by John Kleinig. New York, NY: Cambridge University Press, 2008. 294 pp. Hardback. $90.00/£45.00. ISBN: 9780521864206. Paperback. $29.99/£15.99. ISBN: 9780521682831. eBook format. $24.00. ISBN: 9780511380143.
Reviewed by Julio Rios-Figueroa, División de Estudios Políticos, CIDE, Carretera Mexico-Toluca. Email: julio.rios [at] cide.edu.
Should police violate the law in order to trap those who would otherwise escape its reach? Should prosecutors willfully withhold exculpatory information that would bear on a dangerous defendant’s guilt? Should judges and juries consider valid evidence obtained by setting up a situation that “invites” the commission of a crime and then using the ensuing criminal conduct as grounds for arresting the individuals who fall into the trap? In other words, is it right to do wrong, and under what circumstances? On what grounds can these actions be justified? John Kleinig’s interesting book discusses these and other ethical dilemmas that are prompted by the criminal justice system in the United States.
The first three chapters set up the theoretical framework that enables readers dealing with the broader ethical questions. The rest of the book is organized so that the chapters nicely mirror the sequence of a typical criminal case, analyzing in order of appearance the actors and processes of the criminal justice system: the police, the prosecutor, the defense lawyer, the judge, the jury, and prison officers. The ethical dilemmas that each one of these actors faces at different stages of the criminal process are presented by Kleinig in an attractive way that will likely stimulate rich discussions in classrooms.
The ethical discussions are set within the theoretical framework of liberal democracy, drawn mostly from work by theorists such as John Locke and John Stuart Mill. In setting up this framework, Kleinig avoids the theoretical extremes of both a Kantian perspective in which the means never justify the ends, as well as a completely consequentialist approach in which ends always justify means. Instead, he suggests keeping the discussion in a middle ground through balancing tests of ends and means (Chapter 3). The institutional actors of the criminal justice system are granted a certain degree of discretion required for performing their jobs, and Kleinig’s basic strategy is to consider the ethical boundaries of such discretion. To delineate this “bounded authority,” Kleinig proposes four steps in the balancing of means and ends: to take into account the importance of the ends; the proportionality of ends to means; the likelihood of the means actually securing the ends that they seek; and the possible downsides of using some means to ends rather than others (p.76).
Closely related to the ends/means tests, the theme of the professionalism of policepersons, prosecutors, attorneys, judges, and prison guards runs through [*843] the book. The author rightly emphasizes that, even though professionalization contributes to professionalism, the latter encompasses more than the former because it implies moral considerations in the performance of one’s job. In particular, professionalism in Kleinig’s view implies that one answer to who should set the boundaries of authority is “one self” (see, e.g., p.173). Importantly, this does not mean that the author is oblivious to institutional incentives that should be set to promote the right behaviors and to the circumstances in which particular cases take place. From a political science point of view, I found this combination of institutional and contextual analysis with the discussion of ethical dilemmas faced by actors in the criminal justice system – in particular policemen and prosecutors – to be the most engaging aspect of the book.
For instance, while we generally consider deception normally unacceptable, the police commonly use deceptive tactics in their criminal investigations – such as undercover policepersons, hidden surveillance devices, or unmarked police cars. Thus, the institutional design should set the right incentives for prosecutors and judges to ensure that in using those tactics the police do not overstepped the boundaries of their authority. Institutional links between police, prosecutors, and judges vary cross nationally, and Kleinig’s book provides a useful framework to evaluate the ethical dilemmas that are more likely to emerge in some criminal justice systems than in others. In civil law systems, where the judge plays a crucial role in the investigative phase, serving as an effective check on the abuse of deceptive tactics will be more difficult. Interestingly, the circumstances of each particular case also matter: judges allow greater police discretion in the use of deceptive tactics at the investigatory than at the trial phase. During trial, the use of testimonial deception is more damaging to social trust of courts and, as Kleinig notes, it also undermines the monitoring capacity of the court during the investigative phase (p.109).
While Kleinig acknowledges and discusses at length the strategies and dilemmas that police and prosecutors face, he does less so with judges who are also influenced and play with strategies that raise ethical concerns. For instance, vote trading in collegial courts – e.g., a judge voting contrary to her views in one case in order to get her colleague’s vote in another case – raise interesting ethical dilemmas that could be analyzed using the means/ends test proposed by the author. Of course, the role of the judge(s) in criminal cases tends to be stronger in systems other than the United States, and perhaps strongest in the civil law systems, but the practice merits an ethical evaluation. This can also occur with certain relations between judges and litigants in some cases, a topic briefly mentioned by Kleinig, which may cross the boundaries of professionalism – e.g., when powerful businessmen contact judges with whom they have personal relations pending the decision on a case that may affect the interests of the former.
In addition to more attention to judges, future editions of the book would benefit from more systematic comparisons between the Unites States criminal justice system and the other common law countries that are mentioned, the [*844] United Kingdom, Australia, and Canada. Furthermore, the inclusion of civil law countries would be helpful to appreciate a fuller range of angles of the ethical dilemmas faced by actors in criminal cases. As Kleinig briefly notes here and there, some of the dilemmas are more acute, or rather different, in transitional societies. For instance, Kleinig discusses the dilemma created by jury nullification in cases where police officers patently guilty of using excessive force are exonerated (p.181). This analysis can be enriched by looking at cases where police abuse takes place in contexts of profound social inequality, an overwhelming public support for “iron fist” actions, and different institutional relations between police, prosecutors, and judges (see Brinks 2008).
In sum, this book is an interesting and easy to read introduction to the ethical dilemmas prompted by the criminal justice system that is likely to generate vivid discussions in the classroom. The tension between security and liberty recently emphasized by the “war on terror,” as well as the security concerns that an increasing number of societies face around the world, make it also a timely contribution. In particular, the book can be an excellent complement in a course on judicial politics and judicial institutions that usually do not consider, or barely, ethical issues regarding the behavior of actors who populate the institutions of the justice system.
Brinks, Daniel. 2008. THE JUDICIAL RESPONSE TO KILLINGS IN LATIN AMERICA: INEQUALITY AND THE RULE OF LAW. New York: Cambridge University Press.
© Copyright 2008 by the author, Julio Rios-Figueroa.