Constitutional conscience: Criminal justice and public interest ethics

There is likely to be a genuine process of moral awareness and sensitization involved in this task [of teaching criminal justice ethics] ... with.., the effect ... of "conscientizing" and "empowering" those who engage in such activity. -- John Kleinig(1) The Supreme Court is really the keeper of the conscience. And the conscience is the Constitution. -- Justice William O. Douglas(2) How may we teach criminal justice ethics so as to avoid both excessively abstract and mundane curricula while eschewing sterile moral guidance by either indoctrination or indifference? Informed by a literature on public interest ethics and constitutionalism, I wish to posit a constitutional public interest approach that may help to resolve debates on the teaching of criminal justice ethics. Traditional approaches to moral instruction have a tendency either to indoctrinate students or to take a so-called neutral approach.(3) Both fail to "conscientize" criminal justice students adequately to moral practices.(4) Further, traditional approaches to moral instruction tend to be excessively abstract or mundane when applied to criminal justice ethics.(5) For though ethics courses now abound in criminal justice curricula,(6) they are everywhere in the chains of approaches that either take an abstruse "high road," a mundane "low road," or at best an incomplete "middle road."(7) High Road, Low Road, Middle Road The "high road" offers the wonderfully rich literature of philosophy, humanistic psychology, and the social sciences on ethics. Building logically upon centuries of sustained inquiry, it can render a systematic understanding of current moral "conscientizing" through contemporary phenomenology, ordinary language philosophy, pragmatism, and other currents of thought. And it can overcome the abuses of indoctrination or indifference in moral inquiry. Although this literature enriches all inquiry into ethics, it is an overwhelming challenge to students and faculty in a one-term course. In a recent survey, criminal justice ethics faculty complained that this highly general material was too difficult for students.(8) Another interpretation of the same survey data summarized this as faculty frustration in "getting students to appreciate abstract theories."(9) The high road could be made more teachable were criminal justice undergraduates required to complete several courses in philosophy in preparation for the study of ethics. Other disciplines (for example, public administration) have toyed with such curricular notions but have found that a sequence of several courses in philosophy, humanistic psychology, and so forth would require up to an additional year of academic study and that these courses were therefore unlikely to be accepted as curricular additions. Similarly, given the demands upon our undergraduate curriculum, we are unlikely to offer courses in general or moral philosophy as prerequisites to applied ethics study. Further, out-sourcing such courses to a philosophy or political science department would run the very real risk of a wholly irrelevant curriculum. In any case, such courses are simply unthinkable in our police and corrections academies and training programs. But the rigors of the high road demand that ethics study be founded upon and related to broad understandings of metaphysics, epistemology, logic, linguistics, psychology, and social and political theory. This is what makes the high road both wonderful and frustrating. It is imprudent, however, to demand such a broad pre-requisite understanding of undergraduate criminal justice majors, much less of professionals in police or corrections academies. The micro-smattering of philosophy that is now taught in criminal justice ethics courses is unfair to the students and to philosophy itself. Although the graduate education of future scholars and educators in criminal justice ethics must include such broad understandings, we must provide some other foundation for the basic course in ethics for criminal justice professionals. …