By Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan
| Editor’s note: This article is the third in a four-part series of privacy-related articles that appears in Police Chief magazine. Articles previously published in this series are Thomas J. Martinelli and Joseph A. Schafer, “Updating Ethics Training—Policing Privacy Series: Taking Race out of the Perception Equation” (January 2011): 18–22; and Thomas J. Martinelli, “Updating Ethics Training—Policing Privacy Series: Respecting Society’s Evolving Privacy Expectations” (February 2011): 70–76.|
uch has been written about the proper execution of police discretion, values, and the decision-making processes associated with crime fighting. Because policing is such a unique profession, wherein street-level supervision is limited, much emphasis is placed on the personal and professional integrity of the men and the women tasked with policing neighborhoods. Furthermore, there has been a much-heralded training emphasis in the last decade regarding the ethical dilemmas officers face on a daily basis. Police ethics training is not novel in its conceptual application, but it must continue to evolve as policing continues to evolve. Contradictions in training, at times, regarding whose values are to be enforced through the application of governmental authority, must be organizationally clarified. This confusion, and failure at times, comes from a misapplication of the police mission and the police values and a misunderstanding of privacy expectations. Misapplications in training and supervision create a street-level environment rife with cutting corners, unethical rationalizations, and liability.
But can one really teach ethics? Can one really teach courage?
The IACP’s Law Enforcement Code of Ethics dictates that officers will “maintain courageous calm in the face of danger.”1 Generally speaking, courage is not a socially learned behavior. Typically, police screening interviews shy away from actual questions regarding the level or amount of courage a recruit believes he or she brings to the job. Nor is there a block of training set aside in “courageous calm” that is specifically addressed in police academies around the United States. In a juxtaposed argument, academies do not discuss the sanctions for cowardice, although these sanctions are still found in general orders and cowardice is still a disciplinable act.
Not unlike many facets of this profession, courage is reinforced and implicitly taught through repetition and scenarios at the gun range, in legal lectures, in the socialization process, and through street experience. Veteran cops acquire a mental courageous calm switch. That switch flips on when average citizens confronted with the same dangers and threats to life and limb would likely panic, wilt under such pressures, and fail to perform as the situation demanded. Panic, shock, and retreat are natural human reactions to threats of danger, but flight is never an option for cops. All emergency personnel have this switch ingrained in them, whether they are police officers, firefighters, or emergency medical service workers. It is likely a reason contributing to why they apply for the job.
So why can’t the philosophies of police ethics be taught through repetition, scenarios, and the socialization process? Personal morality cannot be taught in the sense that trainers can reconfigure the preconceived moral makeup of a recruit. People are who they are, and the personal biases, prejudices, and values they collected through their own maturation processes are part of the baggage, good or bad, that individuals bring to their professions.
It is presumed and desired that in policing, the best of the best are recruited, hired, screened, and trained. This noble calling is not for the faint of heart, nor is it just another job. It is a calling that demands an acute sense of personal integrity, professionalism, peril, and a philosophical appreciation for the power and the authority the badge symbolizes. It is a profession not unlike the medical or legal fields that, in an effort to police itself, demands a strict acquiescence to its oath of office and constant revisions and re-education. Oaths in any profession are guidelines and standards for occupational behavior and accountability. Mission statements, department-wide or for specific units, are the philosophical roadmaps that are the guides to a path of success.
Being true to the ethics of police service entails being true to the values, the tenets, and the ideals of the profession. Police ethics training digs deeper into the meaning of the profession’s values and ideals in an effort to reconfigure recruits’ personal value systems and to obtain policy compliance measures. There is no time for boot camps in policing to break down recruits’ values systems and build them back up in step with their agency’s expectations. Yet ethics training focuses on the dilemmas street officers are confronted with when there is no supervision around. Ethics lectures must specifically address the organization’s expectations and police values that address the best practices and past failures of the profession. Street-level discretion is learned by training, experience, and reinforcement through the disciplinary process. Discipline has always been a training tool—effective in the military as well as in policing.
For years, police ethics trainers have recognized a gap between the realities of street policing and the ethics training curriculums that simply taught “coffee shop ethics” and the ills associated with the “acceptance of gratuities.” Street-level discretion from an ethical viewpoint lacked in its analysis and application pertaining to the dilemmas associated with the badge. This chasm between such realities and training would hinder the “development of police knowledge, impede the development of genuine professionalism, diminish the quality of police services, invite the use of personal whim as the basis for discretionary judgments, and unnecessarily expose police officers and departments to liability suits.”2 Further complicating this gap, specifically regarding “use of personal whim[s],” is the rationalization associated with corruption for the noble cause and the lost sense of professionalism.
Whose Values Define Police Discretion?
The Commission on Accreditation for Law Enforcement Agencies (CALEA) publishes standards for the profession. Germane to this discussion is Standard 1.2.2, the Limits of Authority, which dictates that “a written directive (emphasis added) [govern] 3 the use of discretion by sworn officers. In many agencies, the exercise of discretion is defined by a combination of written enforcement policies, training, and supervision. The written directive[s] should define the limits of individual discretion and provide guidelines for exercising discretion within those limits.”4 In the past, agencies have failed to specifically address the individual perils associated with officers using their personal values, biases, and prejudices in the execution of street-level policing. CALEA’s efforts mark a major shift in addressing street-level police discretion and the mandate to have written policies regarding such decision-making processes and organizational expectations.5
Despite the CALEA standard above and the fact the IACP Law Enforcement Code of Ethics dictates that officers will never “permit personal feelings, prejudices, political beliefs, aspirations, animosities, or friendships to influence”6 their law enforcement decisions, more recent scholarly efforts have clouded the issue regarding street-level discretion.
For example, one author defined discretion as “the use of personal decision making and choice in carrying out operations in the criminal justice system.”7 Another textbook defines it as “the ability of individuals in the criminal justice system to make operational decisions based on personal judgment instead of formal rules or official information.”8 And, most recently, an academic wrote that police “must deal with many problems and situations that require them to use the combination of the ethical values learned in training, those derived from personal values, those influenced by peers, and those that are expected by the public” (emphasis added).9 Adopt these philosophies as an organizational policy, and the agency will be in litigation.
The only values officers must employ in the delivery of their police services are the values of the profession. They are not to use their own personal values in their decision-making processes while enforcing the law. Recruits have different backgrounds, different upbringings, different religions, and different moral compasses. So, too, their veterans or colleagues possess differing moral foundations, so much so that they must never be used as the proper measuring stick for ethical policing. Time in rank presupposes that supervisors, though possibly conflicted regarding certain moral issues of the job, have enough training and experience to understand and respect the ethical tenets of the profession and of the organization, and act accordingly. Paramilitary organizations are founded on this premise.
What type of policing is “expected by the public?” Furthermore, what is the “public” referred to in this case?
The citizens this occupation serves do not have to abide by the strict constructs of the Constitution or the ethics of a particular profession. Out of frustration, repeated victimization, or desperation, citizens simply demand that the police clean up their neighborhoods from societal predators, rampant crime, and common disorder. The public’s values regarding the dispensation of police services will rarely mirror those of the profession. This is an ethical dilemma officers face on a daily basis. They want to professionally serve their clientele, yet that service must comport to the constitutional and organizational rules of the trade. Sometimes police “corruption is produced by the pressures society has imposed on police. Citizens place the police in a position of tension, where they are expected to enforce the law but also to obey regulations about how they may obtain information and gather evidence and police. They are also expected to enforce personal morality while respecting constitutional rights to privacy and due process” (emphasis added).10 Enforcing personal morality can lead to corrupt police rationalizations. Is there ever a level of police corruption that society—law enforcement’s clientele—can accept or tolerate? No, never.
Noble Cause Corruption, Discretion, and Privacy Expectations
Noble cause corruption in policing occurs when good officers substitute in their personal values for the values of the profession and the law. It is an ends-justifies-the-means rationalization associated with public service wherein officers break the law to enforce the law. It is unconstitutional policing; an illegal use of authority and power, but not for personal gain. Rather, the objective is to rid society of its predators, no matter what the means, as an ultimate goal.11 This is when officers cut corners to circumvent the constitutional guidelines promulgated for them in their profession and rationalize such illegality as a means to an ordered end. Granted, the end is a noble cause (cleaning up the streets they police), but the means used is the less-discussed side of noble cause corruption.
Such street-level rationalizations cloud the police mission and, when discovered, undermine the efforts of those in the profession who are committed to just ends. Whether citizens arrested are murderers, rapists, pedophiles, drug dealers, or terrorists, they are society’s predators and it is law enforcement’s job to put them away. Yet bending (or breaking) of the law under a police rationalization that such ends (incarcerating society’s predators) justifies the use of illegal means (violation of predators’ constitutionally protected rights) is a critical issue that must be addressed in training curricula. The planting of evidence, falsified testimony, privacy violations in information gathering, and the arbitrary detention of citizens without legal justification are examples of noble cause corruption.12 Illegal fishing expeditions by law enforcement can result in exclusion of evidence, as so-called “fruits of the poisonous tree,” and dismissal of all criminal charges. The American Exclusionary Rule was specifically carved out in U.S. Supreme Court case law to prevent constitutional noncompliance by the police.
For years, academicians have been researching and writing about noble cause corruption, and yet it still is not a common topic in academy training. Some would argue that low-ranking subordinates should never have the option to engage in such occupational rationalizations,13 while others have suggested that street-level decisions are made without regard to “the formal administrative and legal protocols.”14 Others have suggested that poor administrative attention to this problem and the occupational stressors it produces have fueled its existence through a looking-the-other-way supervisory mentality: “[F]ormal organizational values impose pressures that may lead to noble cause corruption. Aspirations for promotion, ‘implicit quotas for arrests, directives from administrators, self-esteem, [and personal] moral ideological commitments all put pressure on the individual officer to lie or otherwise subvert the formal values of law enforcement and lead to violation of suspects’ rights or other unethical behaviors” (emphasis added).15
Police discretion involves legal, educated decision-making processes. Whether to enforce the full letter of the law, to simply advise a citizen, or to choose a middle ground, street-level officers must incorporate all of the tools of their trade and select the plan of action most appropriate or reasonable on a case-by-case evaluation. Though there are many factors to consider regarding officer discretion, personal biases, prejudices, and values are not to be employed in this decision-making process. Nor can police rationalizations be used to breach the constitutional line regarding citizen privacy expectations. Cutting corners regarding policy and procedure implementation has proven to be costly. Ethics training must incorporate the critical importance of comporting to the specific dictates of the legal process, the philosophy of the profession, the ethical expectations of the organization, and the need to keep personal values in check while wearing the badge.
One of the most sacred and democratic ideals in the United States is the treasured expectation of privacy. Whether a career criminal, an innocent citizen wrongfully accused of a crime, or a public servant accused of corrupt acts, as members of American society, individuals cherish their privacy expectations far more than any other constitutionally protected right. And yet, every day, the police are tasked with the challenge of investigating allegations of criminality (that may require a reasonable intrusion of a target citizen’s privacy expectations), all the while having to respect that individual’s right to privacy. Updating the organization’s ethics training curricula pertaining to the values, privacy issues, and the rationalizations of noble cause corruption discussed herein is a formula for success.
Agencies must maintain a written policy regarding the organization’s guidelines pertaining to the use of officer discretion, privacy issues, the ills of noble cause corruption, and the sanctions for noncompliance. CALEA’s guidelines, as discussed earlier, or the IACP model policy on unbiased policing are two key resources to replicate.16 Reduce the policy to writing and incorporate the privacy protection nomenclature therein.
Furthermore, blocks of training in police ethics, privacy issues, and past examples of officer misconduct must be incorporated at the academy level, in addition to annual ethics training, in order to lay the foundation for future agency successes. Officer discretion, many times in relation to whistle-blowing on colleague misconduct, whether illegal or unethical, is perceived as a lose-lose situation and addressing ethical dilemmas in policing gives hope to future whistle-blowers. It also sends a message to all sworn personnel that such behavior is unacceptable, will be zealously investigated and, if appropriate, will be properly disciplined. Maintain written records of when each member obtained this training and signed off on receipt of the written policy.
It is highly recommended that an agency’s training curricula use the IACP Law Enforcement Code of Ethics as a training tool to discuss the ethical dilemmas in law enforcement and the nuances specifically associated with policing privacy. Agencies should also subscribe to and train in the public servant paradigm as opposed to the crime-fighting model. The public servant paradigm encompasses the philosophies found in the IACP Law Enforcement Code of Ethics and emphasizes the service side of policing, justice for all subgroups in society, and the higher standards police are held to because of the power and authority they hold and symbolize in a democratic society.17
Rewarding ethical behavior is the key to message sending for police executives and middle managers. Many times in policing, it is taken for granted that officers will do the right thing when confronted with an occupational dilemma because it is in their job description. But rewarding ethical behavior drives home that message in a more effective fashion. The flip side to that is the appropriate use of general orders, policies, and procedures to discipline officers for unethical behavior and noncompliance. Accountability is critical in this profession, and instilling an ethical culture of policing has only an upside to it.
Additionally, the American Exclusionary Rule applies to all evidence seized illegally, unethically, and unconstitutionally when proffered in a criminal court of law. Whether classified under the rationalization of noble cause corruption, bias-based policing, or discrimination, it does not matter: If it is learned that prosecutorial evidence was tainted due to how it was obtained, the prosecutor cannot use it in court. If the prosecutor is unaware of this taint and tenders it in the case in chief, and its illegality is subsequently discovered, the evidence is “fruit of the poisonous tree” and all criminal charges can be dismissed. Officer integrity and the integrity of the evidence tendered in criminal cases are vital to successful prosecutions, and, more times than not, privacy issues come into play in these situations.
Finally, ethics training must address the irreparable harm that results to a department’s image when police crimes involving noble cause corruption and privacy violations are proven. The implied trust society has for its law enforcement officers is premised on their faith that the police always do the right thing when confronted with such ethical dilemmas in the enforcement of the law.
Right or wrong, when noble cause corruption exists in an agency, even if it is corruption by a select few, citizens jump to conclusions of guilt by association regarding the entire police force. They know street-level police discretion is only as professional as the officers dispensing it, and when one bad apple is discovered, logical conclusions can taint the organization as a whole. Training against the rationalizations of noble cause corruption and corner-cutting in regard to police search procedures educates officers on the negative organizational ripple effects that result from such poor street-level decision making. It truly is a police crime that affects the image of those who believe in the nobility of this profession. ■
| Thomas J. Martinelli, MS, JD, is an adjunct professor at Wayne State University in Detroit, Michigan. He is a practicing attorney and an independent training consultant for both the Institute for Intergovernmental Research, Tallahassee, Florida, and Michigan State University’s Intelligence Toolbox Program, East Lansing, Michigan. He trains in police ethics and liability and intelligence-led policing, specifically addressing privacy issues. He is a member of the IACP Police Image and Ethics Committee.|
1International Association of Chiefs of Police, Police Chiefs Desk Reference, “Chapter 2: Ethics,” 35, http://www.olemiss.edu/ciss/Academics/Research/Police_Chiefs_Desk_Reference/pdf/2%20e2thics.pdf (accessed January 18, 2011).
2George L. Kelling, “Broken Windows” and Police Discretion, NCJ 178259, National Institute for Justice (October 1999), http://www.ncjrs.gov/pdffiles1/nij/178259.pdf (accessed December 29, 2010).
3Brackets appear around the word “govern” in the cited work (George F. Cole and Christopher E. Smith, Criminal Justice in America (Belmont, Calif.: Thomson Wadsworth, 2008), 155), but not in the original CALEA standard.
4Cole and Smith, Criminal Justice in America.
6IACP, Police Chiefs Desk Reference.
7Larry J. Siegel, Introduction to Criminal Justice (Belmont, Calif.: Wadsworth, 2010), 307.
8Larry H. Gaines and Roger Leroy Miller, Criminal Justice in Action (Belmont, Calif.: Thomson Wadsworth, 2009), G-5.
9Julie B. Raines, Ethics in Policing: Misconduct and Integrity (Sudbury, Mass.: Jones and Bartlett, 2010), 168.
10Cyndi Banks, Criminal Justice Ethics: Theory and Practice (Thousand Oaks, Calif.: Sage Publications, 2009), 76.
11Thomas J. Martinelli, “Unconstitutional Policing: The Ethical Challenges in Dealing with Noble Cause Corruption,” The Police Chief 73 (October 2006): 148, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1025&issue_id=102006 (accessed December 29, 2010).
12Thomas J. Martinelli, “Dodging the Pitfalls of Noble Cause Corruption and the Intelligence Unit,” The Police Chief 76 (October 2009): 124, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1917&issue_id=102009 (accessed December 29, 2010).
13Edwin J. Delattre, Character and Cops: Ethics in Policing, 3rd ed. (Washington. D.C.: American Enterprise Institute, 1996), 213.
14John Kleinig, “Handling Discretion with Discretion,” Handled with Discretion: Ethical Issues in Police Decision Making (New York: Rowman and Littlefield Publishers Inc., 1996), 1–12.
15Michael A. Caldero and John P. Crank, Police Ethics: The Corruption of Noble Cause (Southington, Conn.: Anderson Publishing, 2010), 224.
16For more information on up-to-date model policies, and their related papers, please contact the National Law Enforcement Policy Center by e-mail at firstname.lastname@example.org or visit the website at http://www.theiacp.org/policycenter.
17Joycelyn M. Pollock, Ethics in Crime and Justice: Dilemmas and Decisions (Belmont, Calif.: Thomson Wadsworth, 2004), 141.
Please cite as:
Thomas J. Martinelli, "Updating Ethics TrainingPolicing Privacy Series: Noble Cause Corruption and Police Discretion," The Police Chief 78 (March 2011): 60-62.