Chapter Presentation – Morality, Harm and Criminal Justice
CHAPTER SUMMARY
In this first chapter of Criminal Justice and Moral Issues, the authors discuss the intricacies of many different behaviors that are considered immoral for many different reasons. Over the years, there has been, as some argue, a moral decline of values and responsibility in an increasingly industrialized and spoiled society. Others see these actions as exercises in freedom, and should not be infringed by law or polite society. The authors argue that the role of law in deciding the morality of these issues is fluid; “the law can create as well as resolve problems and that often other patterns of social control may be better able to deal with such problems” (p. 6). The law has little to do with deterring the criminal act from being carried out, but one’s own values play a significant part of it.
Many of the crimes that are discussed in the chapter, and the book itself, are known as ‘victimless crimes’ – ones where no one but the individual carrying out the crime would potentially be harmed. Prostitution, drug use, homosexuality, abortion, pornography and gambling all have little to do with harming another and everything to do with employing regulation on these activities in light of certain moral standards that are created within American society. There is a degree of mutuality with everyone involved in all of these activities, and so the issue of their legality falls upon how other people feel about these individuals performing these acts.
When an otherwise innocent act is combined with malicious intent, this is called an “inchoate crime”; it effectively allows the police to preemptively arrest people before they perform criminal acts, but often it is used to cut down on what they deem inappropriate behavior (loitering and the like). However, there is debate as to whether or not they actually deter crimes, and whether it is ethical to arrest someone for something they may not be planning to do.
The notion of harm is also explored in the chapter; there are degrees of harm, from obvious harm (physical violence, theft, murder) to grey areas (issues of moral fortitude, actions that have the chance of harm like drunk driving). Harm is meant to be prevented from being inflicted on others and to the person who is committing the act of harm.
Morality is tied closely in with criminal law; “Criminal law draws its dictates from the preferences of those in a position to determine its content” (p. 12). In other words, those who are in authority can make their personal morals public policy, and police those whose values do not coincide with theirs. One particularly controversial issue regarding morality and the use of law is making suicide illegal, whether it be done by oneself or physician-assisted. Debate rages on over whether or not the act, since it does not directly harm anyone but the person killing themselves, should be policed and made illegal.
The act of defining these moral standards by which criminal law is determined is examined in this chapter; the most prevalent attitude is based on the words of John Stuart Mill, who advocated for “interfering with the liberty of action of [members of society]” only when others need to be protected from harm (p.22). However, this broad criterion has such a wide variety of interpretations that others have attempted to define it further. Herbert Packer states that the conditions of criminal illegality must include a) a majority of people disapproving of the conduct, b) the use of “even-handedlaw enforcement” to address the crime, c) not straining the criminal justice system through these practices, and d) a lack of alternatives to addressing the behavior that is frowned upon.
OVERVIEW OF ISSUES
One of the most important issues raised in the chapter is the idea that acts considered as criminal by some may not be immoral to others. The problem lies in whomever has the authority to effectively regulate the behavior of society; actions such as suicide may be beneficial to those who are suffering, and may be a sovereign action that the individual wishes to perform that does not harm another. However, because of moral attitudes regarding suicide, it is still illegal. The debate regarding the need to criminalize suicide is at the heart of the discussion in this chapter.
In the case of domestic violence, one of the biggest issues regarding criminal law is whether or not the actions of two people within a marriage should be criminalized. There are individuals (and more traditional cultures) that believe that women should be kept in line, and physical violence is one way to make sure that they remain obedient to their husbands. Some views dictate that, since these two people enter into a marriage contract, their behavior toward each other is implicitly permitted and consented to, including domestic violence. While in a modern American context, that may seem reprehensible, to someone else operating in their separate cultural context, it might just be another way to maintain order, a “victimless crime.” The determination of who is right is not necessarily up to the courts. These issues and more relate deeply to what cultural and moral values are used to determine what is illegal, and evidence that criminal law is not an absolute barometer for what everyone considers to be moral behavior.
When reading this chapter, I was very surprised at many perspectives that I had not considered before. Up to this point, culture, society and family had all demonstrated that following the law was ‘good,’ and that I did not need to think any more deeply about that. However, upon reading chapter 1, I have learned the value of digging deeper into the relative nature of morality, and how there is a disconnect between what is legal and what is right.
Some moral concerns, including suicide, lie in much more of a grey area now than they did before. I am personally opposed to suicide, and so I used to agree with the point that it should be illegal. However, should it be the case that suicide is a crime, especially since no one else is harmed but the victim? In the instance of physician-assisted suicide, which is illegal, the person involved is often asking for release from a terrible illness and a prolonged battle that will eventually cost them their life anyway. However, current law argues that this “right to die” is not up to them, and they must essentially wait out the rest of their days, no matter how little they wish to.
Something else that I learned in this chapter was the idea of public welfare offenses, which are inherently innocent acts that are made illegal for the off-chance that they can cause harm. Banning the selling of booze is meant to prevent accidents and crimes committed while under the influence. Perhaps the issue of physician-assisted suicide is considered a public welfare offense, as that particular issue can open up, according to the authors, a “slippery slope” that could permit doctors to assist in the suicide of anyone who wishes them to. Regardless of the morality of the issue or how people feel about it, the book (rightfully) points out that the law only gets to determine the authorities that decided these policies, and not what is the moral standard.
If I were to wish to learn more about anything, it would most certainly be the idea of harm, and its varying degrees. The wide interpretations of what constitutes harm make up a vast majority of the debate regarding morality and criminal law, as the main concern is to protect others from harm. However, what is harm to some may not be to others; some things that are policed (drunk driving) can have positive outcomes (the person getting home just fine). In that instance, would it be right to arrest someone even if they were to not cause harm? This kind of preventive arrest sets forth a slippery slope where anyone could be arrested for anything, as long as there was the slight danger of harm to others or themselves. The notion of victimless crimes also fascinates me; I am very interested in learning more about illegal actions that are still consensual by both parties involved (homosexuality, prostitution, etc.), and on what grounds are they considered illegal.
I wished to learn more in the first chapter about those specific issues and the divide between their criminality and their moral standing in the majority of society. I would focus more on the constant debate between the morality and criminality of the six issues raised in the book in the first chapter, in order to prepare the audience for a more detailed reading. However, the authors still created a detailed, informative appraisal of the difference between morality and criminal law, establishing that dichotomy in order to explore the issues further in later chapters. Their avoidance of taking a specific agenda or perspective allows both sides of the argument to be presented, so that all parties involved can understand all points of the discussion.
