for a range of decisions and decision-makers in criminal justice settings. In policing, for example, caring would entail officers seeking to know the people and circumstances involved in the situations they confront on a daily basis. Approaching law enforcement scenarios in this way would require individual officers to make liberal use of discretionary powers, considering the needs and interests of all parties involved in a conflict or situation before resolving it. To illustrate, not all persons who violate the law would require arrest. In at least some cases, the needs and interests of lawbreakers, victims, and the public may be better served by not making an arrest (or not ticketing traffic violators, etc.). This is commonly referred to as selective enforcement of the law. Because situations and the people involved in them are unique, the same approach may not be desirable in all factually similar cases. In addition, critics of selective enforcement have argued that allowing officers to rely on their own judgment (including moral sensibilities) in deciding when to make arrests markedly increases the likelihood of discrimination, favoritism, and other undesirable influences affecting decision-making. In other words, discretion might not always be used in the interest of care (see Box 10.6).

Do the benefits of adopting a care orientation in judicial and law enforcement decision- making outweigh the potentially negative consequences of selective enforcement and individualized sentences? Should judges, juries, police and correctional officers, and others involved in the criminal justice system embody an ethic of care when deciding cases or making decisions? Do virtues such as compassion, mercy, tolerance, and benevolence have a place in criminal justice? From a care perspective, these are precisely the questions that we should be asking ourselves. Further, our answers to these and related questions might have a profound impact on the future of criminal justice practice.

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BOX 10.6

Domestic Violence and Mandatory Arrest Policies

A good example of a conflict situation involving rela- tionships and unique needs and interests—yet for which the breadth of officer discretion has been criticized—is that of domestic violence. Historically, domestic violence offenders were not always—or even often—arrested. Decisions about whether to arrest, separate the parties for a temporary “cooling

off” period, attempt to mediate the dispute, refer the couple to counseling, or employ some other means of resolving the conflict were largely in the hands of the officer(s). In part because of concerns raised by victim’s advocates, some police agencies have imple- mented mandatory arrest policies that require police officers to make an arrest wherever possible.

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Summary

Virtue ethics differs from consequentialist and deon- tological ethics in the very question with which it begins. Rather than asking the question, “What should I do?” virtue ethics insists that we ask a differ- ent normative question—“What kind of person should I be?” In so doing, the virtue tradition displaces emphasis on duties and consequences and shifts it to considerations of moral character—on “being” a certain kind of person instead of “doing” certain kinds of actions or bringing about certain types of consequences. Character is thus emphasized more than duties, principles, rules, or consequences. This is not to say, however, that we should under- stand character as entirely independent of actions and consequences. Many would argue that “being” certain kinds of people means we are disposed toward “doing” certain kinds of actions, while those kinds of actions, in turn, have a tendency to produce certain types of consequences.

Historically, it is this emphasis on being as opposed to doing that distinguishes virtue ethics from other moral theories. Importantly, people who embody virtues—those disposed to be kind,

caring, compassionate, forgiving, respectful, gener- ous, and just—act out of a genuine respect and concern for the well-being of themselves and others. Compassion, for example, does not stem from a commitment to the principle of compas- sion, conformity to a duty to be compassionate, or a thoughtful and rational consideration of the consequences of being compassionate. Instead, people who act out of compassion tend to be compassionate people. Mother Teresa—perhaps the quintessential exemplar of the compassionate character—was not exercising compassion in the interest of acting morally; rather, her compassion was a function of her character as a compassionate person. It is for this reason that the virtue perspec- tive regards right actions and good consequences as less morally significant than developing good habits of character that dispose us to do the right thing or incline us to act in a certain fashion. If we are disposed, by way of our character, to be com- passionate, caring, forgiving, and so on, our actions will naturally follow from these dispositions or traits of character.

Key Terms and Concepts

biogenic needs 198 character 189 character trait 189

determinate sentencing 207 ethic of care 203 eudaimonia 195

golden mean 200 mandatory arrest policies 207 moral vices 190

Nonarrest often requires written justification, and failure to follow departmental policy may result in disciplinary action against the officer. Do such poli- cies potentially undermine the possibility of exercising an ethic of care? Consider whether any or all of the following should influence how domestic violence scenarios are handled by law enforcement officers:

• Whether the couple is married, separated, divorced, etc.

• Whether the victim and offender are of the same sex

• The potential financial consequences of making an arrest (for one or both parties)

• Whether there is a history of prior incidents • Whether alcohol or drugs are involved • The emotional state of the victim • The emotional state of the offender • The extent of injuries • The victim’s expressed desires

Source: William Doerner and Steven Lab, Victimology, 2nd ed. (Cincinnati: Anderson, 1998), pp. 151–153.

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Chapter 10 • The Virtuous and the Vicious: Considering Character 209

Discussion Questions

1. Describe in detail the difference between moral virtue and moral vice. As you think about criminal justice professionals (e.g., police officers, probation/parole officers, lawyers) list the five characteristics that you would argue are most typical of the character of these types of professionals. Are these characteristics virtues or vices? Finally, list five characteristics that you feel would be ideal or desirable for such professionals to embody.

2. Using an example from juvenile justice (e.g., teenage prostitution, underage drinking, waiver to the adult system, execution), explore how virtuous or vicious character might influence the decisions of all parties involved at all levels of the process, from the deviant behavior itself to disposition of the juvenile within the justice system.

3. Recalling the section of this chapter on virtue and the good life, what is the end to which criminal justice is directed? To what extent is this end consistent with the highest good as described by Aristotle? Use examples to explain and/or justify your response.

4. What is the function and purpose of the criminal justice system? To what extent are these functions and purposes consistent with Aristotle’s notion of the “good life”? To what extent do these functions and purposes promote or fail to promote the good life for citizens? Be specific!

5. Explain the relationship between virtue and human flourishing. In what ways are biogenic needs, coopera- tion, and connectedness important to this relationship? Do you believe that the adult and juvenile justice systems are structured to support these values? If not, what does this tell you about virtue ethics and the overall criminal justice system?

6. As the ethic of care requires us to consider situational factors before making decisions, what types of situa- tional factors might be important in determining whether an arrest needs to be made in the following cases: solicitation of prostitution, possession of small quantities of illicit substances, a simple assault stem- ming from a drunken verbal confrontation at a bar, public intoxication, loitering.

Endnotes

1. Robert Hare, Without Conscience: The Disturbing World of the Psychopaths Among Us (New York: Guilford Press, 1999), p. xi.

2. June Price Tangney and Jeff Stuewig, “A Moral- Emotional Perspective on Evil Persons and Evil Deeds.” In Arthur Miller (Ed.), The Social Psychology of Good and Evil (New York: Guilford Press, 2004), p. 340.

3. Emmett Barcalow, Moral Philosophy: Theories and Issues (Belmont, CA: Wadsworth, 1998), p. 99.

4. Ibid. 5. Ibid. 6. Cf. Barcalow, Moral Philosophy, p. 107. 7. Judith A. Boss, Ethics for Life (Mountain View, CA:

Mayfield, 2001), p. 402. 8. Barcalow, Moral Philosophy, p. 99.

9. Ibid., p. 107. 10. Philippa Foot, “Virtues and Vices.” In Joram Haber

(Ed.), Doing and Being: Selected Readings in Moral Philosophy (New York: Macmillan, 1993), p. 301. Originally published in Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy (1978).

11. Aristotle, Ethics, J. A. K. Thomson (trans.) (New York: Penguin, 1976).

12. Ibid, p. 63. 13. Gerald Hughes, Aristotle: On Ethics (New York:

Routledge, 2001), p. 23. 14. Paul Kurtz, Embracing the Power of Humanism

(Lanham, MD: Roman & Littlefield, 2000), pp. 25–34. 15. Erich Fromm, Man for Himself: An Inquiry into the

Psychology of Ethics (New York: Fawcett, 1965), p. 55.

moral virtues 190 practical wisdom (moral

rationality) 197

restorative justice 206 selective enforcement 207 social animals 198

teleological 194 Victim-Offender Reconciliation

Programs (VORP) 206

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16. Jean-Paul Sartre, No Exit (New York: Vintage Books, 1955), p. 47.

17. Barcalow, Moral Philosophy, p. 111. 18. Carliss Lamont, The Philosophy of Humanism

(New York: Humanist Press, 1997), p. 273. 19. Barcalow, Moral Philosophy, p. 109. 20. Aristotle, Ethics, p. 101. 21. Ibid., p. 102. 22. Ibid., p. 101. 23. Ibid., p. 94. 24. Donald Palmer, Visions of Human Nature: An

Introduction (Mountain View, CA: Mayfield, 2000), p. 56.

25. Ibid. 26. Ibid. 27. Aristotle, Ethics, pp. 91–92. 28. Lawrence Hinman, Ethics: A Pluralistic Approach to

Moral Theory (Fort Worth, TX: Harcourt Brace, 2003), p. 280.

29. Boss, Ethics for Life, p. 402. 30. Ibid., p. 403. 31. Ibid., p. 426. 32. See also, Virginia Held, The Ethics of Care (New York:

Oxford University Press, 2005). 33. Nel Noddings, “Caring as Relation and Virtue in

Teaching.”In Rebecca Walker and Philip Ivanhoe (Eds.), Working Virtue: Virtue Ethics and Contemporary Moral Problems (New York: Oxford University Press, 2007).

34. M. Kay Harris, “Moving into the New Millennium: Toward a Feminist Vision of Justice.” In H. Pepinsky and R. Quinney (Eds.), Criminology as Peacemaking (Bloomington, IN: Indiana University Press, 1991), p. 89.

35. Barcalow, Moral Philosophy, p. 218. 36. Harris, “Moving into the New Millennium.” 37. Ibid. 38. Barcalow, Moral Philosophy, p. 216. 39. Lawrence Blum, “Compassion.” In A. Rorty (Ed.),

Explaining Emotions (Berkeley, CA: University of California Press, 1980), p. 511.

40. Barcalow, Moral Philosophy, p. 215. 41. Ibid., p. 215. 42. Ibid., p. 221. 43. Gordon Bazemore and Mara Schiff, Restorative

Community Justice: Repairing Harms and Transforming Communities (Cincinnati, OH: Anderson, 2001).

44. Michael Braswell, John Fuller, and Bo Lozoff, Corrections, Peacemaking, and Restorative Justice: Transforming Individuals and Institutions (Cincinnati, OH: Anderson, 2001).

45. John Fuller, Criminal Justice: Mainstream and Crosscurrents (Upper Saddle River, NJ: Prentice Hall, 2006), p. 561.

46. Ibid. 47. D. Van Ness and K. Strong, Restoring Justice

(Cincinnati, OH: Anderson, 1997).

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211

11 The Examined Life: A Guide to

Critical Ethical Thinking

Morality is ultimately about the choices we make and the actions we undertake (or fail to take) as a result of our decisions. Whether our choices are informed by our character, our commitment to moral duties and principles, our obligations, or a rational consideration of the potential consequences of our actions, moral goodness is ultimately reflected in morally good choices. Yet what makes a choice “good”? For example, on what grounds can we say that one’s decision to support the death penalty, to endorse racial profiling as a legitimate method of policing, or to promote the waiver of juveniles to the adult criminal justice system is, indeed, morally justified or “sound”? On what grounds can we say that one’s decision to “rat on” a fellow police officer, to “look the other way” when stopping a friend for driving under the influence, or to accept bribes from drug dealers is morally unjustified? On what grounds can we claim that our choice to be truthful with a friend or colleague even though in doing so considerable harm comes to a third party was the “right” one? What conditions make decisions morally right or wrong, good or bad?

Recall from Chapter 1 that while “morality” has to do with people’s beliefs about right and wrong, good and bad, and the choices they make and the actions that they take as a result of those beliefs, “ethics” has more to do with critically reflecting on moral values, beliefs, choices, and actions. As a process of critically reflecting on morality, ethics should not simply describe moral issues and present moral perspectives; rather, ethics should also offer us some strategies that can be used to determine what position we should take on moral issues and what choices we should make in given moral contexts. Determining what position to take on moral issues such as capital punishment, racial profiling, or abortion requires a thorough analysis of the issue, utilizing principles of reasoning as well as whatever evidence we have available. Determining how we should choose or what we should do in a given situation requires the same sort of analysis—in this case, not of the issue, but of the situation, its circumstances, and how moral values and principles might be applied in that situation.

In this portion of Ethics, Crime, and Criminal Justice, we outline a number of concerns with specific relevance to moral decision-making. In a way, we hope that readers will understand what follows as a collection of “tools” that can be used as aids in moral choice-making. Though admittedly not exhaustive, our aim is to assist crime and justice professionals as they confront any number of possible moral issues and dilemmas in their everyday personal and professional lives. The observations that follow might be thought of as a practical “guide” for ethical choice-making and behavior. The types

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of skills and tools emphasized are essential components of morality. They help us make sound moral judgments, and these judgments or choices become the basis for undertaking right actions. Arguably, if these skills and tools become a part of how the criminal justice professional approaches moral dilemmas, they help to ensure that the person will lead a life built on character, integrity, and virtue.

JUSTIFYING BELIEFS AND DECISIONS

This is perhaps the most important point to be made about moral beliefs and ethical decision- making. The ethical life requires that we make good decisions, and good decisions are justified decisions.1 To say that a particular choice, decision, belief, action, law, policy, practice, punish- ment, or sentence is “justified” is to be able to show that there are good reasons for it. Beyond this, justification also requires that we be able to show that our “good reasons” are better than those for alternative decisions, policies, and so forth. While you may be able to produce good reasons for being dishonest at a court appearance, if there are better reasons for being honest, we cannot claim that dishonesty is a justified choice.

• We cannot simply seek to develop reasons for our decisions; rather, we must assess reasons for all possible alternatives, choosing the alternative that is supported by the best reasons.

Moral Reasons Are Different from Personal Reasons

Personal reasons for decisions are those that appeal to our personal needs, desires, emotions, and interests. Most of the everyday, nonmoral decisions we make can be justified by appealing to personal reasons. One might have chocolate ice cream for dessert rather than chocolate cake because it sounds more pleasurable, because it has fewer calories, or perhaps because it is the middle of summer and ice cream seems more refreshing.

• What reasons can you provide for your position on gun ownership, abortion, or flag burning? How many of those reasons appeal to self-interest? Emotion? Personal needs and desires? How many of them are reasons you have adopted from parents? Friends? Religious teachings?

Personal Reasons Are Not Sufficient Reasons for Moral Decisions

While perhaps justifying everyday (nonmoral) sorts of decisions, personal reasons are not sufficient to justify decisions with moral implications. We might support equal treatment of women because we recognize that equality is an important part of a just society, not because we are trying to impress our parents, pastor, or a romantic interest.

Good Reasons Are the Result of Careful, Rational, and Unbiased Consideration

While most of us can offer a variety of reasons for our beliefs and decisions, closer examination oftentimes reveals that our reasons are flawed in one or more ways. More often than not, this is a result of our tendency to accept beliefs and make decisions without having fully and carefully scrutinized them. Good ethical decision-making and sound ethical actions require that we spend some time considering where our beliefs and opinions come from, how and why we believe certain things or have certain opinions, and, most importantly, whether we are justified in having them.

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Ethical Frameworks Can Serve as Bases for Thinking about Reasons

Moral reasons often stem from ethical frameworks.2 Over the course of this text, we have been exposed to a variety of ethical frameworks, all offering reasons for moral decisions. Moral reasons may appeal to the consequences of our actions for other people, to moral duties or principles (e.g., it is wrong to take an innocent life), or to the value of virtue. The frameworks outlined in Chapters 8, 9, and 10 are good starting points for developing good reasons for moral decisions.

UTILIZING OUR CAPACITY TO REASON

The ethical life is not simply about “doing the right thing,” it is about doing the right thing for the right reasons. When we talk about good or right reasons, we are stressing the importance of human rationality and the capacity for reasoning which it provides. Reasoning skills are and have always been considered an important—indeed necessary—part of the pursuit of the ethical life. When making choices in both personal and professional contexts, we must utilize our uniquely human capacity to reason.3

Defining Reasoning

Reasoning refers to any process whereby we apply available information such as evidence or principles (i.e., reasons) to a question, issue, or dilemma in the interest of reaching a conclusion. When we think critically about whether we should support capital punishment, whether we should lie to a friend when telling the truth could be harmful, or about what we should believe or do with regard to any issue or in any situation, we are engaged in reasoning.4

Broadly Speaking, There Are Two Basic Types of Reasoning

These include theoretical or pure reasoning and practical reasoning. Though there is some considerable overlap between the two, for our purposes they can be described as follows:5

• Theoretical or pure reasoning involves deciding what we should or ought to believe. When we reason theoretically, we are not figuring out what we should do in a given situation, but attempting to reach conclusions about morally responsible beliefs. Thus, theoretical reasoning is what guides our thinking.

• Practical reasoning involves deciding what we should or ought to do. We involve ourselves in practical reasoning anytime we deliberate an action. Thus, practical reasoning is what guides our actions.

Theoretical Reasoning Assists Us in Developing Good Moral Beliefs

As we will see shortly, an important part of becoming a moral person is critically reflecting on the values and beliefs we hold, the principles we follow, the policies and practices we support and uphold, and the ends toward which we strive. We do so in the interest of identifying desirable values and principles, distinguishing justified from unjustified beliefs, and determining good policies and practices.

• Should the value of life outweigh the value of choice? Should the virtue of loyalty be held in higher esteem than that of honesty? Are the consequences of our actions more important considerations than our moral duties? Is the overriding goal of our system of punishment and corrections to

Chapter 11 • The Examined Life: A Guide to Critical Ethical Thinking 213

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