by Adam J. McKee
Rectitude, according to Nitobe (1979, p. 24), is the skeleton that forms the core of Bushido. “Without such a core, no amount of training can convert a human frame into an honorable warrior.” In the tradition of feudal Japan, one who had mastered the art of rectitude was called by the honorary title of Gishi. Similar words to rectitude are integrity, uprightness, and righteousness. Part of rectitude is always acting according to ethical beliefs rather than expedience. This means that the person is constant and predictable. This predictability occurs because the person can always be counted on to act according to virtue. Virtue will always dictate similar behavior given similar circumstances.
As the Law Enforcement Code of Ethics dictates, “Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department.”
According to Taira Shigesuke (Cleary, 1999, p. 19), there are three ways of doing right. He begins with a hypothetical situation where an acquaintance has lodged a large sum of money with you, and then unexpectedly dies. No one else knows you have the money.
Under these circumstances, if you have no thought but of sorrow for the tragedy, and you report the gold to the relatives of the deceased, sending it to them as soon as possible, then you can truly be said to have done right.
Shigesuke then moves on to explain lesser degrees of rectitude:
Now suppose the man with the gold was just an acquaintance, not such a close friend. No one knows about the gold he left with you, so there will be no inquires. You happen to be in tight circumstances at the moment, so this is a bit of luck; why not just keep quiet about it?
If you are ashamed to find such thoughts occurring to you, and so you change your mind and return the gold to the rightful heirs, you could be said to have done right out of sense of shame.
Now suppose someone in your household—maybe your wife, your children, your servant—knows about the gold. Suppose you return the gold to the legitimate heirs out of shame for any designs anyone in your household might conceive, and out of fear for the legal consequences. Then you should be said to do right out of shame in relation to others.
Thus, we can trace the moral growth of a person from fear of being disrespected by those close to them, then from fear of being ridiculed by society. Then, it will naturally become habitual, so eventually, the person develops a mentality that simply prefers to do what is right.
Justice is a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him.
Saint Thomas Aquinas
Justice is rather the activity of truth, than a virtue in itself. Truth tells us what is due to others, and justice renders that due. Injustice is acting a lie.
Justice is motivated primarily by considerations of fairness. Most people accept the idea that to act justly towards other people it to treat them all equally except when their actions warrant some special treatment, such as when a combative person must be sprayed with a chemical spray. By the action of being combative with a police officer, they become deserving of different treatment than a normal citizen would receive.
Some thorny ethical issues can arise when justice comes into conflict with benevolence. The personal characteristics of a suspect may lead us to want to aid them. This can quickly lead to injustice if it is not motivated by sentiments that are applied to all people equally.
It is not a man’s duty, as a matter of course, to devote himself to the eradication of any, even the most enormous, wrong; he may still properly have other concerns to engage him…
Henry David Thoreau
Duty, honor, country: Those three hallowed words reverently dictate what you ought to be, what you can be, what you will be. They are your rallying point to build courage when courage seems to fail, to regain faith when there seems to be little cause for faith, to create hope when hope becomes forlorn.
Gen. Douglas MacArthur, US Army
When a stupid man is doing something he is ashamed of, he always declares that it is his duty.
George Bernard Shaw
The basic policing duties are to protect lives and property, preserve peace and good order, prevent crime, detect and apprehend offenders and enforce the law while at the same time protecting the rights and freedoms of all persons as guaranteed in the constitution of our state and the Constitution of the United States.
This sounds like a simple list until you stop for a second and think about it. It is impossible to accomplish everything that you would like to accomplish in any given shift. Often in police work, duties collide and you are forced to select which things are done and which things are not. Part of effectively discharging your duty as a police officer is making these choices wisely. This is the principle that Dr. Covey (1989) has made his third habit out of the Seven Habits of Highly Successful People: Put first things first. Being able to do this in a meaningful way requires that you have clear objectives in mind and that you focus the majority of your efforts on achieving those most important goals. Of course, as a police officer, you must not limit this analysis to your own personal goals. You must consider the objectives of your department and your superior officers as well.
Fairness in police work suggests a willingness to treat everyone as equals unless the law or departmental policy demand otherwise. Juveniles, for example, cannot be treated just as adults are treated. Law and departmental regulations command this unequal treatment, so it is not unethical. It is when differential treatment stems from our own personal whims and prejudices that there is an ethical problem. As the Law Enforcement Code of Ethics dictates, “I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions.”
Most of us think of being unfair as causing disproportionate harm to a particular individual or group, such as with racial profiling. Yet, providing a benefit to a particular individual or group is equally unfair. Consider the following hypothetical situation: You are a deputy sheriff patrolling late one evening. You stop a suspected DUI that turns out to be an important local businessperson who has made generous contributions to the sheriff’s reelection campaign. The person is obviously very intoxicated. In this case, failing to enforce the law for fear of the consequences amounts to cowardice.
Impartiality and Animosity
When any part of the American family does not feel like it is being treated fairly, that’s a problem for all of us.
President Barack Obama
The Law Enforcement Code of Ethics dictates that you enforce the law without “malice or ill will.” This is not only an ethical, it is also a legal idea enshrined in the Constitution of the United States, and is found in the “Equal Protection” clause. Equal protection should ensure that what happens to citizens is not determined by the color of their skin, their gender, their nationality, or the religion that they practice. Laws are binding on everyone, and the protection of the law should extend to all people. As public servants, law officers are held to a high standard when it comes to ensuring that all people are given equal protection.
Aside from the constitutional demands of equal protections, people demand equal favor from public servants. This is a major reason that many departments prohibit free coffee and discounted food at restaurants. Administrators do not want it to appear that the police favor one restaurant or store over another.
Another common form of unethical favoritism is commonly referred to as kickbacks. This is where an officer receives a fee or something of value for recommending or using a particular service at the public’s expense. Lawyers, tow truck operators, body shops and the like will often offer law enforcement officers “referral fees” for sending customers to them. This practice is considered unethical by most, and is usually prohibited by departmental policy and the law.
In police work, discretion is the authority to make decisions regarding police policy and practice. That is, you get to decide what to do in a given situation. The very nature of police work is the ethical use of discretion. Officers decide what laws to enforce, when to enforce them, and how they are enforced. Officers decide whether a particular behavior constitutes a breach of the peace and what should be done about it. Law enforcement officers have the fearsome power to take away people’s civil rights, such as when liberty is taken away through arrest. The fact that police officers are given this unusual power beyond that of normal citizens mandates an unusually heightened level of responsibility.
It has been said that power corrupts, and absolute power corrupts absolutely. This is, in part, why we have myriad laws and policies directed at limiting and directing police discretion. Simply put, the more discretion police have, the more potential there is for the abuse of police power. If this statement holds true, then all we need to do to end police misconduct is to eliminate police discretion. The problem is that discretion is such an integral part of police work that it cannot be removed. The reason for this is that no set of laws, rules, and regulations can prescribe what officers should do in every possible situation.
In fact, the limitation of police discretion was a huge factor in the professional model of policing that began in the early 1900s in the United States. We found out the hard way that a police force without discretion could not fulfill the police mission, and a great gulf opened between citizens and police. Modern attempts at community policing are due in large part as a backlash against the ineffectiveness of the professional model. Community policing requires officers to be able to design and implement customized solutions to particular neighborhood problems. This obviously cannot be done without a great deal of discretion.
It is obvious, then, that law officers must be given decision-making authority. That is, discretion is a necessary tool of the modern police job. Ethical problems arise in this environment when decisions are influenced by considerations of financial or another gain rather than by ethically sound professional judgment. Some forms of police work provide greater opportunities for corruption, and along with these greater opportunities comes a greater likelihood.
The opposite end of the spectrum from the ethical use of discretion is the use of so-called “zero tolerance policies.” Such policies serve to remove discretion, negate wisdom, and are only appreciated by those who are too lazy or too stupid to make hard decisions. Ironically, such bad ideas were made departmental policy in many departments because of a perversion of community policing under the guise of “broken windows” policing. It is worthy of note that the original authors of the Broken Windows article never advocated such a callous system of public harassment. The thrust of the article was to repair broken communities, not besiege them.
Police leadership in Baltimore fell into this trap with disastrous results. They responded to the City’s challenges by encouraging “zero tolerance” street enforcement that prioritized officers making large numbers of stops, searches, and arrests—and often resorting to force—with minimal training and insufficient oversight from supervisors or through other accountability structures. These practices led to repeated violations of the constitutional and statutory rights, further eroding the community’s trust in the police and resulting in a federal investigation by the Department of Justice (Which disappointingly levied no felony charges. If you read the details of the report, many were merited). Sadly, this has associated the idea of “proactive policing” with zero-tolerance fascist policing in the hearts and minds of many citizens, especially minority citizens who would most benefit from empowering partnerships.
Proactive policing does not have to lead to these consequences; all that “proactive” means is that prevention is better than reaction after the fact. On the contrary, ethical, community-oriented policing is proactive policing, but it is fundamentally different from the tactics employed by the misguided departments that adopted zero tolerance or patterns of heavy-handed suppression of the dignity and rights of citizens by any other names (there are many names). Community policing depends on building relationships with all of the groups that a police department serves and then jointly solving problems to ensure public safety. The key element of community policing that nearly always fails is the formation of real, genuine partnerships. Without authentic partnerships, community policing becomes just another public relations stunt, destined to be tossed out when budgets are tight and “get tough on crime” rhetoric is popular in the statehouse and the White House.
The Unsullied Life
Law enforcement officers are held to a higher personal standard than the public. This higher standard applies not only when an officer is on duty but in his or her private life as well. As the Law Enforcement Code of Ethics dictates, “I will keep my private life unsullied as an example to all.” This is not merely an ethical consideration. Often it is a matter of policy. Most agencies have a “catch-all” policy that dictates officer behavior off duty: There is a general prohibition against “conduct unbecoming an officer.” As a matter of law, conduct unbecoming is any conduct that adversely affects the morale, operations, or efficiency of the department or adversely affects the public respect and confidence in the department.
Such ambiguous phrases leave the individual officer with little guidance as to what particular behaviors are forbidden. Unfortunately, what is forbidden within a particular agency will be largely a matter of administrator preference, departmental culture, and what the courts have called “community standards of decency.” A wise chief administrator will carefully define conduct unbecoming, and make it part of policy manuals such that all employees have access.
Perhaps the most scandalous form of conduct unbecoming an officer is sexual impropriety, both on and off duty. Obviously, engaging in any sort of sexual activity while on duty is unethical: While you are on duty, you are obligated to be about the public’s business, not seeking personal pleasure. Yet the impact of engaging in such unethical activity is far more serious than something as innocuous as picking up your dry cleaning.
For many citizens, sexuality is a deeply private and emotionally charged subject. Any officer knowledgeable about criminal law can easily surmise that sexual deviancy is viewed by much of our society as exceptionally blameworthy. The law treats “sex offenders” more harshly than almost any other form of offender. When an officer engages in conduct that, while lawful, is considered immoral, he or she will be treated harshly by the court of public opinion.
Sexual impropriety does not necessarily suggest that particular sex acts occur; it can mean inappropriate “romantic” relationships. For example, officers have been reprimanded or fired for dating someone while a divorce was pending. Thus, adultery can be considered as conduct unbecoming.
An important aspect of sexual relationships that every police officer must consider is what can be called “power differentials.” That is, police officers have a great deal of power over suspects and persons taken into custody. When a police officer, by virtue of his official position, has power and authority over another person, any type of romantic relationship will be considered unethical, especially if the person is “young and impressionable.” Sexual relationships with persons in police custody are universally prohibited, and most states levy severe criminal sanctions on officers who engage in this type of behavior.
Rectitude and Legitimacy
The President’s Task Force on 21st Century Policing stated that: “Decades of research and practice support the premise that people are more likely to obey the law when they believe that those who are enforcing it have authority that is perceived as legitimate by those subject to the authority. The public confers legitimacy only on those whom they believe are acting in procedurally just ways” (2015, p. 1). As it currently stands, “distrust exists between too many police departments and too many communities—the sense that in a country where our basic principle is equality under the law, too many individuals, particularly young people of color, do not feel as if they are being treated fairly.”
If we are to move forward into the future in the spirit of partnership, we must “build trust between citizens and their peace officers so that all components of a community are treating one another fairly and justly and are invested in maintaining public safety in an atmosphere of mutual respect.” The public cares as much about how police interact with them as they care about the outcomes that legal actions produce. “People are more likely to obey the law when they believe those who are enforcing it have the right—the legitimate authority—to tell them what to do” (p. 5).
Despite the massive amount of money spent during the 1990s to instate community policing, confidence in the police among some communities of color has actually declined in the intervening years. The most likely culprit in this lack of trust and confidence is what has come to be called a culture of “mass incarceration.”
Many research projects over many years have made that neighborhood characteristics and interactions with police are the factors that most influence public opinion of the police. These studies have found that residents from neighborhoods perceived to be crime-ridden, dangerous, and disorderly are less likely to approve of the police. In contrast, residents who had informal personal contact with police were more likely to express approval. People expressed less approval of officers and the way they do their job when residents perceived problems with disorder or violent crime in their neighborhood or reported being fearful.
The level of “social cohesion” and “informal social control” present in a community also influenced citizens’ assessments of the police. These ideas boil down to residents’ sense of mutual trust and shared responsibility. Residents who responded positively to these sorts of questions were much likelier to commend police performance and bearing. A major reason for this is that these citizens are likelier to believe that the public shares responsibility with the police for a safe and well-ordered community. Therefore, they are less likely to judge police officers harshly when crime and disorder occur.
Most of the research on citizen perceptions of the police considers two basic categories of contact with officers: formal and informal. Typically, about half of citizens report some type of formal contact with local police. These formal contacts included calls for service and police questioning of citizens regarding potential crimes. These formal contacts also include arrests for about 1% of citizens across surveys. This suggests that the vast majority of police contacts with citizens—even formal ones—don’t result in arrest. This suggests that negative opinions about officers do not originate from being arrested but rather are a result of how people are treated and other extralegal factors.
It is also typical for about half of the citizens participating in a survey to report informal contact with police. These informal contacts included conversations with officers on patrol and exchanges with police at community meetings, police-supported youth activities, and community safety events. This level of contact can be misleading. Although almost half of the respondents report informal contact with police, less than 20% agreed that they knew or recognized police officers who worked in their community. This suggests that most police contacts are not community-based and that they are largely superficial. Still, people with only informal contacts tend to hold the highest opinions of police overall. Those with only formal contacts have the least encouraging attitudes toward local police.
Many studies have also shown an association between race and ethnicity with citizens’ opinions about the police. Researchers have found that ethnic minorities, particularly African Americans, report less favorable attitudes toward the police than whites, most likely because of their perception that minorities are mistreated more often by police. A careful investigation into the matter in Baltimore by the Department of Justice’s Civil Rights Division revealed that the allegations of racism were well founded, and African American and other minority residents were subjected to unequal, unfair, and illegal treatment at the hands of officers. Specifically, the report alleged that officers were “(1) making unconstitutional stops, searches, and arrests; (2) using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches, and arrests of African Americans; (3) using excessive force; and (4) retaliating against people engaging in constitutionally-protected expression.” My point is not to single out Baltimore; countless investigations, especially since the tragic events unfolded in Ferguson, have shown similar shameful results.
According to the Department of Justice, individual officers do not shoulder all of the blame for these perceptions of racism. In the Baltimore Report (2016), the Civil Rights Division concluded that “This pattern or practice is driven by systemic deficiencies in BPD’s policies, training, supervision, and accountability structures that fail to equip officers with the tools they need to police effectively and within the bounds of the federal law.” A key conclusion, in other words, was that the problem is systematic. The pattern or practice occurs as a result of systemic deficiencies at BPD. The department failed to provide officers with sufficient policy guidance and training. It failed to collect and analyze data regarding officers’ activities, which would have identified racial disparities and disproportionate contact long before had anyone bothered to look. Critically, Justice found that the department “fails to hold officers accountable for misconduct.” Each of these systemic deficiencies contributes to the constitutional and statutory violations that the Justice Department investigators observed.
As we note in this report, many of these people and groups have documented those problems in the past, and although they may disagree about the nature, scope, and solutions to the challenges, many have also made efforts to address them. Nevertheless, work remains, in part because of the profound lack of trust among these groups, and in particular, between BPD and certain communities in Baltimore. The road to meaningful and lasting reform is a long one, but it can be taken. This investigation is intended to help Baltimore take a large step down this path.
–Civil Rights Division, Department of Justice, Baltimore Report
For positive change to occur, it must occur in a systematic way. Partnerships have to be built on a foundation of mistrust, and that is a difficult prospect. What this means in practice is that officers will have to take the higher ground and humbly accept angry rhetoric from the community. A key to diffusing this hostility will be the amazing power of apology. Human nature is to rationalize conduct and try to justify past behavior. As every officer knows, nobody in jail is guilty of anything. If you just understood why they did it, you would agree that they are shouldn’t be held responsible. This strategy may come naturally, but it is a barrier to success.
When you stand up tall and admit that you did wrong, that you regret the wrongdoing, and that you want to move forward on a new footing, people are moved. Before this can be effective, people must trust what you say. Departments with a fierce dedication to ethics usually don’t have a problem establishing trust. When officer misconduct is the norm, people will never believe change initiatives that come in the form of press releases and speeches by the “brass.”
The Report by the Civil Rights Division suggests that “A commitment to constitutional policing builds trust that enhances crime-fighting efforts and officer safety. Conversely, frayed community relationships inhibit effective policing by denying officers important sources of information and placing them more frequently in dangerous, adversarial encounters.” I agree that all officers have a critically important ethical obligation to honor their oaths to “protect and defend the Constitution of the United States.” I believe, however, that limiting the scope of the issue to the Constitution misses many factors that drive wedges between the public and the police. To truly accomplish the goals enumerated by the President’s Commission specifically and community policing in general, officers must have a fierce dedication to all of the tenants of Guardian Ethics.
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